Nevada Reports 1956 (72 Nev.) PDF

72 Nev.
1, 1 (1956)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 72
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72 Nev. 1, 1 (1956) Gardner v. Associated Contractors
MERVIN L. GARDNER, Appellant, v. ASSOCIATED CONTRACTORS, Inc., E.K.
FERGUSON, Jr., REED C. FERGUSON and GORDON A. FERGUSON, Individually and
as Copartners Doing Business Under the Name and Style of FERGUSON BROS., a
Copartnership, Respondents.
No. 3897
January 4, 1956. 291 P.2d 1051.
Appeal from the Second Judicial District Court, Washoe County; Grant S. Bowen, Judge,
Department No. 1.
Action on a California judgment, wherein nonresident defendants moved to set aside a
general appearance made by attorney on their behalf as unauthorized and plaintiff
subsequently moved for default judgment against defendants for their failure to appear for
taking of depositions pursuant to notice given to attorneys appearing especially for them on
their motion. The lower court granted the motion to vacate the general appearance and denied
the motion for default judgment, and plaintiff appealed. The Supreme Court, Badt, J., held
that plaintiff could not compel taking of depositions of defendants as parties in Nevada on
their motion to set aside general appearance.
7 72 Nev. 1, 2 (1956) Gardner v. Associated Contractors
that plaintiff could not compel taking of depositions of defendants as parties in Nevada on
their motion to set aside general appearance.
Affirmed.
Stewart & Horton, of Reno, for Appellant.
Pike & McLaughlin and Howard F. McKissick, Jr., of Reno, for Respondents Ferguson.
Joseph P. Haller, of Reno, for Respondent Associated Contractors, Inc.
1. Depositions.
Depositions of a defendant who makes a special appearance may be taken. Rules of Civil Procedure, Rule
26(d).
2. Discovery; Judgment.
On motion by nonresident defendants to set aside general appearance as unauthorized, plaintiff was not
entitled to take their depositions as parties in Nevada to inquire into facts relating to authorization of the
general appearance, and hence was not entitled to default judgment for their failure to appear for such
depositions. Rules of Civil Procedure, Rules 26(a, d), 28(a), 30(a, b), 37(d).
OPINION
By the Court, Badt, J.:
The only point of importance and seriousness involved in this appeal is whether the trial
court erred in granting the motion of E.K. Ferguson, Jr., Reed C. Ferguson and Gordon A.
Ferguson, individually, and as Ferguson Bros., a copartnership, all residents of California, to
vacate and set aside a general appearance purportedly made in their behalf, without first
considering plaintiff's motion for a default judgment against them in the sum of $54,237.87
for their failure to appear at the time and place set in Reno, Nevada, for the taking of their
depositions under notice given to the attorneys appearing specially on the motion. More
narrowly, on the motion of the nonresident defendants to set aside the purported general
appearance,
general appearance, assertedly made in the entire absence of authority, may the plaintiff, by
notice to the attorneys appearing for them specially for the purposes of such motion, take
their depositions, as parties, at Reno, Nevada, to inquire into the facts having to do with the
authorization or lack of authorization for the general appearance?
Plaintiff sued on a California judgment against all of the Fergusons as above named and
also joined Associated Contractors, Inc. upon an allegation that the Fergusons had
incorporated such company and transferred to it the possession of and title to its major assets.
Service of process was Made within the jurisdiction on the corporation but not on the
personal defendants, all of whom were residents of California. Thereafter Joseph P. Haller, a
Nevada attorney, filed a motion for extension of time for appearance of all defendants and it
is conceded that such motion constituted a general appearance. A few days thereafter the said
personal defendants, through their present counsel, Pike & McLaughlin and Howard F.
McKissick, Jr., filed a motion to set aside and vacate such appearance on the ground that it
had not been authorized by the Fergusons or any of them, and the motion was supported by a
number of affidavits which established prima facie that the appearance was without authority.
A few days later plaintiff noticed the taking of the depositions of the three Fergusons in Reno,
Nevada, under Rule 26(a) for the purpose of eliciting further facts as to the authority or lack
of authority of Mr. Haller to make the general appearance. Upon the failure of the Fergusons
to appear at the time and place fixed, plaintiff noticed his motion for the entry of their default
under Rule 37(d). Such motion and the motion to vacate the general appearance came on for
hearing before the district court at the same time. The court heard and granted the motion to
vacate the general appearance and then made and filed its order denying the motion for entry
of default judgment against the Fergusons.
[Headnote 1]
Plaintiff insists that the real issue is: May depositions properly be taken of a defendant
who makes a special appearance? We may agree with plaintiff's affirmative answer to this
question, N.R.C.P., Rule 26(d). Jiffy Lubricator Co. v. Alemite Co., D.C., 28 F. Supp. 385,
without at all solving the problem before us. If, relying on his own affirmative answer to his
own question, plaintiff had proceeded to take the depositions of the Fergusons under the
provisions of Rule 28(a) in California before an officer authorized to administer oaths in that
state, or before a person appointed by the district court in Washoe County, Nevada, and
procured the issuance from the clerk of the district court in Washoe County of a commission
or letters rogatory in the form prescribed by the California jurisdiction, and upon notice, and
the depositions were limited to the question of authority given by the Fergusons for a general
appearance in their behalf, it is hardly likely that any question would have arisen for our
determination.
Plaintiff, however, elected to proceed under the provisions of Rule 30(a) by serving a
notice upon the attorney who had filed the motion to set aside the general appearance, that he
would take the testimony of these nonresident defendants whose present addresses were
recited as being in Oakland, California, before a notary public in Reno, Washoe County,
Nevada, on the theory that, irrespective of their status as parties to the action, they were in
any event parties to the proceeding, that is, their motion to set aside the general appearance.
(Although the notice of taking the depositions of the Fergusons was general to the end that
the depositions would be used as authorized by the Nevada Rules of Civil Procedure, we
may accept appellant's statement that the depositions were needed, of course, to investigate
the question of Mr. Haller's authority.) When the Fergusons failed to appear in Reno at the
time and place set in the notice, plaintiff then proceeded under Rule 37(d) to serve and file his
motion for the entry of the default of said persons. Plaintiff insists that having failed to take
advantage of the provisions of Rule 30{b) to seek an order on motion that the deposition
be not taken,
that having failed to take advantage of the provisions of Rule 30(b) to seek an order on
motion that the deposition be not taken, or that it be taken at some designated place other than
that stated in the notice, or be taken only on written interrogatories, or that its scope be
limited, or such other order required by justice to protect the party or witness from
annoyance, embarrassment or oppression, etc., the Fergusons, by their failure to appear,
deliberately invited the penalties of Rule 37(d).
[Headnote 2]
We find ourselves unable to agree with plaintiff's reasoning. Under it plaintiff might name
as defendants to an action nonresidents of the State of Nevada and, on the occasion of an
unauthorized appearance on their behalf or some kind of unauthorized service upon them, put
them to the necessity of making a showing that would relieve them from their apparent status
as defendants subject to the jurisdiction of the court. That, as suggested by plaintiff, they
might sit idly by, and thereafter, whether by direct action or by collateral attack, show that
they were not bound by any order or judgment made in the proceeding, by reason of the
court's lack of jurisdiction, is not persuasive. There is nothing unreasonable in their refusal to
assume such a status. Their natural alternative is to set it aside. That they could do this by
special appearance and without submitting to general jurisdiction is well recognized. That, in
doing this, they are subjecting themselves as parties to the necessity of coming from a foreign
jurisdiction into this jurisdiction to be examined as to whether or not they can in any event be
sued in this jurisdiction cannot have been contemplated by the provisions of N.R.C.P. Indeed,
quite the contrary would appear to be contemplated by the penalty imposed by Rule 37(d), the
entry of a default judgment for failure to appear for deposition, which is in itself an incident
of the court's general jurisdiction of the parties.
In Petroleum Financial Corp. v. Stone, D.C., 111 F.Supp.
F.Supp. 351, 353, there were before the court motions to vacate the service of summons (on
the ground that the federal district court and the courts of the state were without jurisdiction
over the defendants, as they were citizens of a foreign state not engaged in business in New
York) and to vacate plaintiff's notice of taking depositions in New York. The court, in ruling
on these motions, said:
Plaintiff now seeks by the taking of depositions in New York to obtain further
information to support its contention that H. C. Cockburn and the Cockburn Oil Corporation
have been doing business in New York but it is unwilling to pay the costs for the deponents
to come here from Texas. Even if the costs were to be borne by the plaintiff, it would appear
that in seeking the depositions for this purpose, plaintiff is attempting to pull itself up by its
own bootstraps. Absent the prior finding that the Cockburn Oil Corporation and H. C.
Cockburn were doing business in this state, through Lee B. Stone, upon whom personal
process is served, this Court would be exceedingly reluctant to exercise its discretion under
Federal Rule 30(b) to compel parties to come to New York from Texas to determine whether
this court in fact has jurisdiction over them. The plaintiff is, of course, at liberty to take such
depositions in Texas * * *. The motion of defendants to vacate the services of summonses
will be granted unless plaintiff, within 30 days after the entry of the order hereon, submits to
the court additional facts supplying the elements of doing business' not now before me, if
such facts be obtained.
It will be noted that there, as here, the purpose sought by the depositions was to elicit facts
involved in the question of jurisdiction, that is, whether the defendants were doing business in
New York. If they were, they were subject to the jurisdiction. So here, if the general
appearance was authorized the Fergusons had voluntarily subjected themselves to the
jurisdiction. But to compel them to come into the jurisdiction for the purpose of ascertaining
whether the jurisdiction existed was characterized as an attempt by plaintiff "to pull itself
up by its own bootstraps."
was characterized as an attempt by plaintiff to pull itself up by its own bootstraps.
We are entirely in accord with the reasoning of that case, and accordingly find no error in
the rulings made by the district court.
The order and judgment appealed from are affirmed with costs.
Merrill, C. J., and Eather J. concur.
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72 Nev. 7, 7 (1956) McCleary Timber Co. v. Sewell
HENRY McCLEARY TIMBER COMPANY, a Corporation, Appellant, v. C.A. SEWELL
and ORENE H. SEWELL, His Wife, Respondents.
No. 3912
January 9, 1956. 292 P.2d 197.
Appeal from the Sixth Judicial District Court, Humboldt County; Frank B. Gregory,
Presiding Judge.
(See also 72 Nev....., 301 P.2d 1047.)
Motion to strike opening brief of appellant.
Motion denied.
James A. Callahan, of Winnemucca, and Anderson, Kaufman & Anderson, of Boise,
Idaho, for Appellant.
Orville R. Wilson, of Elko, for Respondent.
1. Appeal and Error.
Where in appeal has not been perfected in the Supreme Court within the time provided by the rule prior
to the promulgation of the present rules, the court has regarded as a waiver of the default, the failure of
respondent to move to dismiss until after the default had been cured by tardy filing of the record.
Motion to strike an opening brief on ground that it was not filed in the time prescribed would be denied,
where delay was but for one week, no prejudice was shown to have resulted to the respondent and had an
application been made to the Supreme Court for an extension of time it undoubtedly would have been
granted. Supreme Court Rules, Rule 11, subd. 7, Rules of Civil Procedure, Rule 1 et seq.
That brief in making references to evidence of proceedings, fails to designate where in the record such
might be found, is not ground for striking the brief, although under the rule the court could ignore the point
made. Supreme Court Rules, Rule 11.
OPINION
On Motion to Strike Brief
Per Curiam:
This matter is before us on motion of respondents to strike the opening brief of appellant
now on file in this court, upon the ground that appellant had failed to file the same within the
time prescribed. The brief was due November 10, 1955 and was filed November 17, 1955. In
opposition to the motion counsel for appellant have filed an affidavit explaining the reasons
for the delay in filing.
This court has had occasion recently to express to the members of the bar its concern with
the delays in briefing which have become almost a matter of standard practice. In this respect
it is anticipated that Rule XI, paragraph 7 of the rules of this court, will shortly be amended.
Notwithstanding our general feeling in this regard and with no intent to establish precedent as
to practice under any amendment to Rule XI which may be had, it is our view that the motion
before us must be denied. Several considerations combine to impel us to this conclusion.
[Headnote 1]
1. Where an appeal has not been perfected in this court within the time provided by rule,
this court in the past (prior to the promulgation of N.R.C.P.) has regarded as a waiver of the
default the failure of respondent to move to dismiss until after the default had been cured by
tardy filing of the record. Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2d 20;
Styris v. Folk, 62 Nev. 208, 130 P.2d 614, 146 P.2d 782; Hotels El Rancho v. Pray, 64 Nev.
22, 176 P.2d 236. Cf. Goodhue v. Shedd, 17 Nev. 140, 30 P. 695; Adams v. Rogers,
Rogers, 31 Nev. 150, 101 P.317; Padilla v. Mason, 53 Nev. 226, 296 P. 1083; Roberts v.
Roberts, 63 Nev. 459, 174 P.2d 611. While the rule may well now be different under
N.R.C.P. so far as concerns the filing of record and docketing of appeal, the filing of briefs
remains governed by our supplementary rules of court and the cited authorities would still
appear to be pertinent to our exercise of discretion in such cases.
[Headnote 2]
2. Although the affidavit filed by counsel for appellants can hardly be said to make out a
clear case of excusable neglect, still the case made out does serve to dispel any question of
lack of good faith in the prosecution of the appeal.
3. The delay was but for one week. (By previous stipulations extensions totaling three
weeks had been granted.) No prejudice has been shown to have resulted to the respondent.
Had application been made to this court for an extension of time for the reasons stated in
appellant's affidavit it undoubtedly would have been granted. Hotels El Rancho v. Pray, 64
Nev. 22, 176 P.2d 236.
Under all of the circumstances we feel that justice demands that the motion upon this
ground should be denied.
[Headnote 3]
As a further ground for striking the brief respondents assert that the brief, whenever
making reference to evidence or proceedings, fails to designate where in the record the
evidence or matter may be found, contrary to the requirement of Rule XI of this court. We do
not regard this as a ground for striking the brief. Rule XI states that for failure to comply with
this requirement the court may ignore the point made. Whether we choose to exercise our
discretion in this manner remains for future decision.
Motion denied. Respondents shall have 15 days from date within which to answer the
opening brief of appellants.
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72 Nev. 10, 10 (1956) Smilanich v. Bonanza Air Lines
MILTON G. SMILANICH, Appellant, v. BONANZA AIR LINES, Inc., Respondent.
No. 3911
January 10, 1956. 291 P.2d 1053.
Appeal from judgment and order of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, Department No. 2.
Proceeding on motion by defendant to dismiss plaintiff's appeal on ground appeal was not
taken within 30 days of judgment. The Supreme Court held, inter alia, that plaintiff's filing of
motion for relief from judgment did not terminate or suspend the running of time for appeal
from summary judgment entered against him.
(See also 72 Nev......, 298 P.2d 819.)
On motion to dismiss appeals, appeal from judgment dismissed. Motion to dismiss
appeal from order denied.
Vargas, Dillon & Bartlett, and Alex A. Garroway, of Reno, for Respondent.
Emilie N. Wanderer, of Las Vegas, for Appellant.
Plaintiff's filing of motion for relief from judgment did not terminate or suspend the running of time for
appeal from summary judgment entered against him. Rules of Civil Procedure, Rules 60(b), 73(a).
An order denying relief from judgment is appealable.
OPINION
Per Curiam:
This matter is before us on motion to dismiss the appeal upon the ground that it was not
taken within 30 days of judgment as provided by Rule 73(a) N.R.C.P.
Summary judgment in favor of respondent was entered by the trial court on April 25, 1955.
Notice of that judgment was served on appellant April 26, 1955.
that judgment was served on appellant April 26, 1955. On May 18, 1955 appellant filed a
motion for relief from final judgment under Rule 60(b) N.R.C.P. On June 24, 1955 the
motion was denied by order of the trial court. Notice of appeal from judgment and order was
filed July 25, 1955.
[Headnote 1]
Clearly the appeal from summary judgment was not taken within the time prescribed.
Appellant contends that the filing of the motion for relief from judgment suspended the
running of time for appeal until after disposition of such motion. Rule 73(a) specifies the
motions which are to have this effect. A motion under Rule 60(b) is not included. Rule 60(b)
specifically states a motion under this subdivision (b) does not affect the finality of a
judgment or suspend its operation. The motion, then, did not terminate or suspend the
running of time for appeal from summary judgment and that appeal has not been taken within
the time provided. See 6 Moore's F.P., 123, sec. 54.12(2).
[Headnote 2]
The appeal from the order denying relief from judgment was taken within 30 days. It is
conceded that the order is an appealable order. Greenspahn v. Seagram & Sons, 2 Cir., 186
F.2d 616; See 7 Moore's F.P., 341, sec. 60.30(3).
The appeal from the summary judgment is hereby dismissed. Motion to dismiss the appeal
from order denying relief from judgment is hereby denied. Appellant shall have 15 days from
date hereof within which to file opening brief upon his appeal from said order.
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72 Nev. 12, 12 (1956) Garibaldi Bros. Trucking Co. v. Waldren
GARIBALDI BROS. TRUCKING CO., A Corporation, and CHARLES F. THOMAS,
Appellants, v. HELEN WALDREN, Respondent.
No. 3899
January 19, 1956. 292 P.2d 356.
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
On motion to dismiss appeal.
The Supreme Court held that affidavits filed by appellants in opposition to respondent's
motion to dismiss appeal disclosed that appellants' late filing of record on appeal, without
obtaining of proper order of extension, was due to excusable neglect.
Motion denied.
Vargas, Dillon & Bartlett and Springer & McKissick, of Reno, for Appellants.
Leslie E. Riggins, of Reno, for Respondent.
Appeal and Error.
Affidavits filed by appellants in opposition to respondent's motion to dismiss appeal disclosed that
appellants' late filing of record on appeal, without obtaining of proper order of extension, was due to
excusable neglect. Rules of Civil Procedure, Rule 73(a, g).
OPINION
Per Curiam:
Respondent has moved under Rule 73(a)
1
N.R.C.P. to dismiss the appeal of appellant for
untimely filing of the record on appeal, as required by Rule 73{g)2.
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1
* * * Failure of the Appellant to take any of the further steps to secure the review of the judgment
appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in
this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may
include dismissal of the appeal. * * *.
the record on appeal, as required by Rule 73(g)
2
. The chronology of the pertinent filings etc.
is as follows:
Feb. 5, 1955Judgment.
Feb. 9, 1955Notice of judgment.
Feb. 19, 1955Motion for new trial.
April 1, 1955Notice of denial of motion for new trial.
May 2, 1955Notice of appeal and bond on appeal.
June 2, 1955Clerk's record on appeal certified.
June 11, 1955Time to file record expires.
June 14, 1955Supersedeas bond filed.
July 5, 1955Transcript of proceedings certified by court reporter.
July 5, 1955District judge's order extending time to July 20 to file record.
July 20, 1955Record on appeal filed (39 days late).
In support of her motion to dismiss the appeal respondent relies on Doolittle v. Doolittle,
70 Nev. 163, 262 P.2d 955, Bank of Nevada v. Drayer-Hanson, 70 Nev. 416, 270 P.2d 668;
and Cole v. Cole, 70 Nev. 486, 274 P.2d 358. Appellants maintain that the delay in filing the
record was the result of excusable neglect and have filed sundry affidavits from which the
following facts appear: During the second week of May, 1955, Mr. Howard F. McKissick, Jr.
was contacted by Mr. John C. Bartlett who stated that by reason of his heavy court calendar
he would appreciate help in briefing the case for this court. Mr. McKissick was at the time
employed by the firm of Pike & McLaughlin, but advised of his intention to form a new
partnership on June 1, 1955 and anticipated that he would have time after that date.
____________________

2
The record on appeal as provided for in Rules 75 and 76 shall be filed with the appellate court and the
appeal there docketed within 40 days from the date of filing the notice of appeal; * * * In all cases the district
court in its discretion and with or without motion or notice may extend the time for filing the record on appeal
and docketing the appeal, if its order for extension is made before the expiration of the period for filing and
docketing as originally prescribed or as extended by a previous order; but the district court shall not extend the
time to a day more than 90 days from the date of filing the first notice of appeal.
1955 and anticipated that he would have time after that date. On May 12 designation of
contents of record on appeal and order for transmittal of original papers to the supreme court
were prepared and filed and on May 12 respondent designated two additional items for
inclusion in the record. During all of June and the first part of July the court reporters were
continually engaged and had a number of transcripts to prepare, in addition to which some of
their transcribing machinery had broken down but they reported to attorney Bartlett the
probability that the transcript would be prepared in time. After filing the bond on appeal,
appellants submitted a net worth statement of the appellants in the thought that under the
showing thereof a supersedeas bond might be waived. On June 2 respondent declined to
waive a supersedeas and the same was furnished June 14. During the first week in July
attorney McKissick learned from the court reporters that the transcript had not been prepared
and that the 40-day limitation of the rule had expired. He also learned that attorney Bartlett
had been out of town for several weeks and that Bartlett had anticipated either that the
complete record would have been prepared and docketed or that attorney McKissick would
have obtained an extension. McKissick, however, on this his first appeal, thought that the
time had not expired or that an extension had been obtained or that, under the California
practice, the court reporter, unable to complete the transcript in time, would have obtained the
extension. At once, on July 5, as noted, an order extending time for filing the transcript to
July 20 was presented to and signed by Judge Maestretti, who expressed his misgivings at the
time. On July 8 the record was ready for filing, but attorney McKissick, confronted with the
costs of transmission of the extensive record to Carson City, decided to carry the record there
personally at the time of meeting a trial engagement in Carson City on July 20, on which date
the record was filed. Six days thereafter, on July 26, 1955, respondent filed her motion to
dismiss the appeal and gave notice by mail.
The delay above noted from July 8 to July 20 could and should of course have been
avoided. There was also a delay from the appeal of May 2 to the ordering of the transcript
from the reporter on May 13, but this delay of eleven days for such purpose (still leaving
some 30 days available) would not in itself, in our opinion, constitute neglect.
Appellants do not seriously urge that the district court's order of July 5 extending the time
(which had expired on June 11) to July 20 to file the record was effective for that purpose.
Rule 73(g); United States v. Gallagher, 9 Cir., 151 Fed.2d 556; Citizens' Protective League v.
Clark, 85 U.S. App. D.C. 282, 178 Fed.2d 703. They do maintain however that a very
persuasive case of excusable neglect has been shown not only in the untimely filing of the
record but also in the failure to obtain an order of extension as permitted by the appropriate
rules. Without detracting to any extent whatsoever from the force of our opinions in the
Doolittle, Drayer-Hanson and Cole cases, supra, we are inclined to exercise our discretion to
the extent of holding that a case of excusable neglect has been shown. The three named cases
in which we dismissed the respective appeals were based on facts differing substantially from
those appearing here, in which no substantial prejudice will result, in which many of the
circumstances were unavoidable, in which it was at all times manifest that appellants desired
and intended in good faith to perfect their appeal, in which there was no long delay (beyond
the unavoidable delay in the court reporter's transcribing of the proceedings), and in which we
find the neglect excusable. There can be no doubt but that an order of extension would, if
sought, have been automatically granted. Hotels El Rancho v. Pray, 64 Nev. 22, 176 P.2d
236.
The motion to dismiss is denied and appellants are given fifteen days from date within
which to serve and file their opening brief on the merits.
____________
72 Nev. 16, 16 (1956) Eastman Kodak Co. v. Holmes
EASTMAN KODAK COMPANY, Inc., Appellant, v. I. B. HOLMES, Also Known as BUD
HOLMES, Respondent.
No. 3891
January 30, 1956. 92 P.2d 860.
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action was brought on first cause of action on a merchandise account and on second cause
of action on defendant's check, which defendant had knowingly drawn on bank account
having insufficient funds to meet it, and which defendant had delivered to plaintiff as a
payment on the merchandise account. The defendant made a motion for summary judgment
on ground that he had been discharged in bankruptcy. The lower court entered summary
judgment, and the plaintiff appealed. The Supreme Court held that the second cause of action
was discharged in bankruptcy, because not based on fraud.
Affirmed.
Emilie Wanderer, of Las Vegas, for Appellant.
I.B. Holmes, Respondent in pro. per.
1. Bankruptcy.
Cause of action on defendant's check, which defendant had knowingly drawn on a bank account having
insufficient funds to meet the check, and which defendant had delivered to plaintiff in payment on
merchandise account, was discharged in bankruptcy, because not based on fraud.
2. Costs.
Where respondent's only allowable costs would be the cost of typewriting respondent's brief, and such
brief was of no assistance to Supreme Court on appeal, no costs would be allowed respondent.
OPINION
Per Curium:
[Headnotes 1, 2]
To plaintiff's complaint on its first cause of action for a judgment for $1,687.69 on a
merchandise account, and on its second cause of action on defendant's check for $1,200,
72 Nev. 16, 17 (1956) Eastman Kodak Co. v. Holmes
on its second cause of action on defendant's check for $1,200, knowingly drawn on a bank
account having insufficient funds to meet it and which he had delivered to plaintiff as a
payment on said account, defendant pleaded his discharge in bankruptcy and moved for
summary judgment, showing that the debt to plaintiff had been listed in his schedules. From
the judgment rendered on such motion plaintiff has appealed, asserting that the second cause
of action was based on fraud, and was therefore not discharged in bankruptcy. Plaintiff's only
damage resulting from the alleged fraud would appear to be its disappointment when the
check was returned for insufficient funds. Morris Plan Bank v. Baggarly, 68 Ga.App. 714, 23
S.E.2d 271. Judgment affirmed. As respondent's only allowable costs would be the cost of
typewriting his brief, and as such brief was of no assistance to the court, no costs are allowed.
____________
72 Nev. 17, 17 (1956) Broomfield v. Koval
DON BROOMFIELD and EVELYN BROOMFIELD,
Appellants, v. A.J. KOVAL, Respondent.
No. 3860
January 31, 1956. 292 P.2d 1073.
Department No. 2.
Action to recover the balance due upon a construction of a motel with defense and
counterclaim that plaintiff negligently failed to place the motel upon the lot where it should
have been placed. Judgment for plaintiff, and the defendants appealed. The Supreme Court,
Eather, J., held that the evidence sustained the judgment for plaintiff.
Affirmed.
Milton W. Keefer and Paul L. Larsen, of Las Vegas, for Appellants.
Robert M. Callister, of Las Vegas, for Respondent.
Where the appeal presents questions of fact, findings of the trial court will be sustained if there is any
substantial evidence in the record supporting them.
2. Contracts.
In action to recover the balance due upon a contract for construction of a motel with defense that plaintiff
failed to place the motel upon the lot where it should have been placed, evidence sustained judgment for
the plaintiff.
OPINION
By the Court, Eather, J.:
This is an action brought to recover the balance due upon a contract for construction of a
motel located in Las Vegas, Clark County, Nevada. The defense of the defendants which also
formed the basis of a counterclaim for damages, is that the plaintiff negligently and in
violation of contract failed to place the motel upon the lot where it should have been placed.
The trial court found against the defendants upon this proposition and they have brought this
appeal contending that the evidence does not support that finding.
On order made on written stipulation, the case was submitted on the briefs and without
oral argument. We refer to the parties as they appeared in the court below.
It appears that the defendants own property fronting for 200 feet upon Fremont Street. The
property was not subdivided into lots but it had been surveyed and a center line had been
established. Defendants testified that it was the understanding between the parties that the
motel should be placed upon the east half of the property so that the remaining half in its
entirety could be held for speculation. Upon completion of the motel it was found to cross the
center line, encroaching upon the west half 7.60 feet.
Even accepting these facts, however, the testimony of the plaintiff clearly supports the
finding of the trial court. According to the plaintiff the defendants told him where to place
the motel and he placed it where they had told him to place it.
where to place the motel and he placed it where they had told him to place it. He states when
he had received his instruction in this respect there were two marker stakes upon the property
purporting to establish the center line; that these stakes were pointed out to him by defendants
and he was told by them to build a motel parallel to the line established; that he did so; that it
was later determined that the marker stakes had been improperly fixed. The trial court
accepted this testimony. Accepting its truth, in our view, it eliminates all question of a duty
upon the plaintiff to determine for himself the proper location of the motel.
[Headnotes 1, 2]
In the case of Friendly v. Larson, 62 Nev. 135, 144 P. 2d 747, it is stated: The appeal
presents almost exclusively questions of fact which have been resolved in favor of
respondents by the trial court, and, of course, the findings of the trial court will be sustained if
there is any substantial evidence in the record supporting them.
Judgment affirmed with costs.
Merrill, C. J., and Badt, J., concur.
____________
72 Nev. 20, 20 (1956) Boswell v. Board of Medical Examiners
LOUIS K. BOSWELL, Jr., Petitioner, v. BOARD OF MEDICAL EXAMINERS OF THE
STATE OF NEVADA, GEORGE ROSS, THEODORE ROSS, LESLIE MORAN,
STANLEY HARDY AND KENNETH MACLEAN, Respondents.
No. 3913
February 1, 1956. 293 P.2d 424.
Original petition for writ of prohibition to prohibit respondents from trying petitioner on
charges of unprofessional conduct looking toward the revocation of his license to practice
medicine in Nevada.
The Supreme Court, Badt, J., held that doctor's language harshly critical of other doctors
practicing in county and of entire local medical profession did not warrant revocation of
doctor's license.
Petition granted.
Royal A. Stewart and Richard W. Horton, of Reno, for Petitioner.
Summerfield & Heward, of Reno, for Respondents.
1. Physicians and Surgeons.
Act conferring jurisdiction on medical boards to revoke a physician's license finds justification in police
power of state to protect health, safety or morals. N.C.L.1943-1949 Supp., sec. 4107.15.
2. Physicians and Surgeons.
A doctor's language harshly critical of other doctors practicing in county and of entire local medical
profession did not warrant revocation of doctor's license. N.C.L.1943-1949 Supp., sec. 4107.15.
OPINION
The question presented by this petition is: May the board of medical examiners proceed to
try a duly licensed doctor of medicine on charges of unprofessional conduct because of
harshly critical language (as more particularly set forth in the specific charges hereinafter
quoted)
particularly set forth in the specific charges hereinafter quoted) directed by him at the three
other doctors practicing in the county and at the entire local medical profession? Further: Did
the statements, in the words and under the circumstances as charged, bear such a threat to the
public health, safety, morals or welfare as to justify the license revocation proceeding? We
answer both questions in the negative, and conclude that the writ of prohibition sought must
be issued.
The state board of medical examiners cited Dr. Louis K. Boswell, authorized July 15, 1954
to practice medicine in Nevada, to appear before it and answer charges of unprofessional
conductconduct unbecoming a person licensed to practice medicine or detrimental to the
best interest of the public,
1
because of specific statements made by him.
Dr. Boswell is engaged in practice in Yerington, Lyon County. Besides him three other
doctors, licensed to practice medicine, are engaged in practice in that community and county.
The charges of the medical board specify conversations had with six persons, in which Dr.
Boswell made statements reflecting upon the standard of medical practice in the county and
upon nursing practices and insultingly reflecting upon the abilities of the other three doctors.
The first doctor he referred to as the city drunk.
____________________

