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57 Nev.

1, 1 (1935)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 57
____________
57 Nev. 1, 1 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
CITY OF FALLON v. CHURCHILL COUNTY BANK
MORTGAGE CORPORATION
No. 3114
September 12, 1935. 40 P. (2d) 358.
[Reporter's NoteThe following opinion was not reported in Volume 56 for the reason
that it was deemed advisable to await the final disposal of the matter and report all phases of
the case in the same volume.]
1. Appeal and Error.
General rule is that it must appear from record that bill of exceptions, if any, has been timely filed, and
unsupported statements as to such filing cannot be considered.
2. Appeal and Error.
Where it does not appear that the bill of exceptions was filed in the lower court, motion to strike such bill
of exceptions must be granted.
3. Appeal and Error.
Where plaintiff tendered for filing copies designated as Judgment Roll without any showing of any
kind as a basis for such offer, and only showing as to when appeal was perfected was in so-called Bill of
Exceptions which, if accepted, showed that time for filing a judgment roll had expired long prior to offer,
judgment roll was not before court (Supreme Court Rule II).
4. Appeal and Error.
Supreme court rule relative to the correction of errors or defects in transcript on file clearly contemplates
correction of defects and errors of transcript properly filed, and filed within time limit, and when there is no
bill of exceptions or judgment roll so filed there is nothing to correct or amend {Supreme
Court Rule VII).
57 Nev. 1, 2 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
roll so filed there is nothing to correct or amend (Supreme Court Rule VII).
5. Courts.
Although the supreme court is reluctant to make any order which will prevent hearing of an appeal on its
merits, it cannot ignore rules of procedure in doing so.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by the City of Fallon against the Churchill County Bank Mortgage Corporation.
From a judgment in favor of defendant, plaintiff appealed. On defendant's motion to strike
from the files and records of the court the document filed by plaintiff and designated Bill of
Exceptions. Bill of exceptions stricken, and appellant's tender of judgment roll denied.
George J. Kenny and H. R. Cooke, for Respondent:
The proposed bill of exceptions was not served on respondent until April 15, 1935, at least
fifteen days after expiration of the twenty days allowed by law therefor. Section 9398 N. C. L.
And it was never filed in the court below.
Obviously, section 9386 N. C. L. relied upon by respondent does not apply to a case where
a proposed bill is not filed in the trial court at all, and does not apply to a case where such bill
is served after expiration of the time allowed therefor, but applies only where the proposed
bill is filed and served within time, but omits material facts, etc., in which case the adverse
party may object on such grounds. Johnson v. Johnson, 54 Nev. 453 [433], 22 P. (2d) 128.
Tendered bills of exceptions not filed within the time allowed by statute (section 9398 N.
C. L.) will be stricken on motion. Comstock Phoenix Mining Co. v. Lazzeri, 55 Nev. 421,
36 P. (2d) 360.
The time for filing a bill of exceptions having expired, the failure to file it in time was
jurisdictional, and there could be no waiver. Johnson v. Johnson, supra.
Appellant's alternative request for leave to file herein a certified copy of the judgment roll
is premature, in the absence of the proper motion with notice of ground therefor, etc., and
in any event the request is without legal basis, under rule II of this court.
57 Nev. 1, 3 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
a certified copy of the judgment roll is premature, in the absence of the proper motion with
notice of ground therefor, etc., and in any event the request is without legal basis, under rule
II of this court. Treating the instant case as one where there is no bill of exceptions, the
transcript of the record here could consist only in a certified copy of the judgment roll. It is
clear that the thirty days time for filing such judgment roll transcript has long ago expired, as
the appeal was perfected by filing and serving notice of appeal on April 15, 1935.
Eli Cann, for Appellant:
The 1935 Statutes, p. 205, sec. 32, sets forth the procedure defendant shall follow to make
its objections to a proposed bill of exceptions; and section 36 of the same act states that if a
party shall fail to make objections as required to such bill of exceptions within the time
limited he shall be deemed to have waived his right thereto.
Section 9386 N. C. L. requires the adverse party, if he wishes to object to the allowance
and settlement of a bill of exceptions, to serve and file a statement specifically pointing out
wherein said bill is defective. State ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363.
Counsel not having pursued the statutory method of offering amendments, if the proposed
bill of exceptions were not correct, and having permitted the court to settle and authenticate it
as it was presented, they are now bound by the same as it was settled, and so is this court.
Karemius v. Merchants' Protective Association (Utah), 235 P. 881.
It is the policy of the law that cases should be disposed of in this court on their merits
when possible. Section 9401 N. C. L.; Orleans H. M. Co. v. Le Champ, etc. M. Co., 52 Nev.
85, 280 P. 887; Shirk v. Palmer, 48 Nev. 449, 232 P. 1083; Johns-Manville v. Lander County,
48 Nev. 244, 239 P. 387; Lindley & Co. v. Piggly Wiggly Nev. Co. (Nev.), 22 P. (2d) 355;
Coykendall v. Gray, 53 Nev. 113, 293 P. 436; Stats. 1935, p. 202, sec. 27.
57 Nev. 1, 4 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
However, if this court shall deem that the bill of exceptions should be stricken because it
was not filed within twenty days of the entry of judgment in the district court, and further
deem that the judgment roll as the same appears in such bill of exceptions is not properly or
sufficiently certified, appellant prays that the notice of appeal attached to the bill of
exceptions be not struck, but be retained by this court, and that appellant be permitted to file
herein a certified copy of the judgment roll.
OPINION
By the Court, Coleman, J.:
This matter is before the court on the motion of respondent to strike from the files and
records of the court the document filed by appellant and designated Bill of Exceptions,
upon the ground that the same was never filed in the lower court.
Section 9398 N. C. L. provides that a party to an action may serve and file a bill of
exceptions. The same section contemplates that a transcript of the proceedings, certified, may
be filed in lieu of a bill of exceptions. Paragraph 2, section 8829 N. C. L. also contemplates
the filing of a bill of exceptions. Counsel for appellant, upon the hearing, did not contend that
it is not necessary that a document, to become a bill of exceptions, be filed. It was his
contention that the document in question was in fact filed with the clerk of the lower court,
and that it remained in his possession until about the time it was filed in this court.
1. It is the universal practice in this jurisdiction, so far as we recall, for the clerk of the trial
court to indorse upon a bill of exceptions, when filed, a memorandum of its filing and the
date thereof, and sign it as such clerk. There is no such indorsement upon the document in
question, and there is no showing of any kind, except the bare statement above mentioned, of
such filing. In opposition to the statement made, counsel for respondent exhibited a letter
from the clerk of the lower court stating that no bill of exceptions had been filed in his
office in the matter.
57 Nev. 1, 5 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
opposition to the statement made, counsel for respondent exhibited a letter from the clerk of
the lower court stating that no bill of exceptions had been filed in his office in the matter.
Neither of these unsupported statements can be considered. It is the general rule that it must
appear from the record that the bill of exceptions, if any, is filed within the time fixed by law.
4 C. J. 61.
2. It not appearing that the bill of exceptions was filed in the lower court, it necessarily
follows that the motion to strike must be granted.
3. Upon the hearing of the above matter counsel for appellant tendered for filing two
copies designated Judgment Roll. No notice was given of the proposed offer, nor was any
showing made as a basis for such offer, and counsel for respondent objected thereto. Rule II
of this court provides that transcript of record on appeal, when there is no bill of exceptions in
the case, shall be filed within thirty days after the appeal is perfected. There is no showing
when the appeal was perfected, other than what appears in the so-called Bill of Exceptions,
nor any showing of any kind as a basis even for the consideration of the offer by the court. If
we accept the showing in the so-called Bill of Exceptions, the time for filing a judgment
roll had expired long prior to the making of the tender mentioned.
4. Counsel for appellant direct our attention to rule VII of this court relative to the
correction of errors or defects in the transcript on file; also to numerous decisions of the
court. Neither the rule nor any of the decisions are in point. The rule in question clearly
contemplates the correction of defects and errors of a transcript properly filed, and filed
within the time limit. There being no bill of exceptions before us, nor a judgment roll, there is
nothing to correct or amend. Had there been a motion, on due notice, to file the judgment roll,
supported by an affidavit showing excusable neglect, or other satisfactory grounds, a different
situation would be presented.
Counsel call our attention, also, to Shirk v. Palmer, 48 Nev. 449-451, 232 P.
57 Nev. 1, 6 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
Nev. 449-451, 232 P. 1083, 236 P. 678, 239 P. 1000. In that case there was a motion to
dismiss the appeal, but there was not attack upon the bill of exceptions when that motion was
made, and the first opinion in that case treated the record as having a bill of exceptions,
properly settled, containing all of the pleadings, judgment, notice of motion for a new trial,
etc. Hence that opinion is not in point here. It will appear from a later opinion in that case (48
Nev. 451 to 457, 236 P. 678) that after the first opinion was filed a motion was made to strike
the bill of exceptions. The distinguishing feature between the situation presented on the first
hearing in the Shirk-Palmer case, and in this matter, is that in it counsel for respondent treated
the so-called bill of exceptions, which contained all the pleadings, etc., as being properly
before the court, whereas in this matter respondent attacks the only document on file, which
we hold has no place in the record, hence the appellant is in default and has nothing here as a
basis for correction or amendment. In the Shirk-Palmer case we took the position that since
there was a bill of exceptions in the record, there was a record that might be amended
pursuant to the statute mentioned, but we cannot correct or amend a record which must be
stricken.
5. It is true, as contended by counsel, that the court is reluctant to make any order which
will prevent the hearing of an appeal upon its merits, but we cannot go to the length of
ignoring the rules of procedure in doing so.
There being no showing, the offer must be denied.
It is ordered that the Bill of Exceptions be stricken. It is also ordered that appellant's
tender of the judgment roll be denied.
On Motion to Permit Appellant to File Certified
Copy of Judgment Roll
November 5, 1935. 50 P. (2d) 944.
1. Appeal and Error.
Appeal can be taken on judgment roll alone, or on both judgment roll and bill of
exceptions, or on such other record as may be appropriate in particular case {Stats.
57 Nev. 1, 7 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
judgment roll and bill of exceptions, or on such other record as may be appropriate in
particular case (Stats. 1935, c. 90).
2. Appeal and Error.
Reasons allegedly excusing appellant for not properly preparing bill of exceptions
would not permit filing of certified copy of judgment roll after time for filing had
expired.
3. Appeal and Error.
Supreme court would not permit certified copy of judgment roll to be filed after time
for filing had expired in absence of showing of excusable neglect for failure to file
judgment roll in time.
4. Appeal and Error.
Excusable neglect for failure to timely file judgment roll should have been urged on due
notice supported by proper showing at time motion to strike bill of exceptions was made.
Motion denied.
Eli Cann, for Appellant:
We contend that rule VII of the supreme court expressly permits us to produce a copy of
the judgment roll, duly certified, and under this rule we have asked this court's permission to
file it. State v. Hill, 32 Nev. 185, 105 P. 1025; Botsford v. Van Riper, 32 Nev. 214, 106 P.
440; State v. Bonton, 26 Nev. 34, 62 P. 595; Kirman v. Johnson, 30 Nev. 146, 93 P. 500;
Shirk v. Palmer, 48 Nev. 449, 457, 232 P. 1083, 239 P. 1000; Segale v. Pagni, 49 Nev. 313,
244 P. 1010; Orleans Hornsilver M. Co. v. Le Champ D'Or French G. M. Co., 52 Nev. 85,
280 P. 887.
George J. Kenny and H. R. Cooke, for Respondent:
We contend that respondent's objection to appellant's offer of the judgment roll as the
transcript on appeal is well taken and should be sustained, and appellant's appeal herein
should be dismissed. Supreme Court Rules II and III; 4 C. J. secs. 1991, 2189, 2191, 2195,
pp. 350, 460 and 463; Hayes v. Davis, 23 Nev. 233, 45 P. 466; Sullivan v. Nevada Ind.
Comm., 54 Nev. 301, 14 P. (2d) 262; Baer v. Lilenfeld, 55 Nev. 194, 28 P. (2d) 1038; Bottini
v. Mongolo, 45 Nev. 252, 197 P. 702; Skaggs v. Bridgman, 39 Nev. 310, 154 P. 77; Haley v.
Eureka County Bank, 20 Nev. 410, 22 P. 1102.
57 Nev. 1, 8 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
OPINION
By the Court, Coleman, J.:
This case is now before us on a motion, duly noticed, to permit appellant to file herein a
certified copy of the judgment roll. Heretofore we ordered stricken from the files a purported
bill of exceptions. On the hearing of the motion to strike the bill of exceptions, counsel for
appellant tendered for filing a certified copy of the judgment roll. This was after the time
allowed for the filing thereof had expired. Such tender was not based upon a motion duly
noticed and supported by any showing whatever of excusable neglect. We refused to permit it
to be filed. 57 Nev. 1, 49 P. (2d) 358.
1. The affidavit in support of the present motion sets forth why the purported bill of
exceptions, ordered stricken, was not filed as provided by law. No fact, or purported fact, is
set forth in said affidavit tending to excuse appellant for not filing the judgment roll within
the time fixed by law. An appeal may be taken on the judgment roll alone, or upon both the
judgment roll and the bill of exceptions, or upon such other record as may be appropriate in a
particular case, as provided by chapter 90, Stats. 1935.
2-4. We do not understand just why we should now permit the filing of the judgment roll
because of reasons excusing appellant, if such be the case, for not properly preparing its bill
of exceptions. In fact, no showing of excusable neglect having been made for failure to file
the judgment roll in time, it is clear that the motion must be denied. Had there been excusable
neglect for not filing the judgment roll, that should have been urged, on due notice, supported
by a proper showing, at the time the motion to strike the bill of exceptions was made.
Other questions are discussed, but it is not necessary to consider them.
For the reason given, the motion is denied.
57 Nev. 1, 9 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
On Appellant's Motion for an Order Extending the Time in Which to File
and Serve a Bill of Exceptions, and a Counter Motion of
Respondent to Dismiss the Appeal.
February 4, 1936. 54 P. (2d) 273.
1. Exceptions, Bill Of.
Clerk need not make notation of filing to constitute filing of bill of exceptions, since all
that litigant can do in filing document is to deposit it with proper official and pay or
tender fee therefor.
2. Appeal and Error.
Supreme court is reluctant to dispose of case except upon merits.
3. Appeal and Error.
Spirit of law is liberal in matter of amending record on appeal (Stats. 1935, c. 90, sec.
45).
4. Appeal and Error.
Where plaintiff had deposited bill of exceptions in clerk's office, had served copy upon
defendant's counsel, and bill had been duly settled by trial judge, but it did not appear
from bill that it had been filed in trial court, plaintiff held entitled to have bill remanded
to clerk for amendment to show filing (Stats. 1935, c. 90, sec. 45).
Order in accordance with opinion.
Eli Cann, for Appellant:
Appellant contends that if a document is presented to the clerk for filing, and the fees, if
demanded, are paid, the document is by that act filed, whether it is marked filed or not; that
the act of placing the file number or mark upon the instrument, the placing of it in the proper
file, or doing whatever else that may be necessary devolves upon the clerk, who is elected and
paid to perform the duties of his office, and he is presumed to do this duty; that when a
person desiring to have a document filed has done all he can do to accomplish that purpose,
and the officer actually accepts the document for filing, it would be contrary to public policy
to hold that the document is not filed. Golden v. McKim, 45 Nev. 350, 204 P. 602.
From the date of the decision by Bigelow, J., in 21 Nev. 1S4, 27 P.
57 Nev. 1, 10 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
Nev. 184, 27 P. 376, 1018, to the last expression of this court in In re McGregor, 46 Nev.
407, 48 P. (2d) 418, this court has, so far as I can learn, always held to the proposition that
cases must be decided on their merits when possible, unless prevented by mandatory statutes
or mandatory rules of court. And this court has stated that it is indulgent in setting aside such
defaults. Guardia v. Guardia, 48 Nev. 230, 229 P. 386.
George J. Kenny, and H. R. Cooke, for Respondent:
It is submitted that this court would not consider making any order extending time for an
act to be done, not in this court, but in a separate tribunal, viz, the trial court. Particularly so
where the proposed extension would (as here) have to relate back to April 1, 1935, and prior
to this court having any jurisdiction whatsoever over the case. The default for which relief is
sought is appellant's failure to file its bill of exceptions with the clerk of the trial court.
Joudas v. Squire, 50 Nev. 42, 249 P. 1068.
The so-called bill, filed in this court, never having been filed in the trial court, of course
never became a part of the record of that court. To allow appellant's application would be the
making of a new record; would be making up a record on appeal in this court, instead of in
the trial court. This court has repeatedly held that the bill of exceptions must be made up,
perfected, filed, etc., in the trial court, and that this court has no power to permit the making
up of such record, or entertain the same, when it was not made up, filed, etc., as required by
law, in the trial court. Water Company v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079;
Caldwell v. Wedekind M. Co., 50 Nev. 366, 261 P. 652; Lamb v. Lamb, 55 Nev. 437, 38 P.
(2d) 659; Capurro v. Dist. Court, 54 Nev. 371, 17 P. (2d) 695; Quinn v. Quinn, 53 Nev. 68,
292 P. 620.
It is not the duty of the clerk of the court below, or of the trial judge, but it is the duty of
appellant to see to it that his bill is seasonably and properly filed in the trial court.
57 Nev. 1, 11 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
to it that his bill is seasonably and properly filed in the trial court. 4 C. J. pp. 298, 299, 302,
secs. 1913, 1915, nn. 64, 65, 71, 72, 73.
OPINION
By the Court, Coleman, J.:
This the third time this matter has been before us; the first time on a motion to strike the
bill of exceptions [49 P. (2d) 358], the second time on a motion for an order granting leave to
appellant to file a copy of the judgment roll [50 P. (2d) 944], and now on motion of appellant
for an order extending the time in which to file and serve a bill of exceptions, and a counter
motion of respondent to dismiss the appeal.
Counsel for appellant has filed in this matter, in support of this application, an affidavit
and a supplemental affidavit, from which it appears that the tendered bill of exceptions was,
on April 15, 1935, deposited in the office of the clerk of the trial court, and immediately
thereafter a copy was served upon counsel for the respondent. It appears from a certificate of
the trial judge that the tendered bill of exceptions was duly settled by the trial judge on April
22, 1935, but it does not appear from the bill of exceptions itself that it was filed in the lower
court. This failure may be due to an oversight on the part of the clerk of the trial court. If this
be true, an opportunity should be given to rectify the oversight.
1. To constitute filing it is not necessary that the clerk make the notation of filing, for all
that a litigant can do in the matter of filing a document is to deposit it with the proper official
and pay or tender the fee therefor, if there be any. Hook v. Fenner, 18 Colo. 283, 32 P. 614,
36 Am. St. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 P. 697; Wilkinson v. Elliott, 43 Kan. 590,
23 P. 614, 19 Am. St. Rep.158; President, etc., Manhattan Co. v. Laimbeer, 10S N. Y. 57S, 15
N. E. 712; Beebe v. Morrell, 76 Mich. 114, 42 N. W. 119, 15 Am. St. Rep.
57 Nev. 1, 12 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
Co. v. Laimbeer, 108 N. Y. 578, 15 N. E. 712; Beebe v. Morrell, 76 Mich. 114, 42 N. W. 119,
15 Am. St. Rep. 288; 25 C. J. 1126.
We do not know what the practice is, but we have understood that there is no fee
chargeable for filing a bill of exceptions.
2. This court has repeatedly held that it is reluctant to dispose of a case except upon the
merits. Appellant makes a strong showing to the effect that there was no neglect in filing and
serving the bill of exceptions, but purely an oversight on the part of the clerk of the lower
court to indorse upon the bill of exceptions that the same had been filed.
3. The spirit of the law as appears from section 45, c. 90, Stats. 1935, is liberal in the
matter of amending a record on appeal, and we have held that a bill of exceptions may be
amended and corrected. Brockman v. Ullom, 52 Nev. 267, 286 P. 417; Taylor v. Taylor, 56
Nev. 100, 45 P. (2d) 603.
4. Upon the showing made in this matter, we think both motions should be denied, and
that an opportunity should be given appellant to make the bill of exceptions show that it was
filed in apt time.
We think appellant has mistaken its remedy.
It is ordered that appellant may apply in fifteen days, upon proper notice and showing, for
an order (1) vacating the order heretofore made striking the bill of exceptions, and (2) for an
order remanding such bill of exceptions to the clerk of the trial court for amendment in the
matter of showing a filing, in accordance with the facts.
On Appellant's Motion for an Order Vacating an Order Striking the
Bill of Exceptions, and Remanding the Bill of Exceptions to
Clerk of Trial Court for Amendment.
April 29, 1936. 56 P. (2d) 1211.
1. Appeal and Error.
Where it did not appear from bill of exceptions that it had been filed in trial court,but
affidavit of appellant's counsel set forth that bill was deposited with clerk of trial
court for filing, and that at time of such deposit clerk was paid fee for filing thereof,
appellant held entitled to have bill returned to clerk for amendment in compliance
with facts.
57 Nev. 1, 13 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
been filed in trial court,but affidavit of appellant's counsel set forth that bill was
deposited with clerk of trial court for filing, and that at time of such deposit clerk was
paid fee for filing thereof, appellant held entitled to have bill returned to clerk for
amendment in compliance with facts.
Motions granted.
OPINION
By the Court, Coleman, J.:
Appellant has applied for an order vacating the order heretofore made herein striking the
bill of exceptions. It has also moved that the bill of exceptions be remanded to the clerk of the
trial court for amendment. Both of the motions are in pursuance of our opinion and order
made herein on February 4, 1936. 54 P. (2d) 273.
Both motions are supported by the affidavit of counsel for appellant, wherein he states that
the bill of exceptions was deposited with the clerk of the trial court for filing, and that at the
time of such deposit he paid the clerk the fee for the filing thereof.
In the opinion above mentioned we pointed out what is necessary to constitute a filing of a
bill of exceptions with the clerk of a trial court. The showing made on this hearing is ample to
justify orders favorable to appellant.
No counter showing has been made by respondent. In fact, no appearance was made by
respondent when the notice of motion was called up for hearing.
Good cause appearing therefor, it is ordered that the order heretofore made herein, striking
the bill of exceptions, be, and the same is hereby, vacated. It is further ordered that the clerk
of this court forthwith return to the clerk of the lower court said bill of exceptions for
amendment in compliance with the facts, and that the clerk of said lower court return the
same to the clerk of this court without delay after the amendment is made, if any.
57 Nev. 1, 14 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
On Second Motion to Strike Bill of Exceptions
July 7, 1936. 56 P. (2d) 18.
1. Appeal and Error.
Motion to strike bill of exceptions, on ground it had not been filed within twenty days,
as provided by statute where appeal is from final judgment, was granted where there was
clear conflict between affidavits of parties as to whether respondent had waived time
requirement of statute (Comp. Laws, secs. 9392, 9398).
2. Appeal and Error.
On motion by respondent to strike bill of exceptions, on ground it had not been filed
within twenty days, as provided by statute where appeal is from final judgment, burden
was on appellant to show respondent waived time requirement (Comp. Laws, secs. 9392,
9398).
3. Appeal and Error.
Where there was no judgment roll on file, and bill of exceptions had been struck
because filed too late, judgment was affirmed since there was nothing supreme court
could consider (Comp. Laws, secs. 9392, 9398).
Motion granted and judgment affirmed.
OPINION
By the Court, Coleman, J.:
This matter is again before us on motion of respondent to strike the bill of exceptions. In
an opinion heretofore filed (57 Nev. 12, 56 P.(2d) 1211), we ordered that the bill of
exceptions be remanded to the trial court for amendment and return to the clerk of this court.
Pursuant to that order, it was endorsed as filed by the clerk of the trial court as of April 15,
1935. The motion now under consideration is based upon the ground that the final judgment
appealed from was entered on March 11, 1935, whereas the bill of exceptions was not filed
until after the time allowed therefor had expired.
Section 9398 N. C. L. fixes the time within which a bill of exceptions may be filed where
the appeal is from a final judgment, as in this case, at within twenty (20) days. The final
judgment having been rendered on March 11, 1935, and the bill of exceptions not having
been filed until April 15, 1935, it is clear that it was not filed within twenty days after the
entry of the final judgment.
57 Nev. 1, 15 (1936) City of Fallon v. Churchill County Bank Mortgage Corp.
March 11, 1935, and the bill of exceptions not having been filed until April 15, 1935, it is
clear that it was not filed within twenty days after the entry of the final judgment.
Section 9392 N. C. L. expressly provides that if a party shall omit or fail to serve and file
his bill of exceptions within the time limited by law, he shall be deemed to have waived his
right thereto. We so held in Nellis v. Johnson et al., 57 Nev. 17, 53 P. (2d) 1192.
Counsel for appellant does not contend that a failure to file a bill of exceptions within the
time fixed by law, if there be no order of court or stipulation of the parties extending the time,
does not constitute a waiver, but contends there was a stipulation extending the time, and has
offered his affidavit which he claims shows that there was a stipulation between himself and
G. J. Kenny, Esq., the attorney for the respondent in the court below, and one of its attorneys
here, waiving the statutory requirement. Though counsel for appellant relies on three separate
affidavits in support of his contention, we will refer to the one of November 12, 1935, only,
since the other two restate the same matter. The affidavit mentioned states that Mr. Kenny
said to him: * * * You prepare your bill of exceptions and your brief and give me a copy of
each; that I will then prepare my answering brief, and give you a copy of my brief; that you in
turn will then prepare and give me a copy of your reply brief; that then we will send the bill of
exceptions, and the briefs all together to the supreme court and let the supreme court pass on
the legal questions presented in these briefs without oral argument.
In opposition to the above affidavit respondent offered in evidence the counter affidavit of
G. J. Kenny, Esq., which states, in substance, that as attorney for the respondent in the lower
court, he discussed with the attorney for appellant the possibility of presenting the case to the
supreme court upon a statement of facts; that he told attorney for appellant, before judgment
was rendered, that in case of an appeal H. R. Cooke, Esq., would be associated with him in
presenting the matter to the supreme court, and that affiant would be guided, in all
matters concerning the appeal, by Mr.
57 Nev. 1, 16 (1935) City of Fallon v. Churchill County Bank Mortgage Corp.
was rendered, that in case of an appeal H. R. Cooke, Esq., would be associated with him in
presenting the matter to the supreme court, and that affiant would be guided, in all matters
concerning the appeal, by Mr. Cooke; that following the rendition of the judgment in the
lower court, affiant discussed with Mr. Cooke the matter of presenting the case on appeal on a
statement of facts, and was informed that he, said Cooke, was not in favor of such a course,
and thereupon affiant promptly notified the attorney for appellant accordingly, in the latter
part of March 1935; that he then and there stated to counsel for appellant that the wish of Mr.
Cooke was binding upon him in the matter.
From the affidavit of counsel for appellant, it appears that Mr. Kenny suggested that he
prepare your bill of exceptions. If we give this language the usual interpretation, it could
only mean that Mr. Kenny suggested the embodying in the record of a bill of exceptions, as
contemplated by statute. This was not done. If we accept Mr. Kenny's version, there was talk
about submitting the matter to this court upon an agreed statement of facts, but that the
attorney for appellant was simultaneously informed that Mr. Cooke would be associated with
Mr. Kenny, in case of an appeal, and that Mr. Cooke's wishes in the matter would control.
1, 2. There is a clear conflict between the affidavits. Mr. Kenny states that he informed
counsel for appellant that he could not bind the respondent in the matter, but that Mr. Cooke's
word would control, and that Mr. Cooke would not consent to any stipulation. The burden is
upon appellant to show a waiver. We do not think it is shown, hence the motion to strike the
bill of exceptions should be granted. It is so ordered.
3. There being no judgment roll in the case on file, there remains nothing which the court
can consider. In this situation the judgment appealed from should be affirmed.
It is so ordered.
____________
57 Nev. 17, 17 (1936) Nellis v. Johnson Et Al.
NELLIS v. JOHNSON Et Al.
No. 3129
ON MOTION TO REMAND BILL OF EXCEPTIONS
February 4, 1936. 53 P. (2d) 1192.
1. Appeal and Error.
Respondent who failed to file timely objections to allowance and settlement of bill of exceptions waived
objections thereto, notwithstanding that he failed to object because of absence of his attorney (Stats. 1935,
c. 90, sec. 36).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and
S. E. Calvin claimed liens. From the judgment, the defendants appeal. On motion to remand
bill of exceptions for amendment and correction. Motion denied.
T. A. Wells and Louis Cohen, for Appellants.
J. R. Lewis, for Respondent.
OPINION
By the Court, Coleman, J.:
Respondent has moved the court to remand the bill of exceptions to the trial court for
amendment and correction.
It is the contention of respondent, supported by affidavit, that the testimony of three certain
witnesses, as set forth in the bill of exceptions, is contrary to the testimony of each of said
witnesses given upon the trial; that the testimony of two other witnesses as set forth in the bill
of exceptions is incomplete and does not set forth the true facts as testified to by the
witnesses.
In support of the motion, counsel for the respondent has filed an affidavit wherein it is
stated that on the 12th of July 1935, counsel for appellant left in his office his proposed bill
of exceptions; that at that time affiant was absent from Las Vegas, Nevada, where his
office is maintained, and did not return until after the time had elapsed in which to file
objections to the allowance and settlement of the bill of exceptions, or to suggest
amendments thereto.
57 Nev. 17, 18 (1936) Nellis v. Johnson Et Al.
12th of July 1935, counsel for appellant left in his office his proposed bill of exceptions; that
at that time affiant was absent from Las Vegas, Nevada, where his office is maintained, and
did not return until after the time had elapsed in which to file objections to the allowance and
settlement of the bill of exceptions, or to suggest amendments thereto. It is further stated in
said affidavit that the trial judge was of the opinion that he was without authority to change or
correct said proposed bill of exceptions, in view of the fact that no objections were made or
amendments proposed by respondent to said proposed bill of exceptions, and that it was his
duty to sign said bill of exceptions as proposed.
No counter affidavit was filed by appellant.
Whether the application, if granted, would result in an amendment and correction of the
bill of exceptions, or a new bill of exceptions, should the trial court conform to the views of
respondent, we need not determine.
Section 36, chapter 90 of Statutes of 1935, provides: If a party shall omit or fail to serve
and file his bill of exceptions within the time limited he shall be deemed to have waived his
right thereto, and if a party shall omit to make objections as required to such bill of
exceptions within the time limited he shall be deemed to have waived his right thereto.
This section is clear, and, as we view it, no discretion is vested in the court. Having failed
to make objections to the bill of exceptions as served, though as a result of the absence of
respondent's attorney, respondent must be held to have waived all objections thereto, and to
be foreclosed from objecting to it thereafter. Sutherland v. Round et al. (C. C. A.), 57 F. 467.
The motion is denied.
On the Merits
May 1, 1936. 57 P. (2d) 392.
1. Mechanic's Liens.
Where statute relating to filing of labor lien claims is uncertain, it must receive a
liberal construction {Comp.
57 Nev. 17, 19 (1936) Nellis v. Johnson Et Al.
uncertain, it must receive a liberal construction (Comp. Laws, sec. 3739).
2. Mechanics' Liens.
Statute held to permit filing of labor claims within ninety days after performance of
labor (Comp. Laws, sec. 3739).
3. Mechanics' Liens.
Trial court in suit to foreclose labor lien claims has wide discretion in permitting
amendments to claims to conform to proof (Comp. Laws, sec. 3739).
4. Mechanics' Liens.
Motion to amend claim of lien filed against one group of mining claims so as to cover
all mining claims of defendant in another group after defendant had offered evidence that
work had been performed by claimants on certain claims of other group should have been
denied since motion was not to conform pleadings to proof (Comp. Laws, sec. 3739).
5. Mechanics' Liens.
In suit to foreclose labor liens, denial of application of party claiming a one-half
undivided interest in property subject to claims under an assignment prior to filing of
original lien claims to be made a party defendant to suit held reversible error (Comp.
Laws, sec. 8556).
6. Appeal and Error.
Whether person seeking to be made a party defendant in suit to foreclose labor liens on
property in which he claimed an undivided one-half interest by assignment prior to filing
original labor claims was not an innocent purchaser because title was obtained through a
quitclaim deed could not be determined on appeal in absence of record showing character
of deed (Comp. Laws, sec. 8556).
7. Mechanics' Liens.
Recovery could not be had under labor lien claim in absence of evidence that claim was
unpaid (Comp. Laws, sec.3739).
8. Costs.
Where transcript on appeal contained many carbon copies, some of which were very
poor, successful appellant was limited in recovery of costs, since typewritten transcripts
on appeal must be of first impression, clearly and legibly done (Rules of Supreme Court,
rule 4, par. 3).
Appeal from Eighth Judicial District Court, Clark County, Wm. E. Orr, Judge.
Action by C. H. Nellis against Charles Johnson and others, wherein Lola Dottie Cale and
S. E. Calvin claimed liens. From an adverse judgment, defendants appeal. Reversed and new
trial granted.
57 Nev. 17, 20 (1936) Nellis v. Johnson Et Al.
T. A. Wells, and Louis Cohen, for Appellant:
Section 3739 N. C. L. allows only the person furnishing material ninety days in which to
file statement of and notice of lien claim, all others mentioned not more than sixty days. The
laboring man performing labor certainly cannot be classed with or as a materialman
furnishing material. The laboring man is more properly affiliated with the subcontractor.
Hihn-Hamond Lumb. Co. v. Elson, 154 P. 12; Rankin v. Rankin, 122 P.1120.
If the laborer cannot be classified with the subcontractor as specified in the above section,
then it will be necessary and proper to go back to the Statute of 1917, p. 63, being section
2217 Rev. Laws 1919, which reads: and not later than fifty days after such completion of
contract or the delivery of material or performance of labor by him, file for record with the
county recorder, etc. Section 3739 N. C. L. was an act to amend the statute of 1917, and only
adds to the provisions thereof to the extent of the conflict, repugnancy or inconsistency
between the wording of the two statutes. 59 C. J. pp. 912 to 916, secs. 515 to 517, and cases
cited. And a repeal is effected only to the extent of the repugnancy, etc. State v. Donnelly, 20
Nev. 214, 19 P. 680; State v. Daugherty, 47 Nev. 415, 224 P. 615; In re Walley, 11 Nev. 260.
The amendment of the statute in 1925 (p.264) contains no repealing clause in the act or in the
title. Courts do not favor repeal by implication. 59 C. J. 905, sec. 510, n. 22; State v. Scott, 52
Nev. 232, 286 P. 119; Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080; State v.
Daugherty, supra; State v. Ducker, 35 Nev. 214, 127 P. 990.
The court erred in allowing amendments to the lien claims to include the Spokane claims,
entirely different land. Plaintiff's and lien claimant's motion to amend their lien statements
were insufficient and without proper showing, and were not for the purpose of making the
amendment conform to the proof, but for making a more specific description of the mining
claims upon which lien was claimed.
57 Nev. 17, 21 (1936) Nellis v. Johnson Et Al.
making a more specific description of the mining claims upon which lien was claimed.
No testimony was offered or introduced by plaintiff or lien claimants to show that they or
any of them rendered services or performed labor upon or in the mill mentioned in plaintiff's
complaint and the statement of said lien claims. 40 C. J. 462, sec. 658.
The court erred in refusing and failing to order T. A. Wells to be made a party defendant in
the action, after it was shown that said Wells was a purchaser of an undivided one-half
interest in the Spokane mining claims and at a time when no lien claims were made or filed of
record, including said claims, since the inclusion of said Spokane claims prejudiced the
interest of said Wells. Sections 3739 and 8565 N. C. L.; Robinson v. Kind, 23 Nev. 330, 47
P. 1, 977; Bliss v. Grayson, 24 Nev. 422, 56 P. 231; Rutherford v. Union Land and Cattle
Co., 47 Nev. 22, 213 P. 1045.
The testimony of respondent Cale fails to state that the money was due or owing or had not
been paid.
There was no evidence adduced at the trial that the transfer of the half interest to Mr.
Wells was by quitclaim deed.
J. R. Lewis, for Respondents:
While section 3739 N. C. L. is not as explicit as it might be, it is absurd to contend that the
legislature intended to discriminate between laborers, and give a person who furnished
material and also performed labor ninety days in which to file his lien claim, while a laborer
who did not furnish material in addition to his labor performed was to come under the old
statute and have but fifty days in which to file his claim of lien.
It is true that when this section was amended by the legislature in 1925 no repeal clause
was attached thereto. This, however, is immaterial, as the act speaks for itself. 25 R. C. L.
secs. 167, 168, 171, pp. 914, 917, 922; State Mutual Ins. Co. v. Clevenger, 87 P.
57 Nev. 17, 22 (1936) Nellis v. Johnson Et Al.
583; First Kent Comm., 462; Huston v. Scott, 94 P. 512; Mesher v. Osburn, 134 P. 1092.
The same definiteness and particularity is not required in a description of the location of a
mine or mining claim that is required of a building in a town. It is sufficient if a description of
the property to be charged with the lien may be identified, even where a mistake has been
made in the legal description of the property in the lien statement. Riverside Fixture Co. v.
Quigley, 35 Nev. 17, 126 P. 545.
The finding of fact made by the court is that the mill upon which plaintiff worked was
known as the Charles Johnson mill and was located in the Searchlight district and same was
the only mill belonging to the said defendant, Charles Johnson, in the said mining district.
The mill sufficiently identifies the property upon which the respondents severally claimed a
lien. Teredinick v. Red Cloud Con. Min. Co. (Cal.), 13 P. 152; McIntyre v. Montana Gold
Mountain Mg. Co. (Mont.), 108 P. 353; Thompson v. Wise Boy Min. & Mill Co. et al., 74 P.
958.
The mechanic's lien law is to be liberally construed so as to give lien claimants the benefits
intended by the legislature. Shryme v. Occidental Mill & Mining Co., 8 Nev. 221. See, also,
Salt Lake Hardware Co. v. Chainman Mng. & Elect. Co., 137 Fed. 632; Maynard v. Ivey, 21
Nev. 241, 29 P. 1090; Lamb v. Goldfield Lucky Boy Mng. Co., 37 Nev. 9, 138 P. 902; Luigi
Ferro v. Bargo M. & M. Co., 37 Nev. 139, 140 P. 527; Hunter and Co. v. Truckee Lodge No.
14, 14 Nev. 24; 18 R. C. L. 943, secs. 79, 80; Tabor v. Goss & Phillips, 18 P. 535; Harrisburg
Lumber Co. v. Washburn, 44 P. 392; Kezartee v. Marks, 16 P. 411; Tibbetts v. Moore, 23
Cal. 208.
The application of respondents to amend the statements of lien was made in due time and
for reasons and upon grounds not prohibited by the statute, but specifically provided for when
there was a variance between the lien and the proof, and that the variance should be deemed
immaterial unless the result of fraud or intentionally made, or has misled the adverse
party to his prejudice.
57 Nev. 17, 23 (1936) Nellis v. Johnson Et Al.
deemed immaterial unless the result of fraud or intentionally made, or has misled the adverse
party to his prejudice.
Mr. Wells is not an innocent purchaser for value in any sense of the word. He derived his
title on the morning of the trial of the action, by quitclaim deed from appellant, to one-half
interest in the six mining claims composing the group. Oliver et al. v. Piatt (U. S.), 11 L. Ed.
332; May v. LeClaire et al., 20 L. Ed. 50; Dickerson v. Colgrove et al., 25 L. Ed. 618.
OPINION
By the Court, Coleman, J.:
This is an appeal from a judgment and decree foreclosing lien claims, and from an order
denying a motion for a new trial.
1, 2. The first point made is that the lien claims were not filed for record within the time
prescribed by law. The suit is to foreclose three lien claims for work and labor performed
upon mining claims. The lien claims show that each claimant ceased to work not later than
November 4, 1933, and that each lien claim was filed January 6, 1934.
Section 3739 N. C. L. relative to the filing of lien claims reads:
Every person claiming the benefit of this chapter shall, not earlier than ten days after the
completion of his contract, or the delivery of material by him, or the performance of his labor,
as the case may be, and in the case of every subcontractor not later than fifty days; in the case
of every original contractor, not later than sixty days, and in the case of every person
furnishing materials not later than ninety days, after such completion of his contract or the
delivery of material or performance of labor by him, file for record with the county recorder
of the county where the property or some part thereof is situated, a claim.
57 Nev. 17, 24 (1936) Nellis v. Johnson Et Al.
Appellant asserts that labor lien claimants must file their claim for record not later than
fifty days after performing their labor, contending that the amendment of 1917 (Stats. 1917,
chap. 41), which limits the time for the filing of labor claims to fifty days, controls.
In 1925 the section just referred to was again amended (Stats. 1925, chap. 169), the act
reading that the section in question is hereby amended so as to read as follows, the
amendment being section 3739 N. C. L., above quoted.
We held in City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317, that an amending act which
provides that the previous act is hereby amended so as to read as follows, operates to repeal
any provision of the amended act which is not embraced in the amending act. Such is
unquestionably the correct rule. Continental Supply Co. v. White, 92 Mont. 254, 12 P. (2d)
569; 36 Cyc. 1083.
It is also contended that if the act of 1925 controls, the only persons who are entitled to
ninety days in which to file lien claims are those furnishing materials.
That the legislature of the state has been solicitous of the welfare of the laborer, so far as
protecting his claim for services is concerned, cannot be doubted. The lien law not only gives
him a right to a lien, but gives him a preferred lien of the first rank (section 3745 N. C. L.);
but, unfortunately, the amendatory act of 1925, relative to the time within which such a lien
claim may be filed, is not as clear as it should be. It is evident, however, that it does not
contemplate the filing of a lien claim for labor within fifty days after the completion of the
labor. The lien law is clear as to certain things; and where it is uncertain it must receive a
liberal construction. Skyrme v. Occidental M. & M. Co., 8 Nev. 219, 221. And, as said in
Maynard v. Johnson (on rehearing), 2 Nev. 25, at page 33:
Where the words of a statute are obscure or doubtful, the intention of the legislature is to
be resorted to in order to discover their meaning. A thing within the intention is as much
within the statute as if it were within the letter; and a thing within the letter is not within
the statute if contrary to the intention of it."
57 Nev. 17, 25 (1936) Nellis v. Johnson Et Al.
intention is as much within the statute as if it were within the letter; and a thing within the
letter is not within the statute if contrary to the intention of it.
In State v. Ross, 20 Nev. 61, 14 P. 827, it was held, in construing a statute, that the intent
will prevail over the literal sense. To the same effect, State ex rel. v. Sixth Judicial District
Court, 53 Nev. 343, 1 P. (2d) 105.
From a reading of the first part of the section, down to the semicolon, it will indisputedly
appear that it contemplates that persons who may claim a benefit under the lien act are
classified either as contractor, subcontractor, materialman, or laborer. This much is certain. It
is furthermore clear from that portion of the section that neither can file a lien claim within a
stated time, but that a subcontractor must file his claim not later than fifty days from the
completion of his contract. Under the act amended (1917 act), all claimants had to file their
claims within fifty days; but under the amendment of 1925, it is clear that the original
contractor has sixty days within which to file, and the materialmen have ninety days. It seems
the sole purpose of the amendment of 1925 was to give certain claimants longer time within
which to file than was given by the 1917 act. Since it is clear the amendment of 1925
contemplates the filing of claims for labor, the most logical and reasonable construction of
the section is that such claimants have ninety days, in view of the fact that the words or
performance of labor come after the statement of the ninety-day limitation. It is clear it is not
contemplated labor claimants must file within fifty or sixty days, and the only other period
mentioned within which a claim may be filed being ninety days, we can reach no other
conclusion than that it was the intention of the legislature that labor claims may be filed
within ninety days.
3, 4. It appears from the record that at the time the work in question was done the
defendant Johnson owned the Eureka No. 1, Eureka No. 2, and Eureka No. 3, the Spokane
No. 1, Spokane No. 2, and Spokane No. 3 lode mining claims, and that the two sets of
claims were located not far distant from each other.
57 Nev. 17, 26 (1936) Nellis v. Johnson Et Al.
mining claims, and that the two sets of claims were located not far distant from each other.
Claimant filed their lien claims against the Eureka group. Upon the trial defendant offered
evidence showing that the work performed by the plaintiffs was upon certain claims of the
Spokane group. Thereupon the plaintiff moved to amend his claim of lien so as to cover the
Spokane claims. The court made an order granting the motion, over the objection of
defendant. This ruling is assigned as error.
Section 3739 N. C. L. reads in part:
Upon the trial of any action or suit to foreclose such lien no variance between the lien and
the proof shall defeat the lien or be deemed material unless the same shall result from fraud or
be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases
of immaterial variance the claim of lien may be amended, by amendment duly recorded, to
conform to the proof.
This provision is very broad, and there are no facts or circumstances in the record tending
to show that the variance resulted from fraud, or was intentional, or that the defendant was
misled to his prejudice. This provision relative to amending a lien claim was first
incorporated in our lien act in 1911 (Stats. 1911, chap. 160), but notwithstanding this fact,
this court, in the case of Riverside Fixture Co. v. Quigley, 35 Nev. 17, 126 P. 545, in which
the rights of claimant evidently accrued prior to the 1911 amendment, held that where the
rights of third parties had not intervened, an amendment would be allowed. In that case the
court reviewed the authorities at some length. In the instant case there is statutory authority
for the allowance of an amendment to conform to the proof. Courts have wide discretion in
such matters. In this connection, it is contended by appellant that the motion to amend was
not to conform to the proof. This contention seems well founded.
5. After the order allowing the amendment of the lien claims in this case, and before
judgment, T. A.
57 Nev. 17, 27 (1936) Nellis v. Johnson Et Al.
Wells filed a sworn petition reciting that prior to the filing of the original lien claims in
question he became the bona fide purchaser, for value, of an undivided half interest of the
Spokane claims, from defendant Johnson, and asked to be made a party defendant to the
action. This application was denied. This ruling is also assigned as error.
Section 8556 N. C. L. reads:
Any person may be made a defendant, who has or claims an interest in the controversy
adverse to the plaintiff, or who is a necessary party to a complete determination or settlement
of the question involved therein.
This court in Robinson v. Kind, 23 Nev. 330, 47 P. 1, 977, held that where a party has a
direct interest in the subject matter of the suit, he is a necessary party.
It appears from the incontradicted evidence in the record that the defendant Johnson, prior
to the filing of the lien claims in question, for a valuable consideration, conveyed an
undivided half interest in the Spokane claims to Wells. From this it appears that Wells has a
direct interest in the subject matter of the suit. We think the court committed reversible error,
for which the judgment and order should be reversed.
It is not contended on this appeal that the half interest retained by Johnson is not subject to
a lien claim simply because of the conveyance of an interest.
It is said in the brief of appellant that lien claimants have not attempted to file lien claims
against the mill, and do not allege that they worked in the mill. We do not quite understand
the purpose of this statement. As to the right of persons erecting improvements upon public
land of the United States, we refer to Lindley on Mines, sec. 409; Treadway v. Sharon, 7 Nev.
37, 38; Arnold v. Goldfield Third Chance Mining Co., 32 Nev. 447-455, 109 P. 718.
6. Counsel for respondent states in his brief that Wells is not an innocent purchaser for
value, for the reason, as he says, that he obtained his title through a quitclaim deed. To
support his contention, he cites the following cases: Oliver v. Piatt, 3 How. 333, 11 L. Ed.
622; Dickerson v. Colgrove, 100 U. S. {10 Otto) 57S, 25 L. Ed. 61S.
57 Nev. 17, 28 (1936) Nellis v. Johnson Et Al.
following cases: Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Dickerson v. Colgrove, 100 U. S.
(10 Otto) 578, 25 L. Ed. 618.
We do not consider it necessary to determine this question, if for no other reason than that
the record does not show the character of the deed. However, we direct counsel's attention to
the case of Moelle v. Sherwood, 148 U. S. 21, 13 S. Ct. 426, 37 L. Ed. 350.
7. It is also contended by appellant that the evidence does not show that the claim of Cale
was owing and unpaid, hence the judgment as to this claim should be reversed. An
examination of the testimony of this claimant does not show that the claim was unpaid, hence
the judgment as to it must be reversed.
We have substantially disposed of every question raised on this appeal. We may say that
the evidence in the record is very skimpy, due, no doubt, to an unfortunate circumstance
heretofore considered in this case. 57 Nev. 53 P. (2d) 1192.
8. Paragraph 3, rule IV, of this court, provides that when transcripts of the record in any
action are typewritten, they must be of the first impression, clearly and legibly done, etc. The
transcript of the record in this case contains many carbon copies, some of which are very
poor. We feel that appellant should be limited in the matter of the recovery of costs herein.
It is ordered that the judgment and order appealed from be reversed, and that a new trial be
granted, appellant to recover two-thirds of his expenses in preparing the transcript on appeal.
____________
57 Nev. 29, 29 (1936) Minden Butter Mfg. Co. v. District Court
MINDEN BUTTER MFG. CO. v. FIRST JUDICIAL DISTRICT COURT IN
AND FOR DOUGLAS COUNTY Et Al.
No. 3141
May 1, 1936. 56 P. (2d) 1209.
1. Justices of the Peace.
Under statute authorizing deposit of money in place of undertaking on appeal from justice's court, deposit
of $100 at time of filing undertaking with one surety on appeal from justice's court wherein no stay of
proceedings was claimed held to confer jurisdiction upon district court (Comp. Laws, secs. 9339, 9363).
2. Statutes.
Court presumed that section of statute taken from code of another state was adopted by legislature with
construction given it by supreme court of other state (Comp. Laws, sec. 9363).
3. Justices of the Peace.
Failure to give written notice of filing of undertaking or of deposit made in lieu of undertaking on appeal
from justice's court held not to defeat jurisdiction of district court, since notice was not required where
deposit was made (Comp. Laws, secs. 9339, 9363).
Original proceeding in certiorari by the Minden Butter Manufacturing Company and
another against the First Judicial District Court, in and for Douglas County, Hon. Clark J.
Guild, presiding, and another. Writ dismissed.
Morley Griswold and George L. Vargas, for Petitioners:
Your petitioners contend that the First judicial district court, the respondent herein, never
acquired jurisdiction of the civil action of Carl Syll v. Minden Butter Manufacturing
Company and W. H. Pearson, on appeal, basing their contention upon two major
propositions, namely:
(a) That no legal bond was given, as required by section 9339 N. C. L. as constituting an
essential step to clothe the district court with jurisdiction, and that that part of the section
which provides what shall be the equivalent of the undertaking required applies in a case
where no stay of proceedings is asked for, such as the case at bar, as is clearly shown in
the decision of this court in Floyd v. District Court, 36 Nev. 349
57 Nev. 29, 30 (1936) Minden Butter Mfg. Co. v. District Court
case where no stay of proceedings is asked for, such as the case at bar, as is clearly shown in
the decision of this court in Floyd v. District Court, 36 Nev. 349, 135 P. 922. Section 9339 is
clearly inconsistent with section 9363 N. C. L., and in such a case the special statute, or the
one dealing with the common subject matter in a minute way, will prevail over the general
statute. 59 C. J. 1056; Oklahoma Natural Gas Co. v. McFarland, 288 P. 471; United States
v. Lapp, 244 Fed. 377. This court, in the Floyd case, supra, also refers to section 3679
Cutting's Comp. Laws (same as section 9339 N. C. L.) as being the applicable statute at the
time this appeal was taken. Consequently, it appears that under the Nevada law, in order for
an appeal to be perfected, or the district court to acquire jurisdiction, where a deposit, instead
of an undertaking with two sureties is used, it must be a deposit in the amount of the
judgment, including all costs. The California case of Laws v. Troutt, 147 Cal. 172, 81 P. 401,
is not in point, for the reason that the California courts have taken a different view of their
section, which is similar to section 9339 N. C. L., and have held that that portion of the
section which provides that a deposit of the amount of the judgment appealed from, including
all costs, applies only where a stay of proceedings is claimed. Pacific Window Glass Co. v.
Smith (Cal. App.), 97 P. 899. Consequently, under their interpretation, there is no specific
statute prescribing the requirement for a money deposit in lieu of the undertaking, in a case
where no stay of proceedings is claimed, and there is then no applicable statute left but the
general statute, which corresponds to our section 9363 N. C. L.
(b) That no written notice of the filing of an undertaking on appeal from the justice's court
was ever given to your petitioners, or to their attorneys, and that this constitutes failure to take
an essential step necessary to give the district court jurisdiction. Section 9339 N. C. L.; State
v. Eighth Judicial District Court, 54 Nev. 404, 20 P. (2d) 655.
57 Nev. 29, 31 (1936) Minden Butter Mfg. Co. v. District Court
Geo A. Montrose, for Respondents:
The courts have construed the sections concerned many times. It will be noted that section
968 of the Code of Civil Procedure of the State of California is almost identical with section
9339 of the Nevada code, and section 967 of the California code is identical with section
9363 N. C. L. Laws v. Troutt, 147 Cal. 172, 81 P. 401; Floyd v. Sixth Judicial District Court,
36 Nev. 349, 135 P. 922; State v. Brown, 30 Nev. 495, 98 P. 871.
Where no stay of proceedings is asked, section 9339 N. C. L. in no place provides that
notice should be given the defendant of the filing of a bond. The very fact that the notice of
appeal is filed with the justice of the peace is, in itself, notice that a bond has been given, as
the justice of the peace would not be at liberty to file a notice of appeal if it were not
accompanied by a bond as the section provides. Alt v. California Fig Syrup Co., 18 Nev. 423,
4 P. 743; Floyd v. Sixth Judicial District Court, supra.
The statute in relation to the giving of notice was written to cover surety bonds, a promise
to pay, but not a bond where the good, solid money of our country was deposited.
OPINION
By the Court, Ducker, C. J.:
This an original proceeding in certiorari. The petition and supporting affidavits disclose
that petitioners were defendants in a civil action in the justice's court of East Fork township,
State of Nevada, in which judgment was rendered in their favor. Plaintiff therein on the 8th
day of August 1935, filed in said justice's court, and served on petitioners, a notice of appeal
to the district court of the First judicial district of said county. At the same time plaintiff also
filed in said justice's court a written document purporting to be an undertaking on appeal,
with one August Syll being the sole surety thereon. This undertaking recites as follows: "As
surety of said undertaking I herewith deposit with the court the sum of one hundred
dollars, legal money of the United States."
57 Nev. 29, 32 (1936) Minden Butter Mfg. Co. v. District Court
As surety of said undertaking I herewith deposit with the court the sum of one hundred
dollars, legal money of the United States. The document was sworn to by the surety.
It is admitted that the deposit of money was made as stated. Neither petitioners nor their
attorneys were apprised of the filing of the undertaking or of the deposit of the money, and
had no knowledge thereof. On the 22d day of October 1935, the case was tried de novo in
said district court, and judgment rendered in favor of plaintiff in the amount of $275 and
costs. On the 3d day of December 1935, a motion made by petitioners in said district court for
an order vacating the judgment on appeal and dismissing the same on the ground that the
court was without jurisdiction to entertain the appeal was denied. Hence the proceeding for a
review in this court.
Petitioners contend that jurisdiction was wanting in the district court (1) because no legal
bond was ever given to perfect the appeal, and (2) because no written notice of the filing of an
undertaking was ever given.
Concerning an appeal from a justice's court, section 9339 N. C. L. provides in part as
follows:
An appeal from a justice's court where no stay of proceedings is claimed is not effectual
for any purpose unless an undertaking is filed, with two or more sureties, in the sum of one
hundred dollars, for the payment of the costs on the appeal. If a stay of proceedings is
claimed, the appellant must file an additional undertaking, in a sum equal to twice the amount
of the judgment, including costs, when the judgment is for the payment of money. * * *
A deposit of the amount of the judgment, including all costs, appealed from or of the
value of the property, including all costs in actions for the recovery of specific personal
property, with the justice, is equivalent to the filing of the undertaking.
1. It is insisted by petitioners that these provisions are controlling, and that under them, as
to the first point, the giving either of an undertaking in twice the amount of the judgment,
including costs, or a deposit in the amount of the judgment and costs, was an essential
step to give the district court jurisdiction.
57 Nev. 29, 33 (1936) Minden Butter Mfg. Co. v. District Court
point, the giving either of an undertaking in twice the amount of the judgment, including
costs, or a deposit in the amount of the judgment and costs, was an essential step to give the
district court jurisdiction. No stay of proceedings was claimed. Consequently an undertaking
with two or more sureties in the sum of $100 would have satisfied the statute. There is
nothing uncertain about this. The first part of said section so prescribes in precise terms. As
we have seen, such an undertaking was not given, but the sum of $100 was deposited in the
justice's court at the time the undertaking, with one surety, was filed. We think the deposit
was sufficient to confer jurisdiction by virtue of section 9363 N. C. L., which provides: In all
civil cases arising in justice's courts, wherein an undertaking is required as prescribed in this
act, the plaintiff or defendant may deposit with said justice a sum of money in United States
gold coin equal to the amount required by the said undertaking, which said sum of money
shall be taken as security in place of said undertaking.
2. This was the effect given to a statute of California (section 926 Cal. Code Civ. Proc.)
identical with section 9363, by the supreme court of that state, in Laws v. Troutt, 147 Cal.
172, 81 P. 401. When that case was decided, the California statute (section 978 Code Civ.
Proc.) providing for appeal bonds in cases arising in justice's courts was practically the same
as section 9339 N. C. L. Our statutes were taken from the California code. So we presume
that section 9363 N. C. L. was adopted by the legislature with the construction given it by the
supreme court of the parent state. Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49.
We are told by petitioners that the case of Floyd v. District Court, 36 Nev. 349, 351, 135
P. 922, 4 A. L. R. 646, supports their contention. The law has been changed since the appeal
was taken in that case. Section 9363 N. C. L. was not then, as now, a part of the law
governing the taking of appeals in cases arising in justices' courts.
57 Nev. 29, 34 (1936) Minden Butter Mfg. Co. v. District Court
Counsel for petitioners describe this section as a general or catch-all provision of no
application. It was not considered so in the state from which it was adopted, Laws v. Trout,
supra, nor are we of that opinion. The language of the section does not leave any room for
construction in line with petitioner's contention. It reads: In all civil cases arising in justices'
court, etc.
3. The point that the court was without jurisdiction because no notice of the undertaking or
deposit was given must also be decided adversely to petitioners. They rely on the last part of
section 9339, which reads: The adverse party may except to the sufficiency of the sureties
within five days after written notice of the filing the undertaking, and unless they or other
sureties justify before the justice within five days thereafter, upon notice to the adverse party,
to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking
had been given. (The italicizing is ours.)
It is not there or elsewhere required that notice of a deposit made in lieu of an undertaking
be given to a respondent, and with reason. The very purpose to be served in requiring written
notice of an undertaking is effected by a deposit in lieu thereof; namely, adequate security.
The law does not require vain acts. State ex rel. Collins v. District Court, 54 Nev. 404, 20 P.
(2d) 655, cited by petitioners, is therefore not in point.
The writ must be dismissed.
It is so ordered.
____________
57 Nev. 35, 35 (1936) State v. Seymour
STATE v. SEYMOUR
No. 3133
May 7, 1936. 57 P. (2d) 390.
1. Incest.
Testimony of prosecutrix, an accomplice, held sufficiently corroborated to sustain conviction for incest
(Comp. Laws, sec. 10978).
2. Criminal Law.
Evidence that accused committed act of incest in county of prosecution held sufficient to sustain
conviction therefor.
3. Incest.
Accomplice is sufficiently corroborated to sustain conviction for incest, where circumstances in evidence
from sources other than accomplice's testimony tend on the whole to connect accused with crime charged
(Comp. Laws, sec. 10978).
4. Criminal Law.
Weight of evidence was for jury.
5. Criminal Law.
In incest prosecution, prosecutrix' testimony as to acts of sexual intercourse with accused before and after
date of act charged held admissible as tending to show relation and incestuous disposition of accused and
prosecutrix.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Arthur B. Seymour was convicted of incest, and he appeals. Affirmed.
John W. Burrows, for Appellant:
The verdict of the jury in the above-entitled case was contrary to the law as defined in the
instructions given the jury by the court; and the verdict of the jury so rendered was contrary to
the evidence presented in the case, and said evidence was insufficient to sustain such verdict.
There was nothing to prove that the adultry was not committed in California, and if so, the
courts of Nevada had no jurisdiction in the case. Ruth Seymour was a self-confessed
accomplice, and it is the law of this state that no person can be convicted on the
uncorroborated testimony of such an accomplice. There was no one else who says that
there was an act of intercourse committed in Nevada.
57 Nev. 35, 36 (1936) State v. Seymour
was no one else who says that there was an act of intercourse committed in Nevada. Gertrude
Seymour testified that she knew of the trip to Sacramento, California; Ruth Seymour testified
that they went to Sacramento; Arthur Seymour, who did not deny the paternity, said: We
committed adultery in Sacramento; Frank Seymour, who was in the car at the time, was not
put on the stand; 266 days from September 9, 1934, the time they were at Sacramento, to June
1, 1935, is a normal time for the birth of full-term baby; Gertrude Seymour said that the baby
was a strong, normal baby. There was no corroboration of Ruth Seymour's testimony that the
conception of the baby was not the happening of the events at Sacramento, California.
It is not sufficient corroboration merely to show generally that the defendant was an
associate of the accomplice. Peo. v. Koening, 99 Cal. 574, 34 P. 238; Peo. v. Larsen, 4 Cal.
Unrep. Cas. 286, 34 P. 514; Peo. v. Butler, 71 N. Y. S. 129; Smith v. State (Tex. App.), 38 S.
W. 200; State v. Lay, 38 Utah 143, 110 P. 286; Peo. v. Morton, 139 Cal. 139, 73 P. 609.
Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy
Attorneys-General; and Ernest S. Brown, District Attorney, for the State:
Where one act of incestuous intercourse is elected for prosecution, testimony of either
prior or subsequent acts is admissible as evidence of an incestuous disposition, and as
corroboration of the testimony as to the one act. People v. Koller (Cal.), 76 P. 500.
The corroboration necessary and required by section 10978 N. C. L. is simply sufficient
corroboration which tends to connect the defendant with the crime. State v. Streeter, 20 Nev.
403, 22 P. 758; 31 C. J. 388. Ruth Seymour, the prosecutrix, testified definitely to the place
and time and to the crime charged in the information. Her mother testified that the defendant
himself had confessed that the girl's pregnancy was due to his fault. The mother further
testified that she had noticed the affectionate attitude on the part of the defendant toward
her daughter from the period commencing with June 1934 until February 1935.
57 Nev. 35, 37 (1936) State v. Seymour
the affectionate attitude on the part of the defendant toward her daughter from the period
commencing with June 1934 until February 1935. Furthermore, the defendant himself
admitted on examination that he had had sexual intercourse at least on one occasion with
Ruth Seymour, and that he constantly kept company with her from June 1934 until February
1935, and that he had seen her nearly every day; that he had spent a night in a hotel in Reno,
Washoe County, Nevada, with her; that he had engaged in petting parties frequently with
her; had addressed her affectionately. He testified positively that he loved the girl, that he
wanted to marry her, that he intended to marry her when he had secured his divorce from his
wife. We believe, from the opinion in the case of State v. Streeter, supra, that under this
evidence it was entirely for the jury to decide as to its weight.
OPINION
By the Court, Ducker, C. J.:
The defendant, Arthur B. Seymour, was convicted of the crime of incest. He has appealed
from the judgment and the order denying his motion for a new trial.
It is alleged in the information that the offense was committed in the county of Washoe,
State of Nevada, on or about October 1, 1934. The mother of the female with whom the
defendant is alleged to have committed the crime instituted the prosecution, but for
convenience we will refer to the daughter as the prosecutrix.
1-3. Defendant insists that the evidence is insufficient to justify the verdict, and that the
verdict is contrary to the evidence, in this, that the evidence fails to show that he committed
an offense of incest in Washoe County, Nevada. He contends also that there is not sufficient
corroboration of the testimony of the prosecutrix, an accomplice. The following facts were
presented in evidence: Defendant and prosecutrix are related as first cousins.
57 Nev. 35, 38 (1936) State v. Seymour
presented in evidence: Defendant and prosecutrix are related as first cousins. The latter was
eighteen years of age on the former's trial in July 1935. She had lived with her parents in said
city of Sparks all of her life and was never married. Defendant has also lived in that city for a
number of years. His parents separated when he was quite young and thereafter he lived at
different times with his mother, father, and grandmother. He lived for a while at the home of
the prosecutrix. Defendant was married in April 1928. He and his wife separated in April
1934, and she left Sparks and went to Oakland, Calif., taking their young daughter with her.
The separation was caused by defendant's attentions to the prosecutrix. The latter testified that
between June 1, 1934, and February 15, 1935, she saw defendant quite often in the city of
Sparks, county of Washoe, State of Nevada. He came to her home frequently and they were
much together within that period. She testified that she had sexual intercourse with him
during that time about twice a week, all of which occurred in said city of Sparks. They had
such intercourse on one occasion on or about October 1, 1934, in that city at a place where
defendant was living, known as the Deer Park Grocery Store. She continued having these
relations with him in Sparks until about February 15, 1935, when her mother, who became
aware of her pregnancy, took her to a hospital in Oakland, Calif., where she gave birth to a
child on June 1, 1935. Defendant is the father of that child.
The testimony of the prosecutrix summarized above, together with other evidence, reveals
enough of the legal evidence adduced to support the verdict and judgment.
The mother of the prosecutrix was a witness for the state. She testified that she had been
residing with her husband in the city of Sparks for a number of years. She testified that
prosecutrix was their daughter, and defendant's father was a brother of her husband. The
witness had known defendant for a long time and knew that he was a married man during
the year 1934.
57 Nev. 35, 39 (1936) State v. Seymour
that he was a married man during the year 1934. He became unduly attentive to her daughter
and this was more apparent after witness returned from Lake Tahoe to her home in Sparks on
September 14, 1934. She testified that he was in her company frequently; addressed her as
sweetie, and all those affectionate words that lovers use. This unusual conduct between
cousins caused the witness to admonish defendant to cease visiting her daughter. He resented
her interference and did not discontinue his attentions. She saw defendant in company with
her daughter quite often after that. Whenever the daughter went to school, he would
accompany her. In February 1935, witness went to the school and found them near there is an
automobile. At this time they admitted to her that prosecutrix was pregnant, and defendant
confessed to her that he was the cause of it. He said he would marry prosecutrix after he got a
divorce. The witness then took her daughter to a hospital in Oakland, Calif., where she gave
birth to a child on June 1, 1935, as also testified to by the daughter.
But evidence of defendant's intimacy with the prosecutrix on or about the date alleged in
the information is also supplied by the defendant himself. He was a witness in his own behalf.
In his testimony he admitted that he was the father of the child, and his knowledge of his
relation with prosecutrix as her cousin. After he took his wife to San Francisco on April 27,
1934, he commenced keeping company with prosecutrix. He commenced to love her in 1931
and loved her ever afterwards.
He admitted having sexual intercourse with her in Sacramento, Calif., in September 1934.
Later in that year he took her to a hotel in Reno where he engaged a room and signed the
hotel register as husband and wife. They remained in that room all night and he sought to
relieve her of pregnancy by having her drink a quantity of gin.
The testimony of the mother and defendant does not disclose any one circumstance
tending directly to corroborate the testimony of the prosecutrix, it is true, but this is
unnecessary.
57 Nev. 35, 40 (1936) State v. Seymour
disclose any one circumstance tending directly to corroborate the testimony of the
prosecutrix, it is true, but this is unnecessary. If circumstances in evidence from sources other
than the testimony of the accomplice tend on the whole to connect the accused with the crime
charged, it is enough. State v. Streeter, 20 Nev. 403, 22 P. 758; 31 C. J. 388, and cases cited
in note 55 supporting the text. The testimony of the mother and the defendant shows a
conjunction of opportunity and intimacy extending over a period of time, both before and
after the act charged. This led, as appears by his admission, to an act of sexual intercourse
shortly prior to the time specified in the information. Not long after that time, as likewise
appears from his admission, followed the clandestine association as husband and wife in the
room of the hotel in Reno. These circumstances are of sufficient probative force to satisfy the
statute as to the corroboration of an accomplice. Collectively, they tend to connect the
defendant with the commission of the offense. Section 10978 N. C. L.
4. The weight of the evidence was for the jury. The prosecutrix was also corroborated by
the testimony of the mother and defendant as to the other sexual acts.
5. It was objected by the defendant that the testimony of prosecutrix as to such other acts
with defendant was inadmissible. We are not of that opinion. Those acts occurring, as she
testified, about twice a week, commencing around the 1st of June 1934, and continuing until
February of the following year, tended to show the relation and incestuous disposition of the
parties, which had a probative bearing upon the probability of the crime having been
committed as charged. Prior acts of sexual intercourse are admissible in this class of cases,
according to the great weight of authority. People v. Stratton, 141 Cal. 604, 75 P. 166;
Lipham v. State, 125 Ga. 52, 53 S. E. 817, 114 Am. St. Rep. 181, 5 Ann. Cas. 66; State v.
Pruitt, 202 Mo. 49, 100 S. W. 431, 10 Ann. Cas. 654; Thayer v. Thayer, 101 Mass. 111, 100
Am. Dec. 110; State v. Wallen, 123 Minn.
57 Nev. 35, 41 (1936) State v. Seymour
Minn. 128, 143 N. W. 119; People v. Skutt, 96 Mich. 449, 56 N. W. 11; 16 C. J. p. 602; 14 R.
C. L. p. 38; Wigmore on Evidence (2d ed.) sec. 398. Subsequent acts are within the rule.
Thayer v. Thayer, supra; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Witham, 72
Me. 531; Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47; State v. Bridgman, 49 Vt. 202, 24
Am. Rep. 124; State v. Reineke, 89 Ohio St. 390, 106 N. E. 52, L. R. A. 1915a, 138; People
v. Koller, 142 Cal. 621, 76 P. 500; Wigmore on Evidence, sec. 398; Bishop on Statutory
Crimes, sec. 682. Especially are such acts admissible when, as here, they are connected with
anterior acts, thus showing a continuousness of illicit relations.
We have considered all other claims of error made by defendant and find them to be
without merit.
The judgment and order denying the motion for a new trial should be affirmed.
It is so ordered.
____________
57 Nev. 41, 41 (1936) Lyon County Bank v. Lyon County Bank
LYON COUNTY BANK Et Al. v. LYON COUNTY
BANK Et Al.
No. 3135
June 16, 1936. 58 P. (2d) 803.
1. Parties.
Statutory ground of demurrer that plaintiff has not legal capacity to sue held to refer to persons who
cannot sue except by guardians, next friends, committees, or, in case of married women, by joining their
husbands in certain cases (Comp. Laws, sec. 8596).
2. Action.
In action by bank as trustee of railroad to recover trust fund in bank at time bank was taken over by bank
examiner, complaint held not demurrable on ground that plaintiff was without legal capacity to sue, in that
same person could not control both prosecution and defense of action (Comp. Laws, secs. 747 et seq.,
8596).
Complaint alleged that suit was brought for benefit of bondholders of railroad of which bank was
trustee under trust deed pursuant to which bank had foreclosed trust deed and
procured appointment as receiver empowered to collect and disburse trust fund
for bondholders of railroad; that bank examiner took charge of bank pursuant to
banking laws, and thereafter state superintendent of banks took charge of bank
and its assets pursuant to statute; and that certain trust funds were in hands of
superintendent of banks pursuant to statute, and that bank examiner had
disallowed claims for such funds as preferred claims.
57 Nev. 41, 42 (1936) Lyon County Bank v. Lyon County Bank
trustee under trust deed pursuant to which bank had foreclosed trust deed and procured appointment as
receiver empowered to collect and disburse trust fund for bondholders of railroad; that bank examiner
took charge of bank pursuant to banking laws, and thereafter state superintendent of banks took charge
of bank and its assets pursuant to statute; and that certain trust funds were in hands of superintendent of
banks pursuant to statute, and that bank examiner had disallowed claims for such funds as preferred
claims.
3. Banks and Banking.
In suit by bank as trustee of railroad against bank and state superintendent of bank, supreme court held
required to presume that state bank examiner had good and sufficient reasons under statute to take
possession of property and business of bank and administer affairs thereof, where complaint alleged that
state bank examiner took charge of bank and its assets pursuant to statute (Comp. Laws, sec. 747 et seq.).
4. Banks and Banking.
State bank examiner held to have duty to take charge of business and assets of bank, where bank was
conducting its affairs in such unsafe and unauthorized manner as to jeopardize trust imposed in it (Comp.
Laws, sec. 747 et seq.).
5. Banks and Banking.
In suit by bank as trustee against bank and state superintendent of banks for amount of trust fund in bank
at time bank was taken over by state bank examiner, which superintendent of banks had refused to allow as
preferred claim, complaint held insufficient as against general demurrer (Comp. Laws, secs. 702, 703, 747
et seq., 8596).
6. Banks and Banking.
Complaint in suit against bank and state superintendent of banks for amount of trust fund in bank for
which claim by trustee had been refused as preferred claim held not amendable, where allegation that bank
examiner took possession of bank pursuant to banking laws of state was admitted by general demurrer, so
that action was properly dismissed after demurrer was sustained (Comp. Laws, secs. 702, 703, 747 et seq.,
8596).
Appeal from First Judicial District Court, Lyon County; J. M. Lockhart, Judge Presiding.
Suit by the Lyon County Bank, as trustee for the Nevada Copper Belt Railroad Company,
and others against the Lyon County Bank and others. Judgment for defendants, and plaintiffs
appeal. Affirmed.
57 Nev. 41, 43 (1936) Lyon County Bank v. Lyon County Bank
John Davidson and William M. Kearney, for Appellants:
We think the ruling in the case of Young v. Bankers Trust Company, 61 S. W. (2d) 904, is
decisive of the case at bar, because by its reasoning it indicates clearly facts which are parallel
with the case at bar, in that the trust was not a passive trust, and needed the attention of
someone, and the trustee was acting in a separate and distinct capacity from its other duties as
a banking concern, and thus entitled to maintain a suit of this character. This ruling was
affirmed and followed in the later case of Porter v. Banks Trust Company, Trustee, 75 S. W.
(2d) 31.
Under either the 1911 act or the 1933 act, it is necessary to file suit upon a rejected claim,
hence in either event the bank examiner, if he be deemed to have succeeded the trustee, must
file suit against himself upon his own action in rejecting a claim, or the claim must lapse.
Certainly the act of 1911 or the act of 1933 never intended any such result. The only logical
conclusion, therefore, is that the original trustee is the proper party to institute a suit upon a
claim rejected by the bank examiner or by the bank superintendent.
It is the policy of the law to permit amendments where pleadings are defective. Section
8640 N. C. L.; Ware v. Walker, 12 P. 475; Acquittal v. Crowell, 1 Cal. 191; Hamill v.
Ashley, 17 P. 502; Reynolds v. Lincoln, 9 P. 176, 12 P. 449; Horn v. Volcano Water Co., 13
Cal. 62; Browner v. Davis, 15 Cal. 9; Smith v. Wells Estate, 29 Nev. 411, 91 P. 315.
We feel that if the lower court found the complaint to be defective in any particular, even
though there were an error in naming either a plaintiff or a defendant, an amendment should
have been authorized, instead of dismissing the case without right to amend. A. N. Kennedy
Butter Tub Co. v. First and Hamilton National Bank of Fort Wayne, Indiana, 242 P. 754.
A L. Haight and F. H. Koehler, for Respondent Lyon County Bank Mortgage Corporation;
Gray Mashburn, Attorney-General, W. T. Mathews and W.
57 Nev. 41, 44 (1936) Lyon County Bank v. Lyon County Bank
County Bank Mortgage Corporation; Gray Mashburn, Attorney-General, W. T. Mathews and
W. Howard Gray, Deputy Attorneys-General, for Respondents Lyon County Bank and E. J.
Seaborn:
If the complaint could have been amended, the plaintiff should have sought his relief in the
lower court. Williamson v. Joyce (Cal.), 74 P. 290; Prince v. Lamb (Cal.), 60 P. 689.
It is our position, briefly, that it was the statutory duty of the state bank examiner to take
over all of the property and business, including trust funds, if any, of the bank, under the
conditions which existed on February 16, 1932, and that if any trust funds thereby came into
the possession of the state bank examiner, the same should be disbursed among the respective
cestui que trustent upon the presentation and establishment of proper claims therefor; that all
such funds, after having passed into the possession of the state bank examiner, are in the
custody of the law, and that the state bank examiner (now superintendent of banks) is the
officer charged with all the responsibilities of a trustee for the benefit of the cestui que
trustent; that the corporate organization of the defunct bank is not authorized to interfere with
the state bank examiner's possession, and is precluded by law from so doing, and that no
court has jurisdiction to appoint another person as trustee to interfere with the possession or
duties of the state bank examiner in that behalf, any aggrieved cestui que trustent being fully
protected by his right to maintain an action against the superintendent of banks in a proper
case. Section 53, 1911 Banking Act; Michie on Banks and Banking, vol. 3, p. 53.
OPINION
By the Court, Coleman, J.:
The complaint in this case alleges that the plaintiff is a corporation organized and existing
under the laws of Nevada; that it brings this suit for the benefit of the bondholders of the
Nevada Copper Belt Railroad Company, a corporation, which exists pursuant to the laws
of the State of Maine; that plaintiff corporation is the duly and regularly appointed,
qualified, and acting trustee of said railroad company, as provided in a certain deed of
trust, pursuant to which plaintiff did institute proceedings to foreclose said trust deed and
procure the appointment of a receiver for said railroad company; that under the terms of
said trust deed plaintiff bank was and is empowered to collect, receive, hold, and disburse
certain funds in trust for the bondholders of said railroad company.
57 Nev. 41, 45 (1936) Lyon County Bank v. Lyon County Bank
of Nevada; that it brings this suit for the benefit of the bondholders of the Nevada Copper
Belt Railroad Company, a corporation, which exists pursuant to the laws of the State of
Maine; that plaintiff corporation is the duly and regularly appointed, qualified, and acting
trustee of said railroad company, as provided in a certain deed of trust, pursuant to which
plaintiff did institute proceedings to foreclose said trust deed and procure the appointment of
a receiver for said railroad company; that under the terms of said trust deed plaintiff bank was
and is empowered to collect, receive, hold, and disburse certain funds in trust for the
bondholders of said railroad company.
The complaint further alleges that until February 16, 1932, it was engaged in the banking
business, and that on or about said day the defendant E. J. Seaborn, in his capacity as state
bank examiner, took charge of said Lyon County Bank pursuant to the banking laws of the
state; that thereafter the office of bank examiner was discontinued and the office of state
superintendent of banks was created, and the said Seaborn, as such superintendent, took
charge of said Lyon County Bank and its assets and affairs, pursuant to the Banking Act of
1933 (Laws 1933, c. 190 [N. C. L. sec. 747 et seq.]); that from about the month of March
1933, the said Seaborn, as such superintendent of banks, has continued in charge of the assets
of said bank until on or about October 23, 1933, when the court directed that the assets of
said bank be turned over to the defendant Lyon County Bank Mortgage Corporation, by
judgment duly and regularly entered in pursuance of the banking act of 1933.
It is further alleged that by the judgment aforesaid certain funds claimed to be trust funds
and preferred claims against the Lyon County Bank were ordered held by the defendant
Seaborn, as superintendent of banks, and are now in the hands of said Seaborn, as such
superintendent, pursuant to the requirement of said act of 1933, and that the funds herein
involved are now in the hands of said superintendent of banks, pursuant to statute.
57 Nev. 41, 46 (1936) Lyon County Bank v. Lyon County Bank
the hands of said superintendent of banks, pursuant to statute.
It is further alleged that on July 1, 1932, said Seaborn, as such bank examiner, gave notice
to all persons having claims against plaintiff bank, requiring them to file their claims with
him as such bank examiner on or before September 2, 1932; that the plaintiff bank, as trustee,
filed with said Seaborn, as state bank examiner, its proof of preferred claim, which was
thereafter rejected and disallowed; that said preferred claim arises by virtue of the fact that
there was in the hands of the said Lyon County Bank, on the date said Seaborn, as bank
examiner, took charge of said bank, the sum of $18,789.30 by virtue of the deed of trust
aforesaid. Plaintiff bank further avers that there are no offsets against said trust fund.
The defendants demurred to the complaint upon the following grounds: That the complaint
does not state a cause of action; that it appears that the plaintiff as trustee has not legal
capacity to bring this suit; that there is a defect or misjoinder of parties defendant; that it
cannot be ascertained from the face of plaintiff's complaint what interest the Lyon County
Bank, a corporation, has in this suit; that it cannot be ascertained from the face of plaintiff's
complaint what interest E. J. Seaborn, as superintendent of banks, has in this suit; that the
complaint is ambiguous; that the complaint is unintelligible; that the complaint is
uncertainall of which are grounds of demurrer under section 8596 N. C. L.
The learned trial court sustained the demurrer upon the ground that the plaintiff had not
legal capacity to sue. The theory upon which he reached this conclusion was that the same
person cannot control both the prosecution and defense of an action. The authorities relied
upon to sustain the conclusion are: Buckeye Refining Co. v. Kelly, 163 Cal. 8, 124 P. 536,
Ann. Cas. 1913e, 840; Brown v. Mann, 71 Cal. 192, 12 P. 51; Byrne et al. v. Byrne, 94 Cal.
576, 29 P. 1115, 30 P. 196; Globe & Rutgers Fire Ins. Co. v. Hines {C. C. A.)
57 Nev. 41, 47 (1936) Lyon County Bank v. Lyon County Bank
Rutgers Fire Ins. Co. v. Hines (C. C. A.) 273 F. 774; Hagood v. Goff, 208 Ala. 642, 95 So.
21; Swope v. Swope, 173 Ala. 157, 55 So. 418, Ann. Cas. 1914a, 937; Barber v. Barber, 32
R. I. 266, 79 A. 482; In re Divelbess' Estate, 216 Iowa, 1296, 249 N. W. 260; Langford v.
Johnson, 46 Ga. App. 444, 167 S. E. 779.
1, 2. Let us first determine what is meant by the ground of demurrer that the plaintiff has
not legal capacity to sue, as that term is used in section 8596 N. C. L.
David Dudley field, a leading lawyer of New York, was instrumental in having a code
regulating pleading adopted in that state about 1858. It became so popular that the code of
New York, with slight changes, has been adopted in many states. That code contained the
provision under consideration here, and the courts of New York have frequently referred to it.
In 1859 the court of final resort in New York was called upon to interpret this provision, in
the case of Bank of Havana v. Magee, 20 N. Y. 355, in which the court said: Certain
persons, as infants, idiots, lunatics and married women, cannot sue except by guardians, next
friends, committees, or in the case of married women, by joining their husband in certain
cases. This, I think, was what the provision refers to.
Such has been the consistent holding of that court. Ward v. Petrie, 157 N. Y. 301, 51 N. E.
1002, 68 Am. St. Rep. 790. Such, we think, is the uniform construction. Jackson v. Dines, 13
Colo. 90, 21 P. 918; Los Angeles Ry. Co. v. Davis, 146 Cal. 179, 79 P. 865, 106 Am. St. Rep.
20; Debolt v. Carter, 31 Ind. 355; 21 R. C. L. p. 526, sec. 87; Pomeroy's Code Rem. (4th ed.)
sec. 125.
While the lower court adopted the wrong theory in sustaining the demurrer, in justice to it
we may say the point above considered was not suggested by counsel in this court, and
consequently we assume was not called to the attention of the lower court.
But it is said that, since the judgment is right, it should not be reversed.
57 Nev. 41, 48 (1936) Lyon County Bank v. Lyon County Bank
One of the theories upon which that contention is based is that upon which the lower court
sustained the demurrer. While we do not find it necessary to decide this question, our
investigation leads us to assume that the rule is based upon the idea that the plaintiff controls
both the prosecution and the defense in the case. If we can judge from the vigor with which
the defense in this matter is urged, no such condition prevails in the instant matter.
Furthermore, it is questionable if such a serious point can safely be disposed of on demurrer.
The various phases of this question are considered in the decisions above referred to, and in
the cases cited in 1 C. J. pp. 983 and 984, and in 1 C. J. S. p. 1074.
It appears from the allegations in the complaint in this matter that respondent Seaborn
took charge of said Lyon County Bank pursuant to the banking laws of the State of Nevada.
Sections 53 and 54 of the banking act of 1911 (sections 702 and 703 N. C. L.) read in part
as follows:
53. Whenever it shall appear to the examiner that any bank to which this act is
applicable has violated its charter or any law of the state, or is conducting its business in an
unsafe and unauthorized manner, or its capital is impaired, or it shall refuse to make the
reports herein provided for, or refuse to permit its affairs to be examined by the examiner or
his deputies or agents, or shall refuse to comply with any lawful requests or orders of the
examiner or the state banking board; or shall suspend payment of its obligations; or if from
any examination or report provided for in this act, the examiner shall have reason to conclude
that such bank is in an unsafe or unsound condition to transact the business of banking, or
that it is unsafe and inexpedient for such bank to continue in business, the examiner may
forthwith take possession of the property and business of such bank and retain such
possession until such bank shall resume business or its affairs be finally liquidated as herein
provided. * * *
54. Upon taking possession of the property and business of such bank, the examiner is
authorized to collect moneys due to such bank and do such other acts as are necessary to
conserve its assets and business, and shall proceed to liquidate the affairs thereof as
hereinafter provided.
57 Nev. 41, 49 (1936) Lyon County Bank v. Lyon County Bank
business of such bank, the examiner is authorized to collect moneys due to such bank and do
such other acts as are necessary to conserve its assets and business, and shall proceed to
liquidate the affairs thereof as hereinafter provided. The examiner shall collect all debts and
claims and enforce all liabilities and rights of action accrued to or belonging to such bank,
and may institute and prosecute all proper and necessary actions for that purpose, and may
sell or compound all bad or doubtful debts, and upon the order of the district court for the
county where the bank carried on business, may sell all the real and personal property of such
bank on such terms as the court shall direct; and may, if necessary to pay the debts of such
bank, if a corporation, enforce the individual liability of its stockholders.
3-5. In view of the allegation in the complaint, which we have quoted, we must
conclusively assume that the state bank examiner had good and sufficient reasons, under the
statute, to take possession of the property and business of the plaintiff bank and to administer
the affairs thereof. So far as we can say, the plaintiff bank, at the time the bank examiner took
charge, was conducting its affairs in such an unsafe and unauthorized manner as to jeopardize
the trust imposed in it. When such a condition admittedly existed, it was the imperative duty,
under the statute, of the bank examiner to take charge of the business and assets of the
plaintiff. Power et al. v. Amos, 94 Fla. 411, 114 So. 364; 3 Michie on Banks, p. 47. Stepping
into the shoes of the plaintiff, as trustee, he assumed all of the responsibilities of the trustee.
The question of the administering of the trust is not involved in this matter, however.
6. The lower court took the view that the complaint could not be amended, and ordered a
dismissal of the action. It is urged that this was error necessitating a reversal. We do not think
the order was prejudicial. It affirmatively appears from the allegations of the complaint that
the bank examiner took possession of the bank pursuant to the banking laws of the state. This
allegation is admitted by the general demurrer.
57 Nev. 41, 50 (1936) Lyon County Bank v. Lyon County Bank
allegation is admitted by the general demurrer. In this situation we do not see how there can
be an amendment.
The judgment and order are affirmed.
On Petition for Rehearing
September 14, 1936. 60 P. (2d) 610.
1. Pleading.
In suit by bank as trustee against bank and state superintendent of banks for amount of
trust fund in bank at time bank was taken over by state bank examiner, allegations that
examiner and thereafter superintendent took charge of bank, assets, and affairs, pursuant
to state banking laws, and continued in charge thereof, were admitted by demurrer
(Comp. Laws, sec. 702).
2. Banks and Banking.
Where bank in business of acting as trustee becomes unsafe or unsound, superintendent
of banks must step in and protect cestui que trust, and in such situation, superintendent
assumes all responsibilities of trust (Comp. Laws, sec. 702).
Rehearing denied.
W. M. Kearney, for Appellants.
A. L. Haight, for Respondent Lyon County Bank Mortgage Corporation.
OPINION
By the Court, Coleman, J.:
Plaintiff has filed a lengthy petition for a rehearing. The respondents in their original brief
filed in this case state: It is our position briefly that it was the statutory duty of the state bank
examiner to take over all of the property and business, including trust funds, if any, of the
bank under the conditions which existed on February 16, 1932, and that, if any trust funds
thereby came into the possession of the state bank examiner, the same should be disbursed
among the respective cestue que trustent upon the presentation and establishment of proper
claims therefor; that all such funds, after having passed into the possession of the state
bank examiner, are in the custody of the law and that the state bank examiner {now
superintendent of banks) is the officer charged with all the responsibilities of a trustee for
the benefit of the cestue que trustent; that the corporate organization of the defunct bank
is not authorized to interfere with the bank examiner's possession and is precluded by law
from so doing, and that no court has jurisdiction to appoint another person as trustee to
interfere with the possession or duties of the state bank examiner in that behalf * * *."
57 Nev. 41, 51 (1936) Lyon County Bank v. Lyon County Bank
after having passed into the possession of the state bank examiner, are in the custody of the
law and that the state bank examiner (now superintendent of banks) is the officer charged
with all the responsibilities of a trustee for the benefit of the cestue que trustent; that the
corporate organization of the defunct bank is not authorized to interfere with the bank
examiner's possession and is precluded by law from so doing, and that no court has
jurisdiction to appoint another person as trustee to interfere with the possession or duties of
the state bank examiner in that behalf * * *.
Plaintiff, in the closing brief, said: We are in accord on the proposition that the
superintendent of banks had the legal right to take what he found after closing the doors of
the bank to the public, but such taking does not pass title to trust funds to him.
This was the identical point upon which we based our opinion.
The plaintiff is a creature of the banking act, from which we quoted in our former opinion.
It is subject to all the provisions of that act. We quoted section 53 of it (Comp. Laws, sec.
702), at length. That section provides that if the bank examiner shall have reasons to conclude
that a bank is in an unsafe or unsound condition he shall forthwith take possession of the
property and business thereof and retain such possession until such bank shall resume
business or its affairs be finally liquidated, as provided.
1. The complaint alleges that on February 16, 1932, the defendant Seaborn, in his capacity
as state bank examiner, took charge of said bank pursuant to the banking laws of the state,
and that thereafter, as superintendent of banks, he took charge of said bank and its assets and
affairs, pursuant to the banking act of 1933, and has continued in charge thereof.
The demurrer admitted these allegations, hence we were and are of the opinion that the
superintendent of banks lawfully came into possession of the trust fund in question.
57 Nev. 41, 52 (1936) Lyon County Bank v. Lyon County Bank
2. Upon what theory can it be said that a bank which is in the business of acting as a
trustee, and as such comes into possession of funds, should, in the face of our statute, be
permitted to administer the same when it (bank) becomes unsafe or unsound? We think it was
clearly the legislative intent that when such a trustee became unsafe or unsound, the
superintendent of banks should step in and protect the cestui que trust.
As we pointed out in the former opinion, the superintendent of banks, in such a situation,
assumes all of the responsibilities of the trust.
The petition is denied.
____________
57 Nev. 52, 52 (1936) Picetti v. Orcio
JENNIE PICETTI, Appellant, v. JOE M. ORCIO and MARIE ORCIO,
His Wife, ANGELO ORCIO, PEDULLA GIORGIO, JOE DOE and
RICHARD ROE, Respondents.
No. 3096
June 30, 1936. 58 P. (2d) 1046.
1. Partnership.
Whether realty, conveyed to alleged partners, constitutes firm asset depends on parties' intention at time
of taking conveyance, but such intention must be clearly manifested to overcome presumption of ownership
arising from face of deed.
2. Partnership.
Evidence in suit for amount due on note and foreclosure of mortgage securing it held sufficient to support
trial court's finding that defendants were not partners in purchase and operation of mortgaged ranch, but
tenants in common owning undivided shares therein as homestead, and hence were not bound by one
defendant's execution of note and mortgage.
3. Appeal and Error.
To justify reversal of trial court's judgment on fact question, it must clearly appear that court reached
wrong conclusion.
4. Acknowledgment.
To impeach notary's certificate of acknowledgment, evidence must be clear, cogent, and convincing
beyond reasonable controversy.
5. Acknowledgment.
Evidence that wife did not sign and acknowledge mortgage on homestead held not so clear,
cogent, and convincing as to overcome notary's certificate and other evidence of her
acknowledgment thereof.
57 Nev. 52, 53 (1936) Picetti v. Orcio
on homestead held not so clear, cogent, and convincing as to overcome notary's certificate and other
evidence of her acknowledgment thereof.
6. Homestead.
Wife's handing of mortgage on homestead, with her signature thereon, to notary and statement to him that
she knew all about it, held sufficient to bind her, though she did not, strictly speaking, acknowledge
signature, to which notary certified in due form.
7. Signatures.
One adopting another's signature and seal, purporting to be those of former, is bound thereby.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Jennie Picetti against Joe M. Orcio, his wife, and others, to recover on a note and
foreclose a mortgage securing it. From a personal judgment only against named defendant, a
judgment for other defendants, and an order denying a motion for new trial, plaintiff appeals.
Reversed with directions as to named defendant and wife, and affirmed as to other
defendants.
J. M. Frame and W. M. Kearney, for Appellant:
An analysis of the testimony will bear out the conclusion that the entire premises was used
by one of the partners for the purpose of raising money to carry on and conduct the business
for all of them, and that the partnership as a whole, including all of the assets, becomes liable
for the payment of the debt. Minter v. Minter, 157 P. 157; Arnold v. Wainwright, 80 Am.
Dec. 448.
Real estate acquired and used in the manner in which this property was, will be deemed in
equity as the property of the partnership. Whitney v. Dewey, 158 Fed. 385, 86 C. C. A. 21;
Adams v. Blumenshine, 204 P. 66; Sumner v. Hampson, 32 Am. Dec. 722.
The record here shows that the improvements which are a part of the realty were acquired
with partnership funds and funds acquired on the security of the property as a whole. Hogle v.
Lowe, 12 Nev. 286. Without any question of doubt Joe M.
57 Nev. 52, 54 (1936) Picetti v. Orcio
Without any question of doubt Joe M. Orcio and his wife had the power to manage the
business and subject the partnership assets to a mortgage lien as they did. Hogle v. Lowe,
supra; Gold Fork Lumber Co. v. Sweeney & Smith Co., 205 P. 554.
The presumption of law is in favor of the execution of the mortgage by Mrs. Orcio, when
acknowledged before a notary public, and this, coupled with the testimony of the notary
public himself to the effect that Mrs. Orcio said she signed the document, has not been
overcome by the mere denial of Mrs. Orcio.
L. D. Summerfield, for Respondents:
Under the conveyance by which the lands involved were deeded to defendants, they took
and held as tenants in common. Section 1513 N. C. L.; section 3362 N. C. L.
An undivided interest in realty may be made the subject of a mortgage, but a mortgage by
one tenant in common conveys only his rights to the property. 41 C. J. 481, 62 C. J. 542.
In view of the foregoing, it is clear that the execution of the purported mortgage by Joe M.
Orcio did not affect the interests of the other three defendants, or create any lien on their
interests in the lands as tenants in common.
Although ordinarily where one tenant in common executes a mortgage it holds as to his
interest, in the case at bar the testimony established, and the court found, that the property
involved had been used and occupied as the home of the defendants since its purchase, and
that its value did not exceed $4,000. It was, therefore, the homestead of the defendants within
the terms of section 3315 N. C. L. Moreover, inasmuch as Joe M. and Marie Orcio were
husband and wife, he alone was unable to give any mortgage of their homestead, good even
as to his own interest in the property. Section 3360, N. C. L.; art. IV, sec. 30, Constitution of
Nevada; Clark v. Shannon, 1 Nev. 568; Ely First National Bank v. Meyers, 39 Nev. 235
57 Nev. 52, 55 (1936) Picetti v. Orcio
National Bank v. Meyers, 39 Nev. 235, 150 P. 308, 40 Nev. 284, 161 P. 929.
The cases cited by appellant on the proposition as to whether or not real estate can be
owned by a partnership are not in point. The land here involved was deeded to all four
defendants as of record, and under section 1513 N. C. L., they took and held as tenants in
common, and not as a partnership.
OPINION
By the Court, Coleman, J.:
This is a suit to recover judgment upon a promissory note purporting to have been
executed by defendants Joe M. Orcio and his wife, and to foreclose a mortgage alleged to
have been executed by them to secure the payment of said note. The court entered a personal
judgment only against Joe M. Orcio, and a judgment in favor of the other defendants.
Plaintiff has appealed from so much of the judgment as was adverse to her, and from the
order denying a motion for a new trial.
In July 1919, the defendant Joe M. Orcio, Marie Orcio, his wife, Angelo Orcio, and
Pedulla Giorgio purchased the ranch in question. The Doe family do not appear to have any
interest in the ranch. It appears from the undisputed testimony of the defendants that each of
them paid one-fourth of the purchase price of the ranch and they were named as grantees in
the deed of conveyance.
It is the theory of the plaintiff that the defendants Joe Orcio and Marie Orcio, his wife,
executed the note and mortgage in question, and that though the other two owners in the
ranch did not sign the note and mortgage, the four constituted a partnership in the ownership
and operation of the ranch, and that Joe Orcio had the authority to bind the four by the
execution of the note and mortgage. It is the contention of each of the defendants that they
are tenants in common and own an undivided one-quarter share in the ranch, and that
the ranch constitutes a homestead in fact.
57 Nev. 52, 56 (1936) Picetti v. Orcio
each of the defendants that they are tenants in common and own an undivided one-quarter
share in the ranch, and that the ranch constitutes a homestead in fact.
It appears that Joe Orcio and his wife borrowed $500 from the Washoe County Bank, in
December 1919, and later (in 1920), a thousand dollars, both of which loans were secured by
their joint mortgage upon the ranch; that thereafter (in 1921) Joe Orcio borrowed $2,500 from
Philip Curti, and that a note therefor, and a mortgage securing the same, purporting to be
executed by Joe M. Orcio and Marie Orcio, his wife, were delivered to him; that in 1928,
Curti desiring to obtain the money on said last-mentioned note and mortgage, and Orcio
being unable to pay it, negotiated a sale of the same to this plaintiff, who being desirous of a
new note and mortgage, the one in question here was drawn, and admittedly executed by Joe
Orcio, but denied by Marie Orcio. It is conceded that the other two defendants did not sign
either the note or mortgage.
The first contention we will dispose of is whether the defendants were partners in the
purchase and operation of the ranch, and whether Joe Orcio was the managing partner and
had full power to bind the other defendants in the execution of the note and mortgage.
In support of the rule of law relied upon, counsel cite Adams v. Blumenshine, 27 N. M.
643, 204 P. 66, 67, 20 A. L. R. 369; Whitney v. Dewey, 158 F. 385, 86 C. C. A. 21; Sumner
v. Hampson, 8 Ohio 328, 32 Am. Dec. 722.
In the first-named case the court says: The presumption is always against the inclusion in
the firm assets of real estate held by the partners as tenants in common. * * * The mere use of
the property for firm business is only a slight circumstance tending to show that the premises
were intended to be partnership property.
The other two cases just mentioned are of no aid to us in deciding the question involved.
1. We think that the correct rule to be applied in a situation such as confronts us is stated
in 20 R. C. L. p.
57 Nev. 52, 57 (1936) Picetti v. Orcio
situation such as confronts us is stated in 20 R. C. L. p. 854, sec. 61, as follows: There is
some uncertainty as to what must be shown in order that real property may be considered a
portion of the firm assets. The rule which has the support of the best authority, and which
rests on sound principle, is the one which makes the intention of the parties at the time of
taking the conveyance the proper test. In other words, the question is one to be determined
from the intention of the parties, or as it is sometimes said, from the agreement of the parties.
In all cases the presumption is against the inclusion of the real estate, and in order that it may
be treated as belonging to the partnership the intention must be clearly manifested. There is
also a presumption that the ownership of real estate is where the muniment of title places it. If
by all the circumstances attending the transaction, it is made to appear that, in the intention of
the parties, it was purchased for and was treated as partnership property, the presumption of
ownership arising from the face of the deed will be overcome, and the property will be treated
as belonging to the partnership.
In an early case arising in Virginia, where two men bought a tract of land with a mill
situated upon it, which (mill) was operated as a partnership, the court said: I consider
Wheatley and Calhoun as joint owners of the realty, and partners only in the milling business
carried on upon the property. There may, indeed, be partnerships in the business of milling, or
mining, or farming; but unless the intent of the joint owners to throw their real estate into the
fund as partnership stock is distinctly manifested, or unless the real property is bought out of
the social funds, for partnership purposes, it must still retain its character of realty.
Considering the partnership as a third person, the titles of the individual partners cannot be
passed to it, perhaps, without violating the statute of frauds, unless it be by express agreement
in writing, or unless, by purchasing with partnership funds, an implied trust is raised in its
favor.
57 Nev. 52, 58 (1936) Picetti v. Orcio
raised in its favor. In this case, I see nothing from whence to infer that there was any design
on the part of these joint purchasers to convert their real estate into partnership stock; nor am
I better satisfied, that the property was purchased with, or paid for out of, partnership funds.
To raise a trust by such purchase it must have been made at the time with partnership funds or
on partnership responsibility. The payment, incidentally, out of those funds of an installment
due upon an antecedent contract on individual responsibility cannot raise such a trust, or give
title to anything but reimbursement. Wheatley's Heirs v. Calhoun, 12 Leigh, 264, 273, 37
Am. Dec. 654.
In Parsons on Partnership (4th ed.), at section 265, it is said: Real estate purchased for
partnership purposes, and appropriated to those purposes, paid for by partnership funds, and
necessary to partnership purposes, always becomes partnership property.
The same author, at section 266 says: We consider that the three elements we have above
stated must unite in order to make the real estate necessarily partnership property.
Counsel quotes from the case of Hogle v. Lowe, 12 Nev. 286, as follows: When property
is purchased with partnership funds for partnership purposes, and appropriated to partnership
uses, no further proofs should be, and certainly none are, required in order to establish the
evident intention and agreement of the partners. In such case, every act impresses upon the
property the character of personalty.
Even this quotation contemplates a purchase with partnership funds, which was not the
fact in the instant case. And counsel failed to quote the following language in the same
paragraph: But the mere fact that real property held by members of the firm as tenants in
common is used by the partners in the partnership business for partnership purposes, or an
agreement to so use it, is not of itself sufficient to convert it into partnership stock; there must
be some evidence of further agreement to make it partnership property.
57 Nev. 52, 59 (1936) Picetti v. Orcio
agreement to make it partnership property. (Vol. 1, Am. Lead Cas. 496). At law, real property
used by a partnership is deemed to belong to the person in whose name the title by
conveyance stands; and it is so considered in equity, until it is shown to be partnership
property, either by evidence establishing a proper agreement, or by proof of purchase with
partnership funds for partnership purposes.
It is said in 47 C. J. 677: While, in accordance with general rules, an agreement beween
joint owners of property to carry on a common trade or business and to share the profits and
losses thereof will constitute a partnership, a mere community of interest, such as exists
between tenants in common or joint tenants of real or personal property, does not make such
owners partners or raise a presumption that a partnership exists, and this is so, even though
they cooperate in making improvements in their property and in realizing and sharing the
profits or the losses and expenses arising therefrom.
2. Without reviewing the evidence at length, we may say that all four of the defendants
testified that each paid out of his own private funds one-fourth of the purchase price of the
ranch. The wife testified that she earned the money she paid, partly before her marriage, as a
trained nurse. Each of the witnesses testified that the individual purchasers acquired an
undivided one-fourth interest in the property, and that they purchased the ranch for ranching
purposes, each to receive one-fourth of the profits and to share equally the losses, if any.
While the testimony of the defendant Joe Orcio, as to certain funds which went into
improvements, and as to other phases of the case, is very unsatisfactory, we cannot say that it
clearly appears that the finding of the trial court on this phase of the case was erroneous, and
such finding must stand.
Counsel for appellant call to our attention several authorities which expressly recite the
fact of an express agreement between the partners, at the time the real estate is appropriated
to the use of the firm, to the effect that it shall become a partnership asset.
57 Nev. 52, 60 (1936) Picetti v. Orcio
estate is appropriated to the use of the firm, to the effect that it shall become a partnership
asset. They are not in point, since there was no such agreement in this case.
Counsel do not refer to the case of Arnold v. Stevenson, 2 Nev. 234, where it was held that
one partner has no authority to mortgage the real estate of the firm, and we do not find it
necessary to determine the correctness of that holding.
3. The next question is whether or not Mrs. Orcio signed and acknowledged the mortgage
in question, so as to charge the homestead interest of herself and husband with the debt. She
testified that she did not sign it, and her husband testified that he signed her name to the deed,
at the time he signed his name to it. To justify this court in reversing a judgment of the trial
court on a question of fact, it must clearly appear that the trial court reached the wrong
conclusion. Can we say in this case that the trial court did reach a wrong conclusion on the
point in question?
We are satisfied that the trial court did not give due consideration to the weight which
should be given to the certificate of the notary public, who certified to Mrs. Orcio's signature.
We say this for the reason that the law on the point was not called to our attention, either in
the briefs or the oral argument, which is very strong reason to believe that it was not
suggested to the lower court.
Mrs. Orcio admitted signing two previous mortgages given on the ranch, one executed in
1919 and the other in 1920, the latter just a year before the mortgage to Curti was given, of
which the one in question is in reality a renewal. She testified that the notary who certified to
her signature to the Curti mortgage and to the one in question at no time sought to take her
acknowledgment. The notary, who is an attorney and who prepared the two mortgages,
pursuant to instructions, and who was in no way blamable for failure to include the other two
owners as mortgagors, testified that at the time the husband signed the mortgage he told
him that it would be necessary that his wife sign it also.
57 Nev. 52, 61 (1936) Picetti v. Orcio
time the husband signed the mortgage he told him that it would be necessary that his wife
sign it also. He testified that the husband said it was impossible for her to come in at the time,
to sign; and that, after waiting a few days, he drove out to the ranch, exhibited the note and
mortgage to the wife, told her what they were, and that she must sign them; that she took
them in the house and brought them back with her signature attached, handed them to him,
saying she knew all about them, whereupon he certified to her signature in due form. Mr.
Curti testified that he was in the attorney's office at the time that the husband signed the
mortgage, and that he did not sign his wife's name thereto, as he testified.
4. What is the law pertaining to the impeachment of a certificate of acknowledgment of a
notary public? The rule stated at section 267 of John's American Notaries (4th ed.) is as
follows: Certificates of acknowledgment may usually be impeached only for fraud,
conspiracy, collusion or imposition, and clear, convincing and satisfactory proof is required.
In 46 C. J. at page 519, it is said, relative to impeaching a notary's certificate: It may be
contradicted or impeached by other competent evidence, but clear and convincing proof by
disinterested witnesses is required.
1 R. C. L. p. 297, sec. 88, states the rule as follows: The decisions disclose a very decided
tendency on the part of the courts to attach weight to certificates of acknowledgment and to
view attempts to discredit them with suspicion and distrust. It frequently has been stated as a
rule that in order to impeach a certificate the evidence must be clear, cogent and convincing
beyond reasonable controversy.
The supreme court of the United States, in Young v. Duvall 109 U. S. 573, 576, 3 S. Ct.
414, 416, 27 L. Ed. 1036, in considering the weight to be attached to the certificate of a
notary public, said: Of necessity, arising out of considerations of public policy, his certificate
must, under circumstances disclosed in this case, be regarded as an ascertainment, in the
mode prescribed by law, of the facts essential to his authority to make it; and if, under
such circumstances, it can be contradicted, to the injury of those who in good faith have
acted upon it,upon which question we express no opinion,the proof to that end must
be of such a character as will clearly and fully show the certificate to be false or
fraudulent.
57 Nev. 52, 62 (1936) Picetti v. Orcio
regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his
authority to make it; and if, under such circumstances, it can be contradicted, to the injury of
those who in good faith have acted upon it,upon which question we express no
opinion,the proof to that end must be of such a character as will clearly and fully show the
certificate to be false or fraudulent. Northwestern Mut. L. Ins. Co. v. Nelson, 103 U. S. 544,
547 [26 L. Ed. 436]. The mischiefs that would ensue from a different rule could not well be
overstated. The cases of hardship upon married women that might occur under the operation
of such a rule are of less consequence than the general insecurity in the titles to real estate
which would inevitably follow from one less rigorous.
The supreme court of Alabama, in Miller v. Marx, 55 Ala. 322, in disposing of this
question, referred to and quoted from one or two cases sustaining the rule above stated. In
that case the court said: The question we are discussing is not new in the courts of justice.
When families are about to lose the protection of the roof-tree, and to be turned homeless
upon the world, it is but human that they should resort to every means within their power to
avert so dire a calamity. Interest is no longer a disqualification to testify, under the statutes of
this state. Impelled by keen apprehension of want, it is not surprising that parties to the suit,
when on the witness stand, should testify under undue bias, no matter how honest their
intentions to tell only the truth may be. Wives rarely join in a conveyance or incumbrance of a
homestead, without a suppressed misgiving or reluctance. When in after yearsperhaps after
the death of the husbandsuch conveyances are about to be enforced, and the family
dispossessed, how easy to prove by the wife herself, and perhaps by the children who have all
the while been around her, that her signature was not voluntary, and that she did not assent to
the conveyance. If such testimony can prevail to set aside solemn conveyances, acknowledged
or proved, and certified according to the forms of law, what confidence can the public
repose in land titles?
57 Nev. 52, 63 (1936) Picetti v. Orcio
certified according to the forms of law, what confidence can the public repose in land titles?
It is much less hurtful that cases of individual hardship should be endured, than that, on
testimony always open to distrust, the repose of society should be disturbed by so fearful
discredit cast on the titles to real estate.
The supreme court of Washington, in Western L. & S. Co. v. Waisman, 32 Wash. 644, 73
P. 703, 704, in dealing with this question, said: That the evidence required to overcome a
certificate of acknowledgment must be clear and convincing is generally held, and it may well
be said that where fraud or duress is not shown as a circumstance attending an
acknowledgment, the unsupported testimony of parties directly interested in the impeachment
is not of that clear and convincing character that is necessary to overcome a record and an
official act.
In a note to Ford v. Ford, 7 Ann. Cas. 245, a long list of cases is cited in support of the rule
that to impeach a certificate of a notary public to an acknowledgment the evidence must be
clear, cogent, and convincing beyond reasonable controversy; and in the same note many
cases are cited to sustain the proposition that the testimony of interested witnesses is
insufficient to overcome the force of the certificate of acknowledgment. As to this latter
proposition we do not find it necessary to express an opinion. See 1 Devlin on Deeds, sec.
529.
5. Let us determine if the evidence in behalf of defendants Joe Orcio and wife to the effect
that she did not sign and acknowledge the mortgage is so clear, cogent, and convincing as to
overcome the certificate of acknowledgment and adverse evidence. We do not think it is. The
defendants were vitally interested in defeating the foreclosure on their homestead, whereas
the notary had no real interest in the outcome. When the husband signed the mortgage, he was
told by the notary that his wife had to sign it, which showed that he knew the necessity of her
signature. He is an attorney who stands unimpeached. Is it likely that, knowing the necessity
of the wife's signature, he would certify to her having signed if he had known that she
had not?