1
N.C.L., sec. 4107.15, 1943-1949 Supp.: The board shall refuse a certificate to any applicant guilty of
unprofessional conduct, and for like cause it may revoke any certificate, either permanently or temporarily, and
suspend the party so found guilty from the practice of medicine either permanently or for a time determined by
the board. The words unprofessional conduct,' as used in this act, are declared to mean: * * * Conduct
unbecoming a person licensed to practice medicine or detrimental to the best interest of the public.' The same
section declares unprofessional conduct to include such things as obtaining a certificate upon fraudulent
credentials, procuring a criminal abortion, obtaining a fee on assurance that a manifestly incurable disease can be
permanently cured, conviction of felony, administering of drugs otherwise than in the course of legitimate
professional practice, habitual intemperance, excessive use of drugs, employing an unlicensed practitioner, gross
negligence in the practice, adjudication of insanity, etc.
The second he designated nothing but a lousy old midwife who had probably killed more
patients in this valley than she ever helped; who never performed operations but treated her
patients who were suffering from appendicitis with a high, hot enema; who had left a large
percentage of the women of the county with their insides hanging out due to the butchery to
which they were exposed under her care; who left all women she delivered with rectoceles
and cystoceles; and who had bled the people of the community for all money possible for care
that was inadequate.
Dr. Boswell was for awhile associated in practice with the third doctor. He terminated the
association and later stated that that doctor had been incapable of handling the medical work
Dr. Boswell had expected of him and could not maintain Dr. Boswell's high standards of
practice.
Reflecting generally upon medical standards were statements by Dr. Boswell to the effect
that the standard of medical practice throughout the west was so low as to be a national
disgrace but that doctors from the east were gradually bringing the standards up to average;
that the people of Lyon County had never known what good ethical medical practice was
until he came; that he was appalled at the great amount of surgery to be done upon the women
of the county; that all he had examined who had had children during the past 40 years had
received improper medical care and were in need of surgery; that he was tickled pink at the
situation, as he would have these women as his patients.
As to nurses he stated that those at the local hospital were a lousy bunch. Specifically he
had falsely accused one nurse of jimmying an X-ray machine at the hospital so that he
could not use it and on one occasion of leaving the operating table at a critical point in an
operation which had unduly lengthened the operating time.
The six persons to whom he had made these statements were: the doctor with whom he
had been associated, that doctor's wife, a registered nurse, a licensed pharmacist and two
women unidentified save by name who may or may not have been his patients.
pharmacist and two women unidentified save by name who may or may not have been his
patients.
The board made other charges which it concedes are so general in their present form as to
relieve Dr. Boswell of obligation to answer and, therefore, are not here considered.
Whatever words one might be disposed to use in characterizing the language employed by
Dr. Boswellharsh, vicious, caustic, bitter, unrestrainedly critical, egotistical, uncharitable,
unpleasant, vulgar, slanderous, etc.and whatever may be the remedies on the part of the
persons against whom the remarks were directed, the question for our determination remains
unanswered. Did these statements (which we must assume, under the petition, to have been
made as charged) made under the circumstances above recited, constitute unprofessional
conduct within the purview of sec. 4107.15 N.C.L., 1943-1949 Supp.? Did they constitute
conduct unbecoming a person licensed to practice medicine or detrimental to the best
interest of the public? The board's theory in answering the above question in the affirmative
is best illustrated by its quotation from 41 Am.Jur. 181, as follows: The misconduct, bad
character, or immorality for which the license of a physician * * * may be revoked need not
necessarily be connected with his profession, practice or patients; it is enough if it relates only
to his personal life. We need not debate thisunder properly applicable facts, but turn
directly to the one case upon which respondents rely, State Board of Medical Examiners v.
Spears, 79 Colo. 588, 247 P. 563, 566, 54 A.L.R. 1498, in which a chiropractor, for the
purpose of increasing his own business and income, printed and published false charges that a
hospital caused the death of a patient by inhuman treatment. Petitioner distinguishes this case
for the reason that the court's emphasis was upon the printing and publication of the false
charges and that such charges were made for the purpose of increasing the petitioner's own
business and income, while in the case at bar the statements were made in private
conversation, in large part with persons with whom Dr.
made in private conversation, in large part with persons with whom Dr. Boswell was
professionally associated and to whom he might be expected to express a critical professional
opinion. We find a further distinction in the fact that the Spears case, reaching the Colorado
supreme court on certiorari, was never decided on the merits by that court. That court limited
itself to the finding that the medical board had jurisdiction and did not abuse its discretion or
fail regularly to pursue its authoritythe only questions which, under its rules and practice,
the supreme court of Colorado could consider. The court said: We must accept the finding of
the medical board, and the trial court should have accepted it as a verity, that defendant's
conduct bore such an intimate relation to the public health and public morals as to justify the
finding that the respondent's conduct was unprofessional and dishonorable * * * neither the
district court nor this court may enter upon the investigation of the merits, or inquire if the
board made a mistake in its findings of fact, or erred in its conclusions upon the facts. Such,
however, is not the rule in Nevada. Van Heukelom v. Nevada State Bd. of Chiropractic
Examiners, 67 Nev. 649, 224 P.2d 313; Richardson, State ex rel. v. Board of Regents of
University of Nevada, 70 Nev. 347, 269 P.2d 265.
Other cases are cited by respondents. The bad character, the unprofessional and
unbecoming conduct, the gross immorality of the licensees in the cases cited and in the cases
mentioned in footnote 1 at once suggest necessary measures for protection of the public, but
afford no precedent supporting the charges here made as grounds for the revocation of a
license to practice medicine.
[Headnotes 1, 2]
Acts of the legislature like the one in question, conferring jurisdiction on medical boards
to revoke a physician's license, find their justification in the police power of the state to
protect the public health, safety or morals. Hewitt v. State Medical Examiners, 148 Cal.
590, 84 P. 39, 3 L.R.A., N.S., 896. Only two suggestions are made by the board to bring this
case within such justification. First, it is suggested that the patients of the criticized
physicians may be caused to lose confidence in them and their recovery be retarded by reason
of such loss of confidence. Secondly, it is urged that a doctor who is so harsh and
unrestrained in his language is thereby demonstrated to be a person of such character that he
should not be licensed to practice medicine, and that the practice of medicine by a person of
such character is detrimental to the best interest of the public. Neither argument is sound and
the board has cited no case in which such principle has been enunciated. It has never been
held that the public health, safety or morals requires protection through the suppression of
criticism of individual doctors or criticism of the medical profession as a whole, no matter
how harsh the terms in which such criticism is expressed. The common sense and sound
judgment of the public in its reaction to unwarranted or unjust criticism of individual doctors
or of the medical profession affords a far better protection than the one sought here by the
board of medical examiners. Public reaction may indeed be a resentment, not against the
criticized doctors and not against the criticized profession, but against the person making the
charges if such charges are considered to be unjust or unfair or without justification. Neither
the right of individual practitioners to protect themselves nor the right of the medical
profession to protect itself may be promoted under the provisions of a statute whose sole
purpose is the protection of the public, and whose sole justification lies in the police power of
the state exercised to that end.
It is ordered that the petition be and the same hereby is granted, and that the writ issue as
prayed for.
Merrill, C. J., and Eather, J., concur.
____________
72 Nev. 26, 26 (1956) Byers v. Lockitch
LELAND BYERS, FRANK A. TAYLOR, and MARVIN SCHIFF, Appellants, v. REUBEN
J. LOCKITCH, Respondent.
No. 3879
February 2, 1956. 292 P.2d 1071.
Department No. 2.
Action by host motorist, guest passenger, and owner of parked automobile against other
motorist for injuries sustained to person and property when host automobile collided with
other motorist's automobile and then swerved into parked automobile while host motorist was
attempting to bring host automobile under his control. The lower court entered judgment for
other motorist, and plaintiffs appealed. The Supreme Court, Merrill, C. J., held that evidence
was not sufficient to sustain finding that guest passenger was guilty of contributory
negligence but was sufficient to establish that other motorist's negligence contributed to
collision with host automobile and that collision between such automobiles was proximate
cause of injury to parked automobile.
As to appellant Taylor, affirmed. As to appellants Byers and Schiff, reversed and
remanded for new trial.
Robert M. Callister, of Las Vegas, for Appellants.
George E. Marshall, of Las Vegas, for Respondent.
1. Automobiles.
In action by host motorist, guest passenger, and owner of parked automobile against other motorist for
injuries sustained to person and property when host automobile collided with other motorist's automobile
and then swerved into parked automobile while host motorist was attempting to bring host automobile
under his control, evidence was sufficient to sustain trial court's finding that host motorist was guilty of
contributory negligence in driving at an excessive speed.
2. Automobiles.
and then swerved into parked automobile while host motorist was attempting to bring host
automobile under his control,
automobile while host motorist was attempting to bring host automobile under his control, evidence was
not sufficient to sustain finding that guest passenger was guilty of contributory negligence.
3. Automobiles.
and then swerved into parked automobile while host motorist was attempting to bring host automobile
under his control, evidence was sufficient to establish that other motorist's negligence contributed to
collision with host automobile and that collision between such automobiles was proximate cause of injury
to parked automobile.
OPINION
By the Court, Merrill, C. J.:
This is an appeal from judgment for the defendant in a personal injury action brought by
the three appellants.
Appellant Taylor was the driver of a car involved in a collision with a car of respondent
Lockitch in Las Vegas. As a result of the collision the Taylor car was forced to its left. Taylor,
in attempting to bring the car under control, swerved back to his right and the car passed over
the curb of the street and in doing so struck and damaged a parked automobile belonging to
appellant Schiff. In one action the complaints of three plaintiffs are joined against Lockitch.
Taylor brought action for property damage to his automobile and for personal injuries
suffered by himself. Schiff brought action for property damage to his automobile. Appellant
Byers, a passenger in Taylor's automobile, brought suit for personal injuries suffered by
himself.
The case was tried to the court below without a jury, and judgment in favor of the
defendant was rendered as to all three of the plaintiffs. Upon this appeal by those plaintiffs it
is asserted that there is no evidence to support the findings and judgment in favor of the
defendant.
[Headnote 1]
As to Taylor, defendant opposed his action upon the ground of contributory negligence.
The court found that Taylor was guilty of contributory negligence in driving at an excessive
rate of speed. There is support for such finding in the record. Judgment in favor of defendant
Lockitch upon this cause of action must be affirmed.
[Headnote 2]
As to Byers the answer of the defendant states as an affirmative defense that the driver,
Taylor, was guilty of contributory negligence and that this contributory negligence is imputed
to his passenger, Byers. This defense was abandoned. After judgment was rendered from the
bench and before findings of fact were signed, the court permitted Lockitch to amend his
answer with reference to Byers ostensibly to conform to the proof. This amendment was to
the effect that Byers was himself guilty of contributory negligence. The finding of the trial
judge upon this point was also to the effect that Byers was guilty of contributory negligence.
We have been unable to find in the record anything to support such a finding, nor any proof
of contributory negligence on the part of Byers to which the amendment might conform, nor
has the defendant been able to direct our attention to such proof. We must conclude that it
was error to have permitted the amendment and that the finding is wholly without support.
Upon this cause of action the trial court must be reversed.
[Headnote 3]
As to Schiff, the finding of the trial court was that the manner in which Lockitch had
driven his automobile was not the proximate cause of the injury to the Schiff car. It is
impossible from the record or from briefs of counsel to determine upon what basis the court
proceeded in making this finding or upon what basis the finding can be supported by the
record. An examination of the opinion of the trial judge from the bench at the conclusion of
the trial indicates clearly that in his mind both Taylor and Lockitch were guilty of
negligence and that the negligence of each had contributed to the collision between their
two cars.
both Taylor and Lockitch were guilty of negligence and that the negligence of each had
contributed to the collision between their two cars. The record leaves no room for doubt but
that that collision between the Taylor and Lockitch cars was the direct and proximate cause of
the injury to the Schiff car. It is not argued that there was any intervening cause or that
damage to the Schiff car for any reason should be held to have been unforeseeable.
Accepting, as we must, from the state of the record and the expressions of the trial judge, that
the negligence of Lockitch contributed to the collision with the Taylor car, we are unable to
find support in the record for the finding that this negligence was not the proximate cause of
the injury to the Schiff car.
As to appellant Taylor the judgment is affirmed. As to appellants Byers and Schiff
judgment is reversed, with costs, and the matter remanded for new trial.
Badt and Eather, JJ., concur.
____________
72 Nev. 29, 29 (1956) Corey v. Corey
CONCETTA E. COREY, Appellant, v. JOSEPH F.
COREY, Respondent.
No. 3887
February 2, 1956. 292 P.2d 1073.
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1.
Divorce action. The lower court entered decree in favor of the plaintiff-husband, and an
appeal was taken. The Supreme Court, per curiam, held that since record on appeal contained
no transcript of testimony taken at time of trial and no statement of evidence, appellant had
wholly failed to provide reviewing court with means for considering merits of her contention
that in two respects findings were unsupported by evidence and accordingly decree would
have to be affirmed.
Affirmed.
72 Nev. 29, 30 (1956) Corey v. Corey
R. Dale Cook, of Las Vegas, for Respondent.
Divorce.
Where record on appeal contained no transcript of testimony taken at time of trial and no statement of
evidence, appellant wholly failed to provide reviewing court with means for considering merits of her
contention that in two respects findings were unsupported by evidence in divorce suit, and accordingly
decree was affirmed. Rules of Civil Procedure, Rule 75(n).
OPINION
Per Curiam:
This is an appeal from decree of divorce granted in favor of the plaintiff husband. The
appeal is brought upon the ground that in two respects the findings are unsupported by the
evidence.
We need not deal with the factual basis of this contention. The record on appeal contains
no transcript of testimony taken at the time of trial nor was any statement of the evidence
prepared pursuant to Rule 75(n) N.R.C.P. Appellant, then, has wholly failed to provide this
court with the means for considering the merits of her contention.
Affirmed. No costs are allowed.
____________
72 Nev. 31, 31 (1956) Casey v. Musgrave
JOHN JAY CASEY, Appellant, v. ROBERT E.
MUSGRAVE, Respondent.
No. 3798
February 6, 1956. 292 P.2d 1066.
Appeal from the Fifth Judicial District Court, Nye County, William D. Hatton, Judge.
Action to recover for services rendered by plaintiff which included appraisal of cattle and
ranch property where, as a result thereof, defendant's bid for the purchase of the ranch was
accepted. From judgment for plaintiff for $31,000, defendant appeals. The Supreme Court,
Merrill, C. J., held that the defense of res judicata was without merit, that the award of
damages was supported by the evidence, and that the rulings of the trial court were without
error.
Judgment affirmed, with costs.
William J. Crowell, of Carson City, and Leslie E. Riggins, of Reno, for Appellant.
Stewart & Horton, of Reno, for Respondent.
1. Judgment.
In action for services rendered by plaintiff in the appraisal of cattle and ranch property as result of which
defendant was enabled to purchase the property, judgment in a prior action brought by plaintiff against
defendant to establish a partnership and the ownership and operation of the ranch and to secure an
accounting as to the partnership assets, was not res judicata.
2. Election of Remedies.
An election once made, with knowledge of facts, between coexisting remedial rights which are
inconsistent, is conclusive, irrespective of intent, and constitutes an absolute bar to any action, based upon
a remedial right inconsistent with that asserted by the election, or to the maintenance of a defense founded
on such inconsistent right.
In action for services involving appraisal of cattle and ranch property, plaintiff by bringing a former
action to establish a partnership in the ownership and operation of the ranch did not make an election of
remedies barring maintenance of the present action, where plaintiff in the prior action simply proceeded
under a mistake of fact in assuming a meeting of the minds of the parties to have
occurred upon a partnership contract.
proceeded under a mistake of fact in assuming a meeting of the minds of the parties to have occurred upon
a partnership contract.
4. Work and Labor.
In action for services rendered by plaintiff including appraisal of cattle and ranch property, award of
$31,000 to plaintiff was not excessive.
5. Work and Labor.
In action for services rendered by plaintiff including the appraisal of cattle and ranch property which
enabled defendant to purchase a ranch, including in the award to plaintiff, sums recovered by a private sale
of cattle in computing the plaintiff's damages was proper, where record supported the implied authority of
the plaintiff to sell the cattle, as against the defendant's contention that services rendered by plaintiff in
such connection were gratuitous.
6. Work and Labor.
In action for services involving the appraisal of cattle and ranch property enabling defendant to purchase
a ranch, uncertainty in proof as to the value of trucks and private automobile involved in the award of
damages which was not as to existence or cause of benefit but as to the measure or extent, was not so great
as to destroy all evidentiary weight thereof as a matter of law.
7. Work and Labor.
In action for services rendered by plaintiff including the appraisal of cattle and ranch property whereby
defendant was enabled to purchase ranch property, award to plaintiff of $8,000 for use of trucks and
$3,000 for use of a private automobile was supported by the evidence.
8. Evidence.
Where witness qualified as an expert by experience in selling and trading cattle, and the purpose of his
testimony was to establish reasonable value of services rendered by plaintiff in conducting an auction sale,
expression of opinion by the witness as to reasonable value of services rendered by auctioneer in selling
cattle, which was based upon what he had himself received in his own special contractual arrangements and
circumstances surrounding them, was not competent to establish reasonable value of plaintiff's services.
9. Trial.
Trial judge, during the course of the trial, is charged with a superintending duty to regulate and control
the course of proceedings in an orderly manner, enforcing obedience to his rulings and extensive
discretionary authority is given to the judge in such regard.
10. Evidence.
Where defendant upon redirect examination of an expert witness reverted to stricken testimony and the
trial court sustained the objection on the ground that witness had so clearly committed himself as to
the basis for stated opinion that he could not modify his answer nor could counsel
properly invite such modification,
clearly committed himself as to the basis for stated opinion that he could not modify his answer nor could
counsel properly invite such modification, action of the trial judge fell within the field of his discretionary
authority.
11. Evidence.
Where question on redirect examination of witness expressing opinion as to value of services in selling
cattle did not invite explanation of testimony given on cross-examination but an outright repudiation of
such testimony, action of the court in denying such procedure was not improper as depriving defendant of
the right of redirect examination of the witness to explain the discredited testimony elicited on
cross-examination.
OPINION
This is an action brought by respondent as plaintiff for the reasonable value of services
rendered to defendant at defendant's instance and request. Judgment for the plaintiff in the
sum of $31,000 was rendered pursuant to jury verdict and the defendant has taken this appeal
from judgment.
Appellant's first contention is that the action is barred by res judicata.
The services in question were rendered from May through August, 1948. Defendant was
contemplating the purchase of ranch and range property and cattle in Nye County. Plaintiff
operated a cattle sales yard in Fallon, Nevada, and was experienced in the appraisal and sale
or cattle. The services rendered by plaintiff included appraisal of cattle and ranch property. As
a result of these services defendant bid for purchase of the ranch and his offer was accepted.
Thereafter plaintiff's services included the rounding up and sale of cattle. As a result of these
services defendant was enabled to realize the purchase price of the ranch. In 1949 an action
was brought by plaintiff against defendant to establish a partnership in the ownership and
operation of the ranch and to secure an accounting as to partnership assets. This action
resulted in judgment for defendant upon the ground that proof of an agreement to enter
into partnership had not been established.
the ground that proof of an agreement to enter into partnership had not been established. This
judgment was affirmed upon appeal to this court. Musgrave v. Casey, 68 Nev. 471, 235 P.2d
729. Thereafter in June, 1952, the present action was commenced.
Appellant contends that the cause of action in the first suit was identical with the cause of
action in the case at bar under the tests set forth by this court in Reno Club v. Harrah, 70 Nev.
125, 260 P.2d 304. In both cases, it is contended, there is identity of subject matter, of the
primary right of the plaintiff and duty of the defendant and of the facts from which these
matters arose. Therefore, it is argued upon the authority of the Reno Club opinion, the
judgment in the first case operates as a bar to the instant case.
It is not enough, however, that the same circumstances and transactions have, in general,
given rise to both cases. The former action was based upon an alleged express contract which
by its terms determined the primary right of the plaintiff and duty of the defendant. Those
rights and duties related not simply to compensation for plaintiff's services but involved the
relationship of partners in the ranch enterprise. Our opinion in the former case expressly
states, 68 Nev. 471, 481, 482, 235 P.2d 729, 734, 735, The trial court in rendering its
opinion in favor of the defendant stated the conviction that there was not sufficient evidence
to establish that there ever was a partnership or joint adventure created between the parties.
This appears to us to be the true issue. The question is not whether plaintiff is entitled to
compensation for his services rendered in connection with the raising of the purchase price.
The question is whether any contract ever was reached which created a joint adventure. It
cannot, then, be said that the former case constituted an adjudication of the right of plaintiff
to recover compensation for his services or that plaintiff in this action seeks simply a new
remedy upon the same cause of action.
Gall v. Gall, 17 App.Div. 312, 45 N.Y.Supp. 248, 251,
252, involved a similar situation. There the court stated, The cause of action in the first case
was for the specific performance of an agreement to make a will. The question presented was
whether such an agreement had been made by Joseph Gall. Upon that question the rights of
the parties depended. The fact of the rendition of services was material only as it afforded a
consideration which would be, in equity, sufficient to compel the specific performance of
such an agreement if it had been made, but in all other respects the fact of the rendition of the
services was entirely immaterial. Nor was the value of these services material in any respect
whatever * * *. In the second action, however, the services themselves, and their rendition,
lay at the basis of the action. To the same effect is O'Meara v. McDermott, 43 Mont. 189,
115 P. 912; followed in Gaspar v. Buckingham, 116 Mont. 236, 153 P.2d 892.
[Headnote 1]
The bar of res judicata does not apply.
[Headnote 2]
Appellant next contends that plaintiff in bringing his former action conclusively elected
his remedy and may not now assert a right to an inconsistent alternative remedy. The rule is
stated in Robertson v. Robertson, 43 Nev. 50, 59, 180 P. 122, 124, 187 P. 929, as follows:
An election once made, with knowledge of the facts, between co-existing remedial rights
which are inconsistent, is irrevocable and conclusive, irrespective of intent, and constitutes an
absolute bar to any action, suit, or proceeding based upon a remedial right inconsistent with
that asserted by the election, or to the maintenance of a defense founded on such inconsistent
right.'
[Headnote 3]
This is not a proper case for application of that rule, however. The alternative remedies did
not coexist under the true state of facts. Facts which would support the existence of one
remedy would preclude the existence of another. Plaintiff simply proceeded under a mistake
of fact in assuming a meeting of the minds of the parties to have occurred upon a
partnership contract.
of fact in assuming a meeting of the minds of the parties to have occurred upon a partnership
contract. O'Meara v. McDermott, supra; Marsh v. Masterson, 101 N.Y. 401, 5 N.E. 59. See
Restatement of the Law, Judgments, sec. 65, subsection (2), comment (g), P. 276.
Accordingly we hold this contention to be without merit.
[Headnote 4]
Appellant next attacks the jury's award of damages as excessive and without evidentiary
support. Damages were allowed in the sum of $20,000 for services, $8,000 for use of trucks,
and $3,000 for use of a private automobile.
In this connection appellant contends that there is no proof to establish the value of the
services performed by respondent; that respondent's opinion as to value has no evidentiary
weight whatsoever since it is based upon a formula not shown to have any customary or
reasonable relation to the services rendered.
Respondent's testimony as to the reasonable value of his services was to the effect that a
conservative figure would be $21,000, being 10 percent of cattle sales totaling $210,000.
Upon cross examination it was established that since he had been proceeding upon the
assumption that he was a partner in the enterprise respondent had kept no record of the
specific services performed or of the time spent in their performance.
There is, however, no question but that extensive services of value had been performed,
nor as to the nature of those services. They covered a period of three full months. They
related, first, to sales of cattle, including an auction sale. In this respect they went far beyond
the services ordinarily performed by a cattle auctioneer (whose commission, respondent
testified, customarily is 3 percent of sale proceeds where the sale is conducted upon the
auction lot or 5 percent where conducted upon the cattle's home ranch). They included a
multitude of details relating to the preparation for sale, gathering, sorting and classifying of
cattle from all parts of the extensive desert range which comprised the Butler Ranch,
Ranch, construction of corrals, preparation of scales, feeding of those who attended the sale,
all of which required the employment of 15 persons in addition to the services of respondent
himself. The resulting auction realized $78,000. The services related also to the successful
purchase of the Butler Ranch by the appellant, through appraisal of cattle and ranch property
and advice as to bid and as to methods by which, through cattle sales, the terms of that bid
might be met.
Appellant's objection to the jury award in this connection goes to the computation of value
on a percentage basis of cattle sales rather than upon proof of specific acts performed and of
time spent and of customary charges for such specified services.
There can be no doubt that the services of respondent were not only extensive in time and
scope but that they made demands upon the special professional skills possessed by him. In
computing the value of professional services it is not uncommon to appraise the benefit to the
respondent of the services performed, nor to take into consideration in such appraisal the
value of the subject matter with which the services were connected or upon which they were
performed. In giving consideration to such matters it is not uncommon to establish
compensation on a commission basis rather than on a time-spent basis. Respondent's method
of computing value simply invited the jury to take such matters into consideration. Whether
such considerations were unreasonable under the circumstances was for the jury to decide.
We cannot say as a matter of law that such considerations were improper and thus rendered
the award of damages without evidentiary support.
[Headnote 5]
Appellant contends that in any event it was improper for respondent to include in the
$210,000 of cattle sales the sum of $132,000 recovered by a private sale of cattle. This sale
had been discussed between respondent and the purchaser the night of the auction sale and
was consummated two days later between appellant and the purchaser.
purchaser. The purchaser had been present at the auction sale and respondent had shown him
the cattle the following day. Appellant contends that respondent's authority to sell cattle was
limited to the conducting of an auction sale; that he was without authority to act as agent or
broker in any private sale and that any services rendered by him in that connection must
therefore be held to have been gratuitous.
From respondent's testimony, however, it would appear that he felt himself, as a partner,
not only authorized but under a duty to seek out cattle purchasers and to aid in the
consummation of sales. The record amply supports implied authority. The evidence clearly
shows that services were performed by him in the bringing together of purchaser and vendor
at an agreed price. It was, then, entirely proper for the jury to include this transaction in its
determination of the extent and value of services performed.
[Headnote 6]
Appellant contends that the proof as to value of trucks and private automobile was
uncertain, conjectural and speculative and wholly without evidentiary weight. It is true that no
records were kept and that the testimony of respondent in this respect was based upon
recollection and estimate and, to this extent, was uncertain. The uncertainty, however, was
not as to existence or cause of benefit but as to measure or extent and was not so great as to
destroy all evidentiary weight as a matter of law. Brown v. Lindsay, 68 Nev. 196, 228 P.2d
262.
Respondent testified to the use of three trucks all equipped for transportation of cattle: a
Diamond-T truck and trailer used for a minimum of 42 days, a Diamond-T truck and
semitrailer used for a minimum of 42 days, a GMC truck used for a minimum of 21 days,
together with drivers, full time, for all trucks. He placed a value on the service of trucks and
drivers as follows: for the Diamond-T units, $100 a day; for the GMC truck, $50 a day. His
estimate of value thus totaled $9,450. The award was $8,000.
As to the automobile respondent testified that approximately 42,000 miles had been driven
during the time he was working on the Butler deal; to the best of his recollection all but about
8,000 miles had related to the Butler deal. About one-half of the driving had been over
unimproved roads. He placed a value of 10 cents a mile upon the car use. His estimate of
value, then, was $3,400. The award was $3,000.
[Headnote 7]
In both respects we feel there is sufficient evidence to support the jury's award.
Appellant further assigns as error action of the trial court in striking certain testimony of
one of appellant's witnesses, in sustaining an objection to a question on redirect examination
relating to the subject of the stricken testimony and in refusing to permit counsel to examine
further on that subject.
[Headnote 8]
The purpose of the testimony in question was to establish the reasonable value of services
rendered in conducting an auction sale of cattle. The witness had qualified himself as having
had 39 years of experience in selling and trading cattle. It was apparent, however, that a
goodly part of his experience in auctioning cattle had been in relation to sales where his
compensation did not depend entirely upon commissions. Under these circumstances
objections had been sustained to his testimony as to commissions he had received, upon the
ground that evidence of specific commissions constituted no proof of reasonable value of
services rendered. He was then asked his opinion as to the reasonable value of services
rendered by an auctioneer in selling $78,000 worth of cattle. His answer was that the value
varied, depending upon the type of sale. From one to three percent, that is as much as I ever
got.
Upon cross examination in response to three separate questions the witness answered and
reiterated that this expressed estimate of reasonable value was based solely upon his own
personal experience
upon his own personal experience and was not based upon his knowledge as to what other
auctioneers may have charged or received. Upon motion of counsel for respondent his
testimony as to reasonable value was stricken. In our view this action was proper. In the light
of his testimony as a whole and from the language of the answer itself, it would appear that
his expression of opinion was based upon what he had himself received under his own special
contractual arrangements and the circumstances surrounding them. Such evidence is not
competent to establish reasonable value. Nelson v. Reinhart, 47 Nev. 246, 219 P. 554, 221 P.
521.
Upon redirect examination counsel for appellant reverted to the stricken testimony. The
following question was asked, When you put a value on your service is that value based
upon what other people in the same field, giving the same service, place on it? Upon
objection, counsel for appellant argued in support of the question that the witness should have
an opportunity to explain the real background upon which he based his opinion. The court
sustained the objection recognizing that the witness had so clearly committed himself as to
the basis for his stated opinion that he could not, in propriety, modify his answer nor could
counsel properly invite such modification. Further, the court advised counsel that he could
not proceed further on that line of inquiry.
[Headnotes 9, 10]
The trial judge, during the course of the trial, is charged with a superintending duty to
regulate and control the course of proceedings in an orderly manner, enforcing obedience to
his rulings. Extensive discretionary authority is given to the judge in this regard. See 53
Am.Jur. 49, Trial, sec. 34. In our view the action of the trial judge in this respect clearly fell
within the field of his discretionary authority.
[Headnote 11]
Appellant contends that this action improperly denied him the right of redirect
examination for the purpose of explaining discrediting testimony elicited on cross
examination.
explaining discrediting testimony elicited on cross examination. The question on redirect,
however, did not invite explanation but outright repudiation of testimony already given upon
cross examination. If counsel had wished to qualify the witness to express an opinion upon
reasonable value properly founded, he might have attempted such qualification. This he did
not do. He reverted to the opinion already expressed and sought to have the witness change
his testimony as to the basis for that expression of opinion.
Other assignments of error are made, all of which we have examined and feel to be
without merit.
____________
72 Nev. 41, 41 (1956) Pagni v. City of Sparks
PETE S. PAGNI and MILLICENT PAGNI, Husband and Wife, Appellants, v. CITY OF
SPARKS, NEVADA, a Municipal Corporation, and LELAND MASINI, A. RIPARBELLI
and ELIO MARTINI, Respondents.
No. 3870
February 6, 1956. 293 P.2d 421.
Appeal from order of Second Judicial District Court, Washoe County; A. J. Maestretti,
Judge, vacating verdict for plaintiffs and granting new trial.
Negligence action against municipality and its contract garbage haulers in operation of
trash and garbage dump in such a manner as to constitute alleged nuisance with resulting
damage to plaintiff's property. Following jury's verdict for plaintiff, the trial court granted
defendant's motion for new trial, and plaintiffs appealed. The Supreme Court, Badt, J., held
that trial court's granting new trial was not abuse of discretion.
Affirmed.
C. Lester Zahniser, of Sparks, and Martin J. Scanlan, of Reno, for Appellants.
Leslie B. Gray, of Reno, John G. Spann, of Sparks, and John Gabrielli, City Attorney of
Sparks, for Respondents.
On appeal from order granting a new trial upon grounds of insufficiency of evidence that verdict was
against law, question was whether trial court abused its discretion in granting new trial, and not whether
appellate court would have reversed jury's verdict as without evidentiary support, and appellate court must
respect not jury's verdict but trial court's judgment unless that judgment was clearly wrong.
2. New Trial.
Under rules of civil procedure, trial court, in granting defendant's motion for new trial based on several
different grounds, was not required to state in writing the grounds upon which it granted the new trial.
N.C.L.1929, sec. 8877; N.C.L.1931-1941 Supp., sec. 9385.53; Rules of Civil Procedure, Rule 59.
3. New Trial.
In negligence action against municipality and its contract garbage haulers in operation of trash and
garbage dump in such a manner as to constitute alleged nuisance with resulting damage to plaintiffs'
property, where jury returned verdict for plaintiffs awarding them $1 general damages and $1,152 special
damages, trial court's granting new trial on ground that evidence clearly preponderated against the verdict
or that verdict would result in injustice was not abuse of discretion.
OPINION
The main question raised by this appeal is whether the trial court abused its discretion in
vacating the jury's verdict for the plaintiffs and granting the defendants a new trial.
[Headnote 1]
This is the third appeal recently reaching this court in which damages have been sought by
reason of alleged negligence of the municipal defendant and its contract garbage haulers in
the operation of its trash and garbage dump, it being asserted in each case that the dump was
so operated as to constitute a nuisance with resulting damage to the respective plaintiffs.
was so operated as to constitute a nuisance with resulting damage to the respective plaintiffs.
In City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140, a jury returned a verdict of $1,000
damages for the plaintiffs, the defendant city appealed and we affirmed the judgment entered
upon the verdict. In Jezowski (formerly Mrs. Fields, the plaintiff in the earlier action) v. City
of Reno, 71 Nev. 233, 286 P.2d 257, the jury returned a verdict for the defendant, the
plaintiffs appealed and we again affirmed. In the present case the jury returned a verdict of $1
general damage and $1,152 special damages, and the trial court granted defendants' motion
for new trial. This appeal is from that order. The function of this court on such an appeal is
well recognized in this state. In Arrowhead Freight Lines v. White, 71 Nev. 257, 287 P.2d
718, a jury's verdict in favor of defendants was vacated, a new trial ordered upon the grounds
of insufficiency of the evidence etc. and the plaintiff appealed. We said there: The law of
Nevada regarding such an appeal is well digested in Nevada Rock & Sand Company v. Grich,
59 Nev. 345, 365, 93 P.2d, 513, 521. The question is not whether we, as an appellate court,
on the record before us would have reversed the jury's verdict as without evidentiary support.
The question, rather, is whether upon that record the trial court can be said to have abused its
discretion in granting new trial. As stated in Treadway v. Wilder, 9 Nev. 67, 70, It must be
borne in mind that the nisi prius courts in reviewing the verdict of juries are not subject to the
rules that govern appellate courts. They may weigh the evidence and if they think injustice
has been done grant a new trial where appellate courts should not or could not interfere.' We
must, then, respect not the jury's verdict but the trial court's judgment (that the evidence
clearly preponderates against the verdict or that it would result in injustice) unless that
judgment is clearly wrong. This in turn was followed in the recent case of Aeroville
Corporation v. Lincoln County Power District, 71 Nev. 320, 290 P.2d 970.
[Headnote 2]
It is true that the grounds for defendants' motion for new trial were stated to be the jury's
manifest disregard of the instructions, excessive damages, insufficiency of the evidence, that
the verdict and judgment were against law and errors in law occurring at the trial, and it is
likewise true that the trial court simply entered its order granting a new trial without stating
any of the reasons for such order. Appellants assert that under the requirements of sec. 8877,
N.C.L. 1929, it was error for the court to fail to state in writing the grounds upon which it
granted the new trial. In the amended section 9385.53, N.C.L. 1931-41 Supp., the mandatory
language was changed to permissive language with reference to stating the reasons for the
order. The matter in any event is now governed by Rule 59, N.R.C.P., which omits the
requirement entirely.
[Headnote 3]
We turn then to the evidence to ascertain whether the new trial order finds support under
the rules enunciated above. Did the trial court abuse its discretion in granting a new trial?
Was the judgment of the trial court in granting a new trial clearly wrongin holding (as we
must presume it did) that the evidence clearly preponderated against the verdict, or that it
would result in injustice?
Our conclusion is that the order finds ample support.
Plaintiffs and their witnesses testified to the constant escape of papers, cartons, debris,
trash and tin cans from both the dump used by the city's contract haulers and the dump to
which private individuals were permitted to haul. These are referred to, respectively, in the
evidence and marked upon the map as the existing city dump area and the public dumping
area. Plaintiffs introduced in evidence a great number of photographs showing cartons,
papers, tin cans etc. upon their land, against their fences and in their irrigating ditches, and
there was evidence that some of this material was seen blowing in the direction of plaintiffs'
land from the dumps.
blowing in the direction of plaintiffs' land from the dumps. Plaintiffs claim that this would
not occur if the refuse were promptly burned. They also asserted that hogs were permitted to
run about the dump and that they trespassed upon plaintiffs' lands and that plaintiffs were
compelled on occasions to drive them out. While they asserted that smoke and odors were
blown upon their lands from the dump, they did not claim this as an item of damage. The
main special damages claimed by plaintiffs were the necessary expenditure of about an hour a
day over a long period of time which made up, on the basis of $1 per hour, the special
damages found by the Jury in the sum of $1,152.
Defendants' witnesses
1
included the present mayor of Sparks (who had held office as
mayor and as councilman for over 20 years), a former mayor (who had served 10 years as
mayor, eight years as councilman and four years as chairman of the local school board), a
former mayor (who had served as such for four years), the city engineer (who had served as
such officer for some 13 years), the city building and sanitary inspector, the caterpillar and
bulldozer operator who operated his equipment at the dumps, neighbors of the plaintiffs, and
the present franchise haulers and their predecessors. Virtually all of these witnesses were
long-time residents of Sparks, and their qualifications were for the most part either admitted
or duly established. On the motion for new trial the learned trial judge was entitled to record
credence to their testimony. From such testimony and from testimony elicited from the
plaintiffs' witnesses on cross examination and from other evidence in the case, the trial judge
was entitled to picture the situation as follows:
The city's dump ground area, acquired from the United States in 1904 comprised a 40-acre
tract about three and a half miles east of the city. Plaintiffs' lands, adjoining this tract on the
north and east, were acquired in 1943 and later.
____________________

1
Some of these witnesses were first called by plaintiffs as adverse witnesses, or as witnesses on their behalf.
adjoining this tract on the north and east, were acquired in 1943 and later. Other parcels
adjacent to the plaintiffs' land and to the city's land are owned by other persons. The city first
established and used a dump ground in the northerly half of its 40-acre tract, but this was on
high ground and subject to the action of the winds, which normally were south and west
winds. The subject of the operation of the dump ground, in the rapid growth of the city, was a
continuing problem confronting every mayor and board of councilmen. It was eventually met
by providing for the issuance of an exclusive franchise, for a consideration, for the hauling of
trash and garbage from the premises of the inhabitants of the city, for which the licensees
collected varying fees directly from such inhabitants. The personal defendants, respondents
herein, are the current licensees. The present and past licensees had numerous conferences
with the city councilmen (as did likewise the plaintiff Pagni) looking toward improvement of
the operation. Some old trash piles about on the easterly line of the city's parcel and
encroaching on plaintiffs' land
2
were bulldozed west and upon the city's parcel, and a
dividing line fence constructed. The old dump ground was abandoned and two exclusive
dumping areas established, a public dumping area some 600 feet long in the easterly half of
the area, and the city dump area in the westerly half, some 800 feet long. New roads were
built to these areas and times and places for dumping established and policed. Fences were
built and gates installed. Dumping was restricted to daylight hours. Signs were posted. The
gates were closed and locked in periods of very high winds. The barbed-wire fences served to
keep plaintiffs' cattle from straying upon the dump, and the mesh-wire fences to a large extent
served to prevent papers and trash from blowing away. The new dump location, the
consequent dumping into a canyon, the establishment of ramps for the dumping, all reduced
to a minimum the blowing away of papers and trash.
____________________

2
These were for the most part ancient dumps including old tree stumps. Plaintiffs claimed no damage on this
item.
to a minimum the blowing away of papers and trash. The present licensees purchased a new
load packer truck, which was leak proof and prevented the escape of trash or garbage, for
$12,500. As against the suggestion for adoption of a trench and fill method, it appeared that
the entire terrain was very rocky, with very little top soil, and the adoption of such method
was virtually impossible. Installation of an incinerator would have cost about a million
dollars, beyond the city's financial ability to meet, and would not necessarily be a complete
solution. The present operation included employment by the licensees of an operator with a
bulldozer, which kept the ramps level and pushed the refuse into the canyon. Not only was
the refuse burned dailyeach truckload was burned immediately after it was dumped.
3
However, unlawful dumping continued to be made along the roads, and papers and refuse
would blow from these unlawful dumps toward plaintiffs' property. The city made constant
efforts to stop such unlawful dumping. As against some 45 photographs introduced by
plaintiffs showing papers and refuse upon their lands, in their ditches and against their fences,
defendants: (1) introduced some 16 photographs showing the premises and approaches to be
quite clean; (2) pointed out that most of the refuse shown in plaintiffs' photographs comprised
(a) tumbleweeds, which plaintiffs conceded blew in from everywhere, (b) garbage cans and
other tin cans which were never seen to fly through the air on the wind, and (c) papers and
cartons in small quantities; and (3) introduced the testimony of two witnesses that the
licensees had offered to plaintiff Pagni to remove any existing papers and trash from his
premises, build a woven-wire fence along the south line of one of his parcels,
____________________

1
Pagni had testified on direct examination both to the annoyance he suffered from smoke from the dump and
also that the trash was not burned daily. On cross examination he was asked: Do you complain about the
burning, or do you want them to burn, which do you prefer? He answered, I am not complaining about the
burning. I'm complaining about the trash * * * If they burned it right away, it wouldn't have come over.
line of one of his parcels, and thus afford an accurate check of any future escaping refuse; that
Pagni rejected this offer because he would have the burden of maintaining the fence and
because he did not want people on his land. The state health department found the dump
operation to be satisfactory and had never made any recommendation for any change in
method.
Much of the foregoing testimony was denied by the plaintiffs. In addition to that
testimony, however, there was much before the court which we do not find in the record. This
grows out of the fact that, despite the constant admonitions of the learned trial judge, many
matters were called to the attention of the court and the jury which are entirely unintelligible
to this court in reading the record. The situation differs only in degree from one in which
there is no record to support a claim that the evidence does not sustain a verdict or a finding
of the court. The record is replete on page after page with testimony of a witness who testifies
that, This ditch is over here, or The high ground is over there, or The road comes up
from this direction, or This is the field that I examined, or I didn't go into that field over
there. All this was with reference to a map used to illustrate and explain the testimony of
most of the witnesses in the case, and which may have presented to the trial judge additional
reasons in support of his new trial order.
4

We think that it is clearly demonstrated that there was no abuse of discretion in the order
appealed from, and it is affirmed with costs.
____________________