57 Nev. 52, 64 (1936) Picetti v. Orcio
the necessity of the wife's signature, he would certify to her having signed if he had known
that she had not? The testimony of her husband is contradicted by Philip Curti, who may be a
biased witness, but is not shown to be interested in the result. Furthermore, the testimony of
the husband as to use of the $2,500 obtained from Curti in 1921 seems incredible. A few
months after the ranch was purchased he gave a mortgage to the bank for $500, which
indicates that he had no available funds at that time; and some months later he borrowed
$1,000 from the bank, both loans having been secured by a mortgage in which his wife
joined; yet a year or two later he testified to spending several thousand dollars for chickens
and chicken feed, and accounted for the acquiring of such funds through earnings of $150 per
month. His whole testimony, when closely analyzed, would indicate that it is entitled to little
or no credit.
6, 7. There is nothing in the wife's testimony which throws suspicion upon it, save her
interest and the improbability that a notary, knowing the law and its consequences, would be
likely to falsely certify to her acknowledgment. It is true that if we accept the notary's
testimony we must say that she did not, strictly speaking, acknowledge that she signed the
mortgage. But, from his testimony, she handed him the document with her signature thereto,
and stated she knew all about it. This, we think, was enough to bind her. It is the
well-recognized rule that where one adopts the signature and seal of another, purporting to be
his, he is bound thereby. Chivington v. Colorado Springs Co., 9 Colo. 597, 14 P. 212; Clegg
v. Eustace, 40 Idaho 651, 237 P. 438; Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84.
It is ordered that the judgment and order in favor of Joe M. Orcio and Marie Orcio, his
wife, be and is hereby reversed, and the trial court is directed to enter a judgment in plaintiff's
favor against them, and to decree a foreclosure of the mortgage as to their interest in the
ranch.
57 Nev. 52, 65 (1936) Picetti v. Orcio
ranch. Judgment and order affirmed as to other defendants. Plaintiff to recover costs against
Joe Orcio and wife.
On Petition for Rehearing
November 5, 1936.
Per Curiam:
Rehearing granted.
On Rehearing
April 30, 1937. 67 P. (2d) 315.
1. Acknowledgment.
Presumption in favor of notary's certificate of acknowledgment, whether statutory or
not, can only be overcome by clear, cogent, and convincing evidence amounting to a
moral certainty (Comp. Laws, sec. 1503).
2. Acknowledgment.
Uncorroborated testimony of interested party is not generally such clear, cogent, and
convincing evidence as is required to overcome presumption in favor of notary's
certificate of acknowledgment (Comp. Laws, sec. 1503).
3. Homestead.
Where notary handed mortgage on homestead to alleged mortgagor without her
signature to it and explained the document, alleged mortgagor took document into house
and brought it back with her name signed to it, stating that she knew all about it, alleged
mortgagor was bound by the signature, whether signature was placed on document by her
or another, because she adopted signature as her own.
4. Homestead.
No different rule governs certificate of acknowledgment to conveyance of homestead
than applies to certificate of acknowledgment to any other conveyance.
5. Signatures.
Where one adopts another's signature of one's name to mortgage and so signifies by
spoken word, nod of the head, or otherwise, it amounts to an acknowledgment.
6. Acknowledgment.
Bare preponderance of evidence is not sufficient to overcome presumption in favor of
certificate of acknowledgment regular on its face, nor is loose and inconclusive evidence
merely creating doubt as to truth of certificate or contradicting it by implication
sufficient.
7. Acknowledgment.
Presumptions are indulged in favor of certificate of acknowledgment to deed, although
it has not been admitted or established that there was an appearance by grantor before
notary and an acknowledgment {Comp.
57 Nev. 52, 66 (1936) Picetti v. Orcio
notary and an acknowledgment (Comp. Laws, secs. 1483, 1503).
8. Acknowledgment.
Rule that presumption in favor of regularity of act of public official does not apply
where it would place charge or lien on property held not to affect presumption in favor of
certificate of acknowledgment to mortgage (Comp. Laws, sec. 1503).
9. Acknowledgment.
Rule requiring clear, cogent, and convincing evidence amounting to a moral certainty to
overcome presumption in favor of certificate of acknowledgment to deed held required
by public policy, regardless of whether taking of acknowledgment is judicial or
ministerial act (Comp. Laws, secs. 1483, 1503).
On rehearing. Former order affirmed.
____________________
For former opinion, see 57 Nev. 52, 58 P. (2d) 1046. See, also, 56 Nev. 1, 41 P. (2d) 289.
L. D. Summerfield, for Respondents:
In order to hold that Marie Orcio was bound by the purported mortgage, it is necessary to
find that she appeared and made some kind of acknowledgment of the same to the notary.
This honorable court in its opinion held that this was established by the presumption which
the law creates in favor of the notary's certificate. The court evidently inadvertently
overlooked the fact that the record discloses that, on this particular mortgage, Marie Orcio
testified not merely that she did not acknowledge it, but testified that she never even appeared
before or saw the notary at all, and never knew anything about the mortgage until suit was
brought for its foreclosure.
When there is a direct conflict in the testimony of two witnesses, the matter of credibility
is a question to be determined by the trial court. There is no presumption in favor of such
witnesses, whether one be a layman and the other a notary, or what not. 70 C. J. 762; 1 R. C.
L. 295, 296; 1 C. J. 886, 887, 890; 22 C. J. 141; Knox v. Kearney, 37 Nev. 393, 142 P. 526;
People's Gas Co. v.
57 Nev. 52, 67 (1936) Picetti v. Orcio
Co. v. Fletcher, 81 Kan. 76, 10 P. 34, 41 L. R. A. (N. S.) 1161.
There is a still further reason why, in Nevada, no presumption exists in favor of the notary
under the circumstances. Under the statutes, the certificate of the notary is merely prima-facie
evidence. Section 1501 N. C. L.; sec. 1503 N. C. L.; Seeley v. Goodwin, 39 Nev. 315, 156 P.
934.
When the issue is raised, as was done in the case at bar, that there was no appearance or
acknowledgment of any kind, then there is no presumption in favor of jurisdiction having
been acquired by the notary. Hannah v. Chase, 4 N. D. 351, 61 N. W. 18, 50 Am. St. Rep.
656.
J. M. Frame and W. M. Kearney, for Appellant:
In spite of counsel's statements to the contrary, the uniform rule is that the certificate of the
notary carries with it the presumption of due execution. In other words, in all jurisdictions the
certificate is presumed to speak the truth as to the facts stated therein, including that of the
appearance before the notary and the acknowledgment.
Although, perhaps, formerly otherwise in certain jurisdictions, the uniform rule now is that
the certificate is not conclusive as against one claiming a forgery. An examination of the
cases so holding reveals that although the certificate may be conclusive where some
appearance is made it may be impeached under the claim of nonappearance. Those same
cases hold that in order to impeach on that ground, the presumption accorded the certificate
must be overcome, and such can only be done by convincing proof of a high order. Elliott v.
Knappenberger (Okla.), 58 P. (2d) 1240; Stidham v. Moore, 227 P. 129; Ware et ux. v. Julian
(Calif.), 9 P. (2d) 906; Chaffee v. Hawkins (Wash.), 157 P. 35; Kennedy v. Security Bldg. &
Sav. Ass'n. (Tenn.), 57 S. W. 388; Romer v. Conter et al. (Minn.), 54 N. W.
57 Nev. 52, 68 (1936) Picetti v. Orcio
1052; Swiger v. Swiger (W. Va.), 52 S. E. 23; Roberts v. Huntington D. & G. Co. (W. Va.),
109 S. E. 348; Johnston v. Lindner (Ia.), 143 N. W. 410; Hall v. Hall (Mich.), 155 N. W. 695;
Eversole v. Kentucky River Coal Corp. (Ky.), 225 S. W. 50; Yusko v. Studt (N. D.), 163 N.
W. 1066; Rowray v. Caspar Mutual Bldg. & Loan Ass'n. (Wyo.), 45 P. (2d) 7.
Even if the presumption did not exist in favor of the certificate, the evidence offered by
respondents comes within the rule of Moore et al. v. Rochester Weaver Mining Co., 42 Nev.
164, 174 P. 1020. That there must be a substantial conflict in evidence before the court will
refuse to disturb the lower court's findings, is a rule too well recognized to warrant
discussion. Valverde v. Valverde (Nev.), 26 P. (2d) 233.
OPINION
By the Court, Coleman, C. J.:
We granted a rehearing in this case that we might further consider the correctness of our
conclusion as to the weight which should be attached to the certificate of acknowledgment as
to Mrs. Orcio. We will not restate the facts of the case.
It is insisted that the testimony of Mrs. Orcio, standing alone, if believed by the trial court,
is sufficient to justify the decree entered, and hence to necessitate an affirmance thereof.
While such is the broad contention, it is followed up with the assertion, stated briefly, that
there is a confusion in the authorities, due to a failure to distinguish between rules applicable
only in certain jurisdictions, or under a specific state of facts, which rules, it is said, may be
stated as follows:
1. In some jurisdictions, including Nevada, the policy of the state is declared by statute to
the effect that a certificate of acknowledgment is only prima-facie evidence that the
purported grantor appeared and acknowledged, etc.; that in such jurisdictions the
prima-facie evidence can be overcome by any satisfactory evidence believed by the trial
court on the issue as to whether there was ever any appearance or any kind of
acknowledgment.
57 Nev. 52, 69 (1936) Picetti v. Orcio
certificate of acknowledgment is only prima-facie evidence that the purported grantor
appeared and acknowledged, etc.; that in such jurisdictions the prima-facie evidence can be
overcome by any satisfactory evidence believed by the trial court on the issue as to whether
there was ever any appearance or any kind of acknowledgment.
It is asserted that as to the instant case there are three additional factors to be kept in mind:
a. That admittedly the mortgage does not bear the signature of Mrs. Orcio.
b. That under our homestead laws evidence purporting to divest a wife of her interest is
subject to as close scrutiny as would be any evidence attacking a notary's certificate.
c. That in no event can a presumption be indulged in favor of the notary's certificate for the
reason that the notary himself established that there was no acknowledgment.
2. In some states it is held that a certificate of acknowledgment involves a judicial act and
in such states strong presumptions are indulged in favor of the notary's certificate, but that no
such rule exists in Nevada.
3. It is also contended that in states where presumptions are indulged in favor of a
certificate they only apply after it has been admitted or established that there was an
appearance before the notary and an acknowledgment, and that no presumption exists in the
first instance where the party sought to be bound denies that there was any acknowledgment
whatever.
4. That the presumption which generally prevails in favor of the regularity of an act of a
public official does not apply where it would place a charge or lien upon property.
1, 2. As to the first contention, to the effect that under section 1503 N. C. L. a certificate of
acknowledgment is only prima-facie evidence, we may say that we had this section in mind
when we wrote our former opinion, and what we said in that opinion is in harmony with
that view.
57 Nev. 52, 70 (1936) Picetti v. Orcio
we had this section in mind when we wrote our former opinion, and what we said in that
opinion is in harmony with that view. In fact, we clearly manifested that view, after quoting
from several authorities, by this statement: Let us determine if the evidence in behalf of
defendants Joe Orcio and wife to the effect that she did not sign and acknowledge the
mortgage is so clear, cogent and convincing as to overcome the certificate of
acknowledgment and adverse evidence.
We think the contention of respondent that the presumption in favor of the notary's
certificate can be overcome by any satisfactory evidence believed by the trial court is too
broadwhether the presumption is one recognized by statute, as with us, or recognized by
the courts in those jurisdictions where there is no such statute. The presumption can be
overcome by satisfactory evidence, but the courts have generally held that to constitute such
satisfactory evidence it must be of the character we heretofore pointed out, that is, that it must
be clear, cogent and convincing; and in determining what is such clear, cogent and
convincing evidence, it is generally held that the uncorroborated testimony of an interested
party is not of such character, as we will point out.
3. Is the contention that admittedly the mortgage in question does not bear the signature of
Mrs. Orcio well founded? We do not so construe the evidence. She testified she did not sign
it. Her husband testified that he signed her name to it in the presence of the notary and
another. In this he is flatly contradicted by both. His testimony is worthless for the reason
pointed out in our former opinion. The notary testified that he handed the mortgage to Mrs.
Orcio without her signature to it, and explained the document; that she took it into the house
and brought it back with her signature, stating that she knew all about it. If this evidence by
the notary is true, she is bound by the signature, whether she signed it or not because she
adopted the signature as her own, even if it was actually written by another.
57 Nev. 52, 71 (1936) Picetti v. Orcio
another. In addition to the authorities we cited in our former opinion to this effect are: Jansen
v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Currier v. Clark, 145 Iowa, 613, 124 N. W. 622;
Mallory v. Walton, 119 Miss. 396, 81 So. 113; Kerr v. Russell, 69 Ill. 666, 18 Am. Rep. 634,
639; Blaisdell v. Leach, 101 Cal. 405, 35 P. 1019, 40 Am. St. Rep. 65.
4. Point b made by respondent is not supported by citation of authority or by argument,
and we know of no law establishing a different rule as to a certificate of acknowledgment to a
homestead than applies to a certificate of acknowledgment to a conveyance of land not
embraced in a homestead.
5. As to contention c, to the point that the notary himself establishes that there was no
acknowledgment, we merely wish to say that we do not so construe the facts of this case. We
have pointed out, to our own satisfaction at least, that where one adopts the signature of
another to a mortgage and so signifies by spoken word, nod of the head, or otherwise, it
amounts to an acknowledgment.
Coming to the assertion that great confusion exists among the authorities, and the
contention that a different rule exists in states where the taking of an acknowledgment is
considered a judicial act, from that prevailing in those states where it is considered a
ministerial act, in that greater weight attaches to an acknowledgment in the former than in the
latter, and that Nevada belongs to the latter class, we may say that, conceding without
deciding either contention, for the purpose of this case, the rule which we announced in our
former opinion prevails in the great majority, if not all of the states which hold that the taking
of an acknowledgment is a ministerial act.
Before proceeding further in this connection, it may be proper to suggest that the
confusion or apparent confusion arises out of the fact that in some states, particularly as to
married women, the statute provides that the party taking the acknowledgment shall explain
the force and effect of the instrument signed, and shall take the acknowledgment of her
signature on an examination apart from and without the hearing of the husband.
57 Nev. 52, 72 (1936) Picetti v. Orcio
and effect of the instrument signed, and shall take the acknowledgment of her signature on an
examination apart from and without the hearing of the husband. But even if an
acknowledgment of a married woman were held judicial, it might be that it would be proper
in the same jurisdiction to hold that the taking of the husband's acknowledgment, when there
is no such provision as to him, is a ministerial act. But we do not decide this question, as it is
not necessary, and suggest it only for future consideration in case the question ever arises,
since our statute formerly required such an examination in case of an acknowledgment of a
married woman, in view of the fact that such an acknowledgment may yet come before the
court for consideration. However, this may never be a serious question in Nevada, in view of
the fact that our statute has always provided that such certificate shall be rebuttable. In this
connection, we find that the supreme court of the United States held in Elliott v. Peirsol, 1
Pet. 328, 7 L. Ed. 164, that the taking of an acknowledgment is a ministerial act, whereas it
held in Hitz v. Jenks, 123 U. S. 297, 8 S. Ct. 143, 31 L. Ed. 156, that it was judicial in
character; and we find also that in earlier cases in Illinois it was held to be a judicial act, but
in the more recent case of People, for Use of Munson, v. Bartels, 138 Ill. 322, 27 N. E. 1091,
it was held to the contrary.
Reverting to the main question, while the great weight of authority is to the effect that the
taking of an acknowledgment is ministerial, we do not find it necessary to determine whether
or not the taking of the acknowledgment in question is a ministerial act (our statute no longer
requiring an examination of a married woman separate and apart from her husband), and will
assume that it is, since there is no contention to the contrary.
The following decisions, among others, hold that the taking of an acknowledgment is
ministerial in character: Biscoe v. Byrd, 15 Ark. 655; Woodland Bank v. Oberhaus, 125 Cal.
320, 57 P. 1070; Wardlaw v. Mayer, 77 Ga.
57 Nev. 52, 73 (1936) Picetti v. Orcio
Ga. 620; People, for Use of Munson, v. Bartels, 138 Ill. 322, 27 N. E. 1091; Abrams v. Ervin,
9 Iowa 87; Com., for Use of Green, v. Johnson, 123 Ky. 437, 96 S. W. 801, 124 Am. St. Rep.
368, 13 Ann. Cas. 716; Gibson v. Norway Sav. Bank, 69 Me. 579; Lewis' Lessee v. Waters, 3
Har. & McH. (Md.) 430; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Barnard
v. Schuler, 100 Minn. 289, 110 N. W. 966; State, to Use of Alexander, v. Plass, 58 Mo. App.
148; Horbach v. Tyrell, 48 Neb. 514, 67 N. W. 485, 489, 37 L. R. A. 434; Odiorne v. Mason,
9 N. H. 24; Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 82, 43 N. E. 427; Read v.
Toledo Loan Co., 68 Ohio St. 280, 67 N. E. 729, 62 L. R. A. 790, 96 Am. St. Rep. 663;
Ardmore Nat. Bank v. Briggs M. & S. Co., 20 Okl. 427, 94 P. 533, 23 L. R. A. (N. S.) 1074,
129 Am. St. Rep. 747, 16 Ann. Cas. 133; Keene Guaranty Sav. Bank v. Lawrence, 32 Wash.
572, 73 P. 680; Garcia v. Leal, 30 N. M. 249, 231 P. 631.
6. The general rule as to the requirement to overcome the certificate of acknowledgment is
stated in 1 C. J. p. 896, as follows: With one possible exception, the courts are all agreed
that a bare preponderance of evidence is not sufficient to overcome the presumption in favor
of a certificate of acknowledgment regular on its face; nor is loose and inconclusive evidence
merely creating a doubt as to the truth of the certificate or contradicting it by implication only
sufficient, but a certificate regular on its face can be overthrown only by evidence so clear,
strong, and convincing as to exclude all reasonable controversy as to the falsity of the
certificate. Indeed, some of the cases go to the extent of requiring the same degree of proof as
is necessary in criminal cases, that is, proof beyond a reasonable doubt.
Of the courts cited above holding that an acknowledgment is ministerial, those which have
considered the question and hold in accordance with the text just quoted from 1 C. J. are:
Gray v. Law, 6 Idaho, 559, 57 P. 435, 96 Am. St. Rep. 280; Currier v. Clark, 145 Iowa, 613,
124 N. W. 622; Duff v. Virginia Iron, etc. Co., 136 Ky.
57 Nev. 52, 74 (1936) Picetti v. Orcio
Ky. 281, 124 S. W. 309; Gritten v. Dickerson, 202 Ill. 372, 66 N. E. 1090; Jaworski v.
Sujewicz, 334 Ill. 19, 165 N. E. 147; Rouse v. Witte, 81 Neb. 368, 116 N. W. 43; Goulet v.
Dubreuille, 84 Minn. 72, 86 N. W. 779; Black v. Purnell, 50 N. J. Eq. 365; 24 A. 548; Albany
County Sav. Bank v. McCarty, 149 N. Y. 71, 43 N. E. 427; Willis v. Baker, 75 Ohio St. 291,
79 N. E. 466; Western Loan, etc. Co. v. Waisman, 32 Wash. 644, 73 P. 703; Winn v.
Willmott, 138 Okl. 177, 280 P. 808; Futhey v. Potts (Mo. Sup.), 204 S. W. 180; Garcia v.
Leal, 30 N. M. 249, 231 P. 631.
Thus we see that nearly all of the states in which it is held that the taking of an
acknowledgment is a ministerial act have held that the evidence to overthrow a certificate of
acknowledgment must be clear, convincing, cogent, and establish beyond a reasonable doubt
that the party did not acknowledge as certified. The other jurisdictions mentioned which hold
the taking of an acknowledgment to be ministerial do not seem to have had occasion to pass
upon the pivotal question in this case.
Though we have taken the time to investigate this question, we do not think it very
material, for the reason that nearly all of the jurisdictions make their conclusions turn upon
the question of public policy, and it is just as sound a public policy to hold that a certificate of
acknowledgment should not be lightly overturned in a state where it is held to be a ministerial
act, as where it is held to be a judicial act.
In the following jurisdictions, among others, in which it is held that the taking of an
acknowledgment is a ministerial act, it is held that the unsupported evidence of a grantor is
insufficient to overthrow a certificate of acknowledgment: Gray v. Law, supra; Houlihan v.
Morrissey, 270 Ill. 66, 110 N. E. 341, Ann. Cas. 1917a, 364; Mutual Life Ins. Co. v. Corey,
135 N. Y. 326, 31 N. E. 1095; Currier v. Clark, 145 Iowa, 613, 124 N. W. 622; Goulet v.
Dubreuille, supra; Baldwin v. Snowden, 11 Ohio St. 203, 78 Am. Dec. 303; Western Loan &
S. Co. v. Waisman, supra; Adams v. Smith, 11 Wyo.
57 Nev. 52, 75 (1936) Picetti v. Orcio
Waisman, supra; Adams v. Smith, 11 Wyo. 200, 70 P. 1043; Comings v. Leedy, 114 Mo.
454, 21 S. W. 804.
In Rouse v. Witte, supra, it was said that the testimony of the grantor only slightly
corroborated is insufficient to overcome the certificate of acknowledgment, and it is said in
Van Orman v. McGregor, 23 Iowa, 300, and Herrick v. Musgrove, 67 Iowa, 63, 24 N. W.
594, that this is especially true when the certificate is supported by the testimony of the
certifying officer. It was held in Ford v. Osborne, 45 Ohio St. 1, 12 N. E. 526, that the
certificate of the officer will not usually be overcome by the testimony of a married woman
corroborated by her husband.
In Black v. Purnell, 50 N. J. Eq. 365, 24 A. 548, it was held that the certificate supported
by the testimony of the officer will not be overcome by the testimony of a married woman
corroborated by the testimony of her husband.
In McGuire v. Wilson, 5 Neb. (Unof.) 540, 99 N. W. 244, it was held that the certificate of
the officer must stand as against the testimony of the wife and her husband.
In Chaffee v. Hawkins, 89 Wash. 130, 154 P. 143, 157 P. 35, 37, the court said: To
overcome a formal instrument and certificate of acknowledgment, the proof must be clear,
cogent, and convincing. This is obviously a requirement of more than a bare or even a
measurable preponderance of the spoken testimony. It means that the testimony of witnesses
shall not be weighed the one against the other only, but that the testimony of the one shall be
measured against the other, supported as it is by one of the strongest presumptions of fact
known to the law; that is, that an acknowledgment to a deed formally certified imports
verity.
In Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 43 N. E. 427, 430, it is said: The
rule governing the action of trial courts, as well as appellate courts, with power to review the
facts, seems to be uniform in all the states to the extent of requiring that a certificate of
acknowledgment should not be overthrown upon evidence of a doubtful character, such
as the unsupported testimony of interested witnesses, nor upon a bare preponderance of
evidence, but only on proof so clear and convincing as to amount to a moral certainty."
57 Nev. 52, 76 (1936) Picetti v. Orcio
the states to the extent of requiring that a certificate of acknowledgment should not be
overthrown upon evidence of a doubtful character, such as the unsupported testimony of
interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear
and convincing as to amount to a moral certainty.
In Parry v. Reinertson, 208 Iowa, 739, 224 N. W. 489, 63 A. L. R. 1051, it was held that it
requires more than the unsupported testimony of the grantor to overcome an
acknowledgment.
To the same effect is Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756, 141 S. W. 406.
In Bennett v. Edgar, 46 Misc. 231, 93 N. Y. S. 203, it was said that to overcome the
certificate of acknowledgment the proof must be so clear and convincing as to amount to a
moral certainty.
Many authorities seem to attach considerable weight to the testimony of the officer
certifying to an acknowledgment in support of the statements contained in the certificate (1 C.
J. 895, n. 54), but we do not deem it necessary to consider them.
7. It is contended that where presumptions are indulged in favor of a certificate of
acknowledgment it is only after it has been admitted or established that there was an
appearance by the grantor before the notary and some kind of an acknowledgment shown.
Such cannot be the rule in Nevada. Section 1483 N. C. L. provides that when an
acknowledgment is by an individual the certificate shall certify that the grantor personally
appeared before me, a notary public (or judge or other officer * * *), in and for_____ County
[name of grantor] known (or proved) to me to be the person described in and who executed
the foregoing instrument, who acknowledged to me that he (or she) executed.
In view of this section and the further fact that the prima-facie presumption is in favor of
the certificate, there can be no merit in the contention.
57 Nev. 52, 77 (1936) Picetti v. Orcio
8, 9. As to the fourth contention of respondent, we must say that, notwithstanding what
was said in Knox v. Kearney, 37 Nev. 393, 142 P. 526, we are thoroughly satisfied it has no
application to the situation in hand. That was a case not dealing with acknowledgments to
deeds, and public policy demands that the rule we have stated be recognized and enforced.
If we were to take any other view than the one indicated, titles to real estate in this state
would be so insecure that no one would dare purchase real property in many instances. If we
were to take the view contended for, the repudiation of acknowledgments might develop into
a racket. All that a grantor would have to do in case of the death of the officer taking his
acknowledgment would be to flatly contradict the acknowledgment in order to set aside the
conveyance.
Using language similar to that used by a distinguished jurist some years ago, it would
shock the moral sense of a community to say that testimony in behalf of a grantor who sees a
fortune in his grasp, other than clear, cogent, convincing and amounting to a moral certainty,
may destroy the deliberate act of an officer appointed by law to certify to acknowledgments.
We are of the opinion that the conclusion and order formerly made were proper, and now
so order.
____________
57 Nev. 78, 78 (1936) Anderson v. Snell
HAROLD S. ANDERSON, also known as and called HAROLD ANDERSON, Appellant, v.
FRED SNELL, Respondent.
No. 3139
July 2, 1936. 58 P. (2d) 1041.
ON MOTION TO STRIKE DOCUMENT STYLED TRANSCRIPT
IN LIEU OF BILL OF EXCEPTIONS
1. Appeal and Error.
Motion to strike from record on appeal a transcript of proceedings, certified by court reporter, on ground
it was not settled as a bill of exceptions by judge, court, or stipulation of parties, was denied, since under
statute only matters not properly a part of judgment roll must be settled and allowed, and not transcript of
proceedings used as the bill of exceptions (Stats. 1935, c. 90, sec. 31, subd. 1).
2. Appeal and Error.
Motion to strike from record a transcript of proceedings, on ground that certification by court reporter did
not show that reporter was appointed by court, under authority of law, or by stipulation of parties, was
denied, where certificate stated that reporter was duly appointed, qualified, and acting court reporter.
3. Appeal and Error.
Motion to strike from record a transcript of proceedings, on ground that appellant had not filed
undertaking or deposited cash to amount of judgment and $300, according to statutory provision applying
in all cases where an undertaking was required on appeal, was denied on ground that statutory provision
requiring deposit not to exceed $300 applied, which amount appellant had deposited (Stats. 1935, c. 90,
secs. 16, 24).
Appeal from Eighth Judicial District Court, Clark County; L. O. Hawkins, Judge
Presiding.
Action by Fred Snell against Harold S. Anderson. From a judgment for plaintiff, defendant
appealed, and plaintiff moves to strike a document from the record. Motion denied.
Ham & Taylor, for Respondent:
The record does not reveal that any bill of exceptions was taken and preserved in the trial
court, as provided by section 31 of the practice act, nor does it reveal that a transcript or the
transcript in question in this court was within the time provided by law, or ever, or at all,
filed with the clerk of a court, or served; nor does it appear that counsel for the
respondent or the court ever had an opportunity to determine the correctness of the
purported transcript.
57 Nev. 78, 79 (1936) Anderson v. Snell
a transcript or the transcript in question in this court was within the time provided by law, or
ever, or at all, filed with the clerk of a court, or served; nor does it appear that counsel for the
respondent or the court ever had an opportunity to determine the correctness of the purported
transcript. In all events, under section 31, the bill of exceptions taken pursuant to the
provisions thereof must be settled by the court or the stipulation of parties.
The certification to the transcript does not show that the reporter was appointed by the
court, nor does it show that she was appointed under the authority of law or by stipulation of
counsel, and there is no proof to that effect.
No written undertaking accompanies the so-called record on appeal, nor is there an amount
of cash equivalent to the amount of the judgment and three hundred dollars, as required by
section 24 of the practice act.
We, therefore, submit that this court has no jurisdiction to determine any matter
complained of in the so-called transcript, and that the document should be stricken from the
records and the judgment of the trial court ordered affirmed.
Henderson & Marshall, for Appellant:
Subdivision 1 of section 31 of the act provides that a transcript of the proceedings,
certified by the court reporter, etc., may be served and filed and constitute the bill of
exceptions as relating to the point or points involved, without further stipulation or settlement
by the court. There is no statement that the other matters, exhibits, motions, papers, or orders
must be settled by the court. That, we contend, is adequately cared for in subdivision 2.
If the certification of the reporter is not full and complete and does not conform to the law,
an amended certificate could be supplied.
In this action it appears of record that a deposit of $300 was made with the clerk of the
trial court to abide the event of the appeal, thus complying with section 16 of the practice
act.
57 Nev. 78, 80 (1936) Anderson v. Snell
$300 was made with the clerk of the trial court to abide the event of the appeal, thus
complying with section 16 of the practice act.
OPINION
By the Court, Ducker, C. J.:
This is a motion to strike from the record on appeal a document styled Transcript in Lieu
of Bill of Exceptions. This document consists of the judgment roll, a number of other
papers, and what purports to be a transcript of the proceedings of the trial. The latter is
certified by the court reporter.
Concisely stated, the grounds of the motion to strike are: (1) That no bill of exceptions has
been taken in the trial court as required by law, and (2) that no bond or undertaking upon
appeal has been served and filed or deposit made of costs as required by law.
1. Respondent contends that the transcript of proceedings cannot be held to be a bill of
exceptions because it was not settled as such by the judge or court or by stipulation of the
parties as required by section 31 of chapter 90, An act to provide for and to regulate
proceedings on motions for new trials and on appeal in civil cases, and repealing all acts and
parts of acts in conflict therewith, approved March 27, 1935. See Stats. 1935, p. 195. Such a
settlement is unnecessary when a transcript of the proceedings is used as the bill of
exceptions. This is shown by the part of subdivision (1) of said section, which reads: (1) A
transcript of the proceedings, certified by the court reporter, appointed by the court, under
authority of law, or by agreement of the parties, to be a full, true and correct transcript
thereof, may be served and filed, and when so filed shall be and constitute the bill of
exceptions of the proceedings relating to the point or points involved, as therein set forth,
without further stipulation or settlement by the court; provided, however, that on motion duly
noticed, the court may at any time correct any error in such transcript by appropriate
amendment thereto."
57 Nev. 78, 81 (1936) Anderson v. Snell
any time correct any error in such transcript by appropriate amendment thereto.
The foregoing language is clear in meaning and not susceptible of the construction
contended for by respondent. In support of his contention he stresses the latter part of the
subdivision, which reads: The transcript of the proceedings, certified by the court reporter,
as herein provided, together with all other matters, exhibits, motions, papers or orders,
required to be incorporated in a bill of exceptions, when so incorporated in the bill of
exceptions, as herein provided, and when such bill of exceptions has been so settled and
allowed, as herein provided, it shall become a part of the record in such action or special
proceeding.
Respondent argues that this language signifies that the transcript of the proceedings, as
well as the other matters mentioned, must be settled and allowed by the court or by
stipulation of the parties before they can become a part of the record as a bill of exceptions.
We do not so interpret the language. It means only that such other matters not properly a part
of the judgment roll must be settled and allowed. We pointed out in Picetti v. Orcio, 56 Nev.
1, 41 P. (2d) 289, where chapter 97, Stats. of 1923, containing language substantially the
same as to making a transcript of the proceedings certified by the court reporter, the bill of
exceptions, was under consideration, that it was not contemplated that such a transcript might
not be used with other documents or matters to make up a bill of exceptions to be settled by
the trial judge. We say the same as to the statute before us.
2. The transcript was served and filed in apt time. But respondent further contends that it
does not constitute a bill of exceptions for the reason that the certification does not show that
the reporter was appointed by the court, or under authority of law or by stipulation of counsel,
and there is no proof to that effect. The certificate reads: "I hereby certify that I was the
duly appointed, qualified and acting court reporter on the 15th and 16th days of April,
1935, and the foregoing is a full, true and correct transcript of my shorthand notes taken
in the foregoing entitled action on said dates."
57 Nev. 78, 82 (1936) Anderson v. Snell
I hereby certify that I was the duly appointed, qualified and acting court reporter on the
15th and 16th days of April, 1935, and the foregoing is a full, true and correct transcript of
my shorthand notes taken in the foregoing entitled action on said dates.
[Signed] Margaret Cobbruire, Court Reporter.
We think the certificate is sufficient prima facie, at least, to show that the person making it
was the court reporter regularly appointed in the case. What other proof was necessary
counsel does not undertake to point out, and we find none expressed or indicated in the
statute.
3. In support of the motion to strike on account of failure to file an undertaking or deposit
of cash, it is contended that it was necessary under section 24 of said act, in lieu of an
undertaking, for the appellant to have deposited in the court below the amount of the
judgment and $300 to perfect the appeal. It is sufficient to say that the question is not
controlled by that section, but by section 16 of said act, which, in part, provides: To render
an appeal effectual for any purpose, in any case, a written undertaking shall be executed on
the part of the appellant by at least two sureties, to the effect that the appellant will pay all
damages and costs which may be awarded against him on the appeal, not exceeding three
hundred dollars; or that sum shall be deposited with the clerk with whom the judgment or
order was entered, to abide the event of the appeal, etc.
It appears from the record before us that the sum of $300 was deposited by appellant with
the clerk of the lower court.
While we have deemed it advisable to determine the last question, we must not be
understood as deciding that the failure to duly file an undertaking on appeal, or make a
deposit in lieu thereof, is ground for striking a bill of exceptions.
The motion to strike should be denied.
It is so ordered.
57 Nev. 78, 83 (1936) Anderson v. Snell
On The Merits
December 3, 1936. 62 P. (2d) 703.
1. Malicious Prosecution.
Advice of counsel after full disclosure of all facts, acted on in good faith, is defense to
action for malicious prosecution.
2. Malicious Prosecution.
Whether defendant disclosed all material facts to counsel, and acted in good faith on
counsel's advice so as to preclude recovery for malicious prosecution, held for jury.
3. Witnesses.
In action for malicious prosecution and assault and battery, cross-examination
testimony as to whether plaintiff had not been charged in suit instituted by plaintiff's
sister with conversion of money from father's estate, and evidence consisting of
exemplified copy of complaint filed in such suit, held inadmissible for purpose of
affecting plaintiff's credibility.
4. Malicious Prosecution.
$2,500 compensatory damages in action for malicious prosecution based on fact that
defendant had instituted action charging plaintiff with embezzlement, and caused
plaintiff to be arrested and imprisoned held not excessive.
5. Assault and Battery.
$1,000 actual damages and $5,000 exemplary damages for assault and battery, under
evidence showing unprovoked attack and injury with attending circumstances of
aggravation held not excessive.
6. Set-Off and Counterclaim.
Cross-complaint can be maintained only when defendant seeks affirmative relief
against party to action relating to or depending on contract or transaction upon which
action is brought, or affecting property to which action relates (Comp. Laws, sec. 8608).
7. Set-Off and Counterclaim.
In action for assault and battery, and for malicious prosecution based on fact that
defendant had instituted action charging plaintiff with embezzlement and had plaintiff
arrested and imprisoned, defendant could not file cross-complaint for conversion of
money belonging to defendant, notwithstanding facts of cross-complaint may have
furnished motive for act charged against defendant in cause of action for malicious
prosecution (Comp. Laws, sec. 8608).
Appeal from Eighth Judicial District Court, Clark County; L. O. Hawkins, Judge
Presiding.
Action by Fred Snell against Harold S. Anderson, also known as and called Harold
Anderson. From a judgment for plaintiff and from an order denying a motion to set aside the
verdict of the jury and to grant a new trial, defendant appeals.
57 Nev. 78, 84 (1936) Anderson v. Snell
to set aside the verdict of the jury and to grant a new trial, defendant appeals. Affirmed.
Henderson & Marshall, for Appellant:
From the testimony of plaintiff there can be no other conclusion than that if Snell suffered
any damage, such damage was suffered as a result of his leaving voluntarily the employ of the
Troy Laundry, and was not due to anything over which the defendant had any control. We
therefore contend that the evidence is insufficient to support the verdict, and a new trial
should be granted upon this ground alone.
It has been held in the State of Nevada, in Ricord v. C. P. R. R., 15 Nev. 167, that advice
of counsel is a complete defense to the proposition of want or probable cause. Anderson, in
support of this defense, states that he never filed any papers in this proceeding except upon
the advice of counsel, who told him that a civil action would lie, with the result that Anderson
filed a civil action. Most assuredly, under any theory, no malice can be shown in the
transaction.
If the decision of the lower court, as based upon the testimony in the case, that there is no
competent evidence to justify or sustain the jury's verdict upon the first cause of action, is
correct, we contend that a reduction of damages in the case from the sum of $3,600, actual
damages, to $2,500, was thoroughly and completely unjustified. We believe that where there
is no evidence to justify a verdict or decision, then the only alternative of the trial court is to
strike all of the damages on plaintiff's first cause of action, or to grant a new trial.
We charge that the trial court erred in refusing to permit cross-examination of the
defendant upon the filing of the law suit in Salt Lake City by Margaret S. Thatcher. We urge
upon the court that when a plaintiff in a suit for malicious prosecution founds his action, in
part, on an injury done to his character by such prosecution, the legal rule is quite settled that
he thereby puts his general character in issue.
57 Nev. 78, 85 (1936) Anderson v. Snell
thereby puts his general character in issue. It would seem to follow, therefore, that the
plaintiff in such procedure must stand in precisely the same attitude that the plaintiff in an
action for libel or slander assumes, and in the latter class of cases the general bad character of
the plaintiff at the time of an alleged grievance is admissable on the part of the defense, in
mitigation of damages. 18 R. C. L. 74-75; People v. Burk, 122 P. 435.
In conjunction with the first specification of error and the transcript of testimony, it
becomes very difficult to determine how the plaintiff was entitled to any damages at all, and
that being so, then it must be presumptively correct that the jury in this case arrived at their
verdict through passion and prejudice.
We claim error of the trial court in striking from the answer the cross-complaint of the
defendant, for the reason that the very foundation of the plaintiff's suit was the filing of the
affidavit in the justice's court; and we respectfully contend that the subject matter set forth in
the complaint, affidavit, and order of arrest is the very thing that gave rise to the cause of
action stated by plaintiff against defendant in this case.
Ham & Taylor, for Respondent:
Counsel overlooks the fact that Snell testified that his employer complained that the
notoriety of this suit was not helping either one of them, and he as much as told Snell to quit,
that his reputation was too great a burden upon his business. However, admitting, for the sake
of argument, that Snell continued to work and that the matter did not influence his
employment whatsoever, the fact remains that Anderson attempted to deprive and did deprive
the respondent of the last asset he possessed, and that was his reputation. Everyone must
concede that embezzlement is one of the most odious of crimes, especially so when charged
to one who has to live upon his reputation for integrity and honesty. And to say that a man
such as Snell, being so besmeared by Anderson and yet not having been damaged is
nonsense.
57 Nev. 78, 86 (1936) Anderson v. Snell
We concede it to be true that the advice of counsel is a complete defense under the proper
circumstances, but not where the advice might be procured as a shield against the suit,
without revealing all of the facts. There was no true or correct, full or fair disclosure to his
counsel by Anderson. Secondly, it does not appear that he took his counsel's advice. His
counsel testified: I advised him to consult the district attorney in regard to the matter,
because I believed embezzlement had been consummated. He did not tell Anderson to have
Snell arrested. It is true that Anderson testified as a general proposition, that he stated the
situation fully to Henderson, but that is but a mere conclusion and is not competent, nor has it
any probative value. 38 C. J. 432; Kitchen v. Rosenfeld (R. I.), 117 Atl. 537; State v. Covert
(Wash.), 45 P. 304.
Snell in his direct examination made no mention of any suit against him in Salt Lake City.
And there is no theory upon which he could be examined upon that subject, on direct,
cross-examination, or otherwise. 70 C. J. 622, 638, 653, 668, 673. One's reputation cannot be
proved or disproved by specific instances. 22 C. J. 471, 481.
This court could not undertake to say, as a matter of law, that these prosecutions and
arrests had not caused Snell any humiliation, anxiety and embarrassment, without
encroaching upon the province of the jury, and that, we believe, this court would hesitate to
do. 38 C. J. 445, 450; Leete v. Southern Pacific Co., 37 Nev. 49.
The same identical account for which action was brought in the justice's court and which was
finally determined adverse to Anderson, was the basis of the cross-complaint. It is very
evident that the only purpose of pleading that action was to again try it and parade it before
the jury, but no authority is found for such a pleading. Section 8602 N. C. L.; sec. 8603 N. C.
L., as amended by chap. 148, Stats. 1931; Clark v. Taylor (Cal.), 27 P. 860; Lowe v. Superior
Court (Cal.), 134 P. 190; 1 Bancroft Code Pleading, 649.
57 Nev. 78, 87 (1936) Anderson v. Snell
OPINION
By the Court, Ducker, C. J.:
This is an action to recover damages for malicious prosecution and for an assault and
battery.
The complaint alleges, in substance, as the first cause of action that on the 14th day of
August 1933, at the city of Las Vegas, Clark County, Nevada, the defendant made an affidavit
to the effect that the plaintiff had embezzled from him and converted to his own use the sum
of $146.96, with the intention then and there to defraud defendant of said sum; that thereafter
the defendant caused said affidavit to be filed with the justice of the peace of Las Vegas
township, and filed therewith a complaint against plaintiff; that the allegations in the
complaint and affidavit are untrue, and the defendant knew at the time the same were untrue;
that they were maliciously and wantonly made for the purpose of procuring an order for the
arrest of plaintiff; that in making the affidavit the defendant acted without probable or any
cause of justification; and that, pursuant to the complaint, affidavit, and demand made in that
behalf, said justice of the peace made an order for the arrest, upon which plaintiff was
arrested and imprisoned and thereafter was required to give bail to obtain his release.
Thereafter the said action was dismissed and plaintiff fully acquitted of said crime; that since
that time defendant herein has not further prosecuted said complaint, but has abandoned the
same; that by reason of such false accusations, arrest, and imprisonment the plaintiff was
injured in character, his person, and greatly humiliated thereby; and that his good name and
reputation have been injured, and as a result thereof he has suffered great mental anguish,
grief, worry, and humiliation to his actual damage in the sum of $20,000.
The complaint in the justice's court, a copy of which is made a part of the complaint in this
action, charges plaintiff with having embezzled the sum of $146.96, and prays for the
recovery thereof. The said affidavit, a copy of which is also made a part of the complaint
herein, likewise charges the plaintiff herein with such embezzlement.
57 Nev. 78, 88 (1936) Anderson v. Snell
copy of which is also made a part of the complaint herein, likewise charges the plaintiff
herein with such embezzlement.
As a second cause of action the complaint herein alleges in substance that, on the 1st day
of July 1933, at Boulder City, in said Clark County, the defendant herein, in the presence of
many people, caused certain of his employees to hold the hands and arms of the plaintiff
herein, and restrain him; that while being so held and restrained the defendant maliciously,
violently, wantonly, and without cause climbed upon the plaintiff's back and kicked him in
and upon and about his back, struck him with his fists about the head, face, eyes, and neck,
tore plaintiff's clothing from his person, pulled his hair, scratched his face, swore at plaintiff,
called him vile and indecent names, and otherwise abused plaintiff; and that as a result
thereof the plaintiff became ill, bruised, and sore about the head, face, eyes, and body, and
suffered great physical pain therefrom and suffered great humiliation, to his damage in the
sum of $10,000. Exemplary damages are claimed on both causes of action.
The defendant herein answered the complaint, in which answer the making of the affidavit
and the filing of the complaint in the justice's court, the arrest of plaintiff, and the dismissal of
the action are admitted. The other allegations of the first cause of action, the assault and
battery, misconduct and effect thereof alleged in the second cause of action, are denied. A
cross-complaint filed with the answer was struck out by order of the court. The jury returned
a verdict in favor of the plaintiff, fixing the amount as $3,600, for actual damages, and $5,000
exemplary damages on the first cause of action, and $100 for actual damages and $500
exemplary damages on the second cause of action. Defendant made a motion to vacate and
set aside the verdict of the jury and to grant a new trial. In its decision on the motion the court
ordered that, if plaintiff shall remit the amount of $6,100 on or before October 15, 1935, a
new trial is denied, and the verdict of the jury for the residue, to wit, $3,100, shall stand
as the verdict on which a judgment is to be entered herein.
57 Nev. 78, 89 (1936) Anderson v. Snell
shall remit the amount of $6,100 on or before October 15, 1935, a new trial is denied, and the
verdict of the jury for the residue, to wit, $3,100, shall stand as the verdict on which a
judgment is to be entered herein. And ordered further that, in the event plaintiff did not so
remit, then the verdict of the jury on the first cause of action is set aside and defendant
granted a new trial on the issue raised by the allegations contained in the first cause of action
and the answer thereto.
The motion to set aside the verdict upon the second cause of action and grant a new trial
was denied.
Within the time designated by the court plaintiff filed a relinquishment of $6,100 of the
verdict.
Appellant makes the following assignment of errors: (1) Insufficiency of the evidence to
justify a verdict, and that it is against law; (2) errors in law accruing in the trial and excepted
to by defendant; (3) excessive damages appearing to have been given under the influence of
passion and prejudice; (4) irregularity in the proceedings of the court by which defendant was
prevented from having a fair trial.
1, 2. Most of the contentions made under these assignments were considered by the trial
court in passing on the motion for a new trial, as we perceive from the written opinion
appearing in the record, and determined correctly. We find evidence in the record sufficient to
justify a verdict for the respondent on both causes of action. We need not state it in detail.
Generally, it consisted of the testimony of respondent and his wife. In addition, as to the first
cause of action, the affidavit, complaint, and order of arrest of respondent in the justice's
court were introduced in evidence. His arrest, imprisonment, and the dismissal of the action
were also proved. The court correctly instructed the jury as to the essential elements of a
cause of action for malicious prosecution. Respondent's evidence, tended in a substantial way
to prove all of these elements. Appellant relies on the advice of counsel as a defense to the
cause of action for malicious prosecution.
57 Nev. 78, 90 (1936) Anderson v. Snell
malicious prosecution. In support of this defense, he testified as to what facts he laid before
his private counsel in regard to the action in the justice's court, and that he acted on his advice
in signing the affidavit and complaint. One of his counsel testified as to what facts appellant
disclosed to him and that he advised appellant to consult the district attorney, for he believed
embezzlement had been committed; that appellant said that he did not want to do that because
he did not want to put respondent in jail, but all he wanted was his money; and that witness
then told him, if he did not wish to institute a criminal action, a civil action might obtain his
money for him. Advice of counsel after a full disclosure of all the facts, acted upon in good
faith, would have been a defense to the first cause of action. Ricord v. Central Pac. R. R. Co.,
15 Nev. 167; McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37; Dunlap v. New Zealand F. & M.
Ins. Co., 109 Cal. 365, 42 P. 29; 38 C. J. 508. But there is evidence on the part of respondent
as to what the facts were out of which the controversy grew. This evidence, if believed by the
jury, warranted it in concluding that appellant's recital of the case to his counsel did not
include all of the material facts, and from which it could also have reasonably concluded that
he did not in good faith act upon his counsels' advice. It was the province of the jury to
determine what the real facts were as to this defense. This being so, we may not disturb its
verdict on this account. McNamee v. Nesbitt, supra.
3. Under the second assignment it is contended that the court erred in sustaining the
objection to the following question asked of respondent on cross-examination: Q. Isn't it a
fact that Margaret S. Thatcher filed a suit in the Third Judicial District Court in and for Salt
Lake County, State of Utah, on the 8th day of May, 1931, wherein she charged you with some
$68,000 worth of conversion out of your father's estate? We think the court exercised sound
discretion in its ruling. Nothing concerning any such matter was brought out on direct
examination.
57 Nev. 78, 91 (1936) Anderson v. Snell
concerning any such matter was brought out on direct examination. The filing of such a suit,
if proved, would have no tendency to contradict or discredit respondent's testimony. It is also
insisted under this assignment that the court erred in sustaining an objection to an exemplified
copy of a complaint filed in the Third judicial district court in and for Salt Lake County, State
of Utah, by Margaret Thatcher, offered in evidence by appellant. It appears that Margaret
Thatcher is sister of respondent. The document offered relates to the same matter concerning
which it was sought to question respondent, as stated above. It was offered in evidence on the
ground that it would affect his credibility. We do not think so. There was no error in the
ruling.
In its opinion on the motion for a new trial the court held that the evidence did not justify
the imposition of exemplary damages on the first cause of action, and that the sum of $2,500
would fully compensate the defendant for the injuries he received by reason of the matter
therein alleged. The remission by the respondent of $6,100 under the order of court therefore
removed any question of exemplary damages on the first cause of action.
4. We have reviewed the evidence tending to support this cause of action and are not
prepared to say that the sum of $2,500 for compensatory damages is excessive. The
substantial reduction of the amount fixed by the jury for compensatory damages on the first
cause of action cured any mistake the jury might have made as to the amount he was entitled
to recover.
5. The damages fixed by the jury on the second cause of action, both actual and exemplary,
are not excessive. Respondent's version of the assault and battery alleged therein must have
been believed by the jury. It shows an unprovoked attack and injury with attending
circumstances of aggravation which justified the jury in imposing both kinds of damage in the
amounts fixed.
57 Nev. 78, 92 (1936) Anderson v. Snell
Appellant's version of the affair was rejected by the jury, and it is not within our province
to disturb their verdict.
6, 7. The fourth assignment of error goes to the action of the trial court in striking the
cross-complaint. The amount sought to be recovered in the cross-complaint was $146.96. The
assignment is without merit. A cross-complaint can be maintained only when the defendant
seeks affirmative relief against a party to an action, relating to or depending upon the contract
or transaction upon which the action is brought, or affecting the property to which the action
relates. Section 8608 N. C. L.
The cross-complaint struck out was for damages on account of respondent converting to
his own use divers sums of money totalling $146.96 belonging to appellant, collected by
respondent, and which he was authorized to collect during three years immediately prior to
the filing of the cross-complaint. The facts alleged therein do not depend upon, nor do they
bear the faintest relation to, respondent's second cause of action, to wit, assault and battery.
As to their relation to the first cause of action set out in the complaint, it is clear that the two
causes of action could not be sustained by the same evidence, and are therefore more logically
the subject of independent actions. Whether respondent owed the money claimed in the
cross-complaint was not an issue involved in the transaction set out in the first cause of
action.
The facts of the cross-complaint may have furnished the motive for the acts charged
against appellant in the first cause of action. But that alone is not sufficient to bring into
operation the principle governing the maintaining of a cross-complaint; that is, that it is just
and equitable that the matter alleged therein should be settled in the pending action.
The judgment and order denying the motion to set aside the verdict of the jury and grant a
new trial should be affirmed.
It is so ordered On Petition for Rehearing
57 Nev. 78, 93 (1936) Anderson v. Snell
On Petition for Rehearing
March 5, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 93, 93 (1936) In Re Miller
In Re MILLER
No. 3095
July 2, 1936. 59 P. (2d) 9.
1. Attorney and Client.
Evidence held to establish that attorney was negligent and careless in handling business of client who
paid $25 on account of initial costs in foreclosure proceeding and for whom attorney failed to foreclose
mortgage and refused to return such amount, requiring suspension of attorney for period of eight months
and until further order of supreme court.
2. Attorney and Client.
In disciplinary proceeding local administrative committee and board of governors of state bar as well as
supreme court are required to consider accused attorney's past record as to proceedings wherein
disciplinary measures have actually been prescribed.
Original proceeding on the petition of A. Grant Miller, attorney at law, for review of the
action of the Board of Governors of the Nevada State Bar finding petitioner guilty of
unprofessional conduct and recommending that his license to practice law be revoked, and
that he be disbarred from practicing law. Petitioner suspended for eight months.
A. Grant Miller, pro se.
Geo. A. Whiteley, for State Bar of Nevada.
(Submitted on oral argument, without briefs).
OPINION
By the Court, Taber, J.:
Petitioner, A. Grant Miller, has instituted this proceeding for a review by this court of the
action of the board of governors of Nevada state bar finding him guilty of unprofessional
conduct and recommending that his license to practice law be revoked, and that he be
forever disbarred from practicing law in this state.
57 Nev. 93, 94 (1936) In Re Miller
board of governors of Nevada state bar finding him guilty of unprofessional conduct and
recommending that his license to practice law be revoked, and that he be forever disbarred
from practicing law in this state.
On June 17, 1933, Thomas McCann consulted petitioner with the idea of having the latter
commence suit to foreclose a $2,500 mortgage. According to Mr. McCann, the only
conversation on this occasion, aside from his directing petitioner to commence the
foreclosure suit, related to the $25 payment made by him to petitioner, in currency, for which
petitioner wrote out and handed Mr. McCann a receipt in the following words and figures:
Reno, Nev., June 17/33. Recd from Thos. McCann the sum of twenty-five dollars acct initial
costs McCann v. Bathurst. A Grant Miller. McCann's testimony is to the effect that
petitioner told him this money was for filing the suit and paying sheriff's fees and mileage for
serving the papers. Petitioner admits that Mr. McCann talked to him on the aforesaid date
about the foreclosure suit, but testifies that in the conversation he informed Mr. McCann that
he did not think the mortgaged property was worth much, that he did not think anybody
would buy it, and that McCann had better get his money out of the mortgagor if he could. To
this, according to petitioner, Mr. McCann replied that he would like to get his money, but did
not see any chance of doing so, and thought best to foreclose, as he thought he could make
some money out of the place if he got it. Petitioner says he explained to McCann that the
latter would have to bid in the property and pay all the expenses and fees himself. Petitioner's
version of the remainder of that conversation is as follows: He wanted to know how little it
would cost to start it, and I said, It will cost you probably around three hundred dollars
altogether.' Well,' he said, I do not want to pay out the money now, but how much would it
actually cost to start it?' I told him, About twenty-five dollars.' I said, Do you want to start it
right away?' He said, If you can get any money out of her I would like to have you get it if
she can pay that interest and start it a little later.'" Petitioner testifies that the $25
payment was not for clerk's and sheriff's fee, but was simply an advance payment on
petitioner's attorney's fee.
57 Nev. 93, 95 (1936) In Re Miller
you get it if she can pay that interest and start it a little later.' Petitioner testifies that the $25
payment was not for clerk's and sheriff's fee, but was simply an advance payment on
petitioner's attorney's fee.
The respective versions of what happened in 1933, after June 17, will now be stated in
substance, and in narrative form:
Thomas McCann: At the time I gave him (petitioner) the suit, the home loan came up. Of
course, then I had to stay back for awhile, couple of months, to find out whether I would give
her (mortgagor) a chance, and it went on and went on, and I went to California. I thought no
use to bother. He had the papers, so I didn't have anything to say then until after I came back
from California. I can't exactly approximate the time of my returndidn't pay much attention
to it, but anyhow mortgagor's application had been on file with the home loan about two
months. From June 17, 1933, until November 6 of that year, I made frequent demands upon
him to bring the suit. On November 5, 1933, I went down to see him, and asked if he was
going to file the papers. He said, Yes, I am going right to work at them. He said the home
loan had told him that mortgagor's application had not been disapproved. I told him I thought
it had, because the home loan man had told me so the day before. I left him and went to see
the home loan man, and he told me they could do nothing with it. I told Miller the loan
wasn't going through, and he said, I will see about it. As I was coming from the home loan
office, Miller called me from across the street, and I went across to where he was. He said
that he had just been talking to one of the home loan men, and that mortgagor's application
had not been disapproved. I told him that it had been disapproved, and for him to start the
suit. I said, We have fooled long enough; then he said, I will get right at it and will call
you up when I get it through; then I went home and talked to my wife, telling her that, from
the way Miller acted, I didn't think he was going to do anything.
57 Nev. 93, 96 (1936) In Re Miller
Next morning I went down and demanded the note and mortgage back from him. This was on
November 6, 1933. He gave me the papers, and then I spoke to him about the $25 I had
handed him on June 17. He said he would have to see a lawyer, and also asked me if I didn't
think that what he had done for me was worth something. I told him that he hadn't done
anything for me yet, outside of a lot of talking. I took the note and mortgage to Mr. Barry,
who proceeded to foreclose the mortgage. Mr. Miller never has paid back that $25.
Afterwards I went to see Mr. Cooke, chairman of the local administrative committee of the
state bar, and made a statement of the facts regarding this $25 item. This was done with the
view of having proceedings taken against Mr. Miller for professional misconduct. Nothing
was said about the home loan when I first gave the papers to Mr. Miller, but it wasn't very
long afterwards, a matter of days or weeks, until the home loan came into the situation. Mr.
Miller did not, in any of his talks, inform me that he had been suspended by the state bar.
When I gave him the $25, he was going right ahead and commence the suit. The mortgagor
was one of the first persons to file an application for a home loan, and she informed me that
she had filed the application, and I agreed then to wait for awhile before foreclosing. I had to
wait. There was no way of getting it throughcouldn't do anything. Mr. Miller told me he
didn't think we could do anything; and circulars were issued, telling about it. When mortgagor
informed me that she had made application for a home loan, I agreed to let the foreclosure
matter ride until such time as she could get the loan. It was after the man in the home loan
office told me they could not do anything with her application that I went to see Mr. Miller,
and told him to proceed with the foreclosure suit. He didn't do anything about it. I think this
was some time in November, and finally I went and got the note and mortgage back and took
them to another attorney. On June 17 mortgagor's note was overdue about six months. I had
been after her more or less persistently, and only went to an attorney as the last hope.
57 Nev. 93, 97 (1936) In Re Miller
or less persistently, and only went to an attorney as the last hope. There was no other place to
go.
A. Grant Miller, petitioner: After Mr. McCann agreed that I should first try to get some
money out of the mortgagor before commencing suit, I wrote her a letter, and she came in and
talked about the home loan proposition, saying she would pay Mr. McCann if she could get a
home loan. I then saw Mr. McCann, and at first he objected, as the home loan organization
had not been completed as yet in Reno. I then proceeded to get some definite information
about the home loan and about the bonds the mortgage holder would be expected to take, but
at first Mr. McCann refused to take the bonds and said he wanted the property sold so we
could make the money out of it. Then I said, In that case, the only thing to do is to go
ahead and foreclose. Mr. and Mrs. McCann and I drove out to see mortgagor, and, after
talking with her, Mr. McCann agreed that, if she could get a home loan, it was all right, and
that he would not foreclose, and so it ran along for awhile. I helped mortgagor make out her
papers, went with her to the home loan office and tried to get the loan through. She reported
to me that they were going to make the loan, and I so reported to Mr. McCann, but there was
considerable delay trying to get the appraisers, and she had to make out some more papers
and they kept telling her they were going to make the loan. So it went along for some
considerable time. In the meantime, another matter came up: mortgagor had a claim against
the highway department, growing out of the fact that the route of the highway had been
changed in such a way as to leave her property some distance away from the new route. She
had made some kind of arrangements with the department for the removal of her buildings to
the newly established highway. And I think they paid her some money too, but she still had a
claim against them, and told me about it. I talked to Mr. McCann about this highway matter,
and he told me if I could get her to pay the three months' interest out of that highway money,
he would not foreclose, and would "let it ride for awhile longer."
57 Nev. 93, 98 (1936) In Re Miller
he would not foreclose, and would let it ride for awhile longer. The three months' interest
was past due, and the next three-month period was almost due. I told mortgagor what Mr.
McCann had said. And then there was a dispute between her and the highway commission as
to how much they would pay her. Finally they reached an agreement, and I reported that fact
to Mr. McCann, and it was agreeable to him. Then that ran along for some time and I visited
the highway department up here and talked to them about it, and I advised mortgagor to
accept the amount they offered to pay her, which was insufficient to even pay these two
interest payments and leave her anything, and she wanted to know how long McCann would
hold off on the foreclosureshe would not trust him. I said, I do not know. He has just told
me to let it go and stave it off for awhile, and you will have that much paid on it if your home
loan goes through. It will be all right.' Then she agreed to do that. Then Mr. McCann told me
that he understood the home loan had been disapproved. I told him that I had no report on it.
Then I went to the home loan office. They told me no order or action had been taken on it
either for approval or disapproval. I then reported to Mr. McCann, and he insisted that the
application for a loan had been disapproved, and that they had told him so. He went on to say
that he would go down to the home loan office himself. It finally ran along for some time, and
he came in demanding his papers. Nothing was said about the $25 at that time. On a later
occasion he asked me about the $25. I asked him if he thought he had anything coming. He
replied that he had paid me $25. I told him that he ought to pay me more than $25. He said he
thought he had it coming to him. I said, If you have something coming, all right. We will
see. He said he would see a lawyer, and I said, If the bar association thinks I should repay
that $25 I will do that, but not otherwise, and that is all there is to it. I wanted to have the
mortgagor as a witness and telephoned all around last night every place and to every party
that knows her, but she has moved away from the place where the mortgaged premises
were, and I have not been able to find her. "I made the proposition in the letter to the
committee and I got a letter back from the committee, saying in answer thereto that I pay
the $25 on or before May 1, 1934, but I did not take advantage of that as I wanted a
chance to tell the committee my side of it and for that reason I held it off.
57 Nev. 93, 99 (1936) In Re Miller
and to every party that knows her, but she has moved away from the place where the
mortgaged premises were, and I have not been able to find her. I made the proposition in the
letter to the committee and I got a letter back from the committee, saying in answer thereto
that I pay the $25 on or before May 1, 1934, but I did not take advantage of that as I wanted a
chance to tell the committee my side of it and for that reason I held it off. I did not think it
was right, and I do not think it is right now to pay them the $25, because he retained me to
bring the foreclosure suit, and he instructed me to get the money if I could the other way, and
I went out there three timeswent out twice, I think, with him, and once with him and his
wife, and another time with my son to see the mortgagor, and I saw her and I guess she called
me up on the telephone a dozen times, and I telephoned to her, and I took this matter up with
the home loan company repeatedly and I called and visited and helped her with the papers. I
also took the matter up with the highway department and worked with that, and I do not think
it would be right from any point of view to pay him $25, and let him get off without paying
for the lawyer's services. I will, however, say further after considerable evidence and hearing,
if the board says I shall pay it, of course I will pay it. I was suspended from the practice of
law in Nevada from September 18, 1933, until March 18, 1934. I figured that, if Mr. McCann
insisted on going ahead with the foreclosure, I was going to turn it over to some other lawyer.
The services I rendered for Mr. McCann were performed from the time he came to see
mechiefly in July and August of 1933. I was never present before the local administrative
committee to give my version of this McCann matter. Mr. McCann asked me only once to
return the $25. I have not returned it. In fact, I think I ought to sue him for an attorney's fee. I
think the mortgagor got some money from the highway department, but I do not know what
she did with it. She wanted something like $800, but, as I remember it, I think she finally
took about $300.
57 Nev. 93, 100 (1936) In Re Miller
think she finally took about $300. In what I did for her, I was only helping out Mr. McCann.
It was his request that I should help on the home loan, but I was not representing mortgagor
as her attorney in any way. At Mr. McCann's request, I helped her out and tried to get the
money for him.
On February 20, 1934, the chairman and secretary of the local administrative committee,
district No. 5, filed a complaint against Mr. Miller, charging him with misconduct in office,
consisting in this: That, when he was engaged by Mr. McCann to foreclose the mortgage
hereinbefore mentioned, he accepted the employment with the understanding that the court
was to set the attorney's fee; that at the time of his said employment he informed Mr. McCann
that the costs would be $25, which sum was then and there paid, for which Mr. Miller wrote
out and handed Mr. McCann a receipt, a copy of which has already been set forth herein; that
from June 17, 1933, until November 6, 1933, Mr. McCann made frequent and urgent
demands upon Mr. Miller to commence said foreclosure suit; that finally on November 6,
1933, Mr. McCann demanded and received from Mr. Miller the said note and mortgage, and
at the same time demanded that Mr. Miller pay back the $25 which had been advanced him as
costs, but that Mr. Miller refused, and ever since has failed and refused to return said cost
money to Mr. McCann. On February 21, 1934, a certified copy of said complaint was served
on Mr. Miller, along with a notice to answer the complaint within ten days from date of
service. On March 2, 1934, Mr. Miller filed an answering statement of fact, in which he
offered to repay the $25 to Mr. McCann if in the opinion of the bar committee he should do
so. On April 13, 1934, the secretary of the local administrative committee advised Mr. Miller
by letter that his offer to repay the $25 to Mr. McCann was acceptable, on condition that the
amount be paid on or before May 1 of that year. If this is impossible due to the fact that the
whereabouts of Mr.
57 Nev. 93, 101 (1936) In Re Miller
of Mr. McCann is unknown, then you are to make payment to me as secretary of the local
administrative committee, at which time the formal charges now pending against you before
this committee will be dismissed. On May 17, 1934, the secretary wrote another letter to Mr.
Miller, in which was inclosed a copy of the aforesaid letter of April 13. Said letter of May 17
advised Mr. Miller that the secretary had been instructed by the committee to inform him that
his offer to repay the money to Mr. McCann was acceptable, and that, in view of the fact that
the letter of April 13 might have gone astray, the secretary was again writing to advise him
that payment of the $25 must be paid directly to the secretary at his offices on or before May
20, 1934, and that, if the money was received by that time, formal charges then pending
against him would be dismissed by the committee. The money not having been paid, Mr.
Miller was, on May 31, 1934, served with written notice that the hearing of the charges
pending against him would be had at a designated hour and place on June 11, 1934. Mr.
Miller did not appear on said last-mentioned date, nor did he communicate in any manner
with the committee. The hearing was had on the date set, June 11, Mr. McCann testifying. On
August 3, 1934, the local administrative committee mailed to Mr. Miller and filed with the
secretary of the board of governors of the state bar of Nevada its findings of fact, conclusions
of law, and recommendations, wherein Mr. Miller was adjudged guilty of unprofessional
conduct, substantially as alleged in the complaint, and it was recommended that his license to
practice law be revoked, and that he be forever disbarred from the practice of law in Nevada.
On October 23, 1934, Mr. Miller filed with the board of governors of the state bar a statement
in opposition to the report of the local administrative committee. In this statement, which was
verified, he said, among other things, that no hearing whatever has ever been had on the
complaint herein before the said local administrative committee or anywhere; that no
notice of any hearing has ever been given this defendant, and this defendant therefore
demands a hearing of the above entitled matter."
57 Nev. 93, 102 (1936) In Re Miller
said local administrative committee or anywhere; that no notice of any hearing has ever been
given this defendant, and this defendant therefore demands a hearing of the above entitled
matter. On October 27, 1934, the secretary of the state bar notified Mr. Miller that the board
of governors had considered his said statement and found it defective in two particulars,
which were specified, and referred him to rule XXXII of the rules of procedure governing
local administrative committees. In the same letter, the secretary notified Mr. Miller that the
meeting of the board of governors held on October 26 had been recessed to November 16,
1934, for the purpose of hearing the trial de novo or additional testimony, on condition,
however, that you file a satisfactory application with the undersigned as secretary on or before
November 3, 1934. If no such satisfactory application is filed by November 3, the board will
on November 16 take final action in accordance with the recommendations of the local
administrative committee. Mr. Miller did not file any application with the secretary on or
before November 3, 1934, and on November 16 of that year the board of governors met and
ordered that the recommendations of the local administrative committee be approved and
adopted by the board. While said meeting was still in session, however, Mr. Miller handed
the secretary an affidavit in which he reiterated that no hearing had ever been had in the
above-entitled matter before the local administrative board or council. In the same affidavit
he stated that the reason why certain evidence in his behalf had not been presented to the local
administrative committee was that no hearing was ever had before said council, and affiant
never had an opportunity to present it. Upon receipt of this affidavit the board of governors
rescinded its action approving and adopting the recommendations of the local administrative
committee, and on November 17, 1934, proceeded with a hearing de novo, at which Mr.
Miller testified in full. In the course of his testimony Mr. Miller said that he could not tell the
board why he did not appear before the local administrative committee on June 11, except
that he had received another notice about the same time in an entirely different
proceeding, the Woods estate, and that he must have confused that notice with the local
administrative committee's notice that the trial of the charges against him would be had
on June 11. "I could have been here just as well as not on the 11th, I know, but I do not
know why, but I was sick in bed for a week or two, but I was out at times."
57 Nev. 93, 103 (1936) In Re Miller
the local administrative committee on June 11, except that he had received another notice
about the same time in an entirely different proceeding, the Woods estate, and that he must
have confused that notice with the local administrative committee's notice that the trial of the
charges against him would be had on June 11. I could have been here just as well as not on
the 11th, I know, but I do not know why, but I was sick in bed for a week or two, but I was
out at times. Referring to the two letters written him by the secretary of the board of
governors, stating that his offer to pay pack the $25 was accepted, and that, upon payment
being made, the charges against him would be dismissed, Mr. Miller testified, in response to a
question as to whether he had ever answered either of those letters, No, I just threw them
into the waste basket, I suspect. At this hearing Mr. Miller was asked the following question:
At any rate you can appreciate at least, Mr. Miller, that you misapprehended the two written
notices which were sent to you and that they both were perfectly clear? In answer to that
question he testified, Yes, I might admit that. And they might charge it up to carelessness if
they want to.
At the conclusion of the said hearing on November 17, 1934, the board of governors made
its findings of fact in substantial accordance with the charges made in the complaint, and in
its written findings of fact, conclusion of law, and recommendation, certified to by its
secretary and filed in this court November 24, 1934, went on to say:
That from the foregoing Findings of Fact, and due to the repeated offenses on the part of
accused and the numerous occasions on which he has been before the Local Administrative
Committee, this Board and the Supreme Court for disciplinary action, together with the
known and confessed irresponsible method of practicing law, which endangers the general
public and those members who may select him as their counsel, the Board of Governors
makes the following Conclusion of Law and recommendation:
57 Nev. 93, 104 (1936) In Re Miller
Governors makes the following Conclusion of Law and recommendation:
Conclusion of Law
That said defendant has, in this matter, failed to foreclose a mortgage for Thomas
McCann, or to return the costs of Twenty Five Dollars ($25.00) which was paid for that
purpose, and that further, A. Grant Miller failed to comply with his offer as outlined in his
answer on the Committee's acceptance and time given by the Committee to pay the same, and
as such, is guilty of unprofessional conduct warranting his being disbarred therefor.
Then follows the recommendation of the board of governors to this court that it revoke Mr.
Miller's license to practice law and forever disbar him from such practice in the State of
Nevada.
In the interesting case of In re Hosford, 62 S. D. 374, 252 N. W. 843, 848, in which the
accused was disbarred, the court said that to adequately and fairly determine any given case,
and to properly discharge its admitted function, both as to the individual charged and to the
public, the court should have all of the reliable information available to it through legitimate
channels, and should carefully consider all of such information in conjunction with all of the
circumstances of the situation.
In the instant case the testimony in a number of particulars is uncertain and incomplete.
For example, Mr. McCann was asked: In the complaint that is filed here it is stated that from
the 17th day of June, 1933, until November 6th, 1933, you made frequent demands upon him
to bring the suit. * * * That is a fact, is it? A. Yes, sir. But the record is silent as to specific
times or occasions when such demands were made, with the exception that Mr. McCann did
testify that, when the mortgage and note were handed to Mr. Miller on June 17, 1933, the
latter was directed to commence suit to foreclose the mortgage, and further testified that on
November 5, 1933, he demanded that Miller proceed immediately to file the suit. It appears
that Mr. McCann went to California, but the record is not at all satisfactory as to when he
went or when he returned.
57 Nev. 93, 105 (1936) In Re Miller
went to California, but the record is not at all satisfactory as to when he went or when he
returned. We are thus, for the most part, left to infer, as best we can, when McCann made the
frequent demands upon Miller to commence the foreclosure suit. Again, the record is
uncertain and unsatisfactory as to when the home loan office learned that mortgagor's
application for a loan would not be granted. No one from the home loan organization was
called to testify regarding this matter. For some reason, not disclosed by the record, Mr.
McCann was not recalled to testify regarding a considerable number of matters testified to by
Mr. Miller, with the result that the latter's testimony in a number of particulars remains
uncontradicted.
1. In our opinion, the conclusion reached by the local administrative committee and the
board of governors, that the $25 was handed Mr. Miller for the specific purpose of paying
clerk's and sheriff's fees, was right. Besides Mr. McCann's positive testimony in this regard,
there is Mr. Miller's receipt acct initial costs, and the further circumstance that $25
represents approximately the amount of the clerk's fees, plus the sheriff's fees and mileage for
serving the summons. On the other hand, the testimony of Mr. Miller indicates that he may
have performed services for Mr. McCann which were reasonably worth $25. Petitioner would
be in a better position in urging the value of his services, had he been diligent in looking after
his client's business. We think the testimony, though in some respects uncertain and
incomplete, is sufficient to clearly show that petitioner was negligent and careless in handling
the business intrusted to him by Mr. McCann. This is to some extent confirmed by petitioner's
own testimony, for, after testifying that Mr. McCann approved the idea of not foreclosing for
awhile, and that he (Miller) so reported to the mortgagor, Mr. Miller went on to say that Mr.
McCann told him he understood that mortgagor's application for the home loan had been
disapproved. A little later according to Mr. Miller, Mr. McCann again insisted that the
application had been disapproved.
57 Nev. 93, 106 (1936) In Re Miller
that the application had been disapproved. Then, according to petitioner, It finally ran along
for some time and he came in demanding his papers. It will be remembered that the
six-month period of Mr. Miller's suspension from the practice of law in this state under the
order of this court began on September 18, 1933. If we concede, without deciding, that any
services he may have performed for Mr. McCann after September 18, 1933, did not constitute
practicing law, the very fact that after the last-mentioned date he could not commence the
foreclosure suit imposed a special duty upon him to diligently and definitely ascertain the
status of the mortgagor's application for a home loan, and to keep in touch with Mr. McCann
in order to learn how long the latter was willing to refrain from having the foreclosure suit
commenced. The fact that Mr. McCann for some time before he demanded his papers back on
November 6, 1933, was insisting that the mortgagor could not negotiate the home loan, gives
support to his testimony that he made frequent demands upon Mr. Miller that the latter
proceed with the foreclosure suit.
Mr. Miller's conduct in consigning to the wastebasket the two letters from the local
administrative committee informing him that all charges against him would be dismissed if
he would repay the $25 in indefensible. Upon receipt of the first of those letters, he should
either have promptly repaid the $25 or requested a hearing. He not only did neither, but, after
receiving notice that the hearing of the charges against him would take place on June 11,
1934, utterly ignored the notice and failed to take advantage of the opportunity then afforded
him to give his version of the whole affair. His explanation of his conduct in this particular is
unsatisfactory. Furthermore, in his statement in opposition, filed August 23, 1934, Mr. Miller
stated positively that no hearing on the complaint had ever been had before the local
administrative committee, and that no notice had ever been given him. In the verification to
said statement, he swore that its contents were true of his own knowledge.
57 Nev. 93, 107 (1936) In Re Miller
knowledge. Again, on November 16, 1934, more than five months after the hearing on the
charges against him had actually taken place, in an affidavit filed with the board of governors,
he swore positively that no hearing was ever had before the local administrative committee,
and that he had never had an opportunity to present his evidence. While such senseless
statements, in direct contradiction of the truth, could not deceive either the local
administrative committee or the board of governors, they certainly do not reflect any credit
upon petitioner.
Besides defaulting at the hearing on June 11, 1934, and contemptuously throwing the
secretary's letters in the wastebasket as aforesaid, petitioner also ignored the secretary's letter
of October 27, 1934, and it was not until the board of governors had already taken action on
November 16, 1934, recommending his disbarment that he presented the affidavit
hereinbefore mentioned, whereupon the board patiently and considerately rescinded its action
and proceeded to give him a hearing on the following day. At this hearing Mr. Miller told
how he had tried the night before to locate the mortgagor, as he believed that her testimony
would corroborate some of his. It does not appear, however, that, had he not ignored the
hearing before the local administrative committee on June 11, 1934, he would not have been
able to avail himself of her testimony at that time. It may also be observed here that there is
no satisfactory showing that Mr. Miller made any diligent effort to persuade the mortgagor to
pay over to Mr. McCann the money she received from the highway department.
It is plain that a mere reprimand or censure would not be adequate discipline, in view of
the facts and circumstances disclosed by the record in this proceeding. But we have had no
little difficulty in determining whether petitioner should be disbarred as recommended by the
local administrative committee and the board of governors, or suspended from the practice of
law. Notwithstanding we have not had the benefit of any brief, nor the citation of any
authorities whatsoever when this proceeding was orally argued, we have, because of its
importance as well to the petitioner as to the state bar and the public, patiently
considered a large number of cases, of which but a few will be mentioned here.
57 Nev. 93, 108 (1936) In Re Miller
nor the citation of any authorities whatsoever when this proceeding was orally argued, we
have, because of its importance as well to the petitioner as to the state bar and the public,
patiently considered a large number of cases, of which but a few will be mentioned here.
In the case of In re Bond, 168 Okl. 161, 31 P. (2d) 921, the accused attorney received from
his client at cost deposit for the purpose of instituting an action in the justice's court. He failed
to file the case, but falsely represented to his client that the case had been filed. When the
client learned that the case had not been filed, he demanded of the attorney that he return the
$5. This the attorney refused to do, unless the client would pay him $10 for services in
attempting to effect a settlement. The attorney was disciplined by suspension from practice
for ninety days.
In Rehart v. State Bar of California, 217 Cal. 57, 16 P. (2d) 993, the attorney was
employed to probate an estate for an agreed fee of $150, $50 of which was paid immediately.
After letters of administration issued, client paid the attorney $30 to cover annual premium on
a surety bond, but the attorney failed to remit said premium. Later client paid the attorney the
remaining $100 of his fee, but he never completed the probate of the estate or rendered any
further services for her. The board of governors of the state bar recommended suspension
from practice for three months, and the supreme court approved the recommendation and
suspended the attorney accordingly.
In the case of Matter of Davidson, 233 App. Div. 311, 252 N. Y. S. 767, the attorney
complained of had been retained to bring certain actions to collect damages for physical
injuries to clients. He failed to commence the actions, and made a number of false statements
to clients representing that the actions had been commenced. The court suspended the
attorney from practice for six months.
In the case of In re Moller, 244 App. Div. 819, 279 N. Y. S. 779, the court did nothing
more than censure the accused attorney after finding that he had "displayed gross
carelessness and a reprehensible indifference to his client's interests, as he has to his own
in this proceeding before the bar association and the official referee as well as in this
court."
57 Nev. 93, 109 (1936) In Re Miller
the accused attorney after finding that he had displayed gross carelessness and a
reprehensible indifference to his client's interests, as he has to his own in this proceeding
before the bar association and the official referee as well as in this court. The court
concluded its opinion as follows: He might, to some extent, relieve himself of the effect of
this censure by returning to his client the sum of $55 which, although unearned, he retains.
In Ring v. State Bar of California (Cal. Sup.), 47 P. (2d) 704, the accused attorney had
been employed in 1927, and had received advances for costs and fees in the sum of $1,250, of
which $153.48 went for costs. In February 1932, another attorney was substituted to close the
estate. Very few services were performed by petitioner (accused) beyond the preliminary
steps of administration. No inventory and appraisement was ever filed by him. A $100 bond
premium was paid yearly by petitioner's client during all of the years that administration was
delayed. Petitioner's statutory fee, to which he would have been entitled for probating and
closing the estate, was $735. The remainder of the money he claimed as compensation for
extraordinary services. He did not appear at the hearing before the local administrative
committee or before the board of governors of the state bar. He claimed he had never received
notice of the various hearings, though the record showed due service of the original order to
show cause. He contended that, by reason of his absence from the various hearings, his
defense had never been presented. He was already under suspension for two and one-half
years for several previous acts of misconduct. It appeared that for several years petitioner had
been gravely ill, and for a large part of the time was confined to the Veteran's hospital. The
period of petitioner's prior suspension had not yet expired and would not until the end of
January 1936. The supreme court suspended petitioner from practice for one year from the
making of the order on August 1, 1935.
57 Nev. 93, 110 (1936) In Re Miller
In re Disbarment of McCann, 181 Wash. 183, 42 P. (2d) 437, was a case in which the
accused attorney was careless and negligent in the handling of the business of certain clients,
and also withheld funds belonging to one client for a period of between two or three years
without advising client or making any accounting, and paid no part of such funds until after
disbarment proceedings were commenced. The board of governors recommended permanent
disbarment, but the supreme court suspended the accused attorney from practice for one year.
In the case of In re Breding, 188 Minn. 367, 247 N.W. 694, accused counsel received for
a woman client a check for $490 payable to him and the client jointly, from which he was to
have a fee of $75. She called at his office on a Saturday after banking hours and indorsed the
check so he could cash it; she agreeing to return on Monday for her $415. She returned on
Monday but was unable to obtain the $415 or any portion thereof. Two weeks later she was
given $100 and she finally obtained the entire amount due her in small installments paid at
the rate of $5, $10, and $15 covering a period of about one year. He also ignored letters and
notices from the chairman of the ethics committee of the state bar association, the secretary of
the state board of law examiners, and the secretary of the ethics committee of Hennepin
County bar association. We quote from the opinion of the court: Counsel is now 54 years of
age. He was admitted to practice in 1906. He has had various connections with other lawyers
and, generally speaking, up to about 1923 has maintained a high standing in his profession
and up to that time was fairly successful. Some time thereafter misfortune seems to have
come upon him and for some reason his practice has largely disappeared. For the last few
years he has been greatly depressed and it may be that he has suffered a type of nervous
breakdown. After pointing out that the ignoring by a lawyer of important letters from those
to whom it is his duty to speak is to be condemned, the court adjudged that the accused
attorney be disbarred, but at the same time ordered that any time after one year he would
be permitted to apply for reinstatement, when it would be necessary, amongst other
things, to satisfy the court that he would have the stability and strength of manhood to
perform his duties as an attorney in the manner that is expected of him by the courts and
by the public.
57 Nev. 93, 111 (1936) In Re Miller
the court adjudged that the accused attorney be disbarred, but at the same time ordered that
any time after one year he would be permitted to apply for reinstatement, when it would be
necessary, amongst other things, to satisfy the court that he would have the stability and
strength of manhood to perform his duties as an attorney in the manner that is expected of
him by the courts and by the public.
In the case of Matter of Rose, 197 App. Div. 365, 189 N. Y. S. 543, the accused attorney
commenced suit for a client to recover damages for injuries sustained. Later the suit was
settled out of court for $175. No part of this sum was turned over to the client until
disciplinary proceedings had been instituted. During the pendency of such proceedings, he
paid $75 to the client, retaining $100 as attorney's fee. In the meantime many demands had
been made upon him by the client that he deduct his attorney's fee and remit balance to client.
This he had failed to do, having mingled the whole $175 with his own funds and used it for
his own purposes. The excuses put forward by the attorney for not remitting to his client
sooner were found to be unsatisfactory. He was suspended from practice for six months.
In a comparatively recent Nevada case where the accused attorney had collected money for
a client and failed for some two years to pay it over in spite of frequent demands by the client
and repeated promises by the accused attorney to make payment, the attorney complained of
was suspended from practice for one year. In re Pilkington, 56 Nev. 295, 49 P. (2d) 965.
Earlier in this opinion it has been pointed out that Mr. Miller did not at any time inform
Mr. McCann that he was under suspension from practicing law for the period beginning
September 18, 1933, and ending March 18, 1934. In this connection attention is directed to
the positive testimony of Mr. McCann that on November 5, 1933, he told Mr. Miller that
mortgagor's application for a home loan had been denied, and for him to start the suit, to
which he replied that he would get right at it and would call McCann up when he got it
through.
57 Nev. 93, 112 (1936) In Re Miller
and would call McCann up when he got it through. This conversation is not denied by Mr.
Miller, and he thus stands in the position of having promised to do what would have
constituted contempt of this court.
This is the third time petitioner has been before this court on charges of unprofessional
conduct. In 1933 he was suspended from practice for six months for unprofessional conduct
in the handling of certain clients' money. Between one and two years later he was again
suspended from practice for the period of six months for delaying the settling up of an estate
for nearly twenty years. In recommending disbarment, the board of governors took into
consideration the two previous suspensions, as well as the numerous occasions on which he
has been before the local administrative committee, this board and the supreme court for
disciplinary action, together with the known and confessed irresponsible method of practicing
law, which endangers the general public and those members who may select him as their
counsel.
2. We do not decide whether the local administrative committee, the board of governors,
and this court are entitled to take into consideration complaints for unprofessional conduct
made against an attorney in proceedings wherein he has not been found guilty, but we are
clearly of the opinion that the local administrative committee and the board of governors, as
well as this court are not only entitled, but in duty bound, to consider an accused attorney's
past record as to proceedings wherein disciplinary measures have actually been prescribed. In
re Sherin, 50 S. D. 428, 210 N. W. 507; Marsh v. State Bar of California, 2 Cal. (2d) 75, 39 P.
(2d) 403; McCue v. State Bar of California (Cal. Sup.), 47 P. (2d) 268; Dalzell v. State Bar of
California (Cal. Sup.), 57 P. (2d) 1300.
If petitioner's past record were blameless and we had now to consider only his carelessness
and negligence in handling Mr. McCann's business and his conduct in connection with the
$25 handed him for clerk's and sheriff's fees, we would not be disposed to impose a very
severe discipline.
57 Nev. 93, 113 (1936) In Re Miller
fees, we would not be disposed to impose a very severe discipline. No corruption or
dishonesty is satisfactorily shown, and the local administrative committee twice offered to
dismiss all the charges if Mr. Miller would pay back the $25 cost money. But we have the
prior suspensions to consider, and petitioner has arrived at an age when he certainly should
amend his ways in the matter of practicing law, if he is ever going to amend them. While
taking into consideration past suspensions, we do not, on the other hand, forget that there was
a time when petitioner, highly gifted as an orator, used his talents unstintingly and without
compensation in furthering the patriotic activities of his country. Such recollections make our
duty in this proceeding an unpleasant one to perform. Permanent disbarment may well be
nothing less than a catastrophe, and as was said by Chief Justice Marshall in Re Burr, 9
Wheat. 529, 530, 6 L. Ed. 152: The profession of an attorney is of great importance to an
individual, and the prosperity of his whole life may depend on its exercise. But the public
and the profession must be protected; and while, as Chief Justice Marshall says, the court's
discretion ought to be exercised with great moderation and judgment, we must also
remember his words (9 Wheat. 529, loc. cit. 430, 6 L. Ed. 152) that the respectability of the
bar should be maintained.
Notwithstanding petitioner's previous suspensions, we are not clear that the record in the
instant proceeding is sufficient upon which to predicate permanent disbarment.
It is the judgment and order of this court that petitioner, A. Grant Miller, be, and he is
hereby, suspended from the practice of law in the State of Nevada; that the period of such
suspension shall begin August 1, 1936, and shall extend and continue eight months thereafter
and until further order of this court.
____________
57 Nev. 114, 114 (1936) Golden v. District Court
GOLDEN Et Al. v. SIXTH JUDICIAL DISTRICT COURT IN
AND FOR PERSHING COUNTY Et Al.
No. 3148
July 3, 1936. 58 P. (2d) 1042.
1. Removal of Causes.
Matter in dispute or controversy within statute relating to removal of causes from state to federal courts
means subject of litigation, matter on which action is brought and issue is joined and in relation to which, if
issue be one of fact, testimony is taken, and value of matter in controversy within statute means
pecuniary result to either party which judgment would directly produce, either at once or in the future, or
value of that which complainant seeks to recover, or which defendant will lose if complainant obtains
recovery he seeks (Jud. Code, secs. 24 (1), 28, 28 U. S. C. A. secs. 41 (1), 71).
2. Removal of Causes.
As respects right to removal of cause from state to federal court in determining amount in controversy,
court will not consider contingent losses to defendant or collateral effects of judgment for plaintiff (Jud.
Code secs. 24 (1), 28, 28 U. S. C. A. secs. 41 (1), 71).
3. Removal of Causes.
In suit in state court for adjudication that purchaser at execution sale hold property in trust for amount of
assigned claim on which judgment was obtained and for judgment on assigned claim for attorney's fees,
plaintiff's right to receive amount of assigned claim out of proceeds of property and to recover amount of
attorney's fees held matters in dispute, so that defendant was not entitled to removal of cause to federal
court, where amount of recovery by plaintiff would not exceed $818, notwithstanding that entire property
from which claims were sought to be satisfied exceeded $3,000 in value (Jud. Code, secs. 24 (1), 28, 28 U.
S. C. A. secs. 41 (1), 71).
4. Removal of Causes.
Statute providing for removal of causes from state to federal courts should be strictly construed and
removal denied in doubtful cases (Jud. Code, secs. 24 (1), 28, 28 U. S. C. A. secs. 41 (1), 71).
Original proceeding for a writ of prohibition by William K. Golden and another against the
Sixth Judicial District Court in and for Pershing County, and the Honorable L. O. Hawkins,
as Presiding Judge thereof. Writ denied.
57 Nev. 114, 115 (1936) Golden v. District Court
W. E. Baldy and Frank J. Golden, for Petitioners:
The petition for removal to the United States district court sets forth that plaintiff is and
was at the time of the commencement of action No. 898 a citizen of the State of Nevada,
residing in the county of Pershing, and that the defendant, Mary E. Golden, and the
interveners, William K. Golden and Albert E. Golden, are and were at said time all citizens of
the State of California, residing in the county of Alameda; that the matter and amount in
dispute in action No. 898 exceeds the sum or value of $3,000. Both complaints in
intervention also alleged the diversity of citizenship, and that the matter and amount in
dispute exceeds $3,000, to wit, $5,000.
In ascertaining whether or not a cause is removable from a court of a state to a federal
court, the amount or value in dispute must be determined from the pleadings filed in the cause
as they stand at the time of the application for removal. Back v. Sierra Nevada Cons. Min.
Co., 46 Fed. 673; Sturgeon River Boom Co. v. W. H. Sawyer Lumber Co., 89 Fed. 113;
Woods v. Massachusetts Protective Ass'n., 34 Fed. (2d) 501; Twin Hills Gasoline Co. v.
Bradford Oil Corporation, 264 Fed. 440.
The jurisdiction is governed by the whole matter in controversy, and all sums forming a
part of the matter in dispute are to be considered. Dakota Bldg. etc. Ass'n. v. Price, 169 U. S.
45; Coolidge v. Ray, 75 Fed. 39.
In an action or proceeding to recover personal property, the amount or value in controversy
is the value of the property. Hoover v. Columbia Straw-Paper Co., 68 Fed. 945.
W. A. Wilson, for Respondents:
The total claim of the plaintiff, Clarence A. Ernst, in case No. 898 before the respondent
court, was for the sum of $725, far under the sum of $3,000, the jurisdictional amount for the
removal to the federal court. 54 C. J. 212, sec. 7.
57 Nev. 114, 116 (1936) Golden v. District Court
The petitioners would not be injured in the event that the property was sold, as the plaintiff
asks only that portion as his entire claim would bear to the judgment and sale under execution
to Mary E. Golden, as set out in plaintiff's second amended complaint; the petitioners would
still retain their interest in the property in the event of a sale.
The right to remove a cause from a state court to a federal court depends upon whether or
not the allegations of plaintiff's complaint or petition brings it within the removal statute. 54
C. J. 212.
The allegations and demand in the complaint determine the amount in controversy. 7 R. C.
L. 1052.
Cases in which jurisdiction is in doubt should be remanded to the court from which they
are removed. A suitor in order to avail himself of the federal system must present a situation
bringing his case clearly within the limits of such special jurisdiction. Concord Coal Co. v.
Haley, 76 Fed. 882.
OPINION
By the Court, Taber, J.:
This is a petition for a writ of prohibition wherein this court is asked to prohibit
respondents from taking any further action in civil action No. 898, in respondent district
court, except to do what is necessary to remove said action to the district court of the United
States for the district of Nevada. In said action Clarence A. Ernst is plaintiff, and Mary E.
Golden, defendant. Demurrers to the original and first amended complaints were sustained.
The second amended complaint alleges, as a first cause of action, that in February 1935,
said Mary E. Golden brought an action in respondent court against Sunset Mining &
Development Company for the recovery of various sums totaling $4,181.50; that one of the
five causes of action included in said suit was an assigned claim of said Clarence A.
57 Nev. 114, 117 (1936) Golden v. District Court
causes of action included in said suit was an assigned claim of said Clarence A. Ernst in the
sum of $225; that said Mary E. Golden recovered a default judgment for the full amount
prayed for in her complaint in the last-mentioned action; that execution issued, and, after
notice of sale, the property levied on was sold to said Mary E. Golden for $3,000; that the
assigned claim of said Clarence A. Ernst was given without consideration to said Mary E.
Golden for the purpose of bringing suit; and that she holds in trust for him such proportionate
part of said property as his claim so assigned, to wit, $225.00 bears to the total claim of
plaintiff's assignor, to wit, $4,181.50.
In the second cause of action in said second amended complaint it is alleged that, before
Mary E. Golden commenced said action against Sunset Mining & Development Company,
John A. Jurgenson also assigned to her, without consideration and for the purpose of bringing
suit, his claim against said company in the sum of $225; that said assigned claim was
included in said suit against said company; that said Jurgenson assigned said claim to said
Clarence A. Ernst; and that said Mary E. Golden holds in trust for said Jurgenson such
proportionate part of said property sold under execution as his claim $250 bears to the total
claim, $4,181.50.
The third cause of action in said second amended complaint alleges that Mary E. Golden
employed Attorney H. J. Murrish to prosecute her said suit against said company; that he
performed such services; that the reasonable value thereof was $250; that demand was made
by said H. J. Murrish; and that his claim has been assigned to said Clarence A. Ernst.
The prayer of said second amended complaint, as regards the first cause of action, is that
said Mary E. Golden, defendant, be adjudged to hold in trust for the benefit of said Clarence
A. Ernst, plaintiff, such portion of the property sold on execution as his assigned claim $225
bears to the total claim, $4,181.50. The prayer is similar on the second cause of action, and on
the third cause of action the prayer is that plaintiff be given judgment for $250 upon the
express contract to pay that sum.
57 Nev. 114, 118 (1936) Golden v. District Court
cause of action the prayer is that plaintiff be given judgment for $250 upon the express
contract to pay that sum.
A demurrer to said second amended complaint was overruled, and a motion to strike said
complaint and certain portions of it was denied. Thereupon defendant, Mary E. Golden, filed
her answer, wherein, amongst other things, she alleged that Albert E. Golden claimed to be
the owner of all the property described in said second amended complaint by virtue of
purchase at a sale under a deed of trust; that W. K. Golden, M. J. Catching, and F. J. Golden
each claimed and asserted an interest in said property; and that a complete determination of
the controversy could not be had without the presence of said four persons as parties. Besides
praying that plaintiff take nothing, she asked for an order bringing in, as parties, the four
persons above named. She further prayed for a decree that she has no interest in the property,
and that whatever title she acquired by virtue of the execution sale was so acquired by her as
trustee for said Albert E. Golden, W. K. Golden, M. J. Catching, and F. J. Golden. The
respondent court refused to make an order bringing in the four persons above named as
parties. Said William K. Golden and Albert E. Golden then petitioned for permission to
intervene, and respondent court ordered that they be permitted to do so; whereupon each of
them filed his complaint in intervention. In these complaints each intervener alleges that
plaintiff has no legal claim, either in his own right or as assignee of Jurgenson or Murrish,
and that the value of all of said property is more than $5,000. In the said complaint of
intervener William K. Golden, he alleges that Mary E. Golden holds all of said property in
trust for him, basing his claim upon the same execution sale relied on by plaintiff, and upon
the alleged assignment to him of the claims of M. J. Catching and Frank J. Golden. Albert E.
Golden's complaint in intervention alleges that he is the owner of all the property, having
purchased it at a foreclosure sale.
57 Nev. 114, 119 (1936) Golden v. District Court
Shortly after the filing of the complaints in intervention, said Mary E. Golden, William K.
Golden, and Albert A. Golden petitioned respondent court for an order causing said action
No. 898 to be removed to the district court of the United States for the district of Nevada;
also for an order that no further or other proceedings be had in said action in respondent
court. Said petition was accompanied by a bond. The plaintiff in said action, Clarence A.
Ernst, filed answers to the aforesaid complaints in intervention, and opposed the granting of
said petition for removal of the cause to the federal court. Respondent court declined to make
the requested order for removal to the United States district court, and ordered the said cause
to be set down for trial. Thereafter, and before the date set for the trial, said William K.
Golden and Albert E. Golden petitioned this court for a writ of prohibition. Certified copies
of the papers filed in the respondent court for the removal of said action No. 898 to the
federal court have heretofore been filed in said United States district court.
1. One of the grounds upon which respondent opposes our making the alternative writ
permanent is, as he claims, that the value of the matter in controversy in said action No. 898
is less than that required by the Federal Judicial Code. 28 U. S. C. A. secs. 41 (1), 71.
By matter in dispute or controversy is meant the subject of litigationthe matter upon
which the action is brought and issue is joined, and in relation to which, if the issue be one of
fact, testimony is taken. Lee v. Watson (Ky. 1864), 1 Wall. 337, 17 L. Ed. 557; Smith v.
Adams (Ter. Dak. 1889), 130 U. S. 167, 9 S. Ct. 566, 32 L. Ed. 895.
In the case of Elliott v. Empire Natural Gas Co. (C. C. A. Kan. 1925), 4 F. (2d) 493, the
court said that the value of matter in controversy means the pecuniary result to either party
which the judgment would directly produce, either at once or in the future. In Cowell v. City
Water Supply Co., 57 C. C. A. 393, 121 F. 53, reversing (C. C.) 96 F. 769, the court said that
the value of the matter in dispute is the value of that which complainant seeks to recover,
or the value of that which defendant will lose if complainant obtains the recovery he
seeks.
57 Nev. 114, 120 (1936) Golden v. District Court
value of the matter in dispute is the value of that which complainant seeks to recover, or the
value of that which defendant will lose if complainant obtains the recovery he seeks.
Cowell v. City Water Supply Co., supra, was a suit by an alleged owner of 1/325 of certain
waterworks and their appurtenances, to cancel mortgages thereon for $475,000, and to have
his interest in said property declared free from the liens of the mortgages. The court held that
the value of the matter in dispute was not the amount of the mortgages or the value of the
entire property, but was the value of the 1/325 of the property which the complainant claimed
to own and sought to relieve from the liens of said incumbrances.
In Wakeman v. Throckmorton (C. C.), 124 F. 1010, the court held that, in a suit to
foreclose a lien, the amount in dispute is the amount sought to be recovered under the lien.
Likewise, in Bucyrus Co. v. McArthur (D. C.), 219 F. 266, which was a suit to enforce liens
against a steam shovel, the amount involved was the amount claimed, and not the value of the
shovel.
In Elgin v. Marshall, 106 U. S. (16 Otto) 578, 1 S. Ct. 484, 488, 27 L. Ed. 249, the court
said that the words matter in dispute have reference to the matter which is directly in
dispute in the particular case. This view was followed in Opelika City v. Daniel, 109 U. S.
108, 3 S. Ct. 70, 27 L. Ed. 873.
In Gibson v. Shufeldt, 122 U. S. 27, 29, 7 S. Ct. 1066, 1067, 30 L. Ed. 1083, the court said
that by the matter in dispute is meant the sum or value really in dispute between the parties
in the case before the court as shown by the whole record.
In Elliott v. Empire Natural Gas Co., supra, the court said: It is what the appellees will
directly lose in this suit that determines the jurisdictional value of the matter involved.
Enger v. Northern Finance Corporation (D. C.), 31 F. (2d) 136, 141, was an action to
determine adverse claims to a 40-acre tract valued at $700, which was one of four 40's worth
$3,100.
57 Nev. 114, 121 (1936) Golden v. District Court
40's worth $3,100. Defendant alleged that all four 40's had been fraudulently deeded to
plaintiff, and in his counterclaim prayed the court to nullify the deed. The court held that the
cause was not removable to the federal court, saying that the immediate matter in controversy
was the title to the 40 acres described in the complaint. If the plaintiff prevails, the
defendant, as the immediate effect of the decree, will lose only that 40. The judgment may
estop it as to other 40's included in the deed from Martha V. Enger to Anna M. Enger.
Except, however, for the allegations of the counterclaim, there is nothing to show that the
plaintiff claims to own the other three 40's therein described. The court said that, if the
plaintiff, while pretending to have the title quieted to one 40 worth $700, had actually asked
the court to determine the title to four 40's, and adjudge that the defendant had no right, title,
or interest therein, then the amount in controversy would appear to have been $3,100, and so
removable to the federal court.
2. In determining the amount necessary for jurisdiction, the court will not consider
contingent losses to defendant or collateral effects of a judgment for plaintiff. As was said in
Elliott v. Empire Natural Gas Co.: The amount or value of the right in dispute cannot be
augmented by the collateral effect a judgment in the case may produce. And see New
England Mortgage Security Co. v. Gay, 145 U. S. 123, 12 S. Ct. 815, 36 L. Ed. 646; Waltman
v. Union Central Life Ins. Co. (D. C.), 25 F. (2d) 320; Wabash Ry. Co. v. Vanlandingham (C.
C. A.), 53 F. (2d) 51; Elgin v. Marshall, supra; Enger v. Northern Finance Corporation, supra.
3. In case No. 898 in respondent court, the matter in controversy is not the whole of the
property described in the second amended complaint. The action is not a suit to quiet title.
The only matters in controversy are: (1) Plaintiff's alleged right to have said fractional
portion of the property adjudged to be held in trust for him by Mary E. Golden, to have the
property sold and out of the proceeds to receive his proportionate share; and {2) his alleged
right to recover the amount of the Murrish assigned claim, $250.
57 Nev. 114, 122 (1936) Golden v. District Court
and (2) his alleged right to recover the amount of the Murrish assigned claim, $250. These are
the matters really, directly, and immediately in dispute between plaintiff on the one hand and
the other parties on the other. If plaintiff should recover everything he asks, the value of his
recovery would be about $818, which is also the most that the other parties could directly
lose.
No case has been cited, nor have we been able to find any, where the facts were
substantially the same as in the instant case. The question is not free from doubt, and there are
cases tending to support petitioners' view that the value of all the property described in the
second amended complaint, alleged to be worth more than $5,000, is the value of the matter
in controversy. But the weight of authority and, in our opinion, the soundest reasoning,
support the conclusion we have arrived at, that in said action No. 898, in respondent court,
the value of the matter in controversy does not exceed $3,000.
4. In Hughes Federal Practice, vol. 4, sec. 2286, the author says: The right of removal,
being in derogation of state sovereignty, the act granting it ought not to be enlarged beyond
what is definite and free from ambiguity. And a statute which ousts a court of general
jurisdiction given by law, which jurisdiction it is proceeding to exercise, should be strictly
construed. The federal courts, therefore, almost uniformly have denied removal in doubtful
cases.
The United States supreme court, in Healy v. Ratta, 292 U. S. 263, 54 S. Ct. 700, 703, 78
L. Ed. 1248, says: The policy of the statute calls for its strict construction. The power
reserved to the states, under the Constitution, * * * to provide for the determination of
controversies in their courts, may be restricted only by the action of Congress in conformity
to the judiciary sections of the Constitution. * * * See Kline v. Burke Construction Co., 260
U. S. 226, 233, 234, 43 S. Ct. 79, 67 L. Ed. 226, 231, 232, 24 A. L. R. 1077. Due regard for
the rightful independence of state governments, which should actuate federal courts,
requires that they scrupulously confine their own jurisdiction to the precise limits which
the statute has defined.
57 Nev. 114, 123 (1936) Golden v. District Court
should actuate federal courts, requires that they scrupulously confine their own jurisdiction to
the precise limits which the statute has defined. See Matthews v. Rodgers, supra, at page 525
of 284 U. S. [521], 52 S. Ct. 217, 76 L. Ed. 447; compare Town of Elgin v. Marshall, 106 U.
S. 578, 1 S. Ct. 484, 27 L. Ed. 249.
It is ordered that the alternative writ heretofore issued be dismissed, and the petition for a
final writ of prohibition denied.
____________
57 Nev. 123, 123 (1936) Lee Tire & Rubber Co. v. McCarran
LEE TIRE & RUBBER CO. OF NEW YORK, Inc., v.
McCARRAN Et Al.
No. 3125
ON COSTS
July 21, 1936. 59 P. (2d) 649.
1. Costs.
Where judgment appealed from was reversed and new trial was granted, appellants held entitled to costs
as against contention of respondent that it won on main question involved, and that case was sent back for
an accounting (Comp. Laws, sec. 8928; Supreme Court Rules, rule 6, par. 3).
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by the Lee Tire & Rubber Company of New York, Inc., against P. A. McCarran
and another. From an adverse order and judgment, the defendants appealed and the judgment
and order were reversed. The respective parties filed a cost bill and a motion to strike
opponent's cost bill. From a ruling of the clerk allowing appellants' costs as stated in their
cost bill, the respondent appealed to the justices of the court. Affirmed.
____________________
See, also, 56 Nev. 458, 55 P. (2d) 633.
J. W. Dignan and Gray Mashburn, for Appellants.
G. Gunzendorfer, for Respondent.
57 Nev. 123, 124 (1936) Lee Tire & Rubber Co. v. McCarran
OPINION
By the Court, Coleman, J.:
Upon the reversal of the judgment and order appealed from in this case, the respective
parties filed a cost bill. In due time each filed with the clerk a motion to strike opponent's cost
bill.
The clerk allowed appellants' costs as stated in their cost bill. From this ruling respondent
took an appeal to the justices of the court, as provided in rule 6, paragraph 3.
We think the ruling of the clerk was correct. Section 8928 N. C. L. provides that where a
judgment is modified, or where a new trial is ordered, and no order is made relative to costs,
as in this case, the party obtaining any relief shall have his costs. In this case the judgment
was not only modified, but entirely reversed and a new trial was ordered; hence the appellant
is entitled to his costs. Gerlach Live Stock Co. v. Laxalt, 53 Nev. 259, 266, 298 P. 413, 2 P.
(2d) 123.
Respondent contends that it won on the main question involved in the case, and that it was
sent back for an accounting, hence there was no such modification or retrial ordered as is
necessary to entitle appellants to costs.
We do not agree with this view. But if it be conceded that an accounting merely is now to
be taken, there may be a judgment in favor of appellants upon the taking of such accounting.
At any rate, there was a substantial judgment rendered upon the former trial which was wiped
out in its entirety by the order of reversal. That being true, appellants are entitled to their
costs.
The ruling of the clerk appealed from was right, and is affirmed.
____________
57 Nev. 125, 125 (1936) State v. Reese
STATE Ex Rel. COOPER v. REESE, City Clerk.
No. 3160
July 21, 1936. 59 P. (2d) 647.
1. Statutes.
Repeal of statute by later statute by implication is not favored, and there is a presumption against
intention to repeal, unless express repeal is declared.
2. Statutes.
Where intention to repeal act is clearly manifested in later act by irreconcilable repugnance or by other
means clearly indicating legislative intent to repeal, later act repeals former.
3. Municipal Corporations.
Special act under which city council alone could create bonded indebtedness, ballots of nonrealty owning
taxpayers at election on bond issue held pursuant to petition could be deposited in same box as those of
realty owners, and nonrealty owning voters could determine election held repealed by general act requiring
election in every instance to create bonded indebtedness and restricting privilege and power of nonrealty
owning voters (Stats. 1903, c. 102, as amended; Stats. 1933, c. 95, secs. 1, 2).
Original mandamus proceeding by the State of Nevada, on the relation of John A. Cooper,
against J. B. Reese, City Clerk of the City of Reno, a municipal corporation. Peremptory
writ of mandamus ordered issued.
Douglas A. Busey, City Attorney, for Relator:
Nevada follows the general rule that repeals by implication are not favored. Kondas v.
Washoe County Bank, 50 Nev. 181, 254 P. 1080.
It is likewise well settled that where two statutes are in pari-materia, or relate to the same
subject or subject matter, they must be so construed as to give effect to both if possible. And
statutes in Nevada in pari-materia will always be construed together as far as possible, and
when inconsistent, the later statute conrols. Ex rel. City of Carson v. County Commissioners,
47 Nev. 415, 224 P. 615; State ex rel. Central Pacific Ry. v. Nevada Tax Commission, 38
Nev. 112; 145 P. 905; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Kondas v. Washoe
County Bank, supra; State ex rel. Abel v. Eggers, 36 Nev. 372, 136 P. 100; State ex rel. Ford
v. Hoover, 5 Nev. 141; V.
57 Nev. 125, 126 (1936) State v. Reese
Nev. 141; V. & T. Ry Co. v. Board of County Commissioners, 5 Nev. 341.
The two acts are so inconsistent and obviously repugnant that the intention to repeal is clearly
manifested. They both relate to the same subject matterthe manner of incurring a bonded
indebtedness. The 1933 act substantially covers this subject matter. It therefore effects a
repeal to the extent of the inconsistency, in accordance with the pari-materia cases heretofore
cited. The charter provisions will stand only to the extent that they are not inconsistent with
the 1933 act.
George Springmeyer, for Respondent:
The first point we urge is that the 1933 general statute does not conflict with and is not
inconsistent with the Reno charter acts of 1905 and 1913, because the 1933 statute should be
construed to apply only to cities incorporated under the general laws, to which cities it clearly
is applicable. Crane v. Reader, 22 Mich. 322; State ex rel. Flack v. Rogers, 10 Nev. 319; State
v. La Grave, 23 Nev. 373, 48 P. 674; Abel v. Eggers, 36 Nev. 372, 136 P. 100; State v.
Donnelly, 20 Nev. 214, 19 P. 680; State v. Hoover, 5 Nev. 141; Bell v. Alleghany Co., 149
Pa. 381; Graham v. Philadelphia, 135 Atl. 908.
But even if it be held that the 1933 general statute is in conflict with the Reno charter acts
of 1905 and 1913, still the 1905 and 1913 statutes are not repealed, because there is no
express repealing clause in the 1933 statute. A general statute does not by implication repeal a
prior special statute unless the legislative intention to repeal very clearly appears. Kondas v.
Washoe County Bank, 50 Nev. 181, 254 P. 1080; State v. Boerlin, 38 Nev. 39, 144 P. 738; 25
R. C. L. pp. 927, 928.
There is nothing in the 1933 general statute which is sufficient to overcome the
presumption that it was intended to apply only to cities incorporated under the general law for
the incorporation of cities. A somewhat similar thought was in the mind of this court in the
case of Wainwright v. Bartlett, 51 Nev. 170
57 Nev. 125, 127 (1936) State v. Reese
the case of Wainwright v. Bartlett, 51 Nev. 170, 271 P. 689, where the court held that the
general statute relating to jury trials did not give a jury trial in will contest cases.