4
We cannot refrain from quoting one answer: There is a hill here. This is on the easterly-northeasterly slope
of that hill, and this here, of course, is also behind the hill, but across the ravine * * * . It is behind this hill here.
Now, whether this hill here could afford the protection when it's that far away or not * * *.
____________
72 Nev. 49, 49 (1956) Wilkins v. Capurro
EDWIN A. WILKINS, Appellant, v. JOHN CAPURRO,
Respondent.
No. 3848
February 14, 1956. 293 P.2d 427.
Department No. 2.
Action was brought in quantum meruit for value of services rendered by plaintiff in
connection with the remodeling of premises of defendant. From a judgment for plaintiff,
defendant appealed. The Supreme Court, Eather, J., held that evidence sustained
determination of Second judicial district court that plaintiff's services were performed, that
they were performed at the instance and request of defendant and with mutual expectation of
payment, and that they were reasonably worth $675.
Affirmed.
Leslie B. Gray, of Reno, for Appellant.
Frank R. Petersen, of Reno, for Respondent.
1. Work and Labor.
In action in quantum meruit for value of services rendered by plaintiff in connection with remodeling of
premises of defendant, evidence sustained determination of trial court that plaintiff's services were
performed, that they were performed at the instance and request of defendant and with mutual expectation
of payment, and that they were reasonably worth $675.
In action in quantum meruit for value of services rendered by plaintiff in connection with remodeling of
premises of defendant, wherein defendant succeeded in creating grave doubt as to the extent or value of
plaintiff's services insofar as plaintiff attempted to specify them, resolution of such doubt remained the
function of the trial court as trier of facts.
OPINION
This is an action in quantum meruit for the value of services rendered in connection with
the remodeling of premises located at 616 University Avenue, Reno, Nevada.
services rendered in connection with the remodeling of premises located at 616 University
Avenue, Reno, Nevada. Judgment of the court below, sitting without a jury, was in favor of
the plaintiff; and the defendant has taken this appeal. The defendant claims that the services
were gratuitously rendered and that there is no proof of their value. The question, then, is
whether there is support in the record for the trial court's findings.
For clarity, the appellant will be referred to as defendant, and the respondent as plaintiff.
Plaintiff was the owner of the premises involved. He agreed to sell them to defendant for
$15,000 and further agreed to lend defendant the sum of $12,000 for the purpose of
remodeling, taking a note and trust deed in the sum of $27,000. Defendant, a building
contractor, was to do the remodeling himself. The transaction was completed in May, 1952.
Work of remodeling went forward until the first of August. During this period of time
plaintiff was present daily, interesting himself in the work being done, assisting where he
could, with no idea of receiving compensation for his services.
Around the first of August defendant ceased work on the premises and transferred his
activities to the completion of work which his University Avenue job had interrupted.
According to plaintiff's testimony he continued to visit the premises daily and, being familiar
with the necessary work remaining to be done and desiring to hasten its completion, he
proceeded voluntarily to work on the job. On August 4 the defendant called at the premises
and a conversation was had which the plaintiff described as follows: When he come up I
said, I started to work here.' * * * and he says * * * that work has got to be done * * * you
just as well have it whether it amounts to two or three hundred or more dollars. I just as well
pay you as anybody else.'
[Headnote 1]
From that date on plaintiff kept track of the number of hours he worked. He testified to
450 hours spent; that, in his opinion, the services were worth $1.50 an hour,
hour, comparable to what the defendant had paid for common labor on the job. In our view
the testimony of the plaintiff provides support for the determination of the trial court that
plaintiff's services were performed, that they were performed at the instance and request of
defendant and with mutual expectation of payment, and were reasonably worth the amount of
$675.
Defendant flatly denies that any such conversation was had. He asserts that plaintiff's
position is contrary to the terms of the original agreement between the parties to the effect
that plaintiff was not to be employed by defendant and that whatever services he rendered
were to be gratuitous. The facts, however, do not preclude the possibility of a new
understanding relative to the use of plaintiff's services. In our view defendant's contentions go
merely to the weight and credibility of the plaintiff's testimony.
[Headnote 2]
Defendant asserts that proof is wanting as to the nature of the services performed by
plaintiff and as to their value or benefit. It must be conceded upon a reading of the record that
defendant has succeeded in creating grave doubt as to the extent or value of the services
performed insofar as plaintiff attempted to specify them. The resolution of doubt, however,
remained the function of the court as trier of facts. In our view the record does not compel a
rejection of the trial court's determination in this respect.
In the case of McNee v. McNee, 49 Nev. 90, at 99, 237 P. 534, at 537, it is stated: A trial
court may base its judgment upon the testimony of one witness against the testimony of a
number of witnesses, if it is of sufficient weight to force a conviction of truth to a reasonable
mind, and the appellate court is without power to enforce a contrary opinion by reversing the
judgment. Accord: Friendly v. Larsen, 62 Nev. 135, at 136, 144 P.2d 747.
____________
72 Nev. 52, 52 (1956) Hanley v. Sheet Metal Workers
THOMAS B. HANLEY, Appellant, v. SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, Respondent.
No. 3903
February 21, 1956. 293 P.2d 544.
Department No. 1.
Action by expelled union member against international union to compel his reinstatement.
The trial court quashed service of alternative writ, and plaintiff appealed. The Supreme Court,
Merrill, C. J., held that where officials of local union were elected by members of local,
rather than by international union, and were not authorized to act on behalf of international
union, and dispute did not arise out of business transacted by or through local union, service
on officer of local was not service on international union in respect to expelled union
member's action to compel reinstatement, despite statute relating to service on associations.
Judgment affirmed.
Zenoff, Magleby & Manzonie, of Las Vegas; Carl W. Berueffy, and Albert M. Dreyer, of
Washington, D.C., for Appellant.
Rudiak, Horsey & Lionel, of Las Vegas; Mulholland, Robie & Hickey, of Toledo, Ohio;
and Gilbert, Nissen & Irvin, of Los Angeles, California, for Respondent.
1. Associations.
Service of process upon associations should be such as to give reasonable assurance that notice of the
institution of proceedings will promptly be conveyed to those having the responsibility of defending.
N.C.L.1929, sec. 8564.
2. Labor Relations.
Where officials of local union were elected by members of local, rather than by international union, and
were not authorized to act on behalf of international union, and dispute did not arise out of business
transacted by or through local union, service on officer of local was not service on international union in
respect to expelled union member's action to compel reinstatement, despite statute relating to service on
associations. N.C.L.1929, sec. 8564.
OPINION
This is an appeal from an order quashing service of an alternative writ of mandate. The
question involved is whether an international labor union, being an unincorporated
association, can be served with process by making service upon an official or member of one
of its locals within the state. We conclude that it cannot and that the order appealed from
must be affirmed.
Respondent is an unincorporated international labor union with its principal office located
in Washington, D. C. It operates in the State of Nevada through three locals situated in the
cities of Las Vegas, Reno and Sparks. Appellant was a member of the Las Vegas local. By
letter from the general president of the respondent union, appellant was required to stand trial
for expulsion from membership on certain charges. Trial was had before a trial board of the
union in Los Angeles, California, resulting in a decision of expulsion. Appellant appealed
from this decision to the general convention of respondent union held in Montreal, Canada,
which convention affirmed the decision of the trial board.
In the court below appellant sought a writ of mandate against the international union to
compel his reinstatement to membership upon the ground that his expulsion was in violation
of the provisions of the union's constitution relating to notice and hearing and, therefore, was
void. The alternative writ was ordered by the lower court, was issued, and thereafter was
served upon the president of the Las Vegas local. Upon motion of the international union,
service was quashed upon the ground that service upon an officer of the local did not
constitute service upon the international organization.
Authority is in accord with this ruling. Singleton v. Order of Railway Conductors of
America (1935, Dist. Ct. S.D., Ill., N.D.), 9 Fed.Supp. 417; Christian v. International
Association of Machinists (1925, Dist.Ct., Ky.), 7 F.2d 481; Dean v. International
Longshoremen's Ass'n
Ass'n (1936, Dist.Ct., W.D., La.), 17 Fed.Supp. 748; Kelley v. Brotherhood of Railroad
Trainmen (1950 Dist.Ct. W.D., Mo., W.D.), 90 Fed.Supp. 925; Daily Review Corp. v.
International Typographical Union (1949 Dist.Ct., N.Y.), 9 F.R.D. 295; Isbrandtsen Co. Inc.
v. National Marine Engineers' Ben. Ass'n (1949 Dist.Ct., N.Y.), 9 F.R.D. 541, 544;
McFarland v. Brotherhood of Locomotive Firemen and Enginemen (1939, La.), 190 So. 573,
193 La. 337; Hurley v. Brotherhood of Railroad Trainmen (1946, Neb.), 25 N.W.2d 29, 147
Neb. 781; Amon v. Moreschi (1947, N.Y.), 296 N.Y. 395, 73 N.E.2d 716; Western Union
Telegraph Co., Petition of (1954, N.Y.), 206 Misc. 561, 133 N.Y.S.2d 371; United
Brotherhood of Carpenters and Joiners of America v. McMurtrey (1937, Okla.), 179 Okla.
575, 66 P.2d 1051; International Brotherhood of Boilermakers v. Wood (1934, Va.), 162 Va.
517, 175 S.E. 45. As expressed in the Isbrandtsen Company case [9 F.R.D. 544], The
national and local are autonomous entities and therefore service of process on the one is not
valid service on the other. In this connection it may be noted that the officials of the local are
elected by the members of the local and in no respect are selected by the international or
authorized by it to act in its behalf. In Farnsworth & Chambers Co. v. Sheet Metal Workers
International Association (U.S.D.C. N.Mex.) 125 F. Supp. 830, following the Isbrandtsen
Company case, this general rule was specifically applied to the respondent union.
In opposition to this well-established rule appellant relies on International Union of
Operating Engineers v. Jones Construction Co., Ky., 240 S.W.2d 49, 54, holding that service
on the agents of the local was sufficient to bring International before the court as an
organization. In this case, however, a Kentucky statute provided that as to associations
service might be had upon the agent or manager in charge of the local agency in all actions
growing out of or connected with the business of that office or agency. Davidson v. Doherty
& Co., 214 Iowa 739,
Iowa 739, 241 N.W. 700, 91 A.L.R. 1308, is likewise distinguishable. Nevada has no such
statute. It may also be noted that in the case at bar the cause of action against the union did
not arise out of business transacted by it by or through its Nevada locals. The general rule
would, therefore, seem clearly to apply.
Appellant contends, however, that Nevada has prescribed a method of service upon
associations. This is through sec. 8564, N.C.L. 1929, which reads as follows: When two or
more persons, associated in any business, transact such business under a common name,
whether it comprise the names of such persons or not, the associates may be sued by such
common name, the summons in such cases being served on one or more of the associates; and
the judgment in the action shall bind the joint property of all the associates, in the same
manner as if all had been made defendants, and had been sued upon their joint liability.
Since service in this case was made upon a member of the international association, it is
contended that the association has properly been served under this section. In opposition it is
contended by respondent that this section was never intended to apply to associations of the
sort here involved or to causes of action unrelated to business transactions of the local
associates.
[Headnote 1]
In our view the statute is not clear in its application to such matters and a question of
statutory construction is properly presented. Upon this question we agree with the contentions
of respondent: the statute cannot be construed to apply to national associations of the sort
here involved, at least so far as service of process is concerned. So to construe the statute
would be to give to it an effect so absurdly unrealistic as to be of doubtful due process.
Service of process upon associations should be such as to give reasonable assurance that
notice of the institution of proceedings will promptly be conveyed to those having the
responsibility of defending.
In Christian v. International Association of Machinists, supra, [7 F.2d 481, 482], it is
stated, [Unions] cannot be brought before the court, save by service of process on a direct
representative, whose relation thereto is such that it is reasonable to infer that the service of
such process on him will be brought home to the union which he represents. They are entities,
distinct and separate from their membership and subordinates, as much so as a corporation is
an entity distinct from its stockholders or subordinate organizations.
In Dean v. International Longshoremen's Ass'n, 17 F. Supp. 748, 750 (quoted and followed
in McFarland v. Brotherhood of Locomotive Firemen and Enginemen, supra), it is stated, As
was pointed out by the Supreme Court in United Mine Workers v. Coronado Coal Co., 259
U.S. 344, 345, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762, these international labor unions are
entities, separate and distinct from the members who compose them and from the local
organizations. It is true that case did not involve a question of citation or jurisdiction, but, if it
be true, as must be conceded, that they have rights as juridical personages distinct from the
members or locals who compose them, then it necessarily follows that they cannot be brought
into court by service merely upon a member, but must be cited through some one having
authority either expressed or necessarily implied from his relation to the association or the
duties which he discharges.
As to national associations, particularly those having the characteristics of labor unions,
the section in question wholly fails to provide any assurance that notice of proceedings will
be brought to the attention of those in authority. Service might effectively be made under that
section upon an obscure resident member having no official capacity or authority to bind the
association in any respect and no obligation (and, perhaps, no inclination) to divulge the fact
of service to those in authority.
[Headnote 2]
We cannot, then, credit the legislature with intent to bind national or nonresident
associations of the sort here involved by the method of service of process provided by sec.
8564, N.C.L. It follows that service of process upon the international union has not been
accomplished by making personal service upon the member of the association served.
Affirmed with costs.
____________
72 Nev. 57, 57 (1956) County Commissioners v. Devine
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WASHOE, State
of Nevada, and R. A. PETERSON, ERNEST KLEPPE and RAYMOND CAPURRO,
Members of Said Board, Appellants, v. CLIFFORD DEVINE, Respondent.
No. 3905
February 24, 1956. 294 P.2d 366.
Appeal from judgment of Second Judicial District Court, Washoe County; John F. Sexton,
Presiding Judge.
Mandamus proceeding. The lower court ordered writ of mandate to issue. The Supreme
Court, Badt, J., held that permanent appointment of bailiff for third department of district
court was violative of statute permitting only one bailiff for all divisions of district court.
Reversed.
Harvey Dickerson, Attorney General, Carson City, and A. D. Jensen, District Attorney of
Reno, for Appellants.
John E. Gabrielli and John S. Belford, of Reno, for Respondent.
1. Courts.
Under statutory provisions relating to appointment of bailiffs and duties of sheriffs, it is a practice in
judicial districts having more than one judge for the sheriff to furnish deputies who serve as bailiffs as they
may be needed, in addition to the one bailiff provided by statute. N.C.L.1929, secs. 2149, 8466; sec. 8462,
as amended St.1953, p. 443; sec. 8465, as amended St.1954-1955, p. 190.
2. Courts.
The court or judge has inherent power to secure an attendant for his court, at public expense, if regular,
orderly, statutory methods fail, or if officials charged by Legislature arbitrarily or capriciously fail or
neglect to provide necessary attendant, whereby efficient administration of justice is destroyed or seriously
impaired, or in the case of an emergency. N.C.L.1929, sec. 8466; sec. 8462, as amended St.1953, p. 443.3.
Courts.
Record disclosed no conditions justifying exercise of inherent power of judge to secure attendant for his
court.
4. Constitutional Law; Courts.
Statute permitting but one bailiff for three departments of court is not an unconstitutional encroachment
by the Legislature upon the judiciary. N.C.L.1929, sec. 8462, as amended St.1953, p.443.
5. Courts.
Record failed to show that appointment of bailiff for third department of district court was calculated to
meet special emergency conditions but disclosed that appointment was permanent so as to be in violation
of statute permitting but one bailiff for three departments. N.C.L.1929, sec. 8462, as amended St.1953, p.
443.
OPINION
This appeal raises the question of the authority of the presiding judge of department 3 of
the district court of the second judicial district to appoint a bailiff for his department under
the reasons assigned by him for the asserted failure of regular statutory processes and
established methods.
The lower court ordered a writ of mandate to issue compelling the board of county
commissioners to recognize the validity of the appointment of respondent, by Hon. Gordon
W. Rice, judge of department 3 of said district court, as bailiff for his department. The board
has appealed from that order and judgment.
[Headnote 1]
(1) That provision for a bailiff is made by statute can hardly be questioned.
In all judicial districts where there is more than one judge, there shall be but one bailiff to
attend all divisions of the court, said bailiff to be appointed by the joint action of the judges;
provided, if the judges cannot agree upon the appointment of the same within thirty days after
a vacancy occurs in the office of bailiff, then the appointment shall be made by a majority of
the board of county commissioners. Sec. 8462 N.C.L.1929 as amended, Stats. 1953, 443.
Compensation of bailiffs in judicial districts wherein there is more than one judge shall
be not more than $400 per month. Compensation of bailiffs in judicial districts wherein there
is only one judge shall be not more than $350 per month. The salaries of bailiffs shall be paid
by the county wherein he is appointed, the same as the salaries of other county officers are
paid. Sec. 8465, N.C.L.1929, as amended, Stats. 1954-1955, 190.
The provisions of this act shall not be construed * * * as relieving the sheriff of any duty
required of him by law to maintain order in the said court-room. Sec. 8466, N.C.L.1929.
It shall be the duty of the sheriff to attend in person, or by deputy, at all sessions of the
district court in his county, and to obey all the lawful orders and directions of the same; to
execute the process, writs, or warrants of courts of justice, judicial officers and coroners,
when delivered to him for that purpose. Sec. 2149, N.C.L. 1929.
1
Under these provisions it
is the practice in judicial districts having more than one judge, for the sheriff to furnish
deputies who serve as bailiffs as they may be needed, in addition to the one bailiff provided
by the statute.
____________________

1
It is of interest, and of some importance, to note that the last quoted statute is section 6 of An Act relating
to sheriffs, Stats. 1861, 103, and in effect (subject to certain amendments) since that year, and that the other
three sections quoted are sections of An Act to provide for the appointment of bailiffs for the district courts * *
*, Stats. 1909, 36, and in effect (subject to certain amendments) since that year.
[Headnote 2]
(2) That the court or the judge has inherent power to secure an attendant for his court, at
public expense, if the regular, orderly, statutory methods fail, or if the officials charged by the
legislature arbitrarily or capriciously fail or neglect to provide the necessary attendant,
whereby the efficient administration of justice is destroyed or seriously impaired, or in the
case of an emergency, is not questioned by appellants. Merrill v. Phelps, 52 Ariz. 526, 84
P.2d 74; State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392; Leahey v. Farrell, 362 Pa.
52, 66 A.2d 577.
[Headnote 3]
(3) Respondent, however, in exactly twelve lines of his brief seeks to show the existence
of those conditions justifying the exercise of such inherent power. For this he refers to Judge
Rice's affidavit attached to the original petition for the writ of mandate. The pertinent
statements are: That on one occasion during the time affiant has presided as judge there have
been three jury trials, one in each of the departments * * * and all proceeding at the same
time, and with only one official bailiff in attendance; that on that occasion your affiant had
three different deputy sheriffs acting as bailiff in his court, none of whom had any apparent
prior experience as bailiff. That on sundry other occasions your affiant has been required to
preside without the services of a bailiff.
These conditions do not even remotely indicate the destruction or serious impairment of
the administration of justice in department 3 of the second judicial district court. The duty of
each bailiff as defined by sec. 8463, N.C.L.1929, is simply to preserve order in the court, or
the division to which he may be appointed; to attend upon the jury; to open and close court,
and to perform such other duties as may be required of him by the judge of the court. It is
quite reasonably suggested by appellant that sheriffs and deputy sheriffs, as trained and
experienced police officers,
experienced police officers, are put to far more exacting and rigorous tests as such than when
acting as bailiffs and could be instructed by the judge as to their duties as bailiffs with a
minimum of time and effort.
[Headnote 4]
(4) Respondent contends that the statutory provision for but one bailiff for three
departments of court is an unconstitutional encroachment by the legislature upon the
judiciary, first, because it prevents the district judges from exercising their inherent power to
appoint their own necessary court attendants, and, secondly, because it is so completely
inadequate as in effect to be no provision at all. We do not find either of these arguments
convincing. The procedure illustrated by the quoted statutes, not unreasonably limiting or
hampering the court in the performance of its duties, remains essentially a function of the
legislature. Merrill v. Phelps, 52 Ariz. 526, 84 P.2d 74. We find nothing in State v. Davis, 26
Nev. 373, 68 P. 689; State ex rel. Watson v. Merialdo, 70 Nev. 322, 268 P.2d 922, or Nicholl
v. Koster, 157 Cal. 416, 108 P. 302, upon which respondent relies, under their facts and when
properly read, contrary to this view. The mere fact that on occasions the legislative provisions
may require judicial supplementing does not compel the conclusion that the statutory
provisions are inadequate or unworkable under normal conditions.
[Headnote 5]
(5) Respondent contends also that in any event Judge Rice's order appointing a bailiff, and
the writ itself if made permanent, simply supplement the statutory procedure by supplying a
bailiff at times or under circumstances when and where the statutory processes have failed.
The record does not justify such conclusion. The attempted appointment does not
supplement, but opposes and nullifies the legislative provisions. The appointment of
respondent was a permanent one, not merely temporary, and not calculated simply to meet
special emergency conditions.
Reversed with costs, and remanded with directions to vacate the order and writ of
mandate.
____________
72 Nev. 62, 62 (1956) Hawthorne v. Walton
LAWRENCE HAWTHORNE, Appellant, v. J. M. WALTON and MABEL K. WALTON,
Respondents.
No. 3882
March 2, 1956. 294 P.2d 364.
Department No. 1.
Action for recovery of usurious interest paid by borrower. The lower court granted the
lender's motion to dismiss the complaint on the ground that it failed to state a claim upon
which relief could be granted. The borrower appealed. The Supreme Court, Eather, J., held
that the voluntary payment of usurious interest is a waiver of the benefit conferred on the
borrower by the statute and the borrower who voluntarily pays the usurious interest has no
right to recover it.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondents.
1. Usury.
Usury was not illegal at common law. N.C.L.1929, sec. 4323.
2. Usury.
Defense of usury is a personal one, and may be waived, and the party who voluntarily pays usurious
interest will not be permitted to recover it in absence of statutory provision authorizing such recovery.
N.C.L.1929, sec. 4323.
3. Usury.
Where borrower voluntarily paid usurious interest, he waived benefit conferred upon him by statute and
had no right to recover the usurious interest paid. N.C.L.1929, sec. 4323.
OPINION
This is an appeal by the plaintiff from an order granting a motion of defendant to dismiss
the complaint of plaintiff on the grounds that the complaint failed to state a claim upon which
relief could be granted.
The complaint alleges the facts which we will now set forth. The complaint consisted of
two causes of action, in the first of which the plaintiff (appellant) alleged that on the eighth
day of March, 1954, the defendants (respondents) at the request of plaintiff, loaned and
advanced to plaintiff the sum of $45,000, upon a certain promissory note of that date for the
sum of $50,000, signed by plaintiff, with interest at the rate of 10 percent per annum; and
further, that as a condition of making said note, the defendants did take and receive upon said
note from the plaintiff a bonus of $5,000, thereby exceeding the established and allowable
rate of interest under the laws of Nevada. The plaintiff further alleged that on or about the
first day of September, 1954, he paid the amount of the principal and interest due on said note
of $50,000.
In the second cause of action plaintiff alleged that on or about the fifteenth day of June,
1954, the defendants loaned the plaintiff the sum of $18,000 upon a promissory note of that
date, for the sum of $20,000, signed by the plaintiff and providing for interest at the rate of 10
percent per annum; that as a condition of making said note the defendants did take and
receive upon said note a bonus of $2,000, thereby exceeding the established and allowable
rate of interest permitted under the laws of the State of Nevada. Plaintiff further alleged that
on or about the first day of September, 1954, he paid the amount of the principal and interest
due on said note of $20,000. The plaintiff asks judgment for the sum of $5,000 upon the first
cause of action, and for the sum of $2,000 upon the second cause of action, claiming that each
was in excess of the legal amount of interest allowable under the laws of Nevada.
The defendants in due course filed their motion to dismiss the complaint on the ground
that the complaint failed to state a claim upon which any relief could be granted. The trial
court granted the motion to dismiss and entered judgment accordingly. Plaintiff seeks review
of the judgment and insists that error was committed by the trial court in granting the motion
to dismiss the complaint.
Question To Be Determined
Whether, under sec. 4323, N.C.L.1929, usurious interest voluntarily paid is recoverable by
the person paying it, upon the ground that, notwithstanding the voluntary nature of the
payment, usurious interest is to be regarded in law as paid under compulsion, or whether
under such section payment is to be regarded as a waiver of the benefit provided by statute in
favor of the borrowers.
[Headnote 1]
In determining the question presented on this appeal and recognizing that there are
conflicting decisions from other jurisdictions, we are confronted with the task of examining
the statutes of various states and must also remind ourselves that usury was not illegal at
common law; therefore, a statute which prohibits the exaction of usury is the source from
whence stems the power of the court in dealing with such matters.
Section 4323, N.C.L.1929, provides as follows: Parties may agree, for the payment of any
rate of interest on money due, or to become due, on any contract, not exceeding, however, the
rate of twelve percent (12%) per annum. Any judgment rendered on any such contract shall
conform thereto, and shall bear the interest agreed upon by the parties, and which shall be
specified in the judgment; provided, only the amount of the original claim or demand shall
draw interest after judgment. Any agreement for a greater rate of interest than herein
specified, shall be null and void and of no effect as to such excessive rate of interest. As
amended, Stats. 1913, 31.
Plaintiff contends that under this statute usurious interest, even though voluntarily paid, is
to be regarded as paid under compulsion and recoverable by the person paying. The
authorities cited in support of this contention all deal with statutes which expressly provide a
right to the recovery back of interest paid. Cf. Richeson v. Wood, 158 Va. 269, 163 S.E. 339,
82 A.L.R. 1189.
In the absence of such statutory provision, the clear weight of authority is to the effect that
usurious interest voluntarily paid is not recoverable. Harralson v. Barrett, 99 Cal. 607, 34 P.
342; London and San Francisco Bank v. Bandmann, 120 Cal. 220, 52 P. 583; Matthews v.
Ormerd, 140 Cal. 578, 74 P. 136; Nicholls v. Skeel, 12 Iowa 300; Crisman v. Corbin, 169
Ore. 332 128 P.2d 959; Vermont Loan & Trust Co. v. Bramel, 111 Ore. 50, 224 P. 1085;
Gladwin State Bank v. Dow, 212 Mich. 521, 180 N.W. 601, 13 A.L.R. 1233; Gardner v.
Matteson, 38 Mich. 200; Wright v. First National Bank of Monroe, 297 Mich. 315, 297 N.W.
505; Chase & Baker Co. v. National Trust and Credit Co., D. C., 215 Fed.Rep. 633; Cook v.
Wolf, 296 Ill. 27, 129 N.E. 556; Payne v. Newcomb, 100 Illinois 611, 39 Am.Rep. 69; Bell v.
Barnes, 238 Ala. 248, 190 So. 273; Fessenden v. Taft, 65 N.H. 39, 17 A. 713; see 55 Am.Jur.
402.
[Headnotes 2,3]
As stated by the Michigan Supreme Court in Gardner v. Matteson, supra, The defense of
usury is a personal one, and may be waived, and so may the party voluntarily pay usurious
interest, and where he does so he will not be permitted to recover it back. The same court in
Gladwin State Bank v. Dow, supra, stated, The statute is available as a shield but not as a
sword.
Under sec. 4323, N.C.L., no provision is made for the recovery back of usurious interest
voluntarily paid. Such payment, then, is to be regarded as a waiver of the benefit conferred
upon the borrower by the statute.
____________
72 Nev. 66, 66 (1956) Smith v. Epperson
ALBERT SMITH, Appellant v. SADIE L. EPPERSON, as Special Administratrix of AMOS
EPPERSON, Deceased; MAX EPPERSON and S.F. FALKENBURG, Respondents.
No. 3898
March 8, 1956. 294 P.2d 362.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Proceeding on a defendant's motion to correct conclusions of law and judgment, nunc pro
tunc. The lower court granted the relief sought, and plaintiff appealed. The Supreme Court,
Eather, J., held that where it was clear from findings of fact, in action brought to quiet title to
certain real property and to recover possession of same, that moving defendant's sole interest
in the matter had been as purchaser from another defendant's decedent's estate of certain
improvements placed upon property in question by decedent, which court found that moving
defendant had right to remove, and decedent was only person found to have committed
injury, trial court would not be put in error for entering order amending judgment, nunc pro
tunc, to provide that money judgment not run against movant.
Affirmed.
Wright & Eardley; Williams and Mann, of Elko, for Appellant.
F. Grant Sawyer and Joseph O. McDaniel, of Elko, for Respondents.
1. Judgment.
Mere fact that judgment is not supported by findings does not constitute such error of judgment mere
clerical error, subject to nunc pro tunc correction. Rules of Civil Procedure, Rule 60(a, b).
2. Judgment.
Error in failure to make written conclusions of law and judgment truly speak determination which has
been made is clerical rather than judicial error, and subject to nunc pro tunc correction. Rules of Civil
Procedure, Rule 60(a, b).
3. Judgment.
Object and purpose of nunc pro tunc order is to make record speak truth concerning acts already done.
Rules of Civil Procedure, Rule 60(a, b).
4. Judgment.
Where it was clear from findings of fact, in action brought to quiet title to certain real property and to
recover possession of same, that moving defendant's sole interest in the matter had been as purchaser from
another defendant's decedent's estate of certain improvements placed upon property in question by
decedent, which court found that moving defendant had right to remove, and decedent was only person
found to have committed injury, trial court would not be put in error for entering order amending judgment,
nunc pro tunc, to provide that money judgment not run against movant. Rules of Civil Procedure, Rule
60(a, b).
OPINION
This is an appeal by plaintiff from an order amending a judgment nunc pro tunc.
Parties will be referred to as they appeared in the trial court.
Plaintiff contends that the amendment was a correction of a judicial error, and therefore
the court did not have power to so amend the judgment. Defendants assert that it was a
correction of a clerical error, and therefore the court had power to make the amendment.
Plaintiff brought the action against the defendants to quiet title to certain real property and
to recover possession of the same from the defendants.
During the pendency of the action defendant Amos Epperson died, and by stipulation
Sadie L. Epperson, as administratrix of his estate, was substituted in his place and stead.
The defendant, S. F. Falkenburg, appeared and disclaimed any interest in any of the real
property, save and except through Sadie L. Epperson, he claims the right to remove certain
improvements constructed upon this real property.
At the conclusion of the case judgment was rendered in favor of plaintiff against all three
defendants establishing his title and awarding him nominal damages in the sum of $105.
in favor of plaintiff against all three defendants establishing his title and awarding him
nominal damages in the sum of $105. Judgment was satisfied. Eleven months later defendant
Falkenburg, finding that judgment prejudicial to his position in another suit, moved, under
Rule 60(a), N.R.C.P., to correct the conclusions of law and judgment, nunc pro tunc, to
provide that the money judgment run against defendant Sadie Epperson alone. The motion
was granted. From that order of correction and corrected judgment this appeal is taken.
Question To Be Determined
[Headnotes 1-4]
Based on the findings of fact, was there a clerical mistake or error arising from oversight
or omission in the drafting of the conclusions of law and the judgment that could be corrected
under the provisions of Rule 60(a), N.R.C.P.?
The question is answered in the affirmative.
Plaintiff contends that the trial court's action did not amount to correction of clerical error;
that, on the contrary, it amounted to correction of judicial error and was in effect
modification; that it had lost power to modify after the passage of six months under Rule
60(b), N.R.C.P.
The findings of fact demonstrate that the court had determined that the trespasses on the basis
of which damages were allowed were those which had been committed by Amos Epperson,
now deceased, whose estate Sadie Epperson represents in this action. Falkenburg's sole
interest in the matter was as a purchaser from the Epperson estate of certain improvements
placed upon the property in question by the decedent, which improvements the court below
determined Falkenburg had the right to remove.
This is emphasized by the court's award to him of the right of ingress and egress for the
purpose of such removal. A finding that Falkenburg was without fault is implicit.
It is clear that the trial court's action was taken for the purpose of conforming conclusions
of law and judgment to the findings. The court's order of correction states in part: The court
* * * after carefully defining the rights and obligations of the parties by way of Findings of
Fact, reached a conclusion therefrom, afterwards honored in the judgment, which cannot by
any theory be justified. The court is persuaded that the discrepancy occurred as a result of an
oversight.
Plaintiff contends, however, that the determination of Falkenburg's liability in the light of
the findings was a judicial determination; that while the conclusions of law and judgment in
this respect may be erroneous and unjustified, this constitutes judicial error and not mere
clerical error; that the fact that such error was the result of an oversight rather than a
considered determination does not relieve it of its judicial character.
Certainly it must be conceded that the mere fact that the judgment is not supported by the
findings does not constitute such error of judgment mere clerical error. It must be conceded
that in the usual case of conflict between findings and judgment plaintiff's contention would
indeed have merit.
In the case at bar, however, it is clear from a reading of the findings that a determination
that Falkenburg was free from liability had actually been made. Amos Epperson was the only
person found to have committed injury. The tortious acts and the responsible person had
expressly been specified and the limit of monetary responsibility of that person had been
fixed. It requires no further formal expression to establish to our complete satisfaction that a
determination of liability had thus been made.
The error which resulted from oversight was not, then, an error of judgment, a faulty
determination as a matter of law; the error was in failure to make the written conclusions of
law and judgment truly speak the determination which had been made. It was, then, clerical
rather than judicial error.
The view expressed here finds accord generally in the case of Talbot v. Mack, 41 Nev.
245, at 255, 169 P. 25, 27 wherein it is stated: Viewing the matter as we do, it becomes
unnecessary for us to determine the question as to the right of appellant to an order nunc pro
tunc. Suffice it to say in this respect, however, that we find it to be a rule supported by
eminent authority that the object and purpose of a nunc pro tunc order is to make a record
speak the truth concerning acts already done. Accord: Finley v. Finley, 65 Nev. 113 at 118,
189 P.2d 334, 196 P.2d 766.
____________
72 Nev. 70, 70 (1956) McKernon v. Black
GEORGE E. McKERNON, Appellant, v. EDWARD P. BLACK, an Incompetent Person, by
FIRST NATIONAL BANK OF NEVADA, Reno, Nevada, a Corporation, His Guardian,
Respondent.
No. 3808
March 19, 1956. 294 P.2d 913.
Appeal from the Second Judicial District Court, Washoe County; Taylor H. Wines, Judge
Presiding Department No. 3.
Action by incompetent, through his guardian, to recover on promissory note. Defendant
counterclaimed for sums due for professional services. From a judgment for plaintiff,
defendant appealed. The Supreme Court, Eather, J., held that evidence supported finding that
no contract existed between parties, and that reasonable value of services was as found.
Affirmed.
George E. McKernon, in propria persona, of Reno, Guild, Busey & Guild, of Reno, for
Appellant.
Cantwell & Loomis, of Reno, for Respondent.
Attorney and Client.
In proceeding on attorney's counterclaim for fees, evidence supported finding that no contract existed
between parties, and that reasonable value of services was as found.
OPINION
This is an action brought by Black, an incompetent person, through his guardian, the First
National Bank of Nevada, to recover the sum of $4,250 upon a promissory note executed by
McKernon, plus interest. McKernon counterclaimed for sums due him for professional
services rendered to Black as his attorney from 1942 to 1950 terminating upon the declaration
of Black's incompetency and appointment of his guardian. In the trial court the action
developed into an accounting upon the counterclaim. The trial court, sitting without a jury,
found that McKernon had rendered services of a value of $23,750; that Black had paid on
account the sum of $22,000, leaving a balance due McKernon in the sum of $1,750 which,
offset against the note left Black entitled to judgment upon the principal of the note in the
sum of $2,500, plus interest amounting to $882.46, and attorneys' fee in the sum of $400.
Judgment in favor of Black was rendered in the sum of $3,782.46. McKernon has taken this
appeal.
Essentially the question is one of fact; whether the evidence supports the finding of the
trial court. McKernon attacks the findings in two respects. (1) The court found that no
contract existed between the parties and that McKernon's right to recovery was dependent
upon the reasonable value of services performed. McKernon contends that a contract existed
between himself and Black whereby Black was to pay him $2,500 a year retainer from 1942
to 1950, plus additional fees for extraordinary services. (2) McKernon disputes the court's
findings as to the reasonable value of his services and as to payments on account creditable to
Black.
McKernon emphasizes that his testimony upon these matters was undisputed. The trial
court recognized this but expressly refused to give full acceptance to such testimony. In ruling
upon McKernon's motion for new trial, it stated: It would be gainsaying the record to assert
that any witness directly contradicted the defendant's testimony on that subject. That he was
impeached by proof of inconsistent statements, and that his testimony seemed to the Court
inherently improbable in view of the defendant's professional status, cannot be argued, at
least not at this time. * * * The court prefers to rely on the rule, that the mere assertion of any
witness does not of itself need to be believed, even though it be unimpeached in any manner;
because to require such belief would give quantitative and impersonal measure to testimony.'
In support of the position adopted by the trial court it may be noted that McKernon's
testimony as to the existence of a contract and as to credits could not categorically be denied.
The only witnesses were Black and his wife. By the time of the trial Black had been adjudged
incompetent and his wife was dead. It may be noted as well that McKernon's testimony in
these respects was subject to inconsistencies which cannot be said to have been fully and
persuasively explained. As to the value of his services, his testimony was lacking in detail.
Considering the nature of the relationship between McKernon and Black and the fact of
Black's incompetency, known to McKernon well in advance of the court adjudication, the
trial court might well have imposed a greater burden of precise proof upon McKernon than
otherwise might have been held acceptable. Upon a full reading of the record we are
convinced that the court's findings are supported and that no error has been shown.
____________
72 Nev. 73, 73 (1956) Arends v. Sweetwater Mining Co.
EDWARD ARENDS, Appellant, v. SWEETWATER
MINING CO., a Corporation, Respondent.
No. 3724
March 19, 1956. 294 P.2d 914.
Department No. 2.
Action by stockholder against corporation to recover advances. From a judgment for
defendant, plaintiff appealed. The Supreme Court, Merrill, C. J., held that where
plaintiff-stockholder made advances to corporation under agreement that advances should be
repaid only when corporation had sufficient profits, and there was no agreement that
corporate property should not be leased or sold without obtaining sufficient down payment to
repay stockholders' advances, that property was leased without obtaining a down payment did
not waive condition that profits be made before the repayment of advances.
Judgment affirmed.
(Rehearing denied May 25, 1956.)
Walter Rowson, of Reno, for Appellant.
John P. Thatcher, of Reno, for Respondent.
1. Corporations.
In action against corporation to recover advances made by plaintiff-stockholder, evidence supported
finding that there had been no agreement between plaintiff and corporation that corporate properties should
not be leased or sold without obtaining down payment sufficient to repay advances.
2. Corporations.
Where plaintiff-stockholder made advances to corporation under agreement that advances should be
repaid only when corporation had sufficient profits, and there was no agreement that corporate property
should not be leased or sold without obtaining sufficient down payment to repay stockholders' advances,
that property was leased without obtaining a down payment did not waive condition that profits be made
before repayment of advances.
OPINION
By the Court, Merrill, C. J.:.
This is an action brought by appellant as plaintiff to recover from defendant corporation
the value of services rendered and money furnished on its behalf. Defendant denies corporate
liability under any circumstances. This issue we do not reach and for the purposes of this
opinion may assume that under proper circumstances the properties represented by defendant
corporation would become liable. In any event, however, corporate liability was not to arise
until the occurring of certain eventualities which have not in fact occurred. The question upon
this appeal, as we view it, is whether such conditions to liability have been waived by
defendant or whether they continue effective and thus preclude recovery in this action. The
trial court sitting without a jury held for defendant corporation, and plaintiff has taken this
appeal from judgment. Essentially the question is one of fact: whether the record will support
a determination by the trial court (not expressed but implicit in its findings and judgment),
that under the circumstances the defendant corporation may not be held to have waived the
conditions upon which its liability would arise.
The case is founded in contract. If defendant corporation is to be held liable it must be on
the basis of an implied contract to make compensation for benefits received. The terms of
such contract must in turn be based on provisions of express agreements between certain
interested persons individually, which prescribed the rights and duties of those persons in
relation to the properties standing in the name of defendant corporation.
Plaintiff Arends, the owner of a controlling interest in certain mining claims, in 1941
entered into an agreement with C. E. Leitzell whereby Leitzell was to furnish operating
capital in exchange for a half interest in the mining property.
mining property. It was agreed that title to the mining claims should be held in the name of
the defendant corporation. The agreed initial sums were paid by Leitzell. Thereafter, as
further capital was required for operations and for the acquisition of additional properties,
additional sums were furnished until Leitzell eventually had paid over $40,000, substantially
more than had been originally contemplated.
In 1942 Leitzell notified Arends that he had already paid more than had been anticipated
and should be considered to have paid in full for his one-half interest in the properties. From
thenceforth, he insisted, the interested parties should share in the expenses of the operation in
proportion to their interests. Thereafter advances were made by both Leitzell and Arends. The
greater portion of Arends' contributions were by way of labor through the furnishing of
services as superintendent of operations, caretaker, and in the performance of assessment
work.
In 1946 Leitzell died and certain heirs succeeded to his interests, including his son, Paul
Leitzell. Thereafter the Leitzell heirs recognized their obligation to contribute one-half of the
expense of the operations. Certain payments were made by them in this respect, but at the
time suit was brought a balance remained owing upon this account. A tender of payment was
made by them, but was rejected by Arends as insufficient to discharge their obligation in full.
It is apparent, therefore, that we are faced with two different obligations: (1) the obligation
of the interested parties to contribute their proportionate share to the expenses of operation;
(2) an obligation by or on behalf of the corporation to repay such contributions.
As to the former it was clearly not a corporate liability. The agreement was between and
binding upon the interested parties. The corporation's position was that of beneficiary rather
than obligor.
As to the latter it is clear from the testimony of all concerned,
concerned, including Arends himself, that they were all operating with a common
understanding that all contributions to operating expense were to be regarded as advances to
be repaid before division of profits but that payment back of such advances was not to be
made unless and until the mine became productive either through profitable operation, sale,
or lease.
In 1950 the defendant corporation took the action which precipitated this suit. Over
Arends' objection his employment was terminated and the mine was leased to one Eric
Flodine by action of the defendant's board of directors. The lease proved wholly
unproductive. No money was ever received by the defendant from it. The generally
recognized condition precedent to any obligation to repay advances has not been met.
Arends contends, however, that it was further agreed that the property would not be sold or
leased unless a substantial down payment was received, sufficient to pay off all advances
made on behalf of the corporation. He contends that the corporate action in executing the
Flodine lease was a violation of this agreement in that it called for no down payment. He
contends that this breach of contract relieved him from further need to forbear from
demanding payment for his advances; that it amounted to a waiver on the part of the
defendant of any condition precedent to liability since by its own conduct it had made it
impossible for such condition to be met.
Whether breach of such an agreement would constitute a waiver, we need not decide. As
to this contention of Arends our task is simply one of ascertaining whether the record can be
said to establish beyond question that such an agreement existed and thus compel a factual
determination of such existence. In our view it cannot.
There is no proof of an express corporate agreement with reference to down payment,
although there is proof that in respect to a past effort to sell or lease, corporate authority to
negotiate had been limited to an agreement providing for a $25,000 down payment.
Bearing upon a possible implied contract by the corporation there was testimony as to an
oral agreement or understanding between the interested parties. Arends testified that his
agreement with C. E. Leitzell, at the time that the arrangement for sharing of expenses was
agreed upon, was to the effect that advances were to come back to us from the sale of the
property and there was to be enough cash to take care of it. Further, that it was always our
understanding that when that property was disposed of, either by lease or by sale, that that
money had to be advanced to take care of these advances that were made by these individuals
who had carried this thing on for the corporation. These vague and indefinite statements are
the only testimony which has been directed to our attention in support of the existence of the
agreement for which Arends contends.
The only other testimony to which our attention has been directed bearing upon such an
agreement is that of Paul Leitzell. He testified that all concerned were anxious to be able to
sell or lease the property with a substantial down payment; that Arends had always insisted
upon it; that the others had certainly had no objection. Then, in response to a question
whether he had not consistently agreed with Arends that any lease or sale of the property
should be conditioned upon a substantial down payment he answered, If we could get it,
yes.
There is, then, evidence that as between the stockholders the extent of any understanding
relative to a down payment was that such payment should be secured if it could be got. There
is no proof that at the time of the execution of the Flodine lease a down payment could have
been secured. The evidence as to the history of the property would indicate quite the contrary.
Reason supports Leitzell's construction of the understanding. Should the mine prove to be
wholly unproductive under Arends' development program (as did ultimately prove to be the
case), a down payment might well be difficult to secure. Under Arends' contention any lease
of the property for the purpose of securing the benefit of further development
benefit of further development (or, indeed, of any constructive operation of the properties),
might well become impossible. A determination that a corporation has impliedly bound itself
to such a proposition beyond control of its board of directors might well be held to require
more definite proof than is to be found in this record.
[Headnotes 1, 2]
In any event it cannot be denied that the record supports a rejection of the proposition that
an agreement existed, binding upon the corporation, that, regardless of the circumstances, its
properties would never be sold or leased save upon receipt of a substantial down payment.
Under the common understanding between the interested parties, then, any corporate liability
to repay advances (if such obligation existed at all), must await the receipt of such sums from
operation, sale or lease of the properties.
Arends has asserted error of the trial court in many specific respects and, in support of his
contention that the judgment is contrary to the evidence, has dealt with many propositions of
law not discussed in this opinion. Upon these matters we have either accepted Arends'
position for the purpose of our decision or feel that a determination would be immaterial in
the light of our opinion. In each instance the factual record makes it unnecessary to deal with
issues of law.
____________
72 Nev. 79, 79 (1956) Nevada Real Estate Commission v. Ressel
NEVADA REAL ESTATE COMMISSION, Appellant, v. O.O. RESSEL, Also Known as
RAY RESSEL, An Individual, and RAY RESSEL, Doing Business as WESTERN LANDS,
Respondents.
No. 3908
March 20, 1956. 294 P.2d 1115.
Appeal from judgment of Eighth Judicial District Court, Clark County; Ryland G. Taylor,
Judge, Department No. 3, denying injunction.
Action to enjoin threatened continued violation of Real Estate Brokers' Act. From a
judgment for the brokers, the Commission appealed. The Supreme Court, Badt, J., held that
where statute required that real estate brokers obtain license and provided that Real Estate
Commission may bring action to enjoin broker from continuing violation, it was not
necessary to prove irreparable damages.
Reversed.
Milton W. Keefer, of Las Vegas, and Sidney W. Robinson, of Reno, for Appellant.
1. Injunction.
In action to enjoin threatened continued violation of statute which required that real estate brokers obtain
license and provided that Real Estate Commission may bring action to enjoin broker from continuing
violation, it was not necessary to prove irreparable damages. N.C.L.1943-1949 Supp., secs.
6396.01-6396.35.
2. Injunction.
In exercise of police powers, state may authorize courts of equity in proper cases to prohibit by injunction
violation of provisions of an act of legislature, though no property right is involved.
3. Injunction.
In action by commission to enjoin continued violation of Real Estate Brokers' Act which provided that
commission may bring such action under enumerated conditions and that order or judgment may be entered
awarding injunction, where defendants were brought squarely within those conditions, there was no area
for exercise of discretion by court. N.C.L. 1943-1949 Supp., sec. 6396.31.
4. Injunction.
Under statute providing that in action brought by commission to enjoin violation of Real Estate Brokers'
Act, an order may be entered awarding such preliminary or final injunction as may be proper, the quoted
word means shall. N.C.L. 1943-1949 Supp., sec. 6396.31.
OPINION
[Headnote 1]
The sole question presented by this appeal is: Is proof of irreparable damage essential to
the granting of an injunction against continued violation of the provisions of the Nevada Real
Estate Brokers Act? Secs. 6396.01-6396.35, N.C.L.1943-1949 Supp. We answer in the
negative.
The act in question defines real estate brokers and requires that all persons operating as
such obtain a license from the Nevada State Real Estate Commission. Appellant's complaint
brought respondents squarely within the provisions of the act, alleged respondents' threatened
continued violation, and sought an injunction under sec. 6396.31, reading as follows:
Whenever the [commission] believes from evidence satisfactory to it, that any person has
violated or is about to violate any of the provisions of this act, or any order, license, permit,
decision, demand, or requirement, or any part or provision thereof, it may bring an action in
the name of the [commission] in the district court of the State of Nevada in and for the county
wherein such person resides, against such person to enjoin such person from continuing such
violation or engaging therein or doing any act or acts in furtherance thereof. In this action an
order or judgment may be entered awarding such preliminary or final injunction as may be
proper, but no preliminary injunction or temporary restraining order shall be granted without
at least five days' notice to the opposite party.
At the trial respondents admitted that all of the allegations of fact in the complaint were
true. The court agreed that proof was unnecessary but denied injunctive relief on the ground
that there was no proof of irreparable injury, an element deemed by the learned trial judge to
be essential to this equitable remedy. Appellant concedes the propriety of such conclusion in
the absence of statute, but contends that where the statute provides for injunctive relief, no
invasion of a property right need be shown, as the statute effects an enlargement of the equity
powers of the court. Justification of this contention is found in the opinion of this court in
Itcaina v. Marble, 56 Nev. 420, 55 P.2d 625, 630, and in the cases therein cited.
By the 1931 grazing act, the legislature has determined that its purpose can be best
accomplished by securing in their use those graziers who have established themselves as
such, by the continuous, open, notorious, peaceable and public use of said lands seasonally
for a period of five years or longer immediately prior to the approval of the act. It has likewise
determined that the remedy of injunction is one of the means best adapted to enforce the
purposes of the act.
[Headnote 2]
We are of the opinion that it had power to confer upon courts of equity jurisdiction of a
case arising under the statute notwithstanding no property right could be invaded by one
violating the provisions of the act. It is well settled that the state, in the exercise of its police
powers, may authorize courts of equity in proper cases to prohibit by injunction the violation
of the provisions of an act of the legislature, though no property right is involved. Board of
Medical Examiners of State of Utah v. Freenor, 47 Utah 430, 154 P. 941, Ann. Cas. 1917E,
1156; Board of Medical Examiners v. Blair, 57 Utah 516, 196 P. 221; Ex Parte Allison, 48
Tex. Cr. R. 634, 90 S. W. 492, [3 L.R.A., N.S. 622], 13 Ann. Cas. 684; McMillan v.
Livestock Board, 119 Miss. 500,
So. 169; Rochester v. Gutberlett, 211 N. Y. 309, 105 N. E. 548, L.R.A. 1915D, 209, Ann.
Cas. 1915C, 483; Clopton v. State (Tex. Civ. App.), 105 S. W. 994; Campbell v. Peacock
(Tex. Civ. App.), 176 S. W. 774.
This is indeed supported by the overwhelming weight of authority. See United States v.
Beatty, 88 Fed. S. 646, 651. The legislature has declared, as a public policy of Nevada, that
the best public interests are served by requiring that real estate brokers be licensed and that
attempts so to act without the required license may be enjoined.
[Headnotes 3, 4]
It is next contended that the language of the act as above quoted is permissive only and
leaves the matter of the granting or denying of an injunction to the discretion of the district
court. This contention grows out of the language providing that in an action brought by the
commission to enjoin violation of the act, an order or judgment may be entered awarding
such preliminary or final injunction as may be proper. The contention is without merit. The
state's policy having been declared, the sole conditions for the issuance of the injunction are
those fixed by the act itself. United States v. Beatty, supra. And respondents were brought
squarely within those conditions. There was no area for the exercise of discretion. In such
cases the use of may to mean shall has been recognized in cases too numerous to
mention, especially where used to define the duties of public officers, and where the public
interests are concerned. Smith v. City Commission of City of Grand Rapids, 281 Mich. 235,
274 N.W. 776.
The judgment is reversed with costs and the case remanded with direction to enter
judgment for the plaintiff, appellant herein, granting the injunction prayed for against
respondents.
____________
72 Nev. 83, 83 (1956) Ex Parte Colton
In the Matter of the Application of RODNEY H. COLTON for a Writ of Habeas Corpus,
Petitioner, v. W. E. LEYPOLDT, Sheriff of Clark County, Nevada, Respondent.
No. 3895
March 21, 1956. 295 P.2d 383.
Appeal from order of Eighth Judicial District Court, Clark County; A. S. Henderson,
Judge, Department No. 2, denying discharge under habeas corpus.
Habeas corpus proceeding to determine whether petitioner, who had been indicted by
grand jury on charge that he had, as county commissioner, agreed to accept money from
another to exert his influence with proper officials to end that other would receive gaming
and liquor license, had been committed without reasonable or probable cause. The trial court
denied petitioner discharge under writ of habeas corpus, and petitioner appealed. The
Supreme Court, Merrill, C. J., held that evidence was sufficient to establish that grand jury
had before it evidence tending to show that an offense had been committed and that there was
cause to believe that defendant had committed it.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Petitioner.
Harvey Dickerson, Attorney General, and Geo. Dickerson, District Attorney, Clark
County, for Respondent.
1. Habeas Corpus.
Persons who are held under an indictment are entitled to release under habeas corpus if it clearly appears
that they have committed no act which law declares criminal or if there is no evidence which would
indicate commission of a crime on which they might be tried, but the inquiry had under habeas corpus may
not be extended to determine sufficiency of evidence before grand jury to warrant a finding of an
indictment. N.C.L.1929, sec. 11394.
2. Habeas Corpus.
In determining, in habeas corpus proceeding, whether person indicted by grand jury has been committed
without reasonable or probable cause, court may properly limit scope of examination
examination and will look into the evidence far enough to see whether there is any tending to show that an
offense was committed and that there was cause to believe that accused had committed it. N.C.L.1929, sec.
11394.
3. Habeas Corpus.
In habeas corpus proceeding to determine whether petitioner, who was indicted by grand jury upon the
charge that he had, as county commissioner, agreed to accept money from another to exert his influence
with proper officials to end that such other would receive a gaming and liquor license, evidence was
sufficient to establish that grand jury had before it evidence tending to show that an offense had been
committed and that there was cause to believe that defendant had committed it. N.C.L.1929, secs. 9996,
11394.
4. Habeas Corpus.
Where there was evidence sufficient to establish that grand jury had before it evidence tending to show
that an offense had been committed and that there was cause to believe that defendant had committed it,
and further examination, in habeas corpus proceeding by defendant to establish that he had been committed
without reasonable or probable cause, would have gone simply to extent and sufficiency of the evidence
before grand jury, refusal to permit further examination in the habeas corpus proceeding was not improper
since that further examination would be immaterial to the inquiry under habeas corpus. N.C.L.1929, sec.
11394.
5. Habeas Corpus.
Where, in habeas corpus proceeding to determine whether petitioner, who had been indicted by grand
jury, had been committed without reasonable or probable cause, evidence offered to establish that witness
who testified before grand jury was an accomplice tended to show that he was but a feigned accomplice
whose testimony need not be corroborated, such evidence was immaterial to the inquiry under habeas
corpus, and therefore rejection thereof was not error. N.C.L. 1929, sec. 11394.
OPINION
This is an appeal from order of the trial court denying petitioner a discharge under writ of
habeas corpus.
Petitioner, a member of the Board of County Commissioners of Clark County, was
indicted by the grand jury of that county under sec. 9996, N.C.L.1929. Specifically the charge
was that petitioner as county commissioner had agreed to accept $10,000 from one Louis
Tabet
Tabet to exert his influence with the proper officials to the end that Tabet receive gaming and
liquor licenses; that a scintillator or Geiger counter was accepted by petitioner as applying
upon the agreed gratuity. Contending that he had been committed without reasonable or
probable cause petitioner brought proceedings in habeas corpus seeking his discharge
pursuant to sec. 11394, N.C.L.1929. Upon hearing petitioner sought to establish that the
grand jury had acted without sufficient proof of guilt. To establish this contention those who
had testified before the grand jury were called as witnesses. The trial court denied discharge
and this appeal has been taken.
Upon this appeal petitioner's first contention is that the trial court erred in limiting his
examination of Ed Reid, the only witness before the grand jury who had testified directly to
the acts alleged to constitute the crime.
Asked to relate his testimony as given before the grand jury, the witness testified, Well, I
told the Grand Jury of visits Mr. Colton made to the El Rancho and meetings he had there
with Louis Tabet. I believe there were several of them. I know there were several of them. I
told the Grand Jury how I heard Mr. Colton agree to receive from Mr. Tabet the sum of
$10,000. The scintillator given to Mr. Colton by Mr. Tabet was to be on the side of his cut.
That was the expression used. I told of the presentation of the scintillator, at which point Mr.
Colton said, You have made a County Commissioner very happy.' And that is about the gist
of it.
The following exchange then took place between the witness and counsel:
Q. That is all of your testimony before the Grand Jury pertaining to Rodney Colton? A.
That is a summary of the testimony.
Q. You mean that is your own synopsis? A. That is my own synopsis, yes.
Q. We are interested in knowing what your testimony was, what you told them? A. I don't
recall the exact testimony.
exact testimony. Perhaps if I had a copy of my testimony I could look at it and indicate just
exactly what I did say. I can't recall at the moment.
Counsel then attempted to examine the witness as to the details of his testimony but was
prevented from doing so by the court.
[Headnote 1]
Nevada has long recognized that persons held under an indictment are entitled to release
under habeas corpus when it clearly appears that they have committed no act which the law
declares criminal or where there is no evidence which would indicate the commission of a
crime on which they might be tried. Eureka Bank cases, 35 Nev. 80, 126 P. 655, 129 P. 308;
Ex Parte Stearns, 68 Nev. 155, 227 P.2d 971.
Clearly, however, there are limits to the inquiry which may be had under habeas corpus.
As stated in Ex Parte Stearns, supra [68 Nev. 155, 157; 227 P.2d 971, 972], it may not be
extended to determine the sufficiency of the evidence before the grand jury to warrant a
finding of an indictment.
The United States Supreme Court in Costello v. The United States 76 S.Ct. 406, recently
refused to approve procedure which would permit a review of evidence upon which a grand
jury had acted. There the court stated, If indictments were to be held open to challenge on
the ground that there was inadequate or incompetent evidence before the grand jury, the
resulting delay would be great indeed. The result of such a rule would be that before trial on
the merits a defendant could always insist on a kind of preliminary trial to determine the
competency and adequacy of the evidence before the grand jury.
[Headnote 2]
The court entertaining the writ may, then, properly limit the scope of the examination. As
stated by this court in the Eureka Bank cases, 35 Nev. 80, 113, 126 P. 655, 665, [T]he court
issuing the writ will look into the evidence far enough to see whether there is any tending
to show that an offense was committed and that there was cause to believe that the
accused committed it.
evidence far enough to see whether there is any tending to show that an offense was
committed and that there was cause to believe that the accused committed it.
[Headnotes 3, 4]
From the testimony given by the witness as we have quoted it, it would appear that the
grand jury had before it evidence tending to show that an offense had been committed and
that there was cause to believe that the defendant had committed it. Further examination
would simply have gone to the extent and sufficiency of the evidence. We cannot, then, say
that the court acted improperly in holding further examination immaterial to the inquiry under
habeas corpus.
Petitioner's next contention upon this appeal is that the trial court improperly rejected
evidence by which petitioner sought to establish that the grand jury had indicted upon the
uncorroborated testimony of an accomplice. The state opposes this contention upon several
grounds, only one of which we need consider. We do not, then, act upon the state's
contentions that petitioner's offer of proof demonstrated that if the witness was an accomplice
he was not petitioner's accomplice but Tabet's; or that in any event such offer of proof went to
the sufficiency or adequacy of the evidence before the grand jury.
[Headnote 5]
It is clear from petitioner's offer of proof that the very evidence offered to establish that the
witness was an accomplice would tend to show that he was but a feigned accomplice whose
testimony need not be corroborated. State v. Verganadis, 50 Nev. 1, 248 P. 900. The court,
then, was not in error in rejecting the evidence as immaterial to the inquiry under habeas
corpus.
Affirmed.
__________
72 Nev. 88, 88 (1956) Ex Parte Jones
In the Matter of the Application of GLEN JONES for a Writ of Habeas Corpus, Petitioner, v.
W. E. LEYPOLDT, Sheriff of Clark County, Nevada, Respondent.
No. 3914
March 21, 1956. 295 P.2d 385.
Appeal from order of Eighth Judicial District Court, Clark County; Frank McNamee,
Judge, Department No. 1, denying discharge under habeas corpus.
Affirmed.
George E. Marshall, of Las Vegas, for Petitioner.
Harvey Dickerson, Attorney General, and Geo. Dickerson, District Attorney, Clark
County, for Respondent.
DECISION
Upon stipulation of counsel that the decision in this matter upon the facts would be
controlled by our decision in Ex Parte Colton, handed down this day; for the reasons set forth
in our opinion in that matter the order of the trial court denying release under habeas corpus is
affirmed.
Merrill, C. J.
Badt, J.
Eather, J.
__________
72 Nev. 89, 89 (1956) Scott v. State
JAMES De WITT SCOTT, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 3804
March 22, 1956. 295 P.2d 391.
Appeal from Second Judicial District Court, Washoe County; Harold O. Taber, Judge,
Department No. 3.
Defendant was prosecuted for willfully and lewdly committing a lewd act upon the body
of a girl aged 8 1/2 years. From a judgment of conviction in the trial court, defendant
appealed. The Supreme Court, Badt, J., held that the evidence sustained the conviction and
that there were no reversible trial errors.
Affirmed.
Martin J. Scanlan, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and A. D. Jensen, District Attorney,
Emile J. Gezelin, Assistant District Attorney, both of Reno, for Respondent.
1. Infants.
Evidence sustained conviction of willfully and lewdly committing a lewd or lascivious act upon the body
of a girl aged 8 1/2 years. N.C.L.1943-1949 Supp., sec. 10143.
2. Criminal Law.
In prosecution for committing a lewd act upon the body of a girl, refusing cautionary instructions was not
error under the circumstances. N.C.L.1943-1949 Supp., sec. 10143.
3. Criminal Law.
In prosecution for committing a lewd act upon the body of a girl, refusing instruction respecting the
adoption by the jury of theories deduced from the evidence, leading to innocence and to guilt, was not
error, in view of the direct evidence. N.C.L.1943-1949 Supp., sec. 10143.
4. Criminal Law.
Refusing requested instructions covering credibility of witnesses was not error in view of the instructions
given.
5. Criminal Law.
Refusing instruction that where defendant had testified in his own behalf, jury, if it found that he was a
worthy witness could give his evidence such weight as it would any other credible witness, or such weight
as the jury saw fit, was not error,
72 Nev. 89, 90 (1956) Scott v. State
error, in view of the statute that no special instruction shall be given relating exclusively to the testimony of
the defendant. N.C.L. 1943-1949 Supp., sec. 10959.
6. Criminal Law.
Instructions which would further have enlarged upon the definition of reasonable doubt contrary to the
statute were properly refused. N.C.L.1929, sec. 10964.
7. Criminal Law.
Instruction which would have told jury that it might consider previous good character of defendant as a
circumstance to rebut the presumption of guilt arising from circumstantial evidence was properly refused
where the evidence was not circumstantial, and where, of course, there was no presumption of guilt.
8. Criminal Law.
Where asserted invalidity of warrant issued against the defendant was not urged either before the
magistrate or the district court it could not be urged on appeal. N.C.L.1929, secs. 10728, 10733.
9. Indictment and Information.
In prosecution for committing a lewd act upon the body of a girl, proper foundation was laid for the filing
of an information against the defendant.
10. Criminal Law.
In prosecution for committing a lewd act upon the body of a girl, evidence of defendant's identification as
the perpetrator of the offense was sufficient to support conviction.
OPINION
Appellant was convicted of willfully and lewdly committing a lewd or lascivious act upon
the body of a girl aged 8 1/2 years. Section 10143, N.C.L.1943-1949 Supp. While numerous
errors are assigned in support of his appeal, his main assignments are: (1) insufficiency of the
evidence to support the verdict, and (2) errors in the giving and refusal of instructions to the
jury. We first dispose of these assignments and then discuss the other questions raised.
(1) It is unnecessary to discuss the facts in detail. The offense occurred August 20, 1953,
on the outskirts of Reno. The child was playing with a boy companion aged 10 years in the
neighborhood of a ditch and bulrushes not far from the road when the defendant drove
up,
72 Nev. 89, 91 (1956) Scott v. State
aged 10 years in the neighborhood of a ditch and bulrushes not far from the road when the
defendant drove up, entered into a conversation with the children, sent the boy to a store a
few blocks away to purchase soda pop and during the boy's absence was alleged to have
performed the lewd act. As defendant was driving off in his car, the girl's mother, with a
friend, drove up in her car and the little girl ran to her mother complaining of what had been
done. The mother followed defendant's car, obtained the license number and reported same to
the police. Identification of defendant by the girl and by the boy and identification of the
defendant's car by the mother and her companion were definite and convincing to the jury.
Defendant denied the entire episode and asserted that on August 20, 1953, the day of the
crime, he had not been in Reno but had left his home in Fallon, driven to Fernley and
Lovelock on business matters and returned home in the evening. In support of this alibi he
produced a number of witnesses and other evidence supporting the fact that he had been in
Fernley and Lovelock on August 20. Further examination of such evidence and rebuttal
evidence adduced by the state convincingly showed that his presence in Lovelock and Fernley
was not on August 20 but was on the following day, August 21, 1953. There was ample
evidence to support the jury's rejection of the alibi. Defendant also produced numerous
witnesses who testified to his good character and reputation in the community. The verdict
indicates the jury's conclusion that this was outweighed by the positive evidence of
defendant's guilt.
[Headnote 1]
Appellant's attack on the sufficiency of the evidence has to do mainly with the credibility
of the testimony given by the girl and by her boy companion. The girl was, as noted, 8 1/2
years old at the time of the incident. She was 9 years old at the time she testified at the trial.
Before she was called to the stand, one of her teachers testified to the girl's excellence as a
student, being in the upper 25% of her class,
72 Nev. 89, 92 (1956) Scott v. State
the upper 25% of her class, with an I. Q. of 120, and far ahead of her class in achievement.
The teacher was cross examined at considerable length as to the girl's powers of observation
and perception and her ability to describe what she had perceived. That she was a competent
witness satisfactorily and definitely appeared not only from the teacher's testimony but from
her own testimony. Before the little girl was sworn, she was questioned at considerable length
by the respondent, by the appellant and by the court. After she had testified to what happened,
the record shows 65 pages of cross examination. Virtually the same situation, but even to a
more convincing degree, applies to the boy, who likewise was far ahead of his class both in
intelligence and in achievement, with an I. Q. of 140, and who was subjected to a cross
examination consuming 140 pages of the transcript. The importance of the boy's testimony
lies in his positive identification of appellant, supported by one convincing incident. The
appellant first amused the children by performance of a coin trick, in the course of which it
was obvious to the boy that one of the man's fingers had a portion missing. This fact he had
recited to the authorities before making any identification of the defendant himself.
Appellant's assertions that these witnesses were coached, that they were prompted,
threatened, coerced and led, that their testimony should not be given credence, that the boy
himself was probably guilty of some sex act and was protecting himself, are all without
support in the record. It may be noted in addition that the record contains many additional
circumstances which support their testimony. No further discussion of the evidence appears
necessary.
(2) The court refused to give appellant's requested instruction D 1, as follows: In this
case, the defendant is charged with crime of lewdness and the Court instructs the jury that
such a charge is easily made and difficult to disprove and for that reason the testimony of the
children who testified in this case should be examined with caution.
It also rejected defendant's requested instruction D 2,
72 Nev. 89, 93 (1956) Scott v. State
as follows: You are instructed that in cases of this character you should carefully scan the
testimony of the children testifying before reaching a conclusion that the defendant is guilty.
Appellant concedes that if instruction D 1 had been given, instruction D 2 was not required
but that in rejecting them both, prejudicial error was committed. We treat the two instructions
together under the term generally appliedcautionary instructions. In doing this we overlook,
for the purpose of argument, the very possible impropriety of applying this instruction to the
children who testified, which couples the testimony of the boy with the testimony of the
complaining witness.
In assigning as error the court's refusal to give the requested cautionary instructions,
appellant relies on the recent case of People v. McGhee, 123 Cal.App.2d 542, 266 P.2d. 874,
876, in which the California court reversed the judgment of conviction and remanded the
cause for a new trial because the trial court had refused to give a cautionary instruction with
reference to the testimony of the complaining witness. The case however is clearly
distinguishable and undoubtedly called for a cautionary instruction in sex offense cases (1)
where the complaining witness' testimony is uncorroborated, as was the case there, (2) the
fact that the only available direct witnesses are ordinarily the complaining witness and the
defendant, whereby the charge is easy to make and difficult to meet, (3) that such cases
arouse passion and prejudice in the minds of decent people, including jurors, and (4) the ease
with which the charge can be made to satisfy spite, vengeance, vindictiveness and other base
motives. The appellant in that case was charged with pimping. The complaining witness was
a prostitute. The facts recited by the court picture a most degrading situation. Referring to the
presence of elements indicating the necessity for a cautionary instruction, the court said: All
of these elements are present in this case. * * * The possibility of spite and revenge is
suggested by appellant's testimony that he ejected the complaining witness and her
pseudo-husband from his hotel.
72 Nev. 89, 94 (1956) Scott v. State
* * * The complete absence of corroboration of the complaining witness in any material
detail makes it clear that if the jury had been instructed to examine her testimony with caution
a different verdict might well have been rendered. In the later case of People v. Quock
Wong, 128 Cal.App.2d 552, 275 P.2d 778, a pandering case, the court approved the McGhee
case, held that it was error to refuse the cautionary instruction, but concluded that such error
was not prejudicial, as there were no inconsistencies in the prosecuting witness' testimony. It
was not inherently improbable and was strengthened and partly corroborated by other
evidence. The case is not in point on the facts nor do we feel that any statements there made
by the court strengthen the assignment of error.
[Headnote 2]
Without further discussing the numerous cases cited by the appellant and by the state and
without in any way detracting from those cases holding, under their facts and circumstances,
that it was error to refuse a cautionary instruction, and confining our conclusion to the facts of
this case in which the competency of the complaining witness was firmly established,
likewise the competency of the boy who also identified the defendant, the corroborating
evidence as to the license number and description of the defendant's car as he left the scene,
the lack of any inherent incredibility in the testimony, the entire lack of any elements of spite,
vengeance, vindictiveness or other base motives, coupled with the full instructions given by
the court as to the credibility of witnesses and the necessity for proof beyond a reasonable
doubt, we are satisfied that there was no error in the refusal to give the cautionary
instructions. See annotation to People v. Lucas, 16 Cal.2d 178, 105 P.2d 102, appearing at
130 A.L.R. 1489, 1491.
[Headnote 3]
(3) Appellant next assigns error in the court's refusal to give his requested instruction D 6,
as follows: You are instructed that generally speaking,
72 Nev. 89, 95 (1956) Scott v. State
are instructed that generally speaking, if two theories can be reasonably deduced from the
evidence, one leading to a conclusion of innocence and one to guilt, the jury should adopt the
theory leading to innocence and acquit the defendant. We are not concerned with the
propriety of such an instruction where the proof is entirely circumstantial. There was no error
in refusing the instruction in view of the direct evidence in this case. People v. De Voe, 123
Cal.App. 233, 11 P.2d 26; People v. Ortiz, 63 Cal.App. 662, 219 P. 1024; People v. Marvich,
44 Cal.App.2d 858, 113 P.2d 223. And see People v. Bonds, 1 Nev. 33.
[Headnote 4]
(4) Error is also assigned in the court's refusal to give the defendant's requested instruction
D 7. The requested instruction dealt generally on the credibility of witnesses, admittedly
covered by other instructions given by the court, and then contained these paragraphs:
[Headnote 5]
The defendant has testified in his own behalf. The law says that you shall scrutinize
closely his evidence of his interest in the final determination of the case.
If, after you do so, you find that he is a worthy witness, then you can give his evidence
such weight as you would any other credible witness, or such weight as you see fit.
[Headnotes 6, 7]
We find no error in refusing this instruction. It is prohibited by the provisions of sec.
10959, N.C.L.1943-1949 Supp., to the effect that no special instruction shall be given
relating exclusively to the testimony of the defendant, and further provided, that the giving of
such special instruction shall constitute reversible error. State v. Fitch, 65 Nev. 668, 200
P.2d 991. The court also rejected defendant's proposed instructions D 3, D 4 and D 9, which,
without further discussion, we may say were fairly covered by instructions given. The
rejected instructions would further have enlarged upon the definition of reasonable doubt
contrary to the prohibition contained in sec.
72 Nev. 89, 96 (1956) Scott v. State
rejected instructions would further have enlarged upon the definition of reasonable doubt
contrary to the prohibition contained in sec. 10964, N.C.L.1929. Exception is also taken to
the court's rejection of requested instruction D 8. The salient matters were covered in
instructions given. The rejected instruction also would have told the jury that it might
consider previous good character as a circumstance to rebut the presumption of guilt arising
from circumstantial evidence. The evidence was not circumstantial and there was of course
no presumption of guilt.
[Headnotes 8, 9]
(5) Appellant attacks the issuance of the John Doe warrant in this case and the
subsequent insertion by Lieutenant Brodhead, of the Reno police, of appellant's name. He
asserts that a police officer has no authority to issue or change a warrant, that the magistrate
was therefore without jurisdiction to hold the preliminary hearing, that the whole proceeding
was void and that its invalidity was carried forward into the trial to the end that appellant was
deprived of his constitutional rights both under the Nevada and federal constitutions. We find
no merit in this contention. Whether or not the insertion of appellant's name by the police
officer in the John Doe warrant was authorized under the provisions of secs. 10728 and
10733, N.C.L.1929, we may note, first, that this asserted invalidity in the proceedings does
not appear to have been urged either before the magistrate or before the district court and,
secondly, that the present attack involves no constitutional question. There can be no question
but that a proper foundation was laid for the filing of the information against appellant. State
v. Plunkett, 62 Nev. 265, 149 P.2d 101.
[Headnote 10]
(6) Appellant complains bitterly of the manner of his identification by the little girl. He
was identified when accompanied by only one other person, whom the witness knew to be an
officer, and was not identified in company with a number of other persons of not too
dissimilar personality.
72 Nev. 89, 97 (1956) Scott v. State
with a number of other persons of not too dissimilar personality. Appellant quotes Professor
Edwin M. Borchard's Convicting the innocent in referring to tragic examples of mistakes in
identification and Professor Wigmore in his recommendations of the accepted lineup
method of identification. He also quotes Nevada newspapers reciting the near tragedy of a
case subsequently dismissed by the attorney general when the real culprit confessed. While
we agree that every precaution should be taken against a possible miscarriage of justice, we
can find no error in law in the jury's acceptance of the identification of defendant by the two
child witnesses, in the manner appearing in the record and without use of the line-up
method. People v. Minor, 388 Ill. 436, 58 N.E.2d 21.
(7) Throughout appellant's voluminous opening and closing briefs are found numerous
charges of unfair methods used by the state in the prosecution of the case. We find none of
these charges justified.
There being no error, and there being amply sufficient evidence to support the verdict, the
judgment and order denying new trial are affirmed.
____________
72 Nev. 97, 97 (1956) Eckerson v. Rudy
EDWARD A. ECKERSON, BOLETTA H. RUNQUIST, AILEEN H. MAKI, Appellants, v.
C. E. RUDY, Inc., a Corporation, and the VEGAS RANCHO ACRES, Inc., a Nevada
Corporation, Respondents.
No. 3880
March 28, 1956. 295 P.2d 399.
Appeal from order of the Eighth Judicial District Court, Clark County; A. S. Henderson,
Judge, Department No. 2, denying application for intervention.
Proceeding upon motion of defendant's minority stockholders to intervene after default
judgment had been entered against defendant and had been satisfied.
entered against defendant and had been satisfied. The trial court denied motion and minority
stockholders appealed. The Supreme Court, Merrill, C. J., held that, where default judgment
had been entered against defendant and had been satisfied by time defendant's minority
stockholders applied for intervention, there was then no pending action to which the
intervention might attach.
Affirmed.
Howard W. Babcock, of Las Vegas, for Appellants.
David Zenoff, Calvin C. Magleby and John Manzonie, for Respondents.
1. Judgment.
Where, prior to entry of default, defendant's board of directors agreed upon settlement of plaintiff's claim,
and resulting judgment was tantamount to a consent judgment and was satisfied, defendant's minority
stockholders, who sought to undo the settlement, but who did not allege fraud or lack of authority in board
in regard to the settlement, would not be permitted to intervene for purpose of undoing the settlement.
Rules of Civil Procedure, Rule 24(a).
2. Action.
Where default judgment had been entered against defendant and had been satisfied by time defendant's
minority stockholders applied for intervention, there was then no pending action to which the intervention
might attach. Rules of Civil Procedure, Rule 24(a).
OPINION
This is an appeal from order of the trial court denying appellants' motion to intervene
under Rule 24(a), N.R. C.P., in an action brought by respondent C. E. Rudy, Inc. against
respondent Vegas Rancho Acres, Inc. The trial court's action was based upon the fact that at
the time intervention was sought the controversy had been settled. In our view the trial court
was correct and should be affirmed. By the time the application for intervention was made a
default judgment had been entered against the defendant and that judgment had in fact
been satisfied.
against the defendant and that judgment had in fact been satisfied.
Appellants contend, however, that the judgment is void for the reason that the default was
improperly entered, defendant having appeared by motion to dismiss. They seek intervention
for the purpose of setting aside the default and judgment and, as minority stockholders of
defendant corporation, defending the action on its behalf.
[Headnote 1]
From the record it appears clear that the default was entered with the consent of the
defendant corporation and that the judgment is tantamount to a consent judgment. The day
prior to entry of default at a meeting of defendant's board of directors the validity of plaintiff's
claim was recognized and a settlement unanimously agreed upon. As to this agreement
appellants allege neither fraud nor lack of authority on the part of the board of directors.
Subsequently, and after default judgment had been entered, the agreement of settlement was
reduced to writing, signed by the parties and carried into effect. An acknowledgment of
satisfaction of judgment has been entered by the plaintiff. Appellants, disapproving of this
disposition of the matter by their board of directors, seek to undo the settlement made by that
board. This they may not do by intervention where the controversy already is ended and
settled to the satisfaction of the parties litigant.
[Headnote 2]
It might well be said that the motion was not a timely application under Rule 24(a),
N.R.C.P. See Barron and Holtzoff, Fed. Practice and Procedure (rules edition), sec. 594. In
our view, however, it would more accurately be said that there was no pending action to
which the intervention might attach.
Affirmed.
____________
72 Nev. 100, 100 (1956) O'Briant v. State
ROBERT O'BRIANT, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 3796
April 2, 1956. 295 P.2d 396.
Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,
Department No. 1.
Defendant was convicted of arson. The trial court rendered judgment, and defendant
appealed. The Supreme Court, Merrill, C. J., held that the evidence was sufficient to support
a determination that fire in defendant's store was incendiary in nature and, together with
evidence that defendant was present in store at time fire was ignited, was sufficient to support
conviction for arson.
Judgment affirmed.
(See also 70 Nev. 368)
Samuelson and Johnson, of Reno, for Appellant.
Harvey Dickerson, Attorney General; A. D. Jensen, District Attorney, Washoe County,
William J. Raggio and Emile J. Gezelin, Assistant District Attorneys, for Respondent.
1. Arson.
Evidence of the presence of petroleum residue and that fire in rear room of store was composed of two
separate, independent fires, ignited at substantially the same time, was sufficient to support a determination
that fire was incendiary in nature, thus establishing the corpus delicti, and, together with evidence that
proprietor was present in store at time fire was ignited, was sufficient to support conviction of store
proprietor for arson.
2. Criminal Law.
Error could not be predicated on admission of photographs in evidence, on ground that photographs
demonstrated that they were defective and did not truthfully represent the subjects which they purported to
portray, where not objection to admission of the evidence upon such ground was made.
3. Witnesses.
In prosecution of music store proprietor for arson, evidence, sought to be adduced on cross-examination
of a witness for the state for the purpose of showing bias and prejudice,
the state for the purpose of showing bias and prejudice, that witness' wife had at one time engaged in an
altercation with an employee of defendant was properly excluded on ground that such evidence was
immaterial as remote, in that it did not directly involve either witness or defendant.
4. Criminal Law.
In prosecution for arson based on two allegedly separate, independent fires in northeast and southeast
corners of rear room of defendant's store, admitting rebuttal testimony that part of flooring of room had
been replaced not because of char but because of discoloration and water damage was not error, though
nonexistence of char in flooring between the two fires had been thoroughly covered in state's case in chief,
in view of defense evidence that fire was general throughout eastern portion of room.
5. Criminal Law.
Error could not be predicated on alleged misconduct of prosecuting attorney in misstating or
misconstruing the evidence in summation to jury, in absence of objection by defense counsel to such
remarks at time of trial or request that jury be instructed to disregard them.
6. Criminal Law.
In prosecution for arson based on allegedly incendiary origin of fire in rear room of defendant's store,
denial of new trial on ground of newly discovered evidence that polishing clothes stored in rear room were
subject to spontaneous combustion was not abuse of discretion, since such evidence was merely cumulative
in view of fact that jury was well aware that inflammable and combustible materials were present in room
and of defendant's theory that such materials caused fire.
OPINION
This is an appeal from judgment of conviction of the crime of arson. Appellant's first and
principal contention is that the evidence as a matter of law is insufficient to support the jury
verdict of guilt.
Appellant (defendant) was the proprietor of a music store located in Reno known as the
Modern Music Center. The fire occurred in a service room in the rear of the store on May 30,
1952. It was reported both to the central fire station and to the defendant shortly after seven
o'clock p.m. Fire-fighting equipment arrived at 7:10 p.m. One of the firemen arriving at that
time testified that the fire had just vented itself through a rear window.
window. From this fact, and considering the characteristics of the room, he expressed the
opinion that the fire had then been burning from 20 to 30 minutes.
[Headnote 1]
As to the corpus delicti the evidence stands without substantial dispute. The testimony of
experts establishes that the fire in fact was composed of two independent and unconnected
fires: one in the northeast corner and one in the southeast corner of the room. These fires were
separated to a distance of about 12 feet by a booth which projected out into the room from the
east wall. The fact that the fires were separate and unconnected with each other was
established by testimony as to the charred condition of the flooring and the rafters. In each
corner there was deep char on both floor and rafters. Between the two, in front of and above
the booth, there was no char. The depth of char in each corner likewise indicated that the two
fires had been ignited at substantially the same time. Incendiary origin of a fire is generally
established by circumstantial evidence such as the finding of separate and distinct fires on the
premises. People v. Sherman, 97 Cal.App.2d 245, 217 P.2d 715, 718; People v. Hays, 101
Cal.App.2d 305, 225 P.2d 600. Further pointing toward the incendiary character of the fires
was the fact that tests of flooring in each burned corner indicated the presence of petroleum
residue. There can be no question but that these facts are ample to support a determination
that the fire was incendiary in its nature. There is, then, evidence to establish the corpus
delicti.
Defendant contends that the facts are wholly consistent with innocence. He asserts the
proposition, since proof of guilt is dependent upon circumstantial evidence, that where two
theories can reasonably be deduced from the evidence, one leading to a conclusion of
innocence and one to guilt, the jury must adopt the theory leading to innocence and acquit the
defendant.
Applying this proposition to the facts of the case, defendant advances the theory that the
two fires were in fact connected and constituted but a single fire.
defendant advances the theory that the two fires were in fact connected and constituted but a
single fire. He insists that while the fire could not have crossed the floor from one corner to
the other, it was still reasonably possible that its route had been up the side of the booth,
across its top and down the other side to the far corner of the room. This theory, however,
requires the rejection of positive testimony that there was no indication of fire on top of the
booth: testimony which the jury was entitled to and apparently did believe.
Defendant also advances the theory that the presence of petroleum residue and the
apparent existence of two simultaneous fires is explainable through the possibility of
explosion of inflammable liquids which were present in the northeast corner. This theory,
however, does not fully or satisfactorily explain the apparent simultaneous ignition of the two
fires and other testimony given relative to the pattern of burning which was regarded by an
expert witness as indicative of a deliberate drenching with inflammable liquids. The theory
also disregards testimony rendering improbable the fact that explosion of thin-walled
containers, such as held the inflammables in this case, would throw their contents the
necessary distance.
Under the circumstances the jury may well have felt that the theory that the fire was
incendiary was the only theory reasonably suited to all of the facts.
The evidence connecting the defendant with the crime was subject to substantial dispute. It
is admitted that defendant was at the scene the afternoon of the fire. Defendant and the
members of his family contend that he had left the premises approximately an hour before the
fire was discovered. For the State, witnesses testified to seeing him at the scene a matter of
minutes before the fire was discovered. Several witnesses testified to conversations with the
defendant in which he admitted having been at the store but ten minutes before the fire was
reported to him. One witness testified to a statement by defendant that he had left the store at
exactly seven o'clock.
seven o'clock. Clearly there was evidence from which the jury could have believed that the
defendant was present in the store at the very moment that the fire had been ignited. Such
evidence not only serves to connect the defendant with the crime but also tends to strengthen
the proof of corpus delicti.
In our view defendant's contention that the evidence is insufficient to support the jury
verdict is without merit.
[Headnote 2]
Defendant assigns as error the admission of certain photographs of the scene showing the
charred condition of various portions of the room. Defendant contends in this respect that the
photographs demonstrate that they are defective and do not truthfully represent the subjects
which they purport to portray. No objection to the admission of this evidence upon this
ground was made and accordingly we must reject this contention.
[Headnote 3]
Defendant assigns as error the refusal of the court to permit him to cross examine one of
the State's witnesses to establish bias and prejudice on the part of the witness. In this respect
defendant's offer of proof at the time of trial was to the effect that the wife of the witness had
at one time engaged in an altercation with one of the employees of the defendant. The lower
court ruled that the proposed evidence was immaterial as remote, in that it did not directly
involve either the witness or the defendant. In our view the evidence was properly excluded.
State v. Cullens, 168 La. 976, 123 S. 645; Hargraves v. State, 105 Tex.Cr. R. 227, 288 S.W.
225.
[Headnote 4]
Defendant assigns as error the admission of certain rebuttal testimony with respect to the
nonexistence of char in the flooring in front of the booth and between the two fires: a subject
thoroughly covered in the State's case in chief. It is claimed that defendant's witnesses did not
testify that this area was charred and that the subject, therefore, was not a proper one for
proof on rebuttal.
did not testify that this area was charred and that the subject, therefore, was not a proper one
for proof on rebuttal. There was evidence given by the defendant, however, indicating that
fire was general throughout the eastern portion of the back room. At one point the defendant
himself interjected, They replaced half the floor in the back room. Furthermore, the jury
was given a view of the premises at which time they could not have avoided observing the
substantial new flooring which had been placed in the room. The rebuttal witness was the
contractor who had replaced the flooring. The testimony to which the defendant objects was
to the effect that there was no char in the flooring between the two corners and in front of the
booth; that the flooring at that point had been replaced not because of char but because of
discoloration and water damage. In our view it was not error under the circumstances to
permit the testimony to be given on rebuttal.
[Headnote 5]
Defendant assigns as misconduct on the part of the State certain remarks made by counsel
for the State in summation to the jury in which defendant contends the prosecutor misstated
or misconstrued the evidence. As to none of these remarks, however, was any objection made
by counsel for the defense at the time of trial. Nor was any request made that the jury be
instructed to disregard them. This assignment of error is not, then, available to the appellant.
State v. McMahon, 17 Nev. 365, 30 P. 1000; State v. Boyle, 49 Nev. 386, 248 P. 48.
[Headnote 6]
Defendant assigns as abuse of discretion the refusal of the trial court to grant new trial
upon the ground of newly-discovered evidence. The evidence in question would have been
given by certain California witnesses who had conducted experiments with reference to the
inflammable characteristics of polishing cloths identical to some which were stored in the
room in which the fire occurred. The evidence would have tended to establish the fact that
such cloths had been known to be subject to spontaneous combustion.
the fact that such cloths had been known to be subject to spontaneous combustion. The jury
was well aware of the fact, however, that inflammable and combustible materials were
present in the back room and of defendant's theory that such materials had caused the fire.
While the new evidence may have added support to such theory, it would not have tended to
dispute proof of the corpus delicti upon which the jury apparently relied and which was
wholly inconsistent with that theory. Under the circumstances denial of new trial was not an
abuse of judicial discretion. Accord: State v. Willberg, 45 Nev. 183, 200 P. 475.
Affirmed.
__________
72 Nev. 106, 106 (1956) Sefton v. State
WALTER HORACE SEFTON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 3863
April 4, 1956. 295 P.2d 385.
Appeal from judgment of Eighth Judicial District Court, Clark County; Frank McNamee,
Judge, Department No. 1.
Defendant was convicted of murder. The trial court rendered judgment, and defendant
appealed. The Supreme Court, Badt, J., held that proof of corpus delicti and defendant's
corroborating confession sustained conviction.
Affirmed.
(Rehearing denied May 24, 1956.)
(Petition for a writ of certiorari was denied by the Supreme Court of the United States
December 17, 1956. See also 73 Nev. ...., 306 P.2d 771.)
John W. Bonner, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City;
George M. Dickerson, District Attorney, Gordon L. Hawkins, Robert L. Gifford, Ve Noy
Christofferson, Arthur Olsen, Deputy District Attorneys, all of Las Vegas, for Respondent.
1. Homicide.
Evidence in murder prosecution was sufficient to establish the corpus delicti.
2. Homicide.
Corpus delicti in a homicide case consists in elements of death and that death was by criminal agency,
and identification of defendant as the criminal agency is not necessary.
3. Criminal Law.
Proof of corpus delicti need not be as full and conclusive where there is a confession as would be
necessary if there were no confession to corroborate it.
4. Criminal Law.
An extrajudicial confession does not warrant conviction unless corroborated by independent evidence of
corpus delicti, but a confession will support conviction even though uncorroborated otherwise than by
proof of corpus delicti, and the corroborating evidence need not be such as to connect defendant with the
crime.
5. Criminal Law.
In homicide prosecution, proof of corpus delicti and defendant's corroborating confession sustained
conviction.
6. Criminal Law.
Record on appeal from conviction of murder disclosed that defendant's confession was properly admitted
as voluntary.
7. Criminal Law.
A defendant has a right to be free from shackles at his trial, and shackling is justified only where there are
exceptional conditions of fact and circumstance.
8. Criminal Law.
Where it was made to appear, in murder prosecution, that defendant had broken jail on day before trial
and had been a party to an aggravated battery on the jailer, requiring defendant to be handcuffed on first
day of trial was not abuse of discretion.
9. Criminal Law.
In prosecution for murder of woman in a jungle, evidence purportedly tending to show woman's
propensity to frequent jungle was not material to question whether defendant had taken her to jungle,
and was properly excluded.
10. Criminal Law.
In murder prosecution, wherein state introduced confession, defendant's self-serving statements to effect
that he had confessed in another state in order to be returned to Nevada, and had repudiated
confession upon reaching Nevada,
had repudiated confession upon reaching Nevada, were properly excluded, particularly where it appeared
that he had not repudiated confession until ten days after returning to Nevada.
11. Criminal Law.
In murder prosecution, statements in defendant's opening to effect that defendant's foster parents were
convinced of his innocence and that defendant's counsel had not desired to see defendant wronged could
not have been proved, and were properly stricken.
12. Criminal Law.
It is duty of counsel to refrain from stating facts which he cannot prove or will not be permitted to prove.
13. Criminal Law.
Record on appeal in murder prosecution did not disclose that alleged trial errors, including errors in
rulings on evidence, had been prejudicial to defendant or had resulted in miscarriage of justice.
OPINION
Appellant was convicted of the first-degree murder of Jacqueline Kelly in Clark County,
Nevada, and sentence of death imposed. His appeal from the judgment and from the order
denying his motion for new trial assigns the errors hereinafter discussed in the order of the
seriousness and importance accorded them by the appellant in his opening and closing briefs
and in his oral argument.
(1) Appellant's most seriously presented assignment of error revolves about the contention
that, aliunde his extrajudicial written confession, there is no proof of the corpus delicti; that
there is no corroboration of his confession; that accordingly, in the first instance, the State's
case falls by reason of failure to prove the corpus delicti; that by reason of the failure to prove
the corpus delicti, there was no foundation for the admission of evidence of the written
confession.
[Headnotes 1-5]
On Christmas day, December 25, 1953, four men, who had gone to a desert area on the
outskirts of Las Vegas, an area sometimes referred to as the jungle, for the purpose of rifle
practice,
purpose of rifle practice, found the dead body of Jacqueline Kelly. One of the men remained
with the body but was careful not to disturb it or the area around it. The other three drove
back into the city to report their discovery and the sheriff's office sent three deputies to the
scene. Sundry photographs were taken and a plaster cast made of a boot print in the sand a
few feet from the body. Various garments of the deceased were found close to the bodyher
left boot (her right boot was on her foot), a square scarf, slacks or jeans, a dark green blouse,
a brassiere, etc. The body was identified as that of Jacqueline Kelly and was removed to the
mortuary where an autopsy was performed, disclosing, in addition to four lacerations on the
head, four prominent lacerations in the neck and body, besides contusions about the right
forearm, both hands and both thighs. It was the doctor's opinion that the wounds were caused
by a fairly sharp instrument such as a pocket knife. The skull fracture and resulting
hemorrhage, two stab wounds in the chest and two additional wounds were, in the doctor's
opinion, the three primary causes of death. Evidence of the matters above recited was
received before the State offered defendant's written confession. Thus the fact of death and
that it resulted not from natural causes, accident or suicide but from the criminal agency of
another person had been clearly proved beyond a reasonable doubt. The corpus delicti had
thus been established. State v. Fouquette, 67 Nev. 505, 532, 221 P.2d 404. We reject the
contention of appellant made in reliance on State v. Teeter, 65 Nev. 584, 200 P.2d 657, that
proof of the corpus delicti must include not only the element of the death of the deceased and
that it was by a criminal agency, but a third element, namely, the identification of the
defendant as the criminal agency. Nor need the proof of the corpus delicti be as full and
conclusive as would be essential if there was no confession to corroborate it. Evidence of
facts and circumstances attending the particular offense * * * or of facts to the discovery of
which the confession has led,
led, and which would not probably have existed if the offense had not been committed, or of
facts having a just tendency to lead the mind to the conclusion that the offense has been
committed, would be admissible to corroborate the confession. The weight which would be
accorded them, when connected with the confession, the jury must determine, under proper
instructions from the court. Norcross, J., In re Kelly, 28 Nev. 491, 83 P. 223, 225, quoting
Matthews v. State, 55 Ala. 187. It is stated in 22 C.J.S. 1472, Criminal Law, sec. 839: * * *
[I]t is the general rule * * * that an extrajudicial confession does not warrant a conviction
unless it is corroborated by independent evidence of the corpus delicti. * * * [A] conviction
based on a confession will stand, although it is uncorroborated otherwise than by proof of the
corpus delicti. Footnote 41 to this text cites many authorities in support of this rule and,
where corroborating evidence has been adduced the rule is further stated (id. footnote 41, (1):
The corroborating evidence need not be such as to connect accused with the crime.
Hundreds of cases in support of this rule are cited in the note, as well as in the additional
footnotes appearing in the pocket part, and such rule would seem to be of well-nigh universal
application. Not only was the corpus delicti proved aliunde the confession, but the same
received ample corroboration in the defendant's leading the officers to the scene of the crime,
the correspondence of the wounds in the body with those described in the confession, the
correspondence of the kind and color of the victim's clothing, the condition of the victim's
brassiere as cut by the upthrust of defendant's knife as described by him, the defendant's
possession of his foster father's knife corresponding in description with the murder weapon
described in his confession, and the correspondence of the plaster cast of the footprint near
the body with the defendant's boot. These were all matters of corroboration whose weight was
for the determination of the jury. It was likewise the jury's province to reject the defendant's
testimony of his visit to the scene of the crime,
crime, with another girl, at which time he saw the victim's body lying on the ground, which
he would have had the jury believe accounted for his trip to the scene, his knowledge of the
route, his knowledge of the nature of the wounds and the nature and color of the victim's
clothing, and accounted likewise for his footprint near the body. The jury was likewise
authorized to reject his story that he failed to report his alleged discovery to the police for fear
of being himself accused of the crime.
We come then to the actions of the defendant, his prolonged drinking debauches with his
friend Charles Mobley, his statement to Mobley that he had killed a girl, had left no clues, but
that the heat was on him and he wanted to get out of town, his departure from Las Vegas
about January 22, 1954 with Mobley, his subsequent arrest in Flint, Michigan, on a burglary
charge, his plea of guilty thereto and his volunteered statements to the Michigan officers that
he had killed Jacqueline Kelly in Las Vegas, the corroboration by telephone of the fact that
Jacqueline Kelly's death still remained unsolved there, followed by the voluntary written
confession made by appellant to the Michigan officers. The written confession was by way of
questions and answers, all of which were recorded on a tape, transcribed, read by the witness,