OPINION
By the Court, Coleman, J.:
This is a proceeding in mandamus to compel the respondent, as city clerk of Reno, a
municipal corporation existing pursuant to a special charter (Stats. 1903, p. 184, c. 102, as
amended by Stats. 1905, p. 98, c. 71, and Stats. 1913, p. 380, c. 251), to procure necessary
supplies to hold a special election to vote upon eight certain proposed bond issues duly
authorized by ordinance enacted in conformity with the act of 1933 (Stats. 1933, p. 116, c.
95), prescribing the method for calling and holding of elections by the state, counties,
municipal corporations, school, and high school districts of Nevada.
The real question in the matter, in the nude, is whether the general act of 1933 repeals by
implication those provisions of the special act (the charter of Reno) providing the method of
determining the question of the issuance of bonds.
We do not think it necessary to set out at length in this opinion the respective methods of
holding an election under the charter and under the general act. Suffice it to say that pursuant
to section 2 of article 18 of the charter of the city of Reno (Stats. 1913, p. 381, c. 251), said
city may create a bonded indebtedness by the passage of an ordinance of the city council
setting forth the purposes of the proposed bond issue, which shall be published. Section 3 of
article 18 of said charter (Stats. 1905, p. 138, c. 71) provides that if in 20 days from the date
of the first publication of the ordinance mentioned a petition signed by not less than 300
taxpayers of said city, representing not less than 10 percent of the taxable property of said
city, shall be presented to the city council praying for a special election upon the question
of whether or not the proposed ordinance shall be passed, such special election shall be
called to be held and conducted as nearly as possible in the same manner as are elections
for city officers; at which all qualified electors who are taxpayers and who are entitled to
vote at a general election, and duly registered, are entitled to vote.
57 Nev. 125, 128 (1936) State v. Reese
presented to the city council praying for a special election upon the question of whether or not
the proposed ordinance shall be passed, such special election shall be called to be held and
conducted as nearly as possible in the same manner as are elections for city officers; at which
all qualified electors who are taxpayers and who are entitled to vote at a general election, and
duly registered, are entitled to vote. Under the general act it is provided that a proposal to
issue bonds shall be voted upon, at which election separate ballot boxes are to be provided for
the owners and the spouses of the owners of real property assessed on the assessment roll,
such boxes to be designated B, and for those who are not in either of such classes, such
voters' ballots to be deposited in box A. The general act also provides that the nonproperty
owners shall have a ballot printed on white paper, and property owners shall vote a ballot
printed on colored paper. The act further provides that if a majority of the ballots in each box
is in favor of the issuance of bonds, the proposal to issue said bonds shall have carried; that if
the majority of the ballots in either of said boxes is against the issuance of said bonds, the
proposal to issue the same shall have failed.
1. It is the settled law of this state, established by a long line of decisions, that repeals by
implication are not favored, and that there is a presumption against the intention to repeal
unless an express repeal is declared. Some of the cases so holding are Kondas v. Washoe
County Bank, 50 Nev. 181, 254 P. 1080; Thorpe v. Schooling, 7 Nev. 15, 17; In re Estate of
David Walley, 11 Nev. 260; State v. Donnelly, 20 Nev. 214, 19 P. 680; State v. Trolson, 21
Nev. 419, 32 P. 930; State v. La Grave, 23 Nev. 373, 48 P.193, 674; Nordyke v. Pastrell, 54
Nev. 98, 7 P. (2d) 598; Carson City v. Board of County Com'rs, 47 Nev. 415, 224 P. 615.
There is no express repeal by the general law of 1933. Can we say that it was the intention
of the legislature to repeal the provisions of the charter of Reno relative to bond elections?
Section 1 of the act {Stats.
57 Nev. 125, 129 (1936) State v. Reese
Section 1 of the act (Stats. 1933, c. 95) reads: When used in this act the words
municipality' or municipal' shall refer to a county, city or town, school district, or high
school district of the State of Nevada.
Section 2 of the act reads: Whenever the State of Nevada, or any municipality therein,
proposes to issue bonds, or provide for loans, in any amount within the limit of indebtedness
authorized by the constitution, the proposal for such bond issue or loan shall be submitted at a
general or special election, called for that purpose, to the electors of the state or the
municipality involved who are not real property owners or the spouses of real property
owners, and also to the electors thereof who are the owners of real property or the spouses of
real estate property owners, as shown by the assessment roll of some one or more of the
counties in the state, or the spouses of such real property owners in the manner hereinafter set
forth.
2. While repeals by implication are not favored, yet where an intention to repeal is clearly
manifested, either by an irreconcilable repugnance between the prior and the later act, or by
other means clearly indicating the legislative intent to repeal, a court will hold the later act to
operate as a repeal of the former.
3. It clearly appears that there are irreconcilable repugnances between the provisions of the
city charter of Reno, as to the manner of determining the question of a bond issue, and the
provisions of the general act of 1933 pertaining thereto.
A bonded indebtedness of the city of Reno may be created, under its special charter, by the
action of the city council alone. It is absolutely impossible for the city council, acting alone,
to create an indebtedness under the general act of 1933. There must be an election in every
instance, to create a bonded indebtedness under this act. This essential constitutes
irreconcilable repugnance number one between the two acts.
In the situation where there must be an election under the special charter as the result of
the filing of the petition, every person who is entitled to vote at a general election,
whether or not he is the owner of real property, or the spouse of such owner, but who is a
taxpayer, is eligible to vote upon the proposal to issue bonds, and to have his ballot
deposited in the same box as are those who own real property or who are spouses of such
owners.
57 Nev. 125, 130 (1936) State v. Reese
the petition, every person who is entitled to vote at a general election, whether or not he is the
owner of real property, or the spouse of such owner, but who is a taxpayer, is eligible to vote
upon the proposal to issue bonds, and to have his ballot deposited in the same box as are
those who own real property or who are spouses of such owners. Whereas, under the general
act of 1933 this cannot be done. This difference constitutes irreconcilable repugnance number
two.
Again, under the charter provisions relative to voting on the question of a bond issue, it is
possible that the nonreal property owners, who vote in favor of a bond issue, may determine
the result of the election, and authorize such bond issue, regardless of the vote of the real
property owners and their spouses, whereas that is impossible under the general law, where
the real property owners and their spouses may, by a majority vote of just one, vote against
such bond issue. This is irreconcilable repugnance number three.
We are of the opinion that either of these repugnances are sufficient to justify us in holding
that the special act in question, so far as it pertains to the authorization of a bond issue, is
repealed by the general act of 1933.
Respondent concedes that if the general act repeals the special one, as contended by
petitioner, that mandamus lies, and well may he.
We do not deem it necessary to dwell upon this question, for the reason that the ordinance
of the city of Reno makes it the duty of respondent to perform the acts sought to be required
of him, and section 9242 N. C. L. provides that the writ of mandamus may be issued to
compel the performance of an act which the law especially enjoins as a duty resulting from an
office. State v. Scott, 52 Nev. 216, 285 P. 511.
It is ordered that the peremptory writ of mandamus issue herein, as prayed.
____________
57 Nev. 131, 131 (1936) Warren v. De Long
H. C. WARREN, Appellant, v. WILLIAM M. DE LONG and MABEL DE LONG, his wife,
and JEWELL DE LONG and BILL DE LONG, JR., Respondents.
No. 3150
July 31, 1936. 59 P. (2d) 1165.
1. Animals.
Statutes relating to branding of cattle held not to require children of mortgagor of cattle and their increase
who had, prior to execution of mortgage, given certain cattle to children, to adopt and record marks in
addition to brands (Rev. Laws, sec. 2233; Comp. Laws, secs. 3790, 3795).
2. Animals.
Legislature in enacting statutes relative to branding and marking of cattle intended merely to provide
method whereby cattle would carry with them prima-facie proof of ownership, thereby aiding in owner's
identification of his property and in the establishment of ownership (Comp. Laws, secs. 3790, 3795, 3799).
3. Animals.
Cattle brand recorded in name of Wm. De Long's boys held recorded in name of natural persons,
within requirement of statute relating to branding, as respects rights, as against chattel mortgagee, of
children of mortgagor of cattle and their increase who had prior to mortgage given certain cattle to children
and recorded brands for children (Comp. Laws, secs. 3790, 3795, 3799).
4. Animals.
Where mortgagor of cattle and their increase prior to mortgage gave certain cattle to children and
recorded brand for children, that mortgagor and not children recorded the brand held not to invalidate
brand, since provision of statute relating to branding that owner record brand is directory and not
mandatory (Comp. Laws, secs. 3790, 3795, 3799).
5. Appeal and Error.
In action for foreclosure of chattel mortgage on cattle, error, if any, in allowing children who were made
defendants, and who alleged in answer that they were owners jointly with their brothers of cattle in
question, to prove that brothers and sister were joint owners thereof without amending answer to conform
with such proof, held harmless, where mortgagee's case was not affected thereby.
6. Parent and Child.
Infants may accept and own property given them, free from claim of their parents.
57 Nev. 131, 132 (1936) Warren v. De Long
7. Parent and Child.
Where mortgagor of cattle and their increase prior to execution of mortgage gave certain cattle to
children and filed and recorded brand for children, children held emancipated so far as such cattle were
concerned, so that children's accumulation of cattle was lawful as against subsequent mortgagee (Comp.
Laws, secs. 3790, 3795, 3799).
8. Animals.
In action to foreclose chattel mortgage on cattle and their increase, where controversy arose between
mortgagee and children of mortgagor, as to ownership of increase of certain cattle which mortgagor had,
prior to execution of mortgage, given to children, admission of evidence to show who were meant by Wm.
De Long's boys. in which name children's brand was recorded, held not error (Comp. Laws, secs. 3790,
3795, 3799).
9. Animals.
In action to foreclose chattel mortgage on cattle and their increase, admission of recorded brand of
children to whom increase of certain cattle had been given, on issue of ownership of cattle in controversy,
held not error, notwithstanding record stated cattle should be branded on particular portion of animal,
whereas some of cattle were branded on opposite side of animal from that called for in record (Comp.
Laws, secs. 3790, 3795, 3799).
10. Animals.
Prior statute relating to branding of cattle held repealed by implication by subsequent statute covering
whole subject matter of prior act (Comp. Laws, secs. 3790-3807; sec. 3806; Rev. Laws, sec. 2239).
11. Fraudulent Conveyances.
In action to foreclose chattel mortgage wherein controversy arose between mortgagee and children of
mortgagor of cattle and their increase who had, prior to execution of mortgage, given children certain
cattle, evidence held to sustain finding for children on ground that recording of brand and marks on behalf
of children was not done with intent to defraud mortgagee (Comp. Laws, secs. 3790, 3795, 3799).
12. Fraud.
Fraud is never presumed, and must be clearly and satisfactorily shown.
13. Appeal and Error.
Supreme court could not pass upon contention as to which no issue was made in the pleadings.
14. Costs.
Where witnesses resided at distance from place of trial and were not subpenaed, but being in courtroom
during trial were called to testify, denial of claim for witness fees and mileage for such
witnesses except for day called to witness stand held proper {Comp.
57 Nev. 131, 133 (1936) Warren v. De Long
were called to testify, denial of claim for witness fees and mileage for such witnesses except for day called
to witness stand held proper (Comp. Laws, secs. 8490, 8982).
Appeal from Sixth Judicial District Court, Humboldt County; James Dysart, Judge
Presiding.
Action by H. C. Warren against William M. De Long and others. From a judgment in
favor of defendants Bill De Long, Jr., and Jewell De Long, the plaintiff appeals, and from an
order made after judgment retaxing costs, defendants Bill De Long, Jr., and Jewell De Long
appeal. Affirmed.
J. W. Dignan, for Appellant:
The defendants, Jewell De Long and Bill De Long, Jr., in their answer, admitted that they
were jointly in possession with the mortgagors of all the disputed property, and then alleged
affirmatively that the said defendant sons were the owners of the disputed property, jointly,
with their brothers Melvin De Long, Irvin De Long and Albert De Long. Then upon the trial,
over the objections of the plaintiff, the said defendants, without any amendment of the
pleadings, were permitted to make proof that the said defendant sons, together with their three
brothers named in the answer, and their sister, May Angus, not named or referred to in the
answer, were the owners of all of the disputed property. This was a fatal variance in the proof.
49 C. J. 813.
We have assigned as an error of law the findings and conclusions of the trial court that the
minor children of the mortgagors could lawfully accumulate property during their minority as
a result of labor and services rendered while living with their parents, there being no evidence
of emancipation. 46 C. J. secs. 1235, 1281, 1282, 1314; Harper v. Utsey (Tex.), 97 S. W. 508;
Swartz v. Hazlett, 8 Cal. 118, 125, 126; Smith v. Smith (Cal.), 176 P. 382.
57 Nev. 131, 134 (1936) Warren v. De Long
The statutes of Nevada provide for the recording of brands and marks, and no legal
recording of a brand or a mark, or brands and marks, can be made in any way except in
compliance with the statutory provisions. Secs. 3790, 3795, 3804 N. C. L.; sec. 2239 Rev.
Laws 1912. Upon the original pretended recording of this alleged JHG monogram brand,
there was recorded therewith no mark or marks whatsoever, and the record failed to show that
any natural person, corporation or legal partnership claimed to be the owner thereof. William
M. De Long could not have been appointed to act as the authorized agent of a minor, except
by a proper court order, so, if there is any legal ownership of the brand it is in William M. De
Long.
Further, the defective record introduced in evidence provided that the JHG brand would be
placed on the right hip, but whenever there was a pretense at making use of the brand, it was
placed on the left ribs and the left hip, and the legally recorded marks of the father, at all
times, accompanied and was placed upon the animals along with the illegal JHG monogram
brand.
Notwithstanding these facts, the court erroneously overruled plaintiff's objections to the
introduction of the brand in evidence, for the purpose of making proof of the ownership of
animals upon which it had been placed, and the same was considered in proof of ownership
of the livestock claimed by all of the De Long children. And the court also erroneously
permitted the defendants to supplement and explain the same by parole evidence as to whom
was meant by Wm. De Long's boys, and the court erroneously found that Wm. De Long's
boys meant all of the De Long children who chose to claim that they came within a class so
designated. Nounce et al. v. Wrightmen et al. (Ariz.), 243 P. 916; 22 C. J. 812; Brown v.
Moss (Ore.), 101 P. 207; State v. Dunn (Ida.), 88 P. 235; Rankin v. Bell (Tex.), 19 S. W. 874;
12 C. J. 496; Ayre v. Hixon (Ore.), 98 P. 915; Johnson v. Hocker (Tex.), 39 S. W. 406.
57 Nev. 131, 135 (1936) Warren v. De Long
This is a suit in equity and the court had jurisdiction of the parties and the subject matter of
the suit. It appears in evidence, by the testimony of the defendants, that in the event that it
should be decided by the court that the disputed livestock was the property of defendants,
then defendants were indebted to plaintiff for a sum in excess of six thousand dollars for feed,
etc. Lawrence v. Halverson (Wash.), 83 P. 889; 21 C. J. 134-5-6; Allenback v. Ridenour, 51
Nev. 437; Tenabo M. Co v. Bated, 220 Fed. 756; 11 C. J. 729.
The evidence was wholly insufficient to support a finding in favor of the defendants, or the
children of Wm. De Long, and against the plaintiff, and the decision and judgment of the
court should have been set aside and a new trial granted upon the law and the evidence.
A witness is defined, in the statutes, as a person required to attend upon the court, and
there is no right given to collect witness fees for any other person. A witness who appears in
court without having been subpenaed is not a witness at all until required to be sworn and
give evidence, at which time he becomes a person required to attend, and witness fees for
such appearance may be taxed as costs, in the manner required by law. Sections 8490, 8934,
and 8982 N. C. L.
Salter & Robins, for Respondents:
If the JHG brand had never been recorded, if it had never been placed on a cow claimed by
Wm. De Long's boys, H. C. Warren would not have any title to the cattle unless he could
prove that they were the increase from the OYL brand and covered by the mortgage.
It is true that hay was sold to the boys, and also to other persons. But if a right of action
exists against any of the parties to whom hay was sold, it could not be litigated in this action.
Plaintiff could not have set up in his complaint to foreclose the mortgage that he had an
agistor's lien on the JHG cattle. In any event, the evidence in the case is that Wm. De Long
was paid in full by his sons for the hay and pasture.
57 Nev. 131, 136 (1936) Warren v. De Long
Under the general principle of law relating to gifts, deeds and fraudulent conveyances,
either parent or child enjoys a right to transfer property to the other party to the relationship,
and having exercised such right becomes bound by his or her act. 12 Cal. Juris. 1070; 20 Cal.
Juris. 442; Emmons v. Barton (Cal.), 42 P. 303; Tillaux v. Tillaux (Cal.), 47 P. 691; Smith v.
Mason (Cal.), 55 P. 143; Tetsubumi Yano's Estate (Cal.), 206 P. 997.
By the civil code, a gift is defined as a transfer of personal property, made voluntarily,
and without consideration. See, also, 13 Cal. Juris. 32, 33, 34, 36, 37, 39; Evans v. Sparks
(Cal.), 150 P. 372.
A minor may acquire either real or personal property by inheritance, by gift, or by
purchase, and may own and hold the legal title thereto to the same extent as a person of legal
age. 31 C. J. 1013 to 1024, and citations; Delillivian v. Evans, 39 Cal. 120; Tetsubumi Yano's
Estate, supra; Wheeler v. St. J. & W. R. Co. (Kans.), 3 P. 297; Peck v. Brummagin, 31 Cal.
441; Wells v. Stout, 9 Cal. 480; In re McEachran (Cal.), 23 P. 46; Cohen v. Knox (Cal.), 27
P. 215; Knox v. Moses (Cal.), 38 P. 318; Barker v. Koneman, 13 Cal. 9.
The issue as to the emancipation of the children does not properly belong in this case, for
the reason that the cattle were not acquired by them by reason of labor and services, but by
gift, but we believe it best to submit some law to the court bearing on the subject. Woods v.
James (Cal.), 114 P. 587; Mathias v. Tingey (Utah), 118 P. 781; Officer v. Swindlehurse
(Mont.), 108 P. 583; Frauenthal v. Bank of El Paso (Ark.), 44 A. L. R. 871; 46 C. J. 1285;
Burdsall v. Waggoner, 4 Colo. 261; Wheeler v. St. J. & W. R. Co., supra; Revel v. Pruitt
(Okla.), 142 P. 1020; Mathews v. Fields, 77 S. E. 11; Sweet v. Crane (Okla.), 134 P. 1112.
The recordation of the JHG brand and the awarding thereof by the state board of stock
commissioners constitute prima-facie evidence of ownership. Sections 3792, 3793, 3796,
3797, and 3799 N. C. L.
57 Nev. 131, 137 (1936) Warren v. De Long
The fact that the cattle were branded on the left side, instead of on the right side, as shown
by the record of the brand, is not material. State v. Cardelli, 19 Nev. 319, 10 P. 433; Hurst v.
Territory (Okla.), 86 P. 280.
No presumption of a conspiracy arises in this case because of the fact that Wm. De Long's
boys lived with their father and mother, worked for the father, received wages, and conducted
their cattle business from that point. Each of the defendants denied that they misbranded any
cattle; on the contrary, they asserted that they were always careful to brand the cattle
accurately and according to ownership. Albert Wearing also testified to the proper branding
of the stock. Nevada Min. & Exp. Co. v. Rae, 47 Nev. 173, 218 P. 89; Evans v. Sparks (Cal.),
150 P. 372; Gilmore v. Swisher (Kans.), 52 P. 426; Bull v. Bray (Cal.), 26 P. 873; Rowan v.
U. S. Fidelity (Wash.), 178 P. 473.
Nor is there any presumption that a conspiracy existed because of the fact that Wm. De
Long supervised the business details connected with the JHG cattle. Kreigh v. Cogswell
(Wyo.), 21 P. (2d) 831.
The evidence in the case shows that no subpenas were served upon any of the witnesses;
that all of them were instructed by the attorneys for defendants Bill De Long, Jr., and Jewell
De Long to be in attendance and subject to call; that all of the witnesses were in attendance
upon the court and subject to call during all the times set out in the cost bill; that the
witnesses William De Long, Mabel De Long, May Angus, Raymond Woodward, Harold
Woodward, and Albert Wearing were sworn the day of the commencement of the trial; that
the other witnesses, except one, were not sworn on the first day, but were at all times, from
the day of the commencement of the case, available as witnesses and subject to call; that all
the witnesses testified in the case in behalf of said defendants; and that all of them came from
Humboldt County, Nevada. It is our contention that the last paragraph of section 8934 N. C.
L. renders it unnecessary to serve subpenas upon witnesses in order to be entitled to the
costs of their fees and mileage.
57 Nev. 131, 138 (1936) Warren v. De Long
in order to be entitled to the costs of their fees and mileage. Helena Adjustment Co. v. Claflin
(Mont.), 243 P. 1066; Peterson v. Fugle (Mont.), 31 P. (2d) 1033.
OPINION
By the Court, Coleman, J.:
This action was commenced to recover judgment against William M. De Long and Mabel
De Long, his wife, upon certain promissory notes, and to foreclose a certain real and chattel
mortgage executed June 1, 1927, to secure the same. Bill De Long and Jewell De Long,
children of the above-named defendants, were made party defendants. Judgment was
rendered against William and Mabel De Long in the amount of the unpaid balance upon the
notes, plus certain sums paid out by plaintiff for taxes and attorney fees, and a foreclosure of
the mortgage was decreed. Judgment was rendered in favor of the other defendants.
We will refer to William M. De Long and wife as defendants, and to the other
defendants as children.
Plaintiff has appealed from the judgment on the merits in favor of the children, and the
children have appealed from an order made after judgment, retaxing costs.
All of the defendants admit the execution of the notes and mortgage in question, and that
plaintiff was the owner and holder thereof at the time the action was brought.
The mortgage covers about four hundred head of cattle and their increase, and ranching
implements upon the ranches covered by the mortgage, owned by the defendants William De
Long and wife.
The real controversy on this appeal is as to the ownership of about 315 head of cattle
bearing a JHG monogram brand, which the children claim to own, and which were run during
the life of the mortgage upon the ranches in question and the range adjacent thereto, and
other personal property.
57 Nev. 131, 139 (1936) Warren v. De Long
other personal property. In this connection, the complaint alleges, in substance, that
subsequent to the delivery of the notes and mortgage the defendants and the children did
fraudulently and collusively enter into a conspiracy to cheat and defraud the mortgagee and to
deprive him of a portion of the property covered by the mortgage.
About the year 1903 the defendant William M. De Long and his brother, Alta L. De Long,
purchased the Happy Creek ranch of one J. H. Griffin, together with the cattle and the JHG
brand, which brand was used by them for a time and until all of the cattle bearing that brand
were sold, after which that brand was not used by them. In the year 1905 William M. De
Long and Mabel De Long intermarried, of which union a son, Floyd De Long (now
deceased), was born in 1906. At this time Alta De Long and William M. De Long dissolved
partnership. At the time of the birth of Floyd De Long the defendants had adopted and were
using the OYL monogram brand, which they continued to use to the time of the institution of
this suit. Upon the birth of Floyd De Long the defendants gave him one heifer calf, which was
branded JHG. Between the years 1905 and 1917, inclusive, there was born to the defendants
seven sons and a daughter. On February 2, 1916, William M. De Long caused to be recorded
in the office of the recorder of Humboldt county, in which is situated all of the property in
question, the JHG monogram brand, in the name of Wm. De Long's boys, to be used on
horses right shoulder and on right shoulder of cattle. Upon the birth of each of said children
to the defendants he was given one heifer calf. In addition thereto, from twenty to twenty-four
calves were given to said children by different persons, including two grandmothers. The
JHG brand was again recorded in the office of the recorder of Humboldt County in the year
1920. In 1923 the same brand was recorded in the office of the state board of stock
commissioners, with following earmarks: A square crop in right ear and underslope in left
ear, with wattle on left side of neck and dulap on brisket.
57 Nev. 131, 140 (1936) Warren v. De Long
with wattle on left side of neck and dulap on brisket. The said brand was rerecorded in said
last-named office in 1926, in 1930, and in 1935. All of said records having been made by
William De Long in the name of Wm. De Long's boys.
We will not consider the errors assigned in the order of assignment. The first alleged error
we will dispose of relates to the ruling of the court in holding that the JHG brand was legally
recorded and lawfully employed and used by the children. In this connection plaintiff calls
attention to sections 3790 and 3795 N. C. L. which relate to the recording of brands with the
state board of stock commissioners.
Section 3790 reads: Every owner of horses, mules, asses, cattle or hogs in this state may
design and adopt a brand or brands, or brand and mark, or brands and marks, with which to
brand or brand and mark his or her or its horses, mules, asses, cattle or hogs; provided, that it
shall be unlawful for any owner of such animals to brand or brand and mark, or cause to be
branded or branded and marked, his or her or its horses, mules, asses, cattle or hogs with a
brand or brand and mark not at the time of legal record as hereinafter provided.
Section 3795 reads: Hereafter, and excepting the rerecording, as provided for in this act,
of brands or marks of horses, mules, asses, cattle, and hogs, of legal record at the time of
passage of this act, every owner of horses, mules, asses, cattle or hogs in this state, desiring to
adopt and use thereupon any brand, or brand and mark, or marks, as provided for in this act,
shall, before doing so, forward to the board an application for the recording of such brand or
brand and mark or marks and receive his or her certificate of recordation as provided herein.
Said application shall include a drawing, exact except as to size, of the brand, together with
any ear or other marks desired or intended to be used therewith, and the location upon the
animal or animals concerned where such brand and ear or other marks are desired or
intended to be used, as well as a statement of the kinds of livestock upon which said
brand or brand and mark or marks is or are to be used, the approximate boundaries of
that part of the state within which it is intended to use the same, and the full name and
address of the applicant.
57 Nev. 131, 141 (1936) Warren v. De Long
desired or intended to be used, as well as a statement of the kinds of livestock upon which
said brand or brand and mark or marks is or are to be used, the approximate boundaries of
that part of the state within which it is intended to use the same, and the full name and
address of the applicant. For the purpose of this act, the postoffice address included in the
application shall be considered the legal address of the applicant until the board shall receive
from such applicant, in writing, a notice of change of the same, the latest address of record
with the board remaining the legal address.
The sections quoted were enacted in 1923 (Stats. 1923, p. 25, c. 26), but for many years
prior thereto there was a statute pertaining to the branding of livestock (Stats. 1873, p. 99, c.
39, Rev. Laws, sec. 2233 et seq.).
1. In support of the contention made, it is said in plaintiff's opening brief: Upon the
original pretended recording of this alleged JHG monogram brand, there was recorded
therewith no mark or marks whatsoever, and the record failed to show that any natural person,
corporation or legal partnership claimed to be the owner thereof.
In February 1916, when the original record was made, the statute read: Owners of horses,
mules, cattle, sheep, goats, or hogs, running at large, must have a mark or brand, and counter
brand, different from any one in use by any other person, so far as may be known. Rev.
Laws, sec. 2233.
This section required that owners of livestock must have a mark or brand, and counter
brand. It was optional whether an owner would have a mark or a brand. The word or
clearly indicates that it was not necessary that he have both.
The law of 1923, section 3790 N. C. L., above quoted, provides that every owner of
livestock may design and adopt a brand or brands, or brand and mark or brands and marks.
It is not even mandatory that an owner adopt and record anything which may be used as a
means of identification of livestock, but if he elects to do so he may adopt {1) "a brand or
brands," or {2) "brand and mark," or {3) "brands and marks."
57 Nev. 131, 142 (1936) Warren v. De Long
means of identification of livestock, but if he elects to do so he may adopt (1) a brand or
brands, or (2) brand and mark, or (3) brands and marks.
From a careful reading of the two acts it appears that it was not necessary that the children
adopt and record a mark or marks, in addition to a brand.
It is not clear just what point plaintiff seeks to make because the original filing contained
no marks. When the 1923 act was adopted a filing was made with the state board, adding to
the brand the marks. It is not contended that this cannot be done.
As to the other point, that is, that the record failed to show that any natural person,
corporation or legal partnership claimed to be the owner thereof, we assume that it is meant
that Wm. De Long's boys are not natural persons.
2. We are of the opinion that the legislature, in enacting the statutes relative to the
branding and marking of livestock, had in mind merely to provide a method whereby an
animal may carry with him prima-facie proof of ownership (3799 N. C. L.), thereby aiding in
the identification by an owner of his property, and the establishment of ownership.
3, 4. We are of the opinion that the children are natural persons. We think it is not
uncommon for owners of cattle to do business in a firm name and to have a brand in such
name. That appeared from the opinion in State v. Cardelli, 19 Nev. 319, 10 P. 433, to have
been the fact. In this connection we may say that the contention that the fact that the brand of
the children was recorded by their father is a reason why it should not be considered, is not
tenable. We are of the opinion that the provision in the statute that the owner of livestock
may record a brand or mark does not mean that the owner must see to the recording in person.
The provision is in this respect merely directory. If it were necessary that the owner
personally supervise the recording, instances might arise in which the owner would lose his
right, as, for instance, in cases of prolonged illness, insanity, and the like.
57 Nev. 131, 143 (1936) Warren v. De Long
of prolonged illness, insanity, and the like. The section should not be given a narrow,
technical interpretation which might defeat its purpose, but one which will effectuate its
purpose, and at the same time injure no one. The plaintiff made the children defendants and
brought them into court; and while the individual names were not given, in the record, that is
certain which is capable of being made certain. Ellison Ranching Co. v. Bartlett, 53 Nev. 420,
3 P. (2d) 151.
5. It is said in plaintiff's opening brief that the children allege affirmatively that they were
the owners, jointly with their brothers, of the property in question, and were permitted to
make proof that the brothers and sister were joint owners thereof, without first having
amended their answer. If an error was committed, as contended, it was harmless, as plaintiff's
case was not affected thereby.
6. It is strenuously urged that the trial court erred in finding that the minor children could
lawfully accumulate property during their minority as the result of labor and services rendered
while living with their parents. Many authorities are cited in support of the general rule of law
on the point made. We agree with the general rule of law as contended for, and recognized it
in Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505, where we also pointed out that a parent
might emancipate his child. The trial court recognized the rule invoked, but held that under
the facts it had no application in this case. We are of the opinion that there is sufficient
evidence in the record to sustain the findings on this point. The evidence is undisputed as to
the gift to each of the children, upon birth, of one or more heifer calves. That infants may
accept and own property given them, free of the claim of their parents, is too well established
to need the citation of authority to sustain the statement. 13 C. J. 1013.
7. That the parents emancipated the children so far as the cattle in question are concerned,
is clearly established by the filing for record by the father of the brand, in 1916, and the
continued acknowledgment of such emancipation, long prior to the giving of the
mortgage in question.
57 Nev. 131, 144 (1936) Warren v. De Long
in 1916, and the continued acknowledgment of such emancipation, long prior to the giving of
the mortgage in question.
At point IV of appellant's brief it is said that it is admitted that the JHG brand was not
legally recorded. We find nothing in the record substantiating this statement. In fact,
everything indicates the resistance of this contention. From what we have already said, we
think it was legally recorded.
8. We do not think the court erred in permitting evidence to be introduced to show who
were meant by Wm. De Long's boys. So far as the plaintiff is concerned, it did not matter
whether there were three or thirty claiming under that brand.
9. It is also contended that the recorded brand was improperly admitted in evidence
because the record states that the cattle should be branded on a particular portion of the
animal; whereas, some of the cattle are branded on the opposite side of the animal from that
called for in the record. The plaintiff was not prejudiced by the ruling of the court, under the
facts of the case. The Texas court, in disposing of the same question in Harwell v. State, 22
Tex. App. 251, 2 S. W. 606, 608, said: Again, the jury are told that, if the yearling was
branded on the side, instead of on the left hip, they could not consider the record of the brand
in determining the ownership of the animal. This we think was error, but it was favorable to
the defendant. While the record of the brand, under this state of the case, was not sufficient to
prove ownership, still it was evidence tending to do so, and was entitled to consideration by
the jury in connection with other (if any) evidence of ownership. The above rule was
approved in Massey v. State, 31 Tex. Cr. R. 91, 19 S. W. 908.
We think this court has approved the same idea. In State v. Cardelli, 19 Nev. 319, 10 P.
433, 439, the court said: The testimony was clear and positive that Carlin had for years prior
to the sale of his cattle to Vail Bros., used the marks and brands in question. If it should be
conceded that, under the provisions of section 9, it was unlawful for Carlin or the Vail
Bros. to use these marks and brands without having them recorded, still the fact remains
that they did use them; and there is no provision in the statute which prohibits them, in a
case like this, from identifying their cattle by such marks and brands, and having such
identity considered as testimony tending to prove their ownership." See, also, Brooke v.
People, 23 Colo.
57 Nev. 131, 145 (1936) Warren v. De Long
should be conceded that, under the provisions of section 9, it was unlawful for Carlin or the
Vail Bros. to use these marks and brands without having them recorded, still the fact remains
that they did use them; and there is no provision in the statute which prohibits them, in a case
like this, from identifying their cattle by such marks and brands, and having such identity
considered as testimony tending to prove their ownership. See, also, Brooke v. People, 23
Colo. 375, 48 P. 502; State v. Henderson, 72 Or. 201, 143 P. 627; 1 Ency. Ev. 889.
10. It is also contended that the children forfeited all right they had to the cattle claimed by
them, because they were not branded and marked exactly as contemplated by section 2239
Rev. Laws of 1912. The section mentioned is section 7 of the act of 1873. We think the act of
1873 was expressly repealed by the act of 1923, being section 3806 N. C. L. But if not
expressly repealed, it was repealed by implication by the act of 1923 (sections 3790-3807 N.
C. L.), which revises the whole subject matter of the act of 1873. Thorpe v. Schooling, 7 Nev.
15; State ex rel. Flack v. Rogers, 10 Nev. 319; 59 C. J. 921.
Having disposed of all of the legal questions raised, there remains but the question of
whether the evidence is sufficient to sustain the judgment and order appealed from.
11. We do not feel that it is necessary to review the evidence at length. It is clear that the
recording of the brands and marks in behalf of the children was not with the intention to
defraud this plaintiff. The first record was in 1916, eleven years prior to the giving of the
mortgage in question. The amending thereof so as to add marks was several years before the
mortgage was given, and the rerecording was but a natural consequence of the former
recording.
Senator Phil Tobin testified that he had been familiar with the range on which the cattle
ran since 1923; that in 1924 he rode the range after his own cattle and as appraiser, for the
First National Bank, of the Lay cattle; that it was common knowledge that the JHG cattle
belonged to "Bill De Long's boys."
57 Nev. 131, 146 (1936) Warren v. De Long
cattle; that it was common knowledge that the JHG cattle belonged to Bill De Long's boys.
Several other witnesses testified along the same lines, besides members of the De Long
family.
There is testimony on the part of the De Long boysby themselves and othersthat they
used care not to brand calves following cows with the OYL brand, though it appears that at
least one calf was improperly branded JHG. There is testimony also that a calf belonging to
the children was branded OYL. There is testimony by one of the plaintiff's main witnesses
(and others) that he has made such a mistake.
The supreme court of Wyoming had substantially the same question before it as is
involved in the instant case, so far as the gift of livestock to minor children, and its offspring,
is concerned, in the case of Kreigh et al. v. Cagswell et al., 45 Wyo. 531, 21 P. (2d) 831.
After reviewing both the Roman civil law and the common law at length, the court reached
the conclusion that livestock given to minor children while living with the parents, and its
offspring, remained the property of the children. This is an interesting case, and, while not
necessary to a determination of the case before us, because of the emancipation of the
children, we call attention to it because of the interesting and exhaustive consideration of the
general question.
In this connection we cite Rowan v. U. S. Fidelity & Guaranty Co., 105 Wash. 432, 178 P.
473.
12. While the conditions under which the cattle in question were run and the other
personal property was dealt with were such as might have enabled fraud to have been
perpetrated with ease, and courts should closely scrutinize the evidence in such situations, as
no doubt the court did in the instant case, in view of the fact that fraud is never presumed, and
must be clearly and satisfactorily shown (Nevada M. & E. Co. v. Rae, 47 Nev. 173, 218 P. 89,
223 P. 825), we cannot say that the trial court reached an erroneous conclusion. Evans v.
Sparks, 170 Cal. 532, 150 P. 372; Gilmore v. Swisher, 59 Kan.
57 Nev. 131, 147 (1936) Warren v. De Long
59 Kan. 172, 52 P. 426; Mueller v. Renkes, 31 Mont. 100, 77 P. 512. This conclusion as to
the livestock is, to some degree, fortified by reason of the fact that plaintiff reported to the
assessor of Humboldt County, for tax purposes, the cattle claimed under his mortgage, to be
greatly less than actually rounded up, as the property of defendants, shortly before this suit
was brought.
We have made no allusion to the evidence concerning the farming implements. To
undertake to deal with each specific article would unduly lengthen this opinion.
Plaintiff attacks strenuously the finding of the court as to one Fordson tractor. It was
owned and used by Floyd De Long in Elko County, and was never in Humboldt County until
several years after the execution of the mortgage, when, according to the positive evidence,
he gave it to the children. There was ample evidence to enable the court to reach the
conclusion it did as to this property, and we cannot say that it erred.
13. It is also contended that William De Long sold hay, which was grown on the ranch, to
the children, with which to feed their cattle; hence plaintiff should have a claim upon them
for its value. If plaintiff has any such claim, it is evidently an afterthought, as no issue is made
of it in the pleadings; hence we cannot pass upon it.
Upon the entire record, we are of the opinion that the judgment and order appealed from
should be affirmed.
We will now consider the appeal of the children from the order retaxing costs.
14. The children put in claims for witness fees and mileage for witnesses who resided at a
distance from the place of trial, but who were not subpenaed to appear, but who, being in the
courtroom during the trial, were called to testify. The court disallowed the claim for such
witnesses, except for the day called to the witness stand. We see no error in this ruling.
Section 8490 N. C. L. provides that: Witnesses required to attend in the courts of this
State shall receive the following compensation.
57 Nev. 131, 148 (1936) Warren v. De Long
Section 8982 provides that a person present in court may be required to testify in the same
manner as if he were in attendance upon a subpena.
Counsel for the children have filed a very exhaustive brief on this question, reviewing the
statutes from the earliest day down to the present laws, and contend that the condition which
prevailed before automobiles and good roads came into prominence presented a different
situation than now. This is true, but if the legislature thinks these changed conditions justify a
change in the law, it is up to it to say so.
The law as it exists was interpreted in Meagher v. Van Zandt, 18 Nev. 230, 2 P. 57, and
Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P. 188, to mean that where a witness
who was not required to appear in court by the service of subpena could claim a fee for the
day he was on the witness stand, only, and no mileage. We think those decisions are in
keeping with the letter and spirit of the law, and it follows that the order appealed from must
be affirmed.
It is also ordered that the order and judgment appealed from by plaintiff be affirmed.
On Petition for Rehearing
September 14, 1936. 60 P. (2d) 608.
1. Appeal and Error.
Appellant was not injured by statement in supreme court's opinion that controversy
involved 315 cattle, which number appellant claimed was too high, where appellant's
complaint set number at 350 and trial court found that there were about 314.
2. Appeal and Error.
On petition for rehearing of action to foreclose chattel mortgage on cattle and their
increase where controversy arose between mortgagee and two children of mortgagor as to
ownership of increase of cattle, which mortgagor had given to children, mortgagee could
not for first time complain that he had day in court with only two of mortgagor's children
where their answer stated that they and other children claimed cattle jointly.
3. Appeal and Error.
Where mortgagee had reported to tax assessor a much smaller number of cattle
claimed under his mortgage than were later rounded up, statement of supreme court
in its opinion that such fact fortified conclusion that no fraud had been perpetrated by
mortgagor, while inaccurate where record showed that same number had been
assessed to mortgagor, did not require reversal.
57 Nev. 131, 149 (1936) Warren v. De Long
smaller number of cattle claimed under his mortgage than were later rounded up,
statement of supreme court in its opinion that such fact fortified conclusion that no fraud
had been perpetrated by mortgagor, while inaccurate where record showed that same
number had been assessed to mortgagor, did not require reversal.
4. Appeal and Error.
Judgments are reversed only to correct errors.
5. Conspiracy.
Showing that conditions were such as to be conducive to perpetration of fraud was not
enough to show conspiracy to defraud, since fraud is never presumed, but must be
proven.
Appeal from Second Judicial District Court, Humboldt County; James Dysart, Judge
Presiding.
On petition for rehearing. Petition denied.
For former opinion, see 57 Nev. 131, 59 P. (2d) 1165.
J. W. Dignan, for Appellant.
Salter & Robins, for Respondents.
OPINION
By the Court, Coleman, J.:
Appellant has filed a petition for a rehearing. One of the statements in the opinion of
which complaint is made reads: The real controversy on this appeal is as to the ownership of
about 315 head of cattle bearing a JHG monogram brand, which the children claim to own. *
* *
Counsel seeks to make a great point of this. In his petition he says:
But the evidence is clear, positive and uncontradicted, that the number of cattle claimed
by the De Long children is 241 head. But, notwithstanding this evidence, the trial court found
that there were 300 head of cattle, and this court places the number at 315.
Of course, the statement, by way of a recital in the opinion, that there are 315 head of
cattle in dispute, could not be very material were it not for the fact that the judgment
itself is so grossly erroneous upon this very vital point in the case. This recital, however,
becomes very material indeed when this court's attention is called to the fact that the
evidence discloses, without contradiction, that there were in fact but 241 head of cattle
bearing the JHG brand, and that the trial court gave to the defendants, Bill De Long, Jr.,
and Jewell De Long, along with three brothers named and a sister, a judgment against the
plaintiff, commanding the forthwith delivery to said persons of 300 head of cattle, thus
giving judgment against the plaintiff for 59 head more cattle than the evidence clearly
showed were in controversy."
57 Nev. 131, 150 (1936) Warren v. De Long
opinion, that there are 315 head of cattle in dispute, could not be very material were it not for
the fact that the judgment itself is so grossly erroneous upon this very vital point in the case.
This recital, however, becomes very material indeed when this court's attention is called to
the fact that the evidence discloses, without contradiction, that there were in fact but 241 head
of cattle bearing the JHG brand, and that the trial court gave to the defendants, Bill De Long,
Jr., and Jewell De Long, along with three brothers named and a sister, a judgment against the
plaintiff, commanding the forthwith delivery to said persons of 300 head of cattle, thus giving
judgment against the plaintiff for 59 head more cattle than the evidence clearly showed were
in controversy.
By the language complained of we referred to the number of cattle in controversy, merely.
The fact is that the plaintiff's complaint, which is sworn to by the plaintiff and signed by
counsel, avers, at line five, page 11 of volume 2 of the record, that the number of cattle
which the said defendants by means of a fraudulent conspiracy between themselves have
sought to and are now seeking to claim to be the property of the said defendants are 350
head of mixed cattle. The answer of the children avers that they now are the owners of, and
entitled to the possession of about 300 head of cattle * * * in the vicinity of Happy Creek and
range adjacent thereto * * * and about 14 head of cattle located at Bottle Creek ranch branded
JHG, 314 in all.
The trial court in its formal findings held that the children were entitled to about 300 head
of cattle * * * which said cattle range in the vicinity of Happy Creek and range adjacent
thereto * * * and about 14 head of cattle located at Bottle Creek ranch, * * * total 314.
1. We fail to see wherein plaintiff was injured by our innocent statement as to the number
of cattle in controversy.
We think, too, the evidence sufficient to justify us in not reversing the findings as to the
number of cattle awarded respondents.
57 Nev. 131, 151 (1936) Warren v. De Long
not reversing the findings as to the number of cattle awarded respondents.
Counsel complains bitterly of the following language in the opinion: So far as the
plaintiff is concerned it did not matter whether there were three or thirty claiming under that
brand.
2. In this connection counsel says plaintiff never had a day in court with any of these
named parties except the named defendants Bill De Long, Jr., and Jewell De Long. In the
verified answer filed by Bill De Long, Jr., and Jewell De Long it is stated that other children
jointly with them had in their possession and owned a large number of cattle branded JHG.
Plaintiff knew long before the trial of the claim of ownership of all the children. He could
have asked that they be formally made parties. He did not do so, and now, for the first time,
complains that he has not had his day in court. He was not surprised during the trial and we
do not see that he has been injured. The judgment should not be reversed for a nonprejudicial
technicality, if there be such, of which plaintiff knew and bided his time to urge.
Counsel complains grievously because of the following statement in our former opinion:
This conclusion as to the livestock is, to some degree, fortified by reason of the fact that
plaintiff reported to the assessor of Humboldt County, for tax purposes, the cattle claimed
under his mortgage, to be greatly less than actually rounded up, as the property of defendants,
shortly before this suit was brought.
3. We confess that the statement is inaccurate. Testimony was offered on the trial as to the
number of cattle assessed to Wm. De Long, Sr., during the years 1930, 1931, 1932, 1933, and
1934. Counsel for defendant objected to this offer, but finally stipulated as follows: I will
save time by stipulating the record will show that 178 head of cattle were assessed to William
De Long, Sr. He further stipulated that the plaintiff paid taxes on that number of cattle for
the years mentioned.
57 Nev. 131, 152 (1936) Warren v. De Long
paid taxes on that number of cattle for the years mentioned. This correction does not entitle
plaintiff to any favorable consideration in the matter.
Counsel also takes umbrage at our ruling as to the claim for hay sold by Wm. De Long, Sr.
He says: From first to last the court, in its opinion, treats this controversy as an action at law
for the recovery of the possession of certain personal property. This view of the case at bar is
so plainly erroneous that a brief statement of the situation as disclosed by the pleadings will
demonstrate its fallacy.
4. The fact is that we disposed of the questions raised, as we understood them, and we
think that we decided in accordance with legal principles. As we held, there was no allegation
in the complaint even intimating such an issue, hence we could not say that the trial court
erred in its ruling. Judgments are reversed for the correction of errors only. Truckee River G.
E. Co. v. Durham, 38 Nev. 311, 149 P. 61; Water Co. of Tonopah v. Belmont Dev. Co., 50
Nev. 24, 249 P. 565; Kindel v. Beck & Pauli Lith. Co., 19 Colo. 310, 35 P. 538, 24 L. R. A.
311.
We adhere to our former ruling.
5. Relative to the branding on the wrong side of the cattle, we may say that under all of the
evidence in the case plaintiff was not misled nor injured. Plaintiff's theory is that the
defendants conspired to defraud the plaintiff. Senator Tobin and others testified that it was
commonly known that the JHG cattle belonged to respondents. Plaintiff's chief reliance, in an
attempt to show a conspiracy to defraud, is based upon the fact that the conditions were such
as to be conducive to the perpetration of fraud. This is not enough. Fraud must be proven; it is
never presumed.
From a consideration of the entire record, we cannot say that the trial court reached a
wrong conclusion.
The petition for a rehearing is denied.
____________
57 Nev. 153, 153 (1936) Priest v. Cafferata
NICHOLAS PRIEST, Appellant, v. M. E.
CAFFERATA, Respondent
No. 3137
August 17, 1936. 60 P. (2d) 220.
1. New trial.
Generally, on well-recognized grounds of public policy, juror will not be heard to impeach his own
verdict.
2. New Trial.
Striking portions of affidavits supporting motion for new trial on ground of jurors' misconduct which
purported to set forth statements of certain jurors as to what other jurors said in presence of jury held not
error, since statements were hearsay.
3. New Trial.
Plaintiff's failure to object promptly on return of jury to courtroom to alleged misconduct of jurors in
making certain tests relating to defendant's automobile while automobile was across street in front of
courthouse waived alleged misconduct as ground for new trial.
4. New Trial.
Refusing new trial sought by plaintiff in automobile case on ground that juror's brother was killed by
automobile within six months before juror's service and juror was bitter because driver was not punished or
held to pay damages held not error where voir dire examination disclosed no fraud, perjury, or contempt,
and there was no evidence that juror was influenced by such feeling.
Appeal from Second Judicial District Court, Washoe County; J. M. Lockhart, Judge
Presiding.
Action by Nicholas Priest against M. E. Cafferata. From an order refusing a new trial,
plaintiff appeals. Affirmed.
H. R. Cooke, for Appellant:
The trial court should have considered and given effect to the affidavits of N. L. Priest,
Celia Priest, A. Platz, and Ernest S. Brown, 46 C. J. 92, sec. 51 and n. 54; 46 C. J. 94, nn. 57,
58; 46 C. J. 142, sec. 99 and n. 23; 46 C. J. 354, n. 65; 46 C. J. sec. 468; Tarpey v. Madsen
(Utah), 73 P. 411; Harris v. Eclipse L. Co., 186 N. Y. S. 533; Slater v. United, etc. Co., 157
N. Y. S. 909; Harris v. Boggess (Okla.), 255 P. 685; Sherwin v. S. P. Co. {Cal.), 145 P.
57 Nev. 153, 154 (1936) Priest v. Cafferata
S. P. Co. (Cal.), 145 P. 92; Williams v. Bridges (Cal.), 35 P. (2d) 407; People v. Galloway
(Cal.), 259 P. 332; Lombardi v. California, etc. Co. (Cal.), 57 P. 66, 68; Spielter v. North, etc.
Co., 249 N. Y. S. 358; Hinkel v. Oregon Chair Co. (Ore.), 157 P. 789; Peppercorn v. Black
River Falls (Wis.), 46 Am. St. Rep. 818; Gordon v. Trevarthan (Mont.), 34 P. 185, 40 Am. St.
Rep. 452; Baccelli v. Booth, 133 N. Y. S. 343; Earl v. Times-Mirror Co. (Cal.), 196 P. 57;
Knice v. Hedges, 194 N. Y. S. 657; Slater v. United, etc. Co., 157 N. Y. S. 909; Heasley v.
Nichols (Wash.), 80 P. 769; State v. Swafford (Wash.), 153 P. 1056; 46 C. J. 141 and n. 99;
46 C. J. 143, sec. 101, n. 28; 46 C. J. 144, sec. 102 and n. 50; 46 C. J. 151 and nn. 39, 40; 46
C. J. 153, 154 and n. 87; 46 C. J. 158, sec. 127 and nn. 37, 38; Sacramento, etc. Co. v.
Showers, 6 Nev. 291; Drury v. Franke, 247 Ky. 758, 57 S. W. (2d) 969; Thornton v. Stewart
(Mo. App.), 17 S. W. (2d) 994; Pierce v. Brennan et al., 83 Minn. 442, 86 N. W. 417; Aldrich
v. Wetmore (Minn.), 53 N. W. 1072; Bradbury v. Cony (Me.), 16 Am. Rep. 449; Harrington
v. Worcester, etc. St. R. Co. (Mass.), 32 N. E. 955; Woodbury v. Anoka (Minn.), 54 N. W.
187; Luguer v. Bunnell, 170 N. Y. S. 665; Woodruff v. Ewald (Wash.), 219 P. 851; Cresswell
v. Wainwright (Iowa), 134 N. W. 594.
The rule that affidavits of jurors will not be received to impeach their verdict applies only
to matters transpiring after impanelment and up to discharge of jury, and not to matters
having their origin before impanelment and which are continued after impanelment. Williams
v. Bridges, supra; West Coast, etc. Co. v. Kilbourn (Cal.), 294 P. 57, 58; U. S. v. Clark (D. C.
Minn.), 1 Fed. Supp. 757, 759.
E. F. Lunsford and H. W. Edwards, for Respondent:
The effect of the stricken part of the affidavits is, obviously, an effort to impeach the
verdict of the jury by hearsay as to what one of the jurors stated another of the jurors had
said during the course of the trial.
57 Nev. 153, 155 (1936) Priest v. Cafferata
of the jurors had said during the course of the trial. The rule that jurors may not be heard by
affidavit, sworn statement, or otherwise to impeach their own verdict is so firmly entrenched
in the jurisprudence or decision law of this state that it seems idle to even discuss the question
further than to cite the Nevada authorities. State v. Stewart, 9 Nev. 120; State v. Crutchley, 19
Nev. 368, 192 P. 113; Southern Nevada Mining Co. v. Holmes Mining Co., 27 Nev. 107, 73
P. 759; Page v. Sutton, 45 Nev. 395, 204 P. 881. But, see, also, Oklahoma K. & M. Ry. Co. v.
McGhee (Okla.), 202 P. 277; Kimic v. San Jose-Los Gatos Int. Ry. Co. (Cal.), 104 P. 986;
Ponca City v. Swayne (Okla.), 50 P. (2d) 1082; Siemsen v. Oakland S. L. & H. Elec. Ry. Co.
(Cal.), 66 P. 672; 46 C. J. 366, sec. 390; People v. Murphy (Cal.), 80 P. 709.
Certainly, if the purposes for which a view of premises or an automobile or other
apparatus is to be at all efficacious and of any assistance whatsoever to a jury, the jurors
should be permitted to make their own observations and to apply the evidence to those
observations. But, assuming the contrary and that it showed misconduct, it affirmatively
appears from the affidavit of N. L. Priest that the conduct of certain jurors in making alleged
tests were known to the plaintiff in the action before the case was finally submitted to the
jury. A litigant may not be permitted to witness misconduct of a jury and not report the same
to the court before the jury retires for its deliberations, and then come in subsequent to an
adverse verdict and move for a new trial upon misconduct, the existence of which he knew
before the verdict. 20 Cal. Juris. 61; Sherwin v. Southern Pacific Co. (Cal.), 145 P. 92.
We submit that there was absolutely nothing false in any of the answers which the jurors
Van Meter and Mrs. Douglas gave on their voir dire examinations, and nothing to show that
they were in fact biased in favor of the defendant.
57 Nev. 153, 156 (1936) Priest v. Cafferata
OPINION
By the Court, Coleman, J.:
The appeal in this case is from an order denying plaintiff's motion for a new trial. The
grounds of the motion were: Irregularity in the proceedings of the jury by which plaintiff was
prevented from having a fair trial; misconduct of the jury; accident or surprise which ordinary
prudence could not have guarded against.
The plaintiff filed affidavits to support his motion. The defendant made a motion to strike
the affidavits from the files, for the reasons that they are incompetent, irrelevant, immaterial,
and surplusage. For the reasons assigned, the court ordered all of the material portions
(according to plaintiff's theory) of the affidavits in question stricken, except that of Ernest S.
Brown.
N. L. Priest and Celia Priest filed joint affidavits relating to statements made by Herman
Baker, one of the jurors in the case, as to statements made by H. L. Van Meter and Ida A.
Douglas, other jurors in the case, during the trial thereof; that Mrs. Eva White, another juror,
also made a statement to the effect that Bessie Greenfield did not reside at the place she
testified to at the trial. A. Platz and Nicholas Priest filed a joint affidavit wherein they set
forth that they knew W. D. Reeder, who served as a juror in this case; that said Reeder stated
in their presence that while the jury was viewing the car involved in the accident he made
certain tests for the purpose of determining the truthfulness of the testimony of the defendant.
Affiant Priest further swore that on May 9, 1935, pursuant to court order, the jury in the case,
accompanied by counsel for respective parties, viewed defendant's automobile which was
involved in the accident in question, while standing across the street in front of the
courthouse; that he, affiant, was near by at the time the jury made said view, and he saw and
observed the said juror Reeder make the test described in the joint affidavit of Platz and
affiant, and that he also saw the juror Lillian Barnes make a similar test, but that he is not
advised as to the conclusions reached, if any, as a result of such tests.
57 Nev. 153, 157 (1936) Priest v. Cafferata
view, and he saw and observed the said juror Reeder make the test described in the joint
affidavit of Platz and affiant, and that he also saw the juror Lillian Barnes make a similar test,
but that he is not advised as to the conclusions reached, if any, as a result of such tests.
1. Scarcely any rule of law is more thoroughly entrenched in the jurisprudence of this
country than the general one that a juror will not be heard to impeach his own verdict. This
rule is founded upon well-recognized grounds of public policy. Sustaining the rule in this
state are: State v. Stewart, 9 Nev. 120; State v. Crutchley, 19 Nev. 368, 12 P. 113; Southern
Nev. G. & S. M. Co. v. Holmes M. Co., 27 Nev. 107, 73 P. 759, 103 Am. St. Rep. 759.
To those of an inquiring mind, we refer to the long list of authorities sustaining the rule,
cited to note to Bartlett v. Patton, 5 L. R. A. 523; 27 R. C. L. p. 896; 46 C. J. p. 354.
2. Appellant seeks to evade this rule by having third parties make affidavits as to what
certain jurors told them after the trial had been concluded and a verdict rendered. This cannot
be done. Such sworn statements are mere hearsay and entitled to no consideration. Cain Bros.
Co. v. Wallace, 46 Kan. 138, 26 P. 445; Peterson v. Skjelver, 43 Neb. 663, 62 N. W. 43;
Richards v. Richards, 20 Colo. 303, 38 P. 323; Wagoner v. Caskey, 85 Okl. 168, 205 P. 137;
Maryland Casualty Co. v. Seattle Elec. Co., 75 Wash. 430, 134 P. 1097.
The court did not err in striking so much of the affidavits mentioned as purported to set
forth statements of certain jurors as to what other jurors said in the presence of the jury.
3. The next question is: Did the court err in holding that plaintiff was not entitled to a new
trial because of the fact that two of the jurors made certain tests while defendant's automobile
was across the street in front of the courthouse? We think not. By not objecting to this
misconduct, if it be such, which we do not determine, promptly upon the return of the jury
to the courtroom, plaintiff waived the point.
57 Nev. 153, 158 (1936) Priest v. Cafferata
determine, promptly upon the return of the jury to the courtroom, plaintiff waived the point.
Lee v. McLeod, 15 Nev. 158; 12 Ency. Pl. & Pr. p. 553.
4. It is also contended that the trial court erred in denying a new trial because of matters set
up in the affidavit of Ernest S. Brown. It is doubtful if the plaintiff's notice of motion for a
new trial was sufficiently broad to entitle him to urge this point; however, since the trial court
disposed of the contention, we will do so, and we know no better way of doing it than to
adopt the opinion of the trial court on this point, where it said:
This affidavit shows that a brother of the juror was killed within six months of the time of
the juror's service upon this jury by being run over by an automobile driven by another; that
the juror was very bitter in that the driver of the injuring automobile was not punished or held
to pay damages for the killing of his brother.
The voir dire examination of this juror does not show any fraud, perjury or contempt so
bitterly denounced by Justice Cardozo in the case of Clark v. United States, 289 U. S. 1, 53 S.
Ct. 465, 77 L. Ed. 993.
He testified that at no time in recent years, had he had an experience that had caused him
to form some kind of an opinion as to the rights of parties in automobile cases involving
personal injuries like the case at bar. His answers may have been strictly true as he viewed the
situation and understood the questions, and surely nothing in his voir dire examination in the
light of subsequent actions would be sufficient to hold him guilty of fraud, perjury or
contempt of court. The affidavit of District Attorney Brown, given its fullest effect shows, if
anything in this case, a decided aversion by the juror to and a desire to punish by way of
damages and imprisonment, one to blame in automobile cases. Had the defendant in this case
been the losing party, he could have urged the feeling of this juror much more effectively than
can the prevailing plaintiff.
57 Nev. 153, 159 (1936) Priest v. Cafferata
There is nothing to show but that this trial did change the viewpoint of this juror and he
became convinced by the evidence and the instructions of the court that defendants in this
type of cases are not always to blame. All his alleged actions and complaints about his
brother's case were prior to the ending of this present case, and there is no evidence
competent for the court to consider that he took any feeling as to his bother's death into his
duties as a juror in this case at bar.
For the reasons given, the order appealed from is affirmed.
____________
57 Nev. 159, 159 (1936) Milner Et Al. v. Shuey
JAY S. MILNER, GEORGE E. AIRIS, and GEORGE H. DERN, as Trustees for and
on Behalf of the Stockholders and Creditors of the Dexter-Tuscarora Consolidated Gold
Mines Company, Appellants, v. GEORGE R. SHUEY, Respondent,
DEXTER-TUSCARORA MINES COMPANY, a Corporation, and L. W. HAGG, JOHN
DOE, RICHARD ROE, FIRST DOE, SECOND DOE, and THIRD DOE, Copartners,
Doing Business Under the Firm Name and Style of Independence Gold Syndicate,
Defendants.
No. 3145
September 3, 1936. 60 P. (2d) 604.
1. Mechanics' Liens.
A mechanic's lien will not fail for lack of conformity to requirements made essential by statute unless
proof shows substantial variance (Comp. Laws, sec. 3739).
2. Mechanics' Liens.
Statement in mechanics' lien claim that lienor was employed by copartnership instead of by certain
member of partnership, as appeared in agreed statement of facts, held not such variance as to render lien
invalid, notwithstanding lien was not amended to conform to facts, provision in statute allowing
amendment being directory only (Comp. Laws, sec. 3739).
3. Mechanics' Liens.
Lien claimed for labor performed on and material furnished for mining property held valid, although it
did not reveal or negative existence of any special terms, time given, and conditions of
employment contract, where evidence showed special terms, time, or conditions did
not exist.
57 Nev. 159, 160 (1936) Milner Et Al. v. Shuey
negative existence of any special terms, time given, and conditions of employment contract, where
evidence showed special terms, time, or conditions did not exist.
4. Mechanics' Liens.
Knowledge on part of an owner or person having or claiming interest in property, of improvements
constructed thereon, is essential allegation in complaint seeking to charge property with lien for labor
performed or material furnished (Comp. Laws, sec. 3743).
5. Mechanics' Liens.
Pleadings in a mechanics' lien case should be liberally construed.
6. Pleading.
An answer may supply material omissions in a complaint.
7. Mechanics' Liens.
In action for foreclosure of mechanics' lien, owner's complaint in intervention showing grant of two-year
option on mining property with right during time of option to operate property with obligation to pay
royalties upon any minerals extracted therefrom held to show notice to owners of improvements
contemplated by party obtaining option, so that lienor's failure to allege owners' knowledge of work done
on property was not fatal.
8. Mechanics' Liens.
Owners of property failing to file with county recorder duplicate of notice of nonliability for
improvements which had been posted on property, until more than year after posting, held liable for such
improvements, notwithstanding lien claimant had actual knowledge of nonliability claim of owners
(Comp.Laws, sec. 3743).
9. Mechanics' Liens.
Complaint alleging that there was due lien claimant certain amount as penalty in addition to amount due
for labor performed and material furnished held to sufficiently show intention to exact penalty prescribed
by statute (Comp. Laws, sec. 2785).
10. Mechanics' Liens.
In determining reasonable attorney fee to be allowed mechanic's lien claimant, amount involved,
character of services rendered, and time employed must be considered.
11. Mechanics' Liens.
In mechanic's lien action, attorney fee of $500 allowed by court held excessive and required to be
reduced to $350 where amount involved was $1,789.50, and case was tried on agreed statement of facts so
that no time was spent in examination of witnesses in court.
12. Costs.
Where judgment in mechanic's lien foreclosure suit was modified by reducing attorney fee allowed lien
claimant, neither party was allowed costs on appeal.
57 Nev. 159, 161 (1936) Milner Et Al. v. Shuey
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Action by George R. Shuey against the Dexter-Tuscarora Mines Company, and others,
wherein Jay S. Milner, and others, intervened. From an order denying motion for a new trial,
the interveners appeal. Judgment modified, and order denying motion for new trial
affirmed.
McNamara & Robbins and Senior & Senior, for Appellants:
The plaintiff's claim of lien and amended claim of lien each fails in at least two material
respects to comply with the statutory requirement as to the contents of a claim of lien.
FirstThe agreed statement of the evidence is that L. W. Hagg employed plaintiff. It,
therefore, appears that plaintiff's claim of lien and amended claim of lien and complaint are
each untrue as to plaintiff's having acted at the instance and request of the parties named. The
claim of lien and amended claim of lien do not in fact contain the name of the person by
whom he was employed or to whom he furnished material. Whiting-Mead Commercial
Company v. Brown (Cal.), 186 P. 387; Wagner v. Hansen (Cal.), 37 P. 195; White v. Mullins
(Ida.), 31 P. 801. We submit that the failure of the lien claim resulting from the above
variance cannot be cured under section 3739 N. C. L.
Even if it were conceded that the variance was unintentional, the statute itself does not
have any curative effect, but only permits the claim of lien to be amended to conform to the
proof. The record shows there was no amendment or attempted amendment of lien claim to
conform to the proof in this respect.
SecondThe plaintiff's claim of lien and amended claim of lien each fails to contain a
statement of the terms, time given and condition of the plaintiff's contract, and each fails to
state what the nature and extent of the work was or what portion of the claim was for
materials and what materials were furnished.
57 Nev. 159, 162 (1936) Milner Et Al. v. Shuey
extent of the work was or what portion of the claim was for materials and what materials
were furnished. 40 C. J. 232; Porteous Decorative Co. v. Fee, 29 Nev. 375, 91 P. 135; Warren
et al. v. Quade et al. (Wash.), 29 P. 827, 829.
The complaint does not state facts sufficient to constitute a cause of action for the
foreclosure of a mechanic's lien, in that:
FirstIt fails to show that plaintiff's claim of lien was in proper form or that it
substantially complied with the statutory requirements as to its contents. Norton v. Bedell
Engineering Co. (Cal.), 264 P. 311.
SecondIf it is the intention of the plaintiff to rely upon section 3743 N. C. L. in his
attempt to charge the interveners' property with a lien, then the complaint is further fatally
defective because of failure to plead facts bringing the case within the provisions of that
section, in which an active duty is imposed upon the owner, regardless of employment, to
repudiate liability for improvements made or materials furnished, within a certain time after
acquiring knowledge thereof.
Verdi Lumber Co. v. Bartlett, 40 Nev. 299, 161 P. 933; Didier v. Webster Mines Co., 49
Nev. 5, 234 P. 520.
ThirdIf it is the intention of the plaintiff to rely on section 3735, then the complaint is
defective in that there is no allegation that any work was done or that any material was
furnished at the instance of the interveners or any of them or at the instance of any agent of
the interveners or any of them. The record shows no amendment or attempted amendment of
either the lien claim or the complaint, to as much as refer to the interveners or any of them.
The plaintiff's complaint, we submit, is devoid of anything upon which a personal money
judgment against the interveners or any of them could possibly be based.
The work performed by the plaintiff was not a building or other improvement mentioned
in section 1 of the lien act (3735 N. C. L.), and was not of a class which conferred any
benefit upon the interveners or the property involved.
57 Nev. 159, 163 (1936) Milner Et Al. v. Shuey
which conferred any benefit upon the interveners or the property involved. Didier v. Webster
Mines Co., supra.
The lower court's decision and finding that L. W. Hagg was the agent of the interveners
and that the plaintiff sold, furnished and delivered supplies at the special instance and request
of L. W. Hagg and the interveners, is wholly without foundation and is contrary to the express
admission and stipulation of the plaintiff in the agreed statement of the evidence.
The record shows without dispute that plaintiff had actual notice in advance of the
performance of the work. Thus the full purpose of the statute (sec. 3743 N. C. L.) was
accomplished. Phillips v. Snowden Placer Co. et al., 40 Nev. 66, 160 P. 786; Didier v.
Webster Mines Co., supra.
Neither the plaintiff's complaint nor the record can support a judgment for a penalty under
section 2785 N. C. L. Fenn v. Latour Creek R. Co. et al. (Ida.), 160 P. 941.
If it be determined that the plaintiff's lien claim and the pleadings were sufficient to sustain
any award of attorneys' fees, the award of $500 was excessive, in view of the fact that the
plaintiff only claimed $1,285.50 to be due for work and labor, and that there was no taking of
evidence.
H. U. Castle and D. A. Castle, for Respondent:
The evidence contained in the agreed statement of facts includes the lien and the amended
lien, as well as a copy of the agreement between the interveners and Hagg. And it appears
from the evidence that the work performed by the plaintiff was in drilling prospect holes in
and upon the mining claims mentioned in the liens and complaint; and that the materials
furnished consisted of two casing couplings, $13, and two boxes of powder for plaintiff, $19;
and that plaintiff pulled certain casing for the said Hagg at a cost to plaintiff of $6.
57 Nev. 159, 164 (1936) Milner Et Al. v. Shuey
It also appears from the evidence, which is uncontradicted, that there were no particular
terms given, except that Hagg should pay the plaintiff for his work and that of his crew the
sum of $3.50 per crew hour. It is also stated in the liens and complaint that at the time the
liens were filed for record and the complaint filed in this action, the labor performed and the
materials furnished are and were of the reasonable value of $2,085.50, and said defendants
promised and agreed to pay plaintiff that sum for the said work and labor performed, and
caused to be performed, and for said materials furnished and delivered, no part of the said
sum of $2,085.50 has been paid, save and except the sum of $800, and there is now due and
owing from said defendants to said plaintiff for said work and labor performed, and caused to
be performed, and for said materials furnished and delivered for, about, in and upon said lode
mining claims the sum of $1,285.50, no part of which has been paid.
As there were no special terms, times or conditions given, then none could be contained in
the claims of lien or in the complaint, and for that reason the claims of lien are sufficient and
the complaint is sufficient. Lonkey v. Wells, 16 Nev. 271; Maynard v. Ivey et al., 21 Nev.
241, 29 P. 1090; Holtzman v. Bennett, 48 Nev. 274, 229 P. 1095; Gray v. New Mexico
Pumic Stone Co. (N. M.), 110 P. 603.
The interveners set forth in their complaint that the mining property referred to and
described in plaintiff's complaint vested in the interveners and that they were charged with the
duty of protecting said property and of winding up its corporate affairs. It is also alleged in
the answer of the interveners that they entered into a two-year option in writing with Hagg,
not only for the purpose of endeavoring to dispose of the property described in plaintiff's
complaint and other property in that locality, and for the purpose of winding up the affairs of
the corporation, but also for the purpose of developing the property and of determining its
value.
57 Nev. 159, 165 (1936) Milner Et Al. v. Shuey
developing the property and of determining its value. And that agreement is in the evidence.
The evidence also shows that Hagg had charge and control of the work done by the
plaintiff in drilling the prospecting holes, and the terms of the statute, without equivocation,
makes Hagg the agent of the owners (interveners). Sections 3735 and 3743 N. C. L.; Verdi
Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933; Oregon Lumber & Fuel Co. v. Nolan (Ore.),
143 P. 935; Higgins v. Carlotta Gold Mining Co. (Cal.), 84 P. 758; Dahlman v. Thomas
(Wash.), 153 P. 1065; Lamb v. Goldfield Lucky Boy Mining Co., 37 Nev. 9, 138 P. 902.
If the complaint or the liens of the respondent fail to show knowledge on the part of the
interveners, then the answer of the interveners, together with the agreed statement of facts,
cure that defect, in view of the many decisions of this court in accordance with the holdings
in the case of Thomas v. Palmer, 49 Nev. 438, 248 P. 887, and other cases cited therein.
Notice of nonliability as provided in the statutes must be given as prescribed by the
statutes, and a personal notice is not sufficient. George et al. v. Wentworth, 56 Nev. 380, 53
P. (2d) 1193; Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751; Pasqualetti v. Hilson (Cal.), 185
P. 693; Leoni v. Quinn (Cal.), 209 P. 551.
Respondent maintains that he would be entitled to the penalty of twenty-eight days work
of his employees, in view of the provisions of ch. 139, Stats. 1925, p. 226, the allegations of
the complaint, the lien claim, and in accordance with the authorities heretofore cited.
The agreed statement of facts reads: The amount of attorneys' fees, if any are allowed in
this action, shall be fixed by the court in a sum deemed reasonable and just. The court has
fixed the sum of $500 as a reasonable and just amount.
In conclusion, respondent maintains that the complaint of plaintiff and the lien claims as
aided by the complaint in intervention and the answer of the interveners are sufficient, and
in this connection cite the case of Morris v. Morris, 50 Nev. 29S
57 Nev. 159, 166 (1936) Milner Et Al. v. Shuey
interveners are sufficient, and in this connection cite the case of Morris v. Morris, 50 Nev.
298, 258 P. 232.
OPINION
By the Court, Ducker, C. J.:
Action for foreclosure of a mechanic's lien for labor performed upon the materials
furnished by respondent, for the mining property described in his complaint.
Foreclosure was decreed in the sum of $1,789.50, the amount claimed.
Prior to the trial respondent was, by order of the court, permitted to file an amended claim
of lien substituting Dexter-Tuscarora Consolidated Gold Mines Company as the owner of the
property, for the two mining companies named in the original claim of lien. Shortly
thereafter, Jay S. Milner, George E. Airis, and George H. Dern, as trustees for and on behalf
of the stockholders and creditors of the Dexter-Tuscarora Consolidated Gold Mines
Company, filed their complaint of intervention. The case was tried upon the issues made
upon the pleadings of respondent and interveners and upon an agreed statement of facts. It
comes here on appeal from an order denying a motion for a new trial.
It is alleged in the complaint in intervention that the Dexter-Tuscarora Consolidated Gold
Mines Company, organized under the laws of the State of Utah and qualified under the laws
of the State of Nevada to transact business therein as a foreign corporation, forfeited its
charter on or about April 6, 1916, and ceased thereafter to exist as a corporation; that
interveners were the directors of said corporation when its charter was forfeited and are the
only surviving directors; that by operation of law they became vested with all the property
and assets of said corporation and charged with the duty of protecting said property and assets
and winding up its corporate affairs.
It is also alleged in the complaint in intervention that in September 1931, interveners, as
such trustees and for the purpose of endeavoring to dispose of its mining property
described in the complaint, and for the purpose of winding up the affairs of said
corporation, granted to one Lawrence W.
57 Nev. 159, 167 (1936) Milner Et Al. v. Shuey
that in September 1931, interveners, as such trustees and for the purpose of endeavoring to
dispose of its mining property described in the complaint, and for the purpose of winding up
the affairs of said corporation, granted to one Lawrence W. Hagg, of Toronto, Canada, a
two-year option in writing to purchase said mining property with the right, during the term of
said option, to operate said property for the purpose of determining its value, and as
consideration for said option and the right to operate said property, to pay a certain royalty
upon any mineral extracted therefrom. The performance of labor and furnishing materials, as
alleged in the complaint, are denied in intervener's pleading, and they allege that on or about
the 30th day of November 1931, they caused two nonliability notices to be posted upon said
mining property, and that each was posted in a conspicuous place upon a building and
improvement situate thereon.
Appellants contend that respondent's lien is insufficient because (1) it does not contain
the name of the person by whom he was employed or to whom he furnished the material,
and (2) Nor a statement of the terms, time given, and conditions of his contract, as required
by section 3739 N. C. L. 1929.
In these respects the lien and amended lien shown by the agreed statement of facts, read:
That between October 1, 1932, and November 17, 1932, both dates inclusive, at the
special instance and request of the said L. W. Hagg, John Doe, Richard Roe, First Doe,
Second Doe and Third Doe, doing business under the firm name and style of Independence
Gold Syndicate, the said George R. Shuey performed work and labor upon, and furnished and
supplied materials for, about, in and upon, said lode mining claims, and in the development
thereof, which said work, labor and materials furnished and supplied, is and was of the
reasonable value of $2,085.50, and that the said L. W. Hagg, John Doe, Richard Roe, First
Doe, Second Doe and Third Doe, doing business under the firm name of Independence Gold
Syndicate, promised and agreed to pay said George R.
57 Nev. 159, 168 (1936) Milner Et Al. v. Shuey
Independence Gold Syndicate, promised and agreed to pay said George R. Shuey the said sum
of $2,085.50 for said work, labor and materials furnished and supplied as aforesaid, on or
about December 1, 1932.
That no part of the said $2,085.50 has been paid, save and except the sum of $800, and
there is now due and owing * * * the sum of $1,285.50.
1, 2. It appears from the agreed statement of facts that respondent was employed by L. W.
Hagg, instead of a copartnership of which he was a member, as stated in the claim of lien. But
this is not a substantial variance, and a lien will not fail for lack of conformity to
requirements made essential by statute, unless the proof shows a substantial variance. Malter
v. Falcon M. Co., 18 Nev. 209, 2 P. 50; section 3739 N. C. L. 1929. This section provides, in
part: Upon the trial of any action or suit to foreclose such lien no variance between the lien
and the proof shall defeat the lien or be deemed material unless the same shall result from
fraud or be made intentionally, or shall have misled the adverse party to his prejudice, but in
all cases of immaterial variance the claim of lien may be amended, by amendment duly
recorded, to conform to the proof.
How interveners could have been misled to their prejudice by a statement of Hagg's status
as a copartner instead of an individual, is not apparent. That they were not so misled is
admitted in their complaint wherein it is alleged that plaintiff performed any services which
were performed by him and furnished any materials which were furnished by him at the sole
instance and request of Lawrence W. Hagg. Appellants say that the provision quoted above
will not avail respondent because he did not amend his lien in that respect. That part of the
provision is directory merely.
3. The claim that the lien is fatally defective in not containing a statement of the terms,
time given and conditions of his contract, is without merit. The evidence, which is without
dispute in this respect, shows an express contract, the terms and conditions of which are
substantially stated in the lien and amended lien.
57 Nev. 159, 169 (1936) Milner Et Al. v. Shuey
are substantially stated in the lien and amended lien. They are as explicit in statutory
requirements as the one approved by this court in Riverside F. Co. v. Quigley, 35 Nev. 17-29,
126 P. 545.
They reveal no special terms, time, or conditions, but the evidence shows that none
existed. It was unnecessary to negative their existence, as was done in the lien under
consideration in the case just cited. Lonkey v. Wells, 16 Nev. 271.
The Porteous Decorative Co. v. Fee, 29 Nev. 375, 91 P. 135, much stressed by appellants,
is not an authority against the sufficiency of the lien before us. The lien under consideration
in that case did not substantially comply with the statute.
4. Appellants next attack the complaint upon the ground that it does not state facts
sufficient to constitute a cause of action for the foreclosure of a mechanic's lien. The point
most strongly insisted upon is that the complaint is utterly deficient in failing to allege that
the work was done and the materials furnished at the instance of the owner of the mine or his
agent, or that the interveners had knowledge of the performance or intended performance of
the work for which the lien is claimed. Sections 3735 and 3743 N. C. L. are invoked in
support of this contention. The latter section reads: Every building or other improvement
mentioned in section 1 of this act, constructed upon any lands with the knowledge of the
owner or the person having or claiming any interest therein, shall be held to have been
constructed at the instance of such owner or person having or claiming any interest therein,
and the interest owned or claimed shall be subject to any lien filed in accordance with the
provisions of this chapter, unless such owner or person having or claiming an interest therein
shall, within three days after he shall have obtained knowledge of the construction, alteration
or repair, or the intended construction, alteration or repair, give notice that he will not be
responsible for the same, by posting a notice in writing to that effect in some conspicuous
place upon said land, or upon the building or other improvement situate thereon, and also
shall, within five days after such posting, file a duplicate original of such posted notice
with the recorder of the county where said land or building is situated, together with an
affidavit attached thereto showing such posting of the original notice.
57 Nev. 159, 170 (1936) Milner Et Al. v. Shuey
conspicuous place upon said land, or upon the building or other improvement situate thereon,
and also shall, within five days after such posting, file a duplicate original of such posted
notice with the recorder of the county where said land or building is situated, together with an
affidavit attached thereto showing such posting of the original notice. Such filing shall be
prima-facie evidence of said posting.
The complaint does not allege such knowledge on the part of the interveners. It may be
conceded that under the statute knowledge on the part of an owner or the person having or
claiming an interest in the property, of the improvements constructed thereon, is an essential
allegation in a complaint which seeks to charge the property with a lien for labor performed
or materials furnished. 3 Bancroft's Code Pleadings, p. 3110; Tonopah L. Co. v. Nevada A.
Co., 30 Nev. 445, 97 P. 636.
We think, however, that the complaint in intervention supplies this defect sufficiently to
support the judgment, and such knowledge is amply proved by the agreed statement of facts.
In this respect the latter reads:
That on September 9, 1931, the said George H. Dern, Jay S. Milner, George E. Airis and
A. C. Milner * * * as the only surviving Directors and Trustees for and on behalf of the
stockholders and creditors of the said Dexter-Tuscarora Consolidated Mines Company, a
corporation, granted to one Lawrence W. Hagg, also known as L. W. Hagg, of Toronto,
Canada, a lease and option for the purpose of endeavoring to dispose of the mining property
described in plaintiff's complaint, and other property in that locality, and for the further
purpose of winding up the affairs of said corporation, with the right during the term of said
option to operate said property and for the purpose of developing the same and determining
its value, and as a consideration for said option and the right to operate said property, the said
Lawrence W. Hagg agreed to conduct certain work upon said property and to pay a certain
royalty upon any mineral extracted therefrom.
57 Nev. 159, 171 (1936) Milner Et Al. v. Shuey
A copy of said lease and option is hereto attached and made a part of this stipulation as if
herein fully set forth.
5, 6. The pleading in a mechanics' lien case should be liberally construed, Lamb v. Lucky
Boy Min. Co., 37 Nev. 9-16, 138 P. 902, and it is well settled that an answer may supply
material omissions in a complaint. Hawthorne et al. v. Smith, 3 Nev. 182, 93 Am. Dec. 397;
Riverside Fixture Co. v. Quigley, 35 Nev. 17, 126 P. 545; Thomas v. Palmer, 49 Nev. 438,
248 P. 887. Riverside Fixture Co. v. Quigley, supra, was a mechanics' lien case. The
complaint did not properly describe the premises. The answer did, and it was agreed to by
stipulation of the parties. This was held to aid the complaint so as to support the judgment.
7. So, in this case, the allegations in appellants' complaint in intervention, showing their
granting to Hagg a two-year option on the mining property of their defunct corporation with
the right during the term of the option to operate the property with the obligation to pay them
a certain royalty upon any mineral extracted therefrom, constituted notice to them of the
improvements contemplated by Hagg to effectuate the purpose of the option. In Gould v.
Wise, 18 Nev. 253259, 3 P. 30, 31, the consideration of the lease was that the lessee at
his own cost and expense * * * make all necessary repairs and improvements in and about
said mill and reduction works, and furnish all necessary materials to place the same in good
condition for crushing,' etc. The money so used, together with that expended in paying taxes
and insurance, the lease provides, shall be in full payment and satisfaction for the rent of
said premises for the first year. The court said: This of itself shows knowledge on the part
of the corporation of the intended construction, alteration, or repair,' within the meaning of
section 9.
It was held that to have avoided liability it was the duty of the lessor to comply with the
statute and post notices to the effect that they would not be liable for material furnished or
labor performed.
57 Nev. 159, 172 (1936) Milner Et Al. v. Shuey
material furnished or labor performed. This holding was approved in Lamb v. Lucky Boy
Min. Co., supra.
8. We now pass to appellant's contention that the posting of the two nonliability notices on
the claims absolved them from liability. We decide this question adversely to them. It appears
from the agreed statement of facts that on or about November 30, 1931, interveners caused
two notices, called nonliability notices, to be posted in conspicuous places on the mining
claims in question, and thereafter, to wit, on December 20, 1932, filed a copy of the same
together with a copy of the affidavit of the party placing the notices, in the office of the
county recorder of the county of Elko, Nevada.
Even if the posting was duly performed, there was not a sufficient compliance with said
section 3743. In addition to posting, the section provides: And also shall, within five days
after such posting, file a duplicate original of such posted notice with the recorder of the
county where said land or building is situated, together with an affidavit attached thereto
showing such posting of the original notice.
The filing of the duplicate original more than a year after the posting was ineffectual by
reason of the above provision. It was equivalent to no filing at all. The question is governed
by our ruling in George et al. v. Wentworth, 56 Nev. 380, 53 P. (2d) 1193, wherein we held
that this provision was intended to impose an additional requirement upon an owner in order
to exempt his property from the effect of a lien claim. But appellants contend that this case is
not ruling in this instance because it did not appear there, as here, that the lien claimant had
actual knowledge of the nonliability claim of the owners of the property. Actual knowledge
will not dispense with the positive requirement of the statute. Appellants cite the cases of
Phillips v. Snowden Placer Co., 40 Nev. 66, 160 P. 786, and Didier v. Webster Mines
Corporation, 49 Nev. 5, 234 P. 520, in which it was held that the purpose of the statute was to
give actual notice to workmen or materialmen that the owner of the property disclaims
responsibility for liens upon it for their services or supplies.
57 Nev. 159, 173 (1936) Milner Et Al. v. Shuey
of the property disclaims responsibility for liens upon it for their services or supplies. That is
true. Requiring the posting to be in a conspicuous place evidences that. But it was also
intended to take each case out of the realms of uncertainty which could arise from conflicting
or unsatisfactory evidence as to the fact of such knowledge.
As was stated in Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751, 759: The legislature has
seen fit to limit persons owning or claiming any interest in property mentioned in section 9, to
one method of giving notice if they wish to escape the effect of liens. We cannot supply
others. This question has been decided in many cases, and, as far as we know, against the
views of counsel for defendant. Pasqualetti v. Hilson, 43 Cal. App. 718, 185 P. 693, cited in
George et al. v. Wentworth, supra, held to the same effect.
9. It is contended that the complaint furnishes no basis for the lien and judgment for the
additional sum of $504, as a penalty. The complaint alleges: That there is now due and
owing from the defendants to this plaintiff the sum of $504.00 for twenty-eight working days,
in addition to the said sum of $1,285.50 as aforesaid, as a penalty pursuant to, and in
accordance with the provisions of * * * chapter 139, p. 226, Statutes of Nevada, 1925, no part
of which has been paid. This constitutes a clear statement of intention to exact the penalty
prescribed by the statute, section 2785 N. C. L., and is sufficient. Bowers v. Charleston Hill
Nat. Mines, 50 Nev. 99-112, 251 P. 721, 256 P. 1058. The agreed statement of facts supports
the finding.
In the complaint the sum of $500 is alleged as the reasonable value of services of
plaintiff's attorneys, and the court, in its judgment, allowed that amount. Appellant claims that
it is excessive. The agreed statement of facts contains the following stipulation: The amount
of attorneys' fees, if any are allowed in this action, shall be fixed by the court in a sum
deemed reasonable.
10, 11. What is a reasonable attorney fee must, in a large measure, depend upon the facts
of the particular case.
57 Nev. 159, 174 (1936) Milner Et Al. v. Shuey
large measure, depend upon the facts of the particular case. Among the facts that must be
taken into account are the amount involved, the character of the services rendered, and the
time employed. Quint & Hardy v. Ophir Silver Mining Company, 4 Nev. 304, 305. The
amount involved in this case was the sum of $1,789.50. Considering that in connection with
the other phases of the litigation, including the fact that no time or labor was spent in the
examination of witnesses in court (the case having been tried on an agreed statement of facts),
we think the fee of $500 allowed by the court is excessive. This part of the judgment is
therefore modified to allow the sum of $350 as attorneys' fee instead of the sum of $500 fixed
by the court.
12. Neither party shall recover costs on the appeal.
The judgment, as hereby modified, and the order denying a motion for a new trial, should
be affirmed.
It is so ordered.
On Petition for Rehearing
February 6, 1937.
Per Curiam:
It is ordered that a rehearing be granted in this case limited to a consideration of the
following questions: (1) Does the plaintiff's complaint state a cause of action against
interveners for a personal judgment? (2) Can the judgment for a penalty under section 2785
N. C. L. be sustained?
On Rehearing
July 2, 1937. 69 P. (2d) 771.
1. Mechanics' Liens.
In action to foreclose mechanics' lien wherein trustees for corporate owner intervened,
complaint which mentioned owner but not interveners, and petition in intervention which
alleged only that interveners granted lease and purchase option to person who ordered
labor and material for which lien was claimed, did not authorize personal judgment
against interveners, since no contract between interveners and lien claimant appeared in
pleadings, notwithstanding evidence tending to show that person who ordered labor and
material was actually interveners' agent {Comp.
57 Nev. 159, 175 (1936) Milner Et Al. v. Shuey
actually interveners' agent (Comp. Laws, secs. 2785, 3735, 3749).
2. Mechanics' Liens.
A contractual relation between owner of property and person furnishing labor and
materials is essential under statute to establish owner's personal liability (Comp. Laws,
sec. 3749).
3. Mechanics' Liens.
In action to foreclose mechanics' lien, evidence held not to show that defendant owners
were employers of lien claimant so as to authorize exaction of statutory penalty (Comp.
Laws, sec. 2785).
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
On rehearing. Modified and affirmed.
For former opinion, see 57 Nev. 159, 60 P. (2d) 604.
McNamara & Robbins, and Senior & Senior, for Appellants:
Pleadings in civil cases are not mere matters of form, but are the foundation of the action
and basis of jurisdiction, and intended and required to inform the adverse or interested parties
of the real cause of action and to frame and present the issues to be decided by the court. The
caption of plaintiff's complaint contains the names of certain parties as defendants, but does
not name or purport to name the interveners as parties to the action. And the interveners are
nowhere mentioned in plaintiff's complaint.
The mere fact that appellants intervened in this action in an endeavor to protect their title
to the property from being clouded does not justify the entering of a personal judgment
against them without pleadings or proof to sustain it. Hume v. Robinson et al. (Colo.), 47 P.
271.
It is respectfully submitted that it is not sufficient to sustain respondent's claim of penalty,
for respondent to make a broad and loose statement in his complaint that there is due and
owing him $504 for twenty-eight days as a penalty pursuant to section 27S5 N. C. L.
57 Nev. 159, 176 (1936) Milner Et Al. v. Shuey
as a penalty pursuant to section 2785 N. C. L. This is a rank conclusion of law. The complaint
does not allege employment of respondent by appellants, does not allege any demand on
appellants, and does not allege any wages due respondent from appellants. Bowers v.
Charleston Hill Nat. Mines, Inc., 50 Nev. 99, 256 P. 1058; Fenn v. Latour Creek R. Co. et al.
(Ida.), 160 P. 941.
The evidence expressly negatives any relationship of employer and employee as between
the appellants and respondent.
H. U. Castle and D. A. Castle, for Respondent:
It is the contention of the plaintiff that when the complaint of plaintiff in its entirety and
the interveners' complaint and answer in their entirety are considered together to determine
the issues made by the pleadings in this action, the complaint of plaintiff states a cause of
action against interveners for a personal judgment, because, as stated in the decision of this
court: The pleading in a mechanic's lien case should be liberally construed. See, also,
Thomas v. Palmer, 49 Nev. 438, 248 P. 887; sections 3749 and 8797 N. C. L.; Mariner v.
Milisich, 45 Nev. 193, 200 P. 478; Hawthorne v. Smith, 3 Nev. 182; Keyes v. Nevada Gas
Co., 55 Nev. 431, 38 P. (2d) 661; Johnston v. Rosaschi, 44 Nev. 386, 194 P. 1063; Reiner v.
Schroder (Cal.), 80 P. 517.
We maintain that both the pleadings and the facts in this case bring it squarely within the
law as announced in the case of Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933.
Under the statutes and facts in this case, the respondent is in the same position as if he had
actually worked the extra twenty-eight days' penalty period, in connection with the other work
performed, and has a lien on the mining claims for it, the same as the lien for the other work
performed. 40 C. J. p. 134, sec. 146; Macomber v. Bigelow (Cal.), 58 P. 312; Christman v.
Salway et al. {Ore.), 205 P.
57 Nev. 159, 177 (1936) Milner Et Al. v. Shuey
Salway et al. (Ore.), 205 P. 541; First Nat. Bank of St. Augustine v. Kirkby (Fla.), 32 So. 881.
OPINION
By the Court, Ducker, C. J.:
A rehearing was granted in this case limited to a consideration of the following questions:
(1) Does the plaintiff's complaint state a cause of action against interveners for a personal
judgment? (2) Can the judgment for a penalty under section 2785 N. C. L. be sustained?
We have concluded that both questions must be answered in the negative. We will
continue to designate appellants as interveners.
As will be seen by referring to our original opinion, Milner et al. v. Shuey, 57 Nev. 159, 60
P. (2d) 604, this action is for the foreclosure of a mechanic's lien for labor performed and
materials furnished by the respondent, George Shuey, and penalty pursuant to statute. So far
as pertinent to the questions stated, the complaint alleged that between certain dates in 1932
in Elko County, Nevada, at the special instance and request of defendants Dexter-Tuscarora
Mines Company, a corporation, and L. W. Hagg and several others doing business under the
firm name and style of Independence Gold Syndicate, and for their use and benefit, the said
plaintiff performed work and labor, and sold, furnished, and delivered materials and supplies
for defendants, about, in, and upon those certain lode mining claims in the county of Elko,
State of Nevada (describing them). That there is due and owning from defendants to this
plaintiff the sum of $504 for 28 working days, in addition to the said sum of $1,285.50, as a
penalty pursuant to, and in accordance with the provisions of chapter 71, page 121, Statutes
of Nevada 1919, as amended by chapter 129, page 226, Statutes of Nevada 1925 {N. C. L.
sec.
57 Nev. 159, 178 (1936) Milner Et Al. v. Shuey
Nevada 1925 (N. C. L. sec. 2785), no part of which has been paid.
1. That at the time the said work and labor were performed, and caused to be performed,
and the said materials and supplies were furnished and delivered, in and upon said lode
mining claims, said defendants were the owners and reputed owners of said real property,
consisting of the said lode mining claims. The perfecting of a lien is alleged. In addition to
the sums claimed being adjudged a lien against the property, execution for any deficiency was
prayed for. As stated in the original opinion, the respondent was permitted to file an amended
claim for lien substituting Dexter-Tuscarora Consolidated Gold Mines Company, a
corporation, as the owner of the property, for the two mining companies named in the original
claim of lien. At the same time the court ordered notice to issue to the corporation directing it
to appear in the action, as provided by law. Thereafter, Jay S. Milner, George E. Airis, and
George H. Dern, as trustees for and on behalf of the stockholders and creditors of the
company so substituted, filed their complaint in intervention. The case was tried upon the
issues made upon the pleadings of respondent and interveners and upon an agreed statement
of facts. The complaint furnishes no basis for the personal judgment rendered by the trial
court against interveners. They are not made defendants in the complaint or mentioned
therein. In fact, it is obvious that the only causes of action intended are as alleged against the
said defendants. The failure of the complaint in this respect cannot be disputed, but it is
earnestly insisted that the complaint in intervention sufficiently aids respondent's complaint
so that the pleadings support the personal judgment against interveners. This contention goes
beyond the question of the sufficiency of the complaint in this regard, to which the rehearing
was limited on this phase of the case. However, there is no merit in the claim. Nowhere in the
latter complaint is there an allegation importing personal liability to interveners.
57 Nev. 159, 179 (1936) Milner Et Al. v. Shuey
allegation importing personal liability to interveners.
2. It is insisted that the allegations in the complaint in intervention concerning the lease
between Hagg and interveners supplies a basis for such liability. We do not think so. These
allegations are set out in our original opinion. It will be seen by a reference thereto, page 605,
of 60 P. (2d), that no contractual relation between respondent and interveners with reference
to the labor and materials appears therein. That such a relation is essential to establish a
personal liability against the owner of the property in addition to a judgment foreclosing a
lien is elementary. Harbridge v. Six Points lumber Co., 17 Ariz. 339, 152 P. 860; 18 R. C. L.
992; State v. Breen, 41 Nev. 516, 522, 173 P. 555, 556. It is also a statutory requirement.
Section 3749 N. C. L. As to this, the statute reads:
* * * and each party whose claim is not satisfied in the manner hereinbefore provided for
[by lien claim and enforcement], shall have personal judgment for the residue against the
party legally liable for the same; provided, such person has been personally summoned or has
appeared in the action. * * *
In State v. Breen, this court said:
By the greater weight of authority, we are of the opinion that a personal judgment may be
rendered against a person personally liable in an action brought to enforce a mechanic's lien
(18 R. C. L. 991), provided the complaint contains all the necessary facts constituting both
grounds for relief and all the necessary allegations of an action in assumpsit.
Volker-Scowcraft Lumber Co. v. Vance, 36 Utah, 348, 103 P. 970, 971, 24 L. R. A. (N.
S.) 321, Ann. Cas. 1912a, 124.
As pointed out, neither the complaint nor the complaint in intervention, by which the
issues were framed, contain such necessary allegations. The granting to Hagg by interveners
of the lease and option to purchase with the right to operate the property in consideration of
the payment of certain royalties upon any mineral extracted, as alleged, did not
constitute Hagg interveners' agent to employ labor and purchase materials to carry on
such operations.
57 Nev. 159, 180 (1936) Milner Et Al. v. Shuey
of the payment of certain royalties upon any mineral extracted, as alleged, did not constitute
Hagg interveners' agent to employ labor and purchase materials to carry on such operations.
Consequently no contractual relation was thus established.
Respondent refers to section 3735 N. C. L. which in part provides:
* * * and every contractor, subcontractor, architect, builder, or other persons, having
charge or control of any mining claim, or any part thereof, or of the construction, alteration,
or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall
be held to be the agent of the owner, for the purposes of this chapter.
The statutory agency thus created is for the purpose of securing liens and not personal
liabilities.
The case of Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933, cited by respondent,
holds nothing to the contrary. The question of personal liability was not involved in that case.
Respondent asserts that the evidence discloses such an active duty imposed upon Hagg by the
terms of the lease and option, in working the property, as to constitute him the actual agent of
interveners. This contention also goes beyond the question to which the rehearing was
limited, but, if the contention were conceded, it would be unavailing, because such an agency
has no support in the pleadings.
3. On the original hearing interveners contended that neither the respondent's complaint,
nor the record, supported a judgment for a penalty under section 2785 N. C. L. We held
against them on both branches of the contention. We are satisfied with our opinion as to the
first point, but are persuaded that we fell into error in giving effect to the evidence as to that
part of the complaint. The evidence fails to show that interveners were the employers of
respondent, the lien claimant. The penalty may be exacted by an employee only from an
employer. Chapter 139, Stats. 1925, p. 226; 2785 N. C. L.; Eldorado-Rand Mining Co. v.
Thompson (57 Nev.),
57 Nev. 159, 181 (1936) Milner Et Al. v. Shuey
Nev.), 65 P. (2d) 878; Fenn v. Latour Creek R. Co., 29 Idaho, 521, 160 P. 941.
The following appears in the agreed statement of facts:
That the said L. W. Hagg employed plaintiff to work on said mining premises described
in plaintiff's complaint filed herein, and he was not employed by the said interveners or the
said Dexter-Tuscarora Consolidated Gold Mines Company.
The said lease and option are made a part of the agreed statement of facts, and our
considered judgment is that it does not show an agreement by which Hagg became the agent
of the interveners.
The judgment is further modified to give no sum as a penalty, nor personal judgment
against interveners.
The judgment as so modified, and order denying the motion for a new trial are hereby
affirmed.
____________
57 Nev. 181, 181 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
EDITH MARY McLAUGHLIN, Appellant, v. MUTUAL BUILDING & LOAN
ASSOCIATION OF LAS VEGAS, NEVADA, a Corporation, Respondent.
No. 3149
September 3, 1936. 60 P. (2d) 272.
1. Evidence.
Recital in trustee's deed that three copies of notice of sale under deed of trust were posted in public places
in city and township in which sale was to occur, that one was posted at place where sale was made, and one
on each parcel sold, held to show that three copies were posted in public places, as required by statute, in
addition to those posted on land (Comp. Laws, secs. 7710 and 8846).
2. Mortgages.
Where original notice of sale under deed of trust was properly given, failure of trustee to give any notice
of eleven continuances of time or place of sale other than by oral proclamation held not to invalidate sale.
3. Mortgages.
Fact that no one was present at sale under trust deed but trustee and attorney of beneficiary
thereunder held not to invalidate sale.
57 Nev. 181, 182 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
trustee and attorney of beneficiary thereunder held not to invalidate sale.
4. Mortgages.
Where notice of sale under trust deed required cash payment in United States gold coin, and subsequent
thereto, but prior to sale, obligations requiring payment in gold were by statute made payable in legal
tender, failure to change notice so as to allow such payment held not to invalidate sale (31 U. S. C. A. secs.
315b, 463).
5. Mortgages.
Where beneficiary under deed of trust consented to postpone sale thereunder and to take bonds in
connection with refunding of indebtedness through Home Owners' Loan Corporation, disregard by
beneficiary of agreement that such consent should be binding for 30 days by holding sale prior to
expiration of such period held not to invalidate sale made after eleven postponements more than two years
after posting of first notice.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Suit by the Mutual Building & Loan Association of Las Vegas against Edith Mary
McLaughlin. From a judgment for plaintiff and an order denying a new trial, defendant
appeals. Affirmed.
Albert A. Hinman, for Appellant:
The sale was invalid for the following reasons:
1. The posting of the notices of sale was not in compliance with the requirements of the
statute. Section 7710 N. C. L.; sec. 8846 N. C. L.; 41 C. J. 963, n. 36; 23 C. J. 637, n. 78.
The premises occupied as a private residence were not a public place within the rule
announced in the above authorities.
The two lots immediately adjoining and occupied as a single residence, constituted but one
place, and notices were actually posted in but two places, to wit, upon the premises and at the
office of the trustee.
2. No notice by publication, posting or otherwise, was given by the trustee of any of the
eleven continuances of the time or place of sale.
57 Nev. 181, 183 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
of the time or place of sale. 41 C. J. 966, n. 83; Clark v. Simmons (Mass.), 23 N. E. 108.
3. The notice of sale required the payment of cash in United States gold coin by the
purchaser at the time of sale. This requirement imposed an impossible condition and
precluded all persons from becoming purchasers at said sale other than the beneficiary. The
court will take judicial notice of the executive orders of the president of the United States,
and of the federal statutes, withdrawing all gold coin from circulation and prohibiting its use
as legal tender. 41 C. J. 949, nn. 76, 79.
4. The sale was premature, and respondent was estopped from making the same by its
agreement effective for a period of thirty days, to accept bonds for said indebtedness.
Leo A. McNamee and Frank McNamee, Jr., for Respondent:
The truth of the matter is that three copies of the notice of sale were posted in three of the
most public places in the city of Las Vegas, one being at the place where said sale was made,
to wit, at the office of the trustee. The fact that, in addition to the notices posted in three
public places, copies were also posted on each parcel of land so noticed to be sold is
immaterial. Jenkins v. Griffin (N. C.), 95 S. E. 166.
This court should take notice of the fact that title companiesthe trustee herein being
onecustomarily post notices of sales on the property to be sold, in addition to posting in the
places required by statute, and are careful in seeing that compliance is made with all statutory
and contractual provisions.
The recital in the trustee's deed on sale that the postponements were made in accordance
with the provisions of the deed of trust and section 7711 N. C. L. is not contradicted, and, of
course, no suspicion of fraud could arise from the several postponements, as the evidence
shows that the postponements were due to either a restraining order or negotiations for
settlement.
57 Nev. 181, 184 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
shows that the postponements were due to either a restraining order or negotiations for
settlement. 28 Am. & Eng. Enc. Law (2d ed.), 806.
The notice of sale was posted and published prior to the federal acts which withdrew gold
coin from circulation, and the sale took place after enactment of the act which allowed a
discharge of gold coin obligations by payment dollar by dollar. Norman v. Baltimore & O. R.
Co. (U. S.), 79 L. Ed. 417, 55 Sup. Ct. 407, 95 A. L. R. 1352.
The consent of respondent to accept bonds for the existing indebtedness, made to the
Home Owners' Loan Corporation, is not an agreement in the sense counsel contends, but
merely a unilateral offer, signed only by one party. And there is no evidence to show that said
offer was ever accepted by the Home Owners' Loan Corporation, or that it did anything in
reliance thereon.
OPINION
By the Court, Taber, J.:
This is an appeal from a judgment and an order denying a new trial in civil action No.
5724, Eighth judicial district court, Clark County. The action was brought by respondent
(plaintiff in the district court) to recover possession of two city lots and appurtenances in Las
Vegas. The district court rendered judgment in favor of plaintiff and against defendant
(appellant).
Plaintiff based its right to recover upon a deed given pursuant to a trustee's sale. Appellant
contends that said sale and deed were invalid for each of four reasons, which will be
considered later in this opinion.
In March 1931, W. J. Hooper and Violet M. Hooper made a deed of trust of said premises
to Pioneer Title Insurance & Trust Company to secure an indebtedness of $3,500, payable in
monthly installments to respondent, the beneficiary. Later said trustors were divorced, and
Mr. Hooper Married appellant. Thereafter, and in March 1932, she recovered a decree of
divorce against Mr.
57 Nev. 181, 185 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
March 1932, she recovered a decree of divorce against Mr. Hooper, in which the court
restored her maiden name, Edith Mary McLaughlin, and awarded her all his interest in the
premises now in controversy. Default having been made in certain of said monthly
installments, the beneficiary (respondent) filed in the office of the county recorder of said
Clark County its notice of breach and election to sell said premises. Notice of sale was given
by publication and posting, and, after a number of postponements, the premises were
purchased by respondent, who received a deed therefor from the trustee.
1. Appellant contends, first, that said sale and the deed last mentioned were and are void,
because the posting of the notices of sale were not in compliance with the requirements of the
statute. Section 7710 N. C. L. relating to trust deeds, provides in part that the trustee, or
other person authorized to make the sale under the terms of such trust deed or transfer in
trust, shall, prior to the making thereof, give notice of the time and place thereof in the
manner and for a time not less than that required by law for the sale or sales of real property
upon execution. Section 8846 N. C. L. relating to notice of sale under execution, provides in
part that in case of real property, notice shall be given, in addition to publication in a
newspaper, by posting notice in three public places of the township or city where the
property is situated, and also where the property is to be sold.
The trustee's deed to respondent recites that three true and correct copies of said Notice
were posted in three of the most public places in the City of Las Vegas, in Las Vegas Judicial
Township, County of Clark, State of Nevada, the Township in which said sale was noticed to
take place, for twenty days commencing on the 10th day of June, 1932, one copy of which
Notice was posted at the place where said sale was made; and on June 10th, 1932, one copy
of said Notice was posted in a conspicuous place on each parcel of the land so noticed to be
sold."
57 Nev. 181, 186 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
be sold. Said deed contains the further recital that compliance had been made with all of the
statutory provisions of the State of Nevada and with all of the provisions of said Deed of trust
or transfer in trust as to the acts to be performed and notices to be given. O. W. Yates, local
manager of the trust company, testified on cross-examination as follows:
Q. Did you also post notices of that sale? A. I did.
Q. In the manner specified in the Trustee's Deed, Plaintiff's Exhibit No. 1? A. Yes sir.
Q. And in any other manner? A. I think that is all. Except for the foregoing recitals and
testimony, we have found nothing in the record relating to the posting of notices.
Appellant interprets the first-quoted recital from said trustee's deed to mean that only three
notices were posted, one at the place where the sale was to be made, and one on each of the
two lots that were to be sold. Respondent's interpretation is that five notices were posted, one
in each of three public places, and one on each of said lots. It is our opinion that respondent's
contention is correct, notwithstanding the fact that only one of the three allegedly public
places was specified.
In the case of Sargent v. Shumaker, 193 Cal. 122, 223 P. 464, the court was called upon to
construe the meaning of subdivision 3 of section 692 of the Code of Civil Procedure, as
amended by St. 1907, p. 980, which provided that, in case of real property, in addition to
publication, notice of sale on execution must be given by posting a similar notice,
particularly describing the property, for twenty days, in three public places of the township or
city where the property is situated, and also where the property is to be sold.
We quote from the opinion of the court in the California case last above mentioned: It is
obvious that the provisions of subdivision 3 of the section must have been intended to
provide for any apply to two different situations, one where the property is situated in the
same township or city wherein it is to be sold, and the other where the property is situate in
one township or city and is to be sold in some other township or city.
57 Nev. 181, 187 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
other where the property is situate in one township or city and is to be sold in some other
township or city. It is respondent's contention that the section makes the same requirement as
to posting applicable to both situations, and that it should be construed as requiring in either
case the posting of four notices, three of which must be posted in three public places within
the township or city where the property is situated, and the fourth at the place (meaning the
very place) where the property is to be sold. Appellants, on the other hand, contend that the
section is to be construed as if it read as follows: * * * By posting * * * twenty days in three
public places of the township or city where the property is situated, and in three public places
of the township or city where the property is to be sold,' and that the effect thereof, where the
property is situated in one township or city and is to be sold in another, is to require the
posting of six notices in three public places in each such township or city, and that the effect
thereof, where the property is to be sold in the same township or city, is to require the posting
of but three notices in three public places within such township or city.
After discussing at some length the respective contentions, the court, in Sargent v.
Shumaker, supra, adopted the construction contended for by the appellant in that case, and, as
the property there in question was to be sold in the same city in which it was situated, the
court held that the law required the posting of but three notices in three public places of said
city. We agree with the ruling in that case.
In the instant case respondent does not maintain that a notice was posted in more than
three public places, one of which was at the office of the trustee. If defendant in the district
court had contended that the place where the property was to be sold was not a public place
within the meaning of the law and had introduced evidence tending to bear out such a
contention, we would have had a different and perhaps more serious question to deal with.
57 Nev. 181, 188 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
to deal with. The statute does not require that one of the notices be posted at the place where
the sale is to take place. That place in the instant case may or may not have been a public
place. All that the record shows is that this place was the office of the trustee at 113 South
Fourth street, in the city of Las Vegas. There is no evidence to show whether or not said place
was so situated as to attract public notice. The recital in the trustee's deed that it was a public
place stands unchallenged. When Mr. Yates was on the stand, he was not asked to specify the
allegedly public places where the other two notices were posted. Defendant chose to stand
squarely on her construction of the recital in the trustee's deed, and did not ask Mr. Yates
whether more than three notices altogether were posted, and, if so, where the other two
allegedly public places were. The recital in the trustee's deed that a notice was posted in each
of three public places in the city of Las Vegas must therefore be held to be controlling.
2. The second ground upon which appellant contends that the trustee's sale and deed were
void is that no notice was given by the trustee of any of the eleven continuances of the time or
place of sale. The record shows that no person, except the trustee, was present when any of
the eleven postponements was made. At least one of these postponements was occasioned by
a restraining order. One other postponement was the result of a telegram from the state
manager of the Home Owners' Loan Corporation at Reno to respondent, in the following
words: Edith McLaughlin two eleven South Seventh Street has applied to us for refinancing
and states that you hold the first mortgage and that sale under Deed of Trust has been set for
October sixteenth. Can you withhold action until we have had an opportunity to appraise and
make an offer to take up the Deed of Trust? The papers are being forwarded to Vegas today
with instructions to rush answer. Respondent immediately wired the following reply to said
telegram: Answering your telegram today we will arrange to have sale Edith McLaughlin
postponed to October twenty ninth."
57 Nev. 181, 189 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
today we will arrange to have sale Edith McLaughlin postponed to October twenty ninth.
Each postponement of sale was made by oral proclamation at the office of the trustee, and in
each instance the trustee made a written memorandum of the postponement in his file. Except
as hereinbefore stated, the record does not disclose the reasons for the various postponements.
The deed of trust contained the following provision: Trustee may postpone sale of all, or any
portion, of said property by public announcement at the time fixed by said notice of sale, and
may thereafter postpone said sale from time to time by proclamation to the persons assembled
at the time previously appointed; and without further notice it may make such sale at the time
to which the same shall be so postponed, provided, however, that the sale or any
postponement thereof must be made at the place fixed by the original notice of sale.
Ordinarily where, in the first instance, notice of sale has been given by publication and
posting as required by statute, postponements may lawfully be made by oral public
proclamation only, and in the instant case we find no special circumstances requiring any
further notice of such postponements.
3. But appellant insists that the sale and trustee's deed were void, for the reason that the
only persons present when the sale was made were the trustee and respondent's attorney. The
case of Clark v. Simmons, 150 Mass. 357, 23 N. E. 108, is cited by appellant for the
proposition that a notice given by oral proclamation at the time of adjournment, no one being
present except the auctioneer and the mortgagee's agent, is insufficient; but an examination of
that case discloses that there were special circumstances which constituted the chief reason
for the court's holding that the sale was void. These circumstances appear in the following
excerpt from the court's opinion: Finally the estate was sold, nearly three months after the
time named in the original notice, the plaintiff never having heard of the proceedings until 9
o'clock in the evening of the day before the sale, and having merely received a letter which
gave the day, without stating the hour or place, of the sale, and having been unable upon
inquiry in the neighborhood to learn anything about it.
57 Nev. 181, 190 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
before the sale, and having merely received a letter which gave the day, without stating the
hour or place, of the sale, and having been unable upon inquiry in the neighborhood to learn
anything about it. The mortgagee bought the property for at least $200 less than its fair
market value. The plaintiff had requested the defendant to notify him when he should take
action looking to a sale. In the instant case there are no such circumstances, nor any others of
a fraudulent nature. We are not aware of any authority holding that a sale of this kind is void,
for the single reason that no persons were present except the trustee and the beneficiary's
attorney or agent.
4. Appellant's third ground of attack upon the validity of the trustee's sale and deed is
based upon the fact that the notice of sale required cash payment in United States gold coin.
In this respect the notice of sale conformed to the terms of the note secured by the deed of
trust. The notice of sale was posted and published in June 1932. Section 463, title 31, U. S. C.
A., became effective June 5, 1933, and reads in part as follows: Every provision contained in
or made with respect to any obligation which purports to give the obligee a right to require
payment in gold or a particular kind of coin or currency, or in an amount in money of the
United States measured thereby, is declared to be against public policy; and no such provision
shall be contained in or made with respect to any obligation hereafter incurred. Every
obligation, heretofore or hereafter incurred, whether or not any such provision is contained
therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in
any coin or currency which at the time of payment is legal tender for public and private
debts. Gold was withdrawn from circulation in January 1934; U. S. C. A. title 31, sec. 315b.
The trustee's sale took place October 29, 1934. It thus appears that the notice of sale was
published and posted before either of said sections 315b and 463 became law, but that the
sale took place after they had become effective.
57 Nev. 181, 191 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
they had become effective. In view of the wording of U. S. C. A. title 31, sec. 463, we are
satisfied that it was not necessary to either change the wording in the notice of sale or to
publish and post new notices allowing payment in legal tender, coin, or currency.
5. We come now to a consideration of appellant's fourth and last ground upon which she
contends that the trustee's sale and deed were void. Prior to the sale, appellant applied to the
Home Owners' Loan Corporation to refund her indebtedness. Accompanying her application
was respondent's consent to take bonds to the amount of $4,405.32, in which consent
respondent, amongst other things, agreed in writing as follows: It is understood that you will
incur trouble and expense in connection with your effort to refund the indebtedness of said
home owner, and this consent is executed in consideration of the same and shall be binding
for a period of thirty days from date. The date of said mortgagee's consent to take bonds was
October 9, 1934. As has already been pointed out, the sale was made and the trustee's deed
executed and delivered to respondent on October 29, 1934. Appellant was not a party to said
mortgagee's consent. The record does not show, nor even suggest, that appellant, through the
assistance of the Home Owners' Loan Corporation, or otherwise, would have been able to
save the property, had respondent waited until after the expiration of said 30 days before
making the sale. Had the conduct of the trustee and respondent, in connection with the sale,
been accompanied by any actual fraud, deceit, or trickery, a more serious question would be
presented. But the record shows neither allegation nor proof of any fraudulent circumstances.
Appellant had notice of the time and place originally set for the sale. There is no evidence
that she ever made any inquiries concerning the various postponements, or that the trustee or
respondent gave her any false information or withheld any information from her. The facts
that there were eleven postponements of the sale, that respondent was willing to postpone
the sale upon the suggestion of the Home Owners' Loan Corporation, and that the sale
was made more than two years after notice was first published and posted, indicate that
respondent was anxious to get its money rather than resort to trickery in order to buy in
the property.
57 Nev. 181, 192 (1936) McLaughlin v. Mutual Bldg. & Loan Ass'n
willing to postpone the sale upon the suggestion of the Home Owners' Loan Corporation, and
that the sale was made more than two years after notice was first published and posted,
indicate that respondent was anxious to get its money rather than resort to trickery in order to
buy in the property. In our opinion, therefore, respondent's disregard of the agreement in its
consent to take bonds that said consent should be binding for a period of 30 days from
October 9, 1934, is not of itself ground for invalidating the sale or the trustee's deed.
The judgment and order appealed from are affirmed.
On Petition for Rehearing
December 5, 1936.
Per Curiam:
Rehearing denied.
____________
57 Nev. 192, 192 (1936) State v. Mendez
THE STATE OF NEVADA, Respondent, v.
PETE MENDEZ, Appellant
No. 3151
October 2, 1936. 16 P. (2d) 300.
1. Indians.
In murder prosecution of accused who denied jurisdiction of state on ground he was an Indian, evidence
that accused had lived in Mexico, had relatives there, bore Mexican name, and was thought by those among
whom he lived to be Mexican, was not sufficient to warrant finding accused was not an Indian, where
accused had offered his own testimony and that of expert witness that he was an Indian.
2. Criminal Law.
It is common knowledge that many Indians in and about Mexico bear Mexican names and that many
inhabitants and natives of Mexico are of Indian race.
Mexicans are natives or inhabitants of Mexico, and comprise a dominant white population of
Spanish descent, Mestizos, and Indian tribes ranging in culture from the primitive Seris to the civilized
Mayas.
3. Indians.
Statute which excepts from criminal jurisdiction of state offenses of Indians against persons or property
of other Indians does not refer only to Indians sustaining tribal relations {Comp.
57 Nev. 192, 193 (1936) State v. Mendez
Indians does not refer only to Indians sustaining tribal relations (Comp. Laws, sec. 9954).
4. Indians.
Legislative act ceding exclusive jurisdiction over territory included in Indian reservation to federal
government was mere offer on part of state until government complied with provision that accurate
description and plat of such land, verified by oath of some officer of general government having knowledge
of facts, should be filed with governor of state Comp. Laws, secs. 2895, 2896; Stats. 1933, c. 2).
5. United States.
Statutes whereby state relinquishes jurisdiction of land to federal government are strictly construed.
6. Indians.
Congressional act which provided for sale by secretary of interior of unpatented lands embraced in town
of Wadsworth located in the Pyramid Lake Indian reservation, and that United States should take
possession of land left unsold at end of certain time for use and benefit of Indians, effected withdrawal of
townsite of Wadsworth from reservation, and hence prosecution of one Indian for murder of another Indian
in such town was within jurisdiction of state court (Act Cong. June 7, 1924, secs. 1-4, 25 U. S. C. A., sec.
421, note; Comp. Laws, sec. 9954).
7. Indians.
In prosecution of Indian for murder of another Indian in town which had been withdrawn by act of
Congress from Indian reservation, that offense was committed within exterior lines of reservation did not
exclude state from jurisdiction (Act Cong. June 7, 1924, secs. 1-4, 25 U. S. C. A., sec. 421, note; Comp.
Laws, sec. 9954).
8. Indians.
In prosecution of Indian for murder of another Indian, wherein it was claimed that state court was without
jurisdiction, instruction that burden was on accused to show offense was committed on Indian reservation
and that accused was an Indian held proper (Comp. Laws, sec. 9954).
9. Indians.
In prosecution of Indian for murder of another Indian, wherein defendant claimed that state court was
without jurisdiction, failure to give instruction limiting amount of proof necessary to establish burden of
showing that offense was committed on Indian reservation was harmless error, where no evidence had been
introduced that killing occurred on reservation (Comp. Laws, sec. 9954).
10. Jury.
In murder prosecution of Indian, refusing to grant trial by court instead of trial by jury held not error,
since jury could not be waived (comp. laws, secs. 10657, 10920).
57 Nev. 192, 194 (1936) State v. Mendez
11. Statutes.
Statute providing that no person can be convicted of public offense, tried by indictment, unless by verdict
of jury, plea of guilty, or refusal to plead, and statute providing that issues of fact must be tried by jury,
unless jury be waived in cases not amounting to felony, must be construed with reference to each other
(Comp. Laws, secs. 10657, 10920).
12. Jury.
Jury may not be waived in criminal case of grade of felony prosecuted by indictment (Comp. Laws, secs.
10657, 10920).
13. Jury.
Jury may not be waived in criminal case of grade of felony prosecuted by information (Comp. Laws, secs.
10657, 10920, 11327, 11332).
14. Criminal laws.
In murder prosecution of Indian, permitting witnesses to testify in behalf of prosecution whose names
were not indorsed on information held not abuse of discretion, where testimony of such witnesses was well
known to accused's counsel for some time before trial.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Pete Mendez was convicted of second degree murder, and he appeals. Affirmed.
Harlan L. Heward, and A. R. Schindler, for Appellant:
We feel that it is elemental that statutory rights may be waived by a defendant, and it is
only in cases of constitutional rights that a question can arise as to whether or not a provision
which was enacted for the benefit of the defendant may be waived. Patton v. United States,
74 L. Ed. 854; Conklin v. Sup. Ct., 36 P. (2d) 386.
Neither the name of Lawrence Bianchini nor the name of Richard H. Cowles, Jr., has ever
been endorsed upon the information, and the order of the trial court permitting them to testify
would appear to be an abuse of discretion, in that no extenuating circumstances, or any
circumstances, bring the situation within any of the exceptions mentioned in the statute. Thus,
the situation was radically different from any presented in the case of State v. Monahan, 50
Nev. 27, 249 P. 566.
The court erred in admitting the testimony of Ray J.
57 Nev. 192, 195 (1936) State v. Mendez
Root and Ollie Lee Thomas that the defendant had stated to them that he was a Mexican. We
contended in the court below, as we here contend, that race is involved in a determination of
the question as to whether or not the defendant is an Indian, and that nationality has nothing
to do with a determination of that question. Baldwin v. Goldfrank (Tex.), 31 S. W. 1064;
People v. Hall, 4 Cal. 399; The Americana, vol. 2, p. 23, vol. 10, p. 551; Webster's New
International Dictionary (2d ed.), 1934.
The exception found in section 9954 N. C. L. is not solely applicable to those Indians who
sustain tribal relations. Frazee v. Spokane County (Wash.), 69 P. 779; State v. Niblett, 31
Nev. 246, 102 P. 229; United States v. Celestine, 215 U. S. 278; Mosier v. United States, 198
Fed. 54.
We contend that the legislature of Nevada has enacted the statute in question, expressly
divesting the state courts of jurisdiction in certain specified cases. Ex Parte Rickey, 31 Nev.
82, 100 P. 134; State v. Wheeler, 23 Nev. 143, 44 P. 430; Eddy v. Board of Embalmers, 40
Nev. 429, 163 P. 245; Ex Parte Todd, 46 Nev. 214, 210 P. 131.
We suggest that the proviso clause of section 2896 N. C. L. refers to a mere ministerial act,
and that the vesting of the jurisdiction over government acquisitions is provided for by the
last section of the act, which indicates the intent of the legislature that the jurisdiction over
such lands shall vest in the United States whenever the United States shall have acquired title
to the lands. The act conferred a benefit upon the federal government, and the acceptance of
that benefit is to be presumed in the absence of any dissent on the part of the government. Ft.
Leavenworth R. R. Co. v. Lowe, 114 U. S. 529, 29 L. Ed. 264.
The act of congress of June 7, 1924, locates the town of Wadsworth in the reservation, and
in no place does it use apt or any language which is capable of an exclusion construction.
Clearly, the area in question still belongs to the United States.
57 Nev. 192, 196 (1936) State v. Mendez
belongs to the United States. In all of the record in this case there is not one scrap of evidence
to show that the spot where the homicide was committed is privately owned. Ex Parte
Pelican, 232 U. S. 442, 58 L. Ed. 676.
The court erred in instructing the jury that the burden is on a defendant accused by the
state of an offense against an Indian to show that the offense was committed on an Indian
reservation and that he, the defendant, is an Indian. The instruction must have been uncertain
and confusing to the jury, in that it does not state to what extent the defendant must sustain
the burden. The jury might well get the impression that it was necessary for the defendant to
prove the indicated facts beyond a reasonable doubt. In the case of State v. Buckaroo Jack, 30
Nev. 325, 96 P. 497, the court negatives the burden of proof ruling by the phrase unless it
was a case such that the court would take judicial notice of the existence of a lawfully
established and defined Indian reservation. In the second place, we contend that if we go
forward with the proof, to the extent of presenting some proof on the subject matter, then we
feel that no burden of proof exists, and that if upon that issue we have raised a reasonable
doubt, the defendant is entitled to the benefit of that doubt. State v. McCluer, 5 Nev. 132;
State v. Waterman, 1 Nev. 543; Davis v. United States, 160 U. S. 469, 40 L. Ed. 499; State v.
Milosevich (Ore.), 249 P. 625; Jones v. State (Tex.), 257 S. W. 895; Garcia v. State (Tex.),
273 S. W. 845; Robison v. State (Tex.), 276 S. W. 259; Long v. State (Tex.), 283 S. W. 810;
Ford v. State (Tex.), 285 S. W. 615; State v. Rouw (Wash.), 286 P. 81; People v. Post (Cal.),
281 P. 618; Duncan v. United States, 23 Fed. (2d) 3; Ezzard v. United States, 7 Fed. (2d) 808.
Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy
Attorneys-General; Ernest S. Brown, District Attorney; and Nash P. Morgan, Deputy District
Attorney, for the State: Appellant complains because he was tried by a jury instead of by
the court.
57 Nev. 192, 197 (1936) State v. Mendez
Appellant complains because he was tried by a jury instead of by the court. In view of the
plain provisions of sec. 3, art. I, of the constitution of Nevada, and sec.10920 N. C. L. this
contention deserves but little consideration. As stated by this court in State v. Borowsky, 11
Nev. 119: it seems to be implied in the language of the constitution (art. I, sec. 3) and
expressly enacted in the law (N. C. L., secs. 1679, 1687) that on the trial of the indictment, a
jury cannot be waived.
It is the general and well-established rule that a jury cannot be waived in felony cases. 35
C. J. 198; 48 A. L. R. 767 (annotation).
Appellant does not claim to have been surprised by the testimony of the witnesses
Bianchini and Richard H. Cowles, Jr. In fact, his counsel admit having received a copy of the
transcript of the testimony and to have gone over the entire testimony with the district
attorney one month prior to the trial of the case. This brings it clearly within the rules laid
down in the case of State v. Monohan, 50 Nev. 27, 249 P. 566.
The testimony of Ray J. Root and Ollie Lee Thomas was admissible for the purpose of
impeachment and was proper rebuttal. On cross-examination the defendant denied having
told these witnesses that he was a Mexican. The testimony of these witnesses as well as the
testimony of the defendant himself shows that the defendant considered himself a Mexican
until sometime between his arrest and the trial of the case. He spoke Mexican, had a Mexican
name, had lived in Mexico, had relatives in Mexico, was generally known among the people
with whom he lived as a Mexican, and told people that he was a Mexican, up to this time.
Congress had in mind only Indians sustaining tribal relations when it enacted the act of
March 3, 1885 (chap. 341, sec. 9, 23 Stat. 383), and it is reasonable to assume that the
Nevada legislature had the same Indians in mind when it enacted section 9954 N. C. L. a few
days later. 31 C. J. 539, sec. 133; State v. Howard (Wash.), 74 P. 382; State v. Smokalem
(Wash.), 79 P. 603; People v. Ketchem {Cal.),
57 Nev. 192, 198 (1936) State v. Mendez
People v. Ketchem (Cal.), 15 P. 353; State v McKenney, 18 Nev. 182, 2 P. 171; United States
v. Kagama, 118 U. S. 375; 30 L. Ed. 228.
We believe a reading of the statute itself (sec. 9954, N. C. L., Stats. 1885, p. 34) clearly
indicates an intention to exempt tribal Indians only from the jurisdiction of state courts.
Assuming for argument that the repeal of the 1921 act (secs. 2895 to 2898 N. C. L.) was
ineffectual, there is no evidence in the record of this case that any federal official ever
accepted the offer of Nevada by filing the documents as specifically required by section 2 of
the act. Six Companies, Inc. v. De Vinney, 2d Fed. Sup. 693.
We respectfully suggest that the United States has merely a proprietorship interest in the
public land on the Pyramid Lake Indian reservation. Ex Parte Crosby, 38 Nev. 389, 149 P.
989; United States v. Bateman, 34 Fed. 88.
Our contention is that in 1924, chap. 311, vol. 43, part 1, U. S. Statutes at Large, p. 596,
withdrew the Wadsworth townsite from the reservation, after the filing of a map by the
secretary of the interior, in accordance with section 2384 of the Revised Statutes of the
United States. 31 C. J. 499, 500; 50 C. J. p. 921, sec. 69.
This court, in the case of State v. Buckaroo Jack, 30 Nev. 325, 96 P. 497, held that the
burden was on the defendant to show that he was an Indian and that the crime was committed
on an Indian reservation, in order to divest the state court of jurisdiction. Therefore,
instruction No. 15 states the law as laid down in that case. See, also, Underhill's Criminal
Evidence, sec. 51; 16 C. J. 531; United States v. Heike, 175 Fed. 852; People v. Boo Doo
Hong (Cal.), 55 P. 502.
It takes more than the raising of a reasonable doubt to divest a court of jurisdiction. The
presumption is that the court has jurisdiction, and the burden is on the defendant to show that
it has not. 16 C. J. 183; Smith v. The People, 47 N. Y. 330.
57 Nev. 192, 199 (1936) State v. Mendez
In the face of the act of 1924 and instruction No. 17, by which the trial court declared its
judicial notice of the fact that Wadsworth township had been withdrawn from the reservation
by the act of 1924, defendant could not even raise a doubt on the question of whether the
alleged place of the crime was on a reservation; and hence could not be prejudiced by any
failure to instruct as to the degree of proof necessary.
OPINION
By the Court, Ducker, C. J.:
The appellant was convicted of the crime of murder of the second degree and has appealed
from the judgment and order denying his motion for a new trial.
He has assigned a number of errors. We will not discuss them in the order presented in the
opening brief.
The appellant was charged with stabbing one Nellie Sam with a knife on the 7th day of
December 1935, inflicting wounds upon her from which she died on the following day. Nellie
Sam was a Pah Ute Indian woman, and the accused was living with her at the time of the
homicide in the town of Wadsworth, county of Washoe, Nevada, where the killing occurred.
About dusk on the former day two Indian boys were attracted to the spot where the stabbing
occurred by the cursing of the accused and the outcry of the woman. They saw Nellie Sam
lying on the ground. She had been stabbed in the back. The witnesses saw a large quantity of
blood on the ground and blood on the prostrate woman. The mother of the injured woman
arrived on the scene shortly after the appearance of the former witnesses and asked her if Pete
(appellant) had done that. The daughter said Yes. To the deputy constable, who had been
summoned to the place, the appellant said: Well, she made me do it. Appellant was taken
into custody by the officer, and, when he was unlocking the door of the jail, appellant fled,
but was captured before he had gone far.
57 Nev. 192, 200 (1936) State v. Mendez
gone far. A knife was found on the day following the stabbing about 75 feet from the pool of
blood. Nellie Sam's mother testified that she saw the knife in the appellant's house a long time
before December 7, 1935.
No point was made that the evidence is insufficient to support the verdict and judgment.
One of appellant's principal objections is that the court was without jurisdiction to try him
because, as is contended, the evidence shows that he was an Indian, the deceased was an
Indian, and the killing occurred on an Indian reservation. The contention is based on the
proviso of section 9954 N. C. L. The section reads: All the laws of this state concerning
crimes and punishments, or applicable thereto, are extended to and over all Indians in this
state, whether such Indians be on or off an Indian reservation, and all of said laws are hereby
declared to be applicable to all crimes committed by Indians within this state, whether
committed on or off an Indian reservation, save and except an offense committed upon an
Indian reservation by one Indian against the person or property of another Indian.
It is conceded by counsel for the state that the woman slain was a Pah Ute Indian. They
contend, however, that the accused is a Mexican, or, if an Indian in the sense that his
ancestors belonged to one of the tribes that inhabited North America upon its discovery, he is
not an Indian maintaining tribal relations. Indians maintaining such relations, counsel insist,
are meant in the proviso of the section. On the other hand counsel for appellant contend,
members of the race inhabiting North America on the coming of the white man are meant
irrespective of tribal relations. It appears from the evidence that appellant has a Mexican
name, had lived in Mexico, had relations in Mexico, and was generally thought by the people
among whom he lived to be a Mexican because he talked that language. The sheriff and
deputy sheriff to whose custody appellant was remanded after the killing testified that he told
them he was a Mexican.
57 Nev. 192, 201 (1936) State v. Mendez
them he was a Mexican. Appellant at his trial denied making such statements. He testified
that he was a Pueblo Indian and spoke Indian; that his mother and father were Pueblo Indians;
and that he never told any one he was a Mexican.
On the part of the defense, Dr. Harry E. Wheeler, a member of the faculty of the
University of Nevada, testified that he had examined the appellant on three different
occasions and had made an investigation of his type and blood. He gave his opinion that
appellant was an Indian. Preliminarily he testified at length as to his educational
qualifications derived from extended courses in several universities on the subjects of
paleontology, ethnology, and anthropology, and from independent research, which entitled
him to give such an opinion. He specified twenty characteristics which prevailed in members
of the Indian race as the basis of his opinion.
1, 2. We are of the opinion that there is no substantial evidence in the record that would
have warranted the jury in finding against appellant on this phase of the case. His testimony
that he is an Indian and the testimony and opinion of the witness Wheeler that he is an Indian
were not shaken on cross-examination. The circumstances that he had lived in Mexico, had
relatives in Mexico, bore a Mexican name, and was thought by those among whom he lived
to be a Mexican, are entitled to no weight against the positive testimony that he is an Indian.
In fact, it is common knowledge that many Indians in and about Mexico bear Mexican names,
and many inhabitants and natives of Mexico are of the Indian race. Webster's New
International Dictionary (2d ed.) Unabridged, defines the noun, Mexican, as follows: A
native or inhabitant of Mexico. The Mexicans comprise a dominant white population of
Spanish descent, Mestizos, and Indian tribes ranging in culture from the primitive Seris to the
civilized Mayas. Conceding, which appellant denied, that he told the two officers that he
was a Mexican, such a statement would not be inconsistent with his being an Indian.
57 Nev. 192, 202 (1936) State v. Mendez
that he told the two officers that he was a Mexican, such a statement would not be
inconsistent with his being an Indian. An American negro could truly state that he was an
American, but the fact would still remain that he was a member of the negro race. The
officers both stated that they questioned him as to his nationality. The question is not as to
nationality, but as to race.
Counsel for the state are not satisfied that appellant is not an Indian, for they say in their
brief: In the sense that an Indian is one whose ancestors inhabited North America at the time
of its discovery, perhaps the defendant is an Indian.
3. Their contention that the legislature in enacting the proviso in said section had in mind
only Indians sustaining tribal relations is likewise untenable. The same contention made in
the case of Frazee v. Spokane County, 29 Wash. 278, 69 P. 779, 782, was disposed of by the
court as follows: We are not impressed with the view that the term [Indians], when used in
statutes without qualification, should be construed as being restricted to a meaning less
comprehensive than the ordinary significance thereof. The term Indians,' as ordinarily used
when referring to persons in the United States, is understood to refer to the members of that
race of men who inhabited North America when it was found by the Caucasian people. We
do not see that it logically follows that a member of that race who has become a citizen may
no longer be properly called an Indian, with more force than it would also follow that a
member of the African or negro race, commonly called in this country the colored race,' and
who is also a citizen, may not be properly and technically described by his racial designation.
In the absence of plain and unequivocal words showing unmistakably that only those still
sustaining tribal relations are referred to, we think, when the term Indians' is used in a
statute, and without any other limitation, it should be held to include members of the
aboriginal race, whether now sustaining tribal relations or otherwise.
57 Nev. 192, 203 (1936) State v. Mendez
Counsel for the state say a reading of the statute itself clearly indicates an intention to
exempt tribal Indians only from the jurisdiction of the state courts. What is there in the statute
to warrant us in importing the word tribal into it to give effect to the claimed meaning?
There is not a word or phrase in it to indicate that the words Indian and Indians were not
employed in their commonly understood sense. This being so, we cannot depart from its letter
in search of some other meaning.
We come now to the objection that the offense was committed on an Indian reservation,
which, together with the race of accused and deceased, is the ground of appellant's motion for
a directed verdict, and to dismiss the prosecution, and which were refused by the court.
It is conceded that the town of Wadsworth is within the limits of the Pyramid Lake Indian
reservation as originally constituted. The reservation was so legally constituted by the
following executive order:
Executive Mansion, March 23, 1874.
It is hereby ordered that the tract of country known and occupied as the Pyramid Lake
Indian Reservation in Nevada, as surveyed by Eugene Monroe in January, 1865, and indicted
by red lines according to the courses and distances given in tabular form on accompanying
diagram, be withdrawn from sale or other disposition and set apart for the use of the Pah Ute
and other Indians residing thereon.
[Signed] U. S. Grant.
United States v. leathers, 26 Fed. Cas. 897, 898, No. 15,581.
The Pyramid Lake Indian reservation was definitely created and the lands embraced
therein withdrawn from sale by this order. In re Crosby, 38 Nev. 389, 149 P. 989.
In this connection it is contended by appellant that the state had, prior to the homicide,
ceded exclusive jurisdiction over the territory included in the Pyramid Lake Indian
reservation to the federal government.
57 Nev. 192, 204 (1936) State v. Mendez
Lake Indian reservation to the federal government. This claim is predicated upon an act of the
Nevada legislature of 1921 (chapter 23), sections 1 and 2 of which read:
1. The consent of the State of Nevada is hereby given, in accordance with the
seventeenth clause, eighth section of the first article of the constitution of the United States,
to the acquisition by the United States, by purchase, condemnation or otherwise, of any land
in this state which has been, or may hereafter be, acquired for sites for customhouses,
courthouses, post offices, arsenals, or other public buildings whatever, or for any other
purpose of the government.
2. The exclusive jurisdiction in and over any land so acquired by the United States shall
be, and the same is hereby, ceded to the United States for all purposes, except the service
upon such sites of all civil and criminal process of the courts of this state, but the jurisdiction
so ceded shall continue no longer than the said United States shall own such lands; provided,
that an accurate description and plat of such lands so acquired, verified by the oath of some
officer of the general government having knowledge of the facts, shall be filed with the
governor of this state.
See sections 2895, 2896 N. C. L. 1929.
The foregoing act was repealed by the legislature of 1933 (1933 Stats. p. 2, c. 2), but it is
contended that such repeal could not affect the jurisdiction theretofore ceded. Be that as it
may, we are not in accord with the contention that it legally appears that such cession was
effected by said act. Assuming, without deciding, that the Pyramid Lake Indian reservation
was within the purview of the former act, appellant was unable to prove, and it does not
otherwise appear, that the proviso in section 2 was complied with, which was essential to give
effect to such a cession. In this connection counsel for appellant in their opening brief stated:
The map in question may or may not have been filed with the Governor of this state.
57 Nev. 192, 205 (1936) State v. Mendez
with the Governor of this state. We were not able to prove the fact at the time of the trial.
4. They claim, however, that the filing of an accurate description and plat of the lands so
acquired, verified by the oath of some officer of the general government having knowledge of
the facts, with the governor of the state, was a mere ministerial act, the omission of which
could not have affected the act of cession contemplated by the statute. We do not agree. The
proviso, in our opinion, intended to be complied with to accomplish a completed cession of
jurisdiction. Until such compliance the statute was a mere offer upon the part of the state to
cede jurisdiction. The proviso provided the manner of acceptance. This is also the
construction placed upon the statue, by Judge Norcross, in Six Cos. Inc. v. De Vinney (D. C.),
2 F. Supp. 693, 695. The court in that case said: If the Secretary [Secretary of Interior] had
authority to establish such reservation and the same was within the purview of the state
statute, then, if the plat and affidavit accompanying the same complied with the provisions of
the statute, jurisdiction over the area within the described boundaries vested in the United
States upon filing the plat with the Governor.
And again the court said on page 696 of 2 F. Supp.: As the act in question is general, in
order to accomplish a relinquishment of jurisdiction over a particular site, the purpose of the
site must be such as is within the purview of the statute; the land constituting the same must
have been acquired for such purpose, and thereafter an accurate description and plat of such
land so acquired, duly verified, must be filed with the Governor.
The case of Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. Ed. 264, in
which it was held that acceptance by the general government of a state grant of jurisdiction
must be presumed, in the absence of any dissent on the part of the former, is not in point.
57 Nev. 192, 206 (1936) State v. Mendez
The state statute in that case was a special statute, and evidence of acceptance was not, as in
the one before us, made an essential condition of cession.
5. As was stated in Six Cos. Inc. v. De Vinney, supra, statutes relinquishing jurisdiction
should be strictly construed. A controlling reason for such construction is that it is a matter of
the greatest importance to both the national and state governments affected. Larson v. South
Dakota, 278 U. S. 429, 49 S. Ct. 196, 73 L. Ed. 441.
Did the killing occur upon an Indian reservation? Counsel for the state contend that the
Wadsworth townsite tract of land was by an act of Congress in 1924 withdrawn from the
Pyramid Lake Indian reservation. This seems to be the fact. The said act is entitled: An Act
for the relief of settlers and town-site occupants of certain lands in Pyramid Lake Indian
Reservation, Nevada. Approved June 7, 1924. See chapter 311, vol. 43, part 1, U. S. Statutes
at Large, p. 596 (25 U. S. C. A. sec. 421 note).
Section 1 of the act provides for the sale by the secretary of the interior to settlers or their
transferees of any lands in the reservation that have been settled upon, occupied, and
improved by them in good faith, for a period of 21 years.
2. That the Secretary of the Interior is also authorized to have a survey and plat made of
the town of Wadsworth, in said Pyramid Lake Indian Reservation, and thereafter sell the
unpatented lands embraced in the said town as provided for by section 2384 of the Revised
Statutes of the United States, and on compliance with said statute the purchasers of the lots
shall acquire title as provided for by the said statute: Provided, That any land within the limits
of said town used for Indian school purposes or for other public use for Indians shall be, and
the same are hereby, reserved from said townsite, and the Secretary of the Interior, upon
payment to him of the sum of $100, is hereby authorized to convey by patent to the board
of county commissioners of Washoe County, Nevada, or other proper school officials of
the town of Wadsworth, Nevada, the lands now known as lots thirty-eight to forty-seven,
inclusive, of block 2 in said town of Wadsworth, as surveyed in 1S9S by T. K. Stewart:
Provided further, That if there are any Indians residing in said town and in possession of
and claiming any lots therein they shall have the same rights of purchase under the said
statute as white citizens."
57 Nev. 192, 207 (1936) State v. Mendez
authorized to convey by patent to the board of county commissioners of Washoe County,
Nevada, or other proper school officials of the town of Wadsworth, Nevada, the lands now
known as lots thirty-eight to forty-seven, inclusive, of block 2 in said town of Wadsworth, as
surveyed in 1898 by T. K. Stewart: Provided further, That if there are any Indians residing in
said town and in possession of and claiming any lots therein they shall have the same rights of
purchase under the said statute as white citizens.
(The use of the proceeds of sale is then designated.)
Section 3 confers title to lands in the reservation theretofore acquired by patents, or by
certification, to the State of Nevada.
4. All sales in accordance with section 1 of this Act shall be made through the local land
office within ninety days after the price of the land shall have been fixed by the Secretary of
the Interior: Provided, That where entry is not made within the time specified, the United
States shall enter upon the premises and take possession thereof for the use and benefit of the
Piute Indians of the Pyramid Lake Indian Reservation.' Approved June 7, 1924.
By this act the Indians' title of occupancy to the lands in the Wadsworth townsite was
extinguished except as to any lands that may have been included in the reservation made in
said section 2. The Pyramid Lake Indian Reservation was, to this extent, diminished.
The making of the survey and plat contemplated by section 2 of the act was stipulated by
counsel on the introduction in evidence by appellant of a map of the townsite of Wadsworth,
as will be seen by the following:
Mr. Heward: If the Court please, we offer in evidence this map of the townsite of
Wadsworth, Nevada, which appears to be the last one filed or on file or filed with and filed by
the Department of the Interior, is this correct?
Mr. Brown: May it please Your Honor, we stipulate by counsel that this is a map of the
official survey made of Wadsworth Townsite, and filed and accepted on September 1,
1931, by the Department of the Interior and surveyed by the Secretary of the Interior
under and by provision of section 2 of An Act of Congress, approved June 7, 1924, being
chapter 311 of the United States Statutes at Large, Vol.
57 Nev. 192, 208 (1936) State v. Mendez
by counsel that this is a map of the official survey made of Wadsworth Townsite, and filed
and accepted on September 1, 1931, by the Department of the Interior and surveyed by the
Secretary of the Interior under and by provision of section 2 of An Act of Congress, approved
June 7, 1924, being chapter 311 of the United States Statutes at Large, Vol. 43, at page 596;
and that said survey was made by the Secretary of the Interior in accordance with section
2384, Revised Statutes of the United States [43 U. S. C. A. sec. 715] and that it is at the
present time the official survey of the Townsite of Wadsworth, Washoe County, Nevada, the
original of which is filed in the office of the Public Land Office of the United States, in Reno,
Nevada.
Mr. Heward: That is a satisfactory and accurate statement.
6. Our view that the act of 1924 effected a withdrawal of the townsite of Wadsworth from
the reservation is strengthened by the provisions of section 4 of the act, that the United States
shall enter upon the lands and take possession for the use and benefit of the Indians where
entry is not made by the settlers or transferees within the time specified. If such lands were
not withdrawn from the reservation by the act, the United States would never have been out
of possession for such use and benefit.
The court's instruction to the jury that the said townsite, as shown by said official map, is
not within the Pyramid Lake reservation, the same having been officially withdrawn from
said reservation by the act of Congress approved June 7, 1924, was correct. The court did not
err in refusing to grant appellant's motion to dismiss the prosecution for lack of jurisdiction.
As to the motion for a directed verdict, such a motion is unknown to our criminal practice.
Our conclusion concerning the withdrawal of the town of Wadsworth from the reservation
also disposes of appellant's contention that there is no proof that any of the so-called
Wadsworth lots have been sold.
57 Nev. 192, 209 (1936) State v. Mendez
It is immaterial. United States v. Pelican, 232 U. S. 442, 34 S. Ct. 396, 58 L. Ed. 676, 677,
cited by appellant on this contention, is not in point.
In that case the killing of an Indian allottee upon lands allotted to him within part of an
Indian reservation which was restored to the public domain, which allotment was excepted
therefrom, was held cognizable in the federal courts under a statute which extended to the
Indian country certain general laws of the United States as to the punishment of crime. The
reservation was included in the Indian country. The allotment was held in trust by the
government for the benefit of the allottee. It was held to be Indian country. The distinction is
obvious. In the Pelican Case the allotment was excepted from the tract removed from the
Indian country. In the instant case the townsite was withdrawn from the reservation.
7. Appellant's contention that his motion to dismiss the prosecution should have been
granted because the proof shows that the offense was committed within the exterior lines of
the reservation has no merit. Eugene Sol Louie v. United States (C. C. A.), 274 F. 47.
8, 9. Appellant contends that the court committed error in giving the following instruction:
The Court further instructs the jury that the burden is on the defendant accused by the state
of an offense against an Indian, to show that the offense was committed on an Indian
reservation, and that he, the defendant, is an Indian.
In the case of State v. Buckaroo Jack, 30 Nev. 325, 96 P. 497, it was held that the burden
was on the defendant to show that the crime with which he was charged was committed on an
Indian reservation. We do not understand appellant's counsel to question the correctness of
this ruling, but they say the instruction which is based upon it is erroneous, in that it does not
state the extent to which this burden must be sustained. It is their contention that it need not
be sustained to a degree of proving said facts beyond a reasonable doubt or by a
preponderance of the evidence, but only to the extent that a duty is placed upon a
defendant to go forward with evidence tending to prove the lack of jurisdiction, and if
upon the whole evidence there is a reasonable doubt of guilt or of jurisdiction, the
accused is entitled to the benefit of such doubt.
57 Nev. 192, 210 (1936) State v. Mendez
or by a preponderance of the evidence, but only to the extent that a duty is placed upon a
defendant to go forward with evidence tending to prove the lack of jurisdiction, and if upon
the whole evidence there is a reasonable doubt of guilt or of jurisdiction, the accused is
entitled to the benefit of such doubt. The instruction is correct as a general proposition. State
v. Buckaroo Jack, supra; Underhill's Cr. Ev. (4th ed.) p. 67 (Niblack). As appellant introduced
no evidence to show that the killing occurred on an Indian reservation, it is difficult to see
how he could have been harmed because the instruction did not descent to particulars in
keeping with his contention.
10. Error is assigned on account of the refusal of the court to grant a trial by the court
instead of requiring a trial by jury. We are not impressed with this contention. It is unique at
least in its assumption that appellant was prejudiced because the court declined to permit him
to waive the benefit of a jury which for centuries has been considered a traditional guarantee
of Anglo-Saxon liberty. Prejudice is not discernible in such a situation. However, we are of
the opinion that a jury could not have been waived in this case, and the court therefore
committed no error in refusing to permit it.
We need not determine whether our state constitution prohibits the waiver of a jury trial in
a felony case because such waiver is clearly inhibited by statute. In passing, however, it is to
be noted that the legislatures of 1933 and 1935 (see Stats. 1933, p. 364; Stats. 1935, p. 418)
adopted a joint resolution permitting waiver of trial by jury in criminal cases, which proposed
amendment is to be voted upon at the coming election. Query: Did these legislatures believe
that such amendment was necessary to permit such a waiver? It would seem so. This court in
the case of State v. Borowsky, 11 Nev. 119, was of the opinion that on the trial of an
indictment a jury cannot be waived. The court said in a unanimous opinion written by Justice
Beatty: It seems to be implied in the language of the constitution {art.
57 Nev. 192, 211 (1936) State v. Mendez
implied in the language of the constitution (art. 1, sec. 3) and expressly enacted in the law
(Comp. L., secs. 1679, 1687) that on the trial of an indictment a jury cannot be waived.
The said section 1687 is the same as section 10657 N. C. L. It reads: No person can be
convicted of a public offense, tried by indictment, unless by a verdict of a jury, accepted and
recorded by the court, or upon a plea of guilty, or when he refuses to plead after judgment
against him upon a demurrer to the indictment.
11. This statute must, on this question, be considered in pari materia with section 10920 N.
C. L. since enacted, which reads: Issues of fact must be tried by jury, unless a trial by jury be
waived in cases not amounting to felony, by consent of both parties expressed in open court
and entered in its minutes.
12. Waiver in cases not amounting to a felony is thus expressly permitted, and is not the
converse, that in felony cases it is prohibited, the plain implication of the statute? We think
so. And when considered with the declaration in section 10657, supra, that no person can be
convicted of a public offense tried by indictment, unless by a verdict of a jury, there is no
escape from the conclusion that it is the legislative intent that a jury may not be waived in a
criminal case of the grade of a felony prosecuted by indictment.
13. The same must be said of such a case prosecuted by information by reason of sections
11327 and 11332 N. C. L. which provide, respectively:
The several courts of this state shall have and may exercise the same power and
jurisdiction, to try and determine prosecutions upon information for crimes, misdemeanors
and offenses, to issue writs and process and do all other acts therein as in cases of like
prosecution under indictment.
All provisions of law applying to prosecutions upon indictments, to writs and process
therein, and the issuing and service thereof, to motions, pleadings, trials and punishments, or
the passing or execution of any sentence, and to all other proceedings in cases of
indictment, whether in a court of original or appellate jurisdiction, shall to the same
extent, and in the same manner as near as may be, apply to informations and to all
prosecutions and proceedings thereon."
57 Nev. 192, 212 (1936) State v. Mendez
sentence, and to all other proceedings in cases of indictment, whether in a court of original or
appellate jurisdiction, shall to the same extent, and in the same manner as near as may be,
apply to informations and to all prosecutions and proceedings thereon.
The argument made and authorities cited by counsel for appellant to the effect that a
statutory right may be waived have no application in the presence of plain statutory
prohibition.
14. Error is claimed in the action of the court in permitting witnesses Lawrence Bianchini
and Richard H. Cowles, Jr., whose names were not indorsed on the information, to testify in
behalf of the prosecution. The name of the former was indorsed on the information by order
of the court after he was called as a witness. It does not appear that the latter's name was
indorsed thereon at all. However, it appears that the testimony of these witnesses was well
known to appellant's counsel for some time before the trial. In view of this fact, we do not
think the court abused its discretion in permitting them to testify. State v. Monahan, 50 Nev.
27, 249 P. 566.
We will not discuss the other errors assigned. We have considered them all and find them
to be without merit.
The judgment and order denying appellant's motion for a new trial should be affirmed.
It is so ordered.
Taber, J.: I concur.
Coleman, J., concurring:
I concur in the order of affirmance, but not in the entire opinion. I am convinced that, if the
trial court had accepted the offer of the defendant to waive a trial by jury, no error would have
been committed. Briefly, my views are:
So far as the federal constitution is concerned, the point is settled by the case of Patton v.
United States, 2S1 U. S. 276, 50 S. Ct. 253, 74 L. Ed. S54, 70 A. L. R.
57 Nev. 192, 213 (1936) State v. Mendez
281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263. I am of the opinion that the
same conclusion is justifiable as to our state constitution and statutes. Article I, sec. 3, of our
constitution, provides: The right of trial by jury shall be secured to all, and remain inviolate
forever.
Article 3, sec. 2, cl. 3, of the federal constitution, provides that: The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury.
The language of the federal constitution is substantially the same as is the provision of our
state constitution. It may be contended that this court in State v. Borowsky, 11 Nev. 119, held
contrary to my view. To my mind that opinion is certain as to but one thing in this
connection; namely, that, where the defendant agreed to a trial by eleven jurors, he should be
held to be estopped from saying that he did not have a trial by a jury. The opinion is
inconsistent and unsatisfactory. If one cannot waive a jury trial, he cannot be estopped, and, if
he can be estopped from saying he did not have a jury trial, he should be estopped from
saying he has been prejudiced in waiving a jury trial. At any rate, it is a mere play upon words
to say that our constitution, in substance, provides that a criminal trial otherwise than by a
jury of twelve is no trial at all, and that a jury of twelve cannot be waived, yet sustain a
conviction where there was no such trial, on the ground that the defendant was estopped. That
was the Borowsky Case, supra. Such an opinion should not influence us in this case.
The supreme court of Utah, in State v. Mortensen, 26 Utah, 312, 73 P. 562, 567, 633,
holds that a jury may be waived, and quotes from several authorities, among them Perteet v.
People, 70 Ill. 171, as follows: A prisoner, in a capital case, is not to be presumed to waive
any of his rights; but that he may, by express consent, admit them all away, can be neither
doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the
most valuable rights secured to the citizen, that of a trial by jury.
57 Nev. 192, 214 (1936) State v. Mendez
that of a trial by jury. If he can expressly admit away the whole case, then it follows that he
can admit away a part of it, but he will not be presumed to have done so. The consent must be
expressly shown.
Relative to sections 10657 and 10920 N. C. L., quoted in the opinion of the Chief Justice, I
need only to say that I am of the opinion that it was not the intention of the legislature to
make it mandatory that a trial by jury be had in a criminal case, but merely to safeguard such
a righta privilege, as pointed out in Patton v. United States, supra. But this court has
often held, in criminal cases, that a statutory right may be waived. State v. Collyer, 17 Nev.
275, 30 P. 891; McComb v. Fourth Judicial District Court, 36 Nev. 417, 136 P. 563; State v.
Holt, 47 Nev. 233, 219 P. 557.
On Petition for Rehearing
December 4, 1936.
Per Curiam:
Rehearing denied.
____________
57 Nev. 214, 214 (1936) Warren Ex Rel. v. Dist. Ct.
THE STATE OF NEVADA, Ex Rel. H. C. WARREN, J. W. DIGNAN and HARRY
COHEE, Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, in and for the County of Humboldt, and HON. JAMES DYSART,
District Judge Presiding, Respondents.
No. 3157
October 2, 1936. 61 P. (2d) 6.
1. Judges.
Where judge voluntarily disqualified himself and called another judge upon request of parties without
requiring payment of fee, change held not change of judge so as to preclude right to have different judge
hear order to show cause upon filing affidavit of prejudice and paying fee (Comp. Laws, sec. 8943; sec.
8407, as amended by Stats. 1931, c. 153, sec. 1; sec. 8407.02, as added by Stats. 1931, c. 153, sec. 3).
57 Nev. 214, 215 (1936) Warren Ex Rel. v. Dist. Ct.
2. Judges.
Plaintiff who did not object to calling of different judge upon defendant's request, and who stipulated that
action be assigned to new judge for all further proceedings, waived right to change of judge to hear order to
show cause issued while appeal from decree was pending (Comp. Laws, sec. 8943; sec. 8407, as amended
by Stats. 1931, c. 153, sec. 1; sec. 8407.02, as added by Stats. 1931, c. 153, sec. 3).
3. Judges.
Where plaintiff, his attorney, and foreman took possession of personalty, adjudged to belong to
defendants in foreclosure action, upon alleged abandonment by receiver appointed to take possession
pending appeal, attorney and foreman held not parties entitled to disqualify judge who had tried action
and, upon instance of receiver, issued order to show cause why personalty should not be surrendered to
receiver (Comp. Laws, sec. 8943; sec. 8407, as amended by Stats. 1931, c. 153, sec. 1; sec. 8407.02, as
added by Stats. 1931, c. 153, sec. 3).
4. Judges.
Receiver's petition for order to show cause why persons who had taken possession of personalty,
adjudged to belong to defendants in foreclosure action and directed to be kept by receiver pending appeal,
should not deliver personalty to receiver and for other necessary orders, held not basis for order punishing
for contempt as contended by one of the persons directed to appear as respects question whether such
person had such interest in the show cause proceeding as to be a party entitled to disqualify the judge.
Original mandamus proceeding by the State, on the relation of H. C. Warren and others,
against the Sixth Judicial District Court of the State of Nevada in and for the County of
Humboldt, and the Honorable James Dysart, District Judge, presiding. Petition for
peremptory writ of mandamus denied, and alternative writ dismissed.
J. W. Dignan, for Petitioners:
Petitioners respectfully submit to the court the following authorities upon their application
for a writ of mandamus: Kelly v. Ferguson (Okla.), 114 P. 631; Gehlert v. Quinn (Mont.), 98
P. 369; Ex Parte Ellis (Okla.), 105 P. 184; State v. District Court (Mont.), 147 P. 614;
Murdica v. State (Wyo.), 137 P. 574; Bedolfe v. Bedolfe (Wash.), 127 P. 594; Huhn v. Irvin
{Wyo.),
57 Nev. 214, 216 (1936) Warren Ex Rel. v. Dist. Ct.
(Wyo.), 128 P. 514; State ex rel. Carroll v. District Court (Mont.), 148 P. 312; Beeler v.
Smith (Wash.), 136 P. 678; Stephens v. Stephens (Ariz.), 152 P. 164; Sherman v. District
Court (Mont.), 152 P. 32; Bitter Root V. I. Co. v. District Court (Mont.), 152 P. 745; State v.
Clements (Mont.), 155 P. 271; Stokes v. District Court, 55 Nev. 115, Ex rel. Beach v. Fifth
Judicial District Court, 53 Nev. 444, 5 P. (2d) 535.
McNamara & Robbins, for Respondent:
We say that one change of judge had been granted in the action prior to the time
petitioners herein filed the affidavit of prejudice against respondent district judge, and the
remedy and right provided in the statute (sec. 8407.02 N. C. L., Supplement 1934) had been
exhausted. State ex rel. Palmer et al. v. Atkinson, 156 So. 726; McGregor v. Hammock (Fla.),
132 So. 815.
We also contend that petitioners waived the objection urged against respondent district
judge, in the affidavit of prejudice in question, for the reason that they did not urge the
objection contained in said affidavit in the first instance, as contemplated and rendered
necessary by sec. 45b of the statute, supra. The record unquestionably shows that the case was
assigned to respondent district judge upon stipulation of counsel for the respective parties.
State v. Ham, 24 S. Dak. 639, 124 N. W. 955, Ann. Cas. 1912a, p. 1070; Washoe Copper Co.
v. Hickey, 46 Mont. 363, 128 P. 584; Holloway v. Hall, 79 Okla. 163, 192 P. 219; Roberts v.
Sturgill (Ky.), 77 S. W. (2d) 789; State ex rel. Sheehan v. Reynolds, etc. (Wash.), 190 P. 321;
33 C. J. sec. 196, p. 1019; Johnson v. Bowling et al. 205 S. W. 927.
OPINION
By the Court, Taber, J.:
In November 1935, civil action No. 3335 was commenced in the Sixth judicial district
court, Humboldt County, by H. C. Warren against William M.
57 Nev. 214, 217 (1936) Warren Ex Rel. v. Dist. Ct.
County, by H. C. Warren against William M. De Long, Mabel De Long, his wife, Jewell De
Long, and Bill De Long, Jr. The suit was one to foreclose a mortgage on real and personal
property of defendants William M. De Long and Mabel De Long, and at the instance of
plaintiff a receiver was appointed when the suit was commenced. Jewell De Long and Bill De
Long, Jr., were made parties defendant because it was alleged that they claimed to be the
owners of certain personal property subject to the lien of the mortgage.
On or about November 25, 1935, an order to show cause was issued directing all the
defendants to appear in the district court at a certain time and show cause why they should not
be punished for contempt of court for disobeying an order theretofore made in said action by
Honorable L. O. Hawkins, judge of said court. On December 2, 1935, defendants objected to
Judge Hawkins' trying said contempt proceedings, under section 8943 N. C. L., which
provides, inter alia, that in all cases of contempt arising without the immediate view and
presence of the court, the judge of such court in whose contempt the defendant is alleged to
be shall not preside at such trial over the objection of the defendant. Upon stipulation of
plaintiff and defendants, the contempt proceeding was assigned by Judge Hawkins to
Honorable James Dysart, judge of the Fourth judicial district, who heard and determined that
proceeding on December 5, 1935.
On the same day that defendants objected to the trial of the contempt proceeding by Judge
Hawkins, they also requested him to assign said civil action No. 3335 to some other judge for
all further proceedings to be had therein, basing said request upon the alleged fact that Judge
Hawkins was biased and prejudiced by reason of his former association and relation with
the late H. Warren, father of plaintiff. Judge Hawkins thereupon informed defendants that if
they would file an affidavit of bias or prejudice as provided in section 8407 N. C. L., as
amended Stats. 1931, p. 247, c. 153, sec.
57 Nev. 214, 218 (1936) Warren Ex Rel. v. Dist. Ct.
sec. 1, and pay the clerk $25, as provided in said section, he would make an order assigning
said cause to another judge. Whereupon, says Judge Hawkins in his affidavit, counsel for
defendants explained to me that their clients were of limited means, and they requested me, as
such judge, to relieve their clients of the necessity of paying the said $25.00; and after due
consideration I agreed to relieve the said defendants of the obligation of paying the $25.00,
and, after conference with counsel for respective parties, whereat it was agreed by and
between counsel for the respective parties that it would be agreeable for me to assign said
case for all further proceedings to Hon. James Dysart, District Judge of the Fourth Judicial
District in and for the County of Elko, and upon said stipulation and agreement, and upon the
6th day of December, 1935, I made and entered an order in said case No. 3335, assigning the
said case for all further proceedings to the said James Dysart, as such District Judge.
The minutes of the district court in said action, under date of December 6, 1935, read as
follows: Upon stipulation of Counsel for the respective parties, it is ordered that this case be
and the same is set down for trial for the hour of ten o'clock A. M. on Thursday, January 2,
1936, before the Court. It is further ordered that this case upon demand of defendants be and
hereby is assigned for further proceedings to the Hon. James Dysart, Judge of the Fourth
Judicial District Court of the State of Nevada, in and for the County of Elko, for all further
proceedings to be had therein, granting and giving unto said Judge all power and authority in
the premises. The Clerk is directed to notify the said Judge and Counsel for the Defendants in
writing of the above order.
Said action No. 3335 came on regularly for trial before Judge Dysart on January 2, 1936,
resulting in a decree of foreclosure and sale against the property of defendants William M. De
Long and Mabel De Long, but adjudging Jewel De Long and Bill De Long, Jr., to be the
owners of certain personal property claimed by plaintiff to be a part of the personalty
covered by the mortgage.
57 Nev. 214, 219 (1936) Warren Ex Rel. v. Dist. Ct.
be the owners of certain personal property claimed by plaintiff to be a part of the personalty
covered by the mortgage. Plaintiff moved for a new trial as to that part of the judgment
awarding said personal property to defendants Jewell De Long and Bill De Long, Jr. Said
motion was denied and plaintiff appealed to this court. Said appeal was pending at the time
the petition herein was filed. It appears from said petition that upon application of plaintiff
the trial court fixed a stay bond upon appeal, and ordered that the said personal property
adjudged to be owned by Jewell De Long and Bill De Long, Jr., should remain in the
possession and under the control of the receiver during the pendency of the appeal, and that
the receiver thereupon took into his possession all of said personal property. The petition
further alleges that the receiver remained in possession of said personal property until April
17, 1936, upon which date he abandoned the said property, whereupon petitioners took
possession of the same and have ever since conserved and cared for it. On May 14, 1936, the
receiver demanded of the petitioners that they surrender and deliver to him the possession and
control of all said personal property adjudged, as aforesaid, to be the property of Jewell De
Long and Bill De Long, Jr. Said demand was by petitioners and by each of them refused.
Thereafter, and on May 20, 1936, at the instance of the receiver, an order to show cause was
issued requiring the plaintiff H. C. Warren, his foreman Harry Cohee, and his attorney J. W.
Dignan, to appear on June 1, 1936, and show cause why they should not be required to
surrender and deliver to the receiver all of the personal property described in the petition. On
said 1st day of June 1936, petitioners filed their answer to the petition for order to show
cause, and on the same day and before the hour set for said show cause hearing, said Warren,
Cohee, and Dignan filed with the clerk of the district court an affidavit of J. W. Dignan
alleging prejudice on the part of Judge Dysart, and immediately when said hearing was called
for trial demanded that another judge be called to try the said hearing on order to show
cause.
57 Nev. 214, 220 (1936) Warren Ex Rel. v. Dist. Ct.
demanded that another judge be called to try the said hearing on order to show cause. Said
affidavit of prejudice was filed under the provisions of section 8407 N. C. L., as amended
Stats. 1931, p. 247, c. 153, sec. 1, and according to the allegations of the petition, was filed by
said J. W. Dignan both as attorney for the petitioners herein and for himself individually.
At the time of filing said affidavit, petitioners paid the clerk the sum of $25 as required by
said section. Judge Dysart refused to call another judge and stated that he would proceed to
the trial of said show cause hearing on June 15, 1936. Petitioners then instituted the instant
proceeding in this court, praying for a writ of mandamus to compel Judge Dysart to call in
another judge to hear and determine the issues raised by said petition for order to show cause
and the answer thereto.
Petitioners contend that when J. W. Dignan's affidavit of prejudice was filed and the $25
paid to the clerk, the only course that Judge Dysart could lawfully pursue was to request some
other district judge to preside on the hearing to show cause. They argue that there has not
been one change of judge within the meaning of section 8407.02 N. C. L., Stats. 1931, p. 248,
c. 153, sec. 45b (as added by section 3); that even if there has been one change of judge
within the meaning of that section, the change would operate only as to H. C. Warren and not
as to either Harry Cohee or J. W. Dignan, who were not defendants in the main action; that
the show cause proceeding is a civil action within the meaning of said amended section 8407
N. C. L., or at least a proceeding in a civil action, and that petitioners were not too late in
filing the affidavit of prejudice or paying the $25 to the clerk [citing State ex rel. Stokes v.
Second Judicial District Court, 55 Nev. 115, 27 P. (2d) 534]; that while plaintiff stipulated to
the time set for the trial, he did not stipulate that it should be heard by Judge Dysart.
Respondents contend that there was one change of judge within the meaning of said
section 8407.02 N. C. L., Stats.
57 Nev. 214, 221 (1936) Warren Ex Rel. v. Dist. Ct.
N. C. L., Stats. 1931, p. 248, sec 45b; that petitioners waived any objection to Judge Dysart;
that the hearing on the order to show cause is not a civil action within the meaning of said
amended section 8407 N. C. L.; that the affidavit of prejudice was filed, and the $25 paid to
the clerk, too late. The provisions of amended section 8407 and section 8407.02 N. C. L.,
Stats. 1931, p. 248, sec. 45b, are set forth in a recent decision of this court. Roberts M. & M.
Co. v. Third Judicial District Court, 56 Nev. 299, 50 P. (2d) 512. It seems unnecessary to
again set them forth in full.
1. We are inclined to agree with petitioners that when Judge Dysart was called in to try
civil action No. 3335 on the merits, there was not a change of judge within the meaning of
said section 8407.02 N. C. L., Stats. 1931, p. 248, sec. 45b, although there was a change of
judge in fact. It may well be that if defendants, after Judge Dysart had been called into the
case at their request, had later filed an affidavit of prejudice and paid the clerk $25 under the
provisions of amended section 8407 N. C. L., we would hold that they were estopped from
being granted a change of judge under said section; but that is not the same thing as saying
that when Judge Hawkins voluntarily disqualified himself on the mere request of defendants
and called in Judge Dysart, a change of judge was granted within the meaning of section
8407.02 N. C. L., Stats. 1931, p. 248, sec. 45b. In other words, by change of judge, as used
in that section, is meant a change of judge granted pursuant to the filing of an affidavit and
payment of $25 to the clerk as provided in said section 8407.
2. We come now to a consideration of the question whether there was a waiver of the right
to be granted a change of judge under the provisions of amended section 8407 N. C. L. In our
opinion that right was waived by plaintiff when he not only failed to object to the calling in of
Judge Dysart, but expressly stipulated that the cause be set down for trial on January 2, 1936,
and that the action be assigned to Judge Dysart "for all further proceedings to be had
therein, granting and giving unto said judge all power and authority in the premises."
57 Nev. 214, 222 (1936) Warren Ex Rel. v. Dist. Ct.
that the action be assigned to Judge Dysart for all further proceedings to be had therein,
granting and giving unto said judge all power and authority in the premises. It is true, as
pointed out by petitioners, that the minute order of December 6, 1935, after first setting forth
that the date for the trial was set down upon stipulation of counsel for the respective parties,
goes on to say that: It is further ordered that this case upon demand of defendants be and
hereby is assigned for further proceedings to the Hon. James Dysart, etc. Taken by
themselves, these minutes would not affirmatively show that plaintiff agreed to anything
further than the setting of the case for trial on January 2, 1936; but the affidavit of Judge
Hawkins expressly states that his order assigning the case for all further proceedings to Judge
Dysart was made after conference with counsel for respective parties, whereat it was agreed
by and between counsel for the respective parties that it would be agreeable for me to assign
said case for all further proceedings to Hon. James Dysart, etc. This statement is undenied in
the record and is not inconsistent with the minutes of December 6, 1935.
When Judge Hawkins decided to relieve defendants of the necessity of paying $25 to the
clerk by disqualifying himself and agreeing to call another judge, plaintiff was under no duty
to agree upon the judge to be designated. He could have allowed Judge Hawkins to decide
upon the particular judge to be called in, thus reserving his right to disqualify such other
judge under the provisions of said amended section 8407 N. C. L. He chose, however, not
only to agree upon Judge Dysart as the judge to try the case, but went further and expressly
agreed that the cause should be assigned to Judge Dysart for all further proceedings. By
voluntarily entering into this stipulation, plaintiff, in our opinion, waived his right to
afterwards disqualify Judge Dysart under the provisions of amended section 8407 N. C. L.
We have not been able to find statutes in any other state the same as the Nevada sections
cited herein, though there are similar statutes in a number of states.
57 Nev. 214, 223 (1936) Warren Ex Rel. v. Dist. Ct.
though there are similar statutes in a number of states. Neither have we been able to find any
case presenting the same situation as in the instant case. We have endeavored to cover the
whole field relating to waiver of disqualification; but while Washoe Copper Co. v. Hickey, 46
Mont. 363, 128 P. 584, and a few other cases, have been of some assistance, none is directly
in point.
3. In the oral argument in this court, petitioners placed special emphasis upon the fact that
neither Mr. Cohee nor Mr. Dignan was or is a party in said district court action No. 3335. It is
contended that even if plaintiff waived the right to file a disqualifying affidavit against Judge
Dysart, certainly Mr. Cohee, and particularly Mr. Dignannot parties to the main action, but
brought into court by receiver on the order to show causecannot rightly be held to have lost
their right to disqualify Judge Dysart under the provisions of amended section 8407 N. C. L.
But an examination of the whole record fails to disclose any particular in which either Mr.
Dignan or Mr. Cohee was or is individually interested. We are unable to see in what way the
disqualification of Judge Dysart would or could affect either Mr. Dignan or Mr. Cohee
personally. Mr. Dignan's only connection with the case appears to be as Mr. Warren's
attorney, while Mr. Cohee's only interest is as his foreman. In other words, as it appears to us,
Mr. Warren was the person whose interests were being litigated, and he had already waived
his right to file a disqualifying affidavit. Neither Mr. Dignan nor Mr. Cohee was a party
entitled to disqualify Judge Dysart. An analogous situation was presented to the Supreme
Court of Montana in the case of Gehlert v. Quinn, 38 Mont. 1, 98 P. 369.
4. Presumably for the purpose of showing his personal and individual interest in the show
cause proceedings, Mr. Dignan said, on oral argument, that the petition for order to show
cause in the district court shows they wanted an order against me to surrender $5,000.00 or
put me in jail until I do surrender it; but said petition does not ask for such an order.
57 Nev. 214, 224 (1936) Warren Ex Rel. v. Dist. Ct.
said petition does not ask for such an order. It asks only for an order directing H. C. Warren,
Harry Cohee, and J. W. Dignan to appear on a day certain and to then and there show cause,
if any they have, why they should not be compelled to deliver up to your petitioner said
property and the whole thereof, and that such other and further orders be therein entered upon
the hearing of said order to show cause as will enable your petitioner to properly administer
the affairs of his said Receivership, and to preserve the assets thereof, and for such other and
further orders as may be necessary, expedient and advisable in the premises. It is our opinion
that the petition for an order to show cause could not be the basis for an order or judgment
punishing any of said three parties for contempt.
We deem it unnecessary to discuss other questions referred to in the briefs and oral
argument.
The petition for a peremptory writ of mandamus is denied, and the alternative writ
dismissed.
____________
57 Nev. 224, 224 (1936) In Re Duffill's Estate
In the Matter of the Estate of ALBERT DUFFILL,
Deceased.
MARTHA J. DUFFILL, Appellant, v. MARY WOOD DUFFILL and PHYLLIS ALBERTA
DUFFILL, Minor, by W. R. CHAMBERLAIN, Her Guardian Ad Litem, Respondents.
No. 3144
November 2, 1936. 61 P. (2d) 985.
1. Wills.
Supreme court would not be justified in reversing judgment refusing to admit alleged lost will to probate
and order denying new trial unless it clearly appeared that wrong conclusion was reached.
2. Evidence.
Trial court is not bound to accept uncontradicted testimony, but it may consider inherent improbabilities
of statements of witnesses.
57 Nev. 224, 225 (1936) In Re Duffill's Estate
3. Wills.
Evidence held to sustain judgment refusing to probate alleged lost will (Comp. Laws, sec. 9624).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Proceeding by Martha J. Duffill to probate an alleged lost will of Albert Duffill, deceased,
opposed by Mary Wood Duffill and another. From an adverse judgment and from an order
denying new trial, Martha J. Duffill appeals. Affirmed.
Roger Foley and O. H. Speciale, for Appellant:
The testimony of the various witnesses prove, without contradiction, the execution of the
will, the contents of the will, the existence of the will up to the time of testator's death, and
that the will disappeared after testator's death.
The presumption of a revocation animo revocandi is effectually met and overcome by clear
and positive evidence.
The above evidence, being uncontradicted, is more than sufficient to rebut any
presumption of the destruction of the deceased's last will. The declarations of the deceased
are unvarying, and come down to within a month of his death. And on the day of his death
deceased stated that he was to leave on the following Thursday for Las Vegas, Nevada, for
the purpose of filing a divorce complaint against his wife.
The trial judge abused his discretion in refusing to admit the will to probate, when the
uncontradicted testimony proves beyond all doubt the execution, the contents, and the
existence of the will up to the moment of testator's death.
Musick & Burrell, Vance Booker, C. D. Breeze, Howard Burrell, and George Martinson,
for Respondent Mary Wood Duffill; Esmond Schapiro, Leo A. McNamee, and Frank
McNamee, Jr., for Respondent Phyllis Alberta Duffill, by W. R. Chamberlain, her Guardian:
57 Nev. 224, 226 (1936) In Re Duffill's Estate
Phyllis Alberta Duffill, by W. R. Chamberlain, her Guardian:
Respondents respectfully submit that from the record and upon the showing made herein,
it has been conclusively shown:
1. That proponent's showing, standing alone, was in fact and in law insufficient to warrant
a judgment in favor of the appellant.
2. The evidence was in conflict; the credibility of proponent's own witnesses was
impeached by the inherent contradiction and improbability of their stories until credulity even
would recoil, and, therefore, the findings and judgment are amply sustained upon the
evidence before the court, and that the court, upon this state of the record and the evidence,
arrived at the correct conclusion.
3. The court is the best judge of the credibility of the witnesses introduced by the
respective parties to the action, and properly found, in instances of conflict, that evidence for
the proponent was not true, but that evidence on behalf of respondents was true. While this is
exclusively within the function of the trial court, we submit the record impels to the same
conclusion.
4. The finding of the lower court that no will was executed or continued in existence, as
claimed by the proponent, is amply supported by the evidence, and a finding to the contrary
would have been erroneous.
5. If it be assumed, contrary to the findings of the court and against the weight of the
evidence, that a will was executed as claimed by the proponent, nevertheless it is a fact that
its existence at the time of the death of decedent was not shown, and no will was found after
decedent's death; and the presumption in such cases is that the will was destroyed animo
revocandi. This presumption was not overcome, and the court's finding that any such will was
revoked was amply supported by the evidence.
We submit, therefore, that on the grounds herein urged the findings and decision of the
court and the judgment entered are supported by the evidence in the case, and that the
court did not arrive at a wrong conclusion either on the issues of fact or the questions of
law involved in the cause.
57 Nev. 224, 227 (1936) In Re Duffill's Estate
judgment entered are supported by the evidence in the case, and that the court did not arrive
at a wrong conclusion either on the issues of fact or the questions of law involved in the
cause.
OPINION
By the Court, Coleman, J.:
Appellant, the mother of decedent, instituted proceedings to probate a lost will, alleged to
have been executed February 19, 1932, wherein decedent left $200,000 to her and the balance
of his estate to his widow and daughter. Judgment was rendered against her, from which, and
an order denying a new trial, an appeal has been taken.
At the conclusion of the taking of the testimony and of the oral arguments of counsel, the
court delivered a clear-cut, concise statement of his reasons for concluding that no will had
been executed by the deceased as contended by appellant, and, if there had been, that it was
revoked prior to the death of deceased. Formal findings of facts were thereafter made by the
court, in accordance with its oral decision.
Our statute relative to the establishment of a lost or destroyed will reads: No will shall be
allowed to be proved as a lost or destroyed will unless the same shall be proved to have been
in existence at the time of the death of the person whose will it is claimed to be, or be shown
to have been fraudulently destroyed in the lifetime of such person, nor unless its provisions
shall be clearly and distinctly proved by at least two credible witnesses. Section 9624 N. C.
L.
1. Whatever might have been our conclusion had we presided at the hearing in the lower
court, we are satisfied that the conclusion reached to the effect that no such will, as contended
for, was ever executed, must be sustained. We would not be justified in reversing the
judgment and order appealed from unless it clearly appears that the wrong conclusion was
reached.
57 Nev. 224, 228 (1936) In Re Duffill's Estate
appears that the wrong conclusion was reached. Willis v. Brotherhood, 55 Nev. 448, 38 P.
(2d) 974.
Proponent relies upon the evidence of witnesses Biffle, Blanco, Montt, and Koebig to
show that the terms of the statute were complied with. Other evidence was introduced tending
to corroborate these witnesses.
We will test the testimony of the persons named, to ascertain just what each bore witness
to.
Biffle, who signed as a witness, testified that he did not read any part of the will except the
heading, and that his only knowledge of its contents was based upon the statement of
deceased. Clearly, his testimony does not pretend to show the provisions of the will.
The witness Venturo Blanco testified that when he went to the home of Dr. Michelena in
1932 he found decedent, whom he had known for about three years, in bed, and that as he
went into the bedroom I said, hello, Albert. If you think you are going to die don't forget me
in your will. Jokingly of course. He said, Don't forget, I am an attorney, my will is already
made.' He asked me to hand him a brief case and he pulled out a bunch of papers and he
handed it to me and I read it. He then testified to the provisions of the will.
The witness Montt, a Hollywood actress, testified that about the early part of December
1932, she met decedent at Dr. Michelena's house in Los Angeles; that he was sick with a
severe attack of rheumatism; that he was in the living room and wanted to go into the
bedroom and lie down; that she got his crutches, and with the help of a maid they got him to
the bedroom. The doctor told me where the medicine was and I gave him the medicine; then
he said to me, It won't be very long now, I want to have as good a time as I can.' I said,
Don't talk that way.' I tried to change the conversation because he was depressed. He said, I
will prove it to youI am prepared for it.' He asked me to go to the dresser and bring him the
brief case. I didn't want to because I did want to change the conversation but he insisted, so I
brought a brown leather case and he opened it and took a paper from inside, was about two
pages, written in typewriter, in envelope, with the blue paper in the back, and he asked
me to read it.
57 Nev. 224, 229 (1936) In Re Duffill's Estate
opened it and took a paper from inside, was about two pages, written in typewriter, in
envelope, with the blue paper in the back, and he asked me to read it. I read it and he says it
was his will.
This witness then testified to its provisions, stating them to be as did the witness Blanco.
She also testified that decedent stated to her at the time: I am doing this to protect my mother
because I have meant everything to her and she means everything to me.
She was asked it she saw the name of deceased, to which she replied: Yes, he said it was
his signature, and there were two other signatures beside it, and that decedent's signature was
on the side.
She further testified:
Q. What was the occasion for your going there this day? A. I used to go there almost
every day.
Q. Dr. Michelena was not there? A. That is why I went, to help take care of the sick.
Q. Were you a nurse? A. No, I was not a nurse, just a friend.
Q. Of Albert Duffill? A. Yes.
Q. You went over there to take care of him as a casual acquaintance? A. Yes.
Dr. Koebig testified that the occasion of his meeting decedent was in consultation with Dr.
Michelena. He testified to the terms of the will and that its provisions were as stated by
Blanco and Montt. He testified that the decedent showed him his will, the occasion therefor
being that there was to be an operation on the knee of decedent and he stated to decedent that
he should have his affairs in shape, and that decedent replied: I am an attorney, and you
know I take care of those things.' * * * He then picked up a blue-backed paper and he said,
This is the will and testament that I made a year before,' and he opened it up * * *. He said,
Doctor, is this going to be such a severe adventure that you have to take my interests to heart
so much, is it dangerous?' And I said, No' but that all major operations must be prepared for
because they are a major undertaking.
57 Nev. 224, 230 (1936) In Re Duffill's Estate
He also testified that decedent's signature was at the bottom of the will.
Of the witnesses who testified in behalf of proponent there were only three who purported
to testify to the provisions of the will from their own knowledge. They were Blanco, Montt,
and Koebig. The circumstances under which Blanco claims to have read it were very unusual.
The same may be said of the testimony of the witnesses Montt and Koebig. The trial judge
rejected the testimony of these witnesses. He saw them upon the stand, and we are not
disposed to say that he abused his prerogative in rejecting their testimony in toto. In fact, the
witness Koebig was impeached by an affidavit which he had previously made, in which he
stated that he had read only a portion of the will. A peculiar thing about this case is that the
mother of decedent testified that he had never told her of the terms of the alleged will, as did
his father, and several other persons close to him. Furthermore, the witness Montt testified
decedent signed the will on the side, and the other two witnesses testified he signed at the
bottom.
It was sought to impress upon the court that proponent was the object of decedent's fondest
hope and solicitude. No doubt there was a deep bond of affection between them; however,
decedent showed his thoughtfulness of her by leaving her $75,000 in insurance.
It is a rather remarkable thing that the witnesses who testified to the exact terms of the will
were in no way interested in its provisions, yet could remember, three years later, four distinct
provisions of it.
Our legislature, while making provision for the proof of a lost or destroyed will, realized
that the establishment of such documents should be clearly and distinctly proven by at least
two credible witnesses. It sought to prevent fraud and a miscarriage of justice in such matters.
In re Estate of Vetter, 110 Cal. App. 597, 294 P. 438, 439, in considering just such a question
as confronts us, relative to the weight of the testimony, the court said: If the trial court
determined that in the extreme accuracy of detail and the close agreement of the
statements of the witnesses rested its weakness and was its contradiction, we could not
say it erred.
57 Nev. 224, 231 (1936) In Re Duffill's Estate
extreme accuracy of detail and the close agreement of the statements of the witnesses rested
its weakness and was its contradiction, we could not say it erred. It is very peculiar, and quite
out of the ordinary, that memories should carry so accurately and for such a long period of
time almost all of the facts in almost the same identical words. While we cannot say under
such circumstances it must necessarily be rejected as unworthy of belief, yet it must
inevitably occur that the trial judge will regard it with serious misgivings.
This statement is very fitting to the facts of this case.
The supreme court of California, in Estate of Kidder, 66 Cal. 487, 6 P. 326, 329, quotes
approvingly as follows: To authorize the probate of a lost will by parol proof of its contents
depending on the recollection of witnesses, the evidence must be strong, positive, and free
from all doubt. Courts are bound to consider such evidence with great caution and they
cannot act upon probabilities.' This strictness is requisite, in order that courts may be sure
that they are giving effect to the will of the deceased and not making a will for him.' Matter of
Johnson's Will, 40 Conn. [587] 589.
2, 3. In the very nature of things there was no possibility of a contradiction of the
testimony of the witnesses mentioned, but it is a well-recognized rule that a court is not
bound to accept uncontradicted testimony. It may consider the inherent improbabilities of the
statements of witnesses. 23 C. J. 48, note 38; 4 Wigmore (2), sec. 2034.
It is inherently improbable that a lawyerone so careful as the witnesses Blanco and
Koebig would have us believe decedent waswould be carrying around with him, as
claimed, such an important document. Furthermore, it is inherently improbable that he would
insist on showing his will to the witness Montt, as she testified. In fact, the trial judge may
have thought the entire testimony of these witnesses improbable. If he had said so, we would
not question the statement in the least. No doubt he was of that opinion.
57 Nev. 224, 232 (1936) In Re Duffill's Estate
Some other witnesses testified in the matter, but we do not deem it necessary to refer
specifically to their testimony.
The very will in question here seems to have been before the California courts, In re
Duffill's Estate (Cal. App.), 58 P. (2d) 185, but, as no plea of res adjudicata was made in this
matter (as it seems there might have been, 15 R. C. L. p. 997; 34 C. J. 759), we do not
consider it.
It not clearly appearing that the trial court did not reach the right conclusion upon the
evidence, the judgment and order appealed from are affirmed.
On Petition for Rehearing
January 25, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 232, 232 (1936) In Re Silver Creek
IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS IN
AND TO THE WATERS OF SILVER CREEK AND ITS TRIBUTARIES, IN
LANDER COUNTY, NEVADA.
NO. 3127
November 2, 1936. 61 P. (2d) 987.
1. Waters and Water Courses.
In water adjudication proceeding, failure to serve copy of notice of appeal from order denying motion for
new trial on attorney-general, in behalf of claimant who filed no exceptions or objections to final order of
state engineer, precluded supreme court from considering appeal (Comp. Laws, sec. 7923, as amended by
Stats. 1931, c. 223).
2. Waters and Water Courses.
Right of appeal in water adjudication proceeding exists solely by virtue of statute, and appellants are
limited to statutory plan outlined to protect their rights (Comp. Laws, sec. 7923, as amended by Stats.
1931, c. 223).
3. Waters and Water Courses.
Statutory requirement of service of notice of appeal from order denying new trial in water adjudication
proceeding on attorney-general, in behalf of claimant who filed no exceptions or
objections to final order of state engineer, is mandatory in form and jurisdictional in
effect {Comp.
57 Nev. 232, 233 (1936) In Re Silver Creek
attorney-general, in behalf of claimant who filed no exceptions or objections to final order of state
engineer, is mandatory in form and jurisdictional in effect (Comp. Laws, sec. 7923, as amended by Stats.
1931, c. 223).
4. Waters and Water Courses.
In water adjudication proceeding, appeal purporting to have been taken from judgment except insofar as
judgment fixed the duty of waters held required to be dismissed, since appeal in such proceeding other than
from an order denying motion for new trial must be taken from the decree as entered (Comp. Laws, sec.
7923, as amended by Stats. 1931, c 223).
Appeal from Third Judicial District Court, Lander County; Edgar Eather, Judge.
Proceedings in the matter of the determination of the relative rights in and to the waters of
Silver Creek and its tributaries, in Lander County, Nevada, between three sets of claimants
consisting of Mary Cronin, W. D. and M. E. Caton, St. John La Borde, and La Borde Brothers
& Company, wherein claimants W. D. and M. E. Caton and others file exceptions. From a
judgment making certain changes in the final order of determination and from an order
denying a new trial, claimants W. D. and M. E. Caton appeal. On motion to dismiss appeal.
Appeal dismissed.
Harwood & Diskin, for Respondents St. John La Borde and La Borde Brothers &
Company:
No notice of appeal or copy thereof was given to or served upon all of the parties in the
adjudication proceedings, and, therefore, this court has no jurisdiction in view of the fact that
the jurisdictional mandatory provisions of section 36 (c) of the water code, as amended Stats.
1931, p. 413, was not complied with.
The proceedings described in the notice of appeal are not appealable under the water law,
and said notice of appeal purports to bring to this court for review a matter not reviewable
under section 36 of the water code, as amended. Taylor et al. v. Ruddell et al., 54 Nev. 115, 7
P. (2d) 813.
57 Nev. 232, 234 (1936) In Re Silver Creek
Roy W. Stoddard and Eli Cann, for Appellants W. D. and M. E. Caton:
It seems to be a well-settled rule that an actual controversy must exist between all of the
parties before the appellate court before it becomes essential, necessary or jurisdictional that
notice of appeal be served upon such parties. 3 C. J. 357, sec. 112; 3 C. J. 1216, sec. 1319;
Dick v. Bird, 14 Nev. 161; Pacific Livestock Co. v. Ellison Ranching Co., 45 Nev. 1, 286 P.
120.
We submit that the provisions of section 36 of the water code, as amended, as to service
upon the attorney-general, on behalf of noncontestants or on behalf of the state engineer, are
directory only in cases such as the instant case, where the noncontesting claimant was an
appropriator of the waters of the South Fork only, and the controversy on appeal is limited to
claimants involving rights to waters of the North Fork, which is an entirely different tributary.
We do not think it necessary to cite authority to support the statement that the decree as
finally signed by the court must conform to the decision entered by the court. And we find it
difficult to construe the language of the amendment of section 36 of the water code to mean
that an appeal cannot be taken from the final judgment rendered by the court, under the
provisions of section 8885 N. C. L., as well as from the written decree as entered. Kondas v.
Washoe County Bank, 50 Nev. 181, 254 P. 1080.
OPINION
By the Court, Ducker, C. J.:
Two motions have been presented to the court. One is to dismiss an appeal from what is
designated in the notice thereof as that certain judgment rendered in favor of claimants St.
John La Borde and La Borde Brothers & Company, and against claimants Wilfred D.
57 Nev. 232, 235 (1936) In Re Silver Creek
and Mildred E. Caton, in the above-entitled action and court on February 13, 1935, except
insofar as said judgment and decree fixed the duty of waters, and from an order denying a
new trial therein.
This is an adjudication under the water code (Comp. Laws, sec. 7890, et seq., as
amended). On December 1, 1931, pursuant to section 34 of said code (Comp. Laws, sec.
7921), the state engineer entered and filed in his office a final order of determination in the
matter of the determination of the relative rights in and to the waters of Silver Creek and its
tributaries in Lander County, Nevada. On March 10, 1932, the state engineer filed with the
clerk of the Third judicial district court of the State of Nevada, in and for the county of
Lander, at Austin, Nevada, certified copies of the abstract of claims and the final order of
determination, together with all the original evidence and data filed with the state engineer,
duly certified by him in said proceedings.
It appears from the order of determination that there are but three sets of claimants to the
waters of the stream system, namely, Mary Cronin, W. D. and M. E. Caton, St. John La
Borde, and La Borde Brothers & Co. Claimants St. John La Borde and La Borde Brothers &
Co. filed in said court their exceptions to the final order of determination, as did claimants W.
D. and M. E. Caton. Claimant Mary Cronin filed no exception. The exceptions to the order of
determination were tried before said court, which on the 13th day of February 1935, by its
written decision, directed that a judgment be entered in said proceedings making certain
specific changes in the final order of determination, and with such changes confirmed and
approved the same. The findings of fact, conclusions of law, and decree were signed and filed
May 14, 1935.
On February 23, 1935, notice of intention to move for a new trial directed to the state
engineer of the State of Nevada, and Hon. Gray Mashburn, attorney-general of the State of
Nevada, his attorney, St. John La Borde and La Borde Brothers, and Harwood & Diskin, their
attorneys, Mary Cronin, who filed no exception to the final order of determination, and
Hon.
57 Nev. 232, 236 (1936) In Re Silver Creek
Diskin, their attorneys, Mary Cronin, who filed no exception to the final order of
determination, and Hon. Gray Mashburn, her representative, was served upon Harwood &
Diskin, attorneys for St. John La Borde and La Borde Brothers & Co., and upon said Gray
Mashburn, attorney for the state engineer of the State of Nevada. The motion made pursuant
to the foregoing notice was denied by the court on May 14, 1935. Thereafter on the 20th day
of May 1935, claimants W. D. and M. E. Caton filed and served the notice of appeal
heretofore mentioned. The notice of appeal is directed to claimants St. John La Borde and La
Borde Brothers & Co., and their attorneys Harwood & Diskin, and was served upon the latter.
No other notice of appeal was filed or served.
1. Respondents contend that this court is without jurisdiction to review the order of the
court denying the motion for a new trial, because no notice of appeal was directed to or
served upon the state engineer of the State of Nevada, or his attorney, the attorney-general of
the state, and also because no copy of notice of appeal was served upon said attorney-general
in behalf of Mary Cronin, who filed no exceptions or objections to the final order of the state
engineer.
It is conceded that no such service was made. The question is governed by that part of
section 36 of the water code (Comp. Laws, sec. 7923), as amended in 1931, and certain
principles of law heretofore declared by this court. The former reads:
(c) Appeals from such decree may be taken to the supreme court by the state engineer, or
any party in interest, in the same manner and with the same effect as in civil cases, except as
to the following matters:
Notice of appeal shall be served upon the attorneys of record for claimants who have filed
exceptions or objections to the final order of determination of the state engineer as provided
in section 35 of this act, and all claimants or water users who have not filed exceptions or
objections to said final order of determination or appeared in the cause by an attorney, shall
be served with a copy of notice of appeal by the service of a copy thereof on the
attorney-general of the State of Nevada.
57 Nev. 232, 237 (1936) In Re Silver Creek
or appeared in the cause by an attorney, shall be served with a copy of notice of appeal by the
service of a copy thereof on the attorney-general of the State of Nevada.
(d) Notice of intention to move for a new trial shall be served upon the attorneys of
record for claimants who have filed exceptions or objections to the final order of
determination of the state engineer as provided in section 35 of this act, and all claimants or
water users who have not filed exceptions or objections to said final order of determination or
appeared in the cause by an attorney, shall be served with a copy of notice of intention to
move for a new trial by the service of a copy thereof on the attorney-general of the State of
Nevada. Stats. 1931, p. 413, c. 223.
Appellants contend, as reason for omitting to serve the attorney-general in behalf of Mary
Cronin with a copy of the notice of appeal, that when she filed no exceptions the case became
a separable controversy between the Catons and the La Bordes. Appellants did not consider it
in that light on their motion for a new trial when they recognized her as a necessary party and
directed notice of it to her and served it upon the attorney-general, her statutory
representative. However, the character of an adjudication, under the water code, forbids the
idea of separate controversies being involved. It is a proceeding put in motion by an agent of
the state to determine the relative rights of water claimants on a stream or stream system.
Necessarily such interrelated rights must be adjusted as a whole in order to reach an equitable
settlement of the controversy. This conclusion has been heretofore declared by this court. In
Humboldt Land & Cattle Company v. Sixth Judicial District Court, 47 Nev.396, 224 P. 612,
613, we said: There is nothing in the context or in the subject-matter to require such
construction [separable controversies], 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, 89 Or. 659
[171 P. 402], 175 P. 421: 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.'"
57 Nev. 232, 238 (1936) In Re Silver Creek
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.'
When such a controversy reaches this court on appeal, it is not discernible how its
character in this respect can undergo any change by reason of nonexcepting claimants.
Although satisfied with the final order of determination of the state engineer, they are still
vitally concerned in every other appropriation, because a modification of the order might
affect them.
2. The legislature was doubtless influenced by this consideration in requiring service of
notice of intention to move for a new trial, and service of a copy of notice of appeal to be
made upon the attorney-general in behalf of nonexcepting water users. In fact, the legislature,
by the amendments to section 36 heretofore set out, has in effect declared that all claimants or
water users in an adjudication proceeding under the act are adverse. Consequently appellant's
argument and authorities as to when parties may be deemed adverse for the purpose of an
appeal in ordinary civil cases are not influential. The right on appeal in the statutory
proceeding before us exists solely by virtue of said section 36. The appellants are limited to
the plan therein outlined to protect their rights. In re Water Rights, 49 Nev. 357, 246 P. 692.
3. The contention that the provision is directory is wholly without merit. The requirement
is mandatory in form and jurisdictional in effect.
It follows that the appeal from the order denying the motion for a new trial must be
dismissed. As it therefore becomes unnecessary for us to determine whether the state engineer
should have been served with a copy of notice of appeal, we reserve opinion pending the
presentation of a case making such determination necessary. We content ourselves with the
observation that such service would be in keeping with safe practice.
57 Nev. 232, 239 (1936) In Re Silver Creek
such service would be in keeping with safe practice.
4. The appeal purporting to have been taken from the judgment rendered February 13,
1935, must also be dismissed. The statute does not contemplate such an appeal and it is
therefore without any legal effect.
An appeal in a water adjudication proceeding other than from an order denying a motion
for a new trial must be taken from the decree as entered. Section 36 of the water law as
amended by Statutes of 1931, p. 415; Taylor et al. v. Ruddell et al., 54 Nev. 115, 7 P. (2d)
813.
It is ordered that the appeal from the order denying the motion for a new trial and from the
rendition of judgment be, and they are hereby, dismissed.
____________
57 Nev. 239, 239 (1936) Hannah v. Hannah
MARGARET LEE HANNAH, Appellant, v.
JOHN HANNAH, Respondent.
No. 3167
December 1, 1936. 62 P. (2d) 696.
1. Divorce.
Where an appeal in divorce suit has been perfected by wife, supreme court has jurisdiction to make
allowance to wife for expenses of appeal, though no transcript of record on appeal has been filed with clerk
of supreme court.
2. Divorce.
Wife who perfected appeal from divorce decree for husband, and who was unable to pay costs of
preparing record on appeal and would be unable to prosecute appeal if husband was not required to pay
costs, held entitled to order requiring husband to pay necessary costs for prosecution of appeal.
3. Divorce.
Wife who appealed from judgment in divorce suit held not entitled on motion to supreme court to fee for
filing of record on appeal, since only one filing fee can be charged, and court would assume wife had paid
such fee on filing of her motion.
4. Divorce.
Where wife appealed from judgment in divorce suit and sought order requiring husband to pay costs for
prosecuting appeal, allowance of $100 for wife's attorney for getting transcript of record on appeal and bill
of exceptions properly before court held sufficient.
57 Nev. 239, 240 (1936) Hannah v. Hannah
Divorce suit by Margaret Lee Hannah against John Hannah. From an adverse decree, the
plaintiff appeals. On Motion for an order requiring defendant to pay clerk of supreme court
certain funds to pay plaintiff's costs for prosecuting her appeal. Order in accordance with
opinion.
George L. Sanford, for Appellant.
OPINION
By the Court, Ducker, C. J.:
This is a motion for an order requiring the respondent to pay to the clerk of this court, or to
the clerk of the court below, several sums totaling the amount of $400, to pay appellant's
costs for prosecuting her appeal.
Respondent did not contest the motion and made no appearance at the hearing
notwithstanding notice thereof was duly served.
It appears from the affidavit of counsel for appellant in support of the motion that an
appeal was duly perfected from a decree of divorce awarded appellant's husband, and from an
order denying her motion for a new trial; that she is not able to pay any of the costs of
preparing the record on appeal and has not the ability to earn or obtain the same. It is alleged
in said affidavit that the following sums for the following purposes are necessary to her
appeal: For an original and two copies of the reporter's official transcript of the proceedings
in said action, the sum of $100; for certified copies of the proceedings on motion for a new
trial and on motion for the modification and correcting of the findings and of other papers and
documents and records to be incorporated in the proposed bill of exceptions in the action, the
sum of $25; for filing the record on appeal in the supreme court, the sum of $25; and for
attorney's services in preparing the bill of exceptions and record on appeal and taking and
perfecting said appeal, the sum of $250.
57 Nev. 239, 241 (1936) Hannah v. Hannah
appeal, the sum of $250. It is further alleged in said affidavit that respondent has the means,
facilities, and abilities to pay these sums or any reasonable sums ordered to be paid by him by
this court; that he refuses to pay said sums and has departed from the jurisdiction, and resides
in Oakland, Calif. Affiant further avers that, unless the court shall make provision so that said
respondent shall be required to pay the costs of appeal as aforesaid, appellant will be unable
to prosecute her appeal.
1, 2. Where an appeal has been perfected, this court has jurisdiction to make an allowance
to an appellant wife for expenses of appeal in a divorce suit, though no transcript of the
record on appeal has been filed with the clerk of this court. Lamb v. Lamb, 55 Nev. 437, 38
P. (2d) 659. The propriety of making such an allowance in this case is apparent from the
situation presented by the affidavit. The only question is as to what is reasonable to be
allowed under the showing.
3, 4. We are of the opinion that the sums claimed should be allowed, except the sum of
$25 for filing fee and the sum of $250 on account of preparing bill of exceptions, etc. Only
one filing fee can be charged for an appeal. We must assume that appellant has already paid
this on the filing of her motion. It cannot therefore be exacted for filing the transcript of the
record on appeal. Consequently the payment of this sum by respondent now is not necessary
for that part of her expenses on appeal. The sum of $250 is not claimed as full payment of her
attorney for prosecuting her appeal, but only as compensation for getting the transcript of the
record on appeal and bill of exceptions properly before the court. If an allowance is made for
this purpose, she would not be precluded from a further motion for additional compensation
for her attorney in prosecuting her appeal, preparing briefs, and making oral arguments in this
court. If counsel for appellant selects the mode of filing a certified transcript of the
proceedings as the bill of exceptions, his labor in preparing the bill, to say the least, will not
be strenuous.
57 Nev. 239, 242 (1936) Hannah v. Hannah
bill, to say the least, will not be strenuous. We think, under the circumstances, the sum of
$100 should be allowed for this item.
It is therefore ordered that respondent pay to the clerk of this court for the benefit of
appellant as an attorney's fee the sum of $100, and a further sum of $125 for her other
expenses on appeal.
____________
57 Nev. 242, 242 (1936) Union Indemnity Co. v. Drumm
UNION INDEMNITY COMPANY, a Corporation, Plaintiff, v. A. D. DRUMM, JR., INC., a
Corporation; A. L. HAIGHT; STANDARD OIL COMPANY OF CALIFORNIA, a
Corporation; E. C. PETERSON; E. C. PETERSON, as Controller of the State of Nevada;
SHELL OIL COMPANY, a Corporation; SALT LAKE HARDWARE COMPANY, a
Corporation; SYMES UTAH GROCERY COMPANY, a Corporation; AMERICAN
FOUNDRY COMPANY, a Corporation; JOHN SCROWCROFT & SONS; JOHN M.
TEDFORD; LUND & COMPANY; MOHAWK PETROL COMPANY, a Corporation;
TEXACO OIL COMPANY, a Corporation; WESTERN PACIFIC RAILROAD
COMPANY, a Corporation; M. PANOS; GUS ZAHARIS; C. H. STELCK; CLOYD
BISHOFF and I. H. KENT COMPANY, a Corporation, Defendants and Respondents.
CHARLES L. HILL, Trustee of A. D. Drumm, Jr., Inc., a Bankrupt,
Intervenor and Appellant.
and
STATE OF NEVADA, on the Relation and to the Use of E. C. PETERSON,
as State Controller, Plaintiff, v. A. D. DRUMM, JR., INC., a Corporation; UNION
INDEMNITY COMPANY, a Corporation; STANDARD OIL COMPANY OF CALIFORNIA,
a Corporation; SHELL OIL COMPANY {NEVADA), a Corporation; THE WESTERN
PACIFIC RAILROAD COMPANY, a Corporation; I. H. KENT COMPANY, a Corporation;
THE TEXAS COMPANY, a Corporation; MOHAWK PETROL COMPANY, a Corporation;
PETROL CORPORATION, a Corporation; M. PANOS; CLOYD BISHOFF; MORSE BROS.; I.
E. ADAMS; J. N. TEDFORD; A. D. DRUMM, JR.;
57 Nev. 242, 243 (1936) Union Indemnity Co. v. Drumm
Corporation; STANDARD OIL COMPANY OF CALIFORNIA, a Corporation; SHELL
OIL COMPANY (NEVADA), a Corporation; THE WESTERN PACIFIC RAILROAD
COMPANY, a Corporation; I. H. KENT COMPANY, a Corporation; THE TEXAS
COMPANY, a Corporation; MOHAWK PETROL COMPANY, a Corporation;
PETROL CORPORATION, a Corporation; M. PANOS; CLOYD BISHOFF; MORSE
BROS.; I. E. ADAMS; J. N. TEDFORD; A. D. DRUMM, JR.; A. L. HAIGHT; SALT
LAKE HARDWARE COMPANY, a Corporation; SYMES UTAH GROCERY
COMPANY, a Corporation; JOHN SCROWCROFT & SONS, and LUND &
COMPANY, Defendants and Respondents.
CHARLES L. HILL, Trustee of A. D. Drumm, Jr., Inc., Bankrupt,
Intervenor and Appellant.
No. 3092
December 3, 1936. 62 P. (2d) 698.
1. Appeal and Error.
Point not made in trial court cannot be urged on appeal for first time.
2. Statutes.
Court must look to intent of legislature in amending a statute.
3. Highways.
Under statute providing that retained percentage held by highway department upon completion of
highway contract shall be payable to contractor without regard to creditors' claims filed with department,
where contract is completed, retained percentage must be paid to contractor, and no equitable lien exists in
favor of job creditors to exclusion of general creditors (Comp. Laws 1929, secs. 5337, 5338, as amended
by Stats. 1931, c. 210, secs. 1, 2).
4. Statutes.
Court must apply the law as it finds it.
5. Highways.
Under act providing that one-third of highway contractor's bond shall be conditioned as additional
protection for those furnishing labor and supplies, legislature did not contemplate that such persons were
protected by equitable lien, in view of amendment providing that retained percentage held
by highway department upon completion of a contract shall be payable to contractor
without regard to creditors' claims filed with department {Comp.
57 Nev. 242, 244 (1936) Union Indemnity Co. v. Drumm
amendment providing that retained percentage held by highway department upon completion of a contract
shall be payable to contractor without regard to creditors' claims filed with department (Comp. Laws 1929,
secs. 5337, 5338, as amended by Stats. 1931, c. 210, secs. 1, 2).
6. Bankruptcy.
Bankruptcy trustee for bankrupt highway contractor held not entitled to administer amounts which
contractor had assigned to certain creditors against amount owing to contractor from highway department,
where assignments passed title to funds more than four months before petition in bankruptcy was filed
(Comp. Laws 1929, secs. 5337, 5338, as amended by Stats. 1931, c. 210, secs. 1, 2).
7. Costs.
Successful appellant could not recover costs for pages of transcript of record which were carbon copies,
in view of court rule providing that when transcript is typewritten it shall be the first impression (Rules of
the Supreme Court, rule 4).
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Actions by the Union Indemnity Company against A. D. Drumm, Jr., Inc., and by the
State, on the relation and to the use of E. C. Peterson, as State Controller, against A. D.
Drumm, Jr., Inc., and others, wherein Charles L. Hill, trustee of A. D. Drumm, Jr., Inc.,
bankrupt, intervened. From a judgment, intervener appeals. Remanded, with instructions.
Walter Rowson, for Appellant:
The theory that an equitable lien exists in favor of job creditors finds no support either in
the law of this state or the contract itself. Section 5338 N. C. L. Job creditors, like any other
creditors, must look to the surety if the contractor defaults in his obligations. It is highly
significant that in the original public highway law of 1937 there was no proviso requiring
payment of retent to contractors without regard to job creditors. That proviso was added by
our 1925 legislature and reaffirmed in the 1931 amendment. The intent of the law is clear,
with no suggestion of ambiguity, that this proviso was added for the express purpose of
dispelling any last lingering doubt which might have existed, so as to effectively deny to
job creditors any interest in contract funds remaining unpaid in the hands of the state.
57 Nev. 242, 245 (1936) Union Indemnity Co. v. Drumm
any last lingering doubt which might have existed, so as to effectively deny to job creditors
any interest in contract funds remaining unpaid in the hands of the state.
Title to all of the bankrupt's assets, subject to lien or otherwise, vests in the trustee as of
the date of filing the petition in bankruptcy. Gross v. Irving Trust Co. (U. S.), 77 Law Ed.
798; Isaacs v. Hobbs (U. S.), 75 Law Ed. 671; Stratton v. New (U. S.), 75 Law Ed. 1085;
Petition of Shortridge, 20 Fed. (2d) 639; In re Service Appliance Co., 39 Fed. (2d) 632; In re
Bartlett Oil & Gas Corp., 44 Fed. (2d) 616; Lubell Bros. v. M. J. L. Shoe Shops, 56 Fed. (2d)
158; In re Cramond, 145 Fed. 966.
It is too late now for respondents to raise the objection that the trustee was not properly
before the trial court. The time to have done that was at or before the trial.
Platt & Sinai, for Respondents The Texas Company and Standard Oil Company of
California:
Respondents The Texas Company and Standard Oil Company of California respectfully
submit that the judgments which the trial court rendered in their favor should be sustained by
reason of the following summarized proposition of law relied upon by said respondents:
FirstThat A. D. Drumm, Jr., Inc., the bankrupt, had suffered a default to be taken against
it in the state court more than four months previous to the filing of the petition in bankruptcy,
said default being in favor of the job creditors.
SecondThat the laborers, materialmen and supplymen had no recourse to the sureties on
the contract bond, since the surety was bankrupt and the bond valueless.
ThirdThat by reason of the insolvency of the surety the job creditors had an equitable
lien upon moneys in the hands of the state controller more than four months prior to the
petition in bankruptcy.
FourthThat in any event, the job creditors were entitled to an equitable lien upon the
moneys in the hands of the state controller, under and by virtue of the phraseology of our
state statute and under general equitable principles.
57 Nev. 242, 246 (1936) Union Indemnity Co. v. Drumm
entitled to an equitable lien upon the moneys in the hands of the state controller, under and by
virtue of the phraseology of our state statute and under general equitable principles.
FifthThat the trustee has no greater right nor power than the bankrupt, and the bankrupt
had no claim whatsoever upon the funds in the hands of the state controller at the time of the
filing of the petition in bankruptcy.
SixthThat the trustee having intervened in the state court action was bound by state rule
and custom and is in no position to assume any rights superior to the bankrupt, nor take unto
himself any power to which the bankrupt was not entitled.
Thatcher & Woodburn, Forman & Forman and John Robb Clark, for Respondents Shell
Oil Company (Nevada) and The Western Pacific Railroad Company.
We respectfully submit the judgment of the lower court should be affirmed because:
FirstThe trustee in bankruptcy failed in his complaint in intervention to allege any facts
entitling him to the relief asked or any other relief.
SecondThe defendant A. D. Drumm, Jr., Inc., suffered default to be taken against it, and
that neither it nor the trustee in bankruptcy ever took any steps whatever to set such default
aside.
ThirdThe judgment of the trial court is right, equitable and just and confirms the
equitable duty the State of Nevada owes these respondents and other job creditors to see that
they are paid for their labor, material and supplies used in the construction of state highway
No. 240.
OPINION
Per Curiam:
On April 15, 1931, A. D. Drumm, Jr., Inc., hereinafter referred to as Drumm, was awarded
a highway contract by the department of highways of the State of Nevada, in the sum of
$15S,791.02.
57 Nev. 242, 247 (1936) Union Indemnity Co. v. Drumm
in the sum of $158,791.02. This contract was completed by Drumm and accepted July 15,
1932, at which time there was a balance due on the contract of $33,693.09. On the
last-mentioned date Drumm owed on account of the contract something over $50,000. On
July 20, 1932, Drumm assigned to the Standard Oil Company and to the Petrol Oil Company,
of said $33,693.09 due from the highway department, an amount to cover their respective
claims.
Before the job mentioned was begun, the Union Indemnity Company executed its bond
conditioned for the faithful performance of the contract by Drumm and to indemnify the State
of Nevada against damages and for the payment by Drumm of all claims which he incurred
on account of the performance of the contract.
On August 5, 1932, the indemnity company brought suit in the district court of Washoe
County, Nevada, to restrain the payment to Drumm of the balance due on the contract and to
compel its application to the payment of debts incurred by Drumm in performing the contract.
To the complaint in this action, Drumm filed a general demurrer. In due time the demurrer
was overruled, and thereafter default was entered for failure to answer. No motion to set the
default aside was ever made, either by Drumm or the trustee hereinafter mentioned.
On January 30, 1933, the state controller filed a separate action in the district court of
Ormsby County, Nevada, to compel all creditors of Drumm to interplead and set up their
claims to the balance of $33, 693.09 due Drumm. The actions were thereafter consolidated.
Before judgment in either of the suits mentioned, and on January 31, 1933, an involuntary
petition in bankruptcy was filed in the federal court, against Drumm, which was adjudicated a
bankrupt, and on July 15, 1933, Charles L. Hill was chosen trustee in bankruptcy and duly
qualified. On December 1, 1933, the trustee, without objection by any party, filed his
complaint in intervention in the above actions, denying the alleged equitable claim of liens,
and denying the validity of the said assignments.
57 Nev. 242, 248 (1936) Union Indemnity Co. v. Drumm
equitable claim of liens, and denying the validity of the said assignments.
Upon the trial, judgment was rendered sustaining the assignments and the claim of
equitable liens in favor of the job creditors.
The trustee has appealed from the judgment and the order denying a motion for a new trial.
On this appeal the trustee raises two questions: First, have the job creditors a lien on the
balance unpaid on the contract? and, second, has the trustee in bankruptcy, in any event, the
right to administer the unpaid balance?
1. Prior to disposing of the questions raised by appellant, we will consider the contention
made by respondents to the effect that the trustee represents Drummhaving, as they say,
stepped into his shoesand not having applied to the trial court to vacate the default
theretofore entered against Drumm, is in no position to resist the contentions made by
respondents, and, in fact, has no right to prosecute this appeal.
Without pretending to know what the courts have held, or what the law is, we have
assumed that the trustee in bankruptcy generally represents both the bankrupt and the
creditors. However, we need not decide this point, for the reason, as urged by appellant in his
reply brief, it was not made in the trial court. Paterson v. Condos, 55 Nev. 260, 30 P. (2d)
283.
We will now consider the contention that the lower court erred in adjudging that an
equitable lien exists in favor of the job creditors in question, to the exclusion of the general
creditors.
Our preconceived predilection on this point was in favor of the contention of respondents,
and it was not without considerable difficulty that we are led to abandon that view. In
presenting this question, both sides quote from the bond given by Drumm, as well as from
our statute pertaining to the letting of contracts by the department of highways, hereinafter
referred to as the department. Respondents rely chiefly upon cases in the federal courts to
sustain their position, and the trial court founded its opinion on this point upon the
following federal decisions: Henningsen v. United States F. & G. Co., 20S U. S. 404, 2S S.
Ct. 3S9, 52 L. Ed. 547; In re Schofield Co. {C. C. A.), 215 F.
57 Nev. 242, 249 (1936) Union Indemnity Co. v. Drumm
the federal courts to sustain their position, and the trial court founded its opinion on this point
upon the following federal decisions: Henningsen v. United States F. & G. Co., 208 U. S.
404, 28 S. Ct. 389, 52 L. Ed. 547; In re Schofield Co. (C. C. A.), 215 F. 46; Belknap
Hardware & Mfg. Co. v. Ohio River Contract Co. (C. C. A.), 271 F. 144.
Our highway act (Stats. 1917, chap. 169, p. 309, as amended by Stats. 1925, c. 132, pp.
216, 217, section 5337 N. C. L., as amended by Stats. 1931, c. 210, p. 359, sec. 1) provides
for the letting of contracts, and for the giving of a bond by the successful bidder, with
sureties, conditioned, among other things, that two-thirds of such bond to be conditioned
that such work under the contract shall be performed in accordance with the plans and
specifications and the terms of contract, and one-third of such bond to be conditioned as an
additional protection for labor, material and supplies furnished or used about the
performance of the work under the contract, and for the payment of any obligations incurred
by the contractor in fulfilling the terms of his contract. The act also provides that any creditor
of any such contractor, whose claim has not been paid, and who desires to be protected under
said bond, shall file a claim within thirty days from the completion of the contract with the
department, and that any person filing such claim may at any time within six months
thereafter commence an action against the surety on the bond. Section 15 of the said act as
originally enacted (Laws 1917, c. 169, p. 315) authorized the highway engineer to make
partial payments to any contractor, not to exceed 85 percent of the contract price, in advance
of full completion and acceptance of the work. Said section 15 (N. C. L. sec. 5338) was
amended by Stats. 1931, c. 210, p. 362, sec. 2, as above pointed out, so as to provide for the
completion of the work in case the contractor defaulted, and to further provide: That such
retained percentage as may be due any contractor shall be due and payable at the expiration of
the thirty-day period as hereinafter provided for filing of creditors' claims, and such retained
percentage shall be due and payable to the contractor without regard to creditors' claims
filed with the state highway department."
57 Nev. 242, 250 (1936) Union Indemnity Co. v. Drumm
provided for filing of creditors' claims, and such retained percentage shall be due and payable
to the contractor without regard to creditors' claims filed with the state highway department.
The federal cases relied upon are no doubt sound in principle, but they are not applicable
to the facts in the instant case, for the reason that the statute pursuant to which the contract
and bond in question were executed contain language not contained in the federal statute
considered in those cases. For instance, our statute provides, as above shown, that the
retained percentage held by the department upon the completion of a contract shall be due
and payable to the contractor without regard to creditors' claims filed with the state highway
department. There was no such provision in the federal act considered in the federal cases.
Counsel for appellant, in his opening brief, devoted several pages to the language of the
statute just quoted, insisting that the fact that it was not embodied in the act of 1917, and the
further fact that there was no similar provision in the federal act construed in the federal cases
relied upon, is enough to justify this court in rejecting respondents' theory. Notwithstanding
this fact, none of the briefs filed in behalf of the respondents comment on this contention of
appellant.
2-5. Why the very able counsel who filed briefs in behalf of the respective respondents
made no comment on the contention of appellant, just mentioned, is, to our mind, significant.
However, it seems to us that the contention of appellant is irresistible. The original highway
act did not contain this provision, and it was amended in 1925 so as to incorporate it in the
act. As has often been pointed out by this court (Escalle v. Marks, 43 Nev. 172, 183 P. 387, 5
A. L. R. 1512) we must look to the intent of the legislature in amending a statute. What could
have been the intent of the legislature in 1925 in amending the highway law as pointed out?
The language of this amendment seems so clear that there can be no room for construction.
57 Nev. 242, 251 (1936) Union Indemnity Co. v. Drumm
that there can be no room for construction. By providing that the retent shall be payable to the
contractor without regard to creditors' claims filed with the department, it must follow that,
where the contract is completed, the retent must be paid to the contractor. We see no escaping
this conclusion, for the language is not susceptible to any other construction. It is very evident
that the legislature concluded that the one-third of the bond given for the protection of those
furnishing labor and supplies was ample, and that, where claims were filed, the parties should
be left to their recourse in the courts. The bond provides that the department, with the written
consent of the contractor, may use any money in its hands belonging to the contractor to pay
claims against him. If this language means anything, it is that the contractor has exclusive
right to the fund. The legislature did not and could not anticipate that a widespread depression
would occur, carrying down to disaster and insolvency bonding companies, along with other
financial institutions. The amendment was an unfortunate one, but the court must apply the
law as it finds it. But counsel for respondents make the point that, since the highway act
provides that one-third of the bond shall be conditioned as additional protection for those
furnishing labor and supplies, the legislature contemplated that such persons were protected
by an equitable lien. However potent this contention might have been prior to the amendment
mentioned, such amendment, in our opinion, completely negatives this theory. Under the
highway law as it exists, we cannot escape the conclusion that no equitable lien exists in
favor of respondents, the job creditors.
6. Appellant concedes that the assignments given by Drumm are valid, but insists that the
amounts thus assigned should, along with the balance due Drumm, go into the hands of the
trustee, to be administered. We fail to see the force of this contention. Certainly the case of
Straton v. New, 283 U. S. 318, 51 S. Ct. 465, 75 L. Ed. 1060, does not sustain it.
57 Nev. 242, 252 (1936) Union Indemnity Co. v. Drumm
L. Ed. 1060, does not sustain it. That case holds, it is true, that the trustee is entitled to all
property owned by the bankrupt at the time of the adjudication, even though there be a lien
upon it. In the instant matter, the assignments passed title to the funds in question more than
four months before the petition in bankruptcy was filed. In the case of a mere lien, the trustee
has an equity to protect. Not so where absolute title has passed. In the situation in question,
the federal court never acquired jurisdiction over the amount assigned.
7. Many pages of the transcript of the record are carbon copies. Rule IV provides that
when the transcript is typewritten it shall be the first impression. Appellant cannot recover
costs for these copies. But for the circumstances of the case, we would penalize appellant for
using the carbon copies. Nellis v. Johnson, 57 Nev. 18, 57 P. (2d) 392, 393.
It is ordered that this case be remanded to the trial court with instructions to modify its
judgment to conform to the views herein expressed.