corrected by him in a minor respect and signed and sworn to by him. Prior to the time he
stated to the Michigan officers that he had killed Jacqueline Kelly, they had no knowledge of
the matter whatsoever. The initial part of the question and answer document was a statement
by the Michigan officer to appellant as follows: During our conversation you have admitted
to us that you were involved in a murder in the City of Las Vegas in the State of Nevada. I
want to inform you that we would like a statement regarding this matter. You do not have to
give us a statement if you do not desire to do so. If you should give us a statement, everything
you tell us must be the truth, the whole truth and nothing but the truth, to the best of your
knowledge and recollection. The statement must be given freely and voluntarily without any
force,
freely and voluntarily without any force, threats or promises having been made on our part.
Such a statement may be used either for or against you as the case might be, should this
matter come to trial in criminal court. Knowing these things, will you give us a statement? A.
Yes. Appellant then proceeded in question and answer form, as noted, to recite the following
facts, in which recital we have eliminated many incidental and unessential statements and
which we have condensed for purposes of brevity. On December 18, 1953 appellant drove to
a liquor store in Las Vegas to buy some wine. He met Jacqueline Kelly and the two drove to a
desert area about a mile north of Vegas Heights, a suburb of Las Vegas. They drank the wine
and engaged in acts of sexual intercourse, returned and purchased more wine and again drove
back to the desert area and drank it. On a third trip to town appellant sold his auto jack for $2
to a secondhand dealer, purchased more wine and the two returned to the desert area. There,
while seated in the car, an argument started. Jacqueline said she was going back to town and
say that appellant had raped her. He struck her on the left side of the jaw and mouth with his
right hand, got out of the car, went around to the other side, opened her door and jerked her
out, struck her and knocked her down, got a knife out of the glove compartment, stabbed her
in the throat and several other places. There was some wine left in the bottle, which he drank,
then turned the car around as Jacqueline was getting to her knees and drove past her and back
to town. She was then bleeding severely from the throat. Appellant gave further descriptive
information. The victim had on a green blouse and a pair of cowboy boots and a pair of Levis.
On the way back he threw the knife out of the window. It had a green plastic handle. He also
threw the wine bottle away. He wiped the blood from his hands and the knife blade with his
handkerchief, which he also threw away. He then drove up to the house where his foster
parents lived and went to sleep in the car. His foster father subsequently woke him up and
had him go into the house to bed.
him up and had him go into the house to bed. He left Las Vegas three or four weeks later with
Charles Mobley, who had come to live with him and with whom, as noted above, he had
indulged in much drinking. (He and Mobley had become acquainted while both were serving
terms in the Nevada state penitentiary.) Both he and Mobley had drawn all the money they
had coming from work, drank it up and drove to Phoenix. Appellant called his foster mother
from Phoenix, told her they were drunk and broke and that they would bring the car back
home if she would send them money. She sent $5. In the meantime he borrowed $10 and a
tank of gas from a cousin, and they proceeded to El Paso, then to Houston, then to Memphis,
Louisville and to Flint, Michigan. The car they were driving was being paid for in installment
payments. They abandoned the car about sixteen miles from Pontiac, Michigan.
Appellant waived extradition and was brought back to Nevada. About ten days after being
returned to Nevada, defendant agreed to take the officers to the scene where he told them he
had killed this woman. Thereupon defendant and three officers and the deputy district
attorney proceeded to the area. The defendant directed the route to be taken and what turns
should be made, what streets they should takeunder the railroad pass, out an old dirt road,
down a little hill, and the defendant finally said: Stop right about here. He got out of the
car, hesitated a few seconds, walked right to the scene and said: This is where I did it.
Photographs were taken showing the defendant pointing to the spot. All of this was done
voluntarily by him. He showed the officers where he had parked his car, where the act had
been committed, how he got back into the car, drove to the base of the hill, backed around
and went out by the same way he had come in. On the way back he indicated about how he
had thrown the knife and bottle away. The party searched the area for about two hours but
failed to find the knife.
When a Clark County deputy sheriff went to Flint, Michigan,
Michigan, to bring appellant back to Nevada he searched appellant's automobile and
discovered a pair of boots which appellant stated were his. The boots and the plaster cast of
the boot print near the body were received in evidence. A sheriff's deputy testified that they
matched perfectly by measurement. Appellant characterizes any attempt to fit the boot to
the cast as ridiculous. We do not find it so. Considering the fact that the print was made in the
sand and that some seven days had elapsed before the impression was made, the jury would
have been justified in considering the imprint surprisingly clear and in finding convincing
correspondence between the boot and the cast of the imprint. (By stipulation and order of the
court the original exhibits were sent up to this court.) Defendant's foster father collected
knives as a hobby and had possessed a knife closely fitting the description of the knife
described in defendant's confession. Such knife was in defendant's possession the last time his
foster father had seen italthough his foster father testified that he had instructed defendant
to return the knife to the tool box where it was usually kept and that such had been done.
[Headnote 6]
(2) In view of our recital as to the manner in which the defendant's confession was
executed, we must also reject appellant's contention that the confession was not voluntary.
(3) During the first day of the trial appellant appeared in court handcuffed and error is
assigned in the court's refusal to require the removal of the handcuffs. The following
occurred: By the Court: Let the record show that Mr. Bonner requested that the defendant
appear in court without handcuffs. The request was objected to by Mr. Mendoza upon the
ground that the defendant, within the past twenty-four hours, had broken jail, and was a party
to aggravated battery on the jailer, and was not apprehended until 5:00 a.m. this day. For the
reason given by Mr. Mendoza, the District Attorney, the request of Mr. Bonner is denied.
[Headnotes 7, 8]
And on the following day: By the Court: The Sheriff having indicated to the Court that he
felt it was no longer necessary to have the defendant appear in Court with handcuffs, it is
ordered, and the Sheriff is directed to remove said handcuffs from the defendant prior to his
entry into the Court Room. The record will show this order was made outside of the presence
of the Jury. In support of this assignment appellant quotes at length from State v. McKay, 63
Nev. 118, 165 P.2d 389, 167 P.2d 476. We concur in the view there expressed that the right
of a defendant to be free from shackles at his trial is an important right and that the shackling
is legally justifiable only in the existence of exceptional conditions of fact and circumstance
reasonably rendering a departure necessary. But we cannot say that the course pursued was
not, in the exercise by the court of a sound judicial discretion, reasonably necessary and
justified. On rehearing, in State v. McKay, supra, the court noted the reasonable apprehension
that if the handcuffs were removed, the defendant, a dangerous and desperate man, might at
any time, even at the time of the trial, attempt to escape, and that appellant himself by his
own conduct was the primary cause of any prejudice entailed by his being handcuffed. Here,
as in the McKay case, we find no abuse of discretion. Appellant also relies on Odell v.
Hudspeth, 10 Cir., 189 Fed.2d 300, which recites the rule against handcuffing except to
prevent the escape of the prisoner or to prevent him from injuring bystanders and officers of
the court or to maintain a quiet and peaceable trial. The district court, however, refused to
interfere on habeas corpus and the Circuit Court of Appeals, Tenth Circuit, affirmed. There,
as here, no such situation existed as in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67
L.Ed. 543, or as in Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740.
[Headnote 9]
(4) Appellant sought to introduce in evidence fifteen copies of criminal complaints and
docket entries from the Las Vegas municipal court, in which the deceased was the
defendant.
the Las Vegas municipal court, in which the deceased was the defendant. Outside of one petty
larceny charge, the complaints all charged the deceased with being drunk and disorderly in a
public place in the city. Appellant's theory is that these complaints would have established
such propensity and habits of drunkenness, vagrancy, etc. as to indicate to the jury her habit
of frequenting the jungle where the crime took place, and would have tended to disprove
the State's theory that appellant took her to the area and killed her there. Error is assigned in
the court's sustaining an objection to the admission of these records on the ground that they
were irrelevant and immaterial. Even if we assume the rather doubtful conclusion that the
deceased's propensity for being found drunk in a public place would likewise establish her
propensity (or corroborate defendant in this regard) to frequent the jungle, proof indicating
the probability that she might have been there on earlier occasions, could hardly be material
to the inquiry as to whether she had been killed at that spot by the defendant on December 18,
1953. We find no error in rejecting this proof.
[Headnote 10]
(5) In repudiating his confession appellant insisted that he originally confessed the murder
to the Michigan officers because he feared a life sentence there as a habitual criminal and
wanted to be returned to Nevada where he would have the assistance of his foster parents, and
because he understood from the Michigan officers that they would permit his return to
Nevada on nothing less than a murder charge. Accordingly, he sought to introduce certain
self-serving statements made by him which he claims would tend to prove that he repudiated
his confession immediately upon his arrival in Nevada. In the first place, the testimony was
properly excluded as self-serving statements; in the second place, the evidence rather
conclusively shows that these statements were not made for some ten days after his arrival
and after he had voluntarily directed the officers to the scene of the crime.
of the crime. Appellant asserts that the prosecuting attorney and his witnesses sought to make
it appear to the Jury that the repudiation of the confession was concocted in the mind of
defendant's counsel, and that defendant should have been given an opportunity to refute this
impression. We may put aside, as of no great moment, the inconsistency of the first
assignment, namely, that the confession was not voluntary, with the present assignment, that
the defendant concocted the confession as a ruse to get back to Nevada and urged the
confession upon the Michigan officers who were reluctant to receive it at all. In any event, the
so-called immediate repudiation was some ten days after his return and after he had directed
the officers to the scene. Nor was the repudiation relied upon a repudiation at all, but rather a
refusal to discuss the matter. Appellant's entire theory of his successful persuasion of the
Michigan officers, including minute details of the time, place and circumstances of the crime,
description of the wounds and of the victim's clothing, etc. (subsequently substantiated and
corroborated), just for the purpose of getting back to Nevada to face a first-degree murder
charge, apparently seemed so fantastic to the jury that they gave it no credence. Not only do
we find no error, but we do not think that it may be reasonably said that the jury could have
been influenced by the testimony.
[Headnotes 11, 12]
(6) Appellant assigns error in the court's striking from the record certain parts of
appellant's opening statement to the jury which asserted the conviction of defendant's foster
parents that defendant was innocent and counsel's desire not to see the defendant wronged.
Such matters could not have properly been made the subject of testimony and were properly
excluded. It is the duty of counsel * * * to refrain from stating facts which he cannot, or will
not, be permitted to prove. State v. Olivieri, 49 Nev. 75, 236 P. 1100.
[Headnotes 13]
No error is assigned growing out of the giving or refusing instructions to the jury. Several
errors are assigned in the court's rulings on evidence in addition to those already discussed.
They are not of sufficient importance or seriousness to warrant discussion. Appellant asserts
from time to time that by reason of the errors assigned, there has been a lack of due process in
violation of both the state and federal constitutions. Such assignments have been given
careful consideration, but we find the same to be without merit. It is our conclusion that the
defendant has not been prejudiced by reason of any of the assigned errors and that there his
been no indication of any miscarriage of justice. State v. Lindsay, 63 Nev. 40, 161 P.2d 351.
The judgment and the order denying appellant's motion for new trial are affirmed, and the
district court is directed to make the proper order for the carrying into effect by the warden of
the state prison of the judgment rendered.
____________
72 Nev. 118, 118 (1956) Kilb v. Porter
JOHN KILB, Appellant, v. HOWARD HUGHES PORTER, Executor of the Will of Robert
Evans Hughes, Deceased, Respondent.
No. 3885
April 11, 1956. 295 P.2d 856.
Department No. 2.
Action against executor of will of decedent, after rejection of plaintiff's claim, for value of
medical services rendered to decedent, in his lifetime, by plaintiff. An order dismissing the
action was entered in the trial court and the plaintiff appealed. The Supreme Court, Eather, J.,
held that evidence was sufficient to create issues upon fact of medical treatment allegedly
furnished defendant's decedent during his lifetime by plaintiff and extent and value of
such treatment.
72 Nev. 118, 119 (1956) Kilb v. Porter
issues upon fact of medical treatment allegedly furnished defendant's decedent during his
lifetime by plaintiff and extent and value of such treatment.
Reversed and remanded.
Joseph P. Haller and John S. Belford, of Reno, for Appellant.
Oliver C. Custer, of Reno, for Respondent.
1. Executors and Administrators.
Evidence was sufficient to create issues upon fact of medical treatment allegedly furnished to defendant's
decedent during his lifetime by plaintiff and extent and value of such treatment.
2. Trial.
Upon motion under Rule of Civil Procedure at completion of plaintiff's case to dismiss action upon
ground that a sufficient case for court sitting without a jury had not been proved, evidence must be
regarded in light most favorable to plaintiff, and court even though acting without a jury may not consider
weight or credibility. Rules of Civil Procedure, Rule 41(b).
OPINION
This is an appeal taken by the plaintiff below from order of the trial court dismissing
plaintiff's action. The order was entered on defendant's motion under Rule 41(b), N.R.C.P., at
the completion of plaintiff's case upon the ground that a sufficient case for the court sitting
without a jury had not been proved. Upon this appeal plaintiff contends that a sufficient case
had been proved and that the court improperly granted the motion to dismiss; that the matter
should have been permitted to proceed to a consideration of the merits.
Plaintiff brought his action against defendant, as executor of the will of Robert Evans
Hughes, deceased, after rejection of his claim, for the value of medical services rendered to
Hughes, in his lifetime, by plaintiff.
The plaintiff presented testimony of five witnesses in addition to himself to establish that
he had treated the decedent.
72 Nev. 118, 120 (1956) Kilb v. Porter
decedent. He himself testified as to the number of occasions on which decedent had visited
him, but was not permitted to testify as to the reason for those visits or what occurred during
them. The individual witnesses, however, did testify to conversations had with the decedent
in which he admitted that plaintiff was treating him and that he was highly appreciative of the
treatment rendered. One witness testified to having observed plaintiff in the process of
treating decedent on at least a half dozen occasions. Another witness testified to the
reasonable value of treatments of this nature.
[Headnote 1]
In our view a sufficient case was made to create issues upon the facts of treatment and its
extent and value.
[Headnote 2]
Respondent contends that the record contains evidence from which it may be inferred that
decedent, as a lonely old man who liked to visit people and who regarded plaintiff highly as a
friend, was visiting plaintiff in a social rather than professional capacity. Respondent also
contends that certain of the plaintiff's witnesses indicated bias in favor of the plaintiff and that
the court was entitled to disbelieve their testimony. Upon this motion, under N.R.C.P.,
however, the evidence must be regarded in the light most favorable to the plaintiff, and the
court even though acting without a jury may not consider weight or credibility. Gordon v.
Cal-Neva Lodge, 71 Nev. 336, 291 P.2d 1054. Issues then, remained for determination upon
the merits and the court was in error in granting motion to dismiss.
In taking this view of the issue presented, we find it unnecessary to discuss the
applicability of the so-called dead man's rule (secs. 8966-8970, N.C.L.1929) elaborately
briefed and argued by the parties.
Reversed with costs to appellant and remanded with direction that the order of dismissal
be set aside, and for further proceedings.
____________
72 Nev. 121, 121 (1956) Jones v. First National Bank
IN THE MATTER OF THE ESTATE OF EDNA UMBAUGH JONES, Also Known as and
Sometimes Called EDNA L. JONES, EDNA UMBAUGH and E.L. JONES, Deceased.
JOHN PAUL JONES, Appellant, v. THE FIRST NATIONAL BANK OF NEVADA,
Executor of the Estate of Edna Umbaugh Jones; Harry Edward LeClaire, Donald G. LeClaire,
Minor Sons of Harry W. LeClaire; Harry W. LeClaire, Harry M. LeClaire and Katherine
LeClaire, Respondents.
No. 3890
April 26, 1956. 296 P.2d 295.
Department No. 1.
Proceeding in the matter of the estate of deceased testatrix, wherein construction of will
was sought. The trial court entered an order adverse to the testatrix' husband, and he appealed.
The Supreme Court, Eather, J., held that codicil, which was drawn by testatrix herself, giving
to her husband a liveable wage until his death not to exceed $200 a month up to $2,400,
was a bequest of $2,400 to husband and not a bequest of $2,400 a year.
Affirmed.
Foley Brothers, of Las Vegas, for Appellant John Paul Jones.
A.W. Ham, Sr. and A.W. Ham, Jr., of Las Vegas, for Respondent The First National Bank
of Nevada.
Jones, Wiener & Jones, of Las Vegas, and Bridgett & Marcus, of San Francisco,
California, for Respondents Katherine LeClaire; Harry Edwards LeClaire, and Donald G.
LeClaire, minor sons of Harry W. LeClaire; and Harry W. LeClaire.
John W. Bonner, of Las Vegas, for Respondent Harry H. LeClaire.
1. Wills.
Court may not vary terms of will to conform to court's views as to true testamentary intent.
2. Wills.
In construction of will, question before court was not what testatrix actually intended or what she meant
to write, but rather was confined to a determination of the meaning of the words used by her.
3. Wills.
Any evidence is admissible which, in its nature and effect, simply explains what testator has written, but
no evidence can be admissible which, in its nature or effect, merely shows what he intended to have
written.
4. Wills.
Question in expounding a will is not what testator meant, as distinguished from what his words express,
but merely what is the meaning of his words, and extrinsic evidence, in aid of exposition of his will must be
admissible or inadmissible with reference to its bearing on issue which such question raises.
5. Wills.
Codicil, which was drawn by testatrix herself, giving to her husband a liveable wage until his death not
to exceed $200 a month up to $2,400, was a bequest of $2,400 to husband and not a bequest of $2,400 a
year.
6. Wills.
Court, in construing will, may not prefer one inconsistent provision over another without invading the
field of testamentary intent, and if the two provisions can not stand together, both must fall.
OPINION
This is an appeal from an order of the trial court in administration of a decedent's estate
directing the payment of a cash bequest pursuant to petition for distribution filed by the First
National Bank of Nevada as Executor of the decedent, Edna Umbaugh Jones. The sole
question upon this appeal concerns construction of the will; whether in directing payment of
the cash bequest the court erred in its construction.
The clause in question is contained in a codicil drawn by the decedent herself. It reads To
my husband, John Paul Jones,
Paul Jones, I bequeath a liveable wage until his death not to exceed $200 a month up to
$2,400.
The legatee contends that this is an unambiguous bequest of a life income of not to exceed
$200 a month; that the words up to $2,400 must be read to mean up to $2,400 a year; that
to read these words in any other way would be to create an ambiguous limitation upon the
bequest, which limitation by virtue of its ambiguity must fall. In the alternative, the legatee
contends that if the bequest as he construes it be not clear, at least an ambiguity exists which
should be resolved by resort to extrinsic evidence. Evidence was offered by him for this
purpose but was rejected by the court.
The court held that the bequest was an unambiguous cash bequest of $2,400 payable at not
to exceed $200 a month from death of testatrix. More than a year having elapsed since the
death the court ordered the executor to pay to the legatee forthwith the sum of $2,400. The
legatee has taken this appeal.
[Headnote 1-4]
At the outset the limits of the court's power to construe the language of the will should be
noted. A court may not vary the terms of a will to conform to the court's views as to the true
testamentary intent. The question before us is not what the testatrix actually intended or what
she meant to write. Rather it is confined to a determination of the meaning of the words used
by her. As stated by Wigram (Extrinsic Evidence in Aid of the Determination of Wills,
Second American Edition, pages 53 and 54), * * * any evidence is admissible which, in its
nature and effect, simply explains what the testator has written; but no evidence can be
admissible which, in its nature or effect, is applicable to the purpose of showing merely what
he intended to have written. In other words, the question in expounding a will is notWhat
the testator meant? as distinguished fromWhat his words express? but simplyWhat is the
meaning of his words? And extrinsic evidence, in aid of the exposition of his will,
aid of the exposition of his will, must be admissible or inadmissible with reference to its
bearing upon the issue which this question raises. See also cases in Anno. 94 A.L.R. 257.
Certainly it may be said that the clause of bequest, giving the words their ordinary
meaning, contains two inconsistent testamentary provisions: One, for an income for life not to
exceed $200 a month, and second, for a sum not to exceed $2,400 at $200 a month. In this
respect it may be said that the bequest is ambiguous. It should be noted, however, that the
ambiguity is not in the meaning of the words used. The words are not equivocal. There is no
latent ambiguity. The words themselves are of such common usage that they can hardly be
said to be subject to construction. It must in good sense be recognized that under no accepted
usage can the words up to $2,400 be read to mean up to $2,400 a year. The ambiguity
exists solely for the reason that two apparently inconsistent provisions have been made.
Appellant's contention that, as a matter of law, the provision of a life income must prevail
is without merit. His authorities, In Re Murray's Estate, 70 Cal.App.2d 300, 160 P.2d 880,
and Noble v. Noble, 205 Oklahoma Rep. 91, 235 P.2d 670, 26 A.L.R.2d 1200, deal with
cases where the clause of bequest can be said to stand alone and unambiguous. The clause of
limitation itself created the ambiguity in respect to the otherwise unambiguous bequest. In the
case before us there is but one clause. Neither bequest nor limitation can be said to stand
alone and be clearly ascertainable.
We may not, then, ignore either of the two inconsistent provisions without changing or
varying the terms of the will. To give to the words used any other than their recognized
meaning or to hold that extrinsic evidence may be admitted for that purpose would be to
sanction the changing of the will for the purpose not of enforcing an unambiguous bequest
but rather of rendering an ambiguous bequest unambiguous. We shall, by varying the will for
such purpose,
the will for such purpose, have invaded the field of testamentary intent. If the ambiguity, then,
is to be resolved, the two provisions must be reconciled.
[Headnote 5]
The action taken by the court below might be said to have accomplished this end. Each of
the inconsistent provisions was treated as a limitation upon the other; $200 a month until
death, but only up to $2,400; $200 a month up to $2,400 but only until death. Accepting the
words used and giving to them their plain meaning, this would appear to permit a disposition
achieved without adding any words, or deleting any from the codicil.
[Headnote 6]
It is contended that this is no reasonable reconciliation since the limitation upon the life
income is such as to destroy the plain meaning of that provision. Even if this be so it cannot
strengthen the legatee's position. We still may not prefer one inconsistent provision over
another without invading the field of testamentary intent. If the two provisions cannot stand
together, both must fall. Ordinarily, then, such a patent ambiguity would result in the failure
of the entire bequest.
Such failure is, however, saved in this case by the fact that in one respect the testamentary
intent is clear; as to the minimum bequest intended. Under any possible construction of the
will a minimum of $2,400 at $200 a month (assuming the continued life of the legatee for one
year) was bequeathed. It may, then, be said that as to such minimum there is no ambiguity.
Under either position (that a reconciliation of the provisions is possible, giving to the
words used their plain meaning; or that it is not possible) the trial court must be affirmed.
____________
72 Nev. 126, 126 (1956) Chappellet v. Birbeck
HELEN BULLOCK CHAPPELLET, Appellant, v. F.V. BIRBECK, and FRANK M.
BIRBECK, Doing Business Under the Copartnership Name, F.V. BIRBECK CO.,
Respondents.
F.V. BIRBECK AND FRANK M. BIRBECK, Doing Business Under the Copartnership
Name, F.V. BIRBECK CO., Appellants, v. HELEN BULLOCK CHAPPELLET, Respondent.
Nos. 3873 and 3874
May 3, 1956. 296 P.2d 946.
Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,
Department No. 3.
Action by lessors for damages for breach of agricultural lease. The trial court found that
lessee had been justified in cancelling lease for insufficiency of water available for irrigation,
but that lessee was nonetheless liable in damages for failure to perform covenant to install
irrigation works. Both parties appealed. The Supreme Court, Badt, J., held that where water
was insufficient to irrigate land held by lessee under agricultural lease expressly predicated
upon existence of sufficient supply of water, and lessee cancelled lease and vacated premises
under provision authorizing cancellation for water insufficiency, lessee was not liable for
damages for failure to perform covenant to install irrigation works.
(Petition for rehearing denied July 11, 1956.)
Affirmed in part. Reversed in part.
Sinai & Sinai, of Reno, for Chappellet.
Springmeyer & Thompson, of Reno, for Birbeck.
1. Waters and Water Courses.
Where lessors had water right to divert and use five cubic feet per second of underground water, the
source of which was drain ditch which emptied into creek, and, though lessors had right to pump their
underground water from rediversion point in creek,
point in creek, point of diversion specified in certificate of state engineer was located in drain ditch,
absence of sufficient underground water in drain ditch to provide more than .085 c.f.s. made finding, that
underground water available was insufficient, mandatory, within agricultural lease provision authorizing
lessee to cancel if water was insufficient to irrigate land.
2. Water and Water Courses.
Where water right permit issued by state engineer was expressly limited to water available at point of
diversion, and lessee, in action by lessors for breach of lease, sought to prove insufficiency of water
available at point of diversion, such proof was not objectionable as attack upon lessors' water right, or upon
determinations of state engineer.
3. Water and Water Courses.
In action by lessors for damages for breach of agricultural lease, under which lessee had right to cancel if
water available for irrigation was insufficient, evidence as to extent of underground water applicable to
lessors' water right at point of diversion was properly received; such evidence clearly supported court's
finding that there was an insufficiency of water; and court's conclusion that lessee had right to cancel lease
properly followed therefrom.
Where water was insufficient to irrigate land held by lessee under agricultural lease expressly predicated
upon existence of sufficient supply of water, and lessee cancelled lease and vacated premises under
provision authorizing cancellation for water insufficiency, lessee was not liable in damages for failure to
perform covenant to install irrigation works.
Where, in lessors' action for breach of agricultural lease containing allowance of attorney fee to
prevailing party in event of litigation over lease, it was determined that lessee's cancellation of lease was
justified under lease by insufficiency of water available for irrigation, and that lessee was not liable in
damages, attorney fee would be awarded lessee, not lessor.
OPINION
On this appeal and cross appeal, revolving about an agricultural lease and the acts of the
parties thereunder, the main points presented for our consideration are (1) the sufficiency of
the evidence to support the court's finding of an insufficiency of water to irrigate the specified
acreage, (2) the propriety of the court's conclusion,
based thereon, that under the terms of the lease the lessee thereupon rightfully canceled the
same, and (3) the lessee having admitted that she had not installed the irrigation works
required under the provisions of the lease, the propriety of the court's conclusion that by
reason of the terms of the instrument she was liable in damages for such failure despite the
finding and conclusion above recited.
We have concluded (1) that the finding of insufficiency of water is amply supported by the
evidence and (2) that under the terms of the lease this finding justified the conclusion that the
lessee was entitled to cancel the same; but (3) that the finding of insufficient irrigation water,
and the consequent conclusion that the lessee was therefore entitled to cancel, compelled the
further conclusion, under the terms and conditions of the instrument, that the lessee was not
liable in damages to the lessors by reason of the lessee's failure to install the irrigation works.
The lessors were the plaintiffs below and the lessee the defendant. Involved here are an
appeal by the defendant lessee and a cross appeal by the plaintiff lessors. The parties had
entered into an agricultural lease for a term of five years, commencing July 1, 1952, at a
rental of $5000 per year. Initial rental payment of $7500 was paid, together with a $2500
payment January 1, 1953, and a like payment July 1, 1953. On July 27, 1953 the lessee
notified the lessors of her election to terminate the lease, relying upon a provision thereof
hereinafter discussed at some length, vacated the premises and surrendered the same to the
lessors. On September 28, 1953 plaintiffs brought their action for damages predicated upon a
breach of the lease by the lessee, seeking judgment not only for the stipulated rental (less the
fair rental value for the balance of the term) but also for damages by reason of the lessee's
breach of her covenant to install certain specified irrigation works. Defendant in her answer
admitted vacating the leased premises and alleged an insufficiency of water supply for
irrigation and her consequent right to cancel under the terms of the lease,
and her consequent right to cancel under the terms of the lease, together with justification, by
reason of the insufficency of the water, of her failure to install the contemplated irrigation
system. After a pretrial conference the court at the commencement of the trial stated: The
principal issue in this case is whether or not there was sufficient water to cultivate all of the
arable land which was leased by the plaintiffs to the defendant. Now, it has various
ramifications but I understand that to be the principal issue. It becomes important for us to
consider the provisions of the lease that bear upon a determination of the controversy in the
trial court and the issues raised on this appeal.
Paragraph 3 requires the lessee to use the premises solely for agricultural and livestock
purposes and for purposes incidental thereto and to farm, cultivate, irrigate and plant the
arable portions of the property if there is sufficient water so to do. Paragraph 8 contained,
among other things, the following clause: Within a reasonable time, except beyond the
control of the Lessee, after Lessee takes possession of the leased property, Lessee, at her sole
cost and expense, will install and place in operation an electric power line to convey public
utility electric power to the pumps on said leased real property and a twelve (12), or larger,
inch irrigation pipeline from the point of intake to the upper ditch on said leased real
property. Paragraph 14 provided that in the event of litigation a reasonable attorney fee
should be fixed by the court in favor of the prevailing party. Section 15 included an option to
the lessee to purchase the property for $150,000.
Paragraph 17 is as follows: It is understood and agreed between Lessors and Lessee that
this lease is predicated upon a sufficient supply of water available on or from the leased lands
of Lessors for the irrigation and growing during the full growing season of crops consisting in
whole or in part of alfalfa hay on at least 450 acres of the arable lands of said leased premises.
In the event that there is an insufficient supply of water from or on the leased lands of
Lessors available to properly irrigate and grow the aforesaid crops for the complete
growing season in any one year on said 450 acres of arable land as aforesaid,
from or on the leased lands of Lessors available to properly irrigate and grow the aforesaid
crops for the complete growing season in any one year on said 450 acres of arable land as
aforesaid, then Lessee shall have the right, at her election, to cancel this lease upon written
notice to Lessors, and, in this event, Lessee shall not be obligated or liable in any respect to
Lessors by reason thereof; and all advance rentals shall be pro-rated forthwith as of the date
of said written notice.
Paragraph 18 reads, in part, as follows: Water: In addition to the rights granted to Lessee
as hereinabove set forth, if at any time during the term of this lease the water grants or water
permits issued by the State of Nevada in respect to the leased real property or waters, water
rights, ditches, ditch rights, appurtenant to the land, are unreasonably decreased for any
reason except: (a) the failure of Lessee to beneficially use all of such water; or (b) any other
act or omission of the Lessee, Lessee, upon written notice to Lessors, may terminate this lease
forthwith, provided, however, that Lessee shall give such written notice of termination to
Lessors of the happening of any of the events hereinabove set forth. Upon any such
termination the rents hereunder shall be pro-rated on the basis that the semiannual rent
reserved hereunder is $2500, payable in advance, except as hereinabove provided. Lessors
shall be entitled to the rentals on said basis for the full unexpired portion of the term to the
date of termination; if Lessors have received rents in advance, in respect to an unexpired
portion of the term, they shall pay Lessee the pro-rated portion of any rents paid in advance
attributable to the unexpired portions of the term.
Paragraph 23 reads as follows: Lessors agree to take whatever steps are necessary and
proper to perfect their rights to all the waters to which they are entitled, either under the
pending applications filed in the Office of the State Engineer of the State of Nevada, or
otherwise.
Pursuant to the finding of insufficient water the court made the following conclusion: On
July 27, 1953 defendant was entitled to cancel said lease,
defendant was entitled to cancel said lease, that defendant, on said date, did cancel said lease
and therefore was entitled to vacate said premises and to be exonerated and discharged from
all future performance of any obligation imposed by said lease. The court made the further
finding: On July 27, 1953 defendant rightfully canceled said lease in accordance with the
terms of said lease.
Plaintiffs (lessors) possessed three established water rights appurtenant to the lands
involved. Of these we need consider but one. Without it there was a clear insufficiency. This
was a right to divert and use five cubic feet per second (5 c.f.s.) or 1,787.82 acre-feet of
underground water with a priority of 1947 granted by certificate of the state engineer. The
source of this underground water was a drain ditch varying from four to six feet in depth
which served to drain an airfield near the lessors' lands and which emptied into Steamboat
Creek, a tributary of the Truckee River. Lessors were given a right to pump their underground
water from a point (referred to as a rediversion) in Steamboat Creek, but the point of
diversion specified in their certificate was located in the drain ditch.
[Headnote 1]
Defendant's case was based upon testimony of qualified experts to the effect that there was
not sufficient underground water in the drain ditch to provide more than .085 c.f.s. under
lessors' water right. This testimony was based upon measurements made at or near the
specified point of diversion. In no respect was it rebutted. Unless it was rejected by the trial
court, no other finding could have been made than that the underground water available was
insufficient.
Lessors first contend, as a matter of law, that the appropriate question of fact was not
whether there was sufficient underground water in the drain ditch to meet their water right,
but whether there was sufficient water in Steamboat Creek at the pumping point. They
contend that their water right gave them the right to pump that amount of water at that
point.
amount of water at that point. They contend that, for a court to entertain evidence such as was
received below is to permit an improper attack upon their water right and upon the
determinations of the state engineer upon which it was based.
We must reject these contentions. The state engineer's original preliminary approval of
lessors' application provided: This permit is issued subject to all existing rights on the source
and with the understanding that the permit will be limited to the water available at the point
of diversion * * *. (Emphasis supplied.) This language was reiterated by the state engineer in
his final ruling on a protest of the application by one Lester C. Jones and others.
[Headnote 2]
Defendant's evidence was no attack upon lessors' water right. The evidence served simply
to establish factually the extent of the limitations which the certificate recognized to exist.
Lessors attack the testimony of defendant's witnesses upon another ground. Those
witnesses testified that water in the drain ditch did not all come from an underground source;
that the greater portion of the water in that ditch (all but .085 c.f.s.) came from surface
drainage. This surface drainage forms a part of the waters of the Truckee River and its
tributaries, all of which were subject to prior appropriations as adjudicated by what is known
as the Truckee River Decree, administered through a watermaster. Lessors contend that this
constituted an attack upon their water right in that the testimony in this regard was not factual
but was based upon the witnesses' conclusions, contrary to those of the state engineer, that the
drain ditch was not a proper source of underground water nor a proper method of tapping an
underground water source. From a study of the record we would not so view the testimony.
The nature of the measurements made by the witnesses, as we understand their testimony,
we understand their testimony, was to check the sources of surface flow into the ditch,
measure that flow, and deduct it from the total flow. If there be any dispute as to the propriety
of the drain ditch as a source or means for the tapping of underground water, we do not reach
that question in this matter.
[Headnote 3]
We conclude that it was proper for the court below to receive evidence as to the extent of
underground water applicable to lessors' water right at the point of diversion; that such
evidence clearly supported the court's finding that there was an insufficiency of water; and
that the court's conclusion as to the lessee's right to cancel naturally and properly followed.
We are therefore next confronted with the question as to whether, in view of the findings
and conclusions just discussed, the court's finding that defendant wrongfully failed to install
or place in operation the electric power line or the irrigation pipeline from the point of intake
of the pumps to the upper ditch, or the finding of the reasonable cost thereof in the sum of
$34,828.22, or the conclusion that plaintiffs were entitled to judgment for damages in such
sum (subject to a refund to defendant of $7133 advance rentals) may be supported.
[Headnote 4]
In the first place, the insufficiency of available water being found as a fact, and the
defendant's right to cancel the lease having been properly concluded by the court as a result of
such finding, under the terms of the lease itself it would further logically appear that the
clause relieving the defendant of liability in any respect, in such event, would seem to
preclude a recovery by the plaintiffs of damages resulting either from defendant's failure to
pay further rentals during the term of the lease or from her failure to install and place in
operation the contemplated irrigation works. Defendant pointed out in her opening brief on
appeal that the only possible basis of awarding of damages for failure to install the
irrigation works
basis of awarding of damages for failure to install the irrigation works (in view of the prior
finding of insufficient water and the conclusion justifying cancellation) would be in the
conclusion that the covenant to install the irrigation works was an independent covenant.
Plaintiffs' only response to this contention was that they were entitled to be placed in as good
a position as they would have been in had the defendant complied with the requirements of
this covenant; in other words, that they would have had their 450 cultivable and irrigable
acres with pumps, power line and pipeline installed ready for the irrigation thereof, and that
such was their right under the terms of the lease. Without water available for use in such
proposed irrigation system, upon which availability the lease was predicated, such conclusion
is neither logical nor realistic. It is significant that the lessee's covenant under section 8 of the
lease was not only to install the power line and pipeline but also to place it in operation. It is
neither logical nor realistic to conclude that the failure to install and operate the contemplated
irrigation system was such an independent covenant of the lease as to entitle lessors to
damages for the failure of construction when it is found in the same breath that the water was
not there to be pumped, with power that could not be used, through a pipeline that would
remain dry, into a ditch that would carry no water.
The judgment in favor of the lessors, plaintiffs below and cross appellants herein, for
damages for failure to install the irrigation works and for damages for future rentals during
the term of the lease must therefore be reversed. This being so, the assignment made in the
cross appeal of the lessors that it was error for the court to credit the advance rentals against
the judgment for damages becomes moot and need not be considered.
The lease, as noted, provided for the allowance of an attorney fee to the prevailing party in
the event of litigation over the lease. The plaintiffs alleged in their complaint that $5000 was
a reasonable attorney fee and they sought,
complaint that $5000 was a reasonable attorney fee and they sought, among other things, a
judgment for this sum. At pretrial conference it was agreed that a reasonable attorney fee to
be assessed in favor of the prevailing party was $2500 and the court awarded the plaintiffs
judgment in this sum on this item, in addition to the plaintiffs' costs. This likewise must be
reversed.
[Headnote 5]
It is therefore ordered: (1) that the judgment that defendant was entitled to cancel the lease
by reason of insufficiency of water to irrigate 450 acres is affirmed; (2) that the judgment
awarding damages to the plaintiff lessors is reversed; (3) that the judgment awarding $2500
attorney fees and costs to the plaintiffs, cross appellants herein, is reversed; (4) that the cause
is hereby remanded to the district court with directions to enter judgment in favor of
defendant, together with her costs and $2500 attorney fee; (5) that appellant, defendant
below, recover her costs in this court.
____________
72 Nev. 135, 135 (1956) Ripps v. City of Las Vegas
ALFRED RIPPS, and MARIE DOROTHY RIPPS, Appellants, v. CITY OF LAS VEGAS, a
Municipal Corporation, Et Al, Respondents.
ALFRED RIPPS, Appellant, v. CITY OF LAS VEGAS, a Municipal Corporation, Et Al.,
Respondents.
No. 3925
May 18, 1956 297 P.2d 258
Appeals from orders of the Eighth Judicial District Court, Clark County; Frank McNamee,
Judge, Department No. 1, denying injunctions pendente lite.
Actions by lessees against city to enjoin demolition of buildings. The trial court denied
lessees' motions for injunctions pendente lite and lessees appealed.
injunctions pendente lite and lessees appealed. The Supreme Court, Merrill, C. J., held that
where many defective features of building combined to influence city in issuing demolition
order but defective parapet wall which threatened to fall to street below was only defect
which was regarded as an immediate hazard to public and the wall had been removed
pursuant to condition of Supreme Court's temporary restraining order against demolition
pending appeal by lessees from order denying injunction pendente lite, in view of changed
conditions, a further hearing was necessary on question of immediate hazard.
Remanded for further hearing.
Rudiak, Horsey & Lionel and Morris Pepper, of Las Vegas, for Appellants.
Howard W. Cannon, City Attorney, and Ralston O. Hawkins, Assistant City Attorney, of
Las Vegas, for City of Las Vegas.
George E. Marshall, of Las Vegas, as Amicus Curiae.
1. Injunction.
In action by lessees against city to enjoin demolition of premises, adequacy of remedy at law in damages
was not so clear as to justify denial of injunction pendente lite.
2. Injunction.
In actions by lessees against city to enjoin demolition of premises, where denial of motions for
injunctions pendente lite would permit city to demolish buildings before trial on merits, improbability of
ultimate recovery by plaintiffs was not sufficient ground alone on which to base denial of motions.
3. Injunctions.
In actions by lessee against city to enjoin demolition of premises, that city had issued a second demolition
order since commencement of action and plaintiffs sought injunction against second order, did not justify
denial of injunction pendente lite.
4. Injunction.
If immediate demolition of premise is necessary in interests of public safety, interests of lessees of
premises must give way before paramount public interest and courts should not interfere through issuance
of injunction or injunction pendente lite.
5. Municipal Corporations.
Caution should be exercised by court in interfering with administrative action of city in ordering
demolition of building as unsafe.
Where many defective features of building combined to influence city in issuing demolition order but
defective parapet wall which threatened to fall to street below was only defect which was regarded as an
immediate hazard to public and the wall had been removed pursuant to condition of Supreme Court's
temporary restraining order against demolition pending appeal by lessees from order denying injunction
pendente lite in suit to enjoin demolition, in view of changed conditions, a further hearing was necessary on
question of immediate hazard and case would be remanded to trial court.
If demolition of privately owned building by city is to be restrained, it should be by act of trial court
which is by its nature more responsive to those changes in conditions which may well occur from day to
day.
OPINION
These are appeals from orders of the trial court denying injunctions pendente lite. The suits
are brought by appellants as lessees of a store building in Las Vegas to enjoin the city of Las
Vegas from demolition of the premises and from cancellation of licenses to engage in
business upon the premises. Denial of temporary injunction thus permits the city to proceed
to demolition before trial upon the merits. Appellants contend that the action of the trial court
constitutes abuse of judicial discretion since, in effect, it amounts to destruction of the subject
matter of their suits.
In two connected cases we have already dealt with one aspect of the lessees' problems
(Ripps v. Kline, 70 Nev. 510, 275 P.2d 381; Goldring v. Kline, 71 Nev. 181, 284 P.2d 374).
These were cases brought by the lessees, (and lessees of adjoining property), against their
lessor to compel the lessor to repair the premises and thus avoid the necessity for demolition.
The landlord desires to submit to demolition, be rid of appellants' lease, and put the premises
to other purposes.
put the premises to other purposes. In the cited cases we held that the lessor under the lease
and in the light of the city's demolition order could not be compelled to repair. Remaining
undetermined by those cases, however, was the question of the propriety of the city's order. In
Goldring v. Kline we stated, Lessees contend that, considering the repairability of the
building, the city should not have ordered demolition. If the city's safety order was for any
reason improper, it can hardly be challenged in an action to which the city is not a party. In
this matter we must accept the demolition order as it appears upon its face: a considered and
proper determination that in the interests of public safety and in the light of the condition of
the premises, the least the city could demand of the owner was demolition. Further we
stated, This, of course, is not to say that rights other than those of the owner may be
disregarded by municipal authorities; that their safety orders may ignore reason and practical
necessity so long as the owner consents; or that their orders may be based not upon their
judgment as to what is necessary to public safety but upon private agreement with interested
parties; all in disregard of the rights of others. As we have already noted, however, if the city's
action for any reason was improper it may not be challenged in this case.
By the present suits the lessees directly challenge the propriety of the city's order. Should
they prevail below and successfully establish that, considering the condition of the premises
and the needs of the city in the interests of public safety, demolition was an unreasonable
requirement, the obligation of the lessor to repair may well be affected. Should the order of
the trial court be permitted to stand, all rights to demand repair of the lessor may well be lost
regardless of the outcome of the suits following trial upon the merits.
[Headnote 1]
Respondents have supported the action of the trial court upon many grounds. It is first
contended that the lessees have an adequate remedy at law in damages.
lessees have an adequate remedy at law in damages. If money damages are to result from the
present suits it would appear that they must be levied against the city. It is perhaps worthy of
comment that this contention is made not by the city but by counsel for the landlord who
appears in this matter as amicus curiae upon our order. The complete adequacy of this remedy
can hardly be said to be clear without first disposing of questions of law not yet presented for
our determination.
[Headnote 2]
Respondents also contend that it is so clear upon the facts that appellants cannot prevail
upon the merits that the trial court properly refused a preliminary injunction. While in a
proper case the probability of ultimate recovery by the plaintiff is a relevant consideration
upon motion for temporary injunction, in this case to base a denial upon this ground alone
would be tantamount to a determination of important factual issues by summary judgment.
[Headnote 3]
Respondents also contend that since commencement of the suits below the city has issued
a second demolition order; that the injunction sought below is against this second order and,
therefore, cannot be supported by the original complaints. We see no reason why any
procedural problem posed by these facts cannot very simply be disposed of under N.R.C.P.
Such technicalities can hardly weigh against the drastic effect of the denial of an injunction.
[Headnote 4]
But one contention of respondents has given us serious concern. It is contended that the
record demonstrates that immediate demolition of the premises is necessary in the interests of
public safety. If such be the fact the courts of this state should not interfere through issuance
of an order restraining demolition. The interests of appellants must give way before the
paramount public interest.
In support of its contention respondents point to the administrative determination of the
city as set forth in its demolition order. The building was expressly found to be an unsafe
building. It was ordered that demolition commence within 48 hours. Respondents also point
to the determination of the trial court following hearing upon appellants' motion for
temporary injunction. The court expressly found that the building is an immediate hazard to
the public.
[Headnote 5]
Respondents contend that these determinations should be conclusive upon this appeal.
Much authority has been cited to us to the general effect that courts will assume that
municipal authorities have full knowledge of local conditions and that their determinations as
to the needs of public safety will, upon their face, be regarded as valid; that courts are ever
reluctant to interfere with such determinations and should in such cases exercise great
caution. We agree with these general principles. We recognize that our knowledge of local
conditions necessarily is confined to the matters set forth in the record before us; that caution
should be exercised in any interference with administrative action of this sort, particularly so
where that action has the support of judicial determination by the trial court.
From the record, however, one fact appears clear: While many defective features of the
building combine to influence the city in taking its action, there was but one defect which was
regarded as an immediate hazard to the public. This was a defective parapet wall which
threatened to fall to the street below. In its demolition order this defect was specified as
follows: That the front parapet wall is structurally unsafe and unstable and in danger of
falling and constitutes an immediate hazard to persons using the public thoroughfare and to
persons entering said building. No other specified defect was indicated to be an imminent or
immediate hazard.
Upon the hearing before the trial court the city's only witness was its supervisor of
building and safety.
In part his testimony was as follows: Q. In your investigation and examination of the
building, was there any other immediate hazard that you determined in your opinion was
present there at that time, other than the wall, the front wall? A. Immediate hazard? Q. Yes.
A. Well, primarily the immediate hazard to the building is that front wall. Further, on cross
examination, he testified: Q. If the front parapet and also the front portion of the wall
enclosures, the attic space, were repaired, would that render the front portion of the building
safe? A. If it were repaired? Q. Yes. A. You mean by removal or rebuilding? Q. Either by
removal and rebuilding, or by reinforcement of the existing parapet and wall. Would that
render the front portion of the building safe to the public? A. If it was done in a safe manner,
and approved, yes. I guess so.
When this appeal was first taken this court entered its temporary restraining order against
demolition pending the appeal, which order remains in effect. Pursuant to a condition of that
order, the parapet wall has now been removed.
While justification for the demolition order remains for determination upon the merits, it
would now appear that the only defect which, at the time of the hearing below, appeared to
the city to be an immediate hazard to the public, has been eliminated. Nothing remains in the
record before us which would appear to justify demolition prior to trial upon the merits upon
the basis of essential public safety. While both the demolition order and the testimony of the
city official emphasized the existence of a fire hazard (which carries with it its own inherent
element of immediacy), it does not appear from the record that the danger in this respect
could not reasonably be eliminated or substantially lessened without the necessity for resort to
immediate demolition.
[Headnotes 6, 7]
In view of these changed conditions, we believe that a further hearing should be had upon
the question of immediate hazard. In the public interest, if demolition is to be restrained, it
should, we feel, be by act of the trial court which is by its nature more responsive to those
changes in conditions which may well occur from day to day in cases of this sort.
trial court which is by its nature more responsive to those changes in conditions which may
well occur from day to day in cases of this sort.
It is ordered that the matter be remanded to the court below for further hearing upon
appellants' motion for injunction pendente lite, and with instructions that, upon posting of
bond in a sum to be fixed by the trial court, a temporary restraining order issue against
demolition until such hearing can be had. The restraining order issued by this court shall
remain in effect until notice by appellants that the restraining order of the trial court has
issued. Costs to appellants.
____________
72 Nev. 142, 142 (1956) Moran v. District Court
THOMAS L. MORAN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, In and For the County of Washoe, and THE HONORABLE
GORDON W. RICE, Judge Thereof, and HARRY K. BROWN, Clerk Thereof, Respondents.
No. 3948
May 22, 1956. 297 P.2d 261.
Original prohibition proceeding was brought in the Supreme Court against the Second
judicial district court of the State of Nevada, in and for the county of Washoe, and the judge
and the clerk thereof to restrain them from proceeding further with a suit for separate
maintenance. The Supreme Court held that where wife brought suit in Nevada against
husband, who was a resident of Texas, for separate maintenance and custody of minor
children, and under court order for publication of summons or personal service outside the
state, service was made on husband by delivering process at his home in Texas to his
housekeeper, he being absent from his home at the time, no valid service was had on the
husband.
home at the time, no valid service was had on the husband.
Writ granted.
Rehearing denied June 20, 1956.
Vargas, Dillon & Bartlett, of Reno, for Petitioner.
Summerfield & Heward, of Reno, for Respondents.
1. Process.
Where service is made within a state, it may be by personal or substituted service as specified in Rules of
Civil Procedure, but when made outside the state, in lieu of publication, it must be by personal service.
Rules of Civil Procedure, Rule 4(d)(6), (e)(1)(iii), (e)(2).
2. Husband and Wife.
Where wife brought suit in Nevada against husband, who was a resident of Texas, for separate
maintenance and custody of minor children, and, under court order for publication of summons or personal
service outside the state, service was made on husband by delivering process at his home in Texas to his
housekeeper, he being absent from his home at the time, no valid service was had on the husband. Rules of
Civil Procedure, Rule 4(d)(6), (e)(1)(iii), (e)(2).
OPINION
Per Curiam:
This is an application for writ of prohibition to restrain respondent court and judge from
proceeding further with a case now pending before it, in which case petitioner is named as
defendant. The sole question raised is whether under N.R.C.P. the petitioner has effectively
been served with process in the case below. In that case petitioner appeared specially to move
to quash service of process. The motion was denied and this proceeding was then brought,
petitioner contending that service had not been made and that respondent court is without
jurisdiction to proceed with the case.
The suit below was brought against petitioner by his wife. She seeks separate maintenance
and custody of the minor children of the parties.
the minor children of the parties. Petitioner is a resident of Texas. Under court order for
publication of summons or personal service outside of the state, service was made upon
petitioner by delivering the process at his home in Texas to his housekeeper, he being absent
from his home at the time.
Respondents support this service as effective under the provisions of Rule 4(d)(6)
N.R.C.P. The preceding subparagraphs of Rule 4(d) provide for service of process within the
state upon corporations, incompetents and political subdivisions. Subparagraph (6) reads, In
all other cases to the defendant personally, or by leaving copies thereof at his dwelling house
or usual place of abode with some person of suitable age and discretion then residing therein,
or by delivering a copy of the summons and complaint to an agent authorized by appointment
or by law to receive service of process.
Petitioner contends that this subparagraph cannot be construed to apply to service outside
of the state. Rule 4(e) deals with other methods of making service. Subparagraph (1) of that
rule provides for service by publication and reads in part, [4(e)(1)(iii)], When publication is
ordered, personal service of a copy of the summons and complaint, out of the state, shall be
equivalent to completed service by publication and deposit in the post office, * * *.
Subparagraph 4(e)(2) provides for the making of personal service outside of the state. In
part it reads, Such service shall be made by delivering a copy of the process together with a
copy of the complaint in person to the person served.
[Headnote 1]
Read in context with the preceding subparagraphs, Rule 4(d)(6) might reasonably be
construed to apply only to service within the state. That this is the proper construction is
made abundantly clear by the fact that the subject of personal service outside the state has
expressly been dealt with in Rule 4(e)(2). The rules thus provide that where service is made
within the state it may be by personal or substituted service as specified.
thus provide that where service is made within the state it may be by personal or substituted
service as specified. When made outside the state, in lieu of publication, it must be by
personal service. Substituted service at the defendant's residence is not sufficient since it is
not provided for. Where such separate provisions exist relating to service within and without
the state, substituted service outside of the state is ineffective. Thomas v. Thomas, 96 Me.
223, 52 Atl. 642, 90 Am.St.Rep. 342.
[Headnote 2]
In the case below, then, service was not had upon the petitioner, and the trial court is
without jurisdiction to proceed.
It Is Ordered that a peremptory writ of prohibition issue as prayed. No costs are allowed.
____________
72 Nev. 145, 145 (1956) Sobrio v. Cafferata
ALEX SOBRIO, Appellant, v. M.C. CAFFERATA, and W.H. PEARSON, Respondents.
No. 3915
May 24, 1956. 297 P.2d 828.
Appeal from the Second Judicial District Court, Washoe County; Gordon W. Rice, Judge,
Department No. 3.
Action for injuries sustained by plaintiff while attempting to deliver fuel oil from a tank
truck to respondents' building based upon a city ordinance. Verdict for plaintiff in the lower
court and respondents' motion for judgment non obstante veredicto was granted and the
plaintiff appealed. The Supreme Court, Eather, J., held that plaintiff was not entitled to
recover where it appeared that the respondents might have fully complied with the ordinance
and yet the injury to the plaintiff could have occurred.
Affirmed.
Ernest S. Brown, and Wm. L. Hammersmith, of Reno, for Appellant.
Vargas, Dillon, Bartlett & Garroway, of Reno, for Respondents.
1. Judgment.
Where respondents moved for a directed verdict in their favor at the close of plaintiff's evidence and
respondents offered no evidence and immediately rested and no second formal motion was made by them
for a directed verdict but they submitted an instruction to that effect, respondents did not waive their rights
to move for judgment n. o. v. by failing to make a motion for a directed verdict at the close of the case.
Rules of Civil Procedure. Rule 50(a, b).
2. Trial.
Questions involving the existence and interpretation, construction or meaning and effect of the statute are
usually questions for the court.
3. Negligence.
In action for injuries sustained while plaintiff was attempting to deliver fuel oil from a tank truck to
respondents' building on ground that respondents did not provide a guardrail in compliance with an
ordinance, plaintiff was not entitled to recover where the respondents might fully have complied with the
ordinance and the accident would still have occurred in that it appeared that the ordinance was intended
only for the protection of pedestrians on the sidewalk.
OPINION
The essential facts which evoked this litigation may be summarized briefly in the
following manner. Appellant, who was plaintiff in the trial court, received an injury while he
was attempting to deliver fuel oil from a tank truck to a building in the city of Reno, Nevada,
owned by respondents. His complaint alleged two causes of action, the first under the
common law and the second under a city ordinance which be believes is applicable. At the
trial, he abandoned the common law claim and insisted that defendants were liable because
they admittedly did not provide a guardrail in compliance with the ordinance.
the ordinance. The case was submitted to jury, which rendered a verdict in favor of plaintiff
against these respondents. A motion by respondents for judgment non obstante veredicto was
granted and plaintiff appealed.
[Headnote 1]
The first question raised and argued relates to the right of the trial court to enter judgment
n.o.v. At the close of plaintiff's evidence, respondents moved for a directed verdict in their
favor, which motion was denied. Respondents offered no evidence and immediately rested.
No second formal motion was made by them for a directed verdict but they submitted an
instruction to that effect, which the trial judge refused to give to the jury. Appellant contends
that respondents did not comply with Rule 50(a) of the Nevada Rules of Civil Procedure and
that they waived their right to ask for judgment n.o.v. by failing to make a motion for a
directed verdict at the close of the case.
Rule 50(a) provides that a motion for a directed verdict may be made at the close of the
evidence offered by an opponent or at the close of the case. Rule 50(b) is, in part, as follows:
Whenever a motion for a directed verdict made at the close of all the evidence is denied or
for any reason is not granted, the court is deemed to have submitted the action to the jury
subject to a later determination of the legal questions raised by the motion. * * * If a verdict
was returned the court may allow the judgment to stand or may reopen the judgment and
either order a new trial or direct the entry of judgment as if the requested verdict had been
directed.
The motion by respondents at the close of plaintiff's evidence satisfied the rule at that
point in the trial and, because they did not offer any evidence in defense, it may be considered
as a motion presented at the close of [the case]. Also, under the circumstances presented
here, we think the proposed instruction offered by respondents for a verdict in their favor is
the equivalent of a formal motion to that effect.
Plaintiff abandoned his asserted cause of action based upon alleged common law
negligence and relied entirely upon the failure by respondents to provide a guardrail as called
for in an ordinance of the city of Reno. Therefore, we have no concern with elements
involved in a common law negligence action, but we are confined to the ordinance, which is
as follows: It shall be unlawful for any person owning, controlling or having the possession
of, any cellarway, opening or entrance to any cellarway, basement or other excavation
beneath the sidewalk along any street or alley, to cause or permit the said cellarway, opening
or entrance to be opened, or remain open, except during the time said cellarway, opening or
entrance is actually in use, or to cause or permit the said cellarway, opening or entrance to
remain open without a proper guardrail around the same, said guardrail to be constructed of
iron, not less than three and a half feet from the ground level, and enclosed beneath said
guardrail and the ground level with iron mesh screen.
The fuel oil delivered by appellant was to be passed through a hose from the tank truck to
a container in the basement of respondent's building. Entrance for that purpose was through a
large opening in the sidewalk in front of the building on Center Street, that being a public
thoroughfare located in the heart of the city which bears much vehicular and pedestrian
traffic. The opening was normally closed by two steel doors, each about two feet wide and
five or six feet long, which were flush with the sidewalk when closed, fastened to hinges at
the outer sides and opened upward from the center so that when in position to permit access
to the basement they were upright from the sidewalk. They were operated by hand. It was a
cellar opening and basement entrance which is common in cities.
Appellant opened the steel doors and braced them with a chain provided for that purpose
so that the doors could not fall outward onto the sidewalk. His testimony is that the doors
were out and beyond the opening of the sidewalk level" when he had finished placing
them in position.
the sidewalk level when he had finished placing them in position. He then took the nozzle
end of the hose and started to descend the steps in the opening leading from the sidewalk to
the basement. When he was only part way down the steps, the south door fell inward upon
him and struck the top of his head. Appellant had delivered oil to those premises and had
opened the basement doors and used those steps, as he testified countless times before. The
record does not give any indication of what caused the door to fall inward; apparently nobody
knows the cause. Appellant testified that his hose did not come in contact with the door and
there is no evidence that any pedestrian or object on the sidewalk touched the door.
A careful reading of the ordinance makes it plain that respondents might have fully
complied with the ordinance and yet this unfortunate accident could have occurred. Appellant
argues that the guardrail and screen could have been placed vertically above the sides of the
opening after the doors had been raised, the guardrail thus being between the upright doors
and preventing the doors from falling inward while the guardrail was in place. But the
ordinance does not require the guardrail to be so placed. A guardrail and mesh fully
complying with the ordinance could have been erected outside and around both the opening
and the raised doors, that would not have prevented a door falling inward toward a closed
position and striking a person on the steps. A guardrail so placed would have been a
protection for a pedestrian on the sidewalk, which we deem a strong indication that the
ordinance was intended only for such protection.
It is significant that the ordinance required the guardrail to be not less than three and a half
feet from the ground levelin the present case one and a half feet higher than the open
two-foot cellar doors. Significant, too, is the absence from the ordinance of even the simplest
language requiring a safety device to keep the doors from falling.
[Headnotes 2, 3]
Whether or not the ordinance was applicable to the situation presented by appellant was a
question to be determined by the court. Usually, questions involving the existence * * *
interpretation, construction or meaning and effect of a statute * * * are questions for the
court. 53 Am.Jur., page 216. The trial judge would have been correct in granting
respondents' motion for a directed verdict. In setting aside the verdict for appellant and
entering judgment for respondents, he committed no error. Appellant simply did not present
the necessary foundation to support a claim upon which relief could be granted.
Appellant's assignments of error attack Rule 50 as unconstitutional and beyond the
rule-making power of this court. We have considered those points and find no merit in either
one.
The judgment is affirmed, with costs to respondent.
____________
72 Nev. 150, 150 (1956) Zolezzi v. Jackson
JACK ZOLEZZI, Also Known as GIACOMO ZOLEZZI, and ELAINE ZOLEZZI, His Wife,
Appellants, v. JOHN E. JACKSON and DOROTHY E. JACKSON, His Wife, Respondents.
No. 3838
May 31, 1956. 297 P.2d 1081.
Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,
Department No. 3.
Action to adjudicate water rights to property purchased by plaintiffs from defendants and
to enjoin defendants from interference therewith, wherein defendants contended that no water
rights passed with conveyance, and further that if deed did pass water rights it did so
inadvertently and contrary to intent of parties and should be reformed.
parties and should be reformed. The trial court granted plaintiffs' request as to the water rights
and enjoined defendants from interference therewith and defendants appealed. The Supreme
Court, Merrill, C. J., held that under the deed in question water appurtenant to land passed as
appurtenance and plaintiffs acquired legal title thereto and that there was no mutual mistake
in deed, as purchasers, at time of purchase, believed that water passed with land.
Judgment affirmed.
John Shaw Field and Morgan Anglim, of Reno, for Appellants.
John S. Belford, of Reno, for Respondents.
Under water law in arid western states and including Nevada, the water right itself, relating as it does to
land upon which it is applied, although in a sense incorporeal, nevertheless, by reason of its application
becomes an integral part of the freehold as the water and the land to which it is applied become so
interrelated and dependent on each other in order to constitute a valid appropriation that the former
becomes by reason of necessity appurtenant to the latter. St.1889, c. 113, secs. 1 et seq., 31; St.1903, c. 4,
sec. 1.
Where defendants conveyed land on which they acquired water rights by use prior to enactment of state's
water laws recognizing doctrine of appurtenance, and defendants' deed to plaintiffs conveyed the property
involved together with all and singular tenements, hereditaments and appurtenances thereunto belonging
or in any wise appertaining, under such deed water appurtenant to land in question passed as an
appurtenance and plaintiffs acquired legal title thereto. St. 1889, c. 113, secs. 1 et seq., 31; St.1903, c. 4,
sec. 1.
3. Reformation of Instruments.
In action by plaintiffs, who purchased land from defendants, for determination as to plaintiffs' water
rights on such land, wherein defendants alleged that it was mutually understood that no water rights were to
pass with land conveyed and that defendants had equitable title and right to reformation of deed to exclude
water rights expressly from grant, record disclosed that plaintiffs believed water passed with land at time
contract was executed for purchase of land and thus was sufficient to show deed was not subject to
reformation. St.1889, c. 113, secs. 1 et seq., 31; St.1903, c. 4, sec. 1.
Fact that purchasers of land accepted vendors' deed and paid purchase money after they had been notified
by vendors that no water passed with the land, was without equitable significance in subsequent action to
adjudicate water rights as to property purchased, in absence of waiver of estoppel of the purchasers.
OPINION
This is an appeal taken by the defendants below from a decree adjudicating water rights to
plaintiffs' property situated in Washoe County and enjoining defendants from interference
therewith. Plaintiffs purchased their property from defendants who have retained ownership
of adjoining premises. Defendants contend that no water rights passed with the conveyance.
Further, they contend that if their deed did pass water rights, it did so inadvertently and
contrary to the intent of the parties and should be reformed. Upon this appeal defendants
contend that the evidence does not support the findings and judgment of the trial court which
sat in this matter without jury.
The deed from defendants to plaintiffs conveyed the land involved, together with all and
singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise
appertaining * * *. No water rights were expressly granted or expressly excluded. The trial
court concluded and adjudged that 3.188 inches of water were appurtenant to the land and
passed under the quoted language in the deed.
Defendants' first contention is that as a matter of law no water was appurtenant to the land.
Defendants' water right was acquired by use prior to the enactment of the state's water
laws. It has been adjudged by court decree to have a use priority of January 14, 1878. The
first water legislation in this state was enacted in 1889, (An Act to regulate the use of water
for irrigation and for other purposes; for settling the priority of rights thereto; etc.
the priority of rights thereto; etc. 1889 Stats. of Nev., Ch. 113, p. 107). The act expressly
provided (sec. 31) This act shall, in no wise, be construed as impairing or abridging any
rights already vested * * * by virtue of the law heretofore in force.
The first legislative recognition of the doctrine of appurtenance was given in 1903: All
natural water courses and natural lakes and the waters thereof which are not held in private
ownership, belong to the public and are subject to appropriation for a beneficial use, and the
right to the use of water so appropriated for irrigation shall be appurtenant to the land
irrigated, and beneficial use shall be the basis, the measure, and the limit of the right. 1903
Stats. Nev., Ch. 4, p. 24, sec. 1.
Defendants contend that this provision operates prospectively and does not affect the
status of water rights theretofore acquired. They contend, in effect, that since there was no
legislative expression of the doctrine of appurtenance until 1903, water used under rights
acquired prior to 1903 is not appurtenant to the land upon which it is used. This does not
follow, however. Valid rights to the use of water were acquired prior to any legislation upon
the subject. The act of 1889 as quoted expressly recognized that water rights already may
have been acquired by virtue of the law heretofore in force. The question is whether, under
the law theretofore in force, water was appurtenant to the land upon which it was used.
[Headnote 1]
Upon this question the law of this state is settled beyond dispute. In Prosole v. Steamboat
Canal Co., 37 Nev. 154, 164, 140 P. 720, 723, this court stated, [T]he very right itself,
relating as it does to the land upon which it is applied, although in a sense incorporeal,
nevertheless, by reason of its application, becomes an integral part of the freehold. The water
and the land to which it is applied become so interrelated and dependent on each other in
order to constitute a valid appropriation that the former becomes, by reason of necessity,
appurtenant to the latter."
appurtenant to the latter. [Emphasis supplied.] Such would appear to be the universally
recognized law of waters in the arid western states. Frank v. Hicks, 4 Wyo. 502, 35 P. 475;
Thompson v. Short, 6 Wash. 2d 71, 106 P.2d 720; see 2 Kinney on Irrigation 1804. It took no
legislation to establish the doctrine of appurtenance in arid Nevada. By virtue of the nature of
the rights involved, such has been the established law of this state since waters first were
rightfully appropriated to beneficial use.
[Headnote 2]
The trial court, then, was correct in its conclusion that water appurtenant to the land in
question passed as an appurtenance under the deed. Plaintiffs by deed acquired legal title
thereto.
[Headnote 3]
Defendants assert an equitable title and right to reformation of the deed to exclude water
rights expressly from the grant. This right they base upon alleged mutual mistake. They
contend that from the outset all parties understood that no water rights were to pass with the
land. They contend that the record conclusively establishes this understanding and that no
contrary finding was available to the trial court.
It must be conceded that defendants have made out a convincing case as to their own
intent. Further, (subject to substantial dispute by plaintiffs), they have presented evidence
which, if believed, would tend to show that they had successfully persuaded plaintiffs that no
water rights had passed under their deed and that plaintiffs' only rights were to such waste
water as defendants chose to let them have. Defendants contend that substantially all water
received by plaintiffs while on the land was of such a character.
This does not reach the issue of mutual mistake, however. The evidence is clear that the
land was sold to plaintiffs under a contract negotiated and executed for defendants by an
authorized agent. That agent testified that he understood that water was to go with the
land;
that he understood that water was to go with the land; that he represented to plaintiffs that the
land had an ample supply of water. When the contract was executed the land was under
irrigation and, to some extent, under cultivation. It was then enjoying water. Both plaintiffs
testified that they believed that water passed with the land and would not have contracted to
buy had they believed otherwise. It is their intent at the time of contract which is material, not
some subsequent belief to which they may reluctantly and erroneously have been persuaded.
The deed, then, whether mistakenly or not from defendants' point of view, actually conveyed
to plaintiffs what they had contracted to receive and, at the time of contract, understood they
would receive. It is not subject to reformation.
[Headnote 4]
Defendants emphasize that purchase money was paid by plaintiffs and their deed accepted
by them after they had been notified by defendants that no water passed with the land. In the
absence of waiver or estoppel, neither of which appears, these facts are without equitable
significance.
Affirmed.
____________
72 Nev. 156, 156 (1956) Ringelberg v. United Association of Journeymen
JAMES D. RINGELBERG; and WILLIAM K. STINE, dba A-1 Plumbing Supply Company,
Appellants, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA, Local Union 525, Las Vegas, Nevada; FRANK E. LONG, Individually; FRANK
E. LONG, as Business Agent of Local Union 525; JOHN CARTER, as Assistant Business
Agent of Local Union 525; JOHN CARTER, Individually; B. C. CANNON, as President of
Local Union 525; and B. C. CANNON, Individually, Respondents.
No. 3945
June 8, 1956. 297 P.2d 1079.
Department No. 1.
On motion for injunction pending appeal.
Suit to enjoin labor union from calling a strike. The trial court denied injunction pendente
lite, and plaintiffs appealed, and moved for injunction pending appeal. The Supreme Court
held that record on appeal did not disclose that employer or accused person would be
irreparably injured by denial of injunction pending appeal.
Motion denied.
Morton Galane, of Las Vegas, for Appellants.
Rudiak, Horsey & Lionel, and Betty Altman Aronow, of Las Vegas, for Respondents.
1. Labor Relations.
It is not necessary to show irreparable injury in order to entitle a person to injunctive relief against
violations of statute prohibiting denial of employment because of nonmembership in a labor organization.
St.1953, c. 1, secs. 1 et seq., 7.
A party appealing from denial of a labor case injunction may obtain an injunction pending appeal upon a
prima facie showing of abuse of discretion on part of trial judge, without a showing of irreparable injury.
St.1953, c. 1, secs. 1 et seq., 7.
On appeal from denial of labor case injunction, reviewing court could not prejudge merits of controversy
so as to review trial court's conclusions that probabilities were against the granting of final relief, and
reviewing court, in face of such finding, could not find abuse of discretion on part of trial court. St.1953, c.
1, secs. 1 et seq., 7.
Record on appeal from denial of injunction to restrain labor union from calling a strike on account of the
employment of a certain person did not disclose that employer or person would be irreparably injured by
denial of injunction pending appeal. St.1953, c. 1, secs. 1 et seq., 7.
OPINION
On Petition For Temporary Injunction
Per Curiam:
This appeal is from an order of the trial court denying an injunction pendente lite. Before
this court appellants have moved for an injunction pending appeal. A temporary restraining
order was granted, ex parte, until hearing upon the motion could be had.
The suit below is for a permanent injunction to restrain respondent union from calling a
strike against appellant Stine doing business in North Las Vegas as the "A-1 Plumbing
Supply Company." The principal reason for the calling of the strike related to Stine's
employment of appellant Ringelberg. The union contends that such employment is contrary to
a collective bargaining agreement between Stine and the union. Appellants contend that so far
as that agreement affects Ringelberg's employment it is contrary to Nevada's statute
prohibiting denial of employment because of nonmembership in a labor organization, (1953
Stats. Nev., Ch. 1, p. 1); that the agreement therefore is void.
The merits of this controversy are still far removed from our consideration at this time.
Upon the merits of this appeal we shall be concerned with the manner in which the trial
judge exercised his discretion in denying the injunction pendente lite.
which the trial judge exercised his discretion in denying the injunction pendente lite. Upon
this motion we are concerned only with the manner in which we shall exercise our own
discretion with reference to an injunction pending appeal.
Appellants first contend that it is not necessary for them to show irreparable injury as a
basis for a temporary injunction. Section 7 of the 1953 statute reads as follows: * * * Any
person injured or threatened with injury by an act declared illegal by this act shall,
notwithstanding any other provision of the law to the contrary, be entitled to injunctive relief
therefrom.
[Headnote 1]
Since the legislature has provided for injunctive relief against a violation of the statute it is
not necessary independently to show irreparable injury in order to entitle a person injured to
the injunctive relief so provided. Nevada Real Estate Commission v. Ressell, 72 Nev. 79, 294
P.2d 1115. The application of this principle to the granting of a temporary injunction is dealt
with in Douds v. Local 294, 75 F.Supp. 414, 418, where the court stated, As the issuance of
an injunction in cases of this nature has statutory sanction, it is of no moment that the plaintiff
has failed to show threatened irreparable injury or the like, for it would be enough if the
statutory conditions for injunctive relief were made to appear.' * * * There is nothing in the
statute which would prompt the Court to depart from the recognized rule of equity that
interlocutory relief may be granted upon a showing of reasonable probability that the moving
party is entitled to final relief. A showing of a prima facie case for equitable relief satisfies
the statute.
[Headnote 2]
Applying the principles of the Douds case to our present motion it might be said that it
would not be necessary to show irreparable injury in order to justify the granting of an
injunction pending the appeal if the appellant has made a prima facie showing of abuse of
discretion on the part of the trial judge, {the final issue upon this appeal).
appellant has made a prima facie showing of abuse of discretion on the part of the trial judge,
(the final issue upon this appeal). We are unable to state, however, that such a showing has
been made. The trial judge in handing down his order denying temporary injunction made
written findings of fact and conclusions of law from which it appears that he had tentatively
examined the issues with which he would be compelled to deal upon the merits, had
tentatively concluded that the collective bargaining agreement did not violate the 1953 statute
and therefore that the probabilities were against the granting of final relief.
[Headnote 3]
These preliminary or tentative determinations made by the trial court as a basis for its
exercise of judicial discretion cannot be examined and tested by this court without our
prejudging the merits of the controversy now pending before the trial court, which we must
decline to do. We are, then, unable to say that a prima facie case of abuse of discretion has
been made out.
If appellants are to be granted an injunction pending this appeal it must, then, be upon the
ground that they will suffer irreparable injury should the injunction not be granted. This they
do contend.
Appellant Stine states that he must either violate the 1953 statute himself by discharging
Ringelberg or go out of business. Ringelberg contends that if discharged his status as a
practicing plumber would in reality be destroyed without regard to the outcome of the suit
below upon the merits.
[Headnote 4]
We are not convinced upon either point. The union is not insisting that Ringelberg be
discharged. He is employed as a sales clerk and stock clerk, functions beyond the concern of
the respondent union. The union insists that, pursuant to its agreement with Stine, Ringelberg
discontinue cutting pipe, upon which, incidental to his employment as clerk, he spends about
25 percent of his time.
percent of his time. If these duties were performed by a plumber employee, union opposition
would cease. The question, then, is whether Stine or Ringelberg would suffer irreparable
injury by temporarily submitting to the union's demands as to Ringelberg's pipecutting. It
would seem obvious that any injury suffered would be ascertainable in dollars and cents and
fully compensable in money damages should appellants ultimately prevail.
Under these circumstances IT IS ORDERED that the motion for temporary injunction is
denied. The temporary restraining order heretofore granted is ordered terminated.
____________
72 Nev. 160, 160 (1956) Gardner v. Fort
WALTER L. GARDNER, Appellant, v. ARTHUR FORT and IONE KATHERINE FORT,
Respondents.
No. 3922
June 13, 1956. 298 P.2d 468.
Appeal from judgment of the Eighth Judicial District Court, Clark County; Frank
McNamee, Judge, Department No. 1.
Suit involving a boundary dispute. Judgment for plaintiffs in the lower court and the
defendant appeals. The Supreme Court, Badt, J., held that the evidence supported the trial
court's findings as to the proper location of the lines involved.
Affirmed.
George E. Marshall, of Las Vegas, for Appellant.
Rudiak & Lionel, of Las Vegas, for Respondents.
1. Boundaries.
In boundary dispute, evidence supported the trial court's findings as to the proper location of lines in
dispute. N.C.L. 1943-1949 Supp., sec. 2875.05e.
2. Boundaries.
In boundary dispute evidence did not support the defendant's contention that a quarter corner found by
the government surveyor was a monument and marker of the original survey and that if so the survey by the
Bureau of Land Management was a resurvey and as such could not affect the rights of entrymen that had
attached. 43 U.S.C.A., sec. 772.
3. Public Lands.
In boundary dispute where defendant's present reliance upon location of a monument found by his
surveyor was a collateral attack upon the patent issued to the predecessor as well as the patent issued to the
predecessor of defendant such collateral attack could not be made.
OPINION
[Headnote 1]
The only material question involved in this appeal is whether the evidence supports the
court's finding as to the proper location of the north line of section 13, T. 21 S., R. 61 E.,
M.D.M., in Clark County, Nevada, and, more particularly, the location of the N 1/4 corner of
said section approximately at the center of a straight line connecting the NW corner with the
NE corner of said section. Our conclusion is that it does. Conversely stated, did the evidence
justify the court's rejection of appellant's contention that a certain monument, consisting of an
unmarked 4x4 post in a mound of rocks, set some distance from the quarter corner point
described, was the actual original N 1/4 corner. We are satisfied that the court was justified
by the evidence in rejecting such contention. Other points are determined in the following
opinion.
We refer to the respondents Arthur Fort and Ione Katherine Fort as Fort and to appellant
Walter L. Gardner as Gardner. Gardner and Fort's predecessor were adjoining owners of
so-called five-acre tracts. Fort's predecessor, Humphrey, owned the tract to the north and
Gardner the tract to the south.
north and Gardner the tract to the south. Fort acquired from his predecessor, Humphrey,
approximately the south 273 feet of Humphrey's five-acre parcel. The boundary line between
Fort and Gardner is in dispute, Fort having sued Gardner to establish the line contended for
by the former. The court so established it and Gardner has appealed.
The patent to Fort's predecessor Humphrey was for W 1/2 NW 1/4 NE 1/4 NW 1/4,
containing five acres according to the official plat of the Bureau of Land Management. Patent
to Gardner was for W 1/2 SW 1/4 NE 1/4 NW 1/4, containing five acres according to the
official plat of the Bureau of Land Management. The original survey by the United States
Land Office was in 1882 or 1886. This was followed by a survey of the General Land Office
in 1942. The survey under which the plat was made by the Bureau of Land Management
(which took over functions of this nature from the General Land Office) was made in 1952.
From 1950 to 1952 F. M. Eaton, a duly registered civil engineer and land surveyor, apparently
surveyed the N 1/2 of section 13 for a number of people who desired to make entries upon
five-acre tracts and he recorded such survey in 1954.
1
In making his survey for this purpose
he found the NW corner of section 13 and the NE corner of section 13. The brass markers
identifying these two corners had been placed there by the General Land Office in 1942 or
1943. In searching for the N 1/4 corner of the section, he found no such corner in place on the
northerly section line of section 13, but did discover a 4 x 4 post in a mound of rocks 27.6
feet to the north and 20.6 feet to the east of the approximate center of the north line of
section 13.
____________________

1
Section 2875.05e N.C.L., 1943-1949 Supp. (amendment Stats. 1953, 196, not affecting the situation), of
the land surveyors' act, requires a surveyor within 90 days after the establishment of points or lines to file a
record of his survey with the county recorder, showing material evidence not appearing on any prior recorded or
filed map, any material discrepancy with any such prior record, evidence that might result in alternate positions
of points or lines, the establishment of points not ascertainable from inspection of such map without
trigonometric calculations, showing all monuments found, describing them etc., giving their bearings and other
similar data.
approximate center of the north line of section 13. From inquiries made of a neighboring
landowner and from the latter's report that the point of diversion in an application to the state
engineer for permission to appropriate underground water had been tied in to this monument
as the N 1/4 corner of section 13 (which he verified from the state engineer's published
notice), he accepted it as such and designated it on his map as such. His entire survey was
based upon the acceptance of this monument as the N 1/4 corner of said section. It had no
markings on it, official or otherwise. The original plat of the government survey of 1882 or
1886, while designating the NW corner and the NE corner and describing the markings
thereon, did not, so far as disclosed by the evidence, indicate that any monument had been
placed for the N 1/4 corner.
2

The survey made by the Bureau of Land Management in November, 1952 resulted in
placing the N quarter corner of section 13 on the north boundary of that section,
approximately halfway between the NW corner and the NE corner. A subsequent survey and
grading work by the state department of highways in constructing a road along the north
boundary of section 13 destroyed or covered the monument that Eaton had found. The patent
issued to Humphrey in August, 1954 and the patent issued to Gardner in June, 1954, with
respective descriptions as above set forth, were in accordance with the Bureau of Land
Management survey. There was no evidence as to the respective dates of the entries (proper
filings in the Bureau of Land Management and issue of certificates of entry and payment of
fees) which resulted in the two respective patents.
[Headnote 2]
Defendant asserts in his appeal (1) that the quarter corner found by Eaton is a monument
and marker of the original survey; (2) that, if so, the survey by the Bureau of Land
Management in 1952 was a resurvey;
____________________