It is further ordered that the respondents Standard Oil Company of California and Petrol
Corporation recover their costs. Appellant to recover costs against other respondents except
as above indicated.
On Petition for Rehearing
March 18, 1937.
Per Curiam:
Good cause appearing therefor, it is hereby ordered that a rehearing is granted as to Shell
Oil Company and The Texas Company only, and that the same is hereby set down for oral
argument on the 22d day of April, A. D. 1937, at ten o'clock a.m.
On Rehearing
July 31, 1937. 70 P. (2d) 767.
1. Liens.
An equitable lien may arise out of either express or implied contract.
57 Nev. 242, 253 (1936) Union Indemnity Co. v. Drumm
2. Liens.
Where equitable lien arises out of express contract, intention to create lien must clearly
appear.
3. Liens.
Where equitable lien arises out of implied contract; attendant circumstances must
clearly indicate intention of parties to create lien on specific property.
4. Liens.
A mere moral obligation alone is not sufficient to support an equitable lien.
5. Liens.
No act of highway contractor, job creditors, or contractor's surety, done subsequent to
furnishing of labor or material, could create an equitable lien in favor of job creditors on
money owed to contractor by highway department.
6. Liens.
Court proceedings, instituted by highway contractor's surety to restrain payment to
contractor of balance due to contractor from the state and to compel its application to
payment of debts incurred by contractor in performing contract, did not create an
equitable lien.
7. Liens.
In order for equitable lien to attach, there must be specific fund against which lien can
vest.
8. Liens.
Where there was an express contract between highway department and highway
contractor, equitable lien would arise in favor of materialmen and laborers only if it
clearly appeared that there was an intention to create such a lien.
9. Liens.
No lien can attach to a highway or other property of the state or a subdivision thereof.
10. Liens.
As respects claimed equitable lien, neither state nor highway department was under
legal or moral obligation to pay materialmen and laborers for materials and services
furnished to highway contractor.
11. Liens.
To entitle one to a lien, it is not sufficient that it may have been legislative intent to
create an equitable lien, but such intent must clearly appear.
12. Liens.
The doctrine of equitable lien is not a limitless remedy to be applied according to
measure of conscience of particular chancellor.
13. Liens.
For lien to arise in pursuance of doctrine of equitable lien, agreement must deal with
some particular property, either by identifying it, or by so describing it that it can be
identified, and must indicate with sufficient clearness an intent that property so
described, or rendered capable of identification, is to be held, given, or transferred as
security for the obligation.
57 Nev. 242, 254 (1936) Union Indemnity Co. v. Drumm
and must indicate with sufficient clearness an intent that property so described, or
rendered capable of identification, is to be held, given, or transferred as security for the
obligation.
14. Liens.
Where express contract between highway department and highway contractor contained
no expression of intention that an equitable lien should exist in favor of materialmen and
laborers, no equitable lien on money retained by highway department and owed to
contractor arose in favor of materialmen and laborers.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
On rehearing. Judgment reversed.
For former opinion, see 57 Nev. 243, 62 P. (2d) 698.
Platt & Sinai, for Respondent The Texas Company:
Even though this court has held respondent to have no equitable lien upon the retained
percentage, arising from the fact that it was a job creditor, it does not necessarily follow that
respondent has no equitable lien upon said fund by reason of the fact that the restraining order
issued by the trial court caused said fund to be sequestered and placed in custodia legis for the
protection of all job creditors. Smith v. Halton, 8 S. W. (2d) 439; Pennington v. Fourth
National Bank of Cincinnati, 243 U. S. 269, 61 L. Ed. 713; Kelly v. Bausman (Wash.), 168 P.
181; Bragg v. Gaynor, 85 Wis. 468, 21 L. R. A. 161; Murray v. Murray, 115 Cal. 266, 37 L.
R. A. 626.
From the foregoing authorities it will be seen that the restraining order caused the retained
percentage in the hands of the state controller to be as definitely earmarked and impressed
with a lien of equitable garnishment as if the same had been attached in an action at law. We
respectfully suggest, therefore, that the effect of the restraining order issued by the trial court
should be determined upon this appeal, in view of sec. 107 U. S. C. A., title 11.
57 Nev. 242, 255 (1936) Union Indemnity Co. v. Drumm
Thatcher & Woodburn and Forman and Forman, for Respondent Shell Oil Company
(Nevada):
When the injunction was issued, its effect was to create a lien in favor of the job creditors
on the balance of the fund in the hands of the state, just as effective and binding as an
attachment or garnishment between individuals concerning a debt due, and this lien attached
to the fund on the date of the injunction. The bankruptcy of the contractor, which occurred
nearly six months after the lien was acquired, did not affect the validity of the lien.
We respectfully submit that the provisions of the highway act should be construed
together, and when so construed, the provision where the act requires as additional
protection, a bond should be given for labor, material, and supplies used in the construction
of a highway, it should be so construed so that a job creditor, as to the balance of the fund,
has and can resort to any remedy, either legal or equitable, which he may have against the
fund. The statutory requirement of a bond to protect them is not inconsistent with such
equitable rights. United States Fidelity and Guaranty Co. v. Sweeney, 80 Fed. (2d) 235.
In the case at bar, Drumm, not only in his bond but in his contract with the State of
Nevada, agreed to pay the job creditors. Hence, the State of Nevada owed an equitable duty to
see that this respondent and the other job creditors were paid. Jones v. Carpenter (Fla.), 106
So. 127, 43 A. L. R. 1409.
In this state we have no precedent either for or against such equitable lien, and we
respectfully urge that the decision of the supreme court of the United States in Martin v.
National Surety Co. et al., Law Ed. Advance Opinions, vol. 81, No. 11, p. 521, should control
in this case.
OPINION
Per Curiam:
We granted a rehearing in the above-entitled case as to all of the respondents except the
Standard Oil Company and the Petrol Corporation.
57 Nev. 242, 256 (1936) Union Indemnity Co. v. Drumm
to all of the respondents except the Standard Oil Company and the Petrol Corporation. 62 P.
(2d) 698.
There is no complaint of the facts as stated in our former opinion, which was based upon
the theory that the intention of the parties should control and that they were bound by the
intention and spirit of the legislative enactments pursuant to which the contract between the
highway department and Drumm, as well as the undertaking, were executed. Believing then
that such was a sound basis on which to work out the matter, we did not deem it necessary to
state or consider the general rules usually invoked to determine whether or not an equitable
lien exists. In fact, neither counsel invoked fundamentals, but relied upon decisions.
At this time we feel that it would be wise to state the general principles which a court must
apply to determine if an equitable lien accrues, though there is no controversy as to them.
These rules are clearly and concisely stated in 3 Pom. Eq. Jur. (4th ed.) at sections 1234 to
1238, inclusive.
1-4. As is made clear by the author named, an equitable lien may arise out of either an
express or an implied contract. If it arises out of an express contract, the intention to create a
lien must clearly appear. See, also, 37 C. J. 315-320. Lord Hardwicke, in Deacon v. Smith, 3
Atk, 323, reviewed the previous English authorities, and said: In all these cases the courts
have gone upon the intention of the parties. If it arises out of an implied contract, the
attendant circumstances must clearly indicate an intention of the parties to create a lien on
specific property. A mere moral obligation alone is not sufficient to support an equitable lien.
Professor Pomeroy said: When equity has jurisdiction to enforce rights and obligations
growing out of an executory contract, this equitable theory of remedies cannot be carried out,
unless the notion is admitted that the contract creates some right or interest in or over specific
property, which the decree if the court can lay hold of, and by means of which the equitable
relief can be made efficient.
57 Nev. 242, 257 (1936) Union Indemnity Co. v. Drumm
efficient. The doctrine of equitable liens' supplies this necessary element; and it was
introduced for the sole purpose of furnishing a ground for the specific remedies which equity
confers, operating upon particular identified property, instead of the general pecuniary
recoveries granted by courts of law. It follows, therefore, that in a large class of executory
contracts, express and implied, which the law regards as creating no property right, nor
interest analogous to property, but only a mere personal right and obligation, equity
recognizes, in addition to the personal obligation, a peculiar right over the thing concerning
which the contract deals, which it calls a lien,' and which, though not property, is analogous
to property, and by means of which the plaintiff is enabled to follow the identical thing, and
to enforce the defendant's obligation by a remedy which operates directly upon that thing. The
theory of equitable liens has its ultimate foundation, therefore, in contracts, express or
implied, which either deal with or in some manner relate to specific property, such as a tract
of land, particular chattels or securities, a certain fund, and the like. It is necessary to divest
one's self of the purely legal notion concerning the effect of such contracts, and to recognize
the fact that equity regards them as creating a charge upon or hypothecation of the specific
thing, by means of which the personal obligation arising from the agreement may be more
effectively enforced than by a mere pecuniary recovery at law. 3 Pom. Eq. Jur. (4th ed.), sec.
1234.
Whatever else may be said in this case the very basis of any right to a lienif any
existsis the contract between the highway department, Drumm, and respective claimants,
and the undertaking, subject, of course, to the statutory provisions pertaining to the letting of
such contracts, to which we called attention in our former opinion.
Many authorities are cited in support of the contention that an equitable lien exists in favor
of the respondents, some involving questions of the federal bankruptcy law {11 U. S. C. A.
sec.
57 Nev. 242, 258 (1936) Union Indemnity Co. v. Drumm
law (11 U. S. C. A. sec. 1 et seq.). As we view this case, there is just one question involved,
namely: Did respondents acquire an equitable lien pursuant to the general principles of
equity?
5, 6. To our mind there is absolutely no circumstance in this case warranting the holding
that an equitable lien accrued in favor of respondents. In fact, if the well-known general rules
of equity pertaining to equitable liensthe very ones invoked by respondents and conceded
to be correct by appellantshould control, no act that the parties did or could do subsequent
to the furnishing of the labor or material, as the case may be, could create an equitable lien. In
this connection it may be said that no circumstance, fact, or act is relied upon by any of the
creditors who applied for a rehearing that is peculiar to himself. Nor are the court proceedings
instituted by the bonding company, referred to in the former opinion, of consequence, for they
could not create a lien, where equity gave none. All that a court can do in any situation is to
adjudge that the contract, express or implied, proprio vigore, creates a lien.
In Pennsylvania Oil P. R. Co. v. Willrock P. Co., 267 N. Y. 427, 196 N. E. 385, it is said
that to find (note the word find) an equitable lien it is necessary that an intention to create
such a charge clearly appear from the language and the attendant circumstances.
In James v. Alderton Dock Yards, 256 N. Y. 298, 176 N. E. 401, 403, which was an action
to recover a commission for selling certain property pursuant to contract, and to have an
equitable lien established, the court said: Nothing in his contract for services gives him such
a lien. Viewing the testimony in the most favorable light, all the plaintiff had from the
corporation was a promise to pay him well for his services in negotiating a sale of the
defendant's property to the dock company. There is no suggestion that he was to be paid out
of any specific property or that the mortgage or any other funds were to be assigned to him or
subjected to a lien for his commissions.
57 Nev. 242, 259 (1936) Union Indemnity Co. v. Drumm
a lien for his commissions. His agreement is no different than that of any other broker or
agent for commissions. His work and labor created a debt due him from the defendant, and to
collect this debt his action at law was adequate. No elements in his arrangements with the
defendant bring his claim within the rule which permits the courts to enforce payment by
fixing a lien upon specific property.
In Carmichael v. Arms, 51 Ind. App. 689, 100 N. E. 302, 304, the court said: In order that
a lien may be created by contract, express or implied, it is generally necessary that the
language of the contract or the attendant circumstances should clearly indicate an intention of
the parties to create a lien upon the specific property.
In the same case the court quotes approvingly from Lyster's Appeal, 54 Mich. 325, 20 N.
W. 83, as follows: Courts cannot create liens. They can only declare and enforce them when
they exist, either in law or equity.
The supreme court of Tennessee is in accord with this quotation, as appears from Stansell
v. Roach, 147 Tenn. 183, 246 S. W. 520, 526, 29 A. L. R.143, which was a case in which
Stansell sought to have an equitable lien declared in preference to other creditors. The suit
grew out of a contract to perform certain services. The value of the services was fixed and the
services were performed as agreed. We quote at length from the opinion:
We do not understand that an equitable lien can be based alone upon moral obligations,
but it must find a basis in established equitable principles. While it is quite true, as stated by
Chancellor Cooper in Brown v. Bigley, 3 Tenn. Ch. 618, the inclination of the courts of this
country, and of none more so than those of this state, has been to enlarge the doctrine of
equitable liens and charges, with a view to the attainment of the ends of justice, without much
respect for the technical restrictions of the common law. Nevertheless, we must find as a
basis therefor some recognized principle.
57 Nev. 242, 260 (1936) Union Indemnity Co. v. Drumm
we must find as a basis therefor some recognized principle. The only theory of equity
advanced is that the services of Stansell produced the fund, and that under his contract he
looked to the fund alone for compensation, and not to any obligation of his principal in
person. We think neither of these propositions is maintainable. In the first place, Stansell did
not produce the fund. It came by virtue of an appropriation by Congress. It may be quite
trueand we think it isthat Stansell rendered valuable services but for which Congress
would not have been moved to act. Still it cannot be said that the fund was procured by an
individual in such a sense as to give him any equitable right to any portion thereof. In the next
place, the evidence does not show that Stansell looked to the fund alone for his
compensation, nor, indeed, that he was to have any part of the fund. His contract was, in the
event Congress made the appropriation, he was to be paid, for his services in connection with
bringing it to the attention of Congress, his expenses and 10 per cent, of the amount of the
appropriation. He was not to receive a part of the appropriation itself. It is true whether he
received anything depended upon the appropriation being made, but this is only a means for
arriving at the amount which he was to be paid. The witnesses who testify with respect to the
contract use this language: We all agreed we would pay Mr. Stansell 10 per cent. of the
amount which he succeeded in getting the government to pay, and in addition each pay his
proportionate part of the expenses incurred by him.'
If the contract be construed so as to mean that the appropriation itself should be set apart
for Stansell's services, it would come dangerously near violating the statute prohibiting the
transfer of claims against the United States. The lien cannot be based upon an express
executory agreement whereby an intention is indicated to make some particular property or
fund security for a debt, for the reason there was no such express contract.
57 Nev. 242, 261 (1936) Union Indemnity Co. v. Drumm
express contract. Neither is it necessarily implied from the terms of the agreement. The rule
of law seems to be that an agreement of that sort must be either expressed or necessarily
implied without any reliance upon the person responsible or the owner of the claim of which
the fund was the result. Walker v. Brown, 165 U. S. 654, 17 S. Ct. 453, 41 L. Ed. 865. An
equitable lien does not necessarily involve a right which is the basis of a possessory action in
the thing itself, but it must be a right over the thing itself. Pom. (4th ed.) 165. It does not
follow simply because the agent renders a valuable service enabling his principal to obtain his
own.
It is contended by Stansell's counsel that he stands in the same situation as an attorney at
law. Conceding this to be true, his right to the lien does not follow. An attorney may be
entitled to assert a lien upon a judgment which he has represented his client in obtaining, but
a principal basis for allowing a lien to an attorney at law is that it is deemed both natural and
wise that the lawyer be secured in the fruits of his professional labor, since the proper
administration of justice is essential to the well-being of the public, which cannot be secured
without an intelligent and prosperous bar. Brown v. Bigley, supra. Usually where the services
of an attorney have been recognized as an equitable lien, the services have been performed in
connection with court proceedings, and judgment has been obtained in favor of his client. An
attorney for a defendant, however great the value of his services, and however much property
he may have enabled his client to save, has no lien on his client's property by virtue of
equitable principles.
In Connecticut Co. v. New York, etc., R. Co., 94 Conn. 13, 107 A. 646, 653, the court
quotes approvingly from 1 Jones on Liens (3d ed.), sec. 28, as follows: In courts of equity
the term lien' is used as synonymous with a charge or incumbrance upon a thing where there
is neither jus in re nor ad rem nor possession of the thing.
57 Nev. 242, 262 (1936) Union Indemnity Co. v. Drumm
neither jus in re nor ad rem nor possession of the thing. The term is applied as well to charges
arising by express engagement of the owner of the property and to a duty or intention implied
on his part to make the property answerable for a specific debt or engagement.
In the same case the court quotes approvingly from Westall v. Wood, 212 Mass. 540, 544,
99 N. E. 325, as follows: If the arrangement between the parties, interpreted in the light of
the conditions in which they were placed, indicates a contemporaneous intention to adjust
their rights upon a basis which can be established only by resort to the equitable principle of
lien or pledge, then, in the absence of an intervening adversary interest, such an intent will be
executed in chancery.
Mr. Justice White, in Fourth Street National Bank v. Yardley, 165 U. S. 634, 17 S. Ct.
439, 442, 41 L. Ed. 855, dwelt at length on the necessity of the existence of an intent to create
an equitable lien. He quoted from an opinion by Lord Hatherly in Thomson v. Simpson, L.
R., 5 Ch. 659, as follows: It is extravagant to say that a man who has an agent employed to
pay bills creates a charge on the funds in the agent's hands by the mere drawing of a bill. It is
necessary to make out a contract to charge specific funds which were with the agent, or which
were on their road thither; for, if there was only a personal contract, that would give nothing
but a right of action.' In the same case, Lord Justice James observed (page 662) that when it
is attempted to make out, in addition to the written contract contained in a bill of exchange, a
collateral parol agreement, it is most important to have clear and satisfactory evidence as to
the exact words used.'
These cases lay down what seems to be the safe and sound rule which should guide us in
determining whether or not an equitable lien attached upon the furnishing of supplies and
labor to Drumm in the performing of the work on the contract in question.
7. In the first place, there must be a specific fund against which a lien can vest.
57 Nev. 242, 263 (1936) Union Indemnity Co. v. Drumm
against which a lien can vest. This question is not discussed and we do not decide if there is a
specific fund, but simply observe that so far as the facts show the balance due Drumm was to
be paid out of the general funds from which such claims are paid, and it is questionable if a
balance due and payable to Drumm from such a fund is a specific fund. This point has
never been discussed, so far as we know, and we merely mention it in passing.
We come now to the question of whether or not there is anything in the statute, contract,
and undertaking clearly indicating an intention to create an equitable lien. In our former
opinion, 57 Nev. 242, 62 P. (2d) 698, we reached the conclusion that there was not. That we
might feel kindly disposed in favor of respondents is not enough. We must lay down a rule
for future guidance of the courts, as well as litigants, and we must, so far as possible, adhere
to well-established principles.
8. The contract between the department and Drumm, which includes the statute and the
undertaking, is an express contract; hence, according to all authorities, it must clearly appear
that there was an intention to create a lien in favor of the materialmen and laborers. What is
there clearly indicating such an intention? We strove eagerly to find such intention when our
former opinion was written. We have laboriously sought to find something upon which we
could base such a conclusion now, but without avail.
Nowhere do counsel for respondents direct our attention to any language in the statute,
contract, or undertaking which in our minds indicates clearly, dimly, or at all, that it was the
intention of any of the parties that an equitable lien should attach to any money which might
become due Drumm pursuant to his contract.
Paraphrasing the language used in James v. Alderton Dock yards, supra, which expresses
the idea in all of the cases: Viewing the testimony in the most favorable light, all that
respondents had from Drumm was an implied promise to pay them for their services and
supplies.
57 Nev. 242, 264 (1936) Union Indemnity Co. v. Drumm
implied promise to pay them for their services and supplies. There is no suggestion that they
were to be paid out of any specific fund. Their agreement is no different than that of any other
laborer or merchant who provides labor or supplies on an implied contract.
In the instant case there is not even a contention that it was the intention of Drumm and
claimants that claimants were to be paid by Drumm out of the money received pursuant to his
highway contract. No circumstance in the dealings between Drumm and claimants is pointed
to as indicating the slightest intention to create a lien in favor of any of them.
Respondents contend, of course, that the provision in the statute supplies the intention
necessary. What is there that clearly indicates such intention? And it must clearly appear
before we can so hold. Our attention is directed to the provisions relative to the retention by
the department and the provision of the bond to the effect that one-third of such bond be
conditioned as an additional protection for labor, etc.
As to the retained percentage, the statute expressly points out the course to be pursued by
claimants; that is, that they file their claim within a given time, and after that period expires
that the retent shall be paid to the contractor. Can we override the express provision of the
statute particularly in view of the amendment of 1925 (Stats. 1925, c. 132), and Stats. 1931, c.
210, alluded to in our former opinion? If we can, we are not only a judicial but also a
legislative body.
9, 10. Coming to the provision as to the bond, its sole purpose must have been to provide
security to Drumm's creditors, in addition to its financial and moral worth. This must be true,
because no lien can attach to a highway or other property of the state or a subdivision thereof.
Neither the state nor the department is under legal or moral obligation to pay claimants, nor is
it so contended or intimated; hence it must be clear that our conclusion is the only
interpretation to be placed upon those words.
57 Nev. 242, 265 (1936) Union Indemnity Co. v. Drumm
In response to an inquiry by the court during the oral argument, counsel stated that the case
of Philadelphia Nat. Bank v. McKinlay, 63 App. D. C. 296, 72 F. (2d) 89, holds to the
contrary, but we fail to find anything in that decision to sustain the contention. We will advert
to that case later on.
Counsel for respondents rely chiefly upon federal decisions to sustain their contention, and
all of those cases hark back to the case of Henningsen v. United States F. & G. Co., 208 U. S.
404, 28 S. Ct. 389, 52 L. Ed. 547; and, as strange as it may seem, that was not a case in which
the question of the right to an equitable lien was involved, but whether a surety which was
compelled to and did make payments due from a defaulting contractor could be subrogated to
the rights of the contractor in preference to a bank which loaned money to the contractor to
use as he saw fit, either in the performance of his building contract or in any other way, as
the court points out.
The next case strongly relied upon is that of Belknap Hardware & Mfg. Co. v. Ohio River
C. Co. (C. C. A.), 271 F. 144, 147. The court deals with the question of subrogation, and the
right of laborers and materialmen, analogous, as it says, to a lien. It then observes:
Mechanic's lien statutes evidence a general recognition of the thought that those who
contribute the labor and material going into a structure should have a claim against it for what
they have furnished in preference to other creditors of the builder, though the equitable
distinction, between those materialmen who are unpaid today and the banker who furnished
the money which was used to pay those who furnished material yesterday, seems rather
arbitrary. It is commonly held that this lien or priority is wholly statutory, and we are not
aware of any case (unless those hereafter discussed) where, without the aid of any contract or
statute, this vague equity of materialmen and laborers has been thought sufficient to put the
owner of the property under obligation to see that they were paid before he settled with
the contractor."
57 Nev. 242, 266 (1936) Union Indemnity Co. v. Drumm
obligation to see that they were paid before he settled with the contractor.
Does the acknowledgment of a vague equity of materialmen and laborers measure up to
the well-recognized rule that it must clearly appear that it was the intention of the parties and
the legislature to create an equitable lien? We think not. The word vague indicates great
doubt of an equitable claim. Furthermore, in that very case the court said: Obviously, the
retained fund is devoted to the payment for such labor and material as may be necessary to
finish the work after the contractor defaults. Such a view could not influence us in the case
in hand, for the reason that the contractor did finish the contract.
11. It then dwells upon what may have been the congressional intent in requiring a bond,
and holds that the laborers and materialmen were subrogated. To entitle one to a lien, it is not
sufficient that it may have been the legislative intent to create an equitable lien. Such intent
must clearly appear.
The case of United States Fidelity & Guaranty Co. (the Surety) v. Sweeney (C. C. A.), 80
F. (2d) 235, is one in which the surety took from the contractor subrogation agreements and
indemnity contracts, by which the contractor agreed to assign to the surety all the deferred
payments and percentages and any and all moneys and properties that may be due and payable
to the contractor at the time of the default or thereafter, for the construction of highways.
When it became evident that the contractor was in default for some of the labor and materials
used under the contracts, it was agreed that all retained percentage and deferred payments on
the contract should be deposited to the joint account of the construction company and the
surety. It was further agreed that as a check upon payments all accrued bills on the contractor
should be paid by check of the contractor drawn against this deposit and countersigned by the
surety, which was done until December 10, 1932, on which date an involuntary petition in
bankruptcy was filed against the contractor and it was adjudged a bankrupt.
57 Nev. 242, 267 (1936) Union Indemnity Co. v. Drumm
done until December 10, 1932, on which date an involuntary petition in bankruptcy was filed
against the contractor and it was adjudged a bankrupt.
Prior to the bankruptcy the contractor completed its contract. The money involved in that
case is the balance on deposit at the time of the filing of the petition in bankruptcy. This is a
controversy between the surety and the trustee in bankruptcy. The court held that the surety
was bound by contract to pay the claims for labor and material, and upon paying these claims
was entitled to be subrogated. Such is not the situation here.
12. It is true that the court in that case made a broad statement to the effect that the
laborers and materialmen were entitled to an equitable lien, as did the court in the Belknap
Case, basing their conclusion, apparently, upon the decision in the Henningsen Case, supra,
where the facts and the opinion showed that the court was simply dealing with the question of
subrogation, which involves different principles of law from what are involved in
determining if an equitable lien exists. Why the federal courts should have seized upon the
Henningsen Case to justify the sustaining of a claim of an equitable lien, when the question
was not involved and none of the principles of an equitable lien were discussed, is beyond our
understanding, for, as said in Falconer v. Stevenson, 184 Wash. 438, 51 P. (2d) 618, 619:
The doctrine of equitable lien has its prescribed boundaries as well as that of subrogation; it
is not a limitless remedy to be applied according to the measure of the conscience of the
particular chancellor any more than, as an illustrious law writer said, to the measure of his
foot.
The case of Philadelphia Nat. Bank v. McKinlay, 63 App. D. C. 296, 72 F. (2d) 89, 91,
above referred to, seems to accept the general contention of respondents, but it is evident that
the court gave the question scant consideration, for it says that we do not need to invoke that
doctrine here, for reasons given.
57 Nev. 242, 268 (1936) Union Indemnity Co. v. Drumm
As to the federal decisions, it is admitted that there is considerable confusion. Judge
Sanborn, in Martin v. National Surety Co. (C. C. A.), 85 F. (2d) 135, 140, observed: There is
unquestionably authority for the proposition that laborers and materialmen have no rights
superior to those of general creditors of a contractor in anything due the contractor except
perhaps retained percentages. * * * Much of the confusion comes from the fact that, in
deciding the case of Henningsen v. United States Fidelity & Guaranty Co., 208 U. S. 404, 28
S. Ct. 389, 52 L. Ed. 547, the supreme court did not make it clear whether the surety, who had
paid labor and material claims and whose rights were held to be superior to those of a general
creditor holding an assignment from the contractor, was subrogated to the rights of laborers
and materialmen or subrogated to the rights of the contractor as of the time the bond was
written, and whether, if the surety was subrogated to the rights of laborers and materialmen,
such rights extended beyond retained percentages and included all deferred payments due
upon the completion of the contract. It is to be hoped that in a proper case the supreme court
will take occasion to clarify the situation, so that it may be definitely known what equitable
rights laborers and materialmen have in addition to their rights under a public contractor's
bond, and whether such rights, if any, are limited to retained percentages or apply to progress
payments as well.
13. Counsel contend that an equitable lien may be declared under the broad principles of
equity; that is, that equity regards as done that which ought to be done. The rule applicable to
this theory is qualified by Professor Pomeroy in the following language: In order, however,
that a lien may arise in pursuance of this doctrine, the agreement must deal with some
particular property, either by identifying it, or by so describing it that it can be identified, and
must indicate with sufficient clearness an intent that the property so described, or
rendered capable of identification, is to be held, given or transferred as security for the
obligation."
57 Nev. 242, 269 (1936) Union Indemnity Co. v. Drumm
with sufficient clearness an intent that the property so described, or rendered capable of
identification, is to be held, given or transferred as security for the obligation. Pomeroy's Eq.
Jur. (4th ed.), sec. 1235.
As we have pointed out, there is no clear intention manifested that a lien should exist.
14. After a careful consideration of the principles which control in determining whether or
not an equitable lien exists, and applying them to the facts of this case, we are of the opinion
that it does not appear that there was any intention to create an equitable lien as contended.
Had there been such an intention, it could have been expressed in the statute or contract in a
few words.
It is ordered that the judgment appealed from be reversed.
____________
57 Nev. 269, 269 (1936) Aseltine v. District Court
ALVERTON H. ASELTINE, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE,
DEPARTMENT NUMBER ONE, THOMAS F. MORAN, JUDGE, Respondent.
No. 3168
December 3, 1936. 62 P. (2d) 701.
1. Judgment.
Effect of a judgment must be ascertained by a construction of it, which presents a question of law for the
court, and, where judgment is susceptible of two interpretations, that one will be adopted which renders it
the more reasonable and harmonizes it with facts and law of the case.
2. Divorce.
Court held authorized to modify decree of divorce as to payments required of husband notwithstanding
decree had not expressly reserved power to modify, where decree incorporated property settlement between
parties by which parties had agreed that wife's allowance would be reduced in same ratio as husband's
salary.
3. Divorce.
Decree of divorce insofar as it relates to alimony may be modified notwithstanding more than six months
has elapsed since entry of decree and prior to the application for its modification when
right to modify decree as to alimony is reserved, since by express terms of decree
reserving such right is not final as to alimony {Rules of the District Court, rule XLV).
57 Nev. 269, 270 (1936) Aseltine v. District Court
since entry of decree and prior to the application for its modification when right to modify decree as to
alimony is reserved, since by express terms of decree reserving such right is not final as to alimony (Rules
of the District Court, rule XLV).
Original proceeding by Alverton H. Aseltine for a writ of mandamus directed to the
Second Judicial District Court, in and for Washoe County, Department No. 1, the Honorable
Thomas F. Moran, Judge. Peremptory writ issued.
C. R. Pugh, for Petitioner:
We contend that the judgment in question reserved jurisdiction for its modification, for the
reason that the separation agreement settling the property rights of the parties was pleaded,
adopted and made a part of the judgment. Dickey v. Dickey (Md.), 141 Atl. 387; Hogue v.
Fanning (Cal.), 14 P.560; Four Mile Land and Coal Co. v. Slusser (Ky.), 55 S. W. 555; Julier
v. Julier (Ohio), 56 N. E. 661; Warren v. Warren (Minn.), 133 N. W. 1009; Van Horn v. Van
Horn, 188 N. Y. S. 98.
Consequently, district court rule XLV does not apply. Sweeney v. Sweeney, 42 Nev. 431,
179 P. 638; Lewis v. Lewis, 53 Nev. 398, 2 P. (2d) 131; Dechert v. Dechert, 46 Nev. 140, 205
P. 593.
Ayres, Gardiner & Pike, Amicus Curiae, for Respondent:
Mandamus must be denied because petitioner did not give notice of motion to modify
within the time allowed by law. District Court Rule XLV; Crowell v. District Court, 54 Nev.
400, 19 P. (2d) 635; Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95.
The amendment sought by petitioner's motion to modify is beyond the power of the court
because it seeks to amend the judgment so as to vary the rights of the parties as fixed by the
original decision. 34 C. J. 240, sec. 464, n. 34; Lindsay v. Lindsay, supra.
57 Nev. 269, 271 (1936) Aseltine v. District Court
The decree merely ratifies the agreement and orders that its terms be carried out. To
modify the decree as requested would mean to modify the agreement or to hold that because
of the facts stated in the motion the agreement was void.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in mandamus growing out of the following situation:
In September 1930, Anna Mae Aseltine hereinafter referred to as the plaintiff brought a
suit for a divorce against Alverton H. Aseltine, the petitioner herein, in the above-named
respondent court, the complaint alleging as a ground for divorce extreme cruelty. An answer
was filed to the complaint, denying these allegations. Upon the conclusion of the taking of
evidence in said suit, the court entered a decree in favor of the plaintiff, dissolving the bonds
of matrimony. Prior to the entry of the said decree, the parties to said suit had entered into an
agreement as to the disposition of certain life insurance policies and other property. In said
agreement it was stipulated that petitioner should deposit in a bank to the credit of the
plaintiff, on the first of each month, the sum of $225, so long as his salary should remain at
the then existing figure. It was further agreed that the agreement mentioned should be
embodied in and be made a part of any judgment or decree of divorce that might thereafter be
entered. Said agreement further provides: In the event the salary of the husband is reduced
the allowance of the wife will then be reduced in the same ratio as the salary has been
reduced below the present salary.
Thereafter the respondent court entered its decree, which reads in part as follows: It is
further ordered, adjudged and decreed that the property settlement agreement heretofore
entered into between the parties hereto, a copy of which agreement is hereto attached, is
hereby approved and made a part of this Judgment and Decree and the Court does hereby
order that said Defendant pay to Plaintiff the sum of Two Hundred Twenty-five {$225.00)
Dollars per month pursuant to the terms of said agreement and as therein provided."
57 Nev. 269, 272 (1936) Aseltine v. District Court
agreement heretofore entered into between the parties hereto, a copy of which agreement is
hereto attached, is hereby approved and made a part of this Judgment and Decree and the
Court does hereby order that said Defendant pay to Plaintiff the sum of Two Hundred
Twenty-five ($225.00) Dollars per month pursuant to the terms of said agreement and as
therein provided.
The petition herein, in addition to alleging the foregoing facts, further shows that, upon
notice duly given, the petitioner moved the respondent court to modify the judgment and
decree, hereinabove mentioned, upon the ground, among others, that he had sustained severe
financial losses, and has sustained a reduction of over 20 percent in his salary since the
rendition of the judgment and decree herein.
The plaintiff objected to the granting of the motion, upon the ground, among others, that
the court was without jurisdiction to modify the judgment and decree in question. The court
sustained this contention upon two theories: First, because the decree sought to be modified
does not reserve to the court any power to modify, and, second, because more than six months
had elapsed between the entry of the decree and the date of the application to modify.
We are of the opinion that the respondent court was in error as to both views.
It is seen from the quotation from the decree, above set forth, that the agreement entered
into by the plaintiff and the petitioner was, by reference, expressly made a part of the
judgment and decree. This being clear, the next question is, what interpretation should be
placed upon the provision in the decree providing that, in the event the salary of the petitioner
is reduced, the allowance to the plaintiff will be reduced in the same ratio? In other words,
was it the intention that the judgment and decree might be modified in accordance with the
provision relative to a reduction of the allowance to the plaintiff? 1, 2.
57 Nev. 269, 273 (1936) Aseltine v. District Court
1, 2. The correct rule is stated in 34 C. J. 501, 502, as follows: The legal operation and
effect of a judgment must be ascertained by a construction and interpretation of it. This
presents a question of law for the court. Judgments must be construed as a whole, and so as to
give effect to every word and part. The entire judgment roll may be looked to for the purpose
of interpretation. Necessary legal implications are included although not expressed in terms,
but the adjudication does not extend beyond what the language used fairly warrants. The legal
effect, rather than the mere language used, governs. In cases of ambiguity or doubt, the entire
record may be examined and considered. Judgments are to have a reasonable intendment.
Where a judgment is susceptible of two interpretations, that one will be adopted which
renders it the more reasonable, effective and conclusive, and which makes the judgment
harmonize with the facts and law of the case and be such as ought to have been rendered. * *
*
Black on Judgments (2d ed.) at section 3 reads in part: It remains to be stated that, in case
of ambiguity, a judgment should be construed with reference to the pleadings, and when it
admits of two constructions, that one will be adopted which is consonant with the judgment
which should have been rendered on the facts and law of the case.
The supreme court of California, in Watson v. Lawson, 166 Cal. 235, 135 P. 961, 963,
holds, construing a judgment, that, if the language be in any degree uncertain, we may
properly refer to the circumstances surrounding the making of the order or judgment, to the
condition of the cause in which it was entered. The court then quotes with approval the
above quotation from Black on Judgments.
In Houston Oil Co. v. Village Mills Co., 241 S. W. 122, 129, the supreme court of Texas,
after stating the general rule as above, said: We think the judgment does dispose of all the
parties and issues. It does not do so expressly in some of its parts, but it does do so, as we
construe it, by necessary implication."
57 Nev. 269, 274 (1936) Aseltine v. District Court
do so expressly in some of its parts, but it does do so, as we construe it, by necessary
implication.
Applying these rules to the situation, it follows that we must reach the conclusion that it
was the intention of the court in rendering the judgment and decree in question that the
agreement of the parties should be given effect according to its intent and spirit. It was clearly
the intention of the parties that the monthly payments to the plaintiff by the petitioner should
be reduced in case his salary should be reduced. In view of the fact that the court incorporated
the agreement in its judgment and decree, it must be conclusively determined that it was the
intention of the court that the intention of the parties, as expressed in the agreement, should
be made effective. Such is the necessary implication. This can be done only by a modification
of the judgment and decree, for, if they are not modified, the plaintiff has the legal right to
enforce the decree as it stands, regardless of the fact that petitioner's salary may be greatly
reduced.
3. The second ground urged for denying the application is that under district court rule No.
XLV the decree could not be modified, because more than six months had elapsed since the
entry of the decree and prior to the application for its modification. We held in Sweeney v.
Sweeney, 42 Nev. 431, 179 P. 638, and in Dechert v. Dechert, 46 Nev. 140, 205 P. 593, that,
when the right to modify a judgment and decree in a divorce suit, as to alimony, is reserved,
such right might be exercised on proper showing. By the express terms of a decree reserving
such right, it is not final as to alimony, and the great weight of authority, as well as reason
and justice, is in favor of exercising the authority. Ruge v. Ruge, 97 Wash. 51, 165 P. 1063,
L. R. A. 1917f, 721; 19 C. J., p. 270, note 12. See, also, Wells v. Wells, 230 Ala. 430, 161
So. 794; Bentley v. Calabrese, 155 Misc. 843, 280 N. Y. S. 454; Boehmer v. Boehmer, 259
Ky. 69, 82 S. W. (2d) 199; Cockrell v. Cockrell, 19 Tenn. App.
57 Nev. 269, 275 (1936) Aseltine v. District Court
71, 83 S. W. (2d) 281; Capell v. Capell, 164 Va. 45, 178 S. E. 894.
For the reasons given, it is ordered that the peremptory writ issue as prayed for.
On Petition for Rehearing
February 9, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 275, 275 (1936) In Re Aguirre's Estate
In the Matter of the Estate of CLETO AGUIRRE,
Deceased.
STEVE AGUIRRE, Appellant, v. ALBERT
AGUIRRE, Respondent.
No. 3162
December 4, 1936. 62 P. (2d) 1107.
1. Marriage.
Evidence held to support finding that testator had been divorced from his son's mother and at time of his
death was a single man, as regards son's right to property and to issuance of letters of administration with
will annexed.
2. Marriage.
Presumption of continuance of marriage between testator and contestant's mother held overthrown by
testator's subsequent marriage to another, as regards contestant's right to property and to issuance of letters
of administration with will annexed.
3. Marriage.
In case of conflicting marriages of same spouse, presumption of validity operates in favor of second
marriage, and even where validity of first marriage is established, it may be presumed in favor of second
marriage that at time thereof first marriage had been dissolved.
4. Marriage.
Refusal of the will-contestant's mother to answer cross-examination question, as to whether she had been
divorced from testator, on ground that it might incriminate her, did not create presumption conflicting with
presumption, created by testator's subsequent marriage, of divorce from contestant's mother, as regards
son's right to testator's property and issuance of letters of administration with will annexed.
57 Nev. 275, 276 (1936) In Re Aguirre's Estate
5. Executors and Administrators.
Generally, in cases not specifically provided for, person having right to estate is entitled to right of
administration.
6. Executors and Administrators.
Where testator's will named testator's brother as sole devisee and legatee and unintentionally omitted
testator's son who was the sole heir, letters of administration with will annexed held properly granted to
testator's son, since he was entitled to succeed to testator's entire estate (Comp. Laws, secs. 9628, 9637,
9643).
7. Exceptions, Bill Of.
Trial court could correct proposed bill of exceptions presented in narrative form by causing portions of
transcript of proceedings to be engrossed with it so as to supply all material facts necessary to make clear
any ruling, decision, or action of court (Stats. 1935, c. 90, secs. 31, 32).
8. Appeal and Error.
Even though trial court in allowing respondent's amendments and additions to bill of exceptions
incorporated in bill of exceptions more testimony than was necessary, appellant held not prejudiced
thereby.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Proceeding by Steve Aguirre for probate of the will of Cleto Aguirre, deceased, and
praying that letters of administration with will annexed be issued to the proponent, wherein
Albert Aguirre filed contest and alleged the he was entitled to letters of administration with
will annexed. From that part of the order denying petition for letters and granting petition of
Albert Aguirre, and from order denying motion for new trial, Steve Aguirre appeals.
Affirmed.
Albert A. Hinman, for Appellant:
If it be assumed for the purpose of argument only, and without a waiver of any objections
thereto, that the testimony of Albert Aguirre that Cleto Aguirre was not married at the time of
his death is properly a part of the record on appeal, it is obviously insufficient upon which to
base the findings of the court. Annie Martinez testified that at the time of the birth of Albert
Aguirre she was the wife of Cleto Aguirre. A marriage may be established by the testimony of
one of the parties thereto {3S C. J. 1335, n.
57 Nev. 275, 277 (1936) In Re Aguirre's Estate
thereto (38 C. J. 1335, n. 39), and once shown, its continuance is presumed in the absence of
evidence of its dissolution by death or divorce. 38 C. J. 1294-5, nn. 15-22; 38 C. J. 1328, n.
84; sec. 4066 N. C. L.
Only one presumption can result from the refusal of Annie Martinez to answer the
question whether she had ever been divorced from Cleto Aguirre, namely, that she had never
been divorced; otherwise, she could not be incriminated. It follows that the conclusive
presumption thus established cannot be contradicted by the mere guess or conjecture of the
contestant that the deceased was not married at the time of his death. 70 C. J. 86, n. 21;
Waizman v. Black (Cal.), 281 P. 1087.
In the absence of statute, the usual governing principle is that the person most beneficially
interested under the will shall have the preference. 24 C. J. 1161, nn. 22-26; 24 C. J. 1162-3,
nn. 34, 42; In re Crites' Estate (Cal.), 101 P. 316.
The objections of the contestant to the proposed bill of exceptions should not have been
allowed, and his proposed amendments and additions should not have been made a part of the
bill of exceptions, in that they were irrelevant and immaterial to the point or points involved
on this appeal, not in proper form, and not supported by any specific objections. Stats. 1935,
p. 205; State v. District Court, 51 Nev. 412, 278 P. 363, Quinn v. Quinn, 53 Nev. 72; 8 Ban.
prac. 8951, n. 10.
Ham & Taylor, for Respondent:
The second marriage is presumed to be valid and is presumed to continue, which
presumptions disprove the continuance of the former marriage. 38 C. J. 1328, sec. 104.
It is a matter of common knowledge that if a person be granted a constitutional privilege,
the taking advantage of the same cannot be taken as a basis for a presumption of guilt and
may not be commented upon as indicating anything of fault.
Annie Martinez is not a party to this suit. Therefore, the question of her claim is a matter
wholly outside the scope of the action.
57 Nev. 275, 278 (1936) In Re Aguirre's Estate
the question of her claim is a matter wholly outside the scope of the action. This is a case
between Albert and Steve Aguirre, and the trial court correctly decided that Albert had the
better right. 24 C. J. 1161; 11 R. C. L. 34; In re Smith's Estate, 125 Okla. 104, 256 P. 725.
True, subdivision 2 of sec. 31, ch. 90, Stats. 1935, permits the appellant to prepare his bill
of exceptions in narrative form; but there is no requirement that additions or corrections shall
be in that form. We take it that the court can incorporate in the bill anything, or the objecting
party can present his objections in any form, that will state the truth. In any event, there can
be no prejudice to the appellant by incorporating in the bill all of the facts relating to the point
or points involved.
OPINION
By the Court, Ducker, C. J.:
The deceased left a will in which no nomination of an executor is made, naming his
brother Steve Aguirre as the sole devisee and legatee. Steve Aguirre presented a petition for
the probating of the will to the district court of Clark County, praying that letters of
administration with the will annexed, be issued to him.
The matter came on for hearing on November 15, 1935, when due proof was made of the
execution of the will. On the same day, Albert Aguirre filed a contest in writing in said matter
in which it was alleged that he was the son and only child of deceased; that he was not named
in said will and that the omission was unintentional; that deceased left no wife surviving him;
and that contestant was entitled to letters of administration with the will annexed.
The contest was regularly heard, and the court made and entered an order admitting the
will to probate, granting the petition of contestant for the issuance to him of letters of
administration with the will annexed, and denying the petition of Steve Aguirre.
57 Nev. 275, 279 (1936) In Re Aguirre's Estate
and denying the petition of Steve Aguirre. He has appealed from that part of the order
denying his petition for letters and granting the petition of Albert Aguirre, and from the order
denying a motion for a new trial.
Appellant contends that the evidence is not sufficient to support the findings of the court
upon which the foregoing orders were made and entered. He does not contend that the
evidence is deficient in proving that respondent is the son and sole surviving child of
deceased. This was amply proved by the testimony of respondent, his mother Annie Martinez,
and Leonor Aguirre. His main contention is that there is no competent evidence to sustain the
finding that Cleto Aguirre was divorced from respondent's mother, and was at the time of his
death a single man. It is therefore argued that, insofar as the record discloses, respondent's
mother is the surviving wife of the deceased and as such is entitled to all the estate under the
presumption that it is community property and that respondent on that account is not entitled
to letters of administration.
1. We think the evidence is sufficient to support the last-mentioned finding. There is no
direct testimony or evidence to the effect that deceased was ever divorced from respondent's
mother, it is true, but there is testimony admitted without objection, which we deem
sufficient. In this regard respondent testified as follows:
Q. Do you know whether or not at the time your father died he was married? A. I do.
Q. Was he? A. No.
Leonor Aguirre testified as follows:
Q. Were you married to Cleto Aguirre during 1920? A. Yes, sir.
Q. Were you divorced from him during the month of May, 1935? A. Yes, sir.
2. Respondent's testimony that his father was not married when he died was not objected
to by counsel for appellant, nor was it sought on cross-examination to inquire into the source
of respondent's information, or otherwise test the truth of his testimony.
57 Nev. 275, 280 (1936) In Re Aguirre's Estate
to inquire into the source of respondent's information, or otherwise test the truth of his
testimony. Moreover, the testimony is strengthened by the presumption which flows from the
subsequent marriage of Cleto Aguirre to Leonor Aguirre. This overthrew the presumption of
the continuance of the first marriage, which appellant contends is sufficient to controvert any
evidence in the record that deceased was divorced from respondent's mother, and leave the
court's finding to this effect without substantial basis.
3. The effect of the former presumption is well stated in 38 C. J., p. 1328, as follows: In
the case of conflicting marriages of the same spouse, the presumption of validity operates in
favor of the second marriage. Accordingly the burden of showing the validity of the first
marriage is on the party asserting it, and even where this is established it may be presumed in
favor of the second marriage that at the time thereof the first marriage had been dissolved
either by a decree of divorce or by the death of the former spouse, so as to cast the burden of
adducing evidence to the contrary on the party attacking the second marriage. Wilcox v.
Wilcox, 171 Cal. 770, 155 P. 95.
The reason for the rule is stated in Lopez v. Missouri, etc. R. Co. (Tex. Civ. App.), 222 S.
W. 695, 697, as follows: When there has been a formal marriage, according to legal
requirements, the law will presume the competency of the parties to enter into the marriage
contract, and will presume that any former marriage of either of the parties was dissolved by
death or divorce. This is based on the desire of the law to protest innocence, morality, and
legitimacy rather than presume the continuance of the first marriage.
4. Appellant adduced no evidence to counter the effect of this presumption. To obviate its
effect, however, he attempts to invoke a presumption which he claims arises from the fact
that respondent's mother, when asked on cross-examination if she had ever been divorced
from Cleto Aguirre, declined to answer the question upon the ground that it might
incriminate her, and was not compelled by the court to answer.
57 Nev. 275, 281 (1936) In Re Aguirre's Estate
divorced from Cleto Aguirre, declined to answer the question upon the ground that it might
incriminate her, and was not compelled by the court to answer. There is no merit in this
contention. The privilege conferred in such a case is absolute. This would not be so if a
presumption of guilt attached in claiming it. We wish to say in passing, that appellant does
not contend that the court erred in not compelling the witness to answer under the
circumstances of the case.
5, 6. The trial court having found on sufficient evidence that Cleto Aguirre was a single
man at the time of his death and that Albert Aguirre is the sole heir and entitled to succeed to
his entire estate, did the court err in its order appointing Albert Aguirre administrator of the
estate of deceased with the will annexed? We think not. The trial court's written opinion,
which appears in the record, correctly states the law and is adopted as our own on this phase
of the case. The court said:
* * * In the argument of counsel it is conceded that section 9637 N. C. L. 1929 applies
only in case of intestacy, and that the only direct statutory authorization for the issuance of
letters with the will annexed is that portion of section 9628 which reads as follows:
A petition may also be filed for the issuance of letters of administration, with the will
annexed, in all proper cases.'
Counsel for the proponent takes the position that letters of administration with the will
annexed can only be issued to a person interested in the will as distinguished from a person
interested in the estate. To uphold the contention that only a person interested in the will is
entitled to such letters would, to the mind of the Court, entirely defeat the announced purpose
of the law, namely, that the person having the right to the estate ought to have the right of
administration, the rule being stated as follows:
As a general rule, to cover the cases not specifically provided for, the person having the
right to the estate ought to have the right of administration and the grant will be generally
made to the person having the largest interest.' 24 C. J. 1161, and cases cited therein.
57 Nev. 275, 282 (1936) In Re Aguirre's Estate
ought to have the right of administration and the grant will be generally made to the person
having the largest interest.' 24 C. J. 1161, and cases cited therein.
And in passing upon the question, the Supreme Court of Oklahoma in Re Smith's Estate,
125 Okl. 104, 256 P. 725, 726, used the following language:
There is no statutory designation of persons entitled to appointment in case of
appointment of administrator with the will annexed, and our statute was adopted with
precedents prevailing in other states and at common law, and these prevailing precedents are
to the effect that the right to such an appointment follows the property.'
The above proposition of law, thus announced, seems to be well settled, but the question
here which has given some difficulty is, Are we confined to the statement made within the
four corners of the will in our determination as to who has the interests in the property? Such
a determination manifestly could and would work a hardship, especially in cases such as the
one under consideration where a child is unintentionally omitted from the will, and though
entitled to the estate, would be forced to have the affairs of the estate handled by one having
no interest in said estate as appears from the proofs made at the hearing. I cannot agree with
the statement of counsel for the proponent in speaking of section 9628 Nevada Compiled
Laws, 1929, wherein he states that said section itself refutes the contention that any one may
file written opposition.' That section refers to the granting of Letters Testamentary and section
9643 does not limit the opposition to the sole ground of incompetency of the applicant, but is
in the alternative and gives the additional right to a person to assert his own right to the
administration, and pray that letters be issued to himself. * * *'
The case of In re Crites' Estate, 155 Cal. 392, 101 P. 316, 317, is cited as the leading
authority on the proposition that the determination of the person entitled to Letters of
Administration with the will annexed must be a person entitled to take under the express
terms of the will.
57 Nev. 275, 283 (1936) In Re Aguirre's Estate
to Letters of Administration with the will annexed must be a person entitled to take under the
express terms of the will. However, the right asserted in that case was upon the ground that
the wife was an heir. Her interests were attempted to be disposed of by the terms of the will
and she asserted no right to the property. No showing was made that, notwithstanding the
terms of the will, she was entitled to share in the distribution of the property. The following
language used by the court is significant and is indicative of what the court would have done
had she shown that she was entitled to share in the property, notwithstanding the statements
made in the will: It is not meant by this to declare that, notwithstanding the terms of a will, a
petitioner, such as a widow, would be forbidden to show that, despite its language, she was
entitled to succeed; but, in the absence of such showing, her rights are measured by the terms
of the instrument under which she seeks to act.'
7. Appellant assigns as error the court's allowance of respondent's amendments and
additions to the bill of exceptions, which consist of a transcript of the testimony of the
witnesses Leonor Aguirre, Albert Aguirre, and Annie Martinez. In this connection it is
insisted that respondent's statement of objections to the allowance of the bill of exceptions is
not specific and should have been presented in narrative form. We think the assignment is in
substantial compliance with section 32 of the Statutes of 1935 (chapter 90). The objection to
the correction of the bill of exceptions by said transcript is based on the fact that appellant did
not file and serve a transcript of the proceedings as the bill of exceptions, but adopted the
alternative method provided in section 31 of said Statutes of 1935. There is nothing in the law
prohibiting a trial court from correcting a proposed bill of exceptions in whichever mode
presented, by causing portions of the transcript of the proceedings to be engrossed with it so
as to supply all material facts necessary to make clear any ruling, decision or action of the
court.
57 Nev. 275, 284 (1936) In Re Aguirre's Estate
necessary to make clear any ruling, decision or action of the court. The object is to make the
bill speak the truth, and the manner of effecting this end is of no importance.
The case of State ex rel. Gray v. District Court, 51 Nev. 412, 278 P. 363, cited by
appellant, is not in point. We there held that a trial court could not compel an appellant to
select the mode of a certified transcript of the proceedings as his bill of exceptions. We also
held that the statement did not specifically point out the defects in the bill of exceptions. Such
is not the case here on either point.
8. It is also objected that the trial court incorporated in the bill of exceptions more of the
testimony than was necessary. Even so, it is not apparent how the appellant was prejudiced
thereby.
It follows from what we have said that there was no error in the orders denying the motion
for modified and additional findings, and the motion for a new trial.
The order denying the petition of appellant and granting the petition of respondent for
letters of administration with the will annexed, and denying the motion for a new trial, should
be affirmed.
It is so ordered.
On Petition for Rehearing
March 5, 1937. 65 P. (2d) 685.
1. Appeal and Error.
Rehearings are not allowed merely for reargument, but only when there is shown a
reasonable probability that the court reached an erroneous conclusion or overlooked
some important question necessary to be discussed in order to arrive at a full and proper
understanding of the case.
2. Appeal and Error.
Where no objection was made to testimony of son that his father was unmarried at
death, incompetency of evidence to sustain finding that father was divorced from son's
mother, who was living at father's death, could not be urged on appeal, notwithstanding
such testimony was not best evidence of divorce.
3. Trial.
If secondary or hearsay evidence is admitted without objection, no advantage can be
taken of that fact afterwards, and jury should accept it as if it were admissible under
strictest rules of evidence, and court should treat such evidence in same way.
57 Nev. 275, 285 (1936) In Re Aguirre's Estate
objection, no advantage can be taken of that fact afterwards, and jury should accept it as
if it were admissible under strictest rules of evidence, and court should treat such
evidence in same way.
Rehearing denied.
For former opinion, see 57 Nev. 275, 62 P. (2d) 1107.
OPINION
By the Court, Ducker, J.:
1. The petition for rehearing presents only a reargument of appellant's case. We do not see
anything in it that causes us to doubt the correctness of our opinion. Rehearings are not
allowed merely for reargument. There must be shown a reasonable probability that the court
reached 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 ex rel. Copeland v. Woodbury, 17 Nev. 337, 30 P. 1006, 1011.
2, 3. The burden of appellant's argument now, as before, is that respondent's testimony is
not competent to sustain the finding that Cleto Aguirre (respondent's father) was divorced
from respondent's mother, and was at the time of his death a single man. The testimony of the
son is that his father was not married when he died. As the mother was living at the time, this
testimony indirectly proves that they had been divorced. True, it is not the best evidence of a
divorce, but counsel did not object to it on that or any ground. Being then willing to have the
fact proved in that way, he is concluded now from having the evidence declared incompetent.
Vietti v. Nesbitt, 22 Nev. 390-397, 41 P. 151. As stated in Sherwood v. Sissa, 5 Nev. 349,
355: If evidence secondary or hearsay in its character be admitted without objection, no
advantage can be taken of that fact afterwards, and the jury may, indeed should, accept it as
if it were admissible under the strictest rules of evidence."
57 Nev. 275, 286 (1936) In Re Aguirre's Estate
should, accept it as if it were admissible under the strictest rules of evidence.
A court should treat such evidence in the same way. Dalton v. Dalton, 14 Nev. 419, 427;
Watt v. Nevada Cent. R. Co., 23 Nev. 154, 163, 44 P. 423, 46 P. 52, 726, 62 Am. St. Rep.
772.
The testimony also adequately supports the finding that the deceased was not married
when he died.
A rehearing is denied.
____________
57 Nev. 286, 286 (1937) Schur Ex Rel. v. Payne
STATE OF NEVADA, on the Relation of A. J. SCHUR, Relator, v. LLOYD S. PAYNE, as
the County Clerk of Clark County, State of Nevada, Respondent.
No. 3172
January 8, 1937. 62 P. (2d) 921.
1. Officers.
All persons are equally eligible to public office who are not excluded by some constitutional or legal
disqualification (Comp. Laws, sec. 4766; Const. art. 2, sec. 1; art. 15, sec. 3).
2. Officers.
In absence of constitutional and statutory provision, residence within district over which jurisdiction of
public office extends is unnecessary to eligibility for office.
3. Officers.
Right of people to select from citizens and qualified electors whomsoever they please to fill elective
office cannot be circumscribed except by legal provisions clearly limiting right (Comp. Laws, sec. 4766;
Const. art. 2, sec. 1; art 15, sec. 3).
4. Officers.
As regards right to hold public office, limited to qualified electors, qualified elector is not necessarily
same as qualified voter, and, although to be qualified voter one must be qualified elector, converse is not
true, and any person possessing qualifications of elector, who is not disqualified by any other provisions, is
entitled to right of suffrage (Comp. Laws, sec. 4766; Const. art. 2, sec. 1; art. 15, sec. 3).
5. Justices of the Peace.
Candidate for justice of the peace, who, although otherwise qualified, was not, at time he filed application
paper, resident of township in which he sought office, held qualified elector entitled to have name printed
on official ballots for general election as candidate for justice of the peace, since word district, used in
constitutional provision requiring residence in district for 30 days next preceding election to
render one a qualified elector, does not include "township" {Comp.
57 Nev. 286, 287 (1937) Schur Ex Rel. v. Payne
residence in district for 30 days next preceding election to render one a qualified elector, does not include
township (Comp. Laws, secs. 2466, 4766; Const. art. 2, sec. 1; art 6, sec. 8; art. 15, sec. 3).
6. Justices of the Peace.
Candidate for justice of the peace, who, although otherwise qualified, was not at time he filed nomination
paper resident of township in which he sought office, held qualified elector entitled to have name printed
on official ballot in general election, even if words district, used in constitutional requirement of
residence in district for 30 days next preceding election to constitute one a qualified elector, could be
construed to include township (Comp. Laws, sec. 4766; Const. art. 2, sec. 1; art. 15, sec. 3).
The phrase Qualified elector, as used in Const. art. 15, sec. 3, and Comp. Laws, sec.
4766, means qualified elector under provision of article 2, sec. 1, of state constitution.
7. Mandamus.
Generally, in order for mandamus to lie to require public official to perform duty, there must have been
actual default in performance of duty sought to be coerced and there can be no default until time for
performance of duty.
8. Mandamus.
Mandamus held to lie to require county clerk to place candidate's name on general election ballot upon
clerk's refusal to do so and statement that he did not intend to do so, prior to time clerk had duty to place
names on ballot, since if candidate waited until such time it might be impossible to have his name printed
on ballot (Comp. Laws, sec. 2475).
9. Mandamus.
Where officer against whom mandamus is demanded has refused performance in advance of time fixed
therefor and evinced determination not to perform act, mandamus will at once lie to compel performance at
proper time, if it is probable that no effective relief could otherwise be attained.
Original proceedings in mandamus by the State of Nevada, on the relation of A. J. Schur,
against Lloyd S. Payne, as County Clerk of Clark County, Nevada, wherein respondent filed a
general demurrer to the petition. Peremptory writ issued.
Julian Thruston, for Relator:
As we view the question at bar, sections 2408 and 2472 N. C. L. standing alone are
sufficient to empower the court to issue the writ of mandamus as prayed for, commanding
the respondent to perform what we contend to be his official duty.
57 Nev. 286, 288 (1937) Schur Ex Rel. v. Payne
commanding the respondent to perform what we contend to be his official duty.
It is clear from the provisions of art. II, sec. 1, and art. XV, sec. 3, of the constitution of
Nevada that the relator was on August 1, 1936, and now is, a qualified elector of the county
of Clark, State of Nevada, and that, as such, he was on said date, and now is, eligible to the
office of justice of the peace of Nelson township in that county.
The qualifications of an elector are those prescribed by the constitution, and they cannot be
altered or impaired by the legislature. State v. Findlay, 20 Nev. 198, 19 Am. St. Rep. 346, 19
P. 241; State ex rel. Boyle v. Board of Examiners, 21 Nev. 67, 9 L. R. A. 385, 24 P. 614.
So far as relator has been able to determine, art. IV, sec. 5 of the constitution is the only
provision placing a residential qualification upon public officers in this state, or upon
candidates for such offices. This, we contend, is tantamount to a constitutional manifesto that
no such qualification shall be placed upon the officers not specifically mentioned.
Camphausen Case, 3 Pittsburg Rep. 57; Commonwealth ex rel. Attorney-General v. Kerr, 3
Pittsburgh Rep. 348.
Justices of the peace are county, and not township, officers. Sections 2946, 8393, 8473,
9263, 10727, 10728, 10737, and 11267 N. C. L.; ch. 47, Stats. 1933, p. 42.
It is held in State ex rel. Nourse v. Clarke, 3 Nev. 576, that, where a candidate for office is
ineligible to be elected to or hold the office sought at the time of his nomination therefor and
the disability is removed at least one day prior to the general election at which he is a
candidate, such removal of the disability thereupon renders him eligible and qualified to be
elected to and to hold said office.
Roger Foley, District Attorney, and Gray Mashburn, Attorney-General, for Respondent:
Expressions of the general law are to the effect that a person must be a resident of the
township in order to be eligible to the office of justice of the peace.
57 Nev. 286, 289 (1937) Schur Ex Rel. v. Payne
a person must be a resident of the township in order to be eligible to the office of justice of
the peace. 35 C. J. 457, sec. 9, n. 1; Cowdery's Justice Treatis, vol. 1, p. 30, sec. 10, p. 76,
sec. 34.
It is our opinion that the qualified elector mentioned in art. XV, sec. 3 of the constitution
of Nevada, and sec. 4766 N. C. L., means a qualified elector of the state or of the particular
political subdivision of the state in which he holds or is to hold office.
From the foregoing, it is our opinion that, in order for a candidate to be eligible for the
office of justice of the peace of Nelson township he must be a legal resident and qualified
elector of that township. This view is strengthened by the provisions of sec. 4799 N. C L.,
prescribing how every office shall become vacant, the sixth subdivision of which states:
The ceasing of the incumbent to be a resident of the state, district, county, city or precinct in
which the duties of his office are to be exercised, or for which he shall have been elected or
appointed.
OPINION
By the Court, Taber, J.:
Original proceeding in mandamus. The facts in the petition are not challenged, but
respondent, on general demurrer, took the position that the petition failed to state facts
sufficient to warrant the issuance of the writ.
Relator will also be designated as petitioner herein. When the petition was filed
(September 17, 1936), he was, and for some seven years had been, a citizen of the United
States, over twenty-one years of age, and a resident of Clark County. On said 17th day of
September 1936, and for more than ten days immediately prior thereto, he was a resident of
Nelson township, in said county of Clark. The petition alleges that he is, and for some seven
years last past has been, a qualified elector of said Clark County, State of Nevada.
Petitioner, not less than thirty days prior to the primary election, filed with the
respondent his declaration of candidacy and acceptance of candidacy for the office of
justice of the peace of said Nelson township.
57 Nev. 286, 290 (1937) Schur Ex Rel. v. Payne
primary election, filed with the respondent his declaration of candidacy and acceptance of
candidacy for the office of justice of the peace of said Nelson township. At that time he was a
resident of Las Vegas township, in said county of Clark. No other candidate filed a
declaration of acceptance of candidacy for said office, and after the primary election had been
held and the vote canvassed and entered upon the records, petitioner demanded of respondent
that the former's name, as nominee for said office, be printed on the official ballots for the
general election of November 3. This respondent declined to do, and further stated that he did
not intend to do so. On August 25, 1936, petitioner gave up his residence in Las Vegas
township and became a resident of said Nelson township, where he has since resided.
The main question presented for our consideration in this proceeding was whether
petitioner was eligible for the office to which he aspired. Respondent's position was that
petitioner was not eligible because, at the time of filing his nomination paper, as said
declaration is frequently spoken of, he was not a resident of Nelson township.
Because of the limited time for printing the official ballots for the general election,
counsel, at the hearing on the petition herein, stipulated that when the court reached its
conclusion as to whether the writ should be issued, or the petition denied, its judgment or
order might forthwith be entered, and the court's opinion filed later. On October 2, 1936, we
directed the clerk to issue the peremptory writ, and this opinion is filed in accordance with the
aforesaid stipulation.
Section 1 of article 2 of the state constitution (section 42 N. C. L.) provides, in part, that:
All citizens of the United States (not laboring under the disabilities named in this
constitution) of the age of twenty-one years and upwards, who shall have actually, and not
constructively, resided in the state six months, and in the district or county thirty days next
preceding any election, shall be entitled to vote for all officers that now or hereafter may
be elected by the people, and upon all questions submitted to the electors at such
election."
57 Nev. 286, 291 (1937) Schur Ex Rel. v. Payne
election, shall be entitled to vote for all officers that now or hereafter may be elected by the
people, and upon all questions submitted to the electors at such election.
Section 3 of article 15 of the constitution (section 164 N. C. L.) reads: No person shall be
eligible to any office who is not a qualified elector under this constitution.
It is provided in section 4766 N. C. L. that: No person who is not a qualified elector shall
be eligible to any office of honor, profit, or trust, in and under the government and laws of
this state.
1-3. All persons are equally eligible to office who are not excluded by some constitutional
or legal disqualification; and in the absence of a constitutional or statutory provision,
residence within the district over which the jurisdiction of the office extends is unnecessary to
eligibility. 46 C. J. 936, 938, secs. 32, 36. The right of the people to select from citizens and
qualified electors whomsoever they please to fill an elective office is not to be circumscribed
except by legal provisions clearly limiting the right. Ward v. Crowell, 142 Cal. 587, at pages
590, 591, 76 P. 491. Unless, therefore, there be some provision in our constitution or some
statutory enactment, or both, clearly making residence in Nelson township a prerequisite to
petitioner's eligibility to the office for which he was a candidate, he was entitled to have his
name printed on the official ballots for the general election.
4. In construing section 1, article 2, and section 3, article 15, of the state constitution, we
must bear in mind that a qualified elector is not necessarily the same as a qualified voter.
Caton v. Frank, 56 Nev. 56, 44 P. (2d) 521; State ex rel. Boyle v. State Board of Examiners,
21 Nev. 67, 24 P. 614, 9 L. R. A. 385; Bergevin v. Curtz, 127 Cal. 86, 59 P. 312. To be a
qualified voter one must necessarily be a qualified elector, but the converse is not true. Any
person possessing the qualifications of an elector, as set forth in the above-mentioned
provision of the constitution, and who is not disqualified by any of its provisions, is entitled
to the right of suffrage.
57 Nev. 286, 292 (1937) Schur Ex Rel. v. Payne
is not disqualified by any of its provisions, is entitled to the right of suffrage. State v. Findlay,
20 Nev. 198, 200, 19 P. 241, 19 Am. St. Rep. 346. In the same case it is said that it is not
within the power of the legislature to deny, abridge, extend, or change the qualifications of an
elector as prescribed by the state constitution. In Bergevin v. Curtz, supra, the court said: It
is settled by the great weight of authority that the legislature has the power to enact
reasonable provisions for the purpose of requiring persons who are electors, and who desire
to vote, to show that they have the necessary qualification; as by requiring registration, or
requiring an affidavit or oath as to qualifications, as a condition precedent to the right of such
electors to exercise the privilege of voting. Such provisions do not add to the qualifications
required of electors, nor abridge the right of voting, but are only reasonable regulations for
the purpose of ascertaining who are qualified electors, and to prevent persons who are not
such electors from voting. * * * In this case the appellant would have been eligible to the
office of supervisor of the district for which he was elected if his name had not been on the
great register. He could not have voted at the election, and thus would have been deprived of
voting for himself, if he so desired; but, having the constitutional qualifications, he was
eligible to the office.
5. The meaning of the word district, in section 1, article 2 of our constitution, is not
clear. If it does not include township within its meaning, then relator was a qualified elector
when he filed his nomination paper. While the question is not free from doubt, it is our
opinion that the framers of the constitution did not intend the word district, as used in said
constitutional provision, to mean township, or to be construed as including township
within its meaning; and we shall proceed to state the reason which led us to this conclusion.
We learn from the Constitutional Debates and Proceedings of the Nevada State
Constitutional Convention of 1S64 {pp.
57 Nev. 286, 293 (1937) Schur Ex Rel. v. Payne
of 1864 (pp. 14 and 24) that the proposed constitution framed by the earlier Nevada
convention (1863) was adopted as the basis for the constitution of 1864. Mr. Johnson,
president of the Nevada constitutional convention of 1864, gives us the further information
(p. 17, Nev. Const. Deb. and Proc.) that the constitution of California was adopted as the
basis of action by the Nevada convention of 1863. Mr. Johnson was referring to the
California constitution of 1849, as amended to 1864, because the present constitution of that
State was not adopted until 1879.
The pertinent part of section 1, article 2 of the California constitution, as it read in 1864,
was as follows: Every white male citizen of the United States, and every white male citizen
of Mexico, who shall have elected to become a citizen of the United States, under the treaty
of peace exchanged and ratified at Queretaro, on the 30th day of May, 1848, of the age of
twenty-one years, who shall have been a resident of the State six months next preceding the
election, and the county or district in which he claims his vote thirty days, shall be entitled to
vote at all elections which are now or hereafter may be authorized by law.
The word district remained in section 1 of the right of suffrage article (article 2) in the
California constitution until 1879, when the people of that state adopted a new constitution
which, as amended, is their present constitution. The word district was entirely discarded in
section 1 of said article 2 of the 1879 constitution of California, and it is not difficult to
understand why when we read pages 1016 to 1018, vol. 2, of the Debates and Proceedings of
the Constitutional Convention of the State of California (1878-1879), published at
Sacramento in 1881 by the state office, J. D. Young, Superintendent State Printing. We can
here give only a few excerpts, but they will be sufficient. Mr. Camples: This term was
discussed in the committee, and it was agreed, and I think with good reason, that the term was
indistinct and indefinite. It may mean a judicial district, or it may mean a congressional
district, or some other district.
57 Nev. 286, 294 (1937) Schur Ex Rel. v. Payne
judicial district, or it may mean a congressional district, or some other district. * * * Mr.
McCallum: The law now says that a party must be a resident of the district, which does not
mean precinct. * * * Mr. Reynolds: There seems to be some obscurity in the language used
in the present constitution, and also in the language of the report of the committee. I refer to
the words county' and district'; and though there seems to be found no decision bearing on
the question, from the discussion in this committee there seems to be some uncertainty as to
how these words should be construed. I am in favor, in part, of the amendment offered by the
gentleman from San Francisco, because I think it would tend to remove the obscurity. * * * If
I could get a chance I would offer an amendment that would forever set at rest any question
that might arise * * * and because the pending amendments will leave a little of this
obscurity, is the reason why I shall vote against them. Mr. Larkin: The word district,' as
used in the old constitution, applied to the districts existing at the time, that then existed.
Now, to use the word in this constitution might mean a railroad district. It might mean a
senatorial district.
* * *
No member of the convention, so far as shown by the Debates and Proceedings, mentioned
township as one of the meanings that might be given to or included within the meaning of
district. Mr. Larkin was the only one who had a definite idea as to the meaning of the word
district, as used in the right of suffrage article, and his idea, as appears above, was that the
word referred to the districts existing at the time the old constitution was adopted (1849). We
have read the California constitution of 1849, and we find mentioned there senatorial,
assembly, congressional, and judicial districts. We also find a provision (article 11, sec. 13)
that assessors and collectors of town, county, and State taxes shall be elected by the qualified
electors of the district, county, or town in which the property taxed for State, county, or
town purposes is situated."
57 Nev. 286, 295 (1937) Schur Ex Rel. v. Payne
district, county, or town in which the property taxed for State, county, or town purposes is
situated. In the Nevada constitution mention is made of assembly, senatorial, and judicial
districts. An amendment to section 3 of article 15 of our constitution, ratified by the people in
1912, provides that females over the age of twenty-one years, who have resided in this state
one year, and in the county and district six months next preceding any election to fill either of
said offices, or the making of such appointment, shall be eligible to the office of
superintendent of public instruction, deputy superintendent of public instruction, school
trustee, and notary public.
Section 1 of the right of suffrage article (article 2) of the constitution of California, as now
amended, requires residence in the state one year, in the county ninety days, and in the
election precinct forty days. Section 159 of the Code of Civil Procedure of California, as
amended to the present time (St. 1933, p. 1827), provides in part that no person shall be
eligible to the office of justice of the peace unless he shall have been a citizen of the United
States and a resident of the county in which he is to serve for one year next preceding his
election or appointment. It thus appears that while a person, to be a qualified elector in
California, must be a resident of the election precinct for forty days, he is eligible for the
office of justice of the peace if he is a resident of the county (not the township) in which he is
to serve, for one year preceding his election.
The debates in the California constitutional convention of 1849 throw no light upon the
meaning of the word we have been discussing.
The first words of section 8 of article 6 of our state constitution are The legislature shall
determine the number of justices of the peace to be elected in each city and township of the
state. Nothing is here said about districts. We do find, however, in the 1861 Laws of the
Territory of Nevada, c. 89, p. 295, the following: "There shall be elected or appointed, as
hereinafter declared, the following officers, to wit:
* * * For each township, one justice of the peace, who shall be ex officio coroner in his
district or township."
57 Nev. 286, 296 (1937) Schur Ex Rel. v. Payne
There shall be elected or appointed, as hereinafter declared, the following officers, to wit:
* * * For each township, one justice of the peace, who shall be ex officio coroner in his
district or township. Section 1.
Section 2466 N. C. L., being section 29 of the general election law, prescribes the method
of canvassing the votes when two or more counties are united in one senatorial,
representative, or judicial district for the election of any officers.
Section 1 of the general election law of the Territory of Nevada (Laws of Nevada 1861, c.
94, p. 300) reads as follows: That all white male inhabitants, over the age of twenty-one
years, shall be entitled to vote at any election for delegate to congress, and for territorial,
district, county and precinct officers; provided, that they shall be citizens of the United States,
and shall have resided four months in the territory, and thirty days in the county where they
offer to vote, next preceding the day of election. It will be noted that this section required
residence only in the territory and county. Section 15 of the last-mentioned act reads as
follows: It shall be unlawful for any elector to vote for delegate to congress, at any place of
holding an election within this territory; for members of the legislative assembly, and all other
officers, at any place for holding elections within the particular limits for which such
members of the legislative assembly, and such other officers, are to be elected; provided, that
an elector qualified to vote for a part, and not all, of the officers to be chosen at any election,
shall vote an open ticket, that the judges may determine the legality of such vote. In section
26 of the same act, mention is made of unorganized counties. Section 31 provides that
when a vacancy shall happen in the office of member of the council or house of
representatives, the governor shall issue a writ of election, directed to the sheriff of the
county or district in which such vacancy shall happen, commanding him to notify the several
judges in his county or district to hold a special election to fill such vacancy."
57 Nev. 286, 297 (1937) Schur Ex Rel. v. Payne
his county or district to hold a special election to fill such vacancy.
In defining the residential requirements for electors, our constitution first prescribes
residence in the state six months, then residence in the district or county thirty days, next
preceding any election. The order in which the words state, district, and county are
placed, while by no means conclusive, is some indication that district was not intended to
include any subdivision of less extent than a county.
In Gray v. Board of Commissioners of Beadle County, 21 S. D. 97, 110 N. W. 36, at page
37, the court says: The arrangement of the words state, district, county, township or
precinct' indicates that the word district' was designed to designate a subdivision embracing
more than one county.
In Saunders v. Haynes, 13 Cal. 145, at page 151, the court had under consideration a
certain section of the general election law providing that no person should be competent to
contest any election unless he is a qualified elector of the district, county, or township, in
which the office is to be exercised. The court said: The word district' here, evidently, from
the collocation of the words, does not refer to any electoral divisions of a county or a
township, but to such a division of the State.
It may be observed that in the very early days of California there were at least several
kinds of districts which have never existed in the State of Nevada.
6. Even if the word district, as used in said section 1, article 2 of our constitution, could
be construed to include township within its meaning, petitioner was nevertheless a qualified
elector under the constitution when he filed his nomination paper. Said constitutional
provision, in itself, does not relate in any way to eligibility for office. It does nothing more
than prescribe the qualifications of an elector. Section 3 of article 15 of the state constitution
(section 164 N. C. L.)
57 Nev. 286, 298 (1937) Schur Ex Rel. v. Payne
and section 4766 N. C. L. go no further than to say that no person who is not a qualified
elector shall be eligible to any office. By qualified elector, as used in the last-mentioned
constitutional provision and in said last-mentioned statute, is meant qualified elector under
the provisions of section 1, article 2 of our constitution. Said section 3 of article 15 and said
section 4766 N. C. L. do not, nor does either of them, place any residential limitations on the
eligibility of candidates for the office of justice of the peace, further than those prescribed in
section 1, article 2.
Petitioner did not become ineligible for the office of justice of the peace of Nelson County
by changing his residence on August 24, 1936, from Las Vegas township to said Nelson
township.
We are not to be understood as saying that there is no authority to support the contention
that the word district, as used in section 1 of article 2 of our state constitution, includes
township within its meaning. In Olive v. State, 11 Neb. 1, 7 N. W. 444, at page 446, the
court said: In its ordinary meaning the word district' is commonly and properly used to
designate any one of the various divisions or subdivisions into which the state is divided for
political or other purposes, and may refer either to a congressional, judicial, senatorial,
representative, school, or road district, depending always upon the connection in which it is
used. In the clause quoted, very clearly it refers to neither of these, and, although not
synonymous with the word county,' yet, by its connection with it, the intention evidently was
that they should be taken in a similar sense and as designating the precise portion of territory,
or division of the state, over which a court, at any particular sitting, may exercise power in
criminal matters. The clause referred to by the court was one from the Nebraska Bill of
Rights, declaring that in all criminal trials the accused shall have the right to * * * a speedy
public trial, by an impartial jury of the county or district in which the offense is alleged to
have been committed."
57 Nev. 286, 299 (1937) Schur Ex Rel. v. Payne
the county or district in which the offense is alleged to have been committed. The meaning
of the word district was also considered by the supreme court of Montana in State v.
O'Brien, 35 Mont. 482, 90 P. 514, at page 518, 10 Ann. Cas. 1006, in construing a clause of
the Montana constitution identical with that in the Olive Case. In People v. Sackett, 351 Ill.
363, 184 N. E. 646, the Absentee Electors Law (Smith-Hurd Ill. Stats. c. 46, sec. 462 et seq.)
was held to apply to district elections. After quoting from the Olive Case, supra, the court
held that an election for the purpose of organizing and electing commissioners of a park
district was a district election. In only one of the three cases just mentioned, State v. O'Brien,
supra, was the court called upon to consider whether the word district meant township,
and it was held in that case that district did not mean township.
7, 9. On the hearing of respondent's demurrer to relator's petition herein, the contention
was made that these proceedings had been prematurely brought, in that the respondent was
not as yet actually in default. It is true, as a general rule, that there must have been an actual
default in the performance of the duty sought to be coerced, that there can be no default
before the time has arrived for the performance of the duty, and that mandamus will not issue
in anticipation of an omission of such duty. State v. Public Service Comm. of Nevada, 44
Nev. 102, 190 P. 284; nevada Tax Comm. v. Campbell, 36 Nev. 319, 135 P. 609; State v.
Brodigan, 34 Nev. 486, 125 P. 699; Hardin v. Guthrie, 26 Nev. 246, 66 P. 744; State v.
Gracey, 11 Nev. 223; Humboldt County v. Churchill County Com'rs., 6 Nev. 30; 38 C. J. 580,
sec. 55. But in the proceeding at bar we have had to deal with a situation where mandamus
was the only effective remedy available to petitioner. Respondent not only declined to cause
petitioner's name to be printed on the ballots when demand was made by him, but further
stated that he did not intend to do so.
57 Nev. 286, 300 (1937) Schur Ex Rel. v. Payne
There was but a limited time within which to have the ballots printed. If petitioner had waited
until a later date to institute this proceeding, not only would a great deal of unnecessary
expense, confusion, and delay have resulted, but it might have become a physical
impossibility to have petitioner's name printed on the ballots. Section 2475 N. C. L. provides
that the county clerk shall provide for each election precinct in the county at least 110 ballots
for each 100 voters registered therein, but there seems to be no provision as to when the
ballots must be printed. While recognizing, therefore, the general rule above mentioned, we
are of the opinion that, under the special facts and circumstances of this case, the rule
enunciated in the last sentence of said section 55 on page 581 of 38 C. J. should be followed.
The rule there stated is that where the officer against whom the writ is demanded has refused
performance in advance of the time fixed therefor and evinced a determination not to perform
the act at all, mandamus proceedings will at once lie to compel performance at the proper
time, if it is probable that no effective relief could otherwise be attained. While the point
under discussion was not raised in State v. Beemer, 51 Nev. 192, 272 P. 656, this court in that
case ordered the issuance of a peremptory writ of mandamus requiring the clerk of Washoe
County to print the name of the petitioner on the official ballots for a general election.
We are not called upon to decide whether the word district, as used in section 1 of article
2 of our constitution, may in a particular case mean a subdivision or district of less extent
than a county. We decide only, under the rule announced in Ward v. Crowell, supra, that there
is no constitutional or other legal provision in this state clearly requiring that petitioner, to be
eligible for the office to which he aspired, must have been a resident of Nelson township at
any time earlier than when he changed his residence from Las Vegas township to Nelson
township. In arriving at this conclusion, we have not been influenced by any individual
opinions we might have as to what the law on this subject ought to be.
57 Nev. 286, 301 (1937) Schur Ex Rel. v. Payne
opinions we might have as to what the law on this subject ought to be. Our sole concern has
been to ascertain, as best we could, the intention of the framers of the constitution.
____________
57 Nev. 301, 301 (1937) Ex Parte Medeiros
In the Matter of the Application of F. R.
MEDEIROS for a Writ of Habeas Corpus
No. 3176
January 25, 1937. 64 P. (2d) 346.
1. Statutes.
Where title of act is fatally defective, act cannot be made valid by amendment (Const. art. 4, sec. 17).
2. Statutes.
Narcotic act, entitled an act defining and relating to narcotic drugs and to make uniform law with
reference thereto, and its amendment are void because of defective title (Stats. 1933, c. 51; Stats. 1935, c.
179; Const. art. 4, sec. 17).
3. Statutes.
Narcotic act, title of which was defective as not expressing subject, was not rendered constitutional on
ground that it was common knowledge that public policy of state was to prohibit use and possession of
narcotic drugs by any person except professional men, since constitutional provision requiring subject of
act to be briefly expressed in its title is mandatory (Stats. 1933, c. 51; Stats. 1935, c. 179; Const. art. 4,
sec. 17).
4. Constitutional Law.
Rule of construction that provisions of constitution should be liberally construed should not be
overworked to result of statute becoming higher law.
5. Poisons.
Defendant who had been convicted under invalid narcotic act could not be held in custody on ground that
information which charged him with feloniously having possession of narcotic drugs but which did not
charge him with being a second offender, charged him with crime under prior narcotic act which made
possession a felony only for second offenses (Stats. 1933, c. 51; Stats. 1935, c. 179; Comp. Laws, sec.
5085; Const. art. 4, sec. 17).
Proceeding in the matter of the application of F. R. Medeiros for a writ of habeas corpus.
Petitioner ordered discharged.
Sidney W. Robinson, for Petitioner:
It is petitioner's contention that the title to ch. 51, Stats.
57 Nev. 301, 302 (1937) Ex Parte Medeiros
Stats. 1933, p. 46, does not set forth the subject sought to be legislated upon in such a manner
as to fairly give notice of the actual enactment contained therein. Art. IV, sec. 17,
Constitution of Nevada; Ex Parte Mantell, 47 Nev. 95, 216 P. 509; State v. Gibson, 30 Nev.
353, 96 P. 1057; State v. Hallock, 19 Nev. 384, 12 P. 832.
And, in addition thereto, that the title of said act does not of itself indicate the same to be
regulatory, and, as a consequence thereof, the title is defective in that it does not expressly
provide for a penalty for the violation of said act. Italia America Shipping Corporation v.
Nelson, 154 N. E. 198; People v. Clark, 134 N. E. 95.
Since the title of said act is defective and not in accordance with the provisions of the
constitution of the State of Nevada, the entire act is unconstitutional, and as such is not
subject to amendment. Cobbs v. Home Ins. Co., 91 So. 627; Keane v. Remy, 168 N. E. 10;
Heffelfinger v. City of Fort Wayne, 149 N. E. 555; Lynch v. Murphy, 24 S. W. 774; City of
Plattsmouth v. Murphy, 105 N. W. 293; Copeland v. Town of Sheridan, 51 N. E. 474.
The legislature itself recognized the defect of title of the 1933 act, and attempted to amend
the same by reference to its title alone, contrary to the terms and provisions of the constitution
of Nevada. This was sought to be done by ch. 179, Stats. 1935, without reenacting the entire
1933 statute, which should have been done, in compliance with the constitution. State v.
Freudenberger, 38 Nev. 488, 151 P. 944; State v. Hallock, supra.
The only felony we know in this state, arising from the possession of narcotic drugs, is the
felony designated by the 1933 and 1935 statutes. If those statutes are declared
unconstitutional, the defendant must be released, because there is no other felony he could be
charged with, not being a second offender; of course he couldn't be held under a statute
providing solely for a gross misdemeanor.
57 Nev. 301, 303 (1937) Ex Parte Medeiros
Ernest S. Brown, District Attorney, and Nash P. Morgan, Deputy District Attorney, for
Respondent:
The principles concerning the construction of sec. 15, art. IV of the Nevada constitution
are well laid down in the case of State v. Payne, 53 Nev. 193, 295 P. 770. It was obvious that
the section of the act under which Payne was held was not connected with the subject matter
in the title.
But respondent in the case at bar contends that section 2 of the act in question, making it
unlawful to possess narcotic drugs, is obviously connected with the subject matter expressed
in the title. The members of the legislature and the general public well know that it has been
the public policy of the State of Nevada for many years to prohibit the use and possession of
narcotic drugs by any person except professional men such as doctors, druggists, etc., who are
limited in their use and possession of narcotic drugs to professional use. No person could
have been deceived by the title as to the provisions of the Act. Ex Parte Ah Pah, 34 Nev. 283,
119 P. 770; State v. Mills, 52 Nev. 10, 279 P. 759; State v. Davis, 14 Nev. 439.
The provisions of sec. 15, art. IV of the Nevada constitution must be liberally construed in
favor of the constitutionality of an act. In re Calvo, 50 Nev. 125, 253 P. 671; Klein v.
Kinkead, 16 Nev. 194.
The original act of 1933, being a uniform narcotic act, also complies with the requirements of
sec. 17, art. IV of the Constitution of Nevada.
If the act of 1933 be declared void by this court, we submit the information states a cause
of action under sections 5085 and 5086 N. C. L.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in habeas corpus.
Petitioner, imprisoned by virtue of an information filed in the Second judicial district court
charging him with the unlawful possession of narcotic drugs, seeks his release from
custody, alleging as ground therefor that the law making such possession a crime is
unconstitutional.
57 Nev. 301, 304 (1937) Ex Parte Medeiros
with the unlawful possession of narcotic drugs, seeks his release from custody, alleging as
ground therefor that the law making such possession a crime is unconstitutional. He contends
that it violates section 17, article 4 of the state constitution, which reads: Each law enacted
by the legislature shall embrace but one subject, and matters properly connected therewith,
which subject shall be briefly expressed in the title; and no law shall be revised or amended
by reference to its title only; but, in such case, the act as revised, or section as amended, shall
be reenacted and published at length.
The title of the statute challenged reads: An Act defining and relating to narcotic drugs,
and to make uniform the law with reference thereto. Approved March 10, 1933. Stats. 1933,
chap. 51, p. 46.
The specific contention is that this title does not set forth the subject sought to be
legislated upon in such a manner as to fairly give notice of the actual enactment.
1, 2. The legislature of 1935 undertook to amend the title, and also to make a violation of
any provision of the act a felony, but respondent concedes that if the title is fatally defective
the act could not be made valid by amendment. We are in accord with this view, which is
sustained by the great weight of authority. If a law so conflicts with the constitution as to be
entirely void, there is nothing to amend. The said acts in this case are void.
It is found on reference to the body of the former act that the subject of the legislation is
the use of narcotic drugs. One of the means of regulation is prohibiting the unlawful
possession thereof by penalizing such possession. The title does not express the above
subject. It declares the act relates to narcotic drugs, and defines them. It does not express in
what manner it relates thereto or allude to that subject. There is nothing in the title to indicate
that regulatory legislation is intended. That the legislature of 1935 deemed it defective may
be inferred from the effort made to validate it by amendment.
57 Nev. 301, 305 (1937) Ex Parte Medeiros
it defective may be inferred from the effort made to validate it by amendment. Stats. 1935,
chap. 179, p. 384.
3. The case before us and the case of State v. Payne, 53 Nev. 193, 295 P. 770, present
analogous situations. The title declared invalid there reads: An Act to provide for the
inspection of hides, providing compensation therefor, and other matters relating thereto.
Stats. 1929, c. 76. The subject of the act was the sale of the meat of neat cattle, and it was
sought to regulate such sale by making an unlawful sale a felony. The act was held a violation
of said constitutional provision, because the subject was not expressed in the title.
Respondent contends that the cases are not analogous, because here the connection between
the provisions of the act making it unlawful to possess narcotic drugs, and the title relating to
the same, is obvious. This is so, he argues, because it is commonly known that it has been the
public policy of the State of Nevada for many years to prohibit the use and possession of
narcotic drugs by any person except professional men, such as doctors, druggists, etc., who
are limited in their possession of these drugs to professional use. On this account, he
contends, the members of the legislature and the public could not have been misled by the
title as to the subject matter of the enactment, while this could not be said of the title of the
act considered in State v. Payne, supra. This argument might have some force if the
constitutional provision involved provided that the title must impart notice of the subject. But
such is not the case. It provides that the subject shall be briefly expressed in its title. This is
mandatory. State v. Ah Sam, 15 Nev. 27, 28, 37 Am. Rep. 454. No presumption of
knowledge will satisfy this command.
4. We have not lost sight of the rule of construction constantly observed by this court, that
the provisions of the constitution should be liberally construed. Ex Parte Cerfoglio, 44 Nev.
343, 195 P. 96; Ex Parte Mantell and Raigen, 47 Nev. 95, 216 P. 509, but the doctrine of
liberal construction should not be overworked to the result of the statute becoming the
higher law.
57 Nev. 301, 306 (1937) Ex Parte Medeiros
of liberal construction should not be overworked to the result of the statute becoming the
higher law.
The second part of the title, and to make uniform the law with reference thereto, gives
no validity to it. It does not undertake to specify any particular law where the subject may be
found, and even if it did, such reference would not satisfy the requirement of the constitution.
Ex Parte Mantell and Raigen, supra.
Respondent contends that if the act of 1933 is void because of a defective title, petitioner
must not be discharged, for the reason that the information still charges him with a crime
under An Act to regulate the use, supply and possession of narcotic drugs in the State of
Nevada, and to provide penalties for the violation thereof. Stats. 1923, c. 33, approved
February 23, 1923. Section 2 of this act (being section 5085 N. C. L. 1929), provides: It shall
be unlawful for any person to have in his possession any narcotic drug. Any person violating
the provision of this section shall be guilty of a gross misdemeanor, and shall be punished
accordingly.
5. Mere possession of any narcotic drug is not made a felony by the above act, except in
the case of one convicted thereof, when, upon his trial or plea of guilty, a prior conviction in
any court for a violation of any statute or ordinance dealing with or regulating the use, supply,
or possession of any narcotic drug, shall be proved against him. The contention cannot be
maintained.
The information, which is set out in the sheriff's return to the writ, charges the petitioner
with a felony, in that at a certain time and place he did, wilfully, unlawfully and feloniously
have in his possession narcotic drugs, to wit. * * * He is not charged as a second offender
and thus brought within that provision of the act of 1923. Nor is this a case of one charged
with a crime being also charged with any offense necessarily included in the former. In such a
case the accused may be convicted of the offense so included on a prosecution of the former.
Section 11017 N. C. L. But these crimes must have the basis of valid statutes.
57 Nev. 301, 307 (1937) Ex Parte Medeiros
these crimes must have the basis of valid statutes. Here, however, there is no such statutory
basis for the felony charged. How then could the offense of a gross misdemeanor be
involved? How could a valid information be predicated on an invalid statute? That the
information is so predicated is shown by the use of the words felony, felonious, and
contrary to the statute in such case made and provided.
It is ordered that the petitioner be discharged from said information and from the custody
of the sheriff.
____________
57 Nev. 307, 307 (1937) Neill Et Ux. v. Mikulich
JAMES NEILL and MARY NEILL, His Wife, Respondents, v.
SEBASTIAN MIKULICH, Appellant.
No. 3158
February 3, 1937. 64 P. (2d) 612.
1. New Trial.
Notice of intention to move for new trial, served six days after verdict for plaintiffs and three days after
judgment, held too late under statute requiring motion for new trial to be filed within five days after
verdict, notwithstanding statute allowing parties to appeal on grounds such as those contended for without
moving for new trial (Stats. 1935, c. 90, secs. 4, 9).
2. Statutes.
Where possible, effect should be given to all parts of a statute, and the various portions so harmonized as
to enable them all to stand.
3. Appeal and Error.
Where notice of appeal recited that appeal was taken from judgment and all intermediate rulings, appeal
was not operative as against order denying motion for new trial entered after judgment.
4. Appeal and Error.
Where motion for new trial was filed too late, sufficiency of evidence to sustain the verdict held not
reviewable under statute, though bill of exceptions was settled (Stats. 1935, c. 90, secs. 4, 9, 12, 34).
5. Appeal and Error.
Reviewing court can consider insufficiency of evidence to sustain the verdict, decision, or findings, or
error in rulings upon instructions on evidence, only if aggrieved party makes motion for new trial and
appeals from adverse ruling on such motion {Stats.
57 Nev. 307, 308 (1937) Neill Et Ux. v. Mikulich
motion for new trial and appeals from adverse ruling on such motion (Stats. 1935, c. 90, secs. 4, 9, 12, 34).
6. Appeal and Error.
Appeal from the judgment without having moved for a new trial is allowable under statutes only where
motion for a new trial cannot be made (Stats. 1935, c. 90, secs. 4, 9, 12, 34).
7. Appeal and Error.
Where motion for new trial was filed too late, alleged error in rulings on instructions, being an error of
law occurring at the trial such as would support a motion for new trial, held not reviewable under statute,
though bill of exceptions was settled (Stats. 1935, c. 90, secs. 4, 9, 12, 34).
8. Appeal and Error.
Where motion for new trial was filed too late, alleged misconduct by opposing counsel held not
reviewable under statute, though bill of exceptions was settled, since refusal to cure such misconduct by
instructions was an error of law occurring at the trial such as would support motion for new trial (Stats.
1935, c. 90, secs. 4, 9, 12, 34).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by James Neill and Mary Neill, his wife, against Sebastian Mikulich. From a
judgment on a verdict in favor of plaintiffs and order denying a motion for a new trial,
defendant appeals. Affirmed.
Ham & Taylor, for Appellant:
Section 4 of chapter 90, Stats. 1935, provides, among other things: Said notice of
intention to move for a new trial shall be deemed to be a motion for a new trial on all the
grounds stated in the notice.
And the following language found in section 9 of the same act is significant indeed:
notice of intention to move for a new trial must have been filed and served by the
unsuccessful party in the action upon the prevailing party thereto before the time for an
appeal from the judgment has expired.
It was clearly the purpose of the legislature in the enactment of 1935 to provide for the
review of decisions of the trial court. The statute should, then, be construed as to give effect
to that purpose. 59 C. J. 961, 964.
57 Nev. 307, 309 (1937) Neill Et Ux. v. Mikulich
Notice of intention to move for a new trial having been filed and served upon the
prevailing party before the time for an appeal from the judgment expired, it brings us within
the provisions of the statute, especially in view of section 34 of the practice act.
It will be seen by section 9, supra, that it is necessary to move for a new trial only in the
event instructions are claimed to be erroneous. There is no requirement that a motion for a
new trial be made where it is claimed that the court refused to correctly instruct.
It will also be seen that misconduct of counsel is not one of those cases enumerated in the
statute which must be reviewed upon motion for a new trial, as a prerequisite to an appeal.
Harry H. Austin, for Respondents:
The trial court rightly denied the motion for a new trial, upon the ground and for the
reason that the notice of intention to move for a new trial was not filed within the time
required by law as provided in section 4 of chapter 90 of the laws of 1935. So this appeal is
from the judgment, and not from the order denying motion for new trial.
Because it was not presented to the trial court by motion for new trial, this court is not
called upon to review the evidence to ascertain whether it supports the verdict. Colquhoun v.
Wells, Fargo & Co., 21 Nev. 459, 33 P. 977; Burbank v. Rivers, 20 Nev. 87, 16 P. 430; State
v. Sadler, 21 Nev. 13, 23 P. 799; Finnegan v. Ulmer, 31 Nev. 523, 104 P. 17; Bassett v.
Monte Christo Gold & S. M. Co., 15 Nev. 293; Gill v. Goldfield Con. M. Co., 43 Nev. 1;
Giannotti v. De Bock, 47 Nev. 332, 221 P. 520; Leech v. Armstrong, 52 Nev. 125, 283 P.
396.
Erroneous instructions not having been urged as ground for a new trial, this court cannot
consider the point. Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65; Roberts v. Webster,
25 Nev. 94, 57 P. 18, 58 P. 411.
The claimed misconduct of counsel is not properly before the court, because it is the
general rule that errors occurring during the progress of the trial shall be made the basis
of a motion for new trial as a prerequisite to the consideration of such errors on appeal.
57 Nev. 307, 310 (1937) Neill Et Ux. v. Mikulich
before the court, because it is the general rule that errors occurring during the progress of the
trial shall be made the basis of a motion for new trial as a prerequisite to the consideration of
such errors on appeal. 3 C. J. pp. 960, 979, secs. 849, 886.
This appeal, being from the judgment only, shows no error, and therefore the judgment of
the trial court should be affirmed.
OPINION
By the Court, Coleman, C. J.:
This action was instituted to recover damages alleged to have been caused by the
negligence of the defendant. The jury returned a verdict in favor of the plaintiffs, on February
26, 1936. On the 29th day of that month judgment was entered upon the verdict, in favor of
plaintiffs. On March 3, 1936, defendant served and filed his notice of intention to move for a
new trial, which, pursuant to section 4, chapter 90, Stats. 1935, is deemed a motion for a new
trial. The court denied the motion for a new trial, upon the ground that the notice of intention
was not served and filed in apt time.
Before considering the points made by appellant, we will dispose of two contentions made
by respondent, namely: (1) That the ruling of the court in denying the motion for a new trial
was correct; and (2) That the appeal is from the judgment only.
Respondent contends that the order denying the motion for a new trial was right, for the
reason given by the court. Section 4, chapter 90, Stats. 1935, amending section 8879 N. C. L.,
provides that a party intending to move for a new trial in a case, in which a verdict of a jury
has been rendered, must do so within five days after the verdict of the jury. Counsel for
appellant contends that section 9, chapter 90, Stats. 1935, amending section 8884 N. C. L.,
controls, and that appellant was not limited to five days within which to file and serve his
notice of intention to move for a new trial.
57 Nev. 307, 311 (1937) Neill Et Ux. v. Mikulich
notice of intention to move for a new trial. The last-named section 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, or upon alleged errors in ruling upon the evidence, or
upon instructions claimed to be erroneous, a notice of intention to move for a new trial must
have been filed and served by the unsuccessful party in the action upon the prevailing party
thereto before the time for an appeal from the judgment has expired. In all other cases the
party aggrieved may appeal with or without first moving for a new trial.
1. We cannot agree with the contention of appellant. In our opinion section 4 was intended
to fix the time within which a notice of intention to move for a new trial must be served and
filed. On the other hand, it is clear that it was intended by section 9 to designate the
circumstances in which a party must serve and file his notice of intention to move for a new
trial before appealing, and those in which an aggrieved party may appeal without first moving
for a new trial.
2. Both of the sections in question, insofar as they are material in the instant matter, have
been the law of this state for many years (see sections 5323 and 5328 Rev. Laws 1912), and
the view we have expressed has been uniformly accepted. Furthermore, it is a fundamental
rule of statutory construction that, where possible, effect should be given to all parts of the
statute, and the various portions so harmonized as to enable them all to stand. Garson v.
Steamboat Canal Co., 43 Nev. 298, 185 P. 801, 1119; 59 C. J. 995.
Accepting the rule just stated as our guide, there can be no other conclusion than the one
stated.
The notice of appeal, in part, reads: That this appeal is taken from the said Judgment and
the whole thereof and all intermediate rulings, proceedings and orders which affects the rights
of the defendant and hereafter to be specified in the record and Bill of Exceptions on appeal.
57 Nev. 307, 312 (1937) Neill Et Ux. v. Mikulich
3. The appeal is from the judgment and all intermediate rulings. From the statement above
made, it appears that the judgment was entered upon the verdict on February 29, 1936, and
that the notice of intention to move for a new trial was served and filed on March 3, 1936;
hence it is seen that no appeal was taken from the order denying the motion for a new trial.
4. In this situation, as we have often pointed out, we cannot consider the evidence to
determine its sufficiency to sustain the verdict and judgment. Sustaining this view are the
following authorities: Burbank v. Rivers, 20 Nev. 81, 16 P. 430; State v. Sadler, 21 Nev. 13,
23 P. 799; Finnegan v. Ulmer, 31 Nev. 523, 104 P. 17; Gill v. Goldfield Consol. M. Co., 43
Nev. 1, 176 P. 784, 184 P. 309; Giannotti v. De Bock, 47 Nev. 332, 221 P. 520; Leech v.
Armstrong, 52 Nev. 125, 283 P. 396, 287 P. 174.
But it is insisted that pursuant to section 34, chapter 90, Stats. 1935 (amending section
9390 N. C. L.), we may consider all of the errors assigned by appellant. That section reads:
Bills of exceptions provided for by this act may be prepared, served, and filed, as herein
provided, and all errors relied upon which may have occurred at the trial, or which may be
alleged against the findings, or exceptions to the findings as made, and all errors based upon
any ground for a new trial, may be included therein, and all such errors may be reviewed by
the supreme court on appeal from the judgment or order denying the motion for a new trial.
There is in the record a transcript of the testimony in the case, which, together with the
instructions given by the court and those refused, and other matter, is settled as a bill of
exceptions, by stipulation of the parties.
As we heretofore stated, the various sections in the chapter mentioned should be so
harmonized as to give force and effect to every portion thereof, so far as possible. Hence we
think it necessary that we consider in this connection section 12 of the act in question
{amending section SSS7 N. C. L.), which reads: "Upon an appeal from a judgment, the
court may review the decision, and any intermediate ruling, proceeding, order or decision
which involves the merits or necessarily affects the judgment, or which substantially
affects the rights of a party, which comes within the specifications of error and record on
appeal or is embraced in the bill of exceptions.
57 Nev. 307, 313 (1937) Neill Et Ux. v. Mikulich
this connection section 12 of the act in question (amending section 8887 N. C. L.), which
reads: Upon an appeal from a judgment, the court may review the decision, and any
intermediate ruling, proceeding, order or decision which involves the merits or necessarily
affects the judgment, or which substantially affects the rights of a party, which comes within
the specifications of error and record on appeal or is embraced in the bill of exceptions. The
provisions of this section do not authorize the court to review any decision or order from
which an appeal might have been taken.
5. From a reading of the last sentence of this section, it is clear that the only way this court
can consider the insufficiency of the evidence to justify the verdict, the rulings upon
instructions, and other rulings enumerated in section 9 of the act, is for the aggrieved party to
make his motion for a new trial and to appeal from an adverse ruling. The last sentence of
section 12 clearly contemplates such procedure.
6. That portion of section 34 which provides that all such errors may be reviewed by the
supreme court on appeal from the judgment or order denying the motion for a new trial must
be construed to mean that an aggrieved person can appeal from the judgment only in cases in
which a motion for a new trial may not be made, for if we hold otherwise the result would be
to say that it is not necessary to file a motion for a new trial in any case, and the section itself
contemplates the necessity of making such a motion in an appropriate case.
7. Error committed in ruling upon objections to instructions given, or to exceptions to the
refusal to give a requested instruction, is an error in law occurring at the trial [Roberts v.
Webster, 25 Nev. 94, 57 P.180, 58 P.411; Stoneburner v. Richfield Oil Co., 118 Cal. App.
449, 5 P. (2d) 436]; hence we cannot consider the errors alleged to have been committed by
the trial court in refusing to give requested instructions, since such errors are the basis for a
motion for a new trial [Stats.
57 Nev. 307, 314 (1937) Neill Et Ux. v. Mikulich
are the basis for a motion for a new trial [Stats. 1935, c. 90, p. 195], there being no appeal
from the order denying such motion.
8. Counsel assigns as error misconduct of counsel for the plaintiff, which was not cured by
an appropriate instruction. For the reason just stated, we cannot consider the instructions
given and refused, to determine the point.
There being no contention that any error appears upon the face of the judgment roll, it
follows from what we have said that the judgment and order appealed from should be
affirmed.
It is so ordered.
On Petition for Rehearing
March 17, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 314, 314 (1937) In Re Reno
In Re Application for Revocation of Certificate or license of ELLWOOD RENO,
Sometimes Referred to and Known as E. F. RENO, to Practice Medicine.
No. 3163
February 5, 1937. 61 P. (2d) 1036.
1. Physicians and Surgeons.
Physician's willful disobedience of statute requiring physicians to report prostitute afflicted with
contagious or infectious veneral disease held willful disobedience of the law under statutory definition of
unprofessional conduct, authorizing revocation of physician's certificate, as against contention statute
referred exclusively to disobedience of act creating state board of health (Comp. Laws, secs. 5235-5276,
10212; Comp. Laws 1929, sec. 4101, as amended by Stats. 1931, c. 206).
2. Physicians and Surgeons.
Violation of statute requiring physicians to report prostitute afflicted with contagious or infectious
venereal disease did not necessarily involve willfulness or moral turpitude, under statutory definition of
unprofessional conduct authorizing revocation of certificate, and such questions were required to be
determined from circumstances of violation {Comp.
57 Nev. 314, 315 (1937) In Re Reno
determined from circumstances of violation (Comp. Laws, sec. 10212; Comp. Laws 1929, sec. 4101, as
amended by Stats. 1931, c. 206).
3. Physicians and Surgeons.
On appeal in proceeding for revocation of physician's certificate for criminal offense, verdict supporting
conviction from which physician took no appeal was conclusive as to whether conviction was supported by
evidence (Comp. Laws 1929, sec. 4101, as amended by Stats. 1931, c. 206).
4. Physicians and Surgeons.
Law does not permit board of medical examiners to revoke arbitrarily certificate to practice medicine or
surgery, but order affirming board's decision would not be reversed if there was substantial evidence to
support it, unless it was clear that a wrong decision had been reached (Comp. Laws 1929, sec. 4101, as
amended by Stats. 1931, c. 206).
5. Physicians and Surgeons.
In proceeding for revocation of physician's certificate for violation of statute requiring physicians to
report prostitute afflicted with contagious or infectious venereal disease, evidence as to whether violation
was willful or involved moral turpitude, adduced before board of medical examiners, held sufficient to
preclude reversal of order affirming decision of board (Comp. Laws, sec. 10212; Comp. Laws 1929, sec.
4101, as amended by Stats. 1931, c. 206; Stats. 1935, c. 90, sec. 28).
6. Physicians and Surgeons.
Power to revoke physician's certificate permanently includes power to revoke temporarily or to suspend
(Comp. Laws 1929, sec. 4101, as amended by Stats. 1931, c. 206).
7. Physicians and Surgeons.
In proceeding for revocation of physician's certificate for violation of statute requiring physicians to
report prostitute afflicted with contagious or infectious venereal disease, suspension for one year, ending on
filing of opinion of supreme court, held proper, under evidence which left court in doubt as to whether
violation was willful or involved moral turpitude (Comp. Laws, sec. 10212; Comp. Laws 1929, sec. 4101,
as amended by Stats. 1931, c. 206; Stats. 1935, c. 90, sec. 28).
8. Physicians and Surgeons.
In proceeding for revocation of physician's certificate, denial of right to question members of board of
medical examiners to determine whether they were prejudiced against physician held not denial of fair
hearing (Comp. Laws 1929, sec. 4101, as amended by Stats. 1931, c. 206).
9. Physicians and Surgeons.
In hearing before board of medical examiners in proceeding for revocation of physician's certificate, guilt
must be clearly established, and intendments are in favor of accused physician (Comp. Laws 1929, sec.
4101, as amended by Stats. 1931, c. 206).
57 Nev. 314, 316 (1937) In Re Reno
10. Physicians and Surgeons.
In proceeding for revocation of physician's certificate, district court held entitled to review findings of
board of medical examiners (Comp. Laws 1929, sec. 4101, as amended by Stats. 1931, c. 206).
11. Physicians and Surgeons.
Physician who appealed from decision of board of medical examiners in proceeding for revocation of
physician's certificate held not entitled to complain of review of findings of board of district court (Comp.
Laws 1929, sec. 4101, as amended by Stats. 1931, c. 206).
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
In the matter of the application of the State for the revocation of the certificate or license to
practice medicine of Ellwood Reno, sometimes referred to and known as E. F. Reno. From an
order affirming a decision of the State Board of Medical Examiners revoking the physician's
certificate, the physician appeals. Modified, and, as modified, affirmed.
William S. Boyle, for Appellant:
According to the complaint and the manner in which it is worded, one would naturally
believe that violation of the law meant violation of any law of the state, whether it be a traffic
law, game law, or other law. But section 4101 N. C. L. does not mean that; it means as it is
writtenwillful disobedience of the law, or the rules and regulations of the state board of
health, the power to make which is given to said board under sections 5235 to 5276 N. C. L.
It does not mean the violation of any law outside of those laws therein mentioned. You
cannot give a statute an absurd interpretationthe construction must be reasonable. Nevada
Cornell Silver Mines v. Hankins et al., 51 Nev. 420, 279 P. 27; State ex rel. Pittson v.
Beemer, 51 Nev. 192, 272 P. 656; Latterner v. Latterner, 51 Nev. 285, 274 P. 194; Bornstein
v. District Grand Lodge No. 4, 2 Cal. App. 624, 84 P. 271.
57 Nev. 314, 317 (1937) In Re Reno
If the statute was interpreted to mean the willful disobedience of the law of this state, then
the section following, reading: Conviction of any offense involving moral turpitude, would
be superfluous and unnecessary, as the preceding section would cover all violation of
Nevada's laws. The latter section plainly means the conviction of a violation of a law of the
State of Nevada involving moral turpitude.
Dr. Reno was not convicted of an offense involving moral turpitude as alleged in the
complaint upon which he was tried before the state board of medical examiners. He was in
reality found guilty of failing to report a venereal disease to the proper officer, having made
his report to the city health officer instead of the chief of police. The statutes do not read that
it shall be reported to the chief of police, but to the police authorities, and the city board of
health has police authority. City Ordinances of Reno, sec. 29. The most that can be said of it
is that it was an offense of misjudgment.
Where in section 4101 N. C. L., or any part of the state board of medical examiners act,
does it appear that the record of conviction shall be conclusive evidence?
Statutes providing for the revocation of physician's licenses are highly penal and must be
strictly construed in the physician's favor. State ex rel. Spriggs v. Robinson, 161 S. W. 1169;
State ex rel. Johnson v. Clark, 232 S. W. 1031.
Dr. Reno was not permitted to examine the board of medical examiners as to their frame
of mind. All during the proceedings Dr. Howell and Dr. Brown, board members hearing the
case, contended that they were not trying the case; that the justice's court found him guilty of
a crime involving moral turpitude.
Section 4101 N. C. L. is void and unconstitutional, in that it attempts to invest the state
board of medical examiners with powers of a court to hear and determine a matter judicially,
and then attempts to cloak the district court with appellate jurisdiction.
57 Nev. 314, 318 (1937) In Re Reno
a matter judicially, and then attempts to cloak the district court with appellate jurisdiction.
Art. VI, sec. 1, Constitution of Nevada; Grisso v. Board of Medical Examiners (Cal.), 242 P.
912.
Edward F. Lunsford and Myron R. Adams, for Respondent:
It has been repeatedly held that the state, in the exercise of its police power, in the interests
of health, good government, general welfare, and morals of the people, may prescribe the
qualifications of persons desiring to practice medicine, or may create a board whose duty it
shall be to hear and argue any complaint made against any person holding a physician's
license, and revoke such license for any cause provided for in the statute. Meffert v. State
Board, etc., 72 P. 237, affirmed in 195 U. S. 625, 49 L. Ed. 350; Reetz v. Michigan, 188 U. S.
305, 47 L. Ed. 563; Hawker v. New York, 170 U. S. 189, 42 L. Ed. 1002; Ex Parte
Seccombe, 19 Howard 9, 15 L. Ed. 565; State Medical Board v. McCrary (Ark), 130 S. W.
544; Hughes v. State Medical Examiners, 162 Ga. 246, 134 S. E. 42, affirmed in 278 U. S.
562, 73 L. Ed. 507.
The justice's court's record of conviction is res adjudicata, and neither the board nor the
district court could go behind the verdict and judgment, the time for appealing having expired
at the time of the hearing of the matter before the board. 34 C. J. 968; Jay v. State, 15 Ala.
App. 255, 73 So. 137; In re Cottesfeld, 91 Atl. 494; Matter of Patrick, 129 N. Y. S. 1006;
Underwood v. Commonwealth, 105 S. W. 151.
All that the board and the lower court could consider on count two of the complaint,
conviction of an offense involving moral turpitude, was the record of the conviction itself,
and decide whether an offense of the nature of which the defendant had been convicted was
one involving moral turpitude. Ex Parte Taylor (Cal.), 40 P. 33.
57 Nev. 314, 319 (1937) In Re Reno
Count one of the complaint charged the appellant, as a doctor, with failing to report the
name of a common prostitute whom he knew to be infected with syphilis, and in our opinion
it is a law of that character, the willful disobedience of which would unfit a doctor to continue
in the practice of his profession and is an offense of which the state board would have
cognizance under section 4101 N. C. L.
Physicians are at least presumed to know and to be more conversant with the ravages of
the dread disease of syphilis upon that strata of society which frequents houses of
prostitution, and their failure to report such a case, so that the prostitute may be compelled to
discontinue her practice, certainly involves dishonesty, is contrary to justice, and involves
turpitude. In re Hopkins (Wash.), 103 P. 805; State Board v. Harrison (Wash.), 159 P. 769.
The proceedings before the state board of medical examiners were neither a case in equity
nor a case at law, and hence did not violate the provisions of our constitution. Ormsby County
v. Kearney, 37 Nev. 314, 142 P. 803; 48 C. J. 1097; Meffert v. Packer, 1 L. R. A. (N. S.) 811;
Suckow v. Alderson, 182 Cal. 247, 187 P. 967.
While we submit that nothing in the transcript disclosed any prejudice on the part of any
member of the board toward Dr. Reno, nevertheless, it is our contention that under the
authorities counsel could not examine members of the board the same as a voir dire
examination of jurors. Brinkley v. Hassig, 83 Fed. (2d) 351; 39 A. L. R. 1475 (n).
OPINION
By the Court, Taber, J.:
This is an appeal from an order of the Second judicial district court, Washoe County,
affirming a decision of the state board of medical examiners revoking appellant's
certificate to practice medicine and surgery in the State of nevada.
57 Nev. 314, 320 (1937) In Re Reno
the state board of medical examiners revoking appellant's certificate to practice medicine and
surgery in the State of nevada.
In August 1935, the chief of police of the city of Reno filed a complaint in the justice's
court of Reno township charging appellant with a violation of that portion of section 10212
N. C. L. which provides that any physician, or other person, knowing that any common
prostitute is afflicted with any infectious or contagious venereal disease, who fails to
immediately notify the police authorities of the town, city or place, where such prostitute is at
the time of the discovery of the existence of such disease, is guilty of a misdemeanor. At the
trial before a jury of twelve, appellant was found guilty, the verdict recommending leniency.
Appellant (defendant in the justice's court) was sentenced to pay a fine of $250. He paid the
fine and did not appeal.
In September 1935, the district attorney of Washoe County filed a complaint against
appellant with the state board of medical examiners, praying that appellant's certificate to
practice medicine and surgery be revoked. This complaint charged that appellant had been
guilty of unprofessional conduct in two particulars: (1) Willful disobedience of the law; and
(2) conviction of an offense involving moral turpitude. Section 4101 N. C. L., as amended,
Statutes of Nevada 1931, c. 206, pp. 346, 347, provides in part that the board of medical
examiners may refuse a certificate to any applicant guilty of unprofessional conduct, and
may revoke any certificate for like cause. The words unprofessional conduct,' as used in this
act, are declared to mean: * * * Willful disobedience of the law, or of the rules and
regulations of the state board of health; conviction of any offense involving moral turpitude.
The district attorney's complaint charged that appellant's willful disobedience of the law
consisted in his violation of said provision of section 10212 N. C. L., and further charged that
the offense of which appellant was convicted in the justice's court, as aforesaid, was one
involving moral turpitude.
57 Nev. 314, 321 (1937) In Re Reno
turpitude. After a hearing on said charges the board of medical examiners on the 3d day of
February 1936, revoked appellant's certificate to practice medicine and surgery in the State of
Nevada. Appellant petitioned the district court to review said decision, and that court, after
doing so, affirmed the decision of the board. Said proceedings in the district court were had
pursuant to the following provision of section 4101 N. C. L., as amended, Statutes of Nevada
1931, c. 206, p. 348: In all cases where a certificate is revoked the decision of the board
resulting in such revocation, together with a transcript of the findings, shall be filed with the
clerk of the district court of the county in which the certificate to practice has been recorded.
Any person whose certificate has been revoked may, within sixty days after filing of said
certified copy of said decision and findings, petition said district court to review said decision
or to reverse or modify, and upon such review the burden shall be upon the petitioner to show
wherein such decision is erroneous or unlawful. It is from said district court order affirming
the decision of said board that this appeal has been taken.
Appellant contends that the action of the board of examiners was and is wholly void for
two reasons: First, that the word law as used in the expression willful disobedience of the
law (section 4101 N. C. L., as amended) is limited in its meaning to laws included in the act
to create a state board of health, sections 5235-5276 N. C. L. Second, that the offense of
which he was convicted in the justice's court was not one involving moral turpitude.
1. With reference to the first contention, we are not called upon to decide whether the
board of examiners would have the power to revoke a physician's certificate upon the ground
that he had willfully violated, let us say, some provision of the state fish and game law. We
do hold, however, that willful disobedience of the statute requiring immediate report by a
physician of a prostitute afflicted with a contagious or infectious venereal disease comes
within the meaning of "willful disobedience of the law," as those words are used in said
section 4101 N. C. L., as amended, and that the word "law" in the above-quoted clause
does not refer exclusively to the said act creating a state board of health.
57 Nev. 314, 322 (1937) In Re Reno
disease comes within the meaning of willful disobedience of the law, as those words are
used in said section 4101 N. C. L., as amended, and that the word law in the above-quoted
clause does not refer exclusively to the said act creating a state board of health. Notifying the
police authorities of a prostitute afflicted with a contagious or infectious venereal disease is a
matter directly connected with the professional conduct of a physician.
Whether the misdemeanor of which appellant was convicted in the justice's court was an
offense involving moral turpitude depends, in our opinion, upon the circumstances under
which it was committed. It is easily conceivable that a physician of the most ethical type,
knowing a prostitute to be afflicted with such a disease, and being about to report the case
immediately to the police authorities, might have his attention distracted, before actually
doing so, by reason of some emergency, and then forget the matter for several days. Under
such circumstances the fact that he unintentionally overlooked reporting the case to the police
authorities would not be a defense in a prosecution under the provision of said section 10212
N. C. L., because the mere failure to notify the police authorities immediately constitutes the
offense, regardless of whether such failure be willful, intentional, or otherwise. No moral
turpitude, however, would be involved in such a case.
2. It seems to us that whether the conduct complained of by the district attorney before the
board of examiners constituted willful disobedience of the law depends to a large extent upon
the same considerations as the question whether the offense of which appellant was convicted
in the justice's court was an offense involving moral turpitude. The offense defined in section
10212 N. C. L. does not necessarily involve moral turpitude, nor is disobedience to that law
necessarily willful. The important questions, therefore, are whether appellant's disobedience
to the aforesaid provision of section 10212 N. C. L. was willful and whether the offense of
which he was convicted in the justice's court was committed under such circumstances as
to involve moral turpitude.
3. We cannot go behind the verdict of the jury for the purpose of ascertaining whether
appellant's conviction in the justice's court was supported by the evidence.
57 Nev. 314, 323 (1937) In Re Reno
section 10212 N. C. L. was willful and whether the offense of which he was convicted in the
justice's court was committed under such circumstances as to involve moral turpitude.
3. We cannot go behind the verdict of the jury for the purpose of ascertaining whether
appellant's conviction in the justice's court was supported by the evidence. Appellant had the
right to appeal to the district court and there have the charge against him tried de novo.
Having paid his fine, however, and not having appealed, the district court on review was, and
this court on appeal is, foreclosed from any inquiry as to whether the evidence at the trial in
the justice's court was sufficient to support the verdict of the jury.
4. The law does not permit the board of examiners to arbitrarily revoke a certificate to
practice medicine or surgery. On the other hand, this court will not reverse the order appealed
from, if there was substantial evidence to support it, unless it be clear that a wrong decision
was reached. It thus becomes proper to set forth in substance some of the testimony given at
the hearing before the state board of medical examiners.
Carl N. Broberg, police officer located at the restricted district, testified that on August 10,
1935, B
___
N
___
, the prostitute who figures in this case and who will henceforth be
designated B. N., handed him a certificate reading as follows: I have examined (stating her
name) this date and find no evidence of venereal disease. Date: August 10, 1935. E. F. Reno,
M. D.
Mrs. Vera L. Young, acting director of the University of Nevada hygienic laboratory,
testified that on Tuesday, August 6, 1935, the laboratory received a blood specimen of B. N.
from appellant, and that a Wassermann test (Kolmer's technique) was made on the following
Thursday, August 8, and the report completed the next day, Friday, August 9. Basing her
testimony on a laboratory custom of many years, she stated further that the report was mailed
to Dr. Reno before noon of the last-mentioned day.
57 Nev. 314, 324 (1937) In Re Reno
noon of the last-mentioned day. The result of the test was a 4-plus (very strongly positive),
indicating syphilis, and, of course, the clinical picture and the physician would complete the
picture. The test was repeated with the same result. A copy of the report was delivered to the
chief of police some time after August 6.
Lou W. Gammell, chief of police, testified that B. N. worked in the restricted district
during August 1935, but that he had had no report from Dr. Reno with respect to her being
afflicted with any venereal disease and that none of the police officers had informed him that
such a report had been made. He further stated that since he had been chief of police, reports
of prostitutes afflicted with venereal disease had been received by him both before and after
the B. N. case.
Dr. Byron A. Caples, physician and surgeon, testified that B. N. first came to his office on
August 17, 1935, having been referred to him by the chief of police. He made a test at that
time, the office examination disclosing that she was suffering from gonorrhea. After being
advised of the result of the laboratory Wassermann test hereinbefore referred to, he started in
checking her again. As a result of his examination, he gave it as his opinion that B. N. was
afflicted with a case of syphilis of several years' standing. Dr. Caples further testified that on
said August 17, after being advised by B. N. that she had been under the care of appellant, he
called the latter on the telephone, and he stated to me he had received a 4-plus Wassermann
report from the state laboratory on August 9, and that since that time he had given her four
injections of salvarsan, and had refused to give her a card to go to work. Dr. Caples'
testimony showed that he is a specialist in general urinary diseases and urology, and that in
his twelve years of practice in Reno he had treated about thirty prostitutes for syphilis or
gonorrhea. He reported every such case to the police authorities after Mr. Gammell became
chief of police. Prior to that time he did not report any of them because he could not get any
cooperation, because it was "not customary" and because the only cooperation he had
been able to obtain from the officials was that the girl was given a floaterthis latter
procedure being one in which Dr.
57 Nev. 314, 325 (1937) In Re Reno
because it was not customary and because the only cooperation he had been able to obtain
from the officials was that the girl was given a floaterthis latter procedure being one in
which Dr. Caples does not believe because the result is to send infected girls to other towns to
carry on. Dr. Caples testified further that he had no knowledge of any doctor in Reno, except
in the instant case, having reported a prostitute as not having a venereal disease when in fact
she did have such a disease. With reference to the telephone conversation with appellant on
August 17, 1935, Dr. Caples testified that within ten minutes after that conversation he made
notes of it and in giving his testimony before the board of examiners he made use of those
notes. Without the notes he says he would not have been able to remember that appellant told
him that he (appellant) received the laboratory Wassermann test report on August 9.
Appellant testified that he had been practicing his profession in Reno for about six years;
that B. N. first came to his office about the third day of August 1935, to get a certificate so
she could go to work in the restricted district; that she was drunk; that he ran a slide on her
and found no definite evidence of active gonorrhea; that he did not at that time get a blood
specimen for two reasons: First, because the girl got to screaming on account of the pain; and,
second, because he understood that a Wassermann test taken during an alcoholic spree is not
entirely reliable; that he gave her a card which would enable her to carry on her business in
the restricted district, and told her to come back in two days after she had sobered up; that it
was several days later when she returned and he then reexamined her and took a blood
specimen which he sent to the state laboratory from which the 4-plus Wassermann report
came back to him later; that he did not tell Dr. Caples that said report was received by him on
August 9, but that the report was dated August 9; that he could not, eight days after receiving
such a report, remember the date on which it was in fact received; that he was looking at the
report at the time he was talking to Dr.
57 Nev. 314, 326 (1937) In Re Reno
at the report at the time he was talking to Dr. Caples over the telephone; that his aunt, who
was his office secretary, opened these reports and filed them with the patient's card; that he
did not see that report on Friday the 9th; that he did not believe there was a practicing
physician in Reno, except those who got their mail in a post-office box, who would receive a
laboratory report on Friday afternoon which had been mailed Friday morning; that those
reports usually came in on Saturdays, but that he did not see that report on Saturday; that the
report was filed with B. N.'s card and, while it might have been negligence on his part, he did
not see that report on Saturday; that on that day (Saturday, August 10) he examined her again
and gave her another card so she could carry on her business in the restricted district; that on
the following Monday, August 12, the report was called to his attention when he was going
through the cards and he then called B. N. on the phone and told her to come to this office,
which she did; that he then told her about the laboratory report and informed her that he could
not give her any more cards, and that she should quit work and go down there and tell them
you have got something wrong with you. * * * You have a card there that has six days to run
yet because I have given you a card on Saturday, but now this is knowledge brought to me on
Monday, and I can't give you any more cards. The best thing for you to do is to go down and
tell them. Appellant further testified that B. N. was not around Reno at the time he was
giving his testimony. He further testified that on Monday, August 12, he went to the office of
Dr. Adams, then acting as city health officer, and informed him about the diseased prostitute
and filed out a written report which he left with Dr. Adams. This report was filled out on a
board of health card containing a printed list of reportable diseases, among which neither
gonorrhea nor syphilis was included. Wassermann * * * was filled in in typewriting, as were
also the age of the prostitute, to wit, 16, and the date, August 12, 1935. The name of the
patient was not filled in on the card because, as appellant testified, he did not think it was
the thing to do.
57 Nev. 314, 327 (1937) In Re Reno
the patient was not filled in on the card because, as appellant testified, he did not think it was
the thing to do. Appellant testified that he told Dr. Adams the case was one in the restricted
district. Dr. Adams, according to appellant, stated that he had been city health officer for
thirteen years, but that no such case had ever been reported to him. Appellant introduced in
evidence a blank form of city health officer's weekly report to the state board of health, which
contained a list of reportable diseases, not including gonorrhea or syphilis. He testified that he
did not issue any more cards to B. N. after he knew she was afflicted with syphilis. When
asked why he gave her a clear card on August 10, when he had the test pending in the
laboratory, appellant replied: That test is not absolutely positive, but there was no clinical
evidence of syphilitic lesions and on the case I took the clinical evidence and gave the card. A
Wassermann test is only in support of it, and it must be supported with the clinical evidence
and the clinical history. Appellant testified further that when he issued B. N. a clear card on
Saturday, August 10, he felt morally certain that she did not have a venereal disease; that
there was no clinical evidence of syphilis, and on that basis he issued her the card, but that
when he saw the laboratory report he immediately proceeded to do everything he could that
he thought was right to do. It was early in the morning of Saturday the 10th, according to
appellant, that B. N. came to his office and he testified that at that time he had not seen the
laboratory report. When asked why he took a blood specimen if there was no clinical
evidence of venereal disease, appellant replied that he presumed it was the proper thing to do
in issuing the clear cards. It says, must be free from venereal disease,' and it is routine
matter to run that, and I ran it. Appellant also testified that the medical profession depends a
great deal upon the blood reaction, that they regard it as positive, and that it is the general
consensus of opinion that a strong positive Wassermann is regarded as very conclusive. When
asked whether he could not have called the state hygienic laboratory to get a report on
the case before issuing the clear card to the prostitute on August 10, appellant replied,
"Oh, perhaps I could, but I just did not do it, and that was all."
57 Nev. 314, 328 (1937) In Re Reno
asked whether he could not have called the state hygienic laboratory to get a report on the
case before issuing the clear card to the prostitute on August 10, appellant replied, Oh,
perhaps I could, but I just did not do it, and that was all. He said that the B. N. case was the
first case of that kind he ever had. When appellant learned that B. N. was afflicted with
syphilis, he felt according to his testimony, that there must be something to do about it, and
that as he had not handled that type of cases he thought the place to find out was from the city
health officer.
Appellant introduced in evidence an ordinance of the city of Reno prescribing the duties of
the health officer. Amongst other things, this ordinance provided that the health officer shall
see that all laws and ordinances relating to the health and sanitary condition of the city of
Reno and the regulations and orders of the board of health are strictly enforced and observed.
He shall have the power of a police officer in the enforcement of all sanitary laws,
ordinances and regulations of said Board of Health and of said City.
Dr. A. F. Adams testified that he had been city health officer of Reno in August 1935, and
for many years prior to that time; that appellant had brought in a card to him and reported
syphilis on it; that no other doctor had ever reported such a case to him; that the card on
which the report was made was one provided by the state board of health; that at the time
appellant made this report he told witness the name of the girl, and that he believes B. N. was
the one.
Seth W. Longabaugh, called as a witness by appellant, testified in part that he was foreman
of the jury which brought in the verdict in the justice court trial hereinbefore referred to; that
the verdict was a compromise; that the first ballot was seven for conviction and five for
acquittal; that some of the jurors seemed to think, from the testimony that was introduced,
that Dr. Reno was not the only guilty doctor in Reno, and, therefore, it was more persecution
than prosecution; that the police chief reported there was no record of anybody ever
reporting a case; that the jurors were in fear that Dr.
57 Nev. 314, 329 (1937) In Re Reno
police chief reported there was no record of anybody ever reporting a case; that the jurors
were in fear that Dr. Reno would be deprived of his license; that the jurors wanted leniency
shown by the court in assessing the final fine; that the jurors, in finding appellant guilty,
were not influenced so much by the fact that he had reported to the health officer instead of to
the chief of police as they were by the fact, as they concluded, that the report was not made
in due time, not made when it should have been.
We have already seen that in a case of this kind the district court, on review of a decision
of the board of medical examiners, may affirm, reverse or modify such decision. In the first
part of said section 4101 N. C. L., as amended, it is provided that the board may revoke a
physician's certificate for unprofessional conduct. Later in the same section it is provided that
if the board, after hearing charges of unprofessional conduct, is satisfied that the person
charged is guilty, his certificate shall be revoked. Section 28 of the 1935 new trials and
appeals act, Statutes of Nevada 1935, c. 90, pp. 202, 203, provides in part that Upon an
appeal from a judgment or order, the appellate court may reverse, affirm, or modify the
judgment or order appealed from, in the respect mentioned, in the notice of appeal, and as to
any or all of the parties; and may set aside, or affirm, or modify, any or all of the proceedings
subsequent to or dependent upon such judgment or order, and may, if necessary or proper,
order a new trial, or that further action or proceedings be had in the lower court without a new
trial, and may remand the case for such further action or proceedings only.
5, 7. Because there is substantial evidence to support the findings of the board of medical
examiners and the order of the district court affirming the decision of said board, we will not
reverse the order appealed from. We are disposed, however, to modify the order, for, while
not approving appellant's issuance of a clear card to the prostitute on August 10, 1935 (an act
which is not charged against him in the district attorney's complaint), we entertain some
doubt as to whether appellant's failure to immediately report her to the police authorities,
though a misdemeanor, was an intentional violation of section 10212 N. C. L., and as to
whether said failure to make immediate report, in view of all the circumstances, involved
moral turpitude.
57 Nev. 314, 330 (1937) In Re Reno
not charged against him in the district attorney's complaint), we entertain some doubt as to
whether appellant's failure to immediately report her to the police authorities, though a
misdemeanor, was an intentional violation of section 10212 N. C. L., and as to whether said
failure to make immediate report, in view of all the circumstances, involved moral turpitude.
If we could feel clear that the conduct complained of was willful and intentional, we would
affirm the order appealed from in all particulars. In the case of State Board of Dental
Examiners v. Savelle, 90 Colo. 177, 8 P. (2d) 693, 82 A. L. R. 1176, it was held that the
power to revoke permanently includes the power to revoke temporarily, i. e., to suspend.
Under all the circumstances of the instant case, we are of the opinion that the revocation of
appellant's certificate should have been temporary rather than permanent. Appellant's
certificate was revoked on February 3, 1936, and we assume that he has not been practicing
medicine or surgery since that time. We think the demands of justice have already been met
in this case, and it is therefore adjudged that said revocation of appellant's certificate to
practice medicine and surgery shall terminate on the filing of this opinion, and that appellant
may resume such practice from and after this 5th day of February 1937. The order appealed
from is modified accordingly, and affirmed in all other respects.
8. Appellant contends that he did not have a fair hearing before the board of medical
examiners for the reason that he was not allowed to question the members of the board for the
purpose of learning whether there was any prejudice in their minds against appellant. There is
no merit in this contention. Brinkley v. Hassig (C. C. A.), 83 F. (2d) 351, 357; Winning v.
Board of Dental Examiners, 114 Cal. App. 658, 300 P. 866, 868; Dyment v. Board of
Medical Examiners, 93 Cal. App. 65, 268 P. 1073.
9. Appellant was entitled to a fair hearing before the board of medical examiners, and, in
our opinion, the hearing was a fair one.
57 Nev. 314, 331 (1937) In Re Reno
the board of medical examiners, and, in our opinion, the hearing was a fair one. In one
respect, at least, the board was more than fair to appellant, namely, in permitting, over
objection, testimony concerning the deliberations of the jury in the justice's court trial. It is
true that on such a hearing before the board of medical examiners guilt must be clearly
established and the intendments are in favor of the accused physician. Schireson v. Walsh,
354 Ill. 40, 187 N. E. 921, 923. And as has been stated, the board is not authorized to
arbitrarily revoke the certificate of a physician and surgeon. We have studied the record most
carefully, with the result that we find nothing arbitrary or capricious in the board's decision.
The evidence clearly shows that syphilis is an infectious and contagious disease within the
meaning of said section 10212 N. C. L.
10, 11. Appellant has questioned the authority of the district court to review the findings of
the board of medical examiners. In our opinion, this contention is without merit. Besides, it
was appellant himself who invoked the jurisdiction of the district court.
We deem it proper to commend the police authorities and state board of medical
examiners for the efforts they are making to enforce such laws as the one which has figured in
this case.
The respective parties will pay their own costs.
____________
57 Nev. 332, 332 (1937) Ronnow v. City of Las Vegas
C. C. RONNOW, Respondent, v. THE CITY OF LAS VEGAS, NEVADA, THE BOARD
OF CITY COMMISSIONERS OF SAID CITY OF LAS VEGAS, NEVADA, L. L.
ARNETT, as Mayor of Said City, and JAMES H. DOWN, DAVID FARNSWORTH, H.
P. MARBLE and M. E. WARD, as Members of Said Board, Appellants.
No. 3153
February 5, 1937. 65 P. (2d) 133.
1. Municipal Corporations.
Municipal corporations have no powers other than those which are delegated to them by charter or law
creating them.
2. Municipal Corporations.
Although strict construction should be applied to grant of powers to municipalities especially where
power results in public burdens, power which is clearly implied should not be impaired by strict
construction.
3. Municipal Corporations.
Statutory definition of term public utility is confined to particular classes of public utilities dealt with in
public service commission act of 1919, and is not applicable to term as used in statute authorizing city to
acquire, construct, or establish public utilities (Comp. Laws, secs. 6100-6146; Stats. 1911, c. 132, subc. 1,
sec. 4, subc. 2, sec. 31, cls. 4, 34, 36-38, as amended by Stats. 1935, c. 36, secs. 1, 5).
Municipal gas plant, public park, city-owned bathing pool, municipally-owned street
railway, municipal water and light plants, sewer system, fuel yards, auditoriums, cemeteries,
and golf links, are public utilities; a public utility being any utility which is employed in
rendition of a quasi-public service.
4. Municipal Corporations.
Statute conferring power on city to purchase, receive, hold and acquire, manage and enjoy, operate and
maintain, municipal waterworks and power plants, or other public utilities, held to confer power of
furnishing electrical energy to inhabitants of city and their homes and places of business (Stats. 1911, c.
132, subc. 1, sec. 4, subc. 2, sec. 31, cls. 4, 34, 36-38, as amended by Stats. 1935, c. 36, secs. 1, 5).
5. Municipal Corporations.
Words establish and procuring, which were used in clause of statute providing manner of exercise of
grant to city of power to purchase, receive, hold and acquire, manage and enjoy, operate and maintain
public utilities, held properly considered in construction of clause containing grant of power {Stats.
57 Nev. 332, 333 (1937) Ronnow v. City of Las Vegas
(Stats. 1911, c. 132, subc. 1, sec. 4, subc. 2, sec. 31, cl. 5, as amended by Stats. 1935, c. 36, secs. 1, 5).
Word establish is legal equivalent of purchase, erect, build or furnish, create or institute,
and authority to establish a thing is authority to take proper measures to produce,
accomplish, or bring into existence the thing; meaning to bring into being; to form; to found;
to found and regulate; to institute; to locate; to make, to model, to organize, to originate, to
prepare, to set up; while procuring is to obtain by any means.
6. Municipal Corporations.
Statute authorizing city to purchase, receive, hold and acquire, manage and enjoy, operate and maintain
municipal power plant, and referring to establishment and procuring of plant in clause relating to manner of
exercise of power, held to confer on city power to construct municipal power plant as well as to acquire
plant in other ways (Stats. 1911, c. 132, subc. 1, sec. 4, subc. 2, sec. 31, cl. 5, as amended by Stats. 1935, c.
36, secs. 1, 5).
Word acquire has broad meaning including both purchase and construction; acquisition
being the act of getting or obtaining something which may be already in existence, or may be
brought into existence through means employed to acquire it.
7. Appeal and Error.
On appeal from decree overruling demurrer to first cause of action in suit for injunction, plaintiff held
entitled to have court decide whether there was error in sustaining demurrers to second and third causes of
action, since orders sustaining demurrers and dismissing causes of action were intermediate orders and
not final judgments, and hence were not appealable, and since statute contemplates appeal by aggrieved
person only (Stats. 1935, c. 90, secs. 8, 10, 12; Comp. Laws, secs. 6085, 8874).
8. Municipal Corporations.
Issuance of municipal bonds for acquisition of electric distribution system held not enjoinable because of
inconsistency between original proclamation of city council expressly stating that bonds were to be general
obligation redeemable from funds created from sale of power, and ordinance providing that bonds were to
be general obligation of city payable from general fund if proceeds were insufficient, since provisions of
proclamation and ordinance were substantially equivalent (Stats. 1911, c. 132, subc. 2, sec. 31, cls. 4, 34,
36-38, as amended by Stats. 1935, c. 36, sec. 5).
9. Municipal Corporations.
Statute requiring municipal bonds to be redeemed in equal annual installments held not rendered
inapplicable to municipal bonds because of provisions of proclaimation and ordinance, pursuant to
which bonds were issued, that bonds were payable out of fund created from proceeds
of sale of power through distribution system to be acquired with proceeds of bonds,
and that if proceeds were insufficient deficiency should be paid from general fund,
notwithstanding provision of statute that act should not apply to public utility bonds
payable wholly from earnings of utilities, since municipal bonds in question were not
payable wholly from earnings {Comp.
57 Nev. 332, 334 (1937) Ronnow v. City of Las Vegas
pursuant to which bonds were issued, that bonds were payable out of fund created from proceeds of sale of
power through distribution system to be acquired with proceeds of bonds, and that if proceeds were
insufficient deficiency should be paid from general fund, notwithstanding provision of statute that act
should not apply to public utility bonds payable wholly from earnings of utilities, since municipal bonds in
question were not payable wholly from earnings (Comp. Laws, secs. 6085, 6090; Stats. 1911, c. 132, subc.
1, sec. 4, subc. 2, sec. 31, cls. 4, 34, 36-38, as amended by Stats. 1935, c. 36, secs. 1, 5).
10. Statutes.
Provision of statute outlining manner in which city should exercise power to acquire or establish
municipal power plants or public utility held not invalid as violative of constitutional provision that
legislature shall provide for organization of cities and towns by general laws and restrict power of taxation,
assessment, borrowing money, contracting debts, and loaning credit, except for procuring supplies of water
(Stats. 1911, c. 132, subc. 2, sec. 31, cl. 5, as amended by Stats. 1935, c. 36, sec. 5; Const. art. 8, sec. 8,
amended in 1924).
11. Statutes.
In determination of whether one statute supersedes another, court must bear in mind that chief concern is
to learn intention of legislature.
12. Statutes.
Rules for statutory construction are merely aids in ascertainment of legislative intent.
13. Municipal Corporations.
Amendment of existing municipal charter supersedes, within corporate limits and as to matters of purely
municipal concern, only such provisions of general law as are inconsistent with provisions of new
amendment.
14. Statutes.
Repeals by implication are not favored, and intent of legislature to have local law control general law
must be clearly evinced by appropriate language.
15. Statutes.
Where two statutes are flatly repugnant, later statute repeals or supplants earlier statute.
16. Statutes.
General law will not be held to be repealed or modified by implication by subsequent special law unless
subsequent special law is so clearly in conflict with existing general law that both cannot stand.
17. Statutes.
Where express terms of repeal are not used, presumption is always against intention to repeal earlier
statute unless there is such inconsistency or repugnancy between statutes as to preclude presumption or
unless later statute revises whole subject matter of former.
57 Nev. 332, 335 (1937) Ronnow v. City of Las Vegas
18. Municipal CorporationsStatutes.
Where statute or city charter provides new, full, and complete scheme for acquisition of municipal
improvements, prior general public improvements act is superseded, being inconsistent.
19. Statutes.
Where one statute deals with subject in general and comprehensive terms, and another statute deals with
another part of the same subject in a more minute and definite way, special statute will prevail over general
one to extent of any necessary repugnancy.
20. Statutes.
Provisions of general and special act must be harmonized when reasonably possible.
21. Statutes.
In enacting statute, legislature will be presumed to have acted with full knowledge of statutes already
existing and relating to same subject.
22. Municipal Corporations.
Municipal bond issue for acquisition of electric distribution system, under statute amending city charter
expressly authorizing city to borrow money on credit of city and issue bonds therefor in such amounts and
forms and on such conditions as board of commissioners should determine, held not invalid because of
provisions for payment of bonds in unequal installments, since statute requiring that all municipal bonds
shall be redeemed in equal annual installments was repealed by statutory amendment of city charter; the
requirement that bonds be paid in equal installments being a condition within charter provisions (Stats.
1911, c. 132, subc. 2, sec. 31, cl. 5, as amended by Stats. 1935, c. 36, sec. 5; Comp. Laws, sec. 6085).
23. Municipal Corporations.
City charter provision authorizing issuance of bonds for acquisition of municipal power plants or other
public utilities, after issuance of proclamation, holding of special election if petitioned for, and enactment
of ordinance conforming to proclamation, held to repeal prior general act requiring submission of proposal
for bond issue to electors who were not real property owners, or spouses of real property owners, and
electors who were owners of real property and were spouses of real property owners (Stats. 1911, c. 132,
subc. 2, sec. 31, cl. 5, as amended by Stats. 1935, c. 36, sec. 5; Stats. 1933, c. 95).
24. Municipal Corporations.
Citizen of state and resident taxpayer of city held to have legal capacity to maintain suit to enjoin
issuance of municipal bonds for construction of municipal power distribution system (Stats. 1911, c. 132,
subc. 1, sec. 4, subc. 2, sec. 31, cls. 4, 34, 36-38, as amended by Stats. 1935, c. 36, sec. 1, 5).
57 Nev. 332, 336 (1937) Ronnow v. City of Las Vegas
25. Appeal and Error.
On city's appeal from decree overruling demurrer to one of three causes of action wherein plaintiff
contended that sustaining demurrers to other causes of action was error, city should have briefed and
argued question arising out of demurrers to causes of action which had been sustained, notwithstanding that
city contended that questions were not reviewable on appeal.
Appeal from Eighth Judicial District Court, Clark County; J. M. Lockhart, Judge
Presiding.
Suit by C. C. Ronnow against the City of Las Vegas, Nevada, and others. From four
adverse orders and a decree for the plaintiff, the defendants appeal. Decree reversed, and
orders set aside.
Ryland G. Taylor, City Attorney, A. W. Ham, Deputy City Attorney, and Ham & Taylor,
for Appellants:
The plaintiff has not shown a special injury to himself not common to all persons in
general. Consequently, he is not entitled to sue. If there be an injury to the public generally,
the action must be brought in the name of the state. 6 McQuillin Mun. Corp. (2d ed.) 695;
Schefflien v. Craig, 170 N. Y. S. 603; Nixon v. School District No. 92, 32 Kan. 510, 4 P.
1017; Blanding v. City of Las Vegas, 52 Nev. 52, 280 P. 644.
It is hard to see how the legislature could have used more expressive or language broader
in scope to grant the city full and complete power to establish light plants for all purposes,
than that in chapter 36 of the 1935 session laws. We find in section 4 of chapter I that the city
may acquire, purchase, operate, and maintain, etc., municipal power plants, electrical or
otherwise or other public utility; and in subsection 5 of section 5 of chapter II we find that
the said board shall have power to acquire or establish municipal power plants or other
public utility, only in the manner herein provided. In determining the legislative intent, this
language is tremendously important.
Public utility is defined as a public organization which regularly supplies the public
with some commodity or service, as electricity, gas, water, transportation, telephone or
telegraph service."
57 Nev. 332, 337 (1937) Ronnow v. City of Las Vegas
which regularly supplies the public with some commodity or service, as electricity, gas,
water, transportation, telephone or telegraph service. Webster's New International
Dictionary. See, also, 51 C. J. 5; 66 C. J. 379; 50 C. J. 845; The New Century Dictionary, pp.
1423, 2118. A consideration of the doctrine of ejusdem generis will be helpful at this point.
59 C. J. 981, 982.
It would be well here to consider the meaning of words granting authority to the city, as
defined in the following authorities: Purchased: 2 Blackstone Comm. 241; 41 C. J. 94, n.
63; receive: Century Dictionary; Sulman v. State, 209 P. 193; Young v. Alexander, 86 So.
461; 52 C. J. 1191, nn. 9 to 42; hold: 29 C. J. 758; acquire: Clark v. City of Los Angeles,
116 P. 723; enjoy: 20 C. J. 1263; operate: 46 C. J. 1110; maintain: 38 C. J. 334, sec. 1.
It would be an impeachment of reason and common sense to say that the legislature, by its
amendments of 1935, intended to give the city power to erect a plant to light its streets and
public buildings only, for the city had that authority by virtue of subsections 37 and 38 of
section 31 of the original act.
No appeal was taken by the respondent from the order dismissing the second and third
alleged causes of action. Obviously, then, there is nothing before the court other than so much
of the decree as has been appealed from, which is paragraph four only. Section 8375 N. C. L.
merely states what questions may be reviewed upon appeal; but it does not undertake to
supply the mechanics with which an appeal may be taken. So far as procedural matter is
concerned, we must look exclusively to the practice act of 1935. The judgment upon the
second and third causes was not an intermediate ruling, proceeding, order or decision which
involves the merits or necessarily affects the judgment. It became as final as it was judicially
possible to make it, and, consequently were appealable orders and were, therefore, expressly
excepted from section 12 of the practice act.
57 Nev. 332, 338 (1937) Ronnow v. City of Las Vegas
practice act. Furthermore, it is well settled in this state that the appellate court will not
consider errors committed against the respondent. Maher v. Swift, 14 Nev. 324; Moresi v.
Swift, 15 Nev. 215; Davis v. Coughlin, 22 Nev. 447, 41 P. 768; In re Parrott's Estate, 45 Nev.
318, 203 P. 258.
Under the authority of the charter and the proclamation, the board was empowered to
make the bonds a general lien against all of the property of the city.
The bonds contemplated to be issued under the authority of the ordinance in question are
public utility bonds and payable wholly from the revenues to be derived from the sale of
power. Hence, the provisions of section 6090 N. C. L. apply, and not those of section 6085 N.
C. L.
Where a special act of the legislature deals with the subject matter of a proposition and
provides the procedure to be followed, such special law is exclusive and cannot be controlled
by any general law. National Bank v. Boise City, 100 P. 93; Owens v. Doxey, 55 Nev. 186,
28 P. (2d) 122.
Chas. Lee Horsey, Leo A. McNamee, and Frank McNamee, Jr., for Respondent:
The plaintiff, in his complaint, alleged a good and sufficient cause of action in favor of
himself and other taxpayers of the city of Las Vegas situated similarly to the plaintiff. 6
McQuillin Mun. Corp. (2d ed.) 658, 659; 2 Dillon Mun. Corp. (3d ed.) 922; Crampton v.
Zabriski et al. (U. S.), 25 L. Ed. 1070.
A municipal corporation possesses no powers or faculties not conferred upon it, either
expressly or by fair implication, by the law which created it, or by other laws, constitutional
or statutory, applicable to it. Dillon on Municipal Corporations (5th ed.), sec. 237; McQuillin,
vol. 1, pp. 909-911, 921; Consumer's Coal Company v. Lincoln (Neb.), 189 N. W. 643.
In the grant of power in the original charter act, the city is authorized to provide for
lighting the streets and other public places specifically enumerated.
57 Nev. 332, 339 (1937) Ronnow v. City of Las Vegas
other public places specifically enumerated. The effect of such specific enumeration is clearly
to exclude the furnishing of power for their private uses to the inhabitants of the city, under
the well-settled rule of statutory construction peculiarly applicable to the powers of a
municipal corporation, expressio unius est exclusio alterius. 14a C. J. 269; Ex Parte
Arascada, 44 Nev. 30, 189 P. 619.
To give a meaning to the word acquire, added by the amendatory act, that would deem
same to include construct would be destructive of the clear limitations of the act so limiting
the grant of power in that respect, and would render section 4 of chapter I of the original
charter act, as amended by section 1 of said Act of 1935, directly and hopelessly in conflict
with subdivisions 34, 36, 37 and 38 of section 31 of chapter II of said original charter act, as
reenacted in section 5 of the amendatory act of 1935. Specific provisions rather than general
provisions are controlling. McQuillin Munic. Corp., vol. 1, p. 921, n. 56; City of Chicago et
al. v. Gunning System, 114 Ill. App. 377 (affirmed 214 Ill. 628, 73 N. E. 1035); 59 C. J. 981.
The words municipal power plants, electrical, as used in section 1 of the amendatory act
of 1935 must be given a meaning that will harmonize with, and not transcend, the only
purpose or objective stated in the original charter act and in said amendatory act, which
involves the use of power to provide for lighting the streets or other public places of the city.
The legislature, by employing in said section 1 of the act of 1935 the words power
plants, rather than light works, merely described the contemplated plants or works more
accurately.
It is certain that the word establish cannot be deemed to include the word construct.
Words and Phrases (1st series), vol. 3 p. 2470; Village of Brockport v. Green, 79 N. Y. S.
416; 21 C. J. 899.
The decision or order sustaining the demurrers to the second and third causes of action not
being an appealable order {sec.
57 Nev. 332, 340 (1937) Ronnow v. City of Las Vegas
appealable order (sec. 8885 N. C. L., as amended), and the so-called judgment whereby those
causes of action were dismissed is not a final judgment within the meaning of the term as
used in subdivision 1 of sec. 10, Stats. 1935, p. 197, then this court is expressly authorized by
sec. 12 of Stats. 1935, p. 198, to review and consider the correctness or otherwise of the
ruling of the lower court sustaining said demurrers, and in fairness and justice should do so.
It is clear that the ordinance does not conform to the proclamation in the vital matter of
manner of the redemption of the bonds, and is, therefore, in violation of the charter
provisions.
If the proposed bonds are general obligation bonds, then the proposed bond issue does not
conform to section 6085 N. C. L. which requires that all bonds of a municipality shall be
redeemed in equal annual installments.
And if the bonds are not wholly payable from the earnings of the utility, sec. 6085 N. C. L.
would apply and govern the bond issue.
The proceedings leading up to the proposed bond issue do not conform to the provisions of
ch. 95, Stats. 1933, p. 116.
OPINION
By the Court, Taber, J.:
This is an appeal from a decree of the Eighth judicial district court, Clark County,
enjoining appellants (defendants in the court below) from issuing bonds of the city of Las
Vegas for the purpose of acquiring or constructing a municipal power distribution system for
said city, together with incidental equipment necessary and convenient for the distribution of
electrical energy to the inhabitants of said city of Las Vegas. Four orders of said district court,
adverse to defendants, are also appealed from.
On October 4, 1935, the board of city commissioners issued a proclamation proposing to
bond the city for the acquisition or construction of a municipal power distribution system
for furnishing electrical energy to the inhabitants of said city.
57 Nev. 332, 341 (1937) Ronnow v. City of Las Vegas
issued a proclamation proposing to bond the city for the acquisition or construction of a
municipal power distribution system for furnishing electrical energy to the inhabitants of said
city. Said proclamation was published for three successive weeks, as required by the statute,
and on the 4th day of November 1935, the board enacted an ordinance providing for the bond
issue set forth in said proclamation.
On December 5 1935, respondent (plaintiff in the court below), a citizen of this state, and
a resident and taxpayer of said city, commenced an action in said district court praying that
the defendants be enjoined from issuing the contemplated bonds. The first cause of action
alleged that the defendants were without power to acquire or construct a power plant or
lighting system for the purpose of furnishing electrical energy to the individual inhabitants or
power users of said city. The amended second cause of action alleged that defendants had
failed to comply with the requirements of the statute as to the essential proceedings necessary
to be taken before issuing such bonds. The amended third cause of action alleged that
defendants had failed to submit the proposal for said bond issue to the electors of said city, as
required by the provisions of chapter 95 of the 1933 Statutes of Nevada. The district court, on
general demurrer, held that the first cause of action stated facts sufficient to constitute a cause
of action, but that neither the second nor third cause of action stated sufficient facts to
constitute a cause of action. Defendants having elected to stand on their demurrer to the first
cause of action, and plaintiff having failed to further amend his second and third causes of
action, the court dismissed said second and third causes, and granted plaintiff a perpetual
injunction against the issuance of the proposed bonds.
1. We shall first consider whether defendants had the power to issue and sell bonds for the
purposes set forth in the aforesaid proclamation. In Tucker v. Virginia City, 4 Nev. 20, at
page 26, the court says: That municipal corporations have no powers but those which are
delegated to them by the charter or law creating them; that the powers expressly given
and the necessary means of employing those powers constitute the limits of their
authority.
57 Nev. 332, 342 (1937) Ronnow v. City of Las Vegas
municipal corporations have no powers but those which are delegated to them by the charter
or law creating them; that the powers expressly given and the necessary means of employing
those powers constitute the limits of their authority. It is conceded that beyond this they can
have no active existence, and can do no act which the law can recognize as valid and
obligatory upon them. And in State ex rel. Rosenstock v. Swift, 11 Nev. 128, at page 140,
the court says that a municipal corporation, in this state, is but the creature of the legislature,
and derives all its powers, rights and franchises from legislative enactment or statutory
implication.
2. McQuillin, in his work on Municipal Corporations, vol. 1, sec. 367, p. 910, uses this
language: Wherefore the usual formula, invariably supported by judicial utterances and
judgments, in substance is: That the only powers a municipal corporation possesses and can
exercise are: (1) Those granted in express terms; (2) those necessarily or fairly implied in, or
incident to, the powers expressly granted; and (3) those essential to the declared objects and
purposes of the municipality, not merely convenient, but indispensable. In the same work,
section 356, the author says: While a strict construction should be applied to the grant of
powers to municipalities and especially those which result in public burdens, yet if the power
is clearly implied, it should not be impaired by a strict construction. A strict construction
must yet be a sensible construction and be based upon the entire context. Or, as it is
sometimes put, the power given by a charter is a matter of reasonable construction.
In Chapman v. Hood River, 100 Or. 43, 196 P. 467, 470, the court said: It is likewise a
rule of construction that grants of power are not to be so construed as to defeat the intent of
the Legislature or to withhold what is given either expressly or by necessary and fair
implication.
Dillon Municipal Corporations (5th ed.) vol. 1, sec.
57 Nev. 332, 343 (1937) Ronnow v. City of Las Vegas
237: It is a general and undisputed proposition of 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 is 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.
Respondent does not contend that the legislature cannot confer upon a city the power to
acquire a municipal light and power plant and furnish lights and power to the inhabitants for
their private uses; nor that, if the legislature had conferred such powers upon the city of Las
Vegas, it could not enter into competition with Southern Nevada Power Company, which
now is and for many years last past has been lawfully engaged in the business of furnishing
light, heat, and power to the inhabitants of said city. What we have contended, and do
contend, say counsel, is, that the City has no power or authority to construct such a plant,
and to take such action as the published proclamation and the ordinance passed pursuant
thereto clearly show to be contemplated, and has no right to issue and sell its bonds for the
purposes stated in said proclamation and ordinance, and not having such power or authority,
conferred by the statute or statues, the City is not authorized, and has no right, to undertake
any such ultra vires and unauthorized action, and, therefore, has no power or authority to do
so in competition with the existing power company, or otherwise, or at all.
57 Nev. 332, 344 (1937) Ronnow v. City of Las Vegas
Inasmuch as the city of Las Vegas derives its powers solely from the legislative enactment
incorporating it (chapter 132, Statutes of Nevada 1911, and amendments thereto), it becomes
necessary to examine the pertinent provisions of that act and of the amendments which have
been made to it; for, as has been said by the supreme court of the United States, No matter
how much authority there may be in the legislature to grant a particular power, if the grant has
not been made the city cannot act under it. City of Ottawa v. Carey, 108 U. S. 110, 2 S. Ct.
361, 365, 27 L. Ed. 669, at page 674.
Section 4 of subchapter 1 of c. 132 of said act of 1911, as amended (Statutes of Nevada
1935, c. 36, p. 41), provides in part that the city may purchase, receive, hold and acquire,
manage and enjoy, operate and maintain, municipal water works and municipal power plants,
electrical or otherwise, or other public utility.
Clause 5 of section 31 of subc. 2 of said act of 1911, as amended (Statutes of Nevada
1935, c. 36, pp. 43-46), which deals with the power of the city to borrow money and limits
the amount of outstanding bonds, warrants, certificates, script, etc., provides in part that:
Nothing herein contained shall be construed to restrict the powers of said city as to taxation,
assessment, borrowing money, contracting debts or loaning its credit for procuring supplies of
water, municipal water works, municipal power plants, electrical or otherwise, or other public
utility. * * * The board shall have the power to acquire or establish municipal water works,
municipal power plants, or any public utility, only in the manner herein provided. The board
shall issue a proclamation which shall set forth briefly the supply of water, municipal water
works, the municipal power plant, or other public utility proposed to be acquired or
established.
Clauses 34, 36, 37, and 38 of said amended section 31, which, except for inconsequential
changes in clause 36, remain as enacted in 1911, provide that the city shall have power"34.
57 Nev. 332, 345 (1937) Ronnow v. City of Las Vegas
34. To provide for the lighting, sprinkling and cleaning of the streets, alleys, avenues,
sidewalks, crosswalks, parks and public grounds. * * *
36. To contract with, authorize or grant to any person, company or association a franchise
to construct, maintain, and operate gas, electric or other lighting works in the city, and to give
such persons, company or association the privilege of furnishing light for the public
buildings, streets, sidewalks and alleys of said city.
37. To provide for the lighting of streets, laying down of gas pipes and erecting of lamp
posts; to regulate the use of gas, natural gas and electric and other lights and electric power,
and to regulate the inspection thereof.
38. To construct and maintain waterworks, gasworks, electric-light works, street railways,
or bathhouses, or to authorize the construction and maintenance of the same by others, or to
purchase or lease any or all of said works from any person or corporation.
Appellants suggest that even without the 1935 amendments it might well be held, in view
of the language of said clause 38, that the city would have power to acquire a power plant and
furnish the inhabitants, as well as the city's public places with electrical energy. Were it to be
conceded that under said clause 38 the city would have power to furnish electric lights to the
inhabitants and private places of business in Las Vegas, the rules of strict construction make
it doubtful, to say the least, whether the city would have power, by virtue of that clause, also
to furnish them with electrical energy for motors and heating. Appellants, however, rely
chiefly upon amended section 4 of subc. 1 and amended clause 5 of section 31, subc. 2 (Stats.
of Nevada 1935, c. 36, pp. 41, 43). It thus becomes necessary to examine into the meaning of
some of the language used in the 1935 amendments, particularly the phrases public utility
and municipal power plants, and the word acquire.
3. The definition of the term public utility given in section 6106 N. C. L. is confined to
the particular classes of public utilities dealt with in the public service commission act of
March 2S, 1919, as amended {sections 6100-6146 N. C. L.).
57 Nev. 332, 346 (1937) Ronnow v. City of Las Vegas
in section 6106 N. C. L. is confined to the particular classes of public utilities dealt with in
the public service commission act of March 28, 1919, as amended (sections 6100-6146 N. C.
L.). Said definition is not applicable to the term public utility as used in the statutes
heretofore quoted in this opinion. Payne v. City of Racine, 217 Wis. 550, 259 N. W. 437;
Kitchens v. City of Paragould, 191 Ark. 940, 88 S. W. (2d) 843.
Municipal gas plants (Pierce v. City of Hamilton, 40 Ohio App. 338, 178 N. E. 432);
public parks (Schmoldt v. City of Oklahoma City, 144 Okl. 208, 291 P. 119; city-owned
bathing pools (City of Belton v. Ellis [Tex. Civ. App.], 254 S. W. 1023); municipally-owned
street railways (Platt v. City and County of San Francisco, 158 Cal. 74, 110 P. 304, at pages
306, 307); municipal water and light plants (Cary v. Blodgett, 10 Cal. App. 463, 102 P. 668);
municipal sewer systems, fuel yards, auditoriums, cemeteries, and even golf links (Capen v.
Portland, 112 Or. 14, 228 P. 105, 35 A. L. R. 589 and note), have been held to be public
utilities.
In Thompson-Houston Electric Co. v. City of Newton (C. C.), 42 F. 723, a statute
conferring power to establish and maintain electric light plants, or to authorize the erection of
the same and providing that the city should have power to issue bonds for the purpose of
establishing electric plants, was held by the court to authorize the city to erect an electric
plant for furnishing lights for use in the houses and stores of the inhabitants as well as for
lighting the streets and public places of the city.
In Platt v. City and County of San Francisco, supra, a taxpayer sought to enjoin the city
from proceeding to issue and sell Geary Street Railway Bonds. The charter provided that:
The city and county shall have power to acquire, construct or complete any public utility
from funds derived from taxes levied for that purpose. In its opinion the court said: The
only question, then, is as to the meaning of the term public utility' as used in this section and
in the other sections of the same article.
57 Nev. 332, 347 (1937) Ronnow v. City of Las Vegas
of the same article. The term is certainly broad enough to include a street railroad; is one that
would ordinarily be understood as including any such utility as is employed in the rendition
of quasi public service, such as waterworks, gasworks, a telephone system, street railroads,
etc.
Cary v. Blodgett, 10 Cal. App. 463, 102 P. 668, 669, was an action brought against the city
of Lodi, a municipality of the sixth class, to enjoin it from issuing and selling bonds for a
combined plant for supplying the city and its inhabitants with water and electric light. The
specific grant of power provided that: The board of trustees of said city shall have power:
* * * (3) To contract for supplying the city or town with water for municipal purposes, or to
acquire, construct, repair and manage pumps, aqueducts, reservoirs or other works necessary
or proper for supplying water for the use of such city or the inhabitants or for irrigating
purposes therein * * * (13) To acquire, own, construct, maintain and operate street railways,
telephone and telegraph lines, gas and other works for light and heat; public libraries,
museums, gymnasiums, parks and baths.' The court held that these provisions authorized the
city to construct and maintain a plant to supply its inhabitants with water and light for their
private use, as well as for public purposes.
In Christensen v. City of Fremont, 45 Neb. 160, 63 N. W. 364, 365, the court held that a
grant of power authorizing the establishment and maintenance of a system of electric lights
for such city conferred upon the city the power to supply light to private buildings.
In the case of Jacksonville Electric Light Co. v. Jacksonville, 36 Fla. 229, 18 So. 677, 682,
30 L. R. A. 540, 51 Am. St. Rep. 24, the court held that power to provide for lighting the
city by gas or other illuminating material, or in any other manner, authorized the city to
supply its inhabitants with electric light for use in their private residences and houses as well
as to light the streets and public places of the city.
57 Nev. 332, 348 (1937) Ronnow v. City of Las Vegas
In Smith v. Mayor of Nashville, 88 Tenn. 464, 12 S. W. 924, 925, 7 L. R. A. 469, the
power to provide the city with water by water-works was held to authorize the city to
furnish its inhabitants with water.
4. In the light of the foregoing, we are clearly of opinion that the legislature, in conferring
upon the city of Las Vegas the power to purchase, receive, hold and acquire, manage and
enjoy, operate and maintain, municipal water works and municipal power plants, electrical or
otherwise, or other public utility, intended to confer and did confer, amongst other powers,
that of furnishing electrical energy to the inhabitants of the city in their homes and places of
business. This conclusion is supported by the views expressed by Doctor Pond in his work on
Public Utilities.
But we are now confronted with another question. The proclamation published by the
board of city commissioners set forth that it was proposed to acquire or construct a municipal
power distribution system; but the grant of power in amended section 4 of subc. 1 of the act
incorporating the town of Las Vegas does not use the word construct. We are thus called
upon to decide whether the words may purchase, receive, hold and acquire, manage and
enjoy, operate and maintain empower the city of Las vegas to construct a municipal power
plant.
In Clark v. City of Los Angeles, 160 Cal. 30, 116 P. 722, 729, the supreme court of
California was called upon to construe a charter provision authorizing the city of Los Angeles
to supply the municipality and its inhabitants with electricity. The court, on rehearing, said:
It is not correct to say that the expression, acquiring and constructing a certain revenue
producing municipal improvement,' particularly described, is necessarily a statement of dual
purpose. The word acquire' has a broad meaning, including both purchase and construction.
The expression does not indicate the purpose of acquiring two systems, one by purchase, the
other by construction. In connection with the context, it means the acquisition of but one
system, including the purchase of such property and the erection of such structures as
may be necessary to accomplish that purpose."
57 Nev. 332, 349 (1937) Ronnow v. City of Las Vegas
it means the acquisition of but one system, including the purchase of such property and the
erection of such structures as may be necessary to accomplish that purpose.
The construction placed upon the word acquire by the supreme court of California in
Clark v. City of Los Angeles, supra, was quoted with approval by the supreme court of Idaho
in King v. Independent School District, 46 Idaho, 800, 272 P. 507.
In Hartigan v. City of Los Angeles, 170 Cal. 313, 149 P. 590, 591, the proposition on the
ballot, in an election to authorize the city of Los Angeles to issue bonds for a municipal
improvement, stated that $1,250,000 was to be used for the construction or acquisition of
electric generating works. In the course of its opinion the court said that the city could
accomplish the acquisition' of an improvement by buying an entire plant, by constructing an
entirely new one, or by completing one which it had partially constructed.
In Verner v. Muller, 89 S. C. 117, 71 S. E. 654, 655, the supreme court of South Carolina
had under consideration An act to provide for free bridges across the Congaree and Broad
rivers in this state, between Columbia township in Richland county and the county of
Lexington, the acquisition thereof by said Columbia township, and the issue of bonds, * * *
for the purpose of such acquisition. In its opinion the court said: Acquisition' is the act of
getting or obtaining something, which may be already to existence, or may be brought into
existence through the means employed to acquire it. A bridge may be acquired by
construction as well as by purchase.
5. The word establish is not used in the grant of power contained in amended section 4
of subc. 1 of said act of 1911. It does occur, however, several times in said amended clause 5
of section 31, subc. 2, of said act. In said clause 5 we find the following sentence, already
quoted herein: The board shall have the power to acquire or establish municipal water
works, municipal power plants, or any public utility, only in the manner herein provided."
57 Nev. 332, 350 (1937) Ronnow v. City of Las Vegas
power plants, or any public utility, only in the manner herein provided. On page 44 of the
1935 Statutes of Nevada, at the end of the paragraph from which we have just quoted, we find
also the following provision: provided further, however, that even though no such petition
be filed, or if at such election the question is carried by such majority vote, the said board
may, in its discretion, abandon and discontinue all such proceedings to acquire or establish
such municipal water works, municipal power plant, electrical or otherwise, or other public
utility, upon adoption of a resolution to the effect that such board does not at such time deem
it to the best interests of said city to acquire or establish such municipal water works,
municipal power plant, electrical or otherwise, or other public utility.
It is proper that we should consider the meaning of the word establish, as used in said
clause 5, in endeavoring to arrive at the proper construction to be placed upon the grant of
power in said amended section 4.
In Iowa Service Co. v. City of Villisca, 203 Iowa, 610, 213 N. W. 401, the electors of the
city voted to incur an indebtedness for the establishment of a light and power plant for the
municipality, and voted to issue bonds therefor in the sum or $75,000. The petition for the
call of an election, instead of stating in words of the statute that a power plant could not be
purchased, erected, built or furnished within the limit of one and one-quarter mill levy,
stated that such plant could not be established within such limit. The court held that the word
established was the legal equivalent of purchased, erected, built or furnished.
In Caldwell v. City of Alton, 33 Ill. 416, 75 Am. Dec. 282, where the city charter provided
that its common council shall have the power to establish and regulate markets, the court
said: The power, therefore, to establish and regulate markets, includes the power to purchase
the site and the erection of the necessary buildings and stalls upon it, and, when provided, to
adopt such rules in regard to it, and to the business to be there transacted, as may be
deemed reasonable and just."
57 Nev. 332, 351 (1937) Ronnow v. City of Las Vegas
transacted, as may be deemed reasonable and just.
In People ex rel. Reynolds v. Atchison, T & S. F. Ry. Co., 300 Ill. 415, 133 N. E. 250, the
court had under consideration a tax levied under the detention home act (Laws 1907, p. 59, as
amended by Laws 1919, p. 729 [see Smith-Hurd, Ill. Stats. c. 23, sec. 308 and note]) for the
establishment and maintenance of a county detention home. A distinction was made between
the terms establish and maintain, the court saying: The terms establish' and maintain'
do not mean one and the same thing. The term establish' must be given its ordinary
definition, in the absence of language showing that a special meaning is intended. To
establish means to create, to institute, to build. While a tax levied under the act for the
establishment of a detention home would include purchasing, erecting, leasing, and otherwise
providing, and such tax could be used to enlarge, improve, or add to such home, such purpose
must not be confused with that of maintenance.
In Ketchum v. City of Buffalo, 21 Barb. (N. Y.) 294, the supreme court of New York
construed the words to establish and regulate markets in the city in the charter of the city of
Buffalo, and held that said language conferred upon the city the power to purchase land and
to erect buildings thereon for market purposes. The court said: The authority to any one to
establish a thing, is an authority to take the proper measures to produce, accomplish or bring
into existence the thing.
In Georgia Public Service Commission v. Georgia Power Co., 182 Ga. 706, 186 S. E. 839,
840, the word establish, within a statute authorizing the public service commission to
require public service companies to establish and maintain public service facilities which are
reasonable and just, was held to include in its meaning the extension of existing service and
the bringing into being of new service and facilities in connection therewith. In that case the
word establish was defined, to bring into being; to build; to constitute; to create; to erect;
to form; to found; to found and regulate; to institute; to locate; to make; to model; to
organize; to originate; to prepare; to set up."
57 Nev. 332, 352 (1937) Ronnow v. City of Las Vegas
to create; to erect; to form; to found; to found and regulate; to institute; to locate; to make; to
model; to organize; to originate; to prepare; to set up.
The only case we have had called to our attention or found, holding that establish is not
used in the sense of construct, is Village of Brockport v. Green, 39 Misc. 231, 79 N. Y. S.
416, wherein the court had under consideration the following provision in the village law:
The board of sewer commissioners of a village may establish and maintain a sewer system
therein. In its opinion the court said: The word establish' is not used in the sense of to
construct, and that is not its meaning etymologically.
Besides the word establish, we also find the word procuring in said amended clause 5,
in the following provision already quoted in this opinion: Nothing herein contained shall be
construed to restrict the powers of said city as to taxation, assessment, borrowing money,
contracting debts or loaning its credit for procuring supplies of water, municipal water works,
municipal power plants, electrical or otherwise, or other public utility. One of the definitions
of the word procuring in Webster's New International Dictionary is, to obtain by any
means. This word does not occur in the grant of power in said amended section 4, but, like
the word establish, has received our consideration in placing a proper interpretation upon
said grant of power.
6. The foregoing authorities leave no substantial doubt in our mind that the legislature, in
the said amendments of 1935, intended to and did confer upon the city of Las Vegas the
power to construct a municipal power plant, as well as to acquire one in other ways, such as
by purchase.
It is our opinion, therefore, that the general demurrer to plaintiff's first cause of action
should have been sustained.
Respondent contends that the demurrers to his amended second and third causes of action
should have been overruled by the district court; but, according to appellants, the
question whether there was error in sustaining said demurrers is one which this court is
without power to consider.
57 Nev. 332, 353 (1937) Ronnow v. City of Las Vegas
been overruled by the district court; but, according to appellants, the question whether there
was error in sustaining said demurrers is one which this court is without power to consider.
They take the position that the only matters of which we have jurisdiction are those presented
by them on this appeal. They say that the action of the lower court in sustaining the demurrers
to, and dismissing, the amended second and third causes of action constituted a final
judgment adverse to plaintiff, from which he could have appealed. Furthermore, in line with
their contention that only the questions raised by them on this appeal can be considered, they
claim that even if the sustaining of said demurrers and dismissal of said two amended causes
of action were not appealable, this court is nevertheless without power, on this appeal, to
decide whether the district court committed error in taking said action.
7. The rulings of the district court sustaining defendants' amended second and third causes
of action, and dismissing the same, were intermediate orders, not a final judgment. Salchert v.
Rice, 47 Idaho, 422, 276 P. 305. The final judgment was the court's decree enjoining
defendants from proceeding to issue the proposed bonds.
The order sustaining said demurrers and dismissing said causes of action was not
appealable. Statutes of Nevada 1935, c. 90, p. 197, sec. 10; Chartz v. Cardelli, 52 Nev. 278,
286 P. 125.
Furthermore, our statute contemplates appeal by aggrieved persons only. Statutes of
Nevada 1935, c. 90, p. 196, sec. 8; Warren v. Wilson, 47 Nev. 259, 262, 220 P. 242. And see
2 Am. Jur., p. 943, sec. 152.
Section 12 of the 1935 new trials and appeal act, Statutes of Nevada 1935, c. 90, p. 198,
reads as follows: Upon an appeal from a judgment, the court may review the decision, and
any intermediate ruling, proceeding, order or decision which involves the merits or
necessarily affects the judgment, or which substantially affects the rights of a party, which
comes within the specifications of error and record on appeal or is embraced in the bill of
exceptions.
57 Nev. 332, 354 (1937) Ronnow v. City of Las Vegas
specifications of error and record on appeal or is embraced in the bill of exceptions. The
provisions of this section do not authorize the court to review any decision or order from
which an appeal might have been taken.
It is true that Maher v. Swift, 14 Nev. 324, Moresi v. Swift, 15 Nev. 215, and Dennis v.
Caughlin, 22 Nev. 447, 41 P. 768, 29 L. R. A. 731, 58 Am. St. Rep. 761, tend to support
appellants' contention that only such errors as they complain of can be considered on this
appeal. (Dennis v. Caughlin, supra, is cited in 3 Am. Jur., at pages 362 and 403). But said
section 12 of the 1935 new trials and appeal act, and the case of In re Parrott's Estate, 45 Nev.
318, 329, 203 P. 258, convince us that, in the instant case, respondent is entitled to have this
court decide whether there was error in sustaining defendants' demurrers to, and dismissing,
his amended second and third causes of action. See, also, 3 Am. Jur. pp. 403-406, sec. 866.
It may be observed here that orders sustaining demurrers are deemed excepted to (section
8874 N. C. L.); also that the district court's rulings complained of by respondent involved the
merits, substantially affected the rights of respondent, come within the record on appeal, are
embraced in the bill of exceptions, and are specified as errors in respondent's answering brief.
The second alleged cause of action presents two questions for our consideration: First,
does the ordinance enacted by the defendants conform in all respects with their previously
published proclamation? Second, would the proposed bond issue be in violation of the
provisions of section 6085 N. C. L., to be later quoted herein?
8. Amended clause 5 of section 31 of subc. 2 of the act of incorporation provides, in part,
that to acquire or establish a public utility, the board shall issue and publish a proclamation
which shall set forth briefly the proposed bonded indebtedness to be incurred therefor, the
terms, amount, rate of interest, and time within which redeemable, and on what fund."
57 Nev. 332, 355 (1937) Ronnow v. City of Las Vegas
which redeemable, and on what fund. At a later meeting the board must enact an ordinance
which shall conform in all respects to the terms and conditions of the previously published
proclamation, unless, in the meantime, a petition be presented to the board, signed by a
certain percentage of the qualified electors of the city, asking for a special election upon the
question whether or not the proposed ordinance shall be passed. If such petition be presented,
the ordinance shall not be enacted unless and until such election shall have been called, held,
and carried by a majority of the votes cast.
The proclamation in the instant case proposes to issue interest bearing coupon general
obligation bonds and further sets forth that such bonds shall be redeemable from a fund to
be created for that purpose from the sale of power distributed over such system. No petition
for a special election having been presented, the board enacted an ordinance for the issuance
of 250 general obligation bonds. According to the ordinance, the bonds are to be made a
legal and effective general obligation against the City of Las Vegas; the proceeds from the
sale of the bonds are to be placed in a city fund designated as the City power bond fund;
this fund is to be used for the purpose of establishing, creating or acquiring by purchase or
through construction a municipally owned power plant. * * * Section 6 of the ordinance
reads: When such plant shall be acquired as herein provided, the Board of City
Commissioners shall charge a price for power distributed over such system sufficient, in
addition to the operating costs, to pay the interest upon the said bonds as the same shall
become due, and in addition thereto, a sum shall be collected by the Board of City
Commissioners from the sale of such power sufficient to redeem and retire the said bonds
upon their respective maturity dates. In section 7 of the ordinance it is provided, inter alia,
that in the event that the fund created from the sale of power distributed over such system
shall be insufficient to pay the principal upon and redeem the said bonds and to pay the
interest thereon as the respective amounts become due, then and in such event, the
deficiency shall be paid by the Treasurer of the City of Las Vegas from the general fund of
the city, and each of the bonds issued under the authority of this ordinance shall contain a
provision to that effect."
57 Nev. 332, 356 (1937) Ronnow v. City of Las Vegas
bonds and to pay the interest thereon as the respective amounts become due, then and in such
event, the deficiency shall be paid by the Treasurer of the City of Las Vegas from the general
fund of the city, and each of the bonds issued under the authority of this ordinance shall
contain a provision to that effect.
Respondent contends that the ordinance does not conform in all respects to the terms and
conditions of the proclamation for the reason that the latter makes the bonds redeemable from
a fund to be created for that purpose from the sale of power, while the ordinance goes further
and provides that if the proceeds from the sale of power be insufficient to pay the principal or
interest, the deficiency shall be paid from the general fund of the city.
While entertaining some doubt on this question, the conclusion we have arrived at is that
any lack of conformity of the ordinance with the proclamation consists in the choice of
different words which, however, have the same meaning. In the case of City of Eugene v.
Willamette Valley Co., 52 Or. 490, 97 P. 817, at page 821, the court says: The word
general' is used in the clause quoted to distinguish it from special,' and when so applied to
qualify the word obligation,' the phrase employed means a municipal debt, for the payment
of which provision must be made by devoting funds raised by taxation, thereby appropriating
in discharge thereof a pro rata share of the burden upon all property in a specified district that
is subject thereto. * * * An examination of section 112 of the charter as amended will show
that a special fund is provided for the payment of the water bonds at maturity and of the
interest as it accrues; but, as such debt is by express words also made a general obligation' of
the city, the two provisions adverted to must be construed in pari materia. Interpreting these
clauses in such manner, it follows that the residue of the special fund, after the payment of the
charges specified, must be applied in the manner indicated; but if there should, at any time,
be a shortage in the resources mentioned to meet the payment of the interest on the
water bonds as the installments severally accrue, or insufficient annually to set aside the
required amount of money as a sinking fund so provided for, recourse must be had to the
general fund to make up the deficiency."
57 Nev. 332, 357 (1937) Ronnow v. City of Las Vegas
indicated; but if there should, at any time, be a shortage in the resources mentioned to meet
the payment of the interest on the water bonds as the installments severally accrue, or
insufficient annually to set aside the required amount of money as a sinking fund so provided
for, recourse must be had to the general fund to make up the deficiency. The proclamation
expressly sets forth that the bonds are to be general obligations. This, with the further
statement that the bonds shall be redeemable from a fund to be created from the sale of
power, is, in substance, equivalent to statements set forth in the ordinance to the effect that
the bonds are to be a general obligation against the city, and that if the proceeds from the sale
of power shall be insufficient to pay the principal upon and redeem the bonds and to pay the
interest thereon as the respective amounts become due, then the deficiency shall be paid from
the general fund of the city.
We shall now consider the question whether the proposed bond issue would be invalid
under section 6085 N. C. L., which reads as follows: Hereafter all bonds, including
refunding bonds issued under lawful authority by any county, city, town, school district, or
municipal corporation, shall be serial in form and maturity and numbered from one upwards
consecutively. Interest on all such bonds shall be payable either annually or semiannually, as
may be set forth in the act of the officers of the issuing municipal corporation. The various
annual maturities shall commence not later than the third year after the date of issue of such
bonds; all such bonds shall be redeemed in equal annual installments; provided, however, that
the first installment may be for a greater or lesser amount than the remaining installments.
The aforesaid section is section 1 of An Act relating to bonds issued by counties, cities,
towns, school districts, and other municipal corporations, and repealing all acts and parts of
acts in conflict therewith, approved March 23, 1927 {Stats.
57 Nev. 332, 358 (1937) Ronnow v. City of Las Vegas
March 23, 1927 (Stats. 1927, c. 110, p. 194). We are here concerned with the last portion of
the section, which requires that all such bonds shall be redeemed in equal annual
installments; provided, however, that the first installment may be for a greater or lesser
amount than the remaining installments. In the case at bar the proposed bonds are to be
redeemed in equal installments of $30,000, except the last installment, which is $40,000.
9. In State v. Allen, 55 Nev. 346, 34 P. (2d) 1074, this court held a bond issue invalid
because it provided for redemption of the bonds in unequal installments. Appellants do not
question the correctness of that decision, nor do they attack the constitutionality of said
section 6085 N. C. L. Their contention is that this section does not apply in the instant case,
for two reasons: First, because section 6 of the aforesaid municipal bonds act (section 6090
N. C. L.) provides that said act shall not apply to public utility bonds payable wholly from
the earnings of such utility; and, as they contend, the proposed bonds would be payable
wholly from the earnings of the municipal power plant. Second, because said municipal bond
act of 1927 has been entirely superseded, so far as the proposed bond issue is concerned, by
the act of March 13, 1935, amending the Las Vegas incorporating act (Statutes of Nevada
1935, c. 36 pp 41-60), and particularly amended clause 5 of section 31 of subc. 2 of said
incorporating act (Statutes of Nevada 1935, c. 66, pp. 43-46).
It is plain that the proposed bonds would be public utility bonds, but we cannot agree with
appellants that they would be payable wholly from the earnings of such utility. The court
cannot disregard the word wholly, and we are convinced that, although the proclamation
states that the bonds are to be redeemable from a fund to be created for that purpose from the
sale of power distributed over such system, they would not be payable wholly from the
earnings of the power plant, because they would be general obligation bonds, and if the
proceeds from the sale of power should be insufficient to redeem them the deficiency
would have to be paid from the general fund of the city.
57 Nev. 332, 359 (1937) Ronnow v. City of Las Vegas
they would be general obligation bonds, and if the proceeds from the sale of power should be
insufficient to redeem them the deficiency would have to be paid from the general fund of the
city. General obligation bonds create a debt against the city, whereas bonds payable wholly
from the earnings of a public utility do not. If the holders of the proposed bonds would have a
claim solely on the net revenues of the power plant, they would be payable wholly from its
earnings. The following are a few of the authorities where bonds and other liabilities of this
type are mentioned: Shields v. Loveland, 74 Colo. 27, 218 P. 913; Franklin Trust Co. v.
Loveland (C. C. A.), 3 F. (2d) 114; Bell v. Fayette, 335 Mo. 75, 28 S. W. (2d) 356; City of
Houston v. Allred, 123 Tex. 334, 71 S. W. (2d) 251; Twichell v. Seattle, 106 Wash. 32, 179
P. 127; Shorts v. Seattle, 95 Wash. 531, 164 P. 239; McQuillin, Municipal Corporations (2d
ed.), vol. 6, sec. 2387; Pond, Public Utilities (4th ed.), vol. 1, sec. 102. If it is true that the
proposed bonds might be redeemed wholly from the net proceeds of the power plant, it is
likewise true that redemption might have to be made in part, at least, from the general fund of
the city. The credit of the city would be pledged to secure the payment of the bonds, and the
holders of the bonds, besides looking to the proceeds of the plant and having a lien thereon,
would be entitled legally to hold the city itself liable for their redemption.
The second reason given by appellants in support of their contention that section 6085 N.
C. L. is not applicable to the city of Las Vegas, is that the 1935 amendments to its charter set
up a new, full, and complete method for acquiring and establishing municipal public utilities
in said city, different from the method set forth in said municipal bond act of 1927. It was
upon this ground that the district court sustained defendants' demurrer to plaintiff's second
cause of action. Respondent takes the position that said municipal bond act of 1927 has not
been superseded by the 1935 amendments to the Las Vegas charter.
57 Nev. 332, 360 (1937) Ronnow v. City of Las Vegas
to the Las Vegas charter. It thus becomes necessary to closely scrutinize these statutes.
Section 1 of the municipal bond act has already been quoted (section 6085 N. C. L.).
Section 2 (section 6086 N. C. L.) makes provision for an annual tax levy, sufficient to meet
the payments of principal and interest on municipal bonds. Section 3 (section 6087 N. C. L.)
provides that before any bonds be offered for sale, the corporate authorities issuing them shall
designate the maximum rate of interest such bonds shall bear. This section goes on to state
that when a vote of the electors shall have been taken on the question of the issuance of such
bonds and the proposition submitted to the electors shall have specified the maximum rate of
interest to be borne by said bonds, no increase of such maximum rate of interest shall be
made by the corporate authorities. Said section 3 further provides that all such bonds shall be
sold at public sale, and that a notice of the sale shall be published in a newspaper for a certain
length of time, and a copy mailed to the state board of finance. The notice must specify the
maximum rate of interest such bonds shall bear, and further sets forth what the bids must
specify. The bonds are to be sold to the highest bidder and no bound is to be sold at less than
par and accrued interest, nor is any discount or commission to be allowed or paid on the sale
of such bonds. Section 5 of said act, as amended (Statutes of Nevada 1933, c. 50, pp. 45, 46
[N. C. L. sec. 6089]), provides that bonds issued under the act shall not run for a longer
period than twenty years from the date of issue, and shall, as near as practicable, be issued for
a period which shall be equivalent to the life of the improvement to be acquired by the use of
the bonds. Section 6, as we have already seen, states that the act shall not apply to public
utility bonds payable wholly from the earnings of such utility. There are other provisions in
the act, but the foregoing are deemed sufficient for the purposes of this discussion.
57 Nev. 332, 361 (1937) Ronnow v. City of Las Vegas
The first four sentences of amended clause 5 of section 31 of subc. 2 of the city charter
(incorporating act of 1911), from which some quotations have already been made in
connection with other questions involved on this appeal, read as follows: To borrow money
on the credit of the city for corporation purposes and to issue warrants and bonds therefor in
such amounts and forms and on such conditions as the board of commissioners shall
determine; and the board may secure the payment of any bonds of the city by making them a
preferred lien against the real or other property of the city; provided, that said city shall not
issue nor have outstanding at any time bonds to an amount in excess of 20 percent of the total
valuation of the taxable property within its limits, as shown by the last preceding tax list or
assessment roll; nor shall said city have issued or outstanding at any time warrants,
certificates, scrip or other evidence of indebtedness, excepting the bonded indebtedness, in
excess of 2 percent of said assessed valuation; and provided further, that nothing herein
contained shall be construed to restrict the powers of said city as to taxation, assessment,
borrowing money, contracting debts or loaning its credit for procuring supplies of water,
municipal water works, municipal power plants, electrical or otherwise, or other public
utility. The said board shall provide for the payment of interest on such bonds as the same
shall become due, and for a sinking fund for the payment of the principal within twenty years
after issuing same. The board shall have the power to acquire or establish municipal water
works, municipal power plants, or any public utility, only in the manner herein provided. The
board shall issue a proclamation which shall set forth briefly the supply of water, municipal
water works, the municipal power plant, or other public utility proposed to be acquired or
established, the estimated cost thereof as shown by the report provided by the board and
mayor, or an engineer or party theretofore appointed by the board for that purpose, the
proposed bonded indebtedness to be incurred therefor, the terms, amount, rate of
interest, and time within which redeemable, and on what fund."
57 Nev. 332, 362 (1937) Ronnow v. City of Las Vegas
purpose, the proposed bonded indebtedness to be incurred therefor, the terms, amount, rate of
interest, and time within which redeemable, and on what fund. Said amended clause 5 then
provides for the publication of the proclamation, the holding of a special election if petitioned
for, and the enactment of an ordinance conforming to the previously published
proclamationthe statute providing that such ordinance shall be enacted if no petition be
presented for a special election, and further providing that if such petition be presented, no
ordinance shall be enacted unless such special election be held and carried by a majority of
the votes cast. This clause also gives the board power to call and hold such special election
whether petitioned for or not, and contains the further provision that if at such election the
question is carried by a majority vote, or even though no petition for a special election be
filed, the board may, nevertheless, in its discretion, by resolution, abandon and discontinue all
proceedings to acquire or establish the municipal public utility when it is deemed to the best
interests of the city not to acquire or establish the same.
Section 8 of the 1935 act (Statutes of Nevada 1935, p. 60), amending the 1911 act
incorporating the town of Las Vegas, provides that all acts or parts of acts in conflict
herewith are hereby repealed. Said amendatory act of 1935 makes no express reference to
the municipal bonds act of 1927.
10. Respondent does not challenge the constitutionality of those portions of the 1935
amendatory act relied upon by appellants, further than to call our attention to section 8 of
article 8 of the state constitution (section 138 N. C. L), which provides in part that: The
legislature shall provide for the organization of cities and towns by general laws and shall
restrict their power of taxation, assessment, borrowing money, contracting debts and loaning
their credit, except for procuring supplies of water. It is our opinion that this constitutional
provision does not invalidate said amended clause 5, or any part of it.
57 Nev. 332, 363 (1937) Ronnow v. City of Las Vegas
5, or any part of it. Kornegay v. City of Goldsboro, 180 N. C. 441, 105 S. E. 187, at page 190.
11, 12. In our endeavor to ascertain whether said amended clause 5 entirely supersedes, so
far as the proposed bond issue is concerned, the municipal bonds act of 1927, and if not,
whether said clause 5 supersedes that portion of section 1 of said act of 1927 which requires
redemption of municipal bonds in equal annual installments except as to the first installment,
we must bear in mind that our chief concern is to learn the intent of the legislature. Thorpe v.
Schooling, 7 Nev. 15, at pages 17, 18; State v. Ducker, 35 Nev. 214, at page 223, 127 P. 990;
Gill v. Goldfield Consol. M. Co. 43 Nev. 1, at page 7, 176 P. 784, 184 P. 309; Carson City v.
Board of County Commissioners, 47 Nev. 415, at page 422, 224 P. 615; In re James, 99 Vt.
265, 132 A. 40. Rules for statutory construction are merely aids in the ascertainment of the
legislative intent. State v. Ducker, supra. Some of those rules, pertinent to the statutes we are
considering, will now be mentioned.
13. An amendment of an existing charter supersedes, within the corporate limits and as to
matters of purely municipal concern, such, and only such, provisions of a general law as are
inconsistent with the provisions of the new amendment. Presson v. Presson, 38 Nev. 203, at
page 209, 147 P. 1081; Ex Parte Garza, 28 Tex. App. 381, 13 S. W. 779, 19 Am. St. Rep.
845, at page 848; 43 C. J. 167, sec. 153, note 33; State v. Ducker, supra, 35 Nev. 214, at page
224, 127 P. 990; State v. Millis, 81 Mont. 86, 261 P. 885, at page 890; Franzke v. Fergus
County, 76 Mont. 150, 245 P. 962, at page 965; State v. Gehner, 315 Mo. 1126, 280 S. W.
416, 418; 59 C. J. 916, sec. 517.
Clause 5 does not expressly supersede the act of 1927, or any portion thereof. The question
is, therefore, whether it impliedly supersedes said act, or any part of it. The question is not
one relating to repeal, as that word is ordinarily used, but we think the rules governing
repeal by implication are applicable.
57 Nev. 332, 364 (1937) Ronnow v. City of Las Vegas
14. Repeals by implication are not favored, and the intent of the legislature to have a local
law control a general one must be clearly evinced by appropriate language. Thorpe v.
Schooling, supra; Estate of David Walley, 11 Nev. 260, at page 264; State v. Ducker, supra,
35 Nev. 214, at pages 221, 222, 127 P. 990; State ex rel. Abel v. Eggers, 36 Nev. 372, at page
380, 136 P. 100; Dotta v. Hesson, 38 Nev. 1, at page 3, 143 P. 305; Presson v. Presson, supra;
Kondas v. Washoe County Bank, 50 Nev. 181, at page 190, 254 P. 1080; Nordyke v. Pastrell
et al., 54 Nev. 98, at page 105, 7 P. (2d) 598; Quinby v. Public Service Comm., 102 Misc.
357, 169 N. Y. S. 976; State v. Millis, supra; State v. Brown, 154 S. C. 55, 151 S. E. 218, at
page 220, 221; Arsenal School District v. Consol. Town, 120 Conn. 348, 180 A. 511, at page
517; 59 C. J. pp. 905, 907-909, 913-916, 936, 1051, 1052, 1056, 1057.
15. Where two statutes are flatly repugnant, the later, as a general rule, supplants or repeals
the earlier. Thorpe v. Schooling, supra, 7 Nev. 15, at page 17; Tilden v. Esmeralda County,
32 Nev. 319, 325, 107 P. 881; State v. Ducker, supra, 35 Nev. 214, at page 224, 127 P. 990;
Presson v. Presson, supra, 38 Nev. 203, at page 208, 147 P. 1081.
16. A general law will not be held to be repealed or modified by implication by a
subsequent special law, unless the subsequent special act is so clearly in conflict with the
existing general law that both cannot stand. Thorpe v. Schooling, supra, 7 Nev. 15, at pages
17, 18; Estate of David Walley, supra, 11 Nev. 260, at page 264; State v. Ducker, supra, 35
Nev. 214, at page 222, 127 P. 990; State ex rel. Abel v. Eggers, supra, 36 Nev. 372, at page
380, 136 P. 100; Dotta v. Hesson, supra, 38 Nev. 1, at page 3, 143 P. 305; Presson v. Presson,
supra, 38 Nev. 203, at page 209, 147 P. 1081; Carson City v. Board of County
Commissioners, supra, 47 Nev. 415, at page 422, 224 P. 615; Nordyke v. Pastrell, supra, 54
Nev. 98, at page 107, 7 P. (2d) 598; Stat v. Millis, supra, 81 Mont. 86, 261 P. 885, at page
S90; State v. Gehner, supra, 315 Mo. 1126, 2S0 S. W. 416, at page 41S; State v. Brown,
supra, 154 S. C. 55, 151 S. C. 21S, at page 221; Arsenal School District v. Consol.
57 Nev. 332, 365 (1937) Ronnow v. City of Las Vegas
890; State v. Gehner, supra, 315 Mo. 1126, 280 S. W. 416, at page 418; State v. Brown,
supra, 154 S. C. 55, 151 S. C. 218, at page 221; Arsenal School District v. Consol. Town,
supra, 120 Conn. 348, 180 A. 511, at page 517; 43 C. J. 167, 199; 59 C. J. 907-909, 913, 917,
936, 937.
17. Where express terms of repeal are not used, the presumption is always against an
intention to repeal an earlier statute, unless there is such inconsistency or repugnancy between
the statutes as to preclude the presumption, or the later statute revises the whole
subject-matter of the former. State v. Donnelly, 20 Nev. 214, 19 P. 680; Presson v. Presson,
supra, 38 Nev. 203, at pages 208, 209, 147 P. 1081; Carson City v. Board of County
Commissioners, supra, 47 Nev. 415, at page 422, 224 P. 615; Kondas v. Washoe County
Bank, supra, 50 Nev. 181, at page 190, 254 P. 1080; Rorick v. Dalles City, 140 Or. 342, 12 P.
(2d) 762, at pages 763, 764; 59 C. J. 909, sec. 511.
18. Where a statute or city charter provides a new, full, and complete scheme for the
acquisition of municipal improvements, a prior general public improvements act is
superseded, being inconsistent. Thorpe v. Schooling, supra, 7 Nev. 15, at page 18; Gill v.
Goldfield Consol. M. Co., supra, 43 Nev. 1, at pages 7, 8, 176 P. 784, 184 P. 309; Carson
City v. Board of County Commissioners, supra, 47 Nev. 415, at page 425, 224 P. 615;
McHugh v. City and County of San Francisco, 132 Cal. 381, 64 P. 570.
19. Where one statute deals with a subject in general and comprehensive terms, and
another deals with another part of the same subject in a more minute and definite way, the
special statute, to the extent of any necessary repugnancy, will prevail over the general one.
Norton-Johnson Buick Co. v. Lindley, 173 Okl. 93, 46 P. (2d) 525, at page 527; In re
Stevenson's Estate, 87 Mont. 486, 289 P. 566, at page 570; Franzke v. Fergus County, supra,
76 Mont. 150, 245 P. 962, at page 965; State v. Gehner, supra, 315 Mo. 1126, 280 S. W. 416,
at page 41S; In re James, supra, 99 Vt.
57 Nev. 332, 366 (1937) Ronnow v. City of Las Vegas
page 418; In re James, supra, 99 Vt. 265, 132 A. 40, at page 43.
20. The provisions of general and special acts must be harmonized when reasonably
possible. State v. Rogers, 10 Nev. 319, at page 321; Ex Parte Ah Pah, 34 Nev. 283, at page
292, 119 P. 770; State v. Ducker, supra, 35 Nev. 214, at page 224, 127 P. 990; Abel v.
Eggers, supra, 36 Nev. 372, at page 381, 136 P. 100; Dotta v. Hesson, supra, 38 Nev. 1, at
page 3, 143 P. 305; Presson v. Presson, supra, 38 Nev. 203, at pages 208, 209, 147 P. 1081;
Carson City v. Board of County Commissioners, supra, 47 Nev. 415, at page 422, 224 P. 615;
Wainwright v. Bartlett, 51 Nev. 170, at pages 177, 178, 271 P. 689, 62 A. L. R. 78; Bishop v.
Musick Plating Works, 222 Mo. App. 370, 3 S. W. (2d) 256, at page 259; Franzke v. Fergus
County, supra, 76 Mont. 150, 245 P. 962, at page 965.
21. It will be presumed that the legislature, in enacting a statute, acted with full knowledge
of statutes already existing and relating to the same subject. Gill v. Goldfield Consol. M. Co.,
supra, 43 Nev. 1, at page 5, 176 P. 784, 184 P. 309; Rorick v. Dalles City, supra, 140 Or. 342,
12 P. (2d) 762, at page 763; State v. Dunais, 120 Conn. 562, 181 A. 721, at page 723; 59 C. J.
909, sec. 511.
In the light of the foregoing rules, can we say it is clear that the statutes in question in this
case conflict to such an extent, or in other words are so inconsistent and irreconcilable, that
they cannot be harmonized so as to give effect to both? If appellants' contention that the 1927
act is wholly superseded by clause 5 is correct, that ends the matter. But after all, the only part
of the act of 1927 with which we are specifically concerned here is that which requires
municipal bonds to be redeemed in equal installmentsexcept the first which may be greater
or less than the others.
22. We have reached the conclusion that the requirement last mentioned is not applicable
to the proposed bond issue, and we base that conclusion chiefly on the language occurring in
the first three and a fraction lines of said amended clause 5.
57 Nev. 332, 367 (1937) Ronnow v. City of Las Vegas
language occurring in the first three and a fraction lines of said amended clause 5. By this
language the legislature of 1935 expressly conferred upon the board of commissioners of the
city of Las Vegas the power to borrow money on the credit of the city and to issue bonds
therefor in such amounts and forms and on such conditions as the board of commissioners
shall determine. We have not been cited to any case construing the quoted words. There may
be many such statutes in the various states, but the only one discovered in our research is
mentioned in People vs. Chicago & N. W. Ry. Co., 308 Ill. 54, 139 N. E. 2, at page 4.
If there is doubt whether the provision requiring bonds to be redeemable in equal
installments (except the first) is a matter of amounts or forms, it seems clear that such a
requirement is a condition. In Dillon's Municipal Corporations (5th ed.), vol. 2, sec. 889,
the author says: The legislature in granting to a municipality power to issue its bonds may
impose such conditions as it may choose. * * * He cites statutes limiting the term within
which bonds shall be payable; authorizing an issue of bonds not to extend beyond ten years
from the date of issuance; payable in not less than five nor more than thirty years from
date; and providing that bonds may be issued making part of them mature annually and
running through a series of not more than twenty years from the dates of their issuance. While
still dealing with the subject of conditions, the author cites City and County of Denver v.
Hallett, 34 Colo. 393, 83 P. 1066, where the question submitted to the electors was whether
the city should issue bonds maturing in not less than fifteen years nor more than thirty years,
the principal to be payable in equal installments.
The requirement of the general statute that municipal bonds shall be redeemed in equal
annual installments; provided, however, that the first installment may be for a greater or lesser
amount than the remaining installments (section 6085 N. C. L.), and the grant of power in
the special statute "To borrow money on the credit of the city for corporation purposes
and to issue * * * bonds therefor in such amounts and forms and on such conditions as
the board of commissioners shall determine" {amended clause 5 of section 31, subc.
57 Nev. 332, 368 (1937) Ronnow v. City of Las Vegas
in the special statute To borrow money on the credit of the city for corporation purposes and
to issue * * * bonds therefor in such amounts and forms and on such conditions as the board
of commissioners shall determine (amended clause 5 of section 31, subc. 2 of the act
incorporating the town of Las Vegas, Stats. of Nevada 1935, c. 36, p. 43), are so conflicting,
inconsistent, and irreconcilable that in our opinion they cannot be harmonized, and cannot
both stand. Such being the case, the special statute, being later, must prevail.
As bearing on the all-important question of the legislative intent in amending said clause
5, we call attention to the fact that the first part of the original clause 5, in the incorporating
act of 1911, reads as follows: To borrow money on the credit of the city for corporate
purposes in the manner and to the extent allowed by the statutes and the laws, and to issue *
* * bonds therefor in such amounts and forms and on such conditions as the board of
commissioners shall determine. Obviously the omission of the italicized words in the 1923,
1925, 1927, 1931, and 1935 amendments (Stats. of Nevada 1923, c. 68, p. 83; 1925, c. 56, p.
78; 1927, c. 154, p. 236; 1931, c. 215, p. 378; 1935, c. 36, p. 43) was ex industria, and
indicates an intention on the part of the legislature to allow the city board of Las Vegas to
borrow money for corporate purposes in such manner and to such extent as the board shall
determine, subject of course to constitutional provisions and those of the amended Las Vegas
incorporating act itself, and regardless of other conflicting legislation, except such as would
clearly show an intent to supersede said amended clause 5.
We hold that the district court did not err in sustaining defendants' demurrer to plaintiff's
second cause of action.
23. Defendants' demurrer to plaintiff's third cause of action raises the question whether, as
a condition precedent to the issuance of the proposed bonds in the instant case, a proposal
for such bond issue should have been submitted, at an election, to electors who were not
real property owners or the spouses of real property owners, and also to electors who
were the owners of real property or the spouses of real property owners, as required by
the bond election act of March 20, 1933 {Stats.
57 Nev. 332, 369 (1937) Ronnow v. City of Las Vegas
instant case, a proposal for such bond issue should have been submitted, at an election, to
electors who were not real property owners or the spouses of real property owners, and also to
electors who were the owners of real property or the spouses of real property owners, as
required by the bond election act of March 20, 1933 (Stats. Nevada 1933, c. 95, p. 116). The
provisions of this act were set out, in substance, in the case of State ex rel. Cooper v. Reese,
57 Nev. 125, 59 P. (2d) 647, and will not be repeated here. Respondent makes the point that
while amended clause 5, hereinbefore referred to, is later legislation than said act of 1933, it
is merely a reenactment of the 1931 statute as previously amended, insofar as the procedure
for the acquiring of bonds is concerned, and insofar as the eighty-odd powers conferred upon
the board of commissioners are concerned. He further contends that the general act of 1933
repealed the 1931 enactments (Stats. of Nevada 1931, c. 215, pp. 374-391) insofar as the
method of determining the question of issuance of bonds is concerned, and that the
reenactment of these identical provisions in 1935 did not repeal the intermediate act of 1933.
With this view we cannot concur, and in our opinion the authorities cited by respondent do
not support the contention. The act of 1933 cannot be reconciled with said clause 5 as
amended in 1935. The two statutes are so inconsistent and repugnant that they cannot stand
together, and it seems clear to us that the legislature did not intend the general act of 1933 to
be applicable, in the city of Las Vegas, to such a bond issue as the one which constitutes the
subject matter of this proceeding.
We think the action of the district court in sustaining defendants' demurrer to plaintiff's
third cause of action was correct.
24. While it is not necessary to decide whether appellants' contention that plaintiff has no
legal capacity to maintain this suit is well taken, we may state that in our opinion it is without
merit.
57 Nev. 332, 370 (1937) Ronnow v. City of Las Vegas
25. This case would have been disposed of at an earlier date had appellants, when the case
was first submitted, briefed and argued the issues of law arising out of the demurrers to
plaintiff's second and third causes of action, particularly the second. Besides arguing the
contention that this court is without power to consider said two causes of action, appellants,
without risk of any waiver, could and should have briefed and argued the above-mentioned
questions in the first instance.
The judgment appealed from is reversed, and the orders appealed from set aside.
Appellants and respondent will pay their and his own costs, respectively.
On Petition for Rehearing
April 9, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 370, 370 (1937) Agricultural Ins. Co. v. Biltz
AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, N. Y., a Corporation,
Appellant, v. NORMAN BILTZ, Respondent.
No. 3154
February 5, 1937. 64 P. (2d) 1042.
1. Appeal and Error.
Point not made in trial court cannot be urged on appeal for first time.
2. Insurance.
In action on fire policy where claim had been submitted to arbitrators, evidence that one arbitrator
refused to listen to testimony of plaintiff and refused to advise plaintiff's counsel of time for meeting of
arbitrators after demand for such notice, so that counsel could have witnesses available to testify to matters
pertaining to issues, held to justify setting aside award.
3. Appeal and Error.
Disputed questions of fact must be resolved in favor of findings of trial court, and fact that court is
dealing with common-law arbitration does not affect the rule.
4. Appeal and Error.
Where arbitrators and umpire appointed to adjust loss under fire policy have allegedly acted beyond the
scope of their authority, in depriving party of right to present evidence, equity will
intervene and finding of lower court based on substantial evidence as to that issue
may not be disturbed.
57 Nev. 370, 371 (1937) Agricultural Ins. Co. v. Biltz
their authority, in depriving party of right to present evidence, equity will intervene and finding of lower
court based on substantial evidence as to that issue may not be disturbed.
5. Appeal and Error.
Rule that appellate court is bound by decision of lower court made on conflicting evidence applies in
equity as well as in actions at law in Nevada.
6. Insurance.
Award of arbitrators for loss under fire policy for total destruction of building could be set aside for
failure to accord insured his rights as against contention award could not be set aside because it was based
on arbitrators' technical knowledge of subject-matter, since total destruction of building forbade an
inference that arbitrators were chosen as experts to decide matter, and agreement contained nothing to
indicate that matter was to be decided without parties being heard and accorded right to present evidence.
7. Arbitration and Award.
Parties are entitled to be heard and present evidence before arbitrators, and depriving party of such
substantial right is misconduct that will render award invalid.
8. Insurance.
In action on fire policy where claim had been submitted to arbitrators, evidence that counsel requested
notice of meeting so that he could produce witnesses to testify to matters pertaining to issue and that at one
meeting one arbitrator denounced only witness for plaintiff as unworthy of belief, and indicated another
meeting would be held where plaintiff could offer evidence but such right was not given held sufficient to
justify setting award aside on ground that plaintiff was denied right to present evidence to arbitrators.
9. Insurance.
In action on fire policy where arbitrators made award and trial court set aside award and entered
judgment for insured, allowing interest from date of award rather than from date of judgment held error
where policy provided loss was not payable until sixty days after satisfactory proof of loss, or valid award,
since until rendition of judgment, demand was unliquidated (Comp. Laws, sec. 4322).
10. Interest.
Interest is not recoverable on unliquidated demands, but is allowable only after such demands have been
merged in judgment.
11. Costs.
Fees for mileage of witnesses who lived more than thirty miles from city where case was tried held not
taxable as costs, since mileage fees cannot be taxed as costs when witnesses cannot be subpenaed
according to law and under statute witnesses involved were not required to attend (Comp. Laws, secs.
8934, 8940, and 8978, as amended by Stats. 1933, c. 60, sec. 1).
57 Nev. 370, 372 (1937) Agricultural Ins. Co. v. Biltz
12. Statutes.
Supreme court must presume that legislature employed the words witnesses required to attend in statute
fixing their compensation as they had been construed prior thereto by the supreme court (Comp. Laws, sec.
8490).
13. Costs.
Statute fixing compensation for witnesses required to attend courts held controlling over prior
inconsistent earlier legislation (Comp. Laws, sec. 8490).
Appeal from First Judicial District Court, Douglas County; Clark J. Guild, Judge.
Action by Norman Biltz against the Agricultural Insurance Company of Watertown, N. Y.
From a judgment and order denying a new trial, defendant appeals. Modified and affirmed
as modified.
L. D. Summerfield, for Appellant:
Defendant contends that plaintiff does not come into the court of equity in this case with
clean hands, that he therefore is not entitled to relief, and that the court should have left the
parties where it found them, and have affirmed the award.
Appellant wishes to emphasize that the trial court did not find any fraud or any dishonesty
in the proceedings of the arbitration board. With these considerations in mind, it is contended
that the evidence was utterly insufficient to warrant the lower court in setting aside the award,
particularly in view of the written decision and findings.
This was a common law arbitration, entered into pursuant to the contract between the
parties as set forth in the policy of insurance. Therefore, every reasonable intendment should
be made to uphold it. Steel v. Steel, 1 Nev. 27; Joyce on Insurance (2d ed.), vol. 5, p. 5428; 5
C. J. 244.
An examination of the record does not disclose any material specific evidence which the
board refused to receive and consider.
It is submitted that the parties to the arbitration selected three expert contractors and
builders to act as a board, so that they could use their own knowledge of building
conditions and costs of labor and materials, and that the evidence obtained by the
individual members was such that they had a perfect right under the law to gather in that
matter.
57 Nev. 370, 373 (1937) Agricultural Ins. Co. v. Biltz
selected three expert contractors and builders to act as a board, so that they could use their
own knowledge of building conditions and costs of labor and materials, and that the evidence
obtained by the individual members was such that they had a perfect right under the law to
gather in that matter.
Regardless of the right this board of experts would have had to not have any hearings at
all, or to have evidence presented to it, it did give the parties a full and complete opportunity
to be heard. There were two such meetings, and Springmeyer could have had a third, when all
interested parties would be present, but he preferred to go to Stanford for the week-end.
Arbitration hearings must come to a close. They cannot be kept open at the mere whim of
one of the parties or upon his request that he be granted more time to present undefined
evidence and unnamed witnesses. 5 C. J. 94; 2 R. C. L. 378; 8 Ann. Cas. 510, 511 (n.); 47 L.
R. A. (N. S.) 1192 (n.); Stemmer v. Scottish Ins. Co., 33 Ore. 65, 53 P. 498.
There was not, it is submitted, the slightest ground for the trial court holding the award so
grossly inadequate that it should be set aside.
It is contended that the trial court erred in allowing interest on the judgment from April 6,
1935, instead of from the date of the decision. The demand was unliquidated until the amount
of the loss was definitely settled, which was not until judgment was entered.
With the obvious intention of correcting the situation as presented in the case of Zelavin v.
Tonopah Belmont Co., 39 Nev. 2, 149 P. 188, the legislature in 1919 (Stats. 1919, p. 56)
amended sec. 5387, Rev. Laws 1912, by inserting express language to make witness fees and
mileage in such cases proper items of costs. This section is now found as sec. 8934 N. C. L.
The amendment eliminated the test as to whether the presence of the witness was required.
Hence, we believe that the items of mileage are proper to be allowed as costs.
57 Nev. 370, 374 (1937) Agricultural Ins. Co. v. Biltz
George Springmeyer and Douglas A. Busey, for Respondent:
The record and plaintiff's brief show that there was strong conflict of evidence upon all
ultimate facts, and this court passes only upon alleged errors or abuse of discretion by the trial
court, and sustains a judgment on conflicting evidence wherever there is substantial evidence
to support the findings.
Nor is it of any importance in this appellate court whether the arbitration under insurance
policies is a common law or a statutory arbitration, for, except as to procedure, the
substantive law is the same as to both.
The case of Fireman's Fund Ins. Co. v. Flint, 74 Fed. (2d) 533, is not an authority in this
case, for the reason that it was an equity appeal to the federal circuit court of appeals. In an
equity appeal the federal circuit court of appeals reviews the entire evidence sent up from the
lower court and decides the case de novo, just as though it were the trial court. In Nevada
equity appeals are precisely like law appeals.
We believe that to bring up the unclean hands theory for the first time on this appeal is
subversive of the policy of ch. 90, p. 195, Stats. 1935.
The evidence fully sustains the trial court's finding as follows:
1. Umpire Wolert had no right to sign the award, because the two arbitrators had not
finally disagreed.
2. Arbitrator Maloney and umpire Wolert, in the pretended award, did not take into
consideration and did not make allowance for substantial parts of the Club Crystal building
which were covered by the insurance policy.
3. That the arbitrators and umpire did not give plaintiff a fair opportunity to be heard and
to present evidence.
4. That there was unfairness, prejudice, bias and misconduct by arbitrator Maloney and
umpire Wolert.
The evidence clearly shows that the property covered by the insurance policy was of the
value of over $9,500.
57 Nev. 370, 375 (1937) Agricultural Ins. Co. v. Biltz
by the insurance policy was of the value of over $9,500.
A claim on a policy of insurance, being based upon a contractual right, although
unliquidated, is upon a different footing from a claim for damages for personal injuries, for
instance. As to the time interest begins to run on contractual liabilities it is immaterial
whether the amount is liquidated or unliquidated. Section 4322 N. C. L.; Concordia Ins. Co.
v. School Dist., 75 L. Ed. 528, at 543; 15 R. C. L. 26. It seems clear that the loss was payable
on April 6, 1935, when a valid award should have been made, that the making of an invalid
award is the same as a breach of contract, and, accordingly, that interest on the amount
actually found due by the court should run from April 6, 1935.
On the matter of mileage of witnesses, the attorneys are fully in accord as to the law being
that the items are proper costs. The cases and the statutes are discussed in the brief of
appellant.
OPINION
By the Court, Ducker, J.:
Plaintiff brought this action to recover the full amount of a policy for the destruction by
fire of a building owned by him and known as the Club Crystal. At the time of the fire
plaintiff held two other policies covering the building, one being issued by the Eagle Star &
British Dominions Insurance Company Limited of London, England, for $3,500, and the
other being issued by the Westchester Fire Insurance Company of New York, for $3,000, on
which suits were also instituted. The policies contain the same provisions except as to
amount. The suit against the London company was removed to the federal court.
The complaint in this case contains the usual allegations for recovery on a fire insurance
policy. The answer admits the refusal to pay the full amount of the policy, alleges the
inability of the parties to agree on the amount of the loss, the submission of the
controversy pursuant to policy provisions to two appraisers and an umpire, the award by
one of the appraisers and the umpire, in the sum of $S64, the offer and willingness of the
company to pay the same, and the refusal of the insured to accept it.
57 Nev. 370, 376 (1937) Agricultural Ins. Co. v. Biltz
the policy, alleges the inability of the parties to agree on the amount of the loss, the
submission of the controversy pursuant to policy provisions to two appraisers and an umpire,
the award by one of the appraisers and the umpire, in the sum of $864, the offer and
willingness of the company to pay the same, and the refusal of the insured to accept it.
The reply admits these allegations and prays that the award be set aside on certain
equitable grounds, and that plaintiff have judgment against defendant for $2,000, the amount
of the policy. Finding for plaintiff on all issues, the court set aside the award and entered
judgment for him in the sum of $2,000 damages, with interest thereon at the legal rate from
April 6, 1935, the date of the award.
The appeal is from the judgment and order denying defendant's motion for a new trial. We
will continue to refer to the parties as they were in the court below.
Plaintiff and defendant's adjuster, having been unable to settle the loss, the parties had
recourse to arbitration under the following provisions of the policy:
In the event of a disagreement as to the amount of loss the same shall, as above provided,
be ascertained by two competent and disinterested appraisers, the insured and this company
each selecting one, and the two so chosen shall first select a competent and disinterested
umpire; the appraisers together shall then estimate and appraise the loss, stating separately the
sound value and damage, and failing to agree shall submit their differences to the umpire; and
the award of any two shall determine the amount of such loss.
Plaintiff appointed one George W. Lott as an appraiser, and defendant appointed one
Frank Maloney. These appraisers, who were in fact arbitrators, selected one J. R. Wolert, as
umpire. The award was made by Maloney and Wolert in the sum stated in the answer. Lott
refused to join in it.
1. Defendant contends, first, that we should reverse the judgment because the plaintiff,
in the appointment of an appraiser, and throughout, sought an unfair and unconscionable
advantage in the arbitration.
57 Nev. 370, 377 (1937) Agricultural Ins. Co. v. Biltz
the judgment because the plaintiff, in the appointment of an appraiser, and throughout, sought
an unfair and unconscionable advantage in the arbitration. Accordingly, it is argued that the
court should apply the equitable maxim that he who comes into equity must come with clean
hands, and leave the parties where they were found at the inception of the litigation. We need
not determine this point because the record does not disclose that it was urged in the court
below. It is well established in this jurisdiction by a long line of decisions that a point not
urged in the lower court will not be considered on appeal. McLeod v. Lee, 17 Nev. 103, 28 P.
124; Studebaker Bros. Co. v. Witcher, 44 Nev. 468, 199 P. 477; Bralis v. Flanges, 45 Nev.
178, 199 P. 475; Paterson v. Condos. 55 Nev. 260, 30 P. (2d) 283.
2. A major objection to the judgment is that the evidence is not sufficient to justify the
action of the court in setting aside the award. This contention has been elaborately argued
with reference to all of the grounds on which the trial court set the award aside. The reply
alleges, among other things, that plaintiff was denied the right to present evidence to the
arbitrators and umpire. Included in the findings is one to that effect, and we are of the opinion
that it is sustained by substantial evidence. It is, therefore, unnecessary to consider whether
any of the other findings have such legal support. On the issue of reasonable opportunity to
present evidence we feel that it would result in useless extension of this opinion to detail the
evidence tending to support the finding made thereon, and will state it in substance only.
The first meeting of the arbitrators and umpire was held at Sacramento, Calif., in February
1935; a second meeting at the site of the Club Crystal at Lake Tahoe on April 3, 1935; and a
third and final meeting at Truckee, Calif., April 6, 1935. At the first meeting, besides the
arbitrators and umpire, Mr. George Springmeyer, Mr. W. N. Ball, and Mr. Joe King were
present.
57 Nev. 370, 378 (1937) Agricultural Ins. Co. v. Biltz
Mr. Springmeyer is an attorney for plaintiff, and Mr. Ball is the adjuster for the insurance
company.