2
No copy of the original government township plat was offered in evidence by either party. Much of the
evidence with reference to it was by way of statement of recollection of the witnesses.
Bureau of Land Management in 1952 was a resurvey; and (3), being such, it could not affect
the rights of entrymen that had attached. Sec. 772, Title 43, U.S.C.A., Barringer v. Davis, 141
Iowa 419, 120 N.W. 65.
There is no substantial factual support of these contentions.
[Headnote 3]
Fort contends in addition that Gardner's present reliance upon the location of the
monument found by his surveyor Eaton is a collateral attack upon the patent issued to
Gardner as well as upon the patent issued to Humphrey, and that such collateral attack may
not be made. Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; Earl v. Morrison, 39
Nev. 120, 154 P. 75. This contention too we believe to be well founded.
Technically the judgment quieted plaintiffs' title in the metes and bounds description of the
approximate south 273 feet of the five-acre tract patented to their predecessor as described in
his patent, and ordered the defendant to remove a fence placed by the defendant on plaintiffs'
said tract and enjoined defendant from trespassing on plaintiffs' tract. The findings are amply
supported and the conclusions drawn are warranted by said findings.
The judgment is affirmed with costs.
____________
72 Nev. 165, 165 (1956) Leonard v. Bowler
STELLA B. LEONARD, Formerly Known as STELLA B. LEONARD BELANGER, Now
STELLA BRYSON, Appellant, v. MILTON A. BOWLER and MILTON D. BOWLER,
Respondents.
No. 3893
June 13, 1956. 298 P.2d 475.
Appeal from judgment of First Judicial District Court, Churchill County; Frank B.
Gregory, Judge.
Action in claim and delivery to recover possession of herd of cattle which plaintiff's
husband sold to first buyer who sold to second buyer who sold to defendants after plaintiff
commenced divorce action and prior to divorce decree declaring that herd was plaintiff's
separate property. The lower court rendered judgment for defendants and plaintiff appealed.
The Supreme Court, Badt, J., held that on reversal of judgment for defendants for lack of any
evidence that plaintiff was estopped from asserting her title as against defendants the case
would be remanded for new trial on issues raised by the defense, which was erroneously
struck, that plaintiff's own title to herd passed to first buyer to second buyer to defendants
through husband as plaintiff's authorized agent or through husband's act which plaintiff
subsequently ratified.
Sinai & Sinai, of Reno, for Appellant.
Vargas, Dillon & Bartlett and Alex A. Garroway, all of Reno, for Respondents.
1. Estoppel.
Where wife instituted divorce action and husband sold herd of cattle to buyer who sold herd to second
buyer who sold herd to third buyers prior to divorce decree declaring that herd was wife's separate
property, and wife failed to name third buyers as parties to wife's action in claim and delivery against first
and second buyers, evidence disclosed that such failure did not estop wife from asserting her title to herd in
instant action in claim and delivery against third buyers on any theory that third
buyers suffered any detriment or relied upon or were misled by what wife did or did
not do.
instant action in claim and delivery against third buyers on any theory that third buyers suffered any
detriment or relied upon or were misled by what wife did or did not do.
The Supreme Court may, in a proper case and in the exercise of its discretion, consider cross-assignments
of error made by respondent.
In action in claim and delivery to recover possession of herd of cattle which plaintiff's husband sold to
first buyer who sold to second buyer who sold to defendant after plaintiff commenced divorce action and
prior to divorce decree declaring that herd was plaintiff's separate property, where trial court erroneously
struck defense that plaintiff's own title to herd passed to first buyer to second buyer to defendants through
husband as plaintiff's authorized agent or through husband's act which plaintiff subsequently ratified, on
reversal of judgment for defendants for lack of any evidence that wife was estopped from asserting her title
as against defendants the case would be remanded for new trial on issues raised by such defense.
OPINION
[Headnote 1]
Through pretrial orders, orders rejecting evidence tendered by defendants, and instructions
to the jury, the trial judge permitted to go to the jury the single question as to whether plaintiff
by her actions was estopped from asserting her title to the cattle involved in this long
continued controversy. The jury by its general verdict for defendants found such an estoppel
to exist. Plaintiff contends that there is no evidence whatsoever upon which such estoppel can
be based. We agree with that contention.
On the fourth occasion in which this controversy reached this court, Bowler v. District
Court, 68 Nev. 445, 454, 234 P.2d 593, 598, will be found the history of the case in which we
noted even then, in 1951, the long history of the litigation involving these parties, in the
course of which no trial of the issue of ownership has as yet been had."
yet been had. That issue finally was tried and in Bowler v. Leonard, 70 Nev. 370, 269 P.2d
833, we noted that the case was before the court for the fifth time, and listed the connected
cases. In that trial the court determined title to the herd of 41 milch cows and 2 bulls to be in
Stella B. Leonard, formerly Stella B. Leonard Belanger, then and now Stella B. Bryson. In the
appeal on the merits in that case we were compelled to reverse and remand for a new trial,
though affirming the appointment of a receiver. This was because the court erroneously held
that Mrs. Bryson's prior judgment in her action against Childers and Vrenon, to which the
Bowlers were not parties, was res judicata as against the then defendant Bowlers, the present
defendants and respondents. In holding that the Bowlers were entitled to assert their own
defense against Mrs. Bryson's claim of ownership, we thus provided them with a shield
(whether or not it might prove an effective one) against the judgment she had obtained
against Childers and Vrenon. The Bowlers have now apparently persuaded the jury in the trial
below that the shield we thus provided might also serve as a sword. In the eyes of the jury, by
neglecting to name the Bowlers as parties to the former suit, not only did plaintiff fail to
secure a judgment against themshe had acted also in such manner that it was
unconscionable for her now to assert a claim of title against them.
In sustaining the propriety of such conclusion on the part of the jury, the contention of the
Bowlers is substantially as follows: that when plaintiff failed to bring suit against them they
assumed that she was not claiming the cattle as against them and that so far as she was
concerned their title was perfectly good; that in reliance upon this representation they
proceeded to treat the cattle as their own; that they milked them and disposed of the milk; that
they borrowed on them; that they would have acted differently in respect to the herd had they
known that plaintiff claimed title to it against them.
them. Explaining this further, one of respondents testified: We would have probably seen
just how fast we could have got rid of those forty-one cows and two bulls. Respondents
emphasize appellant's failure to sue Childers and Vrenon until October, 1949; her failure to
make sufficient inquiry as to the position or location of the livestock; her failure to join
respondents as defendants in that action; their reliance thereon and their failure to believe that
they would ever be held to be accountable; their lack of knowledge that appellant claimed as
against them until the cattle were actually seized by the sheriff in the action against Childers
and Vrenon, to which they were not parties; her failure to bond against their third party claim
on such seizure under execution against Childers and Vrenon; her failure to demand a hearing
to determine title under the said levy of execution; the successful application made by them
for a writ of mandamus compelling the sheriff to return the cows to them; and their asserted
reasonable reactions to all of thisnamely, that they believed that she acquiesced in their
claim of title, that they were entitled thus to rely, that they acted upon such reliance and that
plaintiff was accordingly estopped to assert her title as against them.
We are satisfied from a study of the record that one or more of the requisites of equitable
estoppel are entirely lacking. That the respondents suffered any detriment whatsoever by
reason of their claimed reliance upon the actions of appellant is in itself extremely doubtful.
That they relied at all upon such actions is without support in the record. They knew in
November, 1948 that appellant was suing Childers and Vrenon for the recovery of the cattle,
claiming them to be hers. It is true, as we held in the last appeal, Bowler v. Leonard, 70 Nev.
370, 381, 269 P.2d 833, 838, that they were under no requirement to intervene to protect their
title, in a suit to which they were strangers, but might rest assured that a judgment in such
action, to which they were not summoned to appear, would not affect their legal rights. They
were, however, not entitled to assume that appellant's claim of ownership of these
particular cattle excluded respondents from its scope.
that appellant's claim of ownership of these particular cattle excluded respondents from its
scope. Their refraining from intervening in the prior suit, their refraining from advising
themselves as to the nature of that action, while not necessarily resulting in any loss of their
rights, certainly created no new rights in them. Their knowledge of plaintiff's action against
Childers and Vrenon for recovery of the particular livestock in question was knowledge that
she asserted a general claim of ownership. Their claim that they were misled, that they were
thus the victims of misrepresentation on plaintiff's part and that plaintiff is thus estopped to
assert her claim of ownership as against them thus fails in its entirety and there is no escape
from our duty to remand for a new trial.
[Headnotes 2, 3]
This would in ordinary circumstances dispose of the appeal and our order remanding
would be limited to the issue of damages. This would ordinarily follow from our holding that
the defense of estoppel against the plaintiff's assertion of ownership was wholly without
factual support. A further problem faces us, however.
Defendants contended below that plaintiff's own title had passed to Childers, from
Childers to Vrenon and from Vrenon to defendants through her husband Belanger as her
authorized agent, or through an act of Belanger's which she subsequently ratified. The trial
court struck this defense. It ruled that since the divorce decree awarded title to the herd to
plaintiff as against her husband Belanger and since defendants claimed through Belanger,
plaintiff's title as against the defendants had been established as of the date of the divorce
decree. In the former appeal, however, we recognized that the defendants' claim of title was
not limited to the acquisition of Belanger's title but included the claim that they acquired title
from plaintiff herself. We said in our former opinion: Childers, Vrenon and appellants all
contend that, even accepting such ownership [by Mrs. Leonard] [she], by her conduct either
authorized Belanger's sale to Childers,
Belanger's sale to Childers, or ratified it, or is estopped to deny such authority. Bowler v.
Leonard, 70 Nev. 370, 378, 269 P.2d 833, 837. It is clear that the trial court was in error in
striking the defense that plaintiff's own title had passed first to Childers, then to Vrenon, and
then to defendants, by reason of actions by her agent Belanger, either as previously authorized
by her, or as subsequently ratified by her. Such issue has never been determined, and
respondents contend that such failure of determination resulting from such error, redounds to
their prejudice. To this end they have made cross assignments of error.
Such cross assignments of error are, however, not in support of a cross appeal. Indeed it is
difficult to envisage a cross appeal by respondents. The verdict of the jury was that the
plaintiff take nothing, and the defendants were clearly not aggrieved by the judgment entered
on that verdict. Plaintiff contends that this court may not consider cross assignments of error
asserted by respondents under the circumstances and relies upon Dennis v. Caughlin, 22 Nev.
447, 41 P. 768, 29 L.R.A. 731, and three prior decisions of this court therein cited. The cited
case does indeed state such to be the rule. That was an appeal in an election contest in which
the lower court's acceptance or rejection of ballots was reviewed. This court held that the
rejection of fifteen individual ballots was erroneous and remanded the case for a new trial.
Though it refused to examine ballots which the respondent, in his cross assignment of errors,
asserted to have been erroneously rejected, the court spelled out the rules which would guide
the court in the second trial. In Nesbitt v. Chisholm, 16 Nev. 39, the successful plaintiff in an
action to set aside a deed asserted error because the decree purported to convey certain
interests to persons who were not parties to the action. While the court refused to do this, it
actually passed on the assignment of error by declaring that the portion of the decree
adjudging that stated interests were vested in those persons was a nullity.
a nullity. The judgment was affirmed as to the parties. In Moresi v. Swift, 15 Nev. 215, this
court again said, with reference to certain errors asserted by the respondent: We are only
called upon to examine errors assigned by appellant. Nevertheless, the court did discuss
some of such assigned errors and finally said: Enough has been said already to indicate the
rights of the parties at another trial. The dissenting opinion likewise passed upon
respondent's assignments of error, both with respect to rulings on evidence and instructions to
the jury. This opinion held that evidence offered by respondent was erroneously excluded by
the courtrespondents' precise assignment in this appeal. In Maher v. Swift, 14 Nev. 324,
this court for the first time referred to the rule that it was only called upon to dispose of such
questions as are assigned as error by the appellant * * * not * * * the errors, if any, that may
have been committed against the respondent. Three early California cases were cited. In this
instance too, however, the court indicated its view upon the respondents' assignment of error.
Those are the four cases in which this court treated of the question, the last holding, in the
Dennis case, having been 61 years ago. In each case the court paid lip service to the rule but
in each case, to a greater or less extent, the court actually indicated its views on the
respondents' assignments of error. From the discussion of the subject appearing at 5 C.J.S.
168, Appeal and Error, Sec. 1498, it appears that the rule varies in the different jurisdictions
and under varying circumstances. In our judgment the foregoing history of the consideration
of the rule in this state and of the action taken by this court in the cases in which the rule was
considered leads to the conclusion that this court may, in a proper case and in the exercise of
its discretion, consider cross assignments of error made by the respondent.
Our consideration of the cross assignments in the present appeal is necessary at least to a
determination of the scope of our remand, as noted earlier in this opinion.
opinion. Further, considering the history of this litigation, we feel wholly justified in
correcting error which would unquestionably be brought back to us after a second new trial
and result inevitably in a remand for a third new trial.
Reversed and remanded for new trial. The costs of this appeal shall be equally shared by
the parties.
____________
72 Nev. 172, 172 (1956) Barringer v. Ray
ROBERT E. BARRINGER, Intervening Defendant; FIRST NATIONAL BANK OF
NEVADA, Administrator With the Will Annexed; and CARLITA NANCY RAY, a Minor
Defendant by Jeanne S. Houssels, Guardian Ad Litem, Appellants, v. IDA ANGELOT RAY,
Respondent.
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge, Department No. 2.
No. 3902
June 14, 1956. 298 P.2d 933.
Widow's action for specific enforcement of antenuptial agreement whereunder deceased
husband had agreed to devise certain property in trust with half the income therefrom to go to
her for life. Judgment for plaintiff was entered and appeal was taken. The Supreme Court,
Badt, J., held, inter alia, that where antenuptial agreement required wife to take under
husband's will and will which was executed to carry out provisions of agreement devised
realty in Nevada and two other states in trust, with the half the income therefrom to go to wife
and, in such other states will thus successfully implemented contract but in Nevada a
pretermitted heir successfully asserted right to share in estate, neither wife's seeking and
accepting distribution of real estate in other states, her seeking probate of will in Nevada, nor
her opposing petition of pretermitted heir constituted election to take under will which
would preclude her from specifically enforcing antenuptial agreement.
nor her opposing petition of pretermitted heir constituted election to take under will which
would preclude her from specifically enforcing antenuptial agreement.
(Petition for rehearing denied July 12, 1956.)
Affirmed.
Hawkins & Cannon, of Las Vegas, for Appellant Barringer.
Ham & Ham, of Las Vegas, for Appellant First National Bank of Nevada, Administrator
C.T.A.
Jeanne S. Houssels, of Las Vegas, Guardian Ad Litem and attorney for Carlita Nancy Ray,
a minor defendant.
Harry E. Claiborne, of Las Vegas, for Respondent.
A man may not take two contradictory positions, and where he has right to choose one of two modes of
redress and two are so inconsistent that assertion of one involves negation or repudiation of other, his
deliberate and settled choice of one, with knowledge, or means of knowledge, of such facts as would
authorize a resort to each, will preclude him thereafter from going back and electing the other.
Doctrine of election of remedies has application only to inconsistent remedies.
3. Wills.
Election under a will consists in exercise of choice offered devisee or legatee of either accepting that
which is given by will and surrendering some claim or right or property which will undertakes to dispose
of, or retaining such claim, right, or property and rejecting provisions of will.
4. Election or Remedies.
Once need for election is apparent, elector may be said to choose his course at his peril and to be
irrevocably committed to all legal consequences which might subsequently be determined to attach.
5. Wills.
Even though antenuptial agreement required wife to take under provisions of husband's will in lieu of,
inter alia, any claim to family allowance, where will contained no such provision, wife's petition for and
acceptance of such family allowance in violation of contract did not constitute election to take under will
which would bar her right to enforce antenuptial agreement.
6. Wills.
Where antenuptial agreement required wife to take under husband's will, and will which was executed to
carry out provisions of agreement devised realty in Nevada and two other states in trust with half the
income therefrom to go to wife, and in such other states will thus successfully implemented contract, but in
Nevada a pretermitted heir successfully asserted right to share in estate, neither wife's accepting
distribution of real estate in other states, nor her seeking probate of will in Nevada, nor her opposing
petition of pretermitted heir constituted election to take under will which would preclude her from
specifically enforcing antenuptial agreement.
7. Witnesses.
The dead man's statute did not preclude wife from testifying to signature of herself and deceased on
antenuptial agreement. N.C.L.1929, secs. 8966, 8970.
OPINION
The main question presented in this appeal is whether the respondent Ida Angelot Ray, as
surviving wife of Carl Ray, deceased, was bound by her alleged election to take under the will
of the testator to the end that she was estopped from seeking specific performance of an
antenuptial agreement. The learned district judge rejected such defenses of election and
estoppel in pais, and we agree with his conclusion. Certain other assignments of error are
likewise disposed of in this opinion.
On April 19, 1946, an antenuptial agreement was entered into between the parties by
which the husband agreed to make certain disposition of his property in favor of his wife
upon his death. Following the marriage of the parties a will was executed by the husband
which, upon his death, was admitted to probate upon application of the wife. Appellant
Barringer, claiming as pretermitted heir of the decedent, successfully asserted his right to
share in the estate. In Re Estate of Carl Ray (Petition of Barringer), 69 Nev. 204, 245 P.2d
990. The wife then brought this action to enforce the antenuptial agreement. Appellants
contend that her actions in support of the will constituted an election to take under the will
and that she is precluded by that election from now asserting a right to the estate under
the agreement.
take under the will and that she is precluded by that election from now asserting a right to the
estate under the agreement.
The preamble of the antenuptial agreement of April 19, 1946 read in part as follows:
WHEREAS, a marriage is about to be solemnized between the parties hereto; and
WHEREAS, in anticipation of such marriage said parties desire by an ante-nuptial agreement
to fix and determine the rights of each of them in any and all property of every nature and
description and wheresoever located, that either of them may own at the time of such
marriage, or may acquire thereafter, and, particularly, to have the said first party agree to
make, and make, and the second party to agree to accept, and accept, a pecuniary provision
for the second party's benefit, in lieu and full discharge and satisfaction of any and all rights
or claim of dower or any claims to community property, and of any and all other rights,
claims or interest in or to any and all of the first party's property, whether real, personal or
mixed, and wherever situated, that she may have as wife or widow, but for such provision and
the execution and delivery of this agreement, and the full performance thereof by said first
party, his heirs, executors, administrators or assigns, whether the foregoing rights, claims,
titles and interest will or would inure to said second party by statute, common law, or
otherwise; * * *.
The agreement recited that it was made in consideration of the foregoing and of the
marriage about to be solemnized and of the subsequent terms and covenants set forth.
Paragraph 1 of the first covenant read as follows: 1. That the first party shall make and keep
in existence a valid will, wherein and whereby all of his property will be bequeathed to a
trustee and said will shall provide that the second party shall receive one-half (1/2) of the net
proceeds of said trust estate, upon the condition that the second party shall have lived with
first party as his wife until the date of his death and during said time been a loyal, devoted
wife to him.
Paragraph 3 provided that the foregoing provisions should be in lieu and in bar of any and
all right or claim of dower, in and to any and all of the lands, tenements and hereditaments of
said second party, wheresoever the same may be located, or to which the second party might
be or become entitled after consummation of her marriage to said first party, as wife or
widow, and in lieu of any right which the second party might have to apply to the court for a
family allowance or support money from the estate of the first party in the event of his death *
* *, and also in lieu of any claim to any of the first party's property of whatsoever nature and
wherever located.
Carl Ray thereafter executed a formal and carefully drawn will, the copy whereof
appearing in the record occupies some 25 folios. Provision Fourth contains bequests
aggregating $6,000. Provisions Fifth and Sixth contain further minor bequests.
Provision Seventh of the will gives, devises and bequeaths all of the rest, residue and
remainder of Ray's estate, of every kind or nature and wherever situate, to three trustees, of
whom respondent is one, for the uses, purposes, powers and trusts thereafter specified and
containing a particular description of four separate parcels of real property, parcel three being
in the State of Wyoming and parcel four being in the State of California. Under section 1 of
provision Seventh one half of the net income (but not less than $500 a month) is payable
monthly to the testator's widow for the entire term of the trust. Out of the other half of the
income, $100 a month is payable to the testator's daughter Carlita Nancy Ray, $100 a month
to the testator's nephew Truman Nye (a like $100 monthly payment to a boy intended to be
adopted, which provision never became effective) and, at the end of each calendar year, if
there be additional net income undistributed, and in the discretion of the trustees, one half
thereof to the surviving wife and one half to the daughter (alternate provisions for a portion to
go to the boy, if adopted, not coming into being, as there was no such adopted son).
there was no such adopted son). The testator declared the primary purpose of the trust to be
to provide for my said wife and adopted child or children. Alternate provisions were made
in the event of the death of the testator's wife and in the event of the death of the testator's
daughter. The term of the trust is declared to be twenty years, with instructions for
maintaining intact certain of the parcels of real property.
Provision Eighth of the will provides for distribution of the corpus and accumulations, on
termination of the trust, one half to the wife and one half to the daughter (alternate provision
for the adopted son never becoming effective).
Provision Tenth bequeaths $1 only, in place of all other bequests, devises and interests to
any devisee, legatee, beneficiary or other person who would be entitled to share in the estate
who directly or indirectly contests the will or seeks to impair or invalidate any of its
provisions or who conspires or cooperates with any person attempting such things or who
settles or compromises in or out of court with any such contestant or who fails to oppose such
proceedings or endeavors to succeed to any part of the estate otherwise than through the will.
Provision Thirteenth appoints the wife Ida Angelot Ray and Paul Angelillo executors.
Provision Fifteenth requires the executors to defend any contest to the probate of the will.
On petition of the named executors, appellant being one, the will was admitted to probate
in Nevada, California and Wyoming. The estate in Wyoming was closed by distribution to the
trustees for the purposes mentioned in the trust. The California estate was likewise
administered under the provisions of the will.
Counsel for the respective appellants filed separate briefs and orally argued the case on
behalf of the respective appellants. Their most seriously urged assignment of error is that the
respondent, in accepting the benefits of the will and in electing to take thereunder, is estopped
from seeking specific performance of the antenuptial contract.
contract. We might say, as did the court in Willard v. Shekell, 236 Mich. 197, 210 N.W. 260:
Counsel have furnished a wealth of authorities * * * dealing with the question of election of
remedies, all of which have been examined, but as we have reached the conclusion that the
remedies pursued, or attempted to be pursued, were not inconsistent, it will not be necessary
to discuss all or any considerable number of them. We note in the margin the main cases
upon which appellants rely.
1