Mr. King was a witness for plaintiff. He was a former owner of the Club Crystal. In
answer to a question by Springmeyer about the first meeting, he testified:
Well, when we first met there we were all pretty friendly and started discussing the thing,
and, as I remember, you told Mr. Ball and Mr. Maloney we wanted to do this right and
legally, and you wanted to present certain evidence and certain witnesses before the board of
arbitrators, and you expected to be present yourself and wanted Mr. Ball to be present each
time, and Mr. Maloney told you you had nothing more to do with it and they would meet
whenever they felt like it, and he would get all the evidence they wanted.
In reply to another question by Springmeyer, he testified: * * * You seemed to have quite
an argument as to who would be present at this meeting of the board. You insisted on being
present, and also asked that Mr. Ball be present when any witnesses or any evidence was
presented, and Mr. Maloney insisted they would have the meetings when they pleased, that
you had nothing more to do with it, it was entirely before the board and he would get what
evidence they needed.
King was present at the meeting at the site, and concerning the condition existing there
testified: The ground was covered with snow, I should say four or five inches; in fact, so
much you couldn't determine the site. * * * At this meeting he said Maloney said some hard
things about him. Asked by Springmeyer if anything was said in the meeting about witnesses,
King replied: You said you had some further witnesses you wanted to bring in, you wanted
to bring in some carpenters and someone else to testify as to the size of the building, the
approximate cost, so forth, and Mr. Maloney said he didn't need any more witnesses; didn't
need any more evidence. * * * You asked me about the cost of the building, or rather you
asked Mr.
57 Nev. 370, 379 (1937) Agricultural Ins. Co. v. Biltz
Maloney to consult me about the cost of the building. * * * He (Maloney) said he didn't trust
me, he intimated I was quite a liar.
On cross-examination concerning his testimony at the Sacramento meeting this witness
was asked: Now, what information have you given here in Court today that you didn't give at
the Sacramento meeting? He replied, in substance, that he gave no information there as to
the size of the building, and the materials put in; that Springmeyer asked him once about the
size of the building and when he told him Mr. Maloney jumped up and said that was wrong
and didn't care to hear any more about it. The witness testified that that was about all the
information he gave and that, as far as he knew, no one else gave any information at the
Sacramento meeting.
George W. Lott was a witness for plaintiff at the trial. On this phase of the case he
testified: We went to the site of the building and it was agreed on in Sacramento we were to
go there and recheck the size of this building, the structure. We found that ground in very bad
condition. Although we did try to determine the length of the building from the road, it was
hard to accomplish anything, and at that time Mr. Springmeyer suggested that Mr. King
enlighten the thing by giving his idea of the dimensions and construction of the building. At
that time Mr. Maloney said there wasn't any use of Mr. King saying anything, he wouldn't
believe him on a stack of Bibles, and Mr. Ball made some remark carrying practically the
same weight, but finally all of them stepped the building off and gave the different ideas from
fifty to eighty feet. Mr. Springmeyer insisted * * * that all evidence should be listened to and
more evidence should be given to determine the structure and size of the building. At that
time I suggested we come back at another time when the ground could be seen and rechecked
for the size. That was my idea when we left, that would be done.
57 Nev. 370, 380 (1937) Agricultural Ins. Co. v. Biltz
Concerning the meeting in Truckee, Lott testified, in part: Mr. Maloney said: Let's get
the thing started.' I said: I didn't feel like getting started, I didn't think things were ready, and
I said I didn't think any one in the bunch knew anything about it,' and I said I think Mr.
Springmeyer should be present.' * * * I asked him (Maloney) several times'I wanted more
evidence and I wanted it right. * * * I wanted to find somebody who had worked on the
building and knew how the building was constructed. I had never seen the building, knew
nothing about it.' * * * I said, There is no use going on, stop right now until we find out how
big this building is; let's get Mr. Springmeyer and see if he knows somebody that can tell and
if he can't we will have to guess at it.'
George Springmeyer testified in substance as follows: Maloney resented his appearance at
the Sacramento meeting, and said it was a matter for the arbitrators to decide in their own
way and that no one else had any right to be present. I will get my evidence by myself in any
way I see fit and you or nobody else will know anything about it; I will work this thing out the
way I wished, he said, because I have done this before. The witness testified that he stated
to the board: I have made it clear to you by my letters, and I am going to stand upon the
proposition, that every time you consider anything whatever I want to be present and hear
what is said and know what is being done, and examine any sort of evidence you may have. I
want also to have the opportunity of presenting my own evidence so that we can establish
value just as value would be established in a court of law. According to this witness, when
the meeting was held at the site of the building, there was from eight to ten inches of snow on
the ground. There, he contended, Maloney assumed the same attitude of opposition to his
right to present evidence. The latter had no witness there but King, whom he asked various
questions about the building. Maloney said he would not believe King under oath. "I don't
want to listen to any evidence," he said, "I will get my own evidence in my own way."
Springmeyer said: "I notify you again that when you fix a date which is convenient to
every one I will have witnesses present who will testify to all the details and items
concerning this building." "Mr.
57 Nev. 370, 381 (1937) Agricultural Ins. Co. v. Biltz
not believe King under oath. I don't want to listen to any evidence, he said, I will get my
own evidence in my own way. Springmeyer said: I notify you again that when you fix a
date which is convenient to every one I will have witnesses present who will testify to all the
details and items concerning this building. Mr. Lott or Mr. Wolert said, the witness stated,
We will come back here another time when the snow is off and will find out if we possibly
can the size of the building.
Springmeyer testified further that on April 5, 1935, in Reno, Maloney called him on the
telephone inquiring as to the whereabouts of Lott, and said in the course of the conversation
that he wanted to get through with this. The witness testified that he said to Maloney,
Whenever you men consider any evidence, I have further evidence to offer, and you are not
going to do anything unless I am present. Besides, there was no understanding as to the time
and place when we left Crystal Bay except we were going back to Crystal Bay some time later
and hear more evidence; you are not going to get through with it tomorrow because I am
going to Stanford to see Mrs. Springmeyer and I am leaving on the nine o'clock train.
3, 5. We need not state the testimony of defendant's witnesses on this point. It merely
raises a conflict of evidence, which, under a long standing rule, must be resolved in favor of
the finding of the trial court. The fact, if it is a fact, as defendant contends, that we are dealing
with a common-law arbitration does not affect the rule of the finality of substantial evidence
on disputed questions of fact. Nor does the language in Steel v. Steel, 1 Nev. 27, relied on by
defendant, affect this rule. There the court was speaking of the determinative quality of an
award as against mere errors of law or fact involved in a given case. As to these, an award has
the character of conclusiveness. But we are dealing with an issue in which an arbitrator and
umpire have allegedly acted beyond the scope of their authority, namely, in depriving a party
of the right to present evidence.
57 Nev. 370, 382 (1937) Agricultural Ins. Co. v. Biltz
namely, in depriving a party of the right to present evidence. In this situation equity
intervenes and the finding of the lower court based on substantial evidence as to that issue
may not be disturbed. The case of Firemen's Fund Ins. Co. v. Flint Hosiery Mills (C. C. A.),
74 F. (2d) 533, 104 A. L. R. 556, pressed upon us in support of defendant's position does not
aid him because the rule is not the same. In the federal jurisdiction the appellate court is not
bound by a decision of the lower court made on conflicting evidence, in a case in equity, but
tries it de novo. In our jurisdiction the rule applies in equity as well as in an action at law.
Costello v. Scott, 30 Nev. 43, 93 P. 1, 94 P. 222; Schmidt v. Horton, 52 Nev. 302, 287 P.
274.
6. Defendant's counsel seeks to bring the point within the scope of the exception
recognized and applied in Smith v. Goodin, 46 Nev. 299, 206 P. 1067, and Valverde v.
Valverde, 55 Nev. 82, 26 P. (2d) 233. To this end the credibility of the testimony of plaintiff's
witnesses has been repeatedly assailed. As to this contention, we say that their testimony is
not of the weak and inconclusive character deemed to be without legal weight in those cases.
Again, defendant contends that the arbitrators and umpire were chosen as experts and,
therefore, under a well-established rule, were entitled to make an award based on their
technical knowledge of the subject-matter of the arbitration. In answer we say there is nothing
in the agreement for arbitration to indicate that the matter was to be decided without the
parties being heard and accorded the right to present evidence. Moreover, the character of the
subject matter of the dispute, to wit, the total destruction of a building and fixtures by fire,
forbids an inference that the arbitrators and umpire were chosen as experts to decide the
matter from their own knowledge. As stated in Omaha v. Omaha Water Co., 218 U. S. 180,
30 S. Ct. 615, 617, 54 L. Ed. 991, 48 L. R. A. (N. S.) 1084:
The dispute concerned the thing which had been destroyed, the value of something which
was not to be inspected and valued from observation because it was not in existence.
57 Nev. 370, 383 (1937) Agricultural Ins. Co. v. Biltz
inspected and valued from observation because it was not in existence. Evidence was
therefore essential to show what had been destroyed as well as its value.
7. It is well settled that parties are entitled to be heard and present evidence before the
arbitrators, and depriving a party of such substantial right is misconduct that will render the
award invalid. Christenson v. Cudahy Packing Co., 198 Cal. 685, 247 P. 207; Modern System
Bakery v. Salisbury, 215 Ky. 230, 284 S. W. 994; City of Auburn v. Paul, 113 Me. 207, 93 A.
289, Ann. Cas. 1917e, 136; Second Soc. of Universalists v. Royal Ins. Co., 221 Mass. 518,
109 N. E. 384, Ann. Cas. 1917e, 491; Day v. Hammond, 57 N. Y. 479, 15 Am. Rep. 522;
Coons v. Coons, 95 Va. 434, 28 S. E. 885, 64 Am. St. Rep. 804; Dufresne v. Marine Ins. Co.,
157 Minn. 390, 196 N. W. 560; Aetna Ins. Co. v. Hefferlin (C. C. A.), 260 F. 695; Halstead v.
Seaman, 82 N. Y. 27, 37 Am. Rep. 536; 2 R. C. L. p. 378-9; 5 C. J. pp. 84, 93; 2 Am. Juris. p.
929; Morse on Arbitration and Awards, pp. 117, 536; Russell on Arbitration and Awards, pp.
171, 442, 443.
8. The defendant contends that there was never a sufficient offer of evidence on the part of
plaintiff to afford an adequate basis for the finding that he was denied this right. We think the
testimony which the trial court accepted as most credible was sufficient in this regard. True,
Springmeyer did not state the names of the witnesses he proposed to produce, but it seems
that the names of witnesses having first-hand information of the value of the building were
not then known to him. However, he did state in a general way the character of the evidence
he wished to adduce which was material to establish the value. The only witness he had at the
meeting at the site was denounced by Maloney as unworthy of belief. His mind, according to
King, Lott, and Springmeyer, was closed to the reception of any evidence which plaintiff
could present, and closed from the beginning of the arbitration at Sacramento. He had an
erroneous notion of the duties of an arbitrator not acting in the capacity of an expert.
57 Nev. 370, 384 (1937) Agricultural Ins. Co. v. Biltz
arbitrator not acting in the capacity of an expert. The meeting at the site does not seem to
have been productive of anything but dissension. It was not considered final and the
circumstances were such as to induce Springmeyer to believe that there would be another
meeting at which he would have the opportunity, at least, to offer evidence of the kind he
indicated. He was not afforded such right, and this was fatal to the award.
We have given due consideration to the evidence as a whole and find that it adequately
supports the judgment. This is so without regard to whether the escalator (outside elevator)
and neon sign are covered by the policy. (Defendant insists they are not.) It appears from the
record that the court did not take these into consideration in evaluating the damages suffered.
It is contended that the bar and back bar should not have been considered because they
were trade fixtures and not covered by the policy. Plaintiff contends that they were permanent
fixtures and insured with the building. We need not determine their character in this regard
for their value was found to be $900, and the value of the building $9,500. Therefore if they
had been left out of the account by the court in ascertaining the value of the latter there would
still be a value in excess of $8,500, the total of the three insurance policies.
9. It is contended that the trial court erred in allowing interest on the judgment from April
6, 1935, instead of from date of judgment, March 5, 1936. We are also of this opinion.
Section 4322 N. C. L., insofar as it is applicable, provides:
When there is no express contract in writing fixing a different rate of interest, interest
shall be allowed at the rate of seven per cent per annum upon all money from the time it
becomes due, in the following cases:
(a) Upon contracts, express or implied, other than book accounts.
The policy of insurance is a contract and contains the following stipulation:
The loss shall not become payable until sixty days after notice, ascertainment,
estimate, and satisfactory proof of loss herein required have been received by this
company, including an award by appraisers where appraisal has been required."
57 Nev. 370, 385 (1937) Agricultural Ins. Co. v. Biltz
after notice, ascertainment, estimate, and satisfactory proof of loss herein required have been
received by this company, including an award by appraisers where appraisal has been
required.
This stipulation provides methods for establishing the loss, in other words, for liquidating
the claim and fixing a time thereafter for payment. But as there was no satisfactory proof of
loss, or valid award, the demand was unliquidated until the rendition of judgment.
10. The money did not become due under the statute until then. The statute is in harmony
with the general rule that interest is not recoverable upon unliquidated demands, but is
allowable only after such demands have been merged in a judgment. 33 C. J. 211. Our
conclusion is sustained by the ruling in Stemmer v. Insurance Company, 33 Or. 65, 49 P. 588,
53 P. 498, 504. In that case the insured sued to set side the award of arbitrators. The award
was upheld. On the question of plaintiff's claim for interest from the time of his loss, the court
said:
The suit is not prosecuted to recover the amount awarded, and the damage sustained by
plaintiff, although ascertained by the appraisers, was unliquidated until the decree was
rendered, for which reason there was no error in refusing to allow interest.
The statement quoted from 15 R. C. L. 26, and asserted as the law of this case, is not
applicable. It regards interest allowed as damages when the amount of damages is more or
less in the discretion of the court. Such is not this case. Here interest is allowable only by
reason of the statute.
11. The court denied defendant's motion to retax costs for mileage for five witnesses for
thirty-two miles at 15 cents per mile from Reno, Washoe County, to Carson City, in Ormsby
County, where the case was tried. The parties agree that the items of mileage are proper to be
allowed as costs, and as their view is contrary to the decisions of this court, they have
stipulated that we may determine the question.
57 Nev. 370, 386 (1937) Agricultural Ins. Co. v. Biltz
They contend that said items are allowable as costs notwithstanding section 8978 N. C. L.,
which provides in part:
No person shall be required to attend as a witness before any court, judge, justice, referee,
or other officer, out of the county in which he resides, unless the distance be less than thirty
miles from his place of residence to the county of trial.
We do not agree with counsel. This court has uniformly held that fees for mileage of
witnesses cannot be taxed as costs when not subpenaed in the case according to law. Meagher
v. Van Zandt, 18 Nev. 230, 2 P. 57; Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P.
188; Bream v. Nevada Motor Company, 51 Nev. 100, 269 P. 606; Warren v. De Long, 57
Nev. 131, 59 P. (2d) 1165.
The rulings in those cases turned on the construction given the words required to attend
appearing in the statute in force when the decisions were made (Comp. Laws 1873, sec.
2742), which provides:
Witnesses required to attend in any of the Courts of this State shall be entitled to the
following fees [compensation].
It was held that one was not required to attend as a witness save when a subpena was
served upon him. The said witnesses in the instant case were not required to attend because of
said section 8978.
Counsel concede the soundness of Zelavin v. Tonopah Belmont Dev. Co., supra, which
was decided in 1915. But they refer us to section 8934 N. C. L., as amended by Stats. of 1919
at page 56, and say that in Bream v. Nevada Motors Company, supra, decided in 1928, we
overlooked the change wrought by the amendment. They insist that the following part thereof
was intended to change the rule of the former case:
Issuance or service of subpena shall not be necessary to entitle a prevailing party to tax,
as costs, witness fees and mileage, provided that such witnesses be sworn and testify in the
cause. Stats. 1919, p. 56.
57 Nev. 370, 387 (1937) Agricultural Ins. Co. v. Biltz
This amendatory statute was approved March 10, 1919. Whether the legislature of 1919
intended thereby to effect such change is of no consequence, for it is clear that a subsequent
enactment by the same legislature approved March 26, 1919, is decisive of the question
against counsels' contention. The pertinent part of this statute reads:
1. Witnesses required to attend in the courts of this state shall receive the following
compensation. Section 8490 N. C. L.
12, 13. We must presume that the legislature employed the words witnesses required to
attend as they have been construed by this court. Being the later enactment, it is controlling
under a well-settled principle of law.
We observe that the legislature of 1933 employed the same words in amending section
8490 N. C. L., Stats. 1933, p. 68, c. 60, sec. 1.
As the five witnesses in this case were not required to attend, their mileage should not
have been allowed as costs.
The trial court is ordered to retax the costs in accordance with these views.
That part of the judgment allowing interest from April 6, 1935, is modified so as to allow
interest at 7 percent per annum from the date of judgment.
As so modified, the judgment and order denying defendant's motion for a new trial are
affirmed.
____________
57 Nev. 388, 388 (1937) Westchester Fire Ins. Co. v. Biltz
WESTCHESTER FIRE INSURANCE COMPANY OF NEW YORK,
a Corporation, Appellant, v. NORMAN BILTZ, Respondent.
No. 3155
February 6, 1937. 64 P. (2d) 1048.
Appeal from First Judicial District Court, Douglas County; Clark J. Guild, Judge.
L. D. Summerfield, Lillick, Olson, Levy & Geary, for Appellant.
George Springmeyer and Douglas A. Busey, for Respondent.
By the Court, Ducker, J.:
The issues in this action and in action No. 3154, in which Agricultural Insurance Company
of Watertown, N. Y., a corporation, is appellant, and Norman Biltz is respondent, 54 P. (2d)
1042, decided in this court on this date, are identical save as to the amount of the insurance
policies involved. They were consolidated and tried as one. In the instant case, judgment was
entered for plaintiff that he recover from defendant the sum of $3,000 damages (the amount
of the policy) with interest thereon at legal rate from April 6, 1935, the date of award.
The actions were heard as one on appeal and it was stipulated that a separate decision
should be rendered in each case.
Therefore, on the authority of said Agricultural Insurance Company of Watertown, N. Y., a
corporation v. Norman Biltz (Nev.) 64 P. (2d) 1042, No. 3154, it is ordered that that part of
the judgment herein allowing interest from April 6, 1935, is modified so as to allow interest
at 7 percent per annum from date of judgment.
It is further ordered that the costs in this case be retaxed by the trial court on the basis
ordered in the companion case mentioned.
57 Nev. 388, 389 (1937) Westchester Fire Ins. Co. v. Biltz
The judgment as so modified and the order denying the defendant's motion for a new trial
are affirmed.
____________
57 Nev. 389, 389 (1937) Agric. Ins. Cos. v. Biltz; Westchester Fire Ins. Co. v. Blitz
AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, N. Y.,
a Corporation, Appellant, v. NORMAN BILTZ, Respondent.
WESTCHESTER FIRE INSURANCE COMPANY OF NEW YORK,
a Corporation, Appellant, v. NORMAN BILTZ, Respondent.
Nos. 3154, 3155
On Petition for Rehearing
April 8, 1937.
L. D. Summerfield, for Appellants.
George Springmeyer and Douglas A. Busey, for Respondent.
Per Curiam:
The petition of appellant for a rehearing in the above-entitled cause is hereby denied.
The petition of respondent for a rehearing in said cause is hereby granted, limited solely to
the question of costs on appeal.
On Rehearing
June 3, 1937. 64 P. (2d) 568.
1. Costs.
The supreme court has jurisdiction to exercise its discretion and make order as to costs on appeal.
2. Costs.
Where relatively small change in judgments was made by supreme court's order of modification, court
would give appellants costs only for clerk's fees, typewriting judgment roll, notices of appeal, and waivers
of undertaking on appeal, for typewriting portion of opening and closing briefs pertaining to matter which
was modified on appeal and pertaining to matter stipulated for decision by parties.
57 Nev. 389, 390 (1937) Agric. Ins. Cos. v. Biltz; Westchester Fire Ins. Co. v. Blitz
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
On rehearing. Original opinions modified as to costs.
For former opinions, see 57 Nev. 370, 64 P. (2d) 1042; Westchester Fire Ins. Co. of New
York v. Biltz, 57 Nev. 388, 64 P. (2d) 1948.
L. D. Summerfield, for Appellants.
George Springmeyer, Douglas A. Busey, and Bruce Thompson, for Respondent.
OPINION
By the Court, Ducker, J.:
A rehearing was granted respondent on the sole question of costs on appeal. In our original
opinions the judgments of the lower court were modified and no orders were made in
reference to the costs on appeal. 57 Nev. 370, 64 P. (2d) 1042; 57 Nev. 388, 64 P. (2d) 1048.
Consequently under the statute (section 8928 N. C. L.), unless we now order otherwise,
appellants are entitled to have as costs the entire expense of preparing the transcript of the
record on appeal and in presenting the matter to this court, having obtained some relief. In
deciding the cases we inadvertently omitted making orders as to costs. Hence the granting of
this rehearing.
Respondents contend that as the judgments were reduced in very small amounts and the
point on which the reductions were ordered were presented on the judgment roll, appellants
should be allowed only such costs as were incident to the proper presentation of that point.
He concedes that they should be allowed costs for such portions of the briefs as were devoted
to the question of mileage of witnessesa question stipulated for decision to this court.
57 Nev. 389, 391 (1937) Agric. Ins. Cos. v. Biltz; Westchester Fire Ins. Co. v. Blitz
Appellants obtained no relief on the appeals from the orders denying their motions for new
trials. The judgments against them for $5,000, with the interest thereon at the legal rate from
April 6, 1935, were, by our decisions, modified to the extent of allowing such interest only
from March 5, 1936, the date of judgment.
1. We are satisfied that this court is not without jurisdiction to exercise its discretion and
make an order as to costs on appeal.
2. Considering the relatively small change made in the judgments by our orders of
modification, together with all the circumstances of the cases, we believe that it is equitable
that appellants should have costs only for clerk's fees; for typewriting judgment roll, notices
of appeal, and waivers of undertaking on appeal; and for typewriting that portion of opening
and closing briefs pertaining to interest and mileage.
It is so ordered, and that our original opinions be, and they are hereby, modified to such
extent.
____________
57 Nev. 391, 391 (1937) Hilton v. Hymers
ROY HILTON, as Administrator of the Estate of Gertrude Hilton,
Deceased, Respondent, v. LEWIS HYMERS, Appellant.
No. 3166
March 1, 1937. 65 P. (2d) 679.
1. Negligence.
In damage suit, negligence on part of defendant is not presumed from mere fact of
injury.
2. Appeal and Error.
Where evidence is conflicting and there is substantial evidence to support judgment, the
supreme court will not reverse judgment.
3. Automobiles.
In action for death of decedent in automobile collision at street intersection, evidence
held to sustain finding that defendant who approached intersection from deceased's right
was guilty of negligence in driving his automobile into that of deceased.
57 Nev. 391, 392 (1937) Hilton v. Hymers
4. Negligence.
In damage suit defendant must establish plea of contributory negligence by preponderance of evidence.
5. Automobiles.
Statute regarding right of way at intersections must be construed and applied with aim to promote safety
and at same time facilitate travel (Comp. Laws, sec. 4358).
6. Automobiles.
Statute providing that, where two automobiles approach street intersection and there is danger of
collision, automobile approaching from right shall have right of way, held applicable when automobiles
approach intersection in such manner that their paths will intersect and there is danger of collision, as
against contention that one approaching intersection from left should not enter intersection if automobile is
in sight approaching from right (Comp. Laws, sec. 4358).
7. Appeal and Error.
Whether motorist, more than half way across intersection when her automobile was struck by defendant's
automobile approaching from right, was contributorily negligent held for trier of facts (Comp. Laws, sec.
4358).
8. Appeal and Error.
A point, not jurisdictional, cannot be raised for first time in supreme court.
9. Appeal and Error.
In action for death of decedent in automobile collision at street intersection where judgment was entered
for plaintiff and defendant moved for new trial, supreme court on appeal could not consider question of
excessive damages where point was not raised on motion for new trial or otherwise in trial court (Stats.
1935, c. 90, secs. 2, 9).
10. Trial.
A decision is announcement by court of its judgment.
11. Costs.
Supreme court would deny motion to assess damages against defendant for prosecuting appeal for delay
merely, where facts did not show appeal was not taken in good faith (Stats. 1935, c. 90, sec. 28).
Appeal from First Judicial District Court, Douglas County; Clark J. Guild, Judge.
Action by Roy Hilton, as administrator of the estate of Gertrude Hilton, deceased, against
Lewis Hymers. Judgment for plaintiff, and defendant appeals. Affirmed.
Thomas F. Ryan, for Appellant:
It is a general proposition that negligence on the part of the defendant is not presumed
from the mere fact of injury.
57 Nev. 391, 393 (1937) Hilton v. Hymers
of the defendant is not presumed from the mere fact of injury. 45 C. J. sec. 739, p. 1148; 21
Am. and Eng. Encyc. of Law (2d ed.), 510. Therefore, it is necessary for the plaintiff to prove
a case within the rules of law laid down by the courts.
We submit that the evidence in the case shows that the negligence of Gertrude Hilton was
the sole proximate cause of the accident and the injuries causing her death, or, if there was
any negligence on the part of the defendant, then the contributory negligence of Mrs. Hilton,
which is amply shown by the evidence, precludes any recovery by the plaintiff. Crosman v.
Southern Pacific Co., 44 Nev. 286, 194 P. 839; Cox v. Los Angeles & Salt Lake R. R. Co., 56
Nev. 192, 47 P. (2d) 934.
We submit that the sum of $9,500 is grossly in excess of the amount of Mr. Hilton's
expectation of pecuniary benefit to be derived from deceased. Christensen v. Floriston P.
and P. Co., 29 Nev. 552, 92 P. 210.
The portion of section 54 of the Reno traffic ordinance which is in conflict with section
4358 N. C. L. is of no validity.
L. D. Summerfield and A. Ross Schindler, for Respondent.
The negligence of the defendant is proved by the testimony of the witnesses Walters, Day,
Pressell, Mrs. Pressell, Laiolo, Pfeiffer, Barnes, and the defendant himself.
That Gertrude Hilton was exercising due care and caution at the time of the accident is
proved by the testimony of the witnesses Day, Mr. and Mrs. Pressell, and Barnes.
Contributory negligence is an affirmative defense and the burden is on the defendant to
prove it. 17 C. J. 1305; Konig v. N. C. O., 36 Nev. 182, 135 P. 141; Smith v. Odd Fellows, 46
Nev. 48, 205 P. 796.
Section 4358 N. C. L. does not prevent incorporated cities from making their own
regulations concerning the right of way. 3-4 Huddy (9th ed.), 255, 256. Under the provisions
of the city ordinance, Gertrude Hilton, having first entered the intersection, had the right
of way. 3-4 Huddy {9th ed.), 267.
57 Nev. 391, 394 (1937) Hilton v. Hymers
the provisions of the city ordinance, Gertrude Hilton, having first entered the intersection, had
the right of way. 3-4 Huddy (9th ed.), 267.
The decision of the trial court is conclusive on the questions of negligence and
contributory negligence. Carter v. City of Fallon, 54 Nev. 195, 11 P. (2d) 817.
The point of excessive damages cannot be raised for the first time on appeal, no motion for
a new trial being made in the trial court on that ground.
OPINION
By the Court, Coleman, C. J.:
This is an action to recover damages alleged to have been sustained by reason of the death
of Gertrude Hilton, wife of Roy Hilton, due to injuries received in an automobile accident at
the intersection of Arlington avenue and Taylor street in Reno.
The complaint, in the first count, charges the defendant with ordinary negligence, and in
the second with willfulness, wantonness, and malice.
The defendant in his answer, denied the allegations of negligence contained in both counts
of the complaint, and pleaded contributory negligence on the part of deceased.
In view of the fact that the trial court found against the plaintiff on the second count, we
will make no further reference to it.
The case was tried to the court. Judgment was rendered in favor of plaintiff on the first
cause of action, from which, and an order denying a motion for a new trial, the defendant has
appealed.
The parties will be referred to as in the lower court.
Arlington avenue runs north and south, and Taylor street runs east and west.
It is the theory of the plaintiff that the deceased, while driving her car, entered the
intersection in the exercise of due care; that she had the right of way, had actually passed
beyond the center of Arlington avenue, and turned to the north, and while thus occupying
the intersection, the defendant entered said intersection in his automobile, traveling at
more than sixty miles per hour and without exercising care to observe the presence of the
deceased, and in so doing caused the injury resulting in her death.
57 Nev. 391, 395 (1937) Hilton v. Hymers
of due care; that she had the right of way, had actually passed beyond the center of Arlington
avenue, and turned to the north, and while thus occupying the intersection, the defendant
entered said intersection in his automobile, traveling at more than sixty miles per hour and
without exercising care to observe the presence of the deceased, and in so doing caused the
injury resulting in her death.
The court found that the accident was caused solely by the negligence of defendant, and
that deceased was not guilty of contributory negligence. It made many other specific findings,
some of which we will refer to.
Defendant assigns seven errors as grounds for a reversal of the judgment and order
appealed from, all in substance being that the evidence is insufficient to justify the judgment,
save one, which is that the damages awarded are excessive.
1. Counsel for appellant, preliminary to the presentation of his main discussion, says that
as a general proposition, in a damage suit negligence on the part of the defendant is not
presumed from the mere fact of injury, citing 45 C. J. pp. 1148, 1149. We have always
understood such to be the general rule to which there are exceptions. Counsel for the plaintiff
concedes the correctness of the statement, and in the trial of the case called several witnesses
to prove that the accident in question was due to the negligence of the defendant.
There is no testimony by Mrs. Hilton, she having died shortly after the accident.
2. Viewing the testimony in the case as we do, and having in mind the well-known general
rule to the effect that where the evidence is conflicting and there is substantial evidence to
support the judgment there will be no reversal [Butzbach v. Siri, 53 Nev. 453, 5 P. (2d) 533],
we see little reason for reviewing the evidence in this case, except for the apparent
seriousness with which the appeal is prosecuted.
There are no stop signs at the intersection in question, and the city ordinance limits the
speed of automobiles in that vicinity to twenty miles per hour, and in intersections to
twelve miles per hour.
57 Nev. 391, 396 (1937) Hilton v. Hymers
and the city ordinance limits the speed of automobiles in that vicinity to twenty miles per
hour, and in intersections to twelve miles per hour.
Let us now inquire if there was substantial evidence to sustain the finding that deceased
was in the exercise of due care at the time of the accident.
H. J. Day testified that on the afternoon of the accident he was in the rear end of his lot,
which is on the south side of Taylor street and the west side of Arlington avenue, facing
Arlington avenue; that while he was there deceased passed, going along Taylor street in an
easterly direction, at about fifteen miles per hour; that after she passed he went over and
turned on the water, then went and picked up the hose, and was watering the grass when he
heard a noise sounding like a ton of dynamite; that he observed the situation and had his wife
telephone for the ambulance; and that he went over and helped remove Mrs. Hilton from
beneath her car.
Willis R. Pressell testified that at the time of the accident in question he resided at 815
Arlington avenue, being the fourth lot north of Taylor street, the intervening lots being
vacant; that at the time of the accident, between 1 and 2 o'clock in the afternoon, he and his
wife, who were in the basement, heard a loud crash and a loud squeal; that he went over to
where the cars were, and helped extricate the deceased; and that he examined the Hilton car
and found it was in second gear. Mildred M. Pressell, wife of Willis R. Pressell, testified to
the same state of facts.
Carl C. Barnes testified that he had resided in Reno for about thirty years and had driven
automobiles practically every day since 1910; that he had driven numerous makes of cars, and
in many races; that on the afternoon of the day of the accident in question he was driving
north on Arlington avenue, and that the car of defendant passed him, going north, one block
south of the place of the accident, at which time it was traveling at about sixty or sixty-five
miles an hour; that he observed the car driven by deceased, as it approached Arlington
avenue, and that it was going about thirteen miles an hour; that the rear of her car was
just over the center of the intersection, to the east; that he looked at his speedometer and
it showed he was going between twenty-five and thirty miles an hour, nearer thirty than
twenty-five.
57 Nev. 391, 397 (1937) Hilton v. Hymers
at about sixty or sixty-five miles an hour; that he observed the car driven by deceased, as it
approached Arlington avenue, and that it was going about thirteen miles an hour; that the rear
of her car was just over the center of the intersection, to the east; that he looked at his
speedometer and it showed he was going between twenty-five and thirty miles an hour, nearer
thirty than twenty-five. He also testified that it was his best judgment that deceased was
making a turn to the north after entering the intersection, and that he saw the deceased
making a movement of the arm, such as a person might make after signaling for a turn or
reaching for the top of the steering wheel.
Walter Walters testified that he was twenty-six years old; that he had driven ever since he
was fourteen years old, and nearly every kind of car; that on the afternoon of the accident he
was driving a Ford V-8 long Arlington avenue into Reno, and that the defendant passed him,
going at the rate of seventy miles per hour; that he was going thirty-five miles an hour; and
that defendant went two blocks while he was going one.
Ernest Pfeiffer testified that he is about fifty-three years old, and had been an invalid for
about ten years; that he had driven automobiles from 1908 to about 1931, and had ridden in
them since; that on the afternoon of the accident he and Paul Laiolo were sitting on his porch,
which faces Arlington avenue, according to his habit on good days ever since he had become
afflicted; that he had observed cars go by during those years; and that on the afternoon in
question he saw defendant's car pass at a terrific speed, and in about three and a half seconds
heard a terrible crash a block awayat the intersection of Taylor street and Arlington avenue,
where he saw the wrecked cars.
Paul Laiolo testified that he was eighteen years old and had just completed his sophomore
year as a student at the University of Nevada, at the time of testifying; that he visited with Mr.
Pfeiffer on his porch probably two or three times a week; that he observed defendant's car
pass on the afternoon of the accident; that while sitting there he heard the car
approaching at a high speed {that he was a poor judge of speed, but was of the opinion
the car was going at least forty miles an hour when it passed the Pfeiffer home); that as it
passed either he or Mr.
57 Nev. 391, 398 (1937) Hilton v. Hymers
two or three times a week; that he observed defendant's car pass on the afternoon of the
accident; that while sitting there he heard the car approaching at a high speed (that he was a
poor judge of speed, but was of the opinion the car was going at least forty miles an hour
when it passed the Pfeiffer home); that as it passed either he or Mr. Pfeiffer remarked: That
fellow is flying. He was asked how long it was from the time the defendant's car passed until
he heard the crash, to which he answered: Well, I would say after my eyes left the
automobile I turned back facing north and caught the glimpse of the other automobile that
turned over; and in that statement That fellow's a flying' was made, that instant, there was a
crash. I would say it wouldn't take more than three to four seconds, perhaps less.
The defendant testified that at the time of the accident he was driving on the right-hand
side of Arlington avenue; that his usual speed on that street was between thirty and thirty-five
miles per hour, and he estimated he was going at that speed at the time of the accident; that
the first he saw of the car driven by deceased was at the time the cars crashed; that he glanced
down Taylor street, to the west, when he was in about the middle of the block, but saw
nothing approaching. He testified that as he was driving along Arlington toward Taylor he
observed a lot of children playing ball on his right (east side of Arlington), and that he kept
his attention centered on the children because he had a horror of running into a child.
Lee Arthur, a witness called in behalf of the defendant, testified that he was an automotive
engineer; that he had had three years at the University of Michigan, but did not take a degree;
that he had been with several large organizations, among them General Motors and General
Electric, for which he worked, not as an automotive engineer, but internal combustion. He
gave other testimony relative to his qualification to give testimony as to the maximum speed
at which defendant's car was going at the time of the accident, basing his conclusions upon
the injuries sustained by the car of deceased.
57 Nev. 391, 399 (1937) Hilton v. Hymers
car was going at the time of the accident, basing his conclusions upon the injuries sustained
by the car of deceased. He testified that the car was not going over thirty-five miles per hour,
and that twenty-five miles would be near right.
F. H. Sibley, dean of the College of Engineering at the University of Nevada, after
testifying to his educational advantages and experience covering many years, in answer to a
hypothetical question, based upon the facts and circumstances in this case, as testified to,
stated that he could not tell the rate of the speed of defendant's car at the time of the accident.
He gave his reasons for his conclusion.
In addition to this summary of the material oral evidence, there was introduced
photographs showing certain physical facts, such as the two streets at the intersection,
residences in that vicinity, and the general surroundings.
3. From a consideration of all of the evidence in the case, it is clear that we must affirm the
judgment and order appealed from. There can be no doubt but that the trial court was justified
in finding that the defendant was guilty of negligence in driving his car into that of the
deceased. We think there is ample evidence to sustain the finding of the court that defendant
was driving at over sixty miles per hour at the time of the accident. It is not our purpose to
weigh the evidence or to comment upon it at lengthit does not deserve it.
The witness Walters testified that defendant passed him going at the rate of seventy miles
per hour; the witness Pfeiffer testified that defendant passed his hoursone block from the
place of the accidentgoing at a terrific speed, and in about three and one-half seconds
crashed into the car of deceased. Paul Laiolo, who was on Mr. Pfeiffer's porch when
defendant passed, testified that when defendant passed that either Mr. Pfeiffer or he
remarked, That fellow is flying; and though he stated that he thought defendant was going
at about forty miles per hour, he was a poor judge of speed. He added, however, that it was
not more than three or four seconds from the time defendant passed the house before he
heard the crash.
57 Nev. 391, 400 (1937) Hilton v. Hymers
added, however, that it was not more than three or four seconds from the time defendant
passed the house before he heard the crash.
Counsel for defendant ridicules the testimony to the effect that it was about three and
one-half seconds between the time defendant passed Mr. Pfeiffer's house and the time of the
accident. The evidence shows that it is about 400 feet from a point in front of Mr. Pfeiffer's
house to the point of contact of the two cars. A car going at the rate of seventy miles per hour
will take 3.8961038 seconds to go 400 feet.
The witness Barnes testified that defendant passed him at Arlington avenue, one block
from the point of accident, at which time defendant was going about sixty or sixty-five miles
per hour; that he looked at his speedometer; and that he was going nearly thirty miles per hour
when defendant passed him.
The defendant admitted that at the time of the accident he was traveling at between thirty
and thirty-five miles per hour; that he was watching children playing ball on a vacant lot, and
did not see the car of deceased until the moment of the accident.
In the light of this testimony, we do not conceive of any theory upon which we can say the
trial court was not justified in finding the defendant guilty of negligence.
4. The defendant must establish the plea of contributory negligence by a preponderance of
the evidence. To sustain this defense he invokes section 4358 N. C .L. which reads: Where
two vehicles are approaching on any public street or highway so that their paths will intersect
and there is danger of a collision, the vehicle approaching the other from the right shall have
the right of way. and in the same connection asserts that deceased was guilty of contributory
negligence, in that she could see defendant while she was from 40 to 60 feet from the
intersection and he about 175 feet therefrom, and negligently entered the intersection, and that
she violated the city ordinance which provides that one shall not enter an intersection at a
greater speed than twelve miles per hour, and in the same breath contends that the
question at issue was settled by this court in the case of Cox v. Los Angeles & Salt Lake R.
R. Co., 56 Nev. 472
57 Nev. 391, 401 (1937) Hilton v. Hymers
shall not enter an intersection at a greater speed than twelve miles per hour, and in the same
breath contends that the question at issue was settled by this court in the case of Cox v. Los
Angeles & Salt Lake R. R. Co., 56 Nev. 472, 56 P. (2d) 149. Before proceeding further, we
may say that the law of that case is not applicable to the situation in hand.
5, 6. We cannot give section 4358 N. C. L. the rigid construction contended for by
defendant. It seems to be the theory of defendant that one approaching an intersection from
the left should not enter the intersection if a car is in sight approaching from the right. Such is
not the intention of the section. To give it such an interpretation would, in many instances,
result in hindering for a long period the progress of one or many on the left. This section must
be construed and applied in the light of reason and common sensewith a due regard for
autoists approaching from the left as well as for the one approaching from the right, and,
above all, with an aim to promote safety, and at the same time facilitate travel. The courts
must have in mind that the section applies when two vehicles are approaching an intersection
in such a manner that their paths will intersect, and that there is danger of a collision. The
defendant was not in a favored position unless it was dangerous, in all of the circumstances,
for deceased to enter the intersection as she did. In this connection it is insisted that deceased
could see the approach of defendant while he was about 175 feet from the intersection and
when she was from 40 to 65 feet from it, and that she entered it at an unlawful speed. The fact
that the car of deceased was found to be in second gear after the accident, and that she had
gotten more than halfway across the intersection when her car was hit, are circumstances
strongly tending to support the findings.
The Nevada section quoted is identical to a section of the Iowa highway act, which was
construed by the supreme court of Iowa in the case of Sexauer v. Dunlap, 207 Iowa, 101S,
222 N. W. 420, 422, where the court used the following language:
57 Nev. 391, 402 (1937) Hilton v. Hymers
207 Iowa, 1018, 222 N. W. 420, 422, where the court used the following language:
The statute could only become operative under circumstances where the driver of a car
either knew, or by reason of all of the attending circumstances, was chargeable with notice of,
the existence of such intersecting highway. The statute in terms provides that it only becomes
operative in the event that two vehicles are approaching the intersection in such a manner that
their paths will intersect, and also in such a manner that there is danger of collision. It is only
when these two conditions combine that the car approaching from the right has the right of
way. * * * The question of whether or not the appellant was acting as an ordinarily careful
and prudent man when he failed to discover the intersecting road and failed to yield the right
of way to the appellee after he discovered, or should have discovered, the existence of such
road and the approach of the appellee's car thereon, were questions for the determination of
the jury; but it cannot be said, as a matter of law, that the appellant, under the facts disclosed
in this record, was guilty of contributory negligence in driving into said intersection without
yielding the right of way in the same to the appellee. As bearing on this question, see Carlson
v. Meusberger, 200 Iowa, 65, 204 N. W. 432. See, also, Judd v. Rudolph [207 Iowa, 113],
222 N. W. 416 [62 A. L. R. 1174], filed at current term. * * *
In the instant case in view of all the facts and circumstances surrounding the situation, we
think it was a question for the jury to determine whether or not the appellant was guilty of a
violation of the statute, and hence guilty of negligence in failing to sound his horn before
approaching the highway upon which the appellee was driving. In other words, while the
question is a very close one, we do not think, under the record in this case, that the court
could hold, as a matter of law, that the appellant was guilty of negligence in failing to sound
his horn in approaching the intersecting highway.
57 Nev. 391, 403 (1937) Hilton v. Hymers
sound his horn in approaching the intersecting highway.
In any event, upon this branch of the case, even though the appellant was guilty of
negligence in failing to sound his horn in approaching the intersecting highway, it was still a
question for the jury to determine whether or not such negligence, if it existed, contributed to
the resulting injury. It is the usual and general rule that the question of contributory
negligence is a question for the jury, and such rule is applicable to the facts of the instant case
upon this question.
The supreme judicial court of Maine, in Fitts v. Marquis, 127 Me. 75, 140 A. 909, had
under consideration a section very similar to our own, except that it omits the phrases that
their paths will intersect and danger of a collision. In applying the Maine statute to the
facts of that case, the court said: This right of way is not absolute. The statute is a road
regulation and not an inflexible standard by which to decide questions which arise over
collisions at intersections of roads. The law does not confer the right of way without reference
to the distance of the vehicles from the intersecting point, their speed, and respective duties.
Precedence is not given under all circumstances to a vehicle on the right against a vehicle
from the left. No driver, and especially no driver of an automobile, has leave to approach an
intersection without using reasonable watchfulness and caution to have his vehicle under
control. When approaching a highway crossing, as elsewhere on the public ways, eternal
vigilance is essential to the practical matter of driving automobiles. If a situation indicate
collision, the driver, who can do so by the exercise of ordinary care, should avoid doing
injury, though this involve that he waive his right of way. The supreme rule of the road is the
rule of mutual forbearance. Mark v. Fritsch, 195 N. Y. 282, 283, 284, 88 N. E. 380, 22 L. R.
A. (N. S.) 632, 133 Am. St. Rep. 800.
In Shuman v. Hall, 246 N. Y. 51, 158 N. E. 16, 17, in applying the facts of that case to a
statute similar to ours, eliminating the provisions as in the Maine case, after citing certain
cases the court said:
57 Nev. 391, 404 (1937) Hilton v. Hymers
applying the facts of that case to a statute similar to ours, eliminating the provisions as in the
Maine case, after citing certain cases the court said:
As we stated in these cases, it is apparent that the application of this statute must depend
upon all the surrounding circumstances, the distance of the cars from the intersecting point,
the speed, and the relative duties placed upon each. The law does not attempt to say at what
particular point the vehicle having the subordinate right must stop or give way. The main
purpose of this provision is to demand care of the driver commensurate with the danger, and
to require of the driver approaching a street with a vehicle coming from his right to slow up
and let that vehicle pass when their positions are such that a reasonably careful man might
otherwise be in doubt as to which should go first. If the two vehicles are so near the
intersecting point that there is a chance of collision if both keep on at the same speed, then the
statute says the vehicle approaching from the right may take precedence. This is no finespun
distinction. Driving motor cars is a practical matter, and the statute requires and demands care
of both drivers. The highway laws are full of these injunctions, and they are to be obeyed.
Circumstances and conditions vary, and we must apply these injunctions and directions to
give effect to them if possible. The vehicle having the subordinate right must not take
chances, make close calculations, try to slip by on a chance; it must give way to the vehicle
on the right when it is anywhere near the crossing. Only in this way can these serious
accidents be avoided.
On the other hand, the statute cannot be pressed too far. The intersections of all streets
and highways are so numerous that one driver must rely upon the prudence and carefulness of
another. No one driver is to obey the rules; all must obey them. The driver coming from the
right is equally obliged to exercise care.
Other cases in point are: Harris v. Johnson, 174 Cal.
57 Nev. 391, 405 (1937) Hilton v. Hymers
Cal. 55, 161 P. 1155, L. R. A. 1917c, 477, Ann. Cas. 1918e. 560; Smith v. Lenzi, 74 Utah,
362, 279 P. 893; Robinson v. Clemons, 46 Cal. App. 661, 190 P. 203; Huber v. Scott, 122
Cal. App. 334, 10 P. (2d) 150; Pattison v. Cavanagh (Cal. App.), 63 P. (2d) 868.
7. The foregoing decisions so well state our conception of the law as it should be that we
content ourselves with saying that whether or not, under the circumstances, the deceased was
guilty of contributory negligence, was a question to be determined by the trial court, and that
we are not at liberty to say that it clearly appears that the findings and judgment are
erroneous, hence they must be sustained. Consolazio v. Summerfield, 54 Nev. 176, 10 P. (2d)
629.
Counsel for respondent contends that we cannot consider defendant's contention that the
judgment was excessive, for the reason that such contention was not assigned as a ground for
a new trial.
Section 2, Stats. 1935, p. 195, c. 90, reads:
The former verdict or other decision may be vacated, and a new trial granted on the
application of the party aggrieved for any of the following causes materially affecting the
substantial rights of such party: * * *
5. Excessive damages appearing to have been given under the influence of passion or
prejudice.
6. Insufficiency of the evidence to justify a verdict or other decision, or that it is against
law.
7. Error in law occurring at the trial and excepted to by the party making the application.
8. It does not appear that defendant in his motion for a new trial relied upon the ground
that the damages awarded were excessive, or otherwise raised the point in the trial court. It is
a rule established by a long line of authorities that a point, not jurisdictional, cannot be raised
for the first time in this court. Paterson v. Condos, 55 Nev. 260, 30 P. (2d) 283.
9, 10. But counsel for defendant asserts that the last sentence of section 9, chap. 90, Stats.
1935, negatives the idea that one must raise the question involved by a motion for a new
trial before taking an appeal.
57 Nev. 391, 406 (1937) Hilton v. Hymers
the idea that one must raise the question involved by a motion for a new trial before taking an
appeal. We cannot agree with the contention. That section provides that where the appeal is
upon the ground that the evidence is insufficient to justify the verdict or decision, a notice of
intention to move for a new trial must have been filed and served by the unsuccessful party
upon the prevailing party, before the time for an appeal from the judgment has expired. The
last sentence of the section does not apply to this case. The court rendered an oral decision
upon the conclusion of the argument, ordering a judgment in favor of the plaintiff in the
amount complained of. A decision is the announcement by the court of its judgment. Central
Trust Co. v. Holmes, 30 Nev. 437, 97 P. 390; Coleman v. Moore & McIntosh, 49 Nev. 139,
241 P. 217; First Nat'l Bank v. Fallon, 55 Nev. 102, 26 P. (2d) 232.
The appeal as to this point is upon the ground that the evidence is insufficient to justify the
decisionthat is, that the evidence did not warrant the court in giving judgment in the
amount awarded. In support of this contention counsel devotes seven pages of his brief to
presenting and discussing the evidence on this point.
We think that under the express terms of the section relied upon it was obligatory upon
defendant to embody in his notice of intention the ground of excessive damages, if he desired
to raise that point, and not having done so, we cannot consider the evidence to determine that
point. Burbank v. Rivers, 20 Nev. 81, 16 P. 430; State v. Sadler, 21 Nev. 13, 23 P. 799;
Finnegan v. Ulmer, 31 Nev. 523, 104 P. 17; Gill v. Goldfield Con. M. Co., 43 Nev. 1, 176 P.
784, 184 P. 309; Giannotti v. De Bock, 47 Nev. 332, 221 P. 520; Leech v. Armstrong, 52
Nev. 125, 283 P. 396, 287 P. 174.
For the reasons given, the judgment must be affirmed.
11. Counsel for plaintiff, at the time of the argument, moved that damages be assessed to
defendant for prosecuting this appeal for delay merely, pursuant to section 28, chap. 90, Stats.
1935. We cannot say that the facts in the case justify us in saying that the appeal was not
taken in good faith; hence the motion is denied.
57 Nev. 391, 407 (1937) Hilton v. Hymers
the facts in the case justify us in saying that the appeal was not taken in good faith; hence the
motion is denied.
It is ordered that the judgment and order appealed from be affirmed.
On Petition for Rehearing
April 8, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 407, 407 (1937) Eldorado-Rand Mining Co. v. Thompson
ELDORADO-RAND MINING COMPANY, a Corporation, Et Al., Appellant,
v. OSCAR THOMPSON, Respondent.
ELDORADO-RAND MINING COMPANY, a Corporation, Et Al., Appellant,
v. JOHN MANTON, Respondent.
No. 3177
March 5, 1937. 65 P. (2d) 878.
1. Master and Servant.
Lessor of mining claims held not liable for penalty to employees of lessees under statute authorizing
penalty whenever employer of labor shall discharge employees without first paying wages due, where there
was no showing that lessees were acting as agents for lessor in contracting for employment (Comp. Laws,
sec. 2785).
2. Mines and Minerals.
Judgment which was clearly designed to enforce lien of employees for wages against lessor's interest in
mining claims, but which did not provide for execution against lessor for any deficiency, held not
construable as rendering a personal judgment against lessor, which would have been unauthorized because
evidence disclosed that lessor was not personally liable for the improvements.
3. Mines and Minerals.
Lien for work on mining claims by employees of lessees held properly imposed on lessor's claims though
work did not enhance value of property, since increase in value of premises is not required for attaching of
lien (Comp. Laws, sec. 3743).
4. Mines and Minerals.
Lien for work on road running on and off of mining property performed by employees of lessees held
properly imposed on lessor's mining claims (Comp. Laws, sec. 3735).
57 Nev. 407, 408 (1937) Eldorado-Rand Mining Co. v. Thompson
5. Mines and Minerals.
Claim for liens for work on mining claims by employees of lessees held filed in apt time, where work
terminated on June 20 and liens were filed on August 1 (Comp. Laws, sec. 3739).
6. Trial.
By presenting case after motion for nonsuit was refused, defendant waived right to insist on appeal that
refusal was error.
7. Mines and Minerals.
Mining claims of lessor held subject to work liens of employees of lessees though lessor posted notice of
nonresponsibility on property on January 17, 1935, and filed it with county recorder on January 18, 1935,
where lessor obtained knowledge of intended work on September 24, 1934, since notice to be operative
must be posted within three days after knowledge of work or intended work (Comp. Laws, sec. 3743).
8. Mines and Minerals.
In action by employees of lessees of mining claims to foreclose mechanic's liens against lessor's claims,
court properly admitted over lessor's objection complaint verified by lessor's attorney and judgment in
action by lessor against lessees, where such evidence tended to show knowledge of lessor that work was
being done on mining claims by lessees and that posting and filing of notice of nonresponsibility by lessor
was done too late to be operative against liens (Comp. Laws, sec. 3743).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Actions by Oscar Thompson and by John Manton against the Eldorado-Rand Mining
Company and others. From a judgment in favor of the plaintiffs, the defendants appeal.
Judgment modified and, as modified, affirmed.
Ham & Taylor, for Appellant:
The court erred in admitting into evidence plaintiff's exhibits four, five and six. The
complaint was signed and verified by one of the attorneys. The rule with respect to such
admissions is stated in 22 C. J. 395. See, also, McDermott v. Day, 47 Cal. 249. The alleged
contract between the defendant in this action and other parties was inadmissible for the
reason that there is no showing that any contract had been executed or that the exhibit was a
copy of a contract executed, and no foundation was laid for its admission.
57 Nev. 407, 409 (1937) Eldorado-Rand Mining Co. v. Thompson
exhibit was a copy of a contract executed, and no foundation was laid for its admission. 22 C.
J. 998, 1018, 1019.
The court erred in rendering judgment in favor of the plaintiffs for the sum of $150 each as
penalty for the nonpayment of wages. Nowhere does the record reveal that the defendant in
this action employed the plaintiffs or either of them, and it is revealed by the testimony of the
plaintiffs that they were not discharged by the defendant, or anyone else. Further, it does not
appear anywhere in the record that a demand was ever made upon the defendant in this action
to pay the plaintiffs or either of them the sum claimed by the complaint, or any portion
thereof. Arkansas Stave Company v. State, 125 S. W. 1001; Largent v. Railway Company,
188 S. W. 836; Goodell v. Mining Co. (Ida.), 212 P. 342; Olson v. Mining Co., 155 P. 291.
Assuming, for the purpose of argument only, that McDonald and the McGinnisses were
lessees, a lessee contracting for improvements upon demised premises does not, merely by
virtue of his relation as lessee, contract as the agent of the lessor. Didier v. Webster Mines, 49
Nev. 5, 234 P. 520. Therefore, any employment by the lessees in this instance would be
insufficient to hold the defendant to respond for a personal judgment.
The only theory upon which a lien lies is that it improves the property. 40 C. J. 44. And it
is clearly the purpose of our statute to afford a lien for improvements upon property. Didier v.
Webster Mines, supra. The uniform rule seems to be that, under statutes similar to or identical
with ours, a lien will not lie for the improvement of wagon or automobile roads. There is no
question that much of the labor in this case went upon a road being built on and near the
property.
It appears that the labor liens were filed and recorded on the first day of August 1935, and
it appears from the claims that the last work performed, if any, was on the twentieth day of
June, which makes forty-one days.
57 Nev. 407, 410 (1937) Eldorado-Rand Mining Co. v. Thompson
Assuming that the plaintiffs worked, as they testified, sixty days on the road, adding that sixty
days to the forty-one would make one hundred and one days between the time they
commenced to work on the road and the date of filing their liens, when in fact they are
limited to ninety days within which to file their claims. Nellis v. Johnson, 57 Nev. 18, 57 P.
(2d) 392.
The court erred in not granting a nonsuit.
On January 17, 1935, the defendant caused to be posted a nonliability notice upon the
property at a conspicuous place, and thereafter and on the 18th day of January 1935, the same
was duly filed and recorded with the county recorder, as required by the statute. Mr. E. L.
Camp, who was general manger of the defendant corporation during the months of December
1934, and January 1935, testified that the company did not have any notice of the
improvements or intended improvements upon the property until the 16th day of January
1935.
Albert A. Hinman, for Respondents:
The complaint, including a copy of the lease and the judgment, in appellant's action to
cancel the lease, were competent and material upon the issue of whether the notice of
nonresponsibility had been posted and filed in time. The lease was dated September 24, 1934,
and specified the intended work.
In order to obtain judgment for the penalty of $150 for the nonpayment of wages, no
demand is necessary when an employer shall discharge or lay off its employees. Section
2785 N. C. L. Certainly, a forcible ejectment at the instance of James T. McDonald, one of
the colessees, was a sufficient discharge or laying-off.
Appellant contends that the statute (Sec. 2786 N. C. L.) is applicable only to the employer.
On the contrary, the statute is of general application and grants all rights and remedies
accorded by the mechanics' lien act.
The court did not grant a deficiency judgment. The judgment is merely for the enforcement
of the liens, and is not a personal judgment, but is a judgment in rem.
57 Nev. 407, 411 (1937) Eldorado-Rand Mining Co. v. Thompson
and is not a personal judgment, but is a judgment in rem. 40 C. J. 488, n. 27.
Improvement of the property is not an indispensible requirement for the attaching of a lien.
Nichols v. Levy, 55 Nev. 310, 32 P. (2d) 120. The trial court found, upon conflicting
evidence, that the work was lienable, and under the established rule of this court the finding
will not be disturbed.
The statute requires the filing of the claim of lien within the time limited after the
completion of his contract * * * or the performance of his labor. Respondents' contract was
not terminated, and they had not completed the performance of their labor until June 20,
1935, and having filed their claims August 1, 1935, were well within the limited time.
The motion for a nonsuit was waived by the appellant by proceeding with the trial and
introducing evidence in support of its defense. Butzbach v. Siri, 53 Nev. 453, 5 P. (2d) 533.
The trial court correctly found that the appellant had knowledge of the intended work at
the time of the execution of the lease, and that the posting, on January 17, 1935, and the
filing, on January 18, 1935, of its notice of nonresponsibility came too late. 40 C. J. 127, n.
54; S. H. Harmon L. Co. v. Brown, 131 P. 368; Gould v. Wise, 18 Nev. 253, 3 P. 30; Milner
v. Shuey, 57 Nev. 159, 60 P. (2d) 604.
Upon failure to post and file its notice of nonresponsibility in time, the work, by the
express terms of the statute, was deemed to have been performed at the instance of the owner.
Further, the owner was directly liable by the terms of the lease.
OPINION
By the Court, Ducker, J.:
Actions for foreclosure of mechanics; liens. Consolidated. The judgment of the district
court is in favor of the lien claimants.
57 Nev. 407, 412 (1937) Eldorado-Rand Mining Co. v. Thompson
Appellant is the owner of the mining claims involved, and on September 24, 1934, leased
them to John McGinniss, Sr., John McGinniss, Jr., and James T. McDonald for a term of five
years. The lessees immediately entered into possession. The two complaints, which are
identical save as to plaintiffs, respectively, allege: That between the 18th day of December,
1934, and the 20th day of June, 1935, both dates inclusive, plaintiff performed work, labor
and services in and upon said mining claims for the defendants, Eldorado-Rand Mining
Company, John McGinnis, Sr., John McGinnis, Jr., and each of them at their special instance
and request, for which said defendants, and each of them agreed to pay to plaintiff the sum of
Five Dollars ($5.00) per day, amounting to the sum of Seven Hundred and Forty Dollars
($740.00).
A second cause of action is stated in each complaint for a penalty pursuant to chapter 139,
Stats. 1925, p. 226, section 2785 N. C. L.
The respondents, Thompson and Manton, each testified in his own behalf, and the court
found the facts as alleged. Numerous errors are assigned.
1. It is contended that the court erred in rendering judgment against appellant for the sum
of $150 on each complaint as penalties for the nonpayment of wages. The statute authorizing
such a penalty reads: Whenever an employer of labor shall hereafter discharge or lay off his
or its employees without first paying them the amount of any wages or salary then due them,
in cash, lawful money of the United States, or its equivalent, or shall fail, or refuse on
demand, to pay them in like money, or its equivalent, the amount of any wages or salary at the
time the same becomes due and owing to them under their contract of employment, whether
employed by the hour, day, week or month, each of his or its employees may charge and
collect wages in the sum agreed upon in the contract of employment for each day his
employer is in default, until he is paid in full, without rendering any service therefor;
provided, however, he shall cease to draw such wages or salary thirty days after such
default."
57 Nev. 407, 413 (1937) Eldorado-Rand Mining Co. v. Thompson
without rendering any service therefor; provided, however, he shall cease to draw such wages
or salary thirty days after such default.
The point is made that under the terms of the statute, the penalty may be adjudged only
against an employer, and that respondents were not employed by appellant. Clearly the statute
is susceptible of no other interpretation, and the evidence shows that respondents were not so
employed, but by one Pat Shea, forman for the lessees. Counsel for respondents concedes this
in his brief by the following statement: The lessees entered into possession of said premises
pursuant to the terms of said lease, and through their foreman, Pat Shea, employed the
respondents to perform work upon the premises. * * *
The written lease appears in evidence and there is nothing in its terms giving ground for a
conclusion that in contracting for the employment the lessees were acting as agents of
appellant. It was error for the trial court to find for respondents on this branch of the case, and
decree the amounts found as penalties.
We find that the first causes of action are supported by substantial evidence.
2. It is contended that the court committed error in rendering a personal judgment against
appellant for the sums found due. The judgment, in our opinion, is not susceptible of such
construction.
True, the judgment is in the form of a personal judgment to recover from appellant the
amounts of respondents' respective claims, but that does not make it a personal judgment. The
judgment is clearly designed to enforce the lien, for it directs only a sale of the described lode
mining claims belonging to appellant, and that the proceeds be applied to the satisfaction of
respondents' claims. It does not provide for execution against appellant for the deficiency, if
any, for the residue of such judgment. There could be no personal judgment against appellant
because the evidence discloses that it is not personally liable for the improvements.
57 Nev. 407, 414 (1937) Eldorado-Rand Mining Co. v. Thompson
is not personally liable for the improvements. 40 C. J. 498. The trial court did not err in this
regard.
3. Appellant insists that the trial court was not authorized under the evidence to adjudge
respondents' claims for work liens against its property. It is conceded that the evidence is
conflicting as to the performance of such work, but argued that it is not lienable because it did
not enhance the value of the property. There is no merit in the contention. We have recently
decided that increase in value of premises by work done upon it is not indispensable to the
attaching of a lien therefor. Nichols v. Levy, 55 Nev. 310, 32 P. (2d) 120.
4. It is further contended that some of the work is not lienable because done on a road
running on and off the mining property. There was no error in this regard. We think that such
work is within the purview of section 3735 N. C. L.
5. The claim that the liens were not filed in apt time is untenable. The labor performed by
respondents terminated on the 20th day of June 1935, and these liens were filed on the first
day of August 1935. Labor liens may be filed for record not later than ninety days after the
completion of the work. Section 3739 N. C. L.; Nellis v. Johnson, 57 Nev. 18, 57 P. (2d) 392.
6. Refusal of the court to grant a motion for a non-suit is assigned as error. Appellant may
not now be heard to complain of this because it waived the right by presenting its case.
Butzbach v. Siri et al., 53 Nev. 453, 5 P. (2d) 533.
7. Denial of the motion for a new trial is assigned as error. In support of this assignment it
is urged that the property was not subject to the liens because appellant caused a notice of
nonresponsibility to be duly posted and filed pursuant to section 3743 N. C. L. The notice
was posted on the property on January 17, 1935, and filed with the county recorder of the
county where the property is situated on January 18, 1935. The court found that the appellant
obtained knowledge of the intended work on the 24th day of September 1934, and did not
thereafter post and file said notice within the time required by law.
57 Nev. 407, 415 (1937) Eldorado-Rand Mining Co. v. Thompson
the intended work on the 24th day of September 1934, and did not thereafter post and file said
notice within the time required by law. Such notice, to be operative, under section 3743, must
be duly posted on the property by the owner or person having or claiming an interest therein,
within three days after he shall have obtained knowledge of the work or intended work, and
within five days after such posting, a duplicate original of such posted notice must be filed
with the recorder of the county where the property is situated, together with an affidavit
attached thereto showing such posting of the original notice.
There is substantial evidence to support the court's finding as to when appellant obtained
knowledge of the intended work, and the failure to duly post and file a notice of
nonresponsibility within apt time. The notice therefore was of no avail.
8. Appellant insists that the court erred in overruling its objection to the admission of
evidence of a complaint with a copy of the lease annexed thereto and judgment in an action
by appellant against John McGinniss, Sr., and John McGinniss, Jr., and James T. McDonald.
The action was instituted by appellant on March 22, 1935, in the district court in which the
instant action was pending, for the cancellation of a lease executed September 24, 1934, for
mining property, including the lode mining claims involved herein, and resulted in the
cancellation of the lease and restitution of the premises.
Among the grounds stated in the complaint in that action for cancellation of the lease
appear the following:
(a) The said defendants did not commence work upon the premises within sixty (60) days
from the date of execution of the said lease.
(b) That the said defendants have not performed a minimum of fifty-seven (57) man
shifts of labor upon the said premises during all or any thirty (30) day period since the
execution of said lease.
57 Nev. 407, 416 (1937) Eldorado-Rand Mining Co. v. Thompson
(c) The said defendants have not sufficiently timbered the said mine at all points where
proper, and not repaired old timbering where necessary. * * *
The complaint in that action was verified by one of the firm of appellant's attorneys in the
instant action. The purpose of the evidence is to show knowledge of plaintiff in that action
(appellant herein) of the intended work upon the property involved in this action. It tends to
show such knowledge and that the posting and filing were done too late to be operative
against respondents' lien. Milner v. Shuey, 57 Nev. 159, 60 P. (2d) 604. There is evidence
independently of said verification from which the trial court was entitled to find that that
action was instituted and maintained by said firm of attorneys with the knowledge and
authorization of appellant. It was admissible for the purpose offered, and the objections were
properly overruled. Milner v. Shuey, supra.
We have considered all other alleged errors in addition to those discussed, and find them
to be without merit.
Respondents will recover costs on appeal.
It is hereby ordered that the judgment be modified so as to deduct therefrom the amounts
adjudged as penalties.
As so modified the judgment and order denying the motion for a new trial are affirmed.
____________
57 Nev. 417, 417 (1937) Evershaw v. Moran
JACK EVERSHAW, Petitioner, v. THOMAS F. MORAN, as District Judge
of the Second Judicial District of the State of Nevada, Respondent.
No. 3191
March 5, 1937. 65 P. (2d) 877.
1. Indictment and Information.
Variance between complaint and evidence as to name of person upon whom assault charged in complaint
had been committed held not fatal under statute where accused was not misled (Comp. Laws, sec. 10854).
2. Prohibition.
Prohibition will issue only in urgent cases, and not at all if a respondent court has jurisdiction or if
applicant for prohibition has an adequate remedy at law.
3. Prohibition.
Defendant who was found guilty of assault and battery held not entitled to prohibition to be directed to
trial court on ground trial court lacked jurisdiction of offense, before motion for new trial or motion in
arrest of judgment had been made, since defendant had not exhausted his remedies.
Original proceedings by Jack Evershaw for a writ of prohibition directed to Thomas F.
Moran, as District Judge of the Second Judicial District of the State of Nevada. Writ denied
and proceedings dismissed.
William S. Boyle and Harry Standerwick, for Petitioner:
The complaint does not state facts sufficient to constitute a public offense, because the
name B. Putnam does not represent any individual, as Putman himself testified there was
no B. Putnam. It appears that the affidavit on the complaint is defective, and complaints can
only be predicated upon good and sufficient affidavits.
We could wait and move in arrest of judgment, but we could not accomplish anything
thereby except to lay a foundation for something to follow. The petitioner is not in custody;
he is out on bond, and consequently habeas corpus will not lie. To await until he is sentenced
and placed in jail or fined will not avail petitioner of a plain, speedy, and adequate remedy at
law.
57 Nev. 417, 418 (1937) Evershaw v. Moran
The only available remedy now is to prohibit the court from passing sentence in excess of the
court's jurisdiction.
It has been decided in criminal cases where imprisonment is threatened that it seems that
neither appeal, habeas corpus, nor certiorari would be a plain, speedy, and adequate remedy.
Evans v. Willis, 22 Okla. 310, 97 P. 1047, 18 Ann. Cas. 258; State v. Circuit Court, 97 Wis.
1, 72 N. W. 193, 38 L. R. A. 554.
Ernest S. Brown, District Attorney, and Nash P. Morgan, Assistant District Attorney, for
Respondent:
The petition does not disclose that the objections were raised to the complaint in the
justice's court before plea, or at all, and the petition expressly discloses that they were not
raised in the district court on appeal until after the defendant had pleaded not guilty and the
state had presented its case in chief and rested; and thereafter, in both the justice's court and
the district court, the defendant took the stand in his own behalf and admitted the assault
upon B. Putnam, but attempted to justify his act. There was no objection raised in either court
nor in the petition in this court that Evershaw was misled, prejudiced, or was unable to
understand the character of the offense complained of, or unable to answer the charge or
complaint. Therefore, the alleged defect in the complaint is not a jurisdictional defect, and
will not suffice as a ground for the issuance of a permanent writ of prohibition. Section 10854
N. C. L.; State v. Ewing (Wash.), 121 P. 834; State v. Crane (Wash.), 152 P. 889; State v.
Wingard (Wash.), 158 P. 729.
Further, the petition does not disclose that petitioner moved the district court, on appeal,
for a motion in arrest of judgment, after the jury rendered a verdict of guilty against him.
State ex rel. Ward v. District Court, 54 Nev. 156, 9 P. (2d) 681.
57 Nev. 417, 419 (1937) Evershaw v. Moran
OPINION
By the Court, Coleman, C. J.:
This is a proceeding in prohibition. The facts are these:
On December 11, 1936, C. L. Putman swore to a complaint before the justice of the peace
of Reno township, charging the petitioner with assault and battery upon B. Putnam.
Thereafter a warrant of arrest was issued by said justice, directing the arrest of petitioner. In
due time the petitioner was tried before a jury, which brought in a verdict of guilty. Thereafter
the petitioner was sentenced, and subsequently took an appeal to the district court. Upon the
trial in the district court before the respondent judge, a jury brought in a verdict of guilty.
Before the time set for the passing of sentence, no motion for a new trial nor motion in arrest
of judgment having been made, petitioner instituted these proceedings.
Upon the trial of the case in the district court, the prosecuting witness testified that his
name was Clarence L. Putman, and that his nickname is Briz. Putman. Petitioner contends
that B. Putnam, whom he is charged with having assaulted, is a nonentity, hence the
complaint does not state facts sufficient to charge an offense; that the warrant of arrest is
likewise deficient; and that neither court acquired jurisdiction in the case. There is no
averment that petitioner was misled by the error charged.
The return shows that the point now raised was not made in the justice's court nor in the
district court before pleading to the complaint, nor until after the testimony on the part of the
state had been given and the state had rested its case; that petitioner testified in the justice's
court that he struck Briz Putman at the time and place alleged in the complaint; and that
petitioner was in no way misled by the statement made in the complaint.
57 Nev. 417, 420 (1937) Evershaw v. Moran
1. It is also contended that the petition does not state facts sufficient to entitle petitioner to
the extraordinary writ sought.
Section 10854 N. C. L. reads: When an offense involves the commission of, or an attempt
to commit private injury, and is described with sufficient certainty in other respects to identify
the act, an erroneous allegation as to the person injured, or intended to be injured, shall not be
deemed to be material.
Whatever else may be said as to the merits of this matter, it is quite clear, in view of the
statute just quoted, that this proceeding must be dismissed. It is the evident purpose of this
statute to obviate mistrials where the defendant is in no way misled by such a mistake as
appears in this case. That the defendant was not misled appears from his own testimony and
from the fact that he makes no contention that he was. He is here relying upon a bare
technicality, which the statute above quoted sought to and does overcome.
In the case of State v. Ewing, 67 Wash. 395, 121 P. 834, where there was such a statute as
ours, the court held that such an error in a complaint was not fatal when the defendant was
not misled.
2, 3. It is well settled in this state that the writ of prohibition will issue only in urgent
cases, and not at all if the respondent court has jurisdiction or if the applicant has an adequate
remedy at law. Bell v. District Court, 28 Nev. 280, 81 P. 875, 1 L. R. A. (N. S.) 843, 113 Am.
St. Rep. 854, 6 Ann. Cas. 982.
In the instant matter the petitioner has not exhausted his remedy by motion for a new trial
nor by motion in arrest of judgment. If neither of these motions are successful, he would have
recourse to other remedies, if the respondent court acquired no jurisdiction, as he contends.
It is ordered that the writ be denied and that these proceedings be dismissed.
____________
57 Nev. 421, 421 (1937) Lamb v. Lamb
DORIS LAMB, Appellant, v. FRANK B. LAMB,
Respondent.
No. 3161
March 5, 1937. 65 P. (2d) 872.
1. Divorce.
Plaintiff to secure divorce held required to satisfy jury that plaintiff's physical presence in state for whole
statutory period preceding and including date of commencement of suit was accompanied by intention to
make state plaintiff's home and to remain in state permanently, or at least for an indefinite time (Comp.
Laws, sec. 9460).
2. Appeal and Error.
Supreme court must reverse judgment of trial court if verdict and findings of jury are clearly wrong,
although record presents substantial conflict in evidence.
3. Divorce.
In divorce suit, evidence held to sustain jury's finding that plaintiff established residence in state in good
faith, especially where defendant denied plaintiff's allegation of good faith only on information and belief
and did not stress contention to the contrary in her opening statement.
4. Divorce.
Instruction that court should not deny plaintiff a divorce because both parties were guilty of wrongs
constituting grounds for divorce, but, in its discretion, might grant divorce to party least in fault, held not
misleading, notwithstanding defendant did not seek divorce, where jury was informed of contents of
pleadings, and defendant's opening statement made it plain that defendant was not seeking divorce (Comp.
Laws, sec. 9467.01).
5. Trial.
Instruction stating that jurisdiction to grant divorce was predicated on residence of plaintiff and stating
requirements of divorce law as to physical presence of plaintiff in state as essential element of jurisdiction
held not error for omitting jurisdictional element of plaintiff's bona fide intention to establish residence
where such element was covered in another instruction (Comp. Laws, sec. 9460).
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Suit by Frank B. Lamb against Doris Lamb. From a judgment and an order for plaintiff,
defendant appeals. Affirmed.
57 Nev. 421, 422 (1937) Lamb v. Lamb
William M. Kearney, for Appellant:
It is the contention of appellant that there never was any bona fide intention on the part of
Mr. Lamb to make Nevada his permanent residence, nor his residence or domicile for an
indefinite period of time, but that his sole purpose in inveigling Mrs. Lamb to come to
Nevada was for the sole purpose of filing suit for divorce against her while she was here,
ostensibly on a vacation.
It is the settled law of this state that in order to obtain a divorce the plaintiff must be a
bona fide resident of the State of Nevada and have an actual domicile therein, and that he
must have been physically and corporeally present for a period of six weeks next preceding
the filing of an action for divorce. This court has announced that mere residence in the state
for the statutory period solely for the purpose of obtaining a divorce is not sufficient to give
the court jurisdiction. Walker v. Walker, 45 Nev. 105, 198 P. 433; Fleming v. Fleming, 36
Nev. 135, 134 P. 445; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Lewis v. lewis, 50 Nev.
419, 264 P. 981.
Instruction No. 2 would mislead the jury into believing that the court intended that one or
the other of the parties should have a divorce, and that merely because the defendant did not
pray for a divorce they should, nevertheless, grant a divorce to the party who did apply for it.
The court should not have given such an instruction, because it was not embraced within any
of the issues and could only work to the prejudice of the defendant.
The instruction with reference to continuity of residence is erroneous. The instruction
should have clearly stated that both physical presence and bona fide intention to make
Nevada his or their home for an indefinite period of time, and the intention of having Nevada
as their bona fide home and domicile must be present from the beginning of their physical
presence, inasmuch as the entire physical presence combined amounted to only six weeks,
including the period when the parties were visitors.
57 Nev. 421, 423 (1937) Lamb v. Lamb
six weeks, including the period when the parties were visitors.
Ayres, Gardiner & Pike and George L. Sanford, for Respondent:
The evidence clearly establishes that Mr. Lamb was actually and physically present in the
State of Nevada for a period of over six weeks, to wit, eight weeks or thereabouts, between
the date when he first arrived in Nevada on August 4, 1933, and the date he filed his
complaint for divorce, October 27, 1933, the time occupied in the Lodi and Norwich trips not
being counted in such eight weeks.
The evidence clearly satisfies the requirement of intent upon the part of Mr. Lamb to make
his home in this state, as enunciated in the Fleming, Presson, Walker and other cases cited by
appellant.
Considering the attack made in appellant's brief upon the lack of bona fides of residence
by Mr. Lamb, it appears that Mrs. Lamb was remiss in failing to plead more positively and
affirmatively to plaintiff's allegations concerning residence, if she was seriously impressed by
the conditions which are now urged in her brief. There is a similarity to the situation which is
discussed in Confer v. District Court, 49 Nev. 18, 234 P. 688, and on petition for rehearing in
the same case (49 Nev. 26, 236 P. 1097).
The evidence in this case clearly and abundantly supports the findings of the jury and of
the trial court.
Instruction No. 2 is a plain statement of the law in this state to the effect that in an action
for divorce the court may consider the relative guilt of the spouses and grant a divorce to the
spouse least in fault. Stats. 1931, p. 179, sec. 9467.01 N. C. L.
The other instruction with which appellant expresses dissatisfaction is that concerning the
required actual physical presence of the plaintiff within the state. It is to be noted that the
instruction given immediately preceding this fully covered the element of intention.
57 Nev. 421, 424 (1937) Lamb v. Lamb
OPINION
By the Court, Taber, J.:
This case comes here on appeal from a judgment of the First judicial district court,
Ormsby County, and from an order of that court denying a motion for a new trial. The action
is one for a divorce, and respondent, plaintiff in the trial court, was granted a decree on the
ground of extreme cruelty. Except for two allegedly erroneous instructions given to the jury,
and which will be referred to later, this appeal is based on the contention that plaintiff's
alleged residence in Nevada was not in good faith, but, on the contrary, was for the sole
purpose of procuring a divorce. Plaintiff's conduct with regard to establishing an alleged
residence in Nevada was, appellant claims, a fraud not only on her but on the court as well.
Respondent insists that his residence in Nevada was bona fide; that when he first came to
Nevada it was his intention to make his home here; and that such intent remained the same at
all times thereafter.
Plaintiff and respondent intermarried in 1927 at Pittsfield, Mass., and thereafter resided at
Norwich, Conn., until they came west in the summer of 1933, at which time plaintiff claims
he became a resident of Nevada. Defendant's trip west was a needed vacation, and she went to
Long Beach, Calif., to visit relatives. Soon after she reached there plaintiff arrived from
Norwich, on August 6, and then one of her relatives drove her, plaintiff, and their small child
to Zephyr Cove, a summer camp in Douglas County, Nevada, on the shore of Lake Tahoe.
After a few weeks there, defendant returned to Norwich. Shortly thereafter plaintiff also went
to Norwich, whence, after remaining but one day, he returned to Nevada, and commenced
this action for divorce on October 27, 1933.
We shall now give a brief summary of the testimony upon which appellant mainly relies in
support of her position that plaintiff's alleged residence was not in good faith, and that the
trial court was therefore without jurisdiction.
57 Nev. 421, 425 (1937) Lamb v. Lamb
good faith, and that the trial court was therefore without jurisdiction.
Mrs. Gloria B. Wiley, called by plaintiff, testified that plaintiff and defendant arrived at
Zephyr Cove about August 8, 1933, having been driven there by a gentleman who had
previously been there and evidently recommended the place to them; that Zephyr Cove is a
camp for summer tourists, and is closed in winter; that plaintiff and defendant engaged a
cottage for one month; that witness saw plaintiff practically every day, but that she did not
believe it was for the full month; that plaintiff and defendant did not have a car when they
first came, but shortly afterwards plaintiff went to Carson or Reno and brought back a Ford;
that later he had another car.
H. A. Peigh, called by plaintiff, testified that he saw plaintiff daily between August 8 and
September 9, 1933; that he and plaintiff were absent one day, about September 4, at Lodi and
San Francisco; that after September 9 plaintiff went east, returning on September 28; that
from September 28 until October 12 witness and plaintiff lived at the Frandsen Apartments in
Reno, moving thence to an apartment at Bradley's in Carson City, where they lived a week,
then moving again to Mrs. Sam Davis' house in Carson City, where they lived from October
19, 1933, to February 1, 1934.
Plaintiff, in his own behalf, testified that he first came to Nevada August 4, 1933; that he
stayed one day at Reno, where he procured from an attorney a blank power of attorney which
he took with him to Long Beach for defendant to execute, as he understood that she would
give him a divorce without any contest; that defendant refused to execute the power of
attorney; that plaintiff still owned the home where he and defendant lived at Norwich, and a
building lot near a lake in Connecticut on which he had built a small house; that while at
Long Beach he talked things over with defendant; that he wanted to get a divorce at that time;
that he did not care to go on under existing conditions; that he could not go home; that the
cottage at Zephyr Cove was hired for a month, as he recalled; that at that time he was
more or less run down, tired, his nerves were on edge, and he could not do much of any
work unless it was laboring; that he decided they would rest there for a month or so, and
then he would look for work and they would "settle down out here somewhere"; that
after returning from his trip to Norwich he went to the Girl Scout Camp at Zephyr Cove
and worked around there, cleaning the place up, two or three days; that during this time
he usually ran back into Reno each day, and stayed in Reno more than he did at Lake
Tahoe.
57 Nev. 421, 426 (1937) Lamb v. Lamb
he could not go home; that the cottage at Zephyr Cove was hired for a month, as he recalled;
that at that time he was more or less run down, tired, his nerves were on edge, and he could
not do much of any work unless it was laboring; that he decided they would rest there for a
month or so, and then he would look for work and they would settle down out here
somewhere; that after returning from his trip to Norwich he went to the Girl Scout Camp at
Zephyr Cove and worked around there, cleaning the place up, two or three days; that during
this time he usually ran back into Reno each day, and stayed in Reno more than he did at
Lake Tahoe.
C. F. Wiley, called by defendant, testified that when the cottage was rented plaintiff said
he would rent it for a month, and that he and his family would be there about two weeks
longer; that defendant left in about three weeks, and that about a week after she left plaintiff
also left and we didn't see him for somewhere around a week.
Mrs. Gloria B. Wiley, called by defendant, testified that she operated the summer camp at
Zephyr Cove; that after defendant left the camp, plaintiff returned to Zephyr Cove with a
Pontiac sedan before leaving for the east; that after leaving her camp for the east, plaintiff did
not again take up his abode there, but that about a month after leaving he returned and lived
nearby at the Y. W. C. A. camp for awhile, keeping house there with Mr. Peigh; that plaintiff
did not make any inquiries of witness regarding defendant after she left; that while plaintiff
was at the Y. W. C. A. camp he was not, to her knowledge, doing anything except keeping
house with Mr. Peigh.
Defendant, in her own behalf, testified that she did not anticipate plaintiff's arrival at Long
Beach on August 6, 1933; that he had written her a letter from New London, Conn.,
informing her that he was going to leave there at some later dateshe did not know when;
that some time before she left for the west plaintiff had told her he wanted to be alone that
summer and think things over; that he was gone for five weeks before she came west, and
she did not know whether he was alive or dead "or what," and she worried herself sick
and felt she needed a vacation; that her husband bought the round trip ticket for her, the
return limit on which she believed would be up in October; that she refused to execute the
power of attorney at Long Beach; that plaintiff suggested the trip to Lake Tahoe; that
defendant did not know they were coming to Nevada; that plaintiff said they were just
going to stay for awhile; that after they arrived at Mr. and Mrs.
57 Nev. 421, 427 (1937) Lamb v. Lamb
think things over; that he was gone for five weeks before she came west, and she did not
know whether he was alive or dead or what, and she worried herself sick and felt she
needed a vacation; that her husband bought the round trip ticket for her, the return limit on
which she believed would be up in October; that she refused to execute the power of attorney
at Long Beach; that plaintiff suggested the trip to Lake Tahoe; that defendant did not know
they were coming to Nevada; that plaintiff said they were just going to stay for awhile; that
after they arrived at Mr. and Mrs. Wiley's summer camp at Zephyr Cove, plaintiff told her
they were in Nevada, and a few days after their arrival he requested defendant to go to Reno
to see an attorney about getting a divorcethe same attorney from whom plaintiff had
procured the power of attorney; that she told plaintiff she did not want a divorcethat she
loved him; that they were enjoying their vacation, except for plaintiff's continued efforts to
persuade her to go and see the Reno attorney and have him get a divorce for herplaintiff
being willing to pay the expenses; that finally he told her that if she would not go and see the
attorney he would do so himself, and would start action against her; that she finally went to
see Mr. Kearney, and on the advice of counsel left Lake Tahoe and went back to her home at
Norwich, where she continued to live; that before going to Zephyr Cove plaintiff told her he
had been in Nevada; that her trip to Lake Tahoe was for the purpose of a vacation.
We now briefly review the testimony upon which plaintiff rests his contention that his
residence was bona fide.
The testimony of H. A. Peigh has already been referred to.
C. L. Morrison testified that plaintiff resided in Carson City, at Bradley's and Davis', all
winter from and after October 12, 1933.
Mrs. Gloria B. Wiley, hereinbefore mentioned, testified that defendant, before leaving
Zephyr Cove, was inquiring about any one going east who would drive her car; that
witness assumed plaintiff was remaining.
57 Nev. 421, 428 (1937) Lamb v. Lamb
that defendant, before leaving Zephyr Cove, was inquiring about any one going east who
would drive her car; that witness assumed plaintiff was remaining.
In his own behalf, plaintiff testified that when he arrived at Zephyr Cove on August 8 he
had the intention of making Nevada his home; that he still had that intention; that he was
engaged in the business of renting saddle horses, with C. L. Patealso selling cars
occasionally; that at the time he filed his complaint in this action he still retained the intention
of making Nevada his home, and that he had had that intention ever since he came to Nevada
on August 8; that when he left Nevada in September to make the trip to Norwich he still had
that intention; that he had two reasons for making the trip to Norwich, namely, he wanted to
see where his wife and child had gone, and he wanted to see his father and mother; that when
he left Nevada to make the trip to Norwich, he intended to return to Nevada and had made
arrangements to return when he left; that he stayed at Norwich one day, and then returned to
Nevada; that his trip to Lodi was for the purpose of ascertaining the whereabouts of
defendant; that he drove to Nevada in August 1933, in a Pontiac sedan and left it at Scott
Motors Company in Reno to be sold, and then bought a second-hand Ford at Virginia City
which he used at Zephyr Cove; that he told defendant he had the Pontiac car for sale in Reno,
and was going to use the proceeds of the sale to get established out here; that he later got
the Pontiac from Scott Motors after defendant left Zephyr Cove, and drove it on his trip to
Norwich; that the house in which he and defendant had lived at Norwich had a $9,200
mortgage against it, also an attachment, and that the best offer he could get for this property,
when he tried to sell it in the latter part of 1932 or 1933, was $8,000; that with reference to
the building lot and small house on the shore of a small lake in Connecticut, he traded a
second-hand rifle for the lot, and had not paid for the lumber in the house, which cost about
eighty or ninety dollars; that when defendant returned to Norwich he did not give up any
previous idea he had of remaining "out here"; that when he went to Long Beach he
discussed the matter of a divorce with defendant; that he wanted to get a divorce at that
timedid not care to go on under conditions; that he could not go home, had to go some
other place and start; that he knew he could not work there under conditions, and he told
defendant he was coming "out here" to live; that he wanted a divorce, but defendant did
not want him to have a divorce at that time and suggested they start over and try to make
a go of it "out here"; that he believes it was Mr.
57 Nev. 421, 429 (1937) Lamb v. Lamb
that when defendant returned to Norwich he did not give up any previous idea he had of
remaining out here; that when he went to Long Beach he discussed the matter of a divorce
with defendant; that he wanted to get a divorce at that timedid not care to go on under
conditions; that he could not go home, had to go some other place and start; that he knew he
could not work there under conditions, and he told defendant he was coming out here to
live; that he wanted a divorce, but defendant did not want him to have a divorce at that time
and suggested they start over and try to make a go of it out here; that he believes it was Mr.
Bordeaux, who was married to defendant's cousin, who suggested that they go to Zephyr
Cove; that plaintiff agreed to try it again and see if they could not get along some way for the
sake of the child, and Mr. Bordeaux then drove them up in his car; that for the first week after
arriving at Zephyr Cove they got along fine, but then defendant started going to the store, and
down on the beach, and different places, and plaintiff was not feeling very well and stayed at
the cottage most of the time, doing more or less of the housework at that time; that he did the
washing, the ironing, and some of the cooking; that one morning in August he and Mr. Peigh
came down to Carson to get some cartridges for a gun, and he asked defendant if she wanted
to come, and she said no; that while in Carson that day he saw her on the street; that after they
had all returned to camp defendant said she had decided to come down with a boy working at
the camp; that plaintiff and Mr. Peigh went up back of the Boy Scout camp that afternoon to
try the gun, and when he returned about two hours later defendant and the baby, and all
defendant's clothes, were gone; that he looked for a note, but there was none; that he then
went to the store to learn what had happened; that he did not know at that time where
defendant had gone, or what had become of their child; that besides going to Lodi to ascertain
the whereabouts of defendant, he also made a trip to Carson City and called up the ticket
agent to learn whether any one of her description had bought a ticket to go on the train.
57 Nev. 421, 430 (1937) Lamb v. Lamb
a trip to Carson City and called up the ticket agent to learn whether any one of her description
had bought a ticket to go on the train.
In the foregoing summaries, we have not detailed all the testimony relating to plaintiff's
physical presence in Nevada for the required time before commencing his suit, for the reason
that appellant has challenged only the bona fide character of his residence.
1. The law of Nevada relating to residence necessary to confer jurisdiction in divorce cases
is well established. In this case it was necessary for plaintiff to satisfy the jury that his
physical presence in this state for the whole statutory period (Comp. Laws, sec. 9460)
preceding and including the date of commencement of his action was accompanied by the
intent to make Nevada his home, and to remain here permanently, or at least for an indefinite
time. The jury not only returned a verdict for plaintiff on the issue of cruelty, but made
special findings that at the time of filing his complaint he was a resident of Ormsby County
and had been a resident of the State of Nevada for a total period of six weeks preceding the
filing of said complaint. The trial court having, like the jury, heard the witnesses, observed
their demeanor on the witness stand and their manner of testifying, denied defendant's motion
for a new trial.
2, 3. The record presents a substantial conflict in the evidence. Even so, it would be our
duty to adjudge a reversal if we could say that in our opinion the verdict and findings of the
jury were clearly wrong. A careful study of the record and briefs, and consideration of the oral
arguments, have not convinced us that such was the case. While we entertain some doubt as
to plaintiff's good faith, it is not clear to us that he intended to remain in this state for only
such time as would be necessary to enable him to secure or attempt to secure a decree of
divorce, and then return to Norwich, or leave Nevada to make his home elsewhere.
In the course of our study of the record on appeal, we noted two things which tend in some
degree to support the conclusion we have arrived at regarding plaintiff's residence.
57 Nev. 421, 431 (1937) Lamb v. Lamb
the conclusion we have arrived at regarding plaintiff's residence. In the first place, defendant's
opening statement to the jury does not stress the question as to the good faith of plaintiff's
residence. The statement is so short that we set it forth here in full: May it please the court,
and ladies and gentlemen of the jury, the defendant in this case has denied in toto that she has
committed any act of cruelty at all against the plaintiff which would entitle him to get a
divorce. She admits the marriage; she admits the existence of one lovely little boy, born the
issue of the marriage; and denies all the other allegations of the complaint with respect to
cruelty and regarding the existence of no community property, and so forth. She, however,
sets up no affirmative defense, no affirmative plea for divorce on her side, or for separate
maintenance, but merely rests with the denial of the charges made by the plaintiff that she had
been cruel in any way whatsoever, and prays that the plaintiff take nothing by his complaint
and that he be denied a divorce as prayed for, and she prays for an order of court that the
defendant support her and the minor child in the amount of two hundred fifty dollars a month.
The issues then are joined upon the denial, straight up, of any acts of cruelty on her part
toward the plaintiff.
The second observation we think it proper to make is that in her answer to the amended
complaint defendant denied plaintiff's allegation as to his residence in the following language:
For her answer to Paragraph I of the amended complaint the defendant admits that plaintiff
is a citizen of the United States but as to the other allegations of paragraph I, defendant has
not sufficient knowledge or information upon which to base a belief and basing her denial on
that ground denies that the plaintiff is now and/or has been for more than six weeks of any
other time or period immediately preceding the filing of his complaint continuously or at all a
resident of the State of Nevada and domiciled therein and/or a resident of the County of
Ormsby in said state."
57 Nev. 421, 432 (1937) Lamb v. Lamb
state. The answer was filed March 5, 1934, nearly seven months after plaintiff and defendant
arrived at Zephyr Cove. It was verified by defendant on February 24, 1934. At that time she
certainly had knowledge of most of the important facts and circumstances upon which she has
based her contention that plaintiff's residence in Nevada was not bona fide. If plaintiff's wife,
under the circumstances shown by the record, was unable, more than six months after he first
came to Nevada, to even form a belief as to the bona fide character of his residence in this
state, it is not surprising that this court, on appeal, is not clearly convinced that the jury was
wrong in deciding that plaintiff was a bona fide resident of Nevada as alleged in his amended
complaint.
4. The trial court gave the following instruction to the jury: In any action for divorce
when it shall appear that both husband and wife have been guilty of a wrong or wrongs,
which may constitute grounds for a divorce, the court shall not for this reason deny a divorce,
but in its discretion may grant a divorce to the party least in fault. Appellant contends that
said instruction was calculated to mislead the jury into believing that defendant was likewise
applying for a divorce, and that they could grant a divorce to either party, or that said
instruction could be construed by the jury as authorizing the jury to grant a divorce to one
party or the other even though the defendant did not apply for a divorce. We are satisfied that
the jury could not have been misled into believing that defendant as well as plaintiff was
applying for divorce, because the jury was not only informed as to the contents of the
pleadings, but defendant's opening statement, as has been seen, made it very plain that she
was not asking for a divorce. The quoted instruction is simply a statement of a Nevada statute
(Comp. Laws, sec. 9467.01) and was not improper because, whether defendant prayed for a
divorce or not, it was still within the province of the jury to award a decree to plaintiff if both
parties were guilty of conduct constituting ground for divorce, provided plaintiff was the
party least in fault.
57 Nev. 421, 433 (1937) Lamb v. Lamb
plaintiff if both parties were guilty of conduct constituting ground for divorce, provided
plaintiff was the party least in fault.
5. The court also gave the following instruction to the jury: The jury are instructed that
where, in a divorce case, jurisdiction to grant a divorce is predicated upon the residence of the
plaintiff, an essential element of that jurisdiction is that the plaintiff shall have been actually,
physically and corporeally present, within the State of Nevada, for a period of not less than
six weeks preceding the commencement of the action; but this period of six weeks need not
be continuous. If, after such presence within the State of Nevada, for a portion of six weeks,
you find that the plaintiff absented himself from the State for a short time, with the intention
in good faith to return without delay and continue his residence and thereafter did so return
and thereafter continued such presence within the State for such a time that the two periods of
such presence, aggregated, preceding the commencement of this action, a total of at least six
weeks, then as a matter of law, the plaintiff was actually, physically and corporeally present
within the State of Nevada, for a period of not less than six weeks preceding the
commencement of the action. Appellant complains of this instruction, because, as she
contends, it entirely omits the essential jurisdictional element of bona fide intention on the
part of plaintiff, during the whole period of his required corporeal presence in this state, to
make Nevada his real home. The manifest purpose of this instruction, however, was merely to
state the requirements of Nevada divorce law as to the period of physical residence required.
The record shows that the element of bona fide intention was covered in another instruction.
Finding no error in the record, the judgment and order appealed from are affirmed.
____________
57 Nev. 434, 434 (1937) Thiess v. Rapaport
W. H. THIESS, Respondent, v. PAUL RAPAPORT and ETHEL RAPAPORT,
Doing Business Under the Name of Style of Ethel's Delicatessen, Appellants.
No. 3169
April 3, 1937. 66 P. (2d) 1000.
1. Exceptions, Bill Of.
Bill of exceptions which was filed within time allowed by order extending time for filing and which was
not stricken held not subject to attack by respondent, on ground that bill was not settled within time
allowed by law and that he was not served with notice of extension.
2. Appeal and Error.
Respondent's contention that transcript on appeal was not filed within period fixed by court rule was
waived, where point was made in argument on the merits and not pursuant to court rule (Rules of Supreme
Court, rule 3).
3. Appeal and Error.
Failure to file transcript on appeal within period fixed by court rule is not jurisdictional.
4. Appeal and Error.
Fact that notice of appeal stated that appellants were appealing from judgment rendered as of date when
trial judge wrote his decision held not to deprive supreme court of jurisdiction of appeal from judgment
which was in fact rendered more than a week later, where statute relative to taking appeal does not require
that date of judgment be given in notice, and respondent was informed as to purpose of appeal and was not
misled (Stats. 1935, c. 90, sec. 11).
5. Pleading.
Defendant's answer to complaint, in action to recover loan, stating that defendant had no knowledge of
matter contained within specified paragraphs of complaint and therefore denied the same, raised no issue
because of failure to deny according to information and belief or to deny matter not presumptively within
her knowledge by stating that she had not sufficient knowledge or information on which to base a belief
(Comp. Laws, sec. 8602).
6. Pleading.
Denials, in defendant's answer, according to information and belief and of allegations not presumptively
within defendant's knowledge must conform strictly to statutory requirements (Comp. Laws, sec. 8602).
7. Pleading.
Codefendant's answer to complaint in action to recover loan, stating merely that codefendant denied that
she was or is indebted to plaintiff or defendant in sums alleged, or in any sum, or at all, without attempting
to deny fact out of which alleged indebtedness arose, raised no issue.
57 Nev. 434, 435 (1937) Thiess v. Rapaport
8. Appeal and Error.
Ordering judgment, on plaintiff's motion, against codefendant whose answer to complaint in action to
recover loan raised no issue held prejudicial error, since so far as codefendant was concerned, trial court
should have treated plaintiff's motion as a demurrer to codefendant's answer and should have allowed
codefendant to amend as of course.
9. Pleading.
Statement of facts in answer which is inconsistent with facts alleged in complaint, but which does not
confess and avoid is nothing more than a denial of allegation which is basis of cause of action.
10. Pleading.
Where defendant, in action to collect alleged loan, pleaded in his answer that debt arose out of gambling
transaction and was unsupported by consideration, ordering judgment for plaintiff, on his motion, for
defendant's failure to offer evidence in support of his defense, which had been held good on demurrer, held
error, since defense was not matter in confession and avoidance but merely a denial of averment of loan.
Appeal from Eighth Judicial District Court, Clark County; L. O. Hawkins, Presiding
Judge.
Action by W. H. Thiess against Paul Rapaport and Ether Rapaport, doing business under
the name and style of Ethel's Delicatessen. From a judgment for plaintiff, defendants appeal.
Reversed with directions.
Harold M. Morse, for Appellant:
A motion for judgment on the pleadings is in the nature of a demurrer. 1 Bancroft Code
Pleading, p. 917, sec. 630; 49 C. J. 668, sec. 945; 21 R. C. L. 594, sec. 142; 21 Cal. Jur. 234,
sec. 163, n. 10; 21 Cal. Jur. 240, sec. 166, n. 5.
If the answer sets up affirmative matter constituting a defense, a motion for judgment on
the pleadings will be denied. 1 Bancroft Code Pleading 925, sec. 637; 21 Cal. Jur. 238, n. 13;
Parks v. Western Union, 45 Nev. 411, 197 P. 580, 204 P. 884.
The denials contained in the respective answers of the defendants to each cause of action
of the complaint are good denials.
Illegality of the consideration renders an instrument void in the hands of the original
parties and in the hands of subsequent holders thereof having notice of the infirmity.
57 Nev. 434, 436 (1937) Thiess v. Rapaport
hands of subsequent holders thereof having notice of the infirmity. 19 Cal. Jur. p. 1005, sec.
158, n. 3; 8 C. J. 766, sec. 1031.
In Nevada the law is well settled that a note given in payment of a gambling debt is void.
Menardi v. Wacker, 32 Nev. 169, 105 P. 287; Burke v. Burke, 31 Nev. 74, 99 P. 1078, 22 L.
R. R. (N. S.) 627.
Amendments to pleadings are favored and should be liberally allowed in furtherance of
justice, and an amendment at any stage of the proceeding rests in the sound discretion of the
court, due regard having been given to surrounding circumstances of the case occasioning
necessity for amendment. Horton v. Ruhling, 3 Nev. 498; Ramezzano v. Avanson, 44 Nev.
72, 189 P. 681.
Extension of time to prepare, serve and file the bill of exceptions was requested by
appellant by telegram and extension of time granted by the trial court by telegram, and the
record shows that both the application and order were served on counsel for respondent.
By failing to comply with rule III, subdivision 1, respondent waived any objection that he
might have to the time of filing of the transcript on appeal.
It is well-settled law in Nevada that the time within which an appeal must be taken begins
to run from the date the court made its decision and ordered judgment to be entered
accordingly, although the judgment was not entered until later.
Albert A. Hinman, for Respondent:
The transcript on appeal was not filed in time, the appeal having been perfected June 15,
1936, the transcript having been filed September 4, 1936, notwithstanding notice to the
appellants of August 8, 1936, by the clerk of the court, that a filing fee would be required, no
excusable neglect having been shown. Supreme Court Rule II.
Failure to give the plaintiff prompt or any notice of the ex parte telegraphic order
extending time to serve and file bill of exceptions, in violation of district court rule XXXVI,
rendered said order invalid for any purpose.
57 Nev. 434, 437 (1937) Thiess v. Rapaport
rule XXXVI, rendered said order invalid for any purpose. O'Neill v. Vasiliou, 51 Nev. 236,
240.
The appeal is from the judgment entered May 29, 1936, whereas judgment was not
entered in the case until June 15, 1936.
The partial transcript of testimony was insufficient as a bill of exceptions, even if it had
been served in time. The reporter's transcript must be of the entire proceedings. Stats. 1935, p.
204.
Denials that defendant has no knowledge of the matters contained in paragraph __ of said
complaint, and therefore denies the same are insufficient and raise no issue. 1 Ban. Code Pl.
604-5, nn. 20, 1-4; Parks v. Western Union Tel. Co., 45 Nev. 411, 204 P. 884; sec. 8602 N.
C. L.; 1 Ban. Code Pl. 602-3, sec. 411; Finn v. Post, 112 N. Y. S. 1046; North v. Evans
(Cal.), 3 P. (2d) 609; Grand Valley Irr. Co. v. Lesher (Col.), 65 P. 44.
The denial of indebtedness to plaintiff's assignor as alleged in paragraph III of said
complaint is (a) a qualified denial, and (b) a negative pregnant, and raises no issue. Cooper
v. American, etc. Co. (Mo.), 123 S. W. 497; Los Angeles, etc. v. Crowley (Cal.), 295 P. 371.
The demurrer to the second affirmative defenses of the defendant Paul Rapaport should
have been sustained. Said defendant attempted hypothetically to plead intoxication and that
the loans were made for gambling debts. A hypothetical pleading is insufficient and
constitutes an admission. 49 C. J. 293, n. 88; Parks v. Western Union Tel. Co., supra. But the
question is moot, because said defendant introduced no evidence in support of his affirmative
defenses, and there could be no adjudication upon the merits.
OPINION
By the Court, Coleman, C. J.:
The complaint in this action contains two causes of action. The first cause of action
alleges, inter alia, that on January 13, 1933, one C.
57 Nev. 434, 438 (1937) Thiess v. Rapaport
on January 13, 1933, one C. Gorbulove, also known as H. Gorbulove, loaned to the
defendants, at their special instance and request, the sum of $300, which the defendants
promised to repay six months thereafter with interest at the rate of 10 percent per annum,
from date, together with a reasonable attorney's fee in case an action is instituted to collect
said indebtedness.
The complaint also alleges that nothing had been paid on said indebtedness except $45 on
account of interest.
It is further alleged that prior to the institution of the action the said Gorbulove had
assigned said claim to this plaintiff.
The second cause of action is of the same tenor, except that it alleges that on January 23,
1933, the said Gorbulove loaned the defendant $100, which defendants promised to pay six
months after date with interest at 10 percent per annum from date, together with a reasonable
attorney's fee in case suit is instituted to recover said indebtedness; that nothing had been paid
on account of said indebtedness; and that prior to the bringing of the action the claim had
been assigned to plaintiff.
Plaintiff demands judgment in the sum of $400, with interest and attorney's fees, less $45.
On October 3, 1934, the defendant Ethel Rapaport filed her answer to the complaint,
wherein she attempted to deny all of the allegations of both causes of action of the complaint.
On February 2, 1935, after the demurrers filed by defendant Paul Rapaport had been
overruled, he filed an answer to the first and second causes of action, identical to that filed by
Ethel Rapaport, above stated.
He also set up two separate affirmative defenses to each of the causes of action sued upon.
In the first affirmative defense to the first cause of action, it is alleged that the plaintiff is
not the real party in interest; that he has no legal capacity to sue; and that it affirmatively
appears from the complaint that plaintiff has not complied with the laws of the State of
Nevada relative to the establishment and conducting of a collection agency in the state.
57 Nev. 434, 439 (1937) Thiess v. Rapaport
that plaintiff has not complied with the laws of the State of Nevada relative to the
establishment and conducting of a collection agency in the state.
For a second affirmative defense to the first and second causes of action, this defendant
alleged that while intoxicated he engaged in a gambling game with Gorbulove and that if
defendant became indebted to said Gorbulove it was as the result of such gambling while
intoxicated.
Thereafter plaintiff filed a general demurrer to all of the above-stated defenses of Paul
Rapaport, and upon argument and submission thereof the court sustained the demurrer to the
first affirmative defenses to each of the said causes of action, and overruled the demurrer to
the second affirmative defenses to each of the causes of action.
Thereafter plaintiff filed his reply denying the allegations contained in the second
affirmative defense to each of the causes of action.
On April 9, 1936, the case came on for trial. Thereupon counsel for plaintiff moved the
court for judgment on the pleadings in favor of plaintiff and against the defendants. The
defendants asked leave to file amended answers before the court pass upon the motion.
Thereupon the court ordered that the case be continued until April 10, 1936, and defendants
were directed to prepare and present proposed amended answers.
On April 10, 1936, the court entered an order denying the motion for judgment on the
pleadings. Counsel for defendants then moved the court for an order permitting the
defendants to file their tendered amended answers, to which motion counsel for plaintiff
objected on the ground that no copy of the proposed amended answers had been served upon
him, that no showing had been made entitling defendants to the order sought, and for the
further reason that it would necessitate a postponement of the trial, and insisted that the court
proceed with the trial.
57 Nev. 434, 440 (1937) Thiess v. Rapaport
The court entered an order reciting the tender by the defendants of proposed amended
answers, and that copies, duly certified to, were simultaneously served upon plaintiff.
Thereupon the court sustained the objections of plaintiff, and ordered that the application be
denied and that the case be tried upon the then existing pleadings.
Thereupon plaintiff rested his case, without offering any evidence. The defendants also
rested, without offering any evidence.
Whereupon counsel for plaintiff moved for judgment in favor of plaintiff.
Upon request of counsel for defendants, the court allowed the respective parties time in
which to file briefs.
Thereafter and pending the expiration of the time allowed for the filing of briefs, the
defendants served and filed notice of motion to amend their answers, supported by affidavits,
by setting up more in detail the affirmative defense to which the court had theretofore
overruled a demurrer.
1. Before entering upon a discussion of the points urged by appellant, we must allude to
the contention of the respondent to the effect that the bill of exceptions was not settled within
the time allowed by law. It appears from the bill of exceptions that the court made an order
extending the time for filing the bill of exceptions, and that it was filed within that time.
Counsel for respondent contends that he was not served with notice of extension of time, and
cites O'Neill v. Vasiliou, 51 Nev. 236, 274 P. 1, in support of his contention. The case
mentioned is not in point. There the bill of exceptions was stricken. Not so here. The bill of
exceptions is regular, and cannot be attacked now. The point is not well taken.
2, 3. The contention of respondent that the transcript on appeal was not filed within the
period fixed by the rule is well founded, but since the point is made in the argument on the
merits, and not pursuant to rule III, the contention is waived.
57 Nev. 434, 441 (1937) Thiess v. Rapaport
III, the contention is waived. This is not a jurisdictional point. Obradovich v. Walker Bros.
Bankers, 80 Utah 587, 16 P. (2d) 212.
4. It is contended that the appeal was not properly taken, in that the notice of appeal states
that defendants appeal from the judgment rendered on May 29, 1936, whereas the judgment
was not actually rendered until June 12, 1936. The notice of appeal is dated June 13, 1936,
and was filed on the same day.
The facts are that the judge who presided in the case was the judge of another district, and
resided at a point far removed from the county in which the case arose, was instituted and
tried, and, pursuant to the long-established practice, he wrote his decision in the case, dated
May 29, 1936, and filed June 1, 1936, ordering judgment in favor of the plaintiff, whereas the
formal judgment was not filed until June 12, 1936.
Section 8886 N. C. L. (Stats. 1935, c. 90, pp. 197, 198, sec. 11), relative to taking an
appeal to this court, so far as applicable here, reads: An appeal is taken by filing with the
clerk of the court in which the judgment or order appealed from is entered, a written notice
stating the appeal from the same. The language quoted does not require that the date of the
judgment be given in the noticeit simply requires written notice stating the appeal from the
judgment.
This court had a similar provision under consideration in Bliss v. Grayson, 24 Nev. 422,
56 P. 231, 232, when the following language was quoted with approval: The tendency of the
court, as indicated by recent decisions, is to construe notices of appeal liberally, and hold
them sufficient if, by fair construction or reasonable intendment, the court can say that the
appeal is taken from the judgment in a particular case.
The court there observed: Applying this rule to the notice, it is clearly apparent that the
appellants appeal from an order of the district court of the state of Nevada, Second judicial
district, Humboldt County, in the particular case made in said cause, denying the motion of
appellants for a new trial, to the supreme court.
57 Nev. 434, 442 (1937) Thiess v. Rapaport
motion of appellants for a new trial, to the supreme court. It is vigorously contended that the
notice is fatally defective, in that it fails to describe any order appealed from. We do not
believe this contention is tenable.
In the instant case it is clear from the notice of appeal that the plaintiff had ample
information as to the purpose of the appeal, and that he was in no way misled. We would be
very technical to hold that this court did not acquire jurisdiction because of the point made,
hence we must hold the point not well taken.
We now come to the contentions of appellant. The brief sets forth four purported
assignments of errors. The substance of the first three is that the court erred in rendering
judgment against the defendants. The fourth assignment is to the effect that the court erred in
not permitting appellants to amend their respective answers during the trial and after the trial
of the case had been concluded.
5, 6. As to the separate answer filed by Ethel Rapaport, we may say it raised no material
issue at all. The opening paragraph of her answer to the first cause of action reads:
Comes now Defendant, Ethel Rapaport, and for her separate and distinct answer to the
Complaint filed against her herein, admits, alleges and denies as follows, to wit.
Thereafter there are three separate denials, designated II, IV, and V, which read, except as
to designation of the paragraph denied, as follows: That defendant has no knowledge of the
matter contained in paragraphof said complaint, and therefore denies the same.
Section 104 of our Civil Practice Act, section 8602 N. C. L., reads:
The answer of the defendant shall contain:
1. A general or specific denial of the allegations in the complaint intended to be
controverted by the defendant, or a denial thereof according to information and belief.
57 Nev. 434, 443 (1937) Thiess v. Rapaport
belief. In denying any allegation in the complaint, not presumptively within the knowledge of
the defendant, it shall be sufficient to put such allegation in issue, for the defendant to state,
as to such allegation, that he has not sufficient knowledge or information upon which to base
a belief.
From a reading of this section, it is seen that one may deny an allegation in a complaint
according to information and belief, and if he wishes to deny an allegation of facts not
presumptively within the knowledge of the defendant, he may deny the same by stating that
as to such facts he has not sufficient knowledge or information upon which to base a belief.
From a reading of the paragraphs of the answer quoted, the attempted denials do not
comply with either of the requirements mentioned. There is no denial according to
information and belief, nor is there a denial of matter not presumptively within her
knowledge, by stating that she has not sufficient knowledge or information upon which to
base a belief. Denials according to information and belief and of allegations not
presumptively within the knowledge of the defendant must conform strictly to the statutory
requirements. Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621; 21 Cal. Jur. pp. 148 to 153,
secs. 98-103; Bancroft Code Pl., p. 602, sec. 411.
7. As to paragraph III of this defendant's answer, it simply states that she denies that she
was or is indebted to Gorbulove or the defendant in the sums alleged, or in any sum, or at all.
There is no attempt to deny the fact out of which the alleged indebtedness arose. It has long
been held that such an attempt to deny an indebtedness raises no issue. Pomeroy Code Rem.
(3d ed.) sec. 578; Bliss Code Pl., sec. 334; 1 Ency. Pl. & Pr., p. 805; 21 Cal. Jur. p. 154, sec.
105.
The answer to the second cause of action is substantially the same as that to the first cause
of action.
8. From what we have said, it follows that the answer of Ethel Rapaport raises no issue
whatever; however, since the sufficiency of this answer was in no way challenged until the
case came on for trial on the merits, we think this defendant was entitled to amend her
answer as of course.
57 Nev. 434, 444 (1937) Thiess v. Rapaport
however, since the sufficiency of this answer was in no way challenged until the case came
on for trial on the merits, we think this defendant was entitled to amend her answer as of
course. This court has repeatedly condemned the practice of making up issues as of fact and
then attempting to take advantage of the unwary pleader by motion on the trial. Cal. State Tel.
Co. v. Patterson, 1 Nev., 150, 151.
In Gallagher v. Dunlap, 2 Nev. 326, it was said, in response to a petition for a rehearing:
The regular practice, when a defendant puts in a defective answer, would be to demur to
that answer. If the demurrer is sustained, then as a matter of course the defendant is allowed
to amend. In this case, instead of demurring to the answer the plaintiff moved for judgment
on the pleadings. This is hardly the proper course where the answer is merely defective in
form or manner of denial, as in this case. * * *
But when there is an attempted denial of the fact necessary to sustain the plaintiff's
action, however imperfect that denial may be, it should be reached by demurrer.
The plaintiff cannot be placed in a better position by having made a rather irregular
motion, than he would be if he had demurred.
In Treadway v. Wilder, 8 Nev. 91, the court, in dealing with this question, said:
There is in the portion of the pleading before quoted, an attempt to set up a cause of
action, which if properly pleaded and proven might have entitled the appellant to the relief
claimed. Upon demurrer the pleading would have been held bad, but the defect pointed out
could have been remedied by amendment. No such opportunity was given, and a technical
judgment may have cut off a substantial right; such is not the spirit of the code, nor, when
properly interpreted, its practice.
The supreme court of Colorado, in Richards v. Stewart, 53 Colo. 205, 124 P. 740, held that
if there be valid objection to the defenses pleaded for failure to state facts, they should be
raised by demurrer, and that such objections cannot be taken by motion for judgment on
the pleadings, for that would be to foreclose all opportunity of amendment.
57 Nev. 434, 445 (1937) Thiess v. Rapaport
facts, they should be raised by demurrer, and that such objections cannot be taken by motion
for judgment on the pleadings, for that would be to foreclose all opportunity of amendment.
We think the court should have treated plaintiff's motion for judgment, so far as Ethel
Rapaport is concerned, as a demurrer to her answer, and have allowed her to amend as of
course, and that prejudicial error was committed in ordering judgment against her.
9, 10. The separate answer of defendant Paul Rapaport is identical to the answer of Ethel
Rapaport, as above stated, except as to the affirmative defenses. Hence we need to refer only
to the affirmative defense to each of the causes of action.
Let us now inquire if the court erred in entering judgment in favor of the plaintiff and
against this defendant. The court, in ruling on the motion for judgment in favor of plaintiff,
took the position that the attempt to deny the allegation of indebtedness averred in the
complaint raised no issue, and further held that by failure to offer evidence in support of the
affirmative defense to each of the causes of action, which had theretofore been held good on
demurrer, plaintiff was entitled to judgment. In this holding we think the court erred. The
affirmative defense to each of the causes of action pleaded in the complaint, aside from the
reference to the causes of action, reads:
That if there was any purported consideration for the alleged indebtedness sued upon in
the Plaintiff's First Cause of Action, the same was, and is, an illegal consideration, and one
that is against public policy, viz: That while this Defendant was so intoxicated and under the
influence of intoxicating liquor, he gambled at a game of chance then being conducted,
operated, owned and managed by C. Gorbulove, in and at the home of said C. Gorbulove,
also known as H. Gorbulove, in the City of Seattle, in the State of Washington, which said
game of chance is commonly known as and called Black Jack,' and if Defendant became
indebted to said C.
57 Nev. 434, 446 (1937) Thiess v. Rapaport
Gorbulove, also known as H. Gorbulove, as alleged in Plaintiff's First Cause of Action, the
same was incurred for money he had lost while so gambling with said C. Gorbulove, also
known as H. Gorbulove.
If this were a defense by way of pleading new matterthat is confession and
avoidancethe holding of the trial court would be clearly right, for in that case the burden of
proving the matter in avoidance would be upon defendant Paul Rapaport. Ferguson v.
Rutherford, 7 Nev. 385; Dixon v. Pruett, 42 Nev. 345, 177 P. 11; Coles v. Soulsby, 21 Cal.
47, 50; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692.
But the matter pleaded, as quoted, does not confess that any liability ever existed. On the
other hand, it shows that there was no consideration for the alleged indebtednessthat it
grew out of a gambling transaction which was void ab initio. While this matter is stated as an
affirmative defense, it not being matter in confession and avoidance, is merely a denial of the
averment in the complaint of a loan to the defendants.
It is a well-established rule that a statement of facts in an answer which is inconsistent
with the facts alleged in the complaint, but which does not confess and avoid, is nothing more
than a denial of the allegation which is the basis of the cause of action. Bliss on Code Pl. (2d
ed.) 333; Goddard v. Fulton, 21 Cal. 430; Alden v. Carpenter, 7 Colo. 87, 93, 1 P. 904;
Cuenin v. Halbouer, 32 Colo. 51, 74 P. 885; Nenzel v. Rochester Silver Corporation, 50 Nev.
352-358, 259 P. 632; Young v. Holman, 47 Nev. 4, 12, 216 P. 174.
But counsel for plaintiff contends that the affirmative matter pleaded does not constitute a
defense. The court having overruled a demurrer to the defense, and the case having been tried
on the theory that the matter pleaded stated defenses, it would be improper or us to affirm the
judgment, for the same reasons that judgments on the pleadings, without opportunity to
amend, are not approved.
Because of the errors pointed out, it is ordered that the judgment be reversed as to both
of the defendants, and the trial court is directed to permit the defendants to amend their
answers.
57 Nev. 434, 447 (1937) Thiess v. Rapaport
the judgment be reversed as to both of the defendants, and the trial court is directed to permit
the defendants to amend their answers.
On Costs
June 19, 1937. 69 P. (2d) 96.
1. Costs.
The supreme court clerk properly allowed costs for documents contained in clerk's
transcript on appeal as against contention that clerk of trial court can certify only to
documents constituting judgment roll, to entitle appellant to recover costs therefor, and
that documents other than judgment roll are contained in clerk's transcript on appeal,
where transcript was settled by trial judge as bill of exceptions without objection by
respondent, and documents contained in transcript were referred to in respective briefs of
counsel and treated as though they were properly before supreme court.
On appeal from clerk's ruling on costs. Ruling sustained.
For former opinion, see 57 Nev. 434, 66 P. (2d) 1000.
Harold M. Morse, for Appellants.
Albert A. Hinman, for Respondent.
OPINION
By the Court, Coleman, C. J.:
Respondent has appealed from the ruling of the clerk of this court disallowing his
exception to appellant's item of costs entitled Clerk's Transcript on Appeal, $29.80.
It is contended that the clerk of the trial court can certify only to the documents
constituting the judgment roll, to entitle appellant to recover costs therefor, and that
documents other than the judgment roll are contained in the Clerk's Transcript on Appeal.
The fact is that the so-called Clerk's Transcript on Appeal" was settled by the trial judge
as a bill of exceptions, apparently without objection by respondent, and so far as appears
was not attacked as a bill of exceptions until it reached this court {and not then on the
grounds now assigned), and in our former opinion we held that the objection to the bill of
exceptions was without merit.
57 Nev. 434, 448 (1937) Thiess v. Rapaport
Appeal was settled by the trial judge as a bill of exceptions, apparently without objection by
respondent, and so far as appears was not attacked as a bill of exceptions until it reached this
court (and not then on the grounds now assigned), and in our former opinion we held that the
objection to the bill of exceptions was without merit.
The documents contained in the Clerk's Transcript on Appeal were referred to in the
respective briefs of counsel and treated as though properly before us. In this situation, we
think the ruling of the clerk should be sustained, on authority of Sugarman Iron & Metal Co.
v. Morse Bros. Machinery & Supply Co., 50 Nev. 191, 202, 255 P. 1010, 257 P. 1.
It is so ordered.
____________
57 Nev. 448, 448 (1937) Noble Gold Mines Co. v. Olsen
NOBLE GOLD MINES COMPANY, a Corporation, Appellant, v. R. C. OLSEN, L. J.
OLSEN, HAZEL RICKETTS and VERNE RICKETTS, Her Husband, Respondents.
No. 3159
April 5, 1937. 66 P. (2d) 1005.
1. Estoppel.
Doctrine of estoppel should be applied with caution and invoked only when clearly required by
considerations of equity and justice, and in considering individual case, court should keep in mind purpose
of such defense, which is to prevent party from asserting legal right when he has so conducted himself that
it would be contrary to equity and good conscience for him to allege and prove such right.
2. Mines and Minerals.
Persons having claim to mining lands are bound to use utmost diligence in enforcing them, in view of
violent fluctuations of value of such lands, and in such cases doctrine of laches is relentlessly enforced.
3. Estoppel.
One who stands by and sees another purchase land or enter upon it under claim of right and permits such
other to make expenditures or improvements under circumstances which call for notice or protest cannot
afterwards assert title against such person.
57 Nev. 448, 449 (1937) Noble Gold Mines Co. v. Olsen
4. Equity.
Equity will discourage laches and delay in enforcement of rights, apart from any question of statutory
limitation, for nothing can call forth court of chancery into activity but conscience, good faith, and
reasonable diligence, and where these are wanting, court is passive and does nothing.
5. Estoppel.
Neither affirmative acts or words nor silence maintained with fraudulent intention to deceive nor
intentional deception are indispensable elements of an equitable estoppel.
6. Estoppel.
Where other requisites are present, estoppel in pais may be established against party, regardless of
agreement, upon his conduct, which embraces not only ideas conveyed by words written or spoken and
things actually done, but includes silence and omission to act.
7. Boundaries.
In cases relating to boundaries or title to or possession of realty, doctrine of estoppel is not applied so
frequently where there has been acquiescence for short time as where there has been acquiescence for over
long period of years, but period of time is not always determining factor, and under some circumstances
equitable estoppel may arise when period of acquiescence is short.
8. Estoppel.
Under evidence that president acting for corporation claiming through patent accepted survey for over
two years during which mining claims were established according to survey, which claims were known by
president to involve considerable amount of work and expense, and that president then informed claimants
he believed survey was erroneous, and that claimants were sinking shaft on corporation's land, and caused
another survey to be made, corporation held estoppel to dispute correctness of survey relied on by
claimants.
9. Pleading.
In action to quiet title, where order was made by stipulation sustaining demurrer to answer and
cross-complaint, defendants filed amended answer and cross-complaint amending pleading of estoppel,
plaintiff filed no demurrer but replied and failed to object to testimony on issue of estoppel, objections to
sufficiency of pleading to permit introduction of evidence on such issue held waived.
Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.
Action by the Noble Gold Mines Company against R. C. Olsen and others. From a
judgment for defendants and an order denying plaintiff's motion for a new trial, plaintiff
appeals. Affirmed.
57 Nev. 448, 450 (1937) Noble Gold Mines Co. v. Olsen
Clarence L. Young, for Appellant:
Estoppel is not favored, and it is incumbent upon one who advances it to prove its
dominant essentials, leaving nothing to surmise or questionable inference. General Motors
Corp. v. Gandy, 253 P. 137. The essential ingredients of the estoppel set up in this case are:
First, the party relying on it should have been influenced by the acts or silence of the other;
second, it must appear that the acts or conduct of the party sought to be estopped caused the
other to act as he would not otherwise have done. Sharon v. Minnock, 6 Nev. 337.
The defense of estoppel in this case is, in substance, that the plaintiff and its grantor, Noble,
accepted the Stoddard survey, made in 1931, of sections 10 and 15. This averment is denied,
and the denial is supported by an abundance of evidence, both documentary and oral. The
defendants further allege that the plaintiff and its grantor made promises and assurances, and,
relying thereon, defendants expended large sums of money upon their property, and but for
their reliance upon plaintiff's promises and assurances, they would have protected their
mining location by a judicial proceeding. What the promises and assurances were is not stated
in their cross-complaint, and it is our contention that after a full hearing they were not
established by any proof, except what may be gathered from surmise and very questionable
inference, refuted by the positive and clear testimony of witnesses for plaintiff.
This court has definitely passed upon the sufficiency of the pleading of estoppel by the
defendant and the evidence required in support thereof in Sharon v. Minnock, supra.
W. A. Wilson, and H. J. Murrish, for Respondents:
It is well established by the evidence of both the plaintiff and defendants that the Stoddard
survey was run early in 1931; that George B. Noble, president of the plaintiff corporation,
was one of the parties that employed Stoddard to make the survey; that the defendants did
all their work north of the line established by the survey, during the years 1930, 1931,
1932, 1933, 1934 and 1935; that the new survey run by J. G. Huntington was run in July
and August 1935; that the values recovered by the defendants from the Hawk Eye claim
increased rapidly in the fore part of 1935; and that the plaintiff, on August 2, 1935, served
notice upon the defendants to evacuate.
57 Nev. 448, 451 (1937) Noble Gold Mines Co. v. Olsen
employed Stoddard to make the survey; that the defendants did all their work north of the line
established by the survey, during the years 1930, 1931, 1932, 1933, 1934 and 1935; that the
new survey run by J. G. Huntington was run in July and August 1935; that the values
recovered by the defendants from the Hawk Eye claim increased rapidly in the fore part of
1935; and that the plaintiff, on August 2, 1935, served notice upon the defendants to
evacuate. The president of the plaintiff corporation admits that he knew the defendants were
working on the said Hawk Eye claim, north of the Stoddard line. The trial court certainly did
not err in its findings and decision. Lindley on Mines, p. 2198, sec. 872; High Gravity Oil Co.
v. Southwestern Petroleum Co., 290 Fed. 370; Wood v. Bapp (S. D.), 169 N. W. 518;
Grawunder v. Goteskey (Tex.), 204 S. W. 702.
OPINION
By the Court, Taber, J.:
This cause comes here on appeal from a judgment of the Sixth judicial district court,
Pershing County, and from an order of said district court denying a motion for new trial.
Appellant was plaintiff in the court below. The action was brought to quiet its title to the
northeast quarter of the northeast quarter of section 15, township 33 north, range 30 east,
Mount Diablo base and meridian; also an irregular parcel of land described as follows:
Beginning at the southeast corner No. 6 of the North Star lode mining claim in Scossa mining
district, Pershing County, Nevada, and running thence north 16 44' east 648 feet, more or
less, to the section line between section 10 and 15 of township 33 north, range 30 east, M. D.
B. & M.; thence in an easterly direction 74 feet, more or less, along the north boundary line of
section 15 to the northeast corner of the northwest quarter of the northeast quarter of section
15, township 33 north, range 30 east, M. D. B. & M.; thence south along the east side line of
said northwest quarter of the northeast quarter of said section 15, 620 feet, more or less,
to a point; thence west and parallel to the north boundary line of said section 15, 265
feet, more or less, to corner No.
57 Nev. 448, 452 (1937) Noble Gold Mines Co. v. Olsen
along the east side line of said northwest quarter of the northeast quarter of said section 15,
620 feet, more or less, to a point; thence west and parallel to the north boundary line of said
section 15, 265 feet, more or less, to corner No. 6 of North Star lode mining claim, the point
or place of beginning, situated in Scossa mining district, Pershing County, Nevada.
The original official government survey of the lands in the vicinity of the above-described
property was made in 1875. In 1903 said section 15, as nonmineral land, was patented to the
Central Pacific Railroad Company. By deed dated February 4, 1931, the Southern Pacific
Land Company conveyed to George B. Noble, now president of plaintiff corporation, the
northeast quarter of the northeast quarter of said section 15. On February 23, 1933, said
George B. Noble deeded said subdivision to plaintiff.
The Scossa mining district was organized in 1930, and the Scossa brothers, Charles and
James, after whom the new mining camp was named, located the North Star lode mining
claim. On the 2d day of July 1931, the Scossas deeded to said George B. Noble the irregular
piece of land hereinbefore described. Said George B. Noble, in turn, deeded said irregular
tract to plaintiff February 23, 1933.
On December 11, 1930, defendant R. C. Olsen, and his father, J. P. Olsen, located the
Hawk Eye lode mining claim just east of said North Star claim. On March 27, 1931,
defendant R. C. Olsen and E. F. Laughton located the Belcher lode mining claim a short
distance easterly from said Hawk Eye claim. All the essentials of both federal and Nevada
laws were complied with to make said Hawk Eye claim valid, except that, as contended by
plaintiff, the point of discovery, location monument, location work, annual labor and all other
work done on said claim were on patented land owned at the time of its location by the
Central Pacific Railroad Company and, at the time this suit was brought, by plaintiff
corporation.
57 Nev. 448, 453 (1937) Noble Gold Mines Co. v. Olsen
No government survey monuments were found in the immediate vicinity of any of the
above-named mining claims at or about the time of their location, so the interested parties
could not without a new survey know where the section lines were as originally established
by the government, nor on what sections or subdivisions their claims were located. A survey
was made in February 1931 by Carl Stoddard and Kerby Stoddard, who were originally
employed to make the survey by Martin Goni and Herbert Hamlin. It is admitted that George
B. Noble was interested in the hiring of the Stoddards to make this survey and that he
contributed $50 towards its costs. One of the chief purposes of the Stoddard survey was to
locate the boundary line between sections 10 and 15 in said township. This boundary line, as
located by said survey, will henceforth be referred to as the Stoddard line. It cut across and
approximately bisected the shaft then being sunk by Mr. Noble in ground believed by him to
be within the exterior boundaries of his said railroad subdivision.
Since the Stoddard survey, it has at all times been admitted that a portion of the Hawk Eye
claim, as originally marked on the ground, extends to the south across the boundary line
between said sections 10 and 15 and onto the said northeast quarter of the northeast quarter of
section 15, the subdivision owned by plaintiff. According to this survey, the discovery point
and location monument of the Hawk Eye claim are, and all work done by defendants has
been, north of the Stoddard line. Defendants, since said survey, have never claimed any
ground south of that line, and plaintiff admits that they have not at any time done any work
there.
The boundary line between said sections 10 and 15 has been located in at least three other
places than that established by the Stoddard survey. In January, or early in February 1931,
Tom Mack, employed by the corporation which sold said 40-acre subdivision to Mr. Noble,
located the boundary line between said sections about 200 feet south of the Stoddard line.
57 Nev. 448, 454 (1937) Noble Gold Mines Co. v. Olsen
about 200 feet south of the Stoddard line. John G. Huntington, whose qualifications as a
surveyor were admitted by defendants just as Carl Stoddards qualifications were admitted by
plaintiff, made a survey in the summer of 1935 and first located said boundary line about 260
feet north of the Stoddard line, later establishing it approximately 200 feet north thereof.
According to Mr. Huntington's survey, the discovery point and location monument of the
Hawk Eye claim are, and practically all work done by defendants has been, south of the
boundary line between said sections 10 and 15. Upon the basis of the Huntington survey,
plaintiff, on August 2, 1935, served written notice on defendants that their shaft and principal
workings were located within the boundaries of plaintiff's patented land, and requesting them
to evacuate the property of which they were in possession. Defendants having failed to
comply with said notice, plaintiff commenced this action on the 11th day of August 1935.
The defense was based on two contentions: First, that the Stoddard line is the true
boundary line between sections 10 and 15; and, second, that were it to be conceded that the
preponderance of evidence favors the Huntington survey, plaintiff is estopped, as to the
defendants, on the issues made in this case, from asserting that the Stoddard line is not the
boundary line between said sections. By way of cross-complaint, defendants alleged their
ownership, subject to the paramount title of the United States, in the Hawk Eye claim, and
prayed the court to quiet their title thereto. The trial court did not make any finding, based on
the surveys alone, determining the true boundary line between said sections 10 and 15. It
based its decision squarely upon the ground that plaintiff was estopped from maintaining its
suit and from denying that the Stoddard line is the dividing line between its property and that
of defendants.
Following, in substance, is the evidence chiefly relied upon by defendants in support of
their plea of estoppel:
57 Nev. 448, 455 (1937) Noble Gold Mines Co. v. Olsen
upon by defendants in support of their plea of estoppel:
Plaintiff and Mr. Noble, knowing of defendants' location of the Hawk Eye claim from the
beginning, knowing also of the expense being incurred and work being done by defendants,
took no steps to dispossess them for more than 4-1/2 years after said claim was located, nor
until, through their efforts and the outlay of approximately $10,000, it had produced about
$8,000 in ore values and had become a paying proposition. Mr. Noble has lived at Scossa
since some time in 1930, and he and plaintiff, ever since that time, have operated mining
properties in immediate proximity to the Hawk Eye claim.
Defendants further point out that in the deed from the Scossas to Mr. Noble, Mr. Noble's
deed to plaintiff, and in plaintiff's complaint, the first course in the description of the irregular
tract of land hereinbefore mentioned begins at the southeast corner of the North Star claim
and runs thence north 16 44' east 648 feet, more or less, to the section line between said
sections 10 and 15. W. A. Pray, a qualified surveyor employed by defendants after this action
was commenced, measured said course from said corner of the North Star claim to the
Stoddard line and found the distance to be approximately the same as that given in said deeds
and complaint, to wit, 650.8 feet, showing clearly, as defendants contend, that the Stoddard
line was regarded by the parties to said deeds as the boundary line between said sections, and
that the second course in the description of said irregular tract, being the north boundary
thereof, was intended to run easterly along said Stoddard line.
Before accepting the Scossa deed, Mr. Noble caused a survey to be made of the irregular
tract by Mr. Frank O'Leary, a civil engineer, for the purpose of assuring a correct description.
The Stoddard line has been accepted by defendants ever since it was located. After the
Stoddard survey, defendants did not at any time attempt to take possession of or do any
work on any ground south of the Stoddard line.
57 Nev. 448, 456 (1937) Noble Gold Mines Co. v. Olsen
defendants did not at any time attempt to take possession of or do any work on any ground
south of the Stoddard line.
Edward M. Ranson, locomotive fireman residing at Imlay, Nevada, and co-owner, with R.
Nenzel, of the Belcher claim, testified that in 1933 and 1934 he was employed at Scossa as
foreman at the Red Top mine for the American Milling & Mining Company and as a miner at
the Great Hope mine. In February 1934, according to Mr. Ranson, he had a conversation with
Mr. George B. Noble regarding the ownership of the Hawk Eye claim. In this conversation
Mr. Noble said it was his ground, and when asked by Mr. Ranson why he did not put the
defendants off the property, replied that as long as they were just making a living he would let
them gowould not bother them.
R. Nenzel, above referred to, testified that he was at the camp of Scossa in 1933 and 1934
in the capacity of secretary of the American Milling & Mining Company, and that he was also
operating the Belcher claim. Asked if he had had any business dealings with Mr. Noble and
as to the nature of any such dealings, Mr. Nenzel replied: Well, when I bought this claim
from the Olsens I hired Mr. Carl Stoddard to come out and survey, so I knew where my
boundaries were, and he surveyed, went right across a shaft of Gus Warmouth's, which
property had been leased to Gus Warmouth by Mr. Noble, and Mr. Noble asked me what I
was going to do about it. I asked him to do about what? He said, well, you going to make Mr.
Gus Warmouth quit working here? I said, no, I will deed him 10 or 12 feet, whatever is
necessary to put his shaft in the clear; and he says, well, if you will do that I think it is mighty
fine, and I will recognize the survey; and with that we went ahead, and he allowed me to
build a road over his ground in order to get to my property, and hauled the hoist up there for
us; and one of his sons was employed on our property for a month of six weeks. In
pursuance of said understanding between Mr. Nenzel and Mr.
57 Nev. 448, 457 (1937) Noble Gold Mines Co. v. Olsen
Noble, the latter and his lessees proceeded to use the shaft without interference from Nenzel,
and Nenzel, without interference from Noble or his lessees, pursued his mining operations on
the Belcher claim until his financial resources were exhausted.
Mr. Nenzel admitted that in the spring of 1934 Mr. Noble told him he had decided that the
Belcher location was on his (Noble's) ground and at the same time told him to stay off of it.
When asked if that was the reason he quit, Mr. Nenzel said it was notthat the reason he quit
was because he ran out of money. On cross-examination Mr. Nenzel testified, in part, as
follows:
Q. So there was no definite understanding between you and Mr. Noble or the Olsens that
the Stoddard survey was to be binding upon anyone? A. Absolute understanding that it would
be binding.
Q. In what way? A. Otherwise I wouldn't have gone in there and spent any money.
Q. In what respect? A. That the line would be recongized.
Q. That the line would be recognized? A. Yes, sir.
Q. As made by Stoddard? A. Yes, sir; otherwise why should I go in and spend money on
his ground if he claimed it; that was thoroughly understood.
On June 15, 1933, defendants, as parties of the first part, and G. W. Warmouth and W. W.
Hill, lessees of plaintiff, as parties of the second part, entered into the following agreement:
Party of the first part agree to allow party of the second part to continue to develop their
lease on the Noble property. This shaft is located on the South-east corner of the Hawk Eye
mining claim which is owned by Olsen Bros.
L. J. Olsen, one of the defendants, testified that in the last part of 1934 or early in 1935
Mr. Noble told him he thought defendants were working on his ground, but it didn't matter,
he would let us work there as long as we wanted to.
As against the foregoing, plaintiff points out that: Defendants knew that section 15 was
a patented railroad section, and that the true boundary line between it and section 10
could only be that established by the original government survey.
57 Nev. 448, 458 (1937) Noble Gold Mines Co. v. Olsen
Defendants knew that section 15 was a patented railroad section, and that the true
boundary line between it and section 10 could only be that established by the original
government survey. In response to defendants' reliance upon the words 648 feet, more or
less used in the description of the irregular piece of ground hereinbefore mentioned, plaintiff
calls attention to the words immediately following, namely, to the section line between ten
(10) and fifteen (15), of T. 33 N. R. 30 E., M. D. B. & M., and argues that these words must
prevail over those which defendants contend show acceptance by plaintiff of the Stoddard
line.
Plaintiff further directs attention to the fact that, regardless of the Stoddard survey, neither
plaintiff nor defendants knew the true location of the boundary line between sections 10 and
15, at least until Mr. Huntington made his survey. Plaintiff maintains that this is conclusively
shown, as to defendants, by the following provision in the contract of sale wherein E. F.
Laughton and R. C. Olsen agreed to sell the Belcher claim to R. Nenzel: The second party
shall commence a survey of said property prior to May 15, and diligently continue same to
completion. If a government survey shall subsequently be made and any change in section
lines shall occur, then the first parties shall be held free of all claims or damage by reason
thereof.
L. J. Olsen, one of the defendants, admitted that in the last part of 1934 or early in 1935
Mr. Noble told him he thought defendants were working on his ground, and that Mr. Noble
told him that two or three different times.
George B. Noble, president of plaintiff corporation, testified, in part, as follows: From
1931 until the spring of 1934 we were in absolute possession of that ground, and there was
nobody on it, and we weren't bothered by any one; and we did this work mostly during that
period; and in the spring of 34 they came on and started to work, without my permission.
By reason of the admitted fact that at the time defendants started their shaft Mr.
57 Nev. 448, 459 (1937) Noble Gold Mines Co. v. Olsen
started their shaft Mr. Noble told them he believed it was on plaintiff's ground, plaintiff
maintains that any laches or negligence in taking immediate steps to determine the true
location of the boundary line between said sections 10 and 15 can no more be attributed to
plaintiff than to defendants themselves.
R. C. Olsen, one of the defendants, testified on cross-examination to a conversation with
Mr. Noble in 1935 in which the latter stated that if defendants should lose the ground in
question in the event of a survey he would give them a lease.
L. J. Olsen, one of the defendants hereinbefore referred to, on cross-examination testified,
in part, as follows:
Q. And the only expression that you have had from Mr. Noble with reference to your
workings, is that he told you that you were on his ground, but you could work there as long as
you wanted to? A. No. He said he thought we was on his ground, and that we could work
there as long as we wanted, and he would never bother us.
Q. And with that understanding you continued to work. A. Well, we continued to work
there. We figured we was on the ground
Q. That is it. A. Sure.
Q. In other words then whatever Mr. Noble told you had no influence upon you whatever
as to your rights upon that ground? A. We figured that the Stoddard line was the line.
Q. Hold on a minute. To the Stoddard line? I understand that; but it didn't make any
difference to you what Mr. Noble said, and if he had told you to get off the land would you
have gotten off at that time? A. No.
Q. No; because were standing on your location. A. Yes.
Witness also admitted that in 1935 Mr. Noble told him he thought the Stoddard line was
wrong and that he was going to check it.
57 Nev. 448, 460 (1937) Noble Gold Mines Co. v. Olsen
George B. Noble, president of plaintiff corporation, testified, in part, that in the summer of
1935 I sent for the Olsen boys to come over to my house. They come over. I told them this
trouble over these boundary lines had gone far enough, and I asked them if they wouldn't
make a joint survey with me and determine where the real line come, and I told them that if
their present workings fell on my side of the line that I would give them a lease at a low
royalty; and they said they wouldn't spend any money for surveying. So I asked them if they
would consider consolidation, and they flatly refused it. That was about all the conversation.
Mr. Noble further testified that early in the spring of 1935 he had a conversation with
defendant L. J. Olsen at Lovelock with reference to Noble's having entered into a lease or
contract and giving Dawes an option. Olsen told me that Mr. Dawes came up to their
workings and asked them what about paying royalty on the ore that they was taking out, and
he told me that Mr. Dawes told me he had agreed, and was going to survey the ground
probably within four months, and he says I told Mr. Dawes if you survey this ground and find
us on the ore I will be glad to pay you royalty on it, or if you will not lease it to me I will take
our things and move off. He says to me, I know the ground belongs to you, but I am going to
stay with it as long as I can. (Mr. Olsen denied that any such conversation took place.)
Regarding the testimony of Mr. Nenzel hereinbefore referred to, Mr. Noble testified that
he had no conversation with him at all, and that he never said he acquiesced in the Stoddard
line or that the Olsens could stay on the ground. He further testified, and it was not denied,
that he and plaintiff had paid all taxes on the land constituting the subject matter of the suit,
ever since they owned it. He did not know of Tom Mack's ever having run a line up there
anywhere, though he (Noble) had been there most all the time.
Jack Vaughn, an owner of ground at Scossa, testified that in the early spring of 1933 he
was present at a conversation between Mr.
57 Nev. 448, 461 (1937) Noble Gold Mines Co. v. Olsen
that in the early spring of 1933 he was present at a conversation between Mr. Noble and Mr.
Olsen. Gus Warmouth was sinking a shaft there, had a lease, and Mr. Stoddard was running
a line this day and it went over their windlass, over the Gus Warmouth, on the North end
about 18 inches, and there was some remark that Mr. Olsen, Ralph, had made, I don't know
what it was, he and Mr. Noble had some conversation, and I was standing about 30 feet above
the shaft. They walked up near where I was standing. Mr. Noble says to Ralph Olsen, if you
try to stop this man from working there I will have this line put where that line belongs.
Ralph says, I have no partner, and he says, that goes for you and your partner both. So that
was the conversation.
George B. Noble, called in rebuttal, testified that he did not, at any time, state to Mr.
Nenzel or any one else that the Olsens could work the ground as long as they wanted to, as
long as they didn't interfere with this lease or the Warmouth lease.
Coming now to a consideration of the law applicable to this case, we observe, first, that
adverse possession for the statutory period is not in issue; and second, that respondents do not
contend that the trial court was in error in deciding that plaintiff was not foreclosed by the
statute of limitations from commencing and maintaining this action.
1. The essential elements of equitable estoppel are set forth in Bigelow on Estoppel (5th
ed.), p. 570, Pomeroy's Equity Jurisprudence (4th ed.), vol. II, sec. 805, the law
encyclopedias, many other texts and many hundreds of judicial decisions. Referring to these
elements, Pomeroy says (Eq. Jur. vol. II, p. 1644): One caution, however, is necessary, and
very important. It would be unsafe and misleading to rely on these general requisites as
applicable to every case, without examining the instances in which they have been modified
or limited. The doctrine should be applied with caution, and invoked only when clearly
required by considerations of equity and justice, for if used arbitrarily in dubious cases it
could easily become an odious rather than a beneficent doctrine.
57 Nev. 448, 462 (1937) Noble Gold Mines Co. v. Olsen
dubious cases it could easily become an odious rather than a beneficent doctrine. In
considering such individual case, courts should keep in mind the purpose of the defense of
equitable estoppel, which is to prevent a party from asserting his legal rights when he has so
conducted himself that it would be contrary to equity and good conscience for him to allege
and prove such rights.
Appellant maintains that the Stoddard line was not accepted by either Mr. Noble or
plaintiff, or by the defendants themselves. The evidence, however, is clear that defendants
have accepted said line ever since it was run, and that it was also accepted by Mr. Noble and
the plaintiff for more than two years after that time. The fact that defendants realized that
some future survey might place the boundary line between said sections 10 and 15 at some
other location than that of the Stoddard line is not inconsistent with the fact, clearly
established by the evidence, that they have at all times accepted that line. Our reading of the
record convinces us that neither plaintiff nor Mr. Noble asserted any right to that portion of
the Hawk Eye claim lying north of the Stoddard line for more than two years after that line
was run. During this period Mr. Noble and the plaintiff, as parties to the deeds, agreements,
and other transactions hereinbefore referred to, showed their acceptance of the Stoddard line.
Later, it is true, they questioned the correctness of the location of that line, and finally
asserted their rejection of it altogether; otherwise this suit would not have been brought.
Most of the work done and expense incurred by defendants on the Hawk Eye claim was in
the years 1934 and 1935. It is admitted that about the time defendants started their shaft in the
spring of 1934, the president of plaintiff corporation informed them he believed they were
sinking their shaft on plaintiff's ground. From this fact counsel for appellant argues that it was
no more incumbent on plaintiff than it was on defendants to take immediate steps to
determine the true location of the boundary line between said sections.
57 Nev. 448, 463 (1937) Noble Gold Mines Co. v. Olsen
the true location of the boundary line between said sections. A similar situation was presented
to the circuit court of appeals, Sixth circuit, in the case of High Gravity Oil Co. v.
Southwestern Petroleum Co. et al., 290 F. 370, wherein the court, at page 375, said: We
think the situation here developed satisfies the spirit of the Kentucky rule, as well as makes a
good defensive case in equity. Four or more wells were thereafter drilled by defendant on the
strip in controversy with the High Gravity Company, and the only objection made was that
during the drilling of the first (which seems to have been below the top edge of the cliff)
plaintiff's manager said to the defendant, I think you are drilling a well for us.' An attempt in
equity to enforce such a claim, after several more have been drilled for us,' and against a
driller who has always claimed in adverse right, is not strongly appealing. So here, in view
of the fact that Mr. Noble had been partly instrumental in bringing about the Stoddard survey,
had paid his pro rata share of its cost, and thereafter participated in a number of transactions
wherein the Stoddard line was recognized, we do not think plaintiff could prevent an estoppel
by merely informing defendants it believed they were on its ground where, as in the instant
case, it stood by until well into the summer of 1935 before requesting defendants to give up
the property, or instituting a suit for the purpose of compelling them to do so, in the meantime
operating properties next to the Hawk Eye and being fully cognizant of the large amount of
work being done and money being expended by defendants.
2. There is no class of property more subject to sudden and violent fluctuations of value
than mining lands. A location which today may have no salable value may in a month become
worth its millions. Years may be spent in working such property apparently to no purpose,
when suddenly a mass of rich ore may be discovered, from which an immense fortune is
realized. Under such circumstance, persons having claims to such property are bound to the
utmost diligence in enforcing them, and there is no class of cases in which the doctrine of
laches has been more relentlessly enforced." Lindley on Mines {3d ed.), vol.
57 Nev. 448, 464 (1937) Noble Gold Mines Co. v. Olsen
such property are bound to the utmost diligence in enforcing them, and there is no class of
cases in which the doctrine of laches has been more relentlessly enforced. Lindley on Mines
(3d ed.), vol. III, sec. 872, p. 2189.
The duty of inquiry was all the more peremptory, in this case, from the fact that the
property of itself was of uncertain character, and was liable, as is most mining property, to
suddenly develop an enormous increase in value. This is actually what took place in this case.
A property which, in October 1880, plaintiff sold to Chatfield upon the basis of $4,800 for the
whole mine is charged in a bill filed October 21, 1887, to be worth $1,000,000, exclusive of
its accumulated profits. Under such circumstances, where property has been developed by the
courage and energy and at the expense of the defendants, courts will look with disfavor upon
the claims of those who have lain idle while awaiting the results of this development, and will
require, not only clear proof of fraud, but prompt assertion of plaintiff's rights. Felix v.
Patrick, 145 U. S. 317, 334, 12 S. Ct. 862 [36 L. Ed. 719, 727]; Hoyt v. Latham, 143 U. S.
553, 567, 12 S. Ct. 568 [36 L. Ed. 259, 265]; Hammond v. Hopkins, 143 U. S. 224, 12 S. Ct.
418 [36 L. Ed. 134]; Great West Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23
P. 908. The language of Mr. Justice Miller in Twin-Lick Oil Co. v. Marbury, 91 U. S. 587,
592 [23 L. Ed. 328, 331], with regard to the fluctuating value of oil wells, is equally
applicable to mining lodes: Property worth thousands today is worth nothing tomorrow; and
that which today would sell for a thousand dollars, at its fair value, may by the natural
changes of a week, or the energy and courage of desperate enterprise, in the same time be
made to yield that much every day. The injustice, therefore, is obvious, of permitting one
holding the right to assert an ownership in such property to voluntarily await the event, and
then decide, when the danger which is over has been at the risk of another, to come in and
share the profit.'" Johnston v. Standard Mining Co., 14S U. S. 360, 13 S. Ct. 5S5, 5S9, 37 L.
Ed. 4S0, 4S6.
57 Nev. 448, 465 (1937) Noble Gold Mines Co. v. Olsen
has been at the risk of another, to come in and share the profit.' Johnston v. Standard Mining
Co., 148 U. S. 360, 13 S. Ct. 585, 589, 37 L. Ed. 480, 486.
3. It is a rule almost of universal application that one who stands by and sees another
purchase land or enter upon it under a claim of right, and permits such other to make
expenditures or improvements under circumstances which would call for notice or protest,
cannot afterwards assert his own title against such person. 10 R. C. L. 782.
One who with knowledge of the facts and without objection suffers another to make
improvements or expenditures on, or in connection with, his property, or in derogation of his
rights under a claim of title or right, will be estopped to deny such title or right to the
prejudice of that other who has acted in reliance on and been misled by his conduct. 21 C. J.
1160.
It is said to be a very familiar rule of the law of estoppel that if the owner of an estate
stands by and sees another erect improvements on the estate in the belief that he has a right to
do so, and does not interpose to prevent the work, he will not be permitted to claim such
improvements after they are erected. * * * It has also been declared that one who knowingly
and silently permits another to expend money on land under a belief that he has title will not
be permitted to set up his right to the exclusion of the rights of the one who made such
improvements. 76 A. L. R. 304, 306.
4. It is a familiar doctrine that, apart from any question of statutory limitation, courts of
equity will discourage laches and delay in the enforcement of rights. The general principle is
that nothing can call forth the court of chancery into activity but conscience, good faith, and
reasonable diligence. Where these are wanting, the court is passive and does nothing. 10 R.
C. L. 395.
No reason is made to appear why such a survey as that of Mr. Huntington was not caused
to be made by plaintiff or Mr.
57 Nev. 448, 466 (1937) Noble Gold Mines Co. v. Olsen
plaintiff or Mr. Noble before defendants had done so much work and expended so much
money in developing the Hawk Eye claim.
5. Neither affirmative acts or words, nor silence maintained with the fraudulent intention
to deceive, are indispensable elements of an equitable estoppel. Intentional deception is not a
necessary ingredient. Wampol v. Kountz, 14 S. D. 334, 85 N. W. 595, 86 Am. St. Rep. 765,
768; Lawrence on Equity Jurisprudence, vol. 2, sec. 1045, p. 1131.
6. In this case there was not, as in many boundary cases, a direct agreement between the
respective parties that the Stoddard line was to be accepted as the boundary line between said
sections 10 and 15; but an estoppel may arise whether there be such agreement or not. Acton
v. Dooley, 6 Mo. App. 323, 327; 21 C. J. 1120. Where other requisites are present, an
estoppel in pais may be established against a party, regardless of agreement, upon his
conduct, which embraces not only ideas conveyed by words written or spoken and things
actually done, but includes silence and omission to act as well. Wampol v. Kountz, supra.
7. In cases relating to boundaries or title to or possession of real property, the doctrine of
estoppel is not applied so frequently where acquiescence has been for a short time as in those
where it has been for over a long period of years; but the period of time is not always the
determining factor, and under some circumstances an equitable estoppel may arise when the
period of acquiescence is short. Champ v. Nicholas County Court, 72 W. Va. 475, 78 S. E.
361; 21 C. J. 1161-1162.
8. After a careful consideration of the record, we are unwilling to disturb any of the
findings of the trial court because, in our opinion, the evidence was sufficient to show that the
defendants would not have proceeded as they did had they not relied, to their detriment, upon
the conduct of Mr. Noble and the plaintiff.
9. In its assignment of error on the issue of estoppel, appellant further contends that
defendants were not entitled under their pleadings to offer any evidence on that issue.
57 Nev. 448, 467 (1937) Noble Gold Mines Co. v. Olsen
not entitled under their pleadings to offer any evidence on that issue. It appears from the
record that after an order was made on stipulation of respective counsel sustaining plaintiff's
demurrer to the answer and cross-complaint, defendants filed their amended answer and
cross-complaint in which the paragraph relating to estoppel was amended by the addition of a
number of allegations not appearing in the original answer and cross-complaint. Plaintiff did
not demur to the amended answer and cross-complaint, but filed its reply thereto.
Furthermore, at the trial, defendants offered their testimony and evidence on the issue of
estoppel without objection on the part of plaintiff. It is our opinion that any objections of
plaintiff to defendants' pleading on the issue of estoppel were waived. 21 C. J. 1250, sec. 262.
Error is predicated upon the action of the district court in admitting in evidence, over the
objection of plaintiff, surveyor Pray's map, defendants' exhibit I, and in denying plaintiff's
motion to strike Mr. Pray's testimony upon the ground that it was incompetent for the
purposes for which the map was introduced in evidence. We think these rulings of the trial
court were correct, and that the aforesaid objection and motion affected the weight rather than
the admissibility of Mr. Pray's map and testimony.
The judgment and order appealed from are affirmed.
____________
57 Nev. 468, 468 (1937) Silva v. District Court
STELLA B. SILVA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, and HONORABLE
THOMAS F. MORAN, Judge of Department One Thereof, Respondents.
No. 3181
April 5, 1937. 66 P. (2d) 422.
1. Judgment.
Generally, power of a court to correct mere clerical errors in its judgment may be exercised at any time.
2. Divorce.
Omission from written decree of divorce of reservation of jurisdiction to modify decree with respect to
custody and support of minor children of parties when trial court in its pronouncement from the bench had
reserved such jurisdiction held mere clerical error which trial court could, and was under a duty to, correct
at any time, since pronouncement from bench was final decree, and written decree was required to
correspond therewith.
3. Divorce.
That parties to divorce had effected a settlement with respect to custody and support of minor children,
which was approved by court, would not relieve court of duty of making signed decree in which
jurisdiction to modify decree with respect to custody and support of minor children was not reserved,
conform to pronouncement from bench which did reserve such jurisdiction.
4. Divorce.
That husband, relying on signed decree of divorce which omitted reservation of right to modify decree
with respect to custody and support of minor children, mortgaged his property to third persons who loaned
money to him relying upon finality of such decree would not estop trial court from correcting decree so as
to show that decree actually rendered reserved jurisdiction to modify decree with respect to custody and
amounts.
5. Appeal and Error.
Order denying wife's motion for correction of decree signed by judge in divorce action so as to show that
court reserved jurisdiction to modify its decree with respect to custody and support of minor children held
not order within statute relating to appeals from any special order made after final judgment, since
such designation means only judicial orders and not orders made by the judge in a ministerial capacity after
final judgment. Stats. 1935, c. 90, sec. 10(2).
57 Nev. 468, 469 (1937) Silva v. District Court
6. Mandamus.
Mandamus held to lie to require trial judge to correct decree rendered in divorce action so as to include a
reservation of jurisdiction to modify decree as to custody and support of minor children where such
provision was erroneously omitted from signed decree and motion for correction was denied, since no
discretion was involved in doing of the act and appeal would not lie from order denying motion. Stats.
1935, c. 90, sec. 10(2).
Original proceeding by Stella B. Silva for a writ of mandamus directed to the Second
Judicial District Court of the State of Nevada, in and for the County of Washoe, and the
Honorable Thomas F. Moran, Judge of Department 1 thereof. Peremptory writ of
mandamus issued in accordance with opinion.
Price & Merrill, for Petitioner:
The oral pronouncement from the bench constitutes the decree, and the written document
is merely evidence of it. McIntyre v. No. Pac. Ry. Co., 56 Mont. 256; Cal. St. Tel. Co. v.
Patterson, 1 Nev. 150; Wallis v. First Nat'l Bank, 155 Wis. 533, 145 N. W. 195; 1 Freeman
on Judgments 81, sec. 48.
Error in failing to make the writing conform to the decree is mere clerical error. 1 Freeman
on Judgments 284, sec. 146.
The right of the court to correct clerical errors in its records is an inherent right
independent of statute. O'Bryan v. Am. Inv. & Imp. Co. (Wash.), 97 P. 241; Nat'l Council, K.
& L. of S. v. Silva, 138 Minn. 330, 164 N. W. 1015; Lindsay v. Lindsay, 52 Nev. 26, 280 P.
95; Klinefelter v. Anderson (N. D.), 230 N. W. 288; 1 Freeman on Judgments 281, sec. 145;
34 C. J. 235, sec. 454.
And it is the duty of the court when such error has been called to its attention to correct it.
People ex rel. Fitzpatrick v. District Court, 33 Colo. 77, 79 P. 1014; Hollister v. District
Court, 8 Ohio St. 201, 70 Am. Dec. 100; State v. French, 100 Wash. 552, 171 P. 527.
The general rule is that mandamus is the proper remedy in the event of the court's
refusal to correct it.
57 Nev. 468, 470 (1937) Silva v. District Court
remedy in the event of the court's refusal to correct it. People ex rel. Fitzpatrick v. District
Court, supra; Hollister v. District Court, supra; State v. French, supra; 1 Freeman on
Judgments, pp. 93, 337, secs. 53, 170.
The rule should apply in the case at bar, for the reasons: (1) appeal is not available,
because the refusal of the lower court to correct the document is not a special order made
after final judgment within the meaning of sec. 10 of the 1935 act, but a refusal to recognize
his ministerial duties to correct existing errors; (2) even though appeal were available from
the refusal to correct, still it cannot be said that the remedy is plain, speedy and adequate.
Aseltine v. District Court, 57 Nev. 269, 69 P. (2d) 701.
The lower court has already expressed itself. The judge thereof, as a ministerial officer,
cannot complain at this time that he is given no discretion in use of language or form in
correcting the written document.
William M. Kearney, for Respondents:
It is fundamental that mandamus cannot be used to compel discretion to be exercised in
any particular way. Lindsey, Judge, v. Carlton (Colo.), 96 P. 997; State ex rel. Phillips v.
District Court, 46 Nev. 25, 207 P. 80; State ex rel. Freyesleben v. District Court, 40 Nev. 163,
161 P. 510; State ex rel. Weber v. McFadden, Judge, 46 Nev. 1, 205 P. 594.
Mandamus is to compel the performance of an act which the law especially enjoins. Any
such duty as might have existed was completely performed by hearing and determining the
motion. Where the court has entertained such a motion and denied it, its act is judicial, not
ministerial, and cannot be reviewed or controlled by mandamus. Ex Parte Morgan, 114 U. S.
174, 29 L. Ed. 135; Lapique v. Superior Court (Cal.), 141 P. 223; Hansen v. De Vita (N. J.),
72 Atl. 60; Eustis v. Frey (Tex.), 204 S. W. 117; State ex rel. Pyne v. La Grave, 22 Nev. 417,
41 P. 115.
57 Nev. 468, 471 (1937) Silva v. District Court
The decision or order on the motion being appealable, and mandamus not being proper
where there is an appeal, the demurrer should be sustained. State ex rel. Freyesleben v.
District Court, supra; Stats. 1935, p. 197, ch. 90, sec. 10; Oliver v. Superior Court (Cal.), 227
P. 647; State Bank v. Schultze (Mont.), 209 P. 599; Miller v. Miller (Kan.), 172 P. 1010; Nell
v. Dayton (Minn.), 49 N. W. 981; Memphis, etc. Co. v. Whorley, 74 Ala. 264;
Co-Wok-Ochee v. Chapman (Okla.), 183 P. 610.
The signed written judgment of the court would supersede any declaration of the court
from the bench or any minute order made by the clerk purporting to recite what statement was
made by the court orally from the bench, and hence would not be subject to modification on
motion. Blasdel v. Kean, 8 Nev. 305; Lockwood v. Thompson, 83 So. 504; Pittsburgh, etc. R.
Co. v. Johnson, 95 N. E. 610; McFadden v. McFadden (Ariz.), 196 P. 452; State v. Bell
(Wash.), 75 P. 641; Early etc. Gray & Co. v. Fite, 147 S. W. 673.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in mandamus.
On August 18, 1931, in the respondent court the respondent judge, presiding, petitioner
was granted a decree of divorce from Manuel B. Silva, which decree disposed of the custody
of the minor children of the parties. The petition also shows that in its pronouncement from
the bench the court reserved jurisdiction to modify its decree with respect to the custody of
the minor children, and amounts to be paid for their support; that in the written document
subsequently signed by the court entitled, a Decree of Divorce and filed with the clerk of
the court, no such reservation of jurisdiction was made; that in July 1935, the omission was
called to the attention of the respondent court and judge, but no correction was made;
that in November 1936, petitioner specifically requested of said court and judge, in
chambers, an order for correction of said document in order that it should correctly set
forth the decree as rendered, which request was refused; and, that on November 25,
1936, a motion duly made by petitioner to said court for such correction was heard, taken
under advisement and denied.
57 Nev. 468, 472 (1937) Silva v. District Court
called to the attention of the respondent court and judge, but no correction was made; that in
November 1936, petitioner specifically requested of said court and judge, in chambers, an
order for correction of said document in order that it should correctly set forth the decree as
rendered, which request was refused; and, that on November 25, 1936, a motion duly made
by petitioner to said court for such correction was heard, taken under advisement and denied.
A demurrer was interposed to the petition for insufficiency of facts to constitute a cause of
action or to justify the issuance of a writ of mandamus. The questions raised by the demurrer
will be incidentally determined by our conclusion on the merits.
The return denies that the court in rendering the decree reserved jurisdiction to modify it in
respect to the custody or support of the minor children. It avers, inter alia, that the parties by
agreement on the 13th day of August 1931, made a complete and amicable settlement as to all
matters with reference to the future maintenance, support, and education of the minor
children, which agreement is now in full force and effect; that the complaint so alleged; that
the court so found and in its decree ratified and confirmed said agreement. The return admits
that no reservation of jurisdiction as to the children was made in the decree as entered.
On the hearing in this court a copy of the minutes of the trial court signed by the
respondent judge, certified by the clerk, was introduced in evidence by petitioner. The
following appears therein: The court being fully advised in the premises ordered that the
decree of divorce be granted to the plaintiff. It appears to the satisfaction of the court that the
parties have entered into an agreement as to the custody and maintenance of the minor
children and the court deeming it to the best interests of the parties, adopts the same, retaining
jurisdiction over the amount of support and custody of the children.
The proceedings of the trial taken down by the court reporter, transcribed and filed in the
case, are also in evidence here, and reveal the following:
57 Nev. 468, 473 (1937) Silva v. District Court
reporter, transcribed and filed in the case, are also in evidence here, and reveal the following:
The Court: Who should have the children?
Mr. Rosenthal: (Attorney for plaintiff, petitioner here.) The mother is given the custody
of the younger child, and the father is to retain custody of the two older children.
The Court: I will approve it, but I will retain jurisdiction. Judgment for plaintiff and
against the defendant, granting to the plaintiff a decree of divorce dissolving the bonds of
matrimony now and heretofore existing between Stella B. Silva, plaintiff, and Manuel B.
Silva, defendant, and restoring said parties to the status of unmarried persons. The parties
have entered into an agreement concerning the property and minor children. The court
reserves the right to make whatever orders may be deemed necessary concerning the custody
of the minor children hereafter.
In fact the reservation of jurisdiction in the rendition of the decree as to the minor children,
was conceded by the trial court in a written opinion denying the motion made on November
25, 1936; and, also, in another written opinion in which a motion by petitioner was denied on
August 24, 1935. In the latter the court said: We are inclined to believe that the court, by its
judgment or pronouncement from the bench in the original case, indicates what it
adjudicated; in doing so it expressly retained jurisdiction of the minor children owing to the
fact that the parties did not indicate what the agreement was concerning the custody of the
children.
In the same opinion the court also said: The record in the case at bar clearly shows that
the minute order was not fully produced in the written judgment, and there is not anything in
the judgment authorizing its omission. Therefore, we are compelled to concede that the
omission was due solely to oversight on the part of the attorney who prepared the judgment
and possibly due to the hasty manner in which the court reads judgments of the nature now
in question.
57 Nev. 468, 474 (1937) Silva v. District Court
judgments of the nature now in question. We feel that the court retained jurisdiction.
1, 2. It thus clearly appears that the decree rendered included a reservation of jurisdiction
as to the custody and support of the minor children and that it was omitted from the decree
which was entered. Petitioner contends that this omission is a clerical error, and as it appears
from the record, the trial court may at any time, and it is its duty to, amend the decree
accordingly. We are of this opinion. It was held by this court at an early period, Sparrow &
French v. Strong, 2 Nev. 362, that the court will at all times correct a mere clerical error,
which can be corrected from the record itself.
In Ex Parte Breckenridge, 34 Nev. 275, 118 P. 687, 688, Ann. Cas. 1914b, 871, it was held
that the insertion of the word days after the word thirty in the entry of the judgment by a
justice of the peace, to make it conform to the judgment rendered, was not improper. The
court said: The fixing of the punishment and the announcement of the judgment were within
the judicial powers of the court; the entry of the judgment was a mere ministerial act, and the
omission of the word days' was merely a clerical mistake, which could be corrected to
conform to the sentence rendered. The court said further: A mere clerical error or mistake
arising from inadvertence may be corrected by the court on its own motion, so as to make the
judgment speak the truth, even after the term. Citing 23 Cyc. 864; Humboldt M. & M. Co. v.
Terry, 11 Nev. 237.
The general rule is that the power of a court to correct mere clerical errors in its judgment or
decree may be rightly exercised at any time. Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A.
L. R. 824. See list of cases supporting this rule on pages 838, 839, 840, of latter volume; 34
C. J. sec. 453, p. 235; 15 R. C L. secs. 131, 132; 1 Freeman on Judgments (4th ed.), sec. 73,
p. 103.
As stated in Packard et al. v. Kinzie Avenue Heights Co., 105 Wis. 323, 81 N. W. 488,
489: That such mistakes [omission of judgment actually pronounced by the court from the
written decree signed by the judge] can be corrected by the court in which they occurred,
regardless of the time limit upon the power of the court to correct judicial errors, is too
well settled to require any extended argument or citation of authorities."
57 Nev. 468, 475 (1937) Silva v. District Court
the court from the written decree signed by the judge] can be corrected by the court in which
they occurred, regardless of the time limit upon the power of the court to correct judicial
errors, is too well settled to require any extended argument or citation of authorities.
There can be no question as to the omission of the reservation in this case being clerical
and not the result of judicial error. Ex Parte Breckenridge, supra. Nor can there be any
question that the pronouncement from the bench is the final decree, California State Tel. Co.
v. Patterson, 1 Nev. 150; First National Bank in Reno v. Fallon, 55 Nev. 102, 26 P. (2d) 232,
with which the decree signed by the judge and entered should correspond.
3. The fact that the record discloses that the parties by agreement had effected a settlement
as to the custody and support of the minor children, which was approved and confirmed by
the court, will not relieve it from the performance of such a duty. Atkins v. Atkins, 50 Nev.
333, 259 P. 288, 289. As quoted in the case, supra: The good of the child is paramount to all
other considerations, and the court may ignore the greater affection of one party, the
common-law right of the father, the agreements of the parties. * * * The agreement of the
parties is not binding upon the court, for it is not the rights of the parents which are to be
determined. Nelson on Divorce and Separation, vol. 11, p. 934.
4. It is alleged in the return and urged, that the defendant, relying on the decree, has
mortgaged his property to third persons, who loaned money to him on his property relying
upon the finality of said decree, thereby creating substantial property rights that would be
affected by the modification of the judgment, which should estop the court from making the
correction. We fail to see how any such right would be affected by the proposed correction.
No modification is sought. It will be soon enough to consider this question when it is sought
to charge such mortgage security with any sums for the support of the children.
57 Nev. 468, 476 (1937) Silva v. District Court
sought to charge such mortgage security with any sums for the support of the children.
In re Morgan, 114 U. S. 174, 5 S. Ct. 825, 29 L. Ed. 135, stressed by respondent, is not in
point. In that case error in the judgment rendered was claimed, and the lower court, on motion
to amend, being of the opinion that the judgment had been correctly recorded, denied the
motion. It was held that the lower court acted judicially. But in the instant case the reverse
appears. The decree entered does not correspond with the decree rendered. Likewise the case
of O'Brien v. O'Brien, 124 Cal. 422, 57 P.225, 226, pressed upon us by respondents, does not
serve them. The appellate court in that case was of the opinion that the lower court did not
regard its memorandum of decision, in which a divorce was ordered, and the question of
alimony was reserved for further consideration, or a minute order to the same affect made on
the same day as the final decree, or a finding sufficient to support such a decree; but intended
the subsequent findings and conclusions of law in which no reservation as to alimony was
made, to be the final adjudication. The complaint having asked for alimony, the court held
that its omission from the findings was a judicial error, which could not be corrected by a
motion to amend. In the course of its opinion the court quoted approvingly from Egan v.
Egan, 90 Cal. 15, 21, 27 P. 22, as follows: Clerical misprisions can be corrected at any time
by an order of the court, but judicial errors can be remedied only through a motion for a new
trial or an appeal.
The rulings in State ex rel. Jensen v. Bell, 34 Wash. 185, 75 P. 641, and McFadden v.
McFadden, 22 Ariz. 246, 196 P. 452, relied on by respondents, are distinguishable from the
question presented here. In each of those instances the court held that the formal judgment
signed by the judge should be accorded greater weight than the minute entry of the clerk, and
the former was deemed conclusive of what was actually adjudicated.
57 Nev. 468, 477 (1937) Silva v. District Court
adjudicated. But the case before us is not one of conflicting evidence in which every
intendment should be drawn in favor of a formal decree. The minute entry in this case is
corroborated by the court reporter's transcription of the proceedings, and confirmed by the
recollection of the trial judge.
5. It is contended that the order of the trial court denying petitioner's motion for a
correction is a special order made after final judgment from which an appeal could have been
taken, and which furnished a plain, speedy, and adequate remedy in the ordinary course of
law; that on this account the writ of mandamus will not issue. We are satisfied that the order
is not an appealable order. It is not within the meaning of the order designated in section 10
of paragraph 2 of the 1935 act (Stats. 1935, c. 90) relating to new trials and appeals as any
special order made after final judgment. This designation means only judicial orders and not
orders made by the judge in a ministerial capacity after final judgment. The order made on the
motion falls within the latter class.
No issue of a judicial nature was involved in it. The motion was not addressed to the
discretion of the court, but was merely a request for corrective action to the end that the
written decree be made to speak the truth as a memorial of judicial action.
6. The lower court, in denying the motion, had merely a mistaken notion of its power and
duty to act ministerially. Mandamus is the appropriate remedy to enforce the correction. No
discretion is involved either as to the doing of the act or the manner of its performance.
Petitioner has a clear legal right to the relief asked.
It is therefore ordered that the peremptory writ of mandamus issue, commanding the
respondent judge to correct the entry of decree of divorce in said court entitled, Stella B.
Silva, vs. Manuel B. Silva, action number 36,602, by including in said entry the reservation
to make such orders concerning the custody and support of the minor children of the parties
therein as may be needful for their welfare.
57 Nev. 468, 478 (1937) Silva v. District Court
support of the minor children of the parties therein as may be needful for their welfare.
On Petition for Rehearing
June 23, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 478, 478 (1937) Goldring v. Kelberry Et Al.
CHARLES GOLDRING, Trustee in Bankruptcy for the Estate of Marion Wilson,
Bankrupt, Plaintiff, v. THELMA O. KELBERRY Et Al., Defendants.
COLONIAL BUILDING AND LOAN ASSOCIATION, a Corporation, Formerly Continental
Building and Loan Association, Cross-Complainant, v. CHARLES GOLDRING, Trustee
in Bankruptcy for the Estate of Marion Wilson, Bankrupt, Et Al., Cross-Defendants.
No. 3189
April 14, 1937. 66 P. (2d) 1013.
1. Appeal and Error.
Where appellant failed to file undertaking on appeal or deposit money with clerk of lower court to abide
event of appeal, as required by statute, and circumstances indicated that appeal was taken for purposes of
delay, appeal would be dismissed (Comp. Laws, sec. 8893; Stats. 1935, c. 90, sec. 16).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by Charles Goldring, trustee in bankruptcy for the estate of Marion Wilson,
bankrupt, against Thelma O. Kelberry and others, wherein Colonial Building & Loan
Association filed cross-complaint. From an order denying a motion to set aside all
proceedings theretofore taken, plaintiff appeals. On motion to dismiss the appeal. Appeal
dismissed.
A. A. Hinman, for Movants.
57 Nev. 478, 479 (1937) Goldring v. Kelberry Et Al.
OPINION
By the Court, Coleman, C. J.:
In the above-entitled matter, an order was made on the 10th day of November A. D. 1936,
denying a motion to set aside all proceedings theretofore had therein. Thereafter and on the
25th day of November 1936, the plaintiffs filed their notice of appeal from said order, but
have at no time filed an undertaking on appeal nor deposited in lieu thereof any sum of
money with the clerk of the lower court, to abide the event of the appeal, as required by law,
to perfect said appeal. Section 8893 N. C. L.; section 16, ch. 90, Stats. 1935.
On motion of the respondent, duly noticed, it is ordered that the said appeal be and the
same is hereby dismissed, at the cost of the plaintiffs.
The circumstances in this case indicate that the appeal was taken for delay, and had
respondent moved for damages, pursuant to section 8906 N. C. L., we would be strongly
inclined to grant the motion.
It is ordered that the remittitur issue as soon as respondent's cost bill is filed.
____________
57 Nev. 480, 480 (1937) Parks Et Al. v. Garrison
ANNA ROBERTS PARKS and S. GENE PARKS,
Appellants, v. H. C. GARRISON, Respondent.
No. 3140
April 30, 1937. 66 P. (2d) 314.
1. Appeal and Error.
Where bill of exceptions had been struck by stipulation of parties, there was nothing that supreme court
could consider except the judgment roll (Comp. Laws, sec. 8829).
2. Appeal and Error.
Point made for first time in supreme court will be deemed waived unless it goes to jurisdiction of court.
3. Pleading.
Where complaint is attacked for first time in supreme court, supreme court does not look with favor on
attack.
4. Pleading.
Where answer is attacked for first time in supreme court, answer will receive liberal construction.
5. Appeal and Error.
Where no exceptions had been taken, supreme court was not required to pass on point made by appellants
that trial court's finding that respondent had terminated contract in manner provided by contract and that
appellants had waived balance of time under notice required was a conclusion of law (Stats. 1935, c. 90,
sec. 15).
6. Appeal and Error.
Where trial court found that contract between parties had been terminated and evidence was not before
supreme court, it would conclusively presume that evidence showed that parties had attempted to and had
succeeded in terminating contract in toto.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr and James Dysart,
Judges presiding.
Action by Anna Roberts Parks and S. Gene Parks against H. C. Garrison. From an adverse
judgment and order, the plaintiffs appeal. Affirmed.
Roger Foley and Harold M. Morse, for Appellants:
The answer interposed by the defendant, each and every allegation thereof, and each and
every affirmative defense therein contained, is not sufficient to constitute a defense to the
complaint.
It is apparent that findings of facts and conclusions of law based thereon are based upon
the construction the trial court placed upon the contract itself and the letter of resignation
of defendant.
57 Nev. 480, 481 (1937) Parks Et Al. v. Garrison
the trial court placed upon the contract itself and the letter of resignation of defendant.
The appellants contend that the only legal effect of the letter of resignation was the
termination of the contract of employment, which either party to the contract had the legal
right to terminate, under the terms of the contract itself, but that the termination of the
contract of employment did not and could not be construed as terminating the contract in toto,
including the negative or restrictive covenant therein contained. The negative or restrictive
covenant was effective for a period of ten years from the date of the contract, and not ten
years from its termination.
McNamee & McNamee, for Respondent:
The bill of exceptions having been stricken upon stipulation of the parties, there is nothing
in the record before this court but the judgment roll and the trial court's ruling on motion to
modify and amend findings of fact and conclusions of law, which, by the stipulation, was
allowed to remain in the record.
The facts, therefore, as stated in the trial court's findings of facts and conclusions of law
must be taken as true. The record before this court shows that proper objections thereto were
not made by appellants in the trial court, and, therefore, under our statutes, they cannot make
any complaint on appeal as to the findings of the trial court. Stats. 1935, p.198, sec. 15; 3 C.
J. 984, n. 12; Stats. 1935, p. 197, sec. 9.
This court does not have before it the evidence upon which the finding that the contract
was terminated in toto was based, and must assume that it was sufficient to justify the
finding. 4 C. J. 786, n. 35; 3 Am. Jur., p. 516, par 954; Hartford v. Pacific Motor Co., 60 P.
(2d) 477.
OPINION
By the Court, Coleman, C. J.:
Plaintiffs have appealed from the judgment in favor of defendant, and from the order
denying their motion for a new trial.
57 Nev. 480, 482 (1937) Parks Et Al. v. Garrison
of defendant, and from the order denying their motion for a new trial.
1. An order having been made, on stipulation of the parties, striking the bill of exceptions,
there is nothing the court can consider except the judgment roll. In this case the judgment roll
consists of the pleadings, the findings of facts by the court, and the judgment (section 8829 N.
C. L.).
While counsel for appellants have assigned in their briefs seven errors, they have waived
the fourth, which was that the court erred in denying the motion for a new trial.
The first error assigned is to the effect that the court erred in its judgment and decision.
The second is that the court erred in its findings of facts. The third is that the court erred in its
conclusions of law based upon the findings of facts. The fifth is that the answer and each
affirmative defense is not sufficient to constitute a defense to the plaintiff's complaint. The
sixth is substantially the same as the first. And the seventh and last is that the findings of facts
cannot and do not sustain the judgment entered.
Counsel for plaintiffs have filed a voluminous brief in support of their contentions, but as
we view the record there are but two questions which we can consider, namely, (1) Does the
answer raise an issue of fact as to the termination of the contract in question? and (2) Do the
findings support the judgment?
As to the first question, we may say that so far as it appears from the record the sufficiency
of the answer to raise an issue was not questioned in the lower court. It does not appear that a
demurrer was filed to the answer, or that any objection was made to it at any time until the
brief was filed in this court.
2. It is a well-recognized rule that a point made for the first time in this court will be
deemed waived [Paterson v. Condos, 55 Nev. 260, 30 P. (2d) 283] unless it goes to the
jurisdiction of the court. In the instant matter, the court acquired jurisdiction of the subject
matter and of the parties upon the filing of the complaint and service of summons upon
the defendant.
57 Nev. 480, 483 (1937) Parks Et Al. v. Garrison
instant matter, the court acquired jurisdiction of the subject matter and of the parties upon the
filing of the complaint and service of summons upon the defendant.
3. Where a complaint is attacked for the first time in this court, it is the well-established
rule that the court does not look with favor thereupon. Deiss v. Southern Pac. Co., 56 Nev.
151, 47 P. (2d) 928, 53 P. (2d) 332; Morris v. Morris, 50 Nev. 298, 258 P. 232.
4. An equally liberal construction should be given to an answer, where attacked for the
first time on appeal, as in this case.
However, an issue was presented for determination, as we will show.
As to the second question, we may say that this is a suit to enjoin the defendant from
entering in business in competition with plaintiffs, in violation of the terms of a written
contract. The contract which is pleaded in the complaint contains a provision that either party
may terminate it by giving thirty days' written notice of such intention. On the question of the
termination, the court found: That it is true that by the terms of said contract, it is provided
that said contract may be terminated by either of the parties thereto upon thirty days notice in
writing, mailed to the other party by registered mail at either Las Vegas, Nevada, or Boulder
City, Nevada, as the case may be, and that it is true that said contract was terminated by the
defendant by his giving to plaintiffs the notice in writing in the manner so provided in said
contract, and that said contract, and the whole thereof, including defendant's covenant not to
engage in the said undertaking and ambulance service business in Clark County, Nevada, for
a period of ten years from the date of said contract, was terminated upon the 9th day of
February 1935, and the plaintiffs took possession of the Parks Mortuary in Boulder City,
Nevada, on said date and waived the balance of the time under the thirty day notice required
by said contract to be given, and that on said 9th day of February 1935, defendant left the
employment of the plaintiffs."
57 Nev. 480, 484 (1937) Parks Et Al. v. Garrison
by said contract to be given, and that on said 9th day of February 1935, defendant left the
employment of the plaintiffs.
5. In this connection it is said that the finding quoted is a conclusion of law. Section 15,
chap. 90, Stats. 1935, provides that no judgment, in a case tried to the court, shall be reversed
because of a defective finding of fact, unless exceptions be made, etc. No exceptions having
been taken, we need not pass on the point.
6. Incident to the question just disposed of, there is one other contention to which we will
refer, namely, that though the contract in question was terminated as to the employment of
defendant, it was not terminated in toto. In the fourth affirmative defense, the letter of
defendant which it is alleged terminated the contract is plead, and is dated January 28, 1936;
and it is further alleged in that defense that the plaintiffs received the letter on February 9,
1935, and notified the defendant that they waived the thirty-day notice required to be given to
terminate said contract, and in accordance with said acceptance and waiver, plaintiffs asked
for and received from defendant, on said day, the possession of the premises whereon
defendant was residing and conducting the business for plaintiff. The evidence not being
before us, we must conclusively presume that it shows that all of the parties were at that time
endeavoring to terminate the contract in toto, and considered that they had done so, and in
fact succeeded in so terminating it.
The finding is ample to support the judgment.
It is ordered that the judgment and order appealed from be affirmed.
On Petition for Rehearing
June 23, 1937.
Per Curiam:
Rehearing denied.
____________
57 Nev. 485, 485 (1937) Lyon County Bank v. Walker River Irrigation Dist.
LYON COUNTY BANK MORTGAGE CORPORATION, a Corporation, Appellant, v.
WALKER RIVER IRRIGATION DISTRICT, a Corporation, LYON COUNTY BANK, a
Corporation, and E. J. SEABORN, as Superintendent of Banks, Respondents.
No. 3173
May 5, 1937. 67 P. (2d) 1010.
1. Banks and Banking.
Mere fact that deposit is trust fund, special deposit, or deposit for specific purpose does not necessarily
entitle depositor to preference of claim based thereon over general depositors of insolvent bank.
2. Banks and Banking.
Parties' acts and intentions must frequently be considered in determining whether claim against insolvent
bank's assets is entitled to preference.
3. Banks and Banking.
Before allowing preference of claim against insolvent bank's assets, it must appear that claimant is
entitled to preference on equitable principles.
4. Banks and Banking.
One claiming preference against insolvent bank's assets over general depositors has burden of clearly
proving his right thereto.
5. Banks and Banking.
Irrigation district's deposit of its check on depository bank in amount less than its general deposit therein
for purpose of paying principal of and interest on district bonds did not augment bank's assets coming into
bank examiner's hands, and hence was not trust fund or preferred claim against such assets, where bank
charged amount of check against district's general deposit and credited it on new account (Stats. 1933, c.
190, sec. 56; Comp. Laws, sec. 8021).
6. Banks and Banking.
To entitle payee, depositing check in his account with insolvent drawee bank, in which drawer had
sufficient funds on deposit to meet it, to preference of claim against bank's assets for amount thereof on
ground that it was a trust fund which augmented bank's funds, bank must have had on hand cash equalling
or exceeding amount of check.
7. Banks and Banking.
Checks, held by insolvent bank, on other banks on day before irrigation district treasurer deposited
district's check on such bank therein for payment of district bonds, should not be considered as cash on
hand to pay check in determining whether such cash equaled or exceeded amount of check so as to entitle
district to preference of its claim therefor on ground that such deposit augmented bank's
funds {Stats.
57 Nev. 485, 486 (1937) Lyon County Bank v. Walker River Irrigation Dist.
therefor on ground that such deposit augmented bank's funds (Stats. 1933, c. 190, sec. 56; Comp. Laws,
sec. 8021).
8. Banks and Banking.
Every fact essential to entitle claimant to preference against insolvent bank's assets must be clearly
shown.
9. Banks and Banking.
Irrigation district held not entitled to preference of its claim against insolvent bank's assets for amount of
district's check, deposited in such bank on which drawn for payment of district bonds, in absence of
understanding that such fund was not to be used by bank for its own purposes (Stats. 1933, c. 190, sec. 56;
Comp. Laws, sec. 8021).
10. Banks and Banking.
Supreme court will limit its inquiry on appeal in irrigation district's action to establish preference of its
claim against insolvent bank's assets for amount of its check, deposited with such bank, on which drawn,
for payment of district bonds, to single question whether district court correctly awarded preference
thereof, and hence will not order distribution of such assets or return of amount paid plaintiff by bank
examiner (Stats. 1933, c. 190, sec. 56).
Appeal from First Judicial District Court, Lyon County; J. M. Lockhart, Judge Presiding.
Action by the Walker River Irrigation District to establish a preferred claim, disallowed by
E. J. Seaborn, Superintendent of Banks, against the assets of the Lyon County Bank in the
Superintendent's possession after transfer of other assets thereof to the Lyon County Bank
Mortgage Corporation. From the judgment rendered and an order denying a motion for new
trial, the latter corporation appeals. Reversed.
A. L. Haight, for Appellant:
The first and prime requisite in establishing the trust character of a fund is that the fund
must have been placed in the custody of the trustee (82 A. L. R. 95, 97, 101, notes), and we
submit that this has not been established by any proof whatever. It devolved upon the
irrigation district to establish, as the first step in its proof, that its check presented on February
3, 1932, for $18,423.07 could have been paid by the bank. Not only was this proof not
forthcoming, but Mr. Willis testified that it could not have been cashed upon presentation.
57 Nev. 485, 487 (1937) Lyon County Bank v. Walker River Irrigation Dist.
Mr. Willis further testified that the balance shown by the bank's books on that day included
an accumulation of checks mailed to other banks for collection and which might or might not
be paid. Such items do not constitute money, but until actually paid are merely choses in
action.
There is present in connection with this fund no single element of a special deposit or trust
fund under the universally recognized principles of law. Re Interborough Consolidated
Corporation, 288 Fed. 334, 32 A. L. R. 932; Guidise v. Island Ref. Corp., 291 Fed. 922;
Dillenbeck v. Pinnell (Iowa), 96 N. W. 860; Pomeroy's Equity Jurisprudence (3d ed.), par.
1009; Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762.
If the court concludes that there was no irrigation district trust fund which passed into the
possession of the state bank examiner upon the closing of the Lyon County Bank, it seems to
us that the $3,000 paid by him to the irrigation district should be ordered paid to the mortgage
corporation, or at least be restored to the fund in the possession of the superintendent of
banks. And we can certainly see no reason why the court should not order the superintendent
of banks to pay and deliver over to the mortgage corporation forthwith the $59,201.33 of the
banks assets retained by him to make payment of preferred claims or trust funds.
W. M. Kearney and Gray Mashburn, Attorney-General, for Respondents:
The record clearly shows that the bank accepted the check for $18,433.07 as a special trust
fund in accordance with the letter of instructions, and treated it as such a fund and honored
coupons that were presented for payment. The check could have been paid in cash and
redeposited under the agreement that notice would be given of any large withdrawals, and
thus there could be no question about the creation of the fund. However, that is not required,
because the law recognizes that the deposit of a check of that character is sufficient.
57 Nev. 485, 488 (1937) Lyon County Bank v. Walker River Irrigation Dist.
McCleod v. Evans, 28 N. W. 173; Tooele County Board of Education v. Hadlock, 11 P. (2d)
320.
It seems clear that the state superintendent of banks could not be required to make an
accounting in this particular action to the Lyon County Bank Mortgage Corporation of the
$59,201.33 retained by him to meet and make payment of preferred claims or trust funds, but
that such an accounting, if required at all, be in a different action, between the two interested
parties, the mortgage corporation and the superintendent of banks. Likewise, any question
regarding the claim for $3,000 of the mortgage corporation against the superintendent of
banks could not be properly adjudicated in this proceeding, due to the limitations expressly
provided by section 56 of the banking act.
The reasoning set forth in the case of Ellerbee v. Studebaker Corporation of America, 21
Fed. 993, is applicable here, as showing that the funds of the Lyon County Bank were
augmented by the deposit of the check of Walker River Irrigation District. The bank records
show that there was $12,160.15 in cash on hand and $6,565.65 cash in other solvent banks,
making a total of $18,725.80, so that it is clear there was sufficient cash to meet the
requirement.
OPINION
By the Court, Taber, J.:
This is an appeal from a judgment of the First judicial district court, Lyon County, and
from an order of that court denying a motion for new trial. Walker River Irrigation District
will sometimes be referred to in this opinion as plaintiff, Lyon County Bank as the bank,
Lyon County Bank Mortgage Corporation as the mortgage corporation, and Nevada Copper
Belt Railroad Company as the railroad company.
On February 3, 1932, plaintiff's treasurer presented to the bank plaintiff's check drawn on
said bank for $18,423.07, and at the same time handed the bank a letter referring to and
accompanying said check, in the words and figures following:
57 Nev. 485, 489 (1937) Lyon County Bank v. Walker River Irrigation Dist.
letter referring to and accompanying said check, in the words and figures following:
Yerington, Nev., Feb. 1, 1932
Lyon County Bank
Yerington, Nevada
Gentlemen:
I herewith place in your hands, with the approval of the Board of Directors of the Walker
River Irrigation District, for the special purpose of paying principal and interest on Walker
River Irrigation District bonds the sum of $18,423.07 which sum shall be deemed and
considered as a special trust fund for the aforesaid purpose and not as a deposit in which the
relation of debtor and creditor exists between the undersigned Treasurer of the Walker River
Irrigation District and your bank.
Yours very truly,
F. W. Simpson
Treasurer, Walker River Irrigation District
On said 3d day of February 1932, and before said check was presented, plaintiff had to its
credit, on the books of the bank, a general deposit in the sum of $25,018.54. The bank
accepted said check and letter and opened a new account on its books under the name of
Walker River Irrigation District Special Trust Fund. The general deposit account was
charged with the amount of the check, leaving a balance in that account amounting to
$6,595.47. The new account was credited with the amount of the check. Plaintiff demanded
security for said balance of $6,595.47, whereupon the bank delivered to plaintiff's treasurer,
out of the assets of the bank, bonds of the plaintiff in the face amount of $7,000.
Two weeks later the bank closed its doors and was taken over by the state bank examiner.
Later, and within the time provided by law, plaintiff filed its claim for preference based upon
said deposit of February 3. The claim was at first allowed and given preference over general
creditors, and $3,000 was paid plaintiff for the purpose of enabling it to meet interest
about to accrue on its bonds.
57 Nev. 485, 490 (1937) Lyon County Bank v. Walker River Irrigation Dist.
for the purpose of enabling it to meet interest about to accrue on its bonds. Later, however,
and on January 22, 1934, the superintendent of banks disallowed said claim as a preference,
and within the time allowed by law plaintiff commenced this action for the purpose of having
said claim judicially established as a preferred claim. The main question to be determined is
whether said claim is entitled to be preferred over those of the general depositors and other
general creditors.
The legislature of 1933 passed a general banking law which was approved on March 28 of
that year (Statutes of Nevada 1933, pp. 292-332, c.190). This act superseded the banking act
of 1911 (Statutes of Nevada 1911, pp. 291-313, c. 150). The office of superintendent of banks
under the 1933 act corresponds to that of bank examiner under the 1911 act.
Under the provisions of section 68 of said 1933 banking act, an action was commenced
against the bank by depositors representing not less than 15 percent of the total amount of the
outstanding indebtedness against the bank, for the purpose of securing an order of the First
judicial district court, Lyon County, directing the formation of a corporation, and ordering the
bank and the superintendent of banks to convey, assign, and set over all of the property, real
and personal, all stocks, bonds and notes, actions and causes of action, books and records,
and all assets of every kind and character of said bank to the corporation so formed in
consideration of the issuance, fully paid and nonassessable, of the capital stock of said
corporation.
Pursuant to an order of said district court made at the time of the filing of said complaint,
under the provisions of section 69 of the act of 1933, the superintendent of banks filed an
inventory of the assets of the bank in his possession, together with his appraisal of the value
thereof and his report of all claims and demands against said bank. Said inventory, appraisal,
and report showed assets on the books of the bank in the amount of $605,266.07, of which
$379,966.22 were good; liabilities, $441,551.37; general claims, $2S7,629.90; preferred
claims, $144,S45.57; no claims filed, $9,075.90; claim not shown by bank's books,
$241.25.
57 Nev. 485, 491 (1937) Lyon County Bank v. Walker River Irrigation Dist.
liabilities, $441,551.37; general claims, $287,629.90; preferred claims, $144,845.57; no
claims filed, $9,075.90; claim not shown by bank's books, $241.25. At the end of the list
showing general claims was the following: Walker River Irrigation District Special Trust
Fund, $15,033.07.
Upon the trial of the aforesaid action, the court granted the prayer of the complaint and by
its judgment provided for the formation of the mortgage corporation, appellant herein. In
ordering the transfer of the assets and property of the bank to said mortgage corporation, the
court, in compliance with section 71 of said act of 1933, further ordered and directed that
sufficient of the cash and assets of the bank be retained by the superintendent of banks to
meet and make payment of any claims which then were or which should thereafter be
declared to be preferred claims or trust funds. In obedience to the last-mentioned court order
the superintendent of banks retained, for the purposes aforesaid, cash and assets of the bank
in the amount of $59,201.33. In determining the amount to be so retained, the superintendent
of banks had in mind, among other claims for preference, that of plaintiff amounting to
$15,033.07, being the amount of the original claim less the $3,000 paid thereon as a
aforesaid. Said section 71 provides in part that if there be a surplus of such cash and assets
so retained by the superintendent of banks after the payment of any such preferred claims or
trust funds, then such surplus shall be paid or delivered over to such new corporation.
In its findings of fact in said district court action, the court found that when the bank
closed its doors there was owing to creditors and depositors $475,667.56, including Lyon
County public funds to the amount of $95,997.79; that on October 25, 1933, when said
findings of fact were made, the amount owing to creditors and depositors was $434,706.88
(including public funds), or $342,459.90 (not including public funds); that the value of the
bank's assets was $391,996.22; and that claims or trust funds alleged to be entitled to
preference amounted to $144, S45.57.
57 Nev. 485, 492 (1937) Lyon County Bank v. Walker River Irrigation Dist.
and that claims or trust funds alleged to be entitled to preference amounted to $144, 845.57.
Among the claims alleged to be entitled to preference was that based on an account carried
on the books of the bank as Lyon County Bank, Trustee for Bondholders of N. C. B. R. R.
(Nevada Copper Belt Railroad). The balance in this fund on January 30, 1932, was
$18,321.80; on February 1, 1932, $18,274.30; on February 2, 1932, $16,671.80; and on
February 16, 1932, when the bank closed, $18,789.30. All of the claims alleged to be entitled
to preference have been disposed of except those of plaintiff and the railroad. Appellant
contends that the undisbursed balance in the railroad trust fund held by the bank constituted,
without question, a trust fund for the benefit of the individual bondholders. Besides the
$3,000 paid out by the bank examiner to plaintiff, there was about $2,000 paid to others
claiming trust funds and preferences.
When the bank closed its doors and for a long time prior thereto, including the first week
of February 1932, J. I. Wilson was president of the bank and president of plaintiff
corporation, while Frank Simpson was vice president of the bank and plaintiff's treasurer. Mr.
Wilson was also receiver of the railroad by virtue of appointment as such by the judge of the
United States district court for the district of Nevada.
On June 3, 1932, the bank examiner wrote the following letter to plaintiff's secretary:
Consolidated Offices
State Auditor
State Bank Examiner
Nevada Tax Commission
Carson City, Nevada
June 3, 1932
Mr. S. P. Kafoury, Secretary
Walker River Irrigation District
Yerington, Nevada
Dear Mr. Kafoury:
Confirming our conversation of yesterday, I have received a ruling from Attorney
General Mashburn to the effect that those of your deposits with the Lyon County Bank
and the Mason Valley Bank which were made for the specific purpose of meeting interest
payments and which were tendered and received as trust deposits do, in fact, constitute
trust funds and are entitled to preference.
57 Nev. 485, 493 (1937) Lyon County Bank v. Walker River Irrigation Dist.
received a ruling from Attorney General Mashburn to the effect that those of your deposits
with the Lyon County Bank and the Mason Valley Bank which were made for the specific
purpose of meeting interest payments and which were tendered and received as trust deposits
do, in fact, constitute trust funds and are entitled to preference.
Such being the case, I will pay those of your claims which are predicated upon the above
facts, together with other approved trust claims before any dividends are paid to general
creditors.
The Mason Valley Bank is in a position to pay any trust claims which may conceivably
be brought against it and you may expect payment of your trust claim against that bank within
the next thirty days. However, the Lyon County Bank has no funds in excess of reasonable
margin for emergency needs and it will probably be some time before you may expect any
material dividend on your trust claim against that institution.
Yours very truly,
E. J. Seaborn
EJS:ES State Bank Examiner
On January 22, 1934, the superintendent of banks wrote the following letter to plaintiff:
January 22, 1934
Walker River Irrigation District
Yerington, Nevada
Gentlemen:
You are hereby notified that your claim for preference against the assets of Lyon County
Bank in the amount of $15,033.07 has this day been disallowed as a preference claim but
allowed as an ordinary claim without preference.
In connection with this notice of rejection, I desire to state that claims for preference
which in my opinion would otherwise be allowable, have been filed against the assets of the
above mentioned bank to an amount greatly in excess of the cash on hand or on deposit in
solvent banks at the time I took possession of the bank.
57 Nev. 485, 494 (1937) Lyon County Bank v. Walker River Irrigation Dist.
greatly in excess of the cash on hand or on deposit in solvent banks at the time I took
possession of the bank. The legal question as to whether a valid preference or trust claim
against the lien upon all of the assets of the bank or only against the cash at its lowest point
has never been determined in this state. Therefore, I deem it necessary to reject the claim in
order that an adjudication may be had.
Yours very truly,
E. J. Seaborn
Superintendent of Banks
EJS:L in charge Lyon County Bank
It seems plain that the bank was in an insolvent condition on February 3, 1932, as well as
for a considerable period of time prior thereto; the expression insolvent condition being
here used in the sense of a substantial deficiency of good assets to cover the bank's liabilities.
One of the witnesses called by plaintiff was George F. Willis, who had worked for the
bank for twenty-eight years and had been its cashier for about twenty-five years. When Mr.
Willis was asked on cross-examination whether he could have cashed plaintiff's check at the
time it was presented if the cash had been demanded, he replied, No sir, I could not. The
trial court, both in its written decision and findings of fact, stated that when plaintiff's check
was presented on February 3, 1932, the bank did not have sufficient cash on hand to pay
plaintiff's check.
On February 2, 1932, the bank had $6,565.65 in other banks. This amount added to the
$12,160.15, cash actually on hand in the bank, amounts to $18,725.80, which is $302.73
more than plaintiff's deposit of $18,423.07 made on February 3, 1932. The aforesaid item of
$6,565.65 included one day's accumulation of checks on other banks, which might or might
not be paid. One check on an outside bank in the amount of $131.40 was in fact not paid. It
was included in the bank's balance of February 1 or 2, but was returned on February 5.
57 Nev. 485, 495 (1937) Lyon County Bank v. Walker River Irrigation Dist.
on February 5. Money on hand in the bank February 1, 1932, amounted to $12,754.97,
including stamps and uncollected cash items; on February 2, 1932, the amount on hand,
exclusive of postage stamps and uncollected cash items, was $12,160.15. It was the custom of
the bank to keep on hand from $20,000 to $25,000.
From February 3, 1932, to the time when the bank closed about two weeks thereafter, only
$390 had been withdrawn from the special trust fund. Each of the three checks making up
said amount was drawn on said fund, the checks being signed by the proper officials of
plaintiff corporation. Each of said checks was given in payment of accrued interest on bonds
of the plaintiff. With respect to two of these transactions, the record shows that the interest
coupons were brought to the office of plaintiff by a representative of the bank, who in each
instance requested and received a voucher for the bank's records. Mr. Willis testified that
most of the interest for which the $18,423.07 was set aside would not have been payable until
about the 1st of July 1932.
No new signature card was executed at the time of or in connection with plaintiff's deposit
on February 3. Plaintiff retained full control over that deposit. No money could be paid from
that fund except on the check of one or more of plaintiff's three officers hereinbefore
mentioned. The bank was not given any instructions besides those contained in the letter
handed it on February 3 when the check for $18,423.07 was presented. There was no special
understanding that this fund should not be commingled with the general funds of the bank.
Mr. Willis testified that the bank was bound to honor any checks drawn against this fund
which bore the signatures of plaintiff's said officers. Though the bank did not have sufficient
cash on hand to pay plaintiff's check on February 3, 1932, it did have securities sufficient to
obtain cash with which to pay it. Mr. Willis was asked by counsel for the irrigation district:
That check could have been honored very easily from the assets you had on hand, by
hypothecating your assets in the ordinary course of business, could it not?"
57 Nev. 485, 496 (1937) Lyon County Bank v. Walker River Irrigation Dist.
the assets you had on hand, by hypothecating your assets in the ordinary course of business,
could it not? He replied: Well, I presume so, by raising money, or a loan.
The funds deposited by plaintiff on February 3, 1932, as well as those which had been
deposited in the railroad trust fund, were mingled with the general funds of the bank, used to
acquire securities, and invested in bonds, loans, and mortgages. With reference to plaintiff's
deposit of February 3, 1932, and the railroad trust fund, Mr. Willis gave the following
testimony on cross-examination
Q. Mr. Willis, may I ask you, once and for all, and let's get a final answer on this, did you
invest that particular money in any particular securities? A. I don't know; it is a hard question,
Mr. Haight.
Q. All right; isn't it a fact that what you did do was put this cash along with all the other
cash you had in the bank, and whatever securities were purchased were purchased out of the
jackpot? A. I guess that is right.
Q. And you didn't purchase any particular securities with Walker River Irrigation money,
did you? A. No particular money. To identify the particular money, I don't know how you
would identify it.
Q. You couldn't identify it because it wasn't purchased with that particular money, was it?
A. No.
Q. And the same is true with the Nevada Copper Belt fund? A. Yes sir.
When the bank closed on February 16, 1932, it had $1,284.17 cash on hand and $4,880.79
in other banks.
Mr. Willis testified that the $18,423.07 check presented to the bank by plaintiff on
February 3 was honored as cash.
Included within the assets of the bank, on the day it failed, were bonds of plaintiff
corporation.
It was understood between the bank and plaintiff, as well as between the bank and other
large depositors, that before making any heavy withdrawals they would give the bank
ample notice.
57 Nev. 485, 497 (1937) Lyon County Bank v. Walker River Irrigation Dist.
that before making any heavy withdrawals they would give the bank ample notice.
No interest was to be paid by the bank on the deposit made by plaintiff on February 3. It
does not appear from the record that the bank was to receive any compensation for handling
said fund.
Mr. Willis testified that many of the bonds, notes, and other securities purchased with the
railroad trust fund and plaintiff's said special fund were still among the bank's assets, and that
many of the bank's depositors have been benefited by reason of the fact that the
superintendent of banks still has some of the securities so acquired. Mr. Willis went on to
testify as follows:
Q. The money that was paid in on those securities that were paid off, was that or was it
not paid to depositors or other creditors of the bank? A. It was paid to depositors and
creditors both. As long as the bank was doing business it was paid out to creditors and
depositors.
Q. By virtue of that payment to the depositors and creditors, have the liabilities of the
bank been reduced? A. To quite an extent, yes sir.
Q. So that all the funds deposited by the Walker River Irrigation District, in question
here, as well as those funds deposited by the Receiver of the Nevada Copper Belt Railroad
Company, either exist in the form of securities now in the hands of the Bank Receiver, or
have served to reduce the liabilities of the bank, is that correct? A. I would say so, yes. We
reduced the liabilities during the last year we were in operation something over one hundred
thousand dollars.
Q. And that was all done in the regular course of business? A. Yes sir.
Q. Through the bank? A. Yes sir.
Q. And all accounted for in the reduction of bank liabilities or the acquirement of assets
which are now available in the bank, is that correct? A. Yes sir.
Q. Could you, from day to day, take your daily sheets and deposits, and your daily
loans, and purchase of bonds, and determine the moneys that were used to acquire
particular securities or notes? A. Yes."
57 Nev. 485, 498 (1937) Lyon County Bank v. Walker River Irrigation Dist.
sheets and deposits, and your daily loans, and purchase of bonds, and determine the moneys
that were used to acquire particular securities or notes? A. Yes.
Plaintiff brought this action under the provisions of section 56 of the 1933 banking act.
That section requires the superintendent of banks to publish notice calling on all persons
having claims against an insolvent bank, other than claims as mere depositors therein, to
present same and make legal proof thereof within a specified time. An action upon a claim
so rejected must be brought within three months after such service, and a judgment for such
claim shall have the effect only of placing the claim on the same basis as an approved claim,
and shall create no lien or preference on the property or assets in the hands of the
superintendent of banks, nor shall any execution be issued on such judgment. The
last-quoted provision was also in section 56 of the 1911 banking act. Section 705 N. C. L.
Section 10d of the Nevada irrigation district act of 1919 (section 8021 N. C. L.) was added
to that act in 1929, and was in effect until amended in 1933 (Stats. 1933, c. 186, sec. 3). It
read as follows: All money belonging to or in the custody of any irrigation district within
this state, or of the treasurer or other officer thereof shall, so far as possible, be deposited in
such state or national bank or banks in this state as the treasurer or other officer of such
irrigation district having legal custody of said moneys shall select for the safe-keeping
thereof, and shall be subject to withdrawal at any time on demand of the treasurer or other
authorized officer. For the security of such deposits there shall be delivered to the treasurer of
such irrigation district a bond or bonds of a corporate surety qualified to act as sole surety on
bonds or undertakings required by the laws of this state, and approved by the insurance
commissioner of this state as a company possessing the qualifications required for the
purpose of transacting a surety business within this state; provided, that the penal amount of
such bond or bonds shall at no time be less than the amount of money deposited by such
irrigation district with such depositary; said bond or bonds shall secure and guarantee the
full and complete repayment to such irrigation district or the payment to its order of all
funds so deposited together with interest thereon.
57 Nev. 485, 499 (1937) Lyon County Bank v. Walker River Irrigation Dist.
penal amount of such bond or bonds shall at no time be less than the amount of money
deposited by such irrigation district with such depositary; said bond or bonds shall secure and
guarantee the full and complete repayment to such irrigation district or the payment to its
order of all funds so deposited together with interest thereon. The premium for such corporate
surety bond or bonds, in the discretion of the directors of the irrigation district, may be paid
out of the funds so deposited or may be required to be paid by the depositary; provided,
however, that said depositary may, in lieu of said corporate surety bond or bonds, deposit
with the treasurer of such irrigation district treasury notes or United States bonds, or other
securities which are legal investments for savings banks in this state, the market value of
which shall at all times equal the amount of funds so deposited, as collateral security, and
such securities shall be placed by such treasurer in escrow in some bank other than the
depositary of the funds of such district. In the event of the failure of the depositary to repay
such funds to the district on demand, or to pay the same to its order, the securities so placed
in escrow shall be redelivered to the treasurer and may be sold by him with or without notice,
and the proceeds thereof used to reimburse the district. The provisions of this section,
however, shall not apply to deposits made for the purpose of paying the principal or interest
due on any bonds of such district, and the treasurer or other custodian of such funds of such
district may, with the approval of the board of directors of such district, deposit money in any
bank or banks within or without this state in such amount as shall be necessary for the
payment of the principal and interest of such bonds at the place or places at which the same
are payable and under such conditions as the board of directors shall determine.
There being no substantial conflict in the evidence, this court is called upon to decide the
law applicable to the facts in this case.
57 Nev. 485, 500 (1937) Lyon County Bank v. Walker River Irrigation Dist.
In determining whether a preferred lien against the estate of an insolvent should be
allowed, the following rule was adopted as the correct one by the supreme court of Arizona in
the case of Jarvis v. Hammons, 32 Ariz. 444, 259 P. 886, at pages 889, 890: The right to
recover a trust fund in full from the assignee or receiver of an insolvent debtor depends upon
several things, the three principal ones being: First, the establishment of the fact that the
deposit of the money with the debtor was made under circumstances creating a trust; second,
an affirmative showing that by reason of the transaction the actual, physical assets coming
into the hands of the receiver or assignee were augmented by the transaction; and third, the
ability of the claimant to trace his deposit, either in its original form or in a changed form,
into the hand of the receiver.
In Stilson v. First State Bank, 149 Iowa, 662, 129 N. W. 70, at page 72, the court said:
The creditor who asks that his claim be given preference has the burden of showing that his
money has come into the hands of the assignee as an increase of the assets of the estate, and
that it may be taken therefrom without impairing the rights of general creditors.
The rule laid down in Las Vegas Savings Bank v. Casey (D. C.) 15 F. Supp. 412, 414, is as
follows: It is uniformly the holding of the court on this subject, that, in order to entitle one to
preferential payment out of the assets of an insolvent bank, three essential elements must
appear: (1) A trust relation; (2) augmentation of the assets of the bank; (3) the fund traced
into the hands of the receiver.
1. The mere fact that a deposit is a trust fund, or special deposit, or deposit for a specific
purpose, does not necessarily entitle a claim based thereon to a preference over general
depositors. Bradley v. Chesebrough, 111 Iowa, 126, 82 N. W. 472; West St. Louis Trust Co.
of St. Louis v. Brokaw (Mo. App.), 102 S. W. (2d) 792; Zollmann, Banks and Banking, vol.
10, pp.
57 Nev. 485, 501 (1937) Lyon County Bank v. Walker River Irrigation Dist.
60, 123; Michie, Banks and Banking, vol. 3, pp. 225, 226.
2. It is frequently necessary to take into account the acts and intentions of the parties in
determining whether a claim is entitled to preference. State v. Carson Valley Bank, 56 Nev.
133, at page 147, 47 P. (2d) 384.
3. It is also to be borne in mind, in a case of this kind, that before awarding the claim a
preferential status, it must be made to appear that the claimant is entitled to preference on
equitable principles. Board of Fire & Water Commissioners v. Wilkinson, 119 Mich. 655, 78
N. W. 893, at pages 895, 896, 44 L. R. A. 493; Zollmann, Banks and Banking, vol 10, pp. 2,
140; Michie, Banks and Banking, vol. 3, p. 293.
4. One claiming a preference over general depositors has the burden of proving clearly his
right to enjoy such preference. In re Citizens Bank of Senath (Mo. App.), 102 S. W. (2d) 830,
at page 832; Security Nat. Bank, Savings & Trust Co. v. Moberly (Mo. Sup.), 101 S. W. (2d)
33; Michie, Banks and Banking, vol. 3, p. 253; Zollmann, Banks and Banking, vol 10, sec.
6652.
We shall now direct our attention to the particular principles and rules of law applicable in
the instant case.
Plaintiff at no time parted with its control of the so-called special trust fund. It is true that
in its letter to the bank, dated February 1, 1932, and handed to the bank on the 3d day of that
month at the same time that the check for $18,423.07 was presented, plaintiff designated the
fund as a special trust fund and further expressly stated that it was not to be deemed or
considered as a deposit in which the relation of debtor and creditor was to exist; but no duty
or responsibility was imposed upon the bank, nor any power or authority given it other than to
pay checks out of said fund, signed by the proper officers of plaintiff corporation. Plaintiff's
letter stated that the deposit was made for the special purpose of paying principal and interest
on the Walker River irrigation district bonds, and as a matter of fact no checks were
drawn on that fund except for the payment of interest on said bonds; but the bank was
not instructed that it was not to honor any checks given for other purposes.
57 Nev. 485, 502 (1937) Lyon County Bank v. Walker River Irrigation Dist.
the Walker River irrigation district bonds, and as a matter of fact no checks were drawn on
that fund except for the payment of interest on said bonds; but the bank was not instructed
that it was not to honor any checks given for other purposes. The true situation was disclosed
by Mr. Willis when he testified that the bank would have been bound to honor any checks
drawn on said fund, provided they were signed by the proper officers of plaintiff corporation.
As was said in the case of In re Interborough Consolidated Corporation (C. C. A.), 288 F.
334, 346, 32 A. L. R. 932, at page 944: The fund here in controversy and deposited in the
Empire Trust was not received by the latter under instructions to distribute it among specified
creditors, or to the coupon holders. It was received by the Empire Trust to be paid out on
account checks to be drawn by the Interborough and directed to be charged against the
separate account which had been created.
In the same case the court said: If a fund is deposited in a bank for a specific purpose, but
subject to the depositor's check, it remains the property of the depositor, and is subject to the
right of set-off. * * * Such a right is necessarily inconsistent with the existence of a trust.
In the case of Guidise v. Island Refining Corporation (D. C.), 291 F. 922, 923, the eminent
learned Hand, then United States district judge for the southern district of New York, now
judge of the United States circuit court, second circuit, used this language: The fact that the
fund remains subject only to the obligor's order has usually been deemed enough to rebut the
inference of a trust. There must be some intention to give the beneficiary irrevocable rights in
the res, and that scarcely comports with the obligor's sole right to draw. That was the case in
Re Interborough Consolidated Corporation (Ex parte Gustave Porges), 288 F. 334 [32 A. L.
R. 932] (C. C. A. 2, January 16, 1923), and it is authoritative on me even if I did not agree
with it, which {though that makes no difference) I do."
57 Nev. 485, 503 (1937) Lyon County Bank v. Walker River Irrigation Dist.
with it, which (though that makes no difference) I do.
In a concurring opinion in Fant v. Home Bank & Trust Co., 152 S. C. 140, 149 S. E. 599,
600, Justice Stabler said: It was agreed by all parties that the moneys received from the Hill
Chevrolet Company were to be deposited in the bank in the name of Prothro, subject to his
order, or for the purpose of readvancement to the company. It is therefore clear that Prothro,
under the terms of the agreement, could check out of the bank at any time, for purposes other
than for readvancement to the company, the whole or any part of the funds so deposited, and
that the bank would be bound to honor his orders. From this it is evident that the fund so
placed in the bank was an ordinary and not a special deposit, and that Prothro is not entitled
to the preference claimed.
In Bacon v. State Bank of Kamiah, 41 Idaho, 518, 240 P. 194, at page 197, the court said:
Appellant's exercise of control over the fund by drawing against it indicates that the bank's
contract as to this deposit was the same as to any ordinary deposit, viz., to repay it in money
on the demand or order of the depositor.
5. The irrigation company contends that its deposit of February 3, 1932, augmented the
assets which came into the hands of the bank examiner. We do not concur in this view.
In the case of Hornick, More & Porterfield v. Farmers' & Merchants' Bank, 56 S. D. 18,
227 N. W. 375, 377, 82 A. L. R. 16, the court said: But no fund, in the sense of new and
additional money, came into the control or possession of the bank in this case. A transaction
with the bank by which the account of one depositor is charged for or debited with the
amount of check and another account is given a corresponding credit does not augment or
increase the assets of the bank, and does not bring into existence a fund of money to which a
trust may attach. Beard v. Independent District (C. C. A.), 88 F. 375, 382; Empire State
Surety Co. v. Carroll County {C. C. A. Sth Cir.), 194 F.
57 Nev. 485, 504 (1937) Lyon County Bank v. Walker River Irrigation Dist.
Co. v. Carroll County (C. C. A. 8th Cir.), 194 F. 593, 606; Milligan v. First State Bank [55 S.
D. 528], 226 N. W. 747.
6. There is a sharp conflict of authority on the question whether a check, drawn on an
insolvent bank by a drawer who has sufficient funds on deposit to meet it, and deposited by
the payee in his account with the drawee bank, amounts to an augmentation of the funds of
the bank. Annotation, 82 A. L. R. at page 97; Bogert, Trust and Trustees, vol. 4, pp.
2662-2667; Zollmann, Banks and Banking, vol. 10, sec. 6642. But in any event the bank must
have on hand cash equal to or exceeding the amount of the check. Annotation, 82 A. L. R. at
page 97; Zollmann, Banks and Banking, vol. 10, p. 121.
7, 8. It has not been satisfactorily shown that at the time of the presentation of plaintiff's
$18,423.07 check the bank had sufficient money on hand with which to pay the check. If it be
conceded that money in other banks should be regarded as cash in such a situation (Reichert
v. United Savings Bank, 255 Mich. 685, 239 N. W. 393, 82 A. L. R. 33, at pages 37, 39), it
must be remembered that while, according to its books, it had to its credit in solvent banks on
February 2, 1932, the sum of $6,565.65, there was included in this balance a one day's
accumulation of checks on other banks, and that one of these checks, in the amount of
$136.40 (including protest fees), was dishonored. It is our opinion that these checks, though
entered as cash on the books of the bank, should not be considered, legally, as having been
such before they were honored. The aggregate amount of these checks not appearing from the
record, it is impossible to say whether there was sufficient money on hand in the bank on
February 3, 1932, to pay plaintiff's check. This does not satisfy the law, which requires a clear
showing on every fact essential to entitle claimant to a preference.
When we consider that the bank was in failing condition on February 3, 1932, and that it
was entitled to ample notice of large withdrawals, the conclusion seems irresistible that if
plaintiff had demanded cash when its check was presented on said date, it would not
have received it before the bank failed.
57 Nev. 485, 505 (1937) Lyon County Bank v. Walker River Irrigation Dist.
ample notice of large withdrawals, the conclusion seems irresistible that if plaintiff had
demanded cash when its check was presented on said date, it would not have received it
before the bank failed.
The irrigation district argues that if the trust funds were used to pay off depositors, the
liabilities of the bank were reduced accordingly. On this point the court, in Schumacher v.
Harriett (C. C. A.), 52 F. (2d) 817, 818, 82 A. L. R. 1, at page 4, has this to say: The rule is
well settled that where property or funds which are the subject of a trust are used by a bank in
such way as merely to decrease its liabilities and not to augment its assets, no charge upon the
assets arises in favor of the cestui que trust. Ellerbe v. Studebaker Corporation of America (C.
C. A. 4th), 21F. (2d) 993; First National Bank of Ventura v. Williams (D. C.), 15 F. (2d) 585;
City Bank v. Blackmore (C. C. A. 6th), 75 F. 771. To the same effect, see Zollmann, Banks
and Banking, vol. 10, pp. 102, 103, 104, 109.
9. There is a further reason why plaintiff should not be given a preference on his claim,
and it is this: There was no understanding that the fund deposited in the bank for a special
purpose was not to be used by the bank for its own purposes. Security Nat. Bank Savings &
Trust Co. v. Moberly (Mo. Sup.), 101 S. W. (2d) 33; Restatement of the Law, Trusts, vol. 1,
p. 46; Squire v. American Express Co., 131 Ohio St. 239, 2 N. E. (2d) 766.
The conclusion we have arrived at is that plaintiff's claim is neither a trust fund nor
preferred claim within the meaning of the statute, and that the district court erred in giving
said claim the rank and preference of a first preferred claim.
10. In its briefs and at the oral argument appellant urged that this court order a proper
distribution of the $59,201.33 cash and assets retained by the superintendent of banks for
payment of preferred claims or trust funds. It also requested that in case this court should hold
that plaintiff's claim is not entitled to preference, plaintiff be ordered to return the $3,000
paid it by the bank examiner.
57 Nev. 485, 506 (1937) Lyon County Bank v. Walker River Irrigation Dist.
plaintiff be ordered to return the $3,000 paid it by the bank examiner. In view of the wording
of section 56 of the 1933 banking act, under the provisions of which this action was brought,
it is our opinion that this court has properly limited its inquiry to the single question whether
the district court was correct in awarding a preference to plaintiff's claim.
The judgment and order appealed from are reversed.
On Petition for Rehearing
August 19, 1937.
Per Curiam:
Rehearing denied.
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