[Headnotes 1-3]
Some of these authorities so aptly state the rule that we quote some of the expressions
used. Thus in Sackett v. Farmers' State Bank, cited below [209 Iowa 487, 228 N.W. 52] the
court adopted the following language from Elm Creek Elevator Company v. U. P. Railway
Company, 97 Iowa 719, 66 N.W. 1059, 1061, 59 Am.St.Rep. 434: A man may not take two
contradictory positions, and where he has a right to choose one of two modes of redress, and
the two are so inconsistent that the assertion of one involves the negation or repudiation of
the other, his deliberate and settled choice of one, with knowledge, or means of knowledge,
of such facts as would authorize a resort to each, will preclude him thereafter from going
back and electing again.' It then emphasized: The doctrine of election of remedies has
application only to inconsistent remedies. And in Burns v. First National Bank of Joliet, 304
Ill. 292, 136 N.E. 695, 696, the court thus expressed the rule: Election under a will consists
in the exercise of choice offered a devisee or legatee of either accepting what is given by the
will and surrendering some claim or right or property which the will undertakes to dispose
of,
____________________

1
Towle v. Towle, 79 Wis. 596, 48 N.W. 800; Alerding v. Allison, 31 Ind.App. 397, 68 N.E. 185; Crawford
v. Briant, 10 Cir., 53 F.2d 754; Sackett v. Farmers' State Bank, 209 Iowa 487, 228 N.W. 51; Noyes v. Noyes,
233 Mass. 55, 123 N.E. 395; Hardeman v. Ellis, 162 Ga. 664, 135 S.E. 195; West v. West, 131 Miss. 880, 95
So. 739, 29 A.L.R. 226; Ross v. First Presbyterian Church, 272 Mo. 96, 197 S.W. 561; Lynch v. Jones, 247
S.W. 123; Appeal of Baker's Estate. 170 Okl. 595, 41 P.2d 640; In re Melot's Estate, 231 Pa. 520, 80 A. 1051;
Adams v. Adams, 95 W. Va. 187, 120 S.E. 590; also 4 Page on Wills 40-50 Sec. 1366; 57 AmJur. 168, Wills,
sec. 191; Anno. 69 A.L.R. 103; Anno. 106 A.L.R. 755.
the will and surrendering some claim or right or property which the will undertakes to dispose
of, or retaining such claim, right, or property and rejecting the provision made by the will. If
there is such a claim inconsistent with the provision of a will, the testator does not intend that
the beneficiary shall enjoy both the right or property claimed and what is given by the will.
His intention being that all the provisions of the will shall take effect, a beneficiary cannot
accept that which is given by the will, and set up any right or claim, however legal or well
founded it may have been, which would defeat or prevent a full operation of the will.
In these cases the need for an election was at once apparent. There was no question but
that the two courses of action which were available were inconsistent and that a choice
between them must be made.
In the case at bar the need for election was not apparent. The provisions of the will did not
appear inconsistent with the provisions of the written agreement except with respect to certain
cash bequests which we may consider minor in their proportion to the entire estate. We may
concede that the plaintiff waived any objection to these bequests and that would be an end to
that phase of the matter. The will had been executed not as a substitute for the provisions of
the agreement but in an attempt to comply with it. On its face it did appear to carry out the
terms of the written agreement, namely, to create a trust in one half of the benefits whereof
plaintiff would be the beneficiary. Any acceptance by plaintiff of the agreement, thus carried
out in the will, resulted in no inconsistency with a similar claim under the will itself. Thus in
that part of the estate administered in California and as to that part administered in Wyoming,
distribution under the will was substantially the same as if plaintiff's claim had been satisfied
under the agreement. In those two states the situation was in no way disturbed by any statute
or rule of law whereunder Barringer would take one third of the estate as a pretermitted heir.
In Nevada,
however, before it could be known that the two in the eyes of Nevada law were inconsistent
and that an election between them must, therefore, be made, an authoritative determination
upon a disputed point of law had first to be made. It was not until such determination was
made that the fact of inconsistency and the consequent need for election were established.
In In Re Estate of Carl Ray (Petition of Barringer), 69 Nev. 204, 245 P.2d 990, in
discussing the questions (1) whether the will did provide for Barringer, and (2) whether, if
not, such omission was intentional, 9919 N.C.L. 1929, we mentioned the state of confusion of
the authorities, the lack of consistency in the lines of distinction attempted to be drawn by the
courts, the undoubted frequent frustration of the testamentary intent through application of
the statute. Under these conditions, to hold that respondent must have made an election upon
notice of Barringer's claim as a pretermitted heir would credit her with knowledge of a
conclusion which this court reached only after much study and research.
Appellant contends that under the holding of this court in Robertson v. Robertson, this
does not affect the situation and calls our attention to the language there used: The
conclusiveness of her election does not depend upon the chances of success that may attend
her suit, but upon the fact that she has resorted to a remedy which is inconsistent with the one
she now seeks to maintain, and has made such election with full knowledge of the facts in
each case. Robertson v. Robertson, 43 Nev. 50, 59, 180 P. 122, 124, 187 P. 929. The
language quoted undoubtedly expressed the proper rule with respect to the facts in that case.
[Headnote 4]
Once the need for election is apparent or established the elector may be said to choose his
course at his peril and to be irrevocably committed to all legal consequences which might
subsequently be determined to attach. To require one to decide at his peril whether an election
must or need not be made in the face of a dispute upon the very point would be to extend
the rule for election of the Robertson case beyond its obvious purpose and convert it into
an unnecessary trap.
must or need not be made in the face of a dispute upon the very point would be to extend the
rule for election of the Robertson case beyond its obvious purpose and convert it into an
unnecessary trap.
[Headnote 5]
As to plaintiff's asserted election by reason of her obtaining and accepting a family
allowance of $500 a month, it is a complete answer to note that such family allowance was
paid to her under the provisions of the Nevada statute and without any provision to such
effect under the will. Her petition for and acceptance of such family allowance, contrary to
her written contract with the testator to accept the provisions of the will in lieu, among other
things, of any claim to family allowance may indeed be a violation of her contract, but can
under no possible conception be characterized as a taking under the will. The will contained
no such provision. It is stated that the probate court has authorized the trustees to institute an
action to recover these payments for the trust estate and we need not anticipate the result of
such proceeding.
[Headnote 6]
It is our conclusion that neither her seeking and accepting distribution of the California
and Wyoming estate nor her seeking probate of the will in Nevada, nor her opposition to the
Barringer petition, nor her accepting family allowance payments in Nevada was a rejection of
the contract or an election to take under the will inconsistently with her rights under the
contract. In other words, in California and Wyoming the will successfully implemented the
contract, and the family allowance received by plaintiff was not the result of any provision in
the will and was no election to take under the will.
[Headnote 7]
Appellant assigns as error the court's ruling in permitting respondent to testify to the
signature of herself and the decedent on the agreement in question. Such assignment is
based on the dead man's rule,
assignment is based on the dead man's rule, Secs. 8966, 8970, N.C.L. 1929. She identified the
signature of the decedent as his signature. Appellant contends that her testimony,
unobjectionable if simply given as her opinion, was objectionable because stated as a fact,
which the decedent, if alive, might have contradicted. We need not argue this distinction.
This court held in Hough v. Reserve Gold Mining Co., 55 Nev. 375, 35 P.2d 742, that such
testimony was not in violation of the statute. Accordingly, there was no error in overruling the
objection. Other errors assigned have been considered and found to be without merit.
The judgment is affirmed with costs to respondent.
____________
72 Nev. 183, 183 (1956) Basic Refractories v. Bright
BASIC REFRACTORIES, Inc., a Corporation, Appellant, v. WILLIAM C. BRIGHT and
WILLIAM C. BRIGHT, Jr., Copartners Doing Business Under the Fictitious Name and Style
of William C. Bright and Son; HAROLD W. GOODWIN, Doing Business Under the
Fictitious Name and Style of Nevada Paint and Floor Service; and ENTERPRISE ELECTRIC
CO., Inc., a Corporation; H. R. CURL; READY-MIX CONCRETE COMPANY, a
Corporation; SAVIERS ELECTRICAL PRODUCTS INC., a Corporation;
PETERSON-McCASLIN LUMBER COMPANY, a Corporation; JACQUES MORVAY,
Respondents.
STANDARD SLAG COMPANY, a Corporation, Appellant, v. BASIC REFRACTORIES,
INC., a Corporation, Respondent.
GLOBE INDEMNITY COMPANY, a Corporation, Appellant, v. STANDARD SLAG
COMPANY, a Corporation, Respondent.
STANDARD SLAG COMPANY, a Corporation, Appellant, v. GLOBE INDEMNITY
COMPANY, a Corporation, Respondent.
Nos. 3875, 3884, 3886, 3889.
June 18, 1956. 298 P.2d 810.
Appeal from judgment of the Fifth Judicial District Court, Nye County; William D.
Hatton, Judge; by Basic Refractories, Inc. in No. 3875; by Standard Slag Company in No.
3884; by Globe Indemnity Company in No. 3886; and cross appeal by Standard Slag
Company in No. 3889.
Action by mechanics' lien claimants against townsite lessee, third party, and the United
States to foreclose mechanics' liens arising from construction on townsite of dwellings which
would, upon completion, become property of the United States, as lessor. Other lien
claimants intervened. Townsite lessee cross-claimed against third party,
against third party, which had caused the dwellings to be constructed in accordance with
agreement with lessee, and third party filed third party complaint against contractor's surety.
Surety filed counterclaim against contractor. The lower court entered judgment against
townsite lessee, third party, and surety, and townsite lessee, third party, and surety appealed,
and third party cross-appealed against surety. The Supreme Court, Bowen, district judge, held
that governmental immunity would not extend to the leasehold interest for purpose of
preventing such interest from being subject to mechanic's lien arising from the construction
work.
Nos. 3875 and 3884 affirmed. No. 3886 affirmed, subject to modification of No. 3889.
No. 3889 affirmed as modified.
(Rehearing denied in No. 3889 November 13, 1956.)
See also 71 Nev. 248, 286 P.2d 747.
Vargas, Dillon & Bartlett, of Reno, for Appellant Basic Refractories, Inc.
Stewart and Horton, of Reno, for Respondents William C. Bright, William C. Bright, Jr.,
Harold W. Goodwin, and Enterprise Electric Co., Inc., a Corporation.
Goldwater, Taber & Hill, of Reno, for Respondent H. R. Curl.
Springmeyer & Thompson, of Reno, for Respondent Ready-Mix Concrete Company, a
Corporation.
John S. Halley, of Reno, for Respondent Saviers Electrical Products Inc., a Corporation.
Wilson & Brown, of Reno, for Respondent Peterson-McCaslin Lumber Company, a
Corporation.
Lohse & Fry, of Reno, for Respondent Jacques Morvay.
Sidney W. Robinson, of Reno, for Globe Indemnity Company.
Leslie B. Gray, of Reno, for Standard Slag Company.
1. Mechanics' Liens.
Statute, which in effect provides that land occupied by structure is also subject to mechanic's lien if, at
commencement of the work, land belonged to person who caused building to be constructed, would not
preclude lien from attaching to leasehold interest, even though party, at whose immediate instance the work
was performed, had no interest in the land, in view of fact that, under agreement between such party and
lessee, the buildings were constructed at lessee's request and with its knowledge. N.C.L.1929, secs. 3737,
3743.
Where townsite lessee entered agreement with third party for third party's construction on townsite of
dwellings which would, upon completion, become property of the United States, as lessor, governmental
immunity would not extend to the leasehold interest for purpose of preventing such interest from being
subject to mechanics' lien arising from the construction work. N.C.L.1929,sec. 3737.
3. United States.
dwellings which would, upon completion, become property of the United States, as lessor, and such
agreement provided that third party was to construct the dwellings free and clear of any liens, claims, or
encumbrances whatsoever, except for the lease, governmental immunity could not afford a defense against
third party's violation of contract provision pertaining to liens and claims, but such contract would be
capable of being either specifically enforced or its violation being made subject to a money judgment.
4. Principal and Surety.
dwellings, and surety obligated itself to pay over, make good, and reimburse to third party all loss and
damage which third party might sustain by reason of construction contractor's default, fact that lessee was
not party to contract between surety and third party could not serve to release surety from its obligation to
third party on contractor's default, in view of facts that third party was under immediate judgment either to
clear liens arising from contractor's default or pay amount thereof, and that contractor agreed to keep third
party free of all liens incurred in performance of contract and to indemnify third party against any and all
damage which might result or occur during such performance.
Where, under agreement with townsite lessee, third party was to construct on townsite certain
dwellings, and third party was granted equal right to purchase the townsite through an agent corporation,
which would act exclusively for both lessee and third party, and to construct additional dwellings by
being solely responsible for the cost, parties to the agreement intended that third party should be granted
the same rights to use and occupancy of the leased premises as held by lessee, and third party had, under
the agreement, a proper lienable interest in the townsite which was subject of foreclosure of mechanics'
liens arising from the construction.
Fact that costs and interests when added to principal sum of recoverable damages exceeded penal sum of
bond would not preclude recovery of costs and interests from surety.
Attorney's fees awarded mechanics' lien claimant became as much a part of the judgment as principal sum
itself and subject to same limitation in regard to recovery thereof under contractor's bond, namely, the limit
of the penal amount of the bond.
OPINION
By the Court, Bowen, District Judge:
As a result of a judgment and decree of lien foreclosure, three appeals and one
cross-appeal are now to be considered upon a consolidated appeal. While certain procedural
steps have heretofore been considered in our decision on respondents' motion to dismiss the
appeal of Basic Refractories, Inc., 71 Nev. 248, 286 P.2d 747, we must of necessity refer to
those and to other facts and circumstances as they become applicable to our decision upon
each of the appeals and the cross-appeal, which for convenience may be summarized as
follows:
1. No. 3875. An appeal by Basic Refractories, Inc., hereinafter referred to as Basic from
that certain judgment of lien foreclosure, dated January 31, 1955, in favor of respondent lien
claimants.
2. No. 3884. An appeal by Standard Slag Company, hereinafter referred to as "Standard"
from that certain order for summary judgment,
hereinafter referred to as Standard from that certain order for summary judgment, dated
February 17, 1955, in favor of Basic against Standard.
3. No. 3886. An appeal by Globe Indemnity Company, hereinafter referred to as Globe
from that certain order dated March 29, 1955, granting summary judgment in favor of
Standard and against Globe.
4. No. 3889. Cross-appeal by Standard against Globe, which questions the limitation of the
amount of the primary judgment of lien foreclosure to $30,294.50 and costs.
It appears from the agreed stipulation of facts upon which the action for mechanics' lien
foreclosure was tried in the trial court, that on December 1, 1952, as a condition of purchase
of certain property located at Gabbs and Luning, Nevada, Basic as lessee entered into a
written lease of a certain townsite located at Gabbs, Nevada, together with the buildings and
improvements located thereon and the utilities with the Reconstruction Finance Corporation
and the United States of America, both acting by and through the Administrator of General
Services as lessor. In addition to providing for a term of ten years and many other matters, the
lessee was permitted to rent or lease portions of the premises without consent of the lessor
and to enter into mutually satisfactory arrangements with the present users of the properties
and to protect their interests at Gabbs, Nevada.
1
It was further agreed that Basic should
submit an irrevocable bid for the purchase of the property in the event the lessor should
decide to sell the property.
____________________

1
FOUR: The LESSEE shall have full operational responsibility for and control of the properties covered by
this lease, including, but not limited to, the right and privilege, without the consent of LESSOR, to rent or lease
portions of the premises or the facilities located thereon, and to furnish utility services by sale or otherwise
provided, however, that the LESSEE will undertake in good faith to make mutually satisfactory arrangements
with other present users of the properties, to protect their interests at Gabbs, Nevada.
in the event the lessor should decide to sell the property.
2

Because Standard had mining and manufacturing operations at or near Gabbs, Nevada,
which were served by the utilities, and because Basic and Standard were interested in the
maintenance and improvements of the townsite for the betterment of their respective
operations and the best interests and general welfare of their respective employees, a program
for the joint participation in the benefits of, and the obligations with respect to the operation
and subleasing of the leased facilities and for the possible acquisition and disposition of the
leased premises was entered into by written contract, dated May 1, 1953. Among other things,
that agreement provided for the construction by Standard of not more than twenty multiple
four-unit residential dwellings which, upon completion, would become the property of the
lessor, in this instance the United States of America, and it was provided that these dwellings
* * * * shall be free and clear of any liens, claims or encumbrances whatsoever except the
lease.
3

____________________

2
FIVE: If, during the terms of this lease, the LESSOR invites bids from prospective purchasers in an effort
to sell the entire premises leased hereby, subject to the terms and conditions of this lease, the LESSEE, as part of
the consideration hereof, agrees that it will submit to the LESSOR a bid of not less than TWO HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS ($275,000.00) for such premises, payable in installments over a
period of twenty (20) years, said bid to constitute an irrevocable offer to purchase until accepted or rejected by
LESSOR; provided, however, that Lessor shall accept or reject such bid within a reasonable time after the date
set for the opening of bids.

3
TWO: Standard shall erect not to exceed twenty additional residential units on the townsite in multiple unit
structures, each of which shall contain not more than four units, pursuant to this agreement and an agreement
with the lessor which shall provide that the twenty residential units when completed shall be and become the
property of the Lessor and shall be free and clear of any liens, claims or encumbrances whatsoever except the
Lease. Eight of such units shall be erected by December 31, 1953, and the remaining twelve units shall be
erected within nine months from the date of written request by either party. The plans and specifications for the
twenty residential units shall be subject to approval by Standard, Basic, and the Lessor. In event the cost of said
units exceeds $50,000.00 the excess shall be borne one-third by Standard and two-thirds by Basic.
On November 2, 1953, John C. Long, as the Long Construction Company, submitted a
written Proposal with several alternates to construct three four-unit dwellings at a cost of
$60,599, which Standard accepted in writing on November 10, 1953, upon the following
terms:
(a) Builder to furnish completion bond in amount 50% of Contract Price and
(b) Builder to keep the Standard Slag Company free from all liens and encumbrances
incurred in the performance of this contract and to indemnify The Standard Slag Company
against any and all damages which may result or occur during said performance.
Pursuant to the construction agreement as evidenced by the Proposal and its acceptance
of November 10, 1953, Globe on November 30, 1953, as surety for Standard, thereafter
executed a Contract Bond in the penal sum of $30,294.50 conditioned upon full
performance by Long Construction Company as principal of the construction contract which
was incorporated in said bond. Pertinent provisions of that bond appear below.
4

Long Construction Company thereafter performed the construction contract according to
its agreement with Standard, and although fully paid, the Construction Company failed to pay
certain labor claims and claims for materials. As a result respondents Goodwin, Bright, and
Enterprise Electric filed an action against Basic, Standard, and the United States of America
to establish and foreclose their respective liens. Other respondents intervened in the action as
lien claimants. The United States of America was not served with process and did not
appear in the action.
____________________

4
WHEREAS, the above bounden Principal has entered into a certain written contract with the above named
obligee, dated the 10th day of November, 1953, [for the] construction of three (3) four (4) unit apartment
buildings to be located in Gabbs, Nevada, which contract is hereby referred to and made a part hereof as fully
and to the same extent as if copied at length herein.
Now, therefore, the condition of the above obligation is such, that if the above bounden Principal shall well
and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth
and specified, and shall pay over, make good and reimburse to the above named Obligee, all loss and damage
which said Obligee may sustain by reason of failure or default on the part of said Principal, then this obligation
shall be void; otherwise to be and remain in full force and effect.
States of America was not served with process and did not appear in the action. Basic
thereafter cross-claimed against Standard, which in turn filed its third party complaint against
Globe. Globe in turn filed a counterclaim against Long Construction Company.
The trial court entered its judgment and decree of foreclosure on January 31, 1955, and
ordered that the leasehold interest of Basic in the three four-unit apartments, together with
certain parcels of land upon which the dwellings were located be sold, that the lien claimants
be paid, and that if such claim be not paid a deficiency judgment be entered against Long
Construction Company. Thereafter followed the entry of successive judgments of Basic
against Standard and Standard against Globe.
Appeal No. 3875
The first question presented is whether the trial court committed error when it rendered its
primary judgment of lien foreclosure on January 31, 1955, in favor of the unpaid lien
claimants and against respondent, Basic Magnesium Company. Basic, Standard and Globe all
join in this appeal from the primary judgment.
Based upon a construction of a portion of the agreement of Basic and Standard, which
provided as follows: * * * that the twenty residential units when completed shall become the
property of lessor, and shall be free and clear of any liens, claims or encumbrances
whatsoever, except the lease, appellants contend that the residential units, as soon as
constructed, became the property of the lessor, the United States of America, and that
governmental immunity attached as soon as they were placed upon the real estate. It is then
said that a valid lien cannot be asserted against improvements on real property, title to which
is in the United States of America, and governmental immunity not only attaches to the real
property and improvements but to every lesser interest. Respondents, on the other hand,
contend that it is clear from the agreement that while the erected buildings became the
property of the United States of America free and clear of any liens they at the same time
became subject to the lease between the United States of America and Basic,
the erected buildings became the property of the United States of America free and clear of
any liens they at the same time became subject to the lease between the United States of
America and Basic, and thus became a part of Basic's leasehold interest, which interest may
be subject to mechanics' liens.
On oral argument it was first urged that the United States of America was the only party
that could urge the defense of governmental immunity, not Basic, Standard or Globe, and
second that the Basic-Standard agreement should not be so construed as to permit them to
remove a right of recovery under the State of Nevada mechanics' lien law from the field of
litigation through the medium of contract.
While each of respondents' contentions may be determinative, we prefer to rest our
decision on the question of whether governmental immunity extends to a leasehold interest.
Cases cited and relied upon by appellants in support of their position are not
determinative. For example, John Kennedy and Company v. New York World's Fair, 260
App.Div. 386, 22 N.Y.S.2d 901, dealt with a particular mechanics' lien statute, which, unlike
our State, provided for a lien only upon the moneys of the state or of such corporation
applicable to the construction of such improvement. Lien Law, McK.Consol.Laws, ch. 33,
sec. 5. Griffith v. Happersberger, 86 Cal. 605, 25 P. 137, 487, did not involve any question of
the lienability of a leasehold interest, inasmuch as nothing was leased. Title Guaranty & Trust
Company v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72, involved a situation where
title to certain completed portions of a ship vested immediately in the United States of
America, and it was held that under the governmental immunity doctrine materialmen could
not directly foreclose their lien against the ship. Unlike the instant case there was no
lease-back provision.
On the other hand, Crutcher v. Block, 19 Okl. 246, 91 P. 895, 14 Ann.Cas. 1029, seems
more nearly to approximate our particular situation wherein an action to foreclose a
materialmens' lien was upheld,
approximate our particular situation wherein an action to foreclose a materialmens' lien was
upheld, notwithstanding the fact that the building was located on real property, title to which
was vested in the United States of America. The Oklahoma court said: The board for leasing
school, public building, and college lands of Oklahoma Territory leased to one * * * Butler *
* *. He subleased, as he had a right to under the law and the written condition of his lease, to
S. O. Crutcher * * *. Robinson, under contract with S. O. Crutcher, erected a house on this lot
in question, and the plaintiff below, having furnished lumber for the erection of this building,
and the same having been used in the building and not paid for, filed a materialman's lien for
the lumber so furnished * * *. Such a lien, of course, would be subject to all of the conditions
of the lease or conveyance under which the party held. Under the rule here adopted, it is
immaterial that the legal title to the land in question is in the United States. The United States
authorized the leasing of such land for townsite purposes, and by the terms of such a lease an
estate is created. The territory and the general government are bound by their contracts the
same as an individual, and it is only the estate held by the appellant that can be affected by
this lien.
Appellants seek to distinguish Crutcher v. Block by referring to a provision in that
particular lease for the removal of the buildings upon the termination of the lease and because
reference therein was made to the fact that neither the government nor the territory could be
affected to their detriment by the enforcement of this lien because of the provision for
removal of buildings, nevertheless, since judgment of lien foreclosure is not only against the
buildings but the entire leasehold estate, we fail to see how that distinction is valid and
controlling.
Appellants are unduly concerned over any action which might uphold the primary
judgment of lien foreclosure in which the United States of America would be compelled
against its consent to accept an unwanted tenant,
compelled against its consent to accept an unwanted tenant, such as a purchaser upon
foreclosure sale and assert that such a sale without the consent of the United States of
America or its presence would defeat the mechanics' lien law since it would be impossible to
secure a purchaser who would pay anything of value for the sole right of litigating its claim as
a successor lessee to properties owned by the United States of America.
Not only does sec. 3737, N.C.L.1929, provide for foreclosure of a leasee's interest but all
the authorities hold that the lien merely attaches to the lessee's interest subject to the
paramount title of the owner in fee. Whether the party foreclosing the lien may possibly be
buying a lawsuit should not be the concern of the appellants. If it cannot be sold because it is
of no value, or if the plaintiff chooses to bid it in at his own risk, he alone has the right to
complain. But the purchaser under a legal sale, requires all the rights, whatever they are, the
entire estate, whatever it is, which the defendant has in the premises, to just the same extent
that he would by a voluntary purchase from the party * * *. John Turney, Administrator, et
al., v. Edward B. Saunders, et al., 4 Scam. 527, 532, (Ill.). If there had been a provision
against assignment in the lease, or if there had been a provision for forfeiture of the lease in
the event a lien were levied against the property, the Government could have indicated its
desire to contract solely with Basic. But such provisions are not to be found in the
Basic-Standard lease and from that we may reasonably infer that the government was not
concerned with a lien foreclosure and its consequent substitution of another tenant.
[Headnotes 1, 2]
It is contended that by reason of the provisions of sec. 3737, N.C.L.1929, to the effect that
the land occupied by the structure is also subject to the lien, if at the commencement of the
work, * * * the land belonged to the person who caused said building to be constructed, no
lien could attach upon the leasehold interest of Basic since Standard,
no lien could attach upon the leasehold interest of Basic since Standard, the party at whose
immediate instance the work was performed, had no interest in the land. We find no merit in
this contention. In the first place sec. 3737 goes on to provide: [B]ut if such person owned
less than a fee simple estate in such land, then only his interest therein is subject to such lien.
We may further point to sec. 3743, id., whereunder every building 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 his instance, unless notice of nonresponsibility is given.
Basic certainly had knowledge of the construction contemplated if the Basic-Standard
agreement is to be given any effect whatsoever and therefore the buildings in law were
constructed at Basic's request and knowledge. Construing this section, this court said in
Gould v. Wise, 18 Nev. 253, 258, 3 P. 30, 31, But the interest of the owner may be subjected
to lien claims, notwithstanding the labor and materials have not been furnished at his
instance, if, knowing that alterations or repairs are being made or are contemplated, he fail to
give notice that he will not be responsible therefor, as provided in section nine of the act.
The primary judgment of lien foreclosure should therefore be affirmed.
Appeal No. 3884
[Headnote 3]
On February 17, 1955, the trial court entered an order for summary judgment which was
based upon the Basic-Standard agreement of May 1, 1953, wherein Standard agreed to
construct certain residential dwellings * * * to be free and clear of any liens, claims, or
encumbrances whatsoever, except the lease and which provided that Standard should
specifically perform that agreement by satisfaction and clearance of all liens and
encumbrances as determined in the foreclosure judgment prior to the foreclosure sale, or in
the event of failure to render specific performance,
failure to render specific performance, a money judgment should be entered against Standard
for $29,077.22, the total amount of the liens, together with certain costs, interest from
February 11, 1954, and an attorneys' fee of twenty percent (20%) of the judgment.
Standard and Globe have asserted two grounds of invalidity of this particular summary
judgment: First, that it is based upon an invalid primary judgment; and, Second, that there has
been no violation of the Basic-Standard agreement because the improvements became the
property of the United States of America free and clear of any liens, and from that argue that
since governmental immunity attached to those improvements it would necessarily follow
that such improvements were received by the Lessor free and clear of any liens and therefore
there was no violation of the Basic-Standard agreement.
We see no logic in the argument that the governmental immunity can afford a defense
against Standard's violation of its contract with Basic. This contract was capable of being
either specifically enforced or its violation made subject to a money judgment. We are of the
opinion that this judgment should be affirmed.
Appeal No. 3886
On April 11, 1955, Standard obtained a summary judgment against Globe Indemnity
Company, which ordered Globe to satisfy the judgment against Standard to the extent of and
in the amount of $30,294.50, together with costs and interest from January 31, 1955. Globe
has appealed from that order.
[Headnote 4]
It first contends that the judgment against it is invalid because it is based upon two
previous invalid judgments. This contention falls in our affirmance of the judgments in Nos.
3875 and 3884. Globe next contends that Standard has no cause of action against it because
Basic is not named as a party in Globe's bond whereunder it obligated itself only "to pay
over, make good, and reimburse" to Standard all loss and damage which Standard may
sustain by reason of Long's default;
obligated itself only to pay over, make good, and reimburse to Standard all loss and damage
which Standard may sustain by reason of Long's default; that while the purchase order
agreement contemplated that Long, as builder, should keep Standard free of liens and
indemnify Standard against damage, there is no evidence that Standard was damaged and that
it in fact received full performance by Long of the latter's contract. There is neither precedent
nor logic in the contention that Basic's absence as a party from Globe's contract with Standard
can serve to release Globe from its obligation on Long's default. The contention ignores the
fact that Standard is under an immediate judgment either to clear the liens or pay the amount
thereof. It ignores, too, Long's agreement to keep Standard free of all liens incurred in the
performance of the contract and to indemnify Standard against any and all damages which
might result or occur during said performance. This is based on the further contention that
Basic, not a party to Globe's bond, is the only owner of an interest in the realty against which
a lien could be and was in fact enforced. The Basic-Standard agreement does not support this
contention. Under it Standard was granted, in addition to other benefits, (housing for its
employees, one third of the profits from the operation, etc.), equal rights to purchase through
an agent corporation, which would act exclusively for both Basic and Standard, and the right
to construct additional dwellings by being solely responsible for the cost. Assignment of the
agreement was provided for under strict terms and conditions. The agreement was recited to
supersede all previous agreements between Basic and Standard as to the use and occupancy
of the leased premises by Standard. Appellant Globe characterizes the Basic-Standard
agreement as merely an operating agreement without creation of any property interest in
Standard. Standard urges that the agreement does in fact create a lienable property interest in
it and one which may be the subject of lien foreclosure, citing the general rule found in 57
C.J.S. 512, Mechanics' Liens, sec.
C.J.S. 512, Mechanics' Liens, sec. 17, p. 512, as follows: Such a lien may also attach to the
interest of a sublessee, assignee, or other person holding under the lessee or to the interest of
the holder of the lease with an option to purchase.
In Cary Hardware Company v. McCarty, 10 Colo. App. 200, 50 P. 744, 747, a somewhat
similar use and occupancy agreement was construed to hold that a mechanics' lien could
attach to the interest of a person holding under the lessee. The court said: If, therefore, the
smelting company, at the time of the erection of the improvements in question, held
possession of the land upon which they were constructed under a lease, or by virtue of a
license, where its authority was coupled with an interest, then it was the owner of the land,
within the mechanic's lien act.
There is no question but that Norton, the grantor of the smelting company, held under a
lease, although he was given the right to occupy the five acres of surface ground for a specific
purpose only, its use being restricted to the erection of such buildings and machinery thereon
as may be necessary for treating said slag dump.' A critical examination of the contract
between Norton and Holden warrants the conclusion, in our opinion, that its legal effect was
to vest in Holden the same rights, as to the use and occupancy of the premises described in
the lease, as Norton himself had, subject only to its possible avoidance by the refusal of
Norton's grantors to ratify it, which, by the terms of the lease, they might have done. This
appears also to have been the intent and purpose of the parties, so far as we can gather from
the instrument itself. There is certainly ample ground to sustain this view, and in a case like
the present it is the duty of the court to so hold. The laborers and material men, who
contributed so largely to the improvement of the premises, adding great value thereto, by
erecting costly buildings and putting expensive machinery thereon, should not be defeated of
their right to a just compensation solely by a strained and technical construction of the
instrument under which possession was held."
technical construction of the instrument under which possession was held. (Italics ours.)
[Headnote 5]
A fair appraisal of the Basic-Standard agreement would clearly show that the parties
intended that Standard should be granted the same rights to the use and occupancy of the
leased premises and that the agreement granted to Standard a proper lienable interest in the
realty now the subject of foreclosure. The summary judgment against Globe must also be
affirmed.
Appeal No. 3889
One question has been raised on the cross-appeal of Standard against Globe and concerns
the right of the trial court to limit the amount of costs, interest and attorney's fees to the penal
sum of $30,294.50. In this connection it will be noted that the combined total of principal,
interest and costs as of the date of the judgment, for which Standard became liable was the
sum of $31,081.63, and that in addition thereto attorney's fees as fixed by the trial court
amounted to $6,188.62. Not only were the attorney's fees in excess of the amount of the penal
sum but costs and interest exceeded the penal sum by $787.13.
[Headnote 6]
At one time neither costs nor interest were recoverable if they exceeded the penal sum but
that rule has been changed. 2 Sedgwick On Damages, sec. 678, p. 1389. As a result counsel
for Globe has conceded that it would be responsible for costs and interest even though such
amounts exceed the penal sum of the bond. This is in effect, pro tanto, a confession of error,
by reason whereof we need not pursue the matter further but simply modify the judgment so
as to include the principal sum of $29,077.22, costs in the sum of $138.45 and interest in the
sum of $1,865.96. That leaves the question of whether or not attorney's fees are recoverable.
Globe asserts that attorney's fees are strictly the creature of either statute or contract, cites
Dixon v. Second Judicial District Court, 44 Nev. 98, 190 P. 352, and says that since the bond
contains no provision for attorney's fees such fees cannot be recovered in the event they
exceed the penal sum and further that even if there was such a provision the penal sum would
necessarily limit the amount of recovery. It relies strongly upon Hartford Fire Insurance
Company v. Casey, 196 Mo. App. 291, 191 S.W. 1072, which holds that notwithstanding a
stipulation in a bond for the payment of attorney's fees, such fees although considered in the
nature of damages could not be recovered because the penal sum fixed the limit of liability
and that the obligee must stand the loss himself or look elsewhere.
Counsel for Standard, on the other hand, asserts that Hartford Fire Insurance Company v.
Casey, supra, represents the older and less realistic approach to the subject, argues that sec.
3746 N.C.L. 1929
5
which provides for attorney's fees in a lien foreclosure action should be
considered as a part of the bond, and counters with Hartford Accident and Indemnity
Company v. Casassa, 301 Mass. 246, 16 N.E.2d 860, which is cited in the pocket part
supplement to Volume 11 of Corpus Juris Secundum, Bonds, sec. 132, and which holds that
in an action upon an indemnity agreement the obligee is entitled to recover interest, costs and
legal expenses over and above the penal sum where there was such a provision therefor.
Authorities for or against the allowance or disallowance of attorney's fees when they
exceed the penal sum in a bond are indeed limited. Prior to the publication of the 1955
supplement to Volume 11 of Corpus Juris Secundum, however, there was no question in the
minds of the encyclopedia writers that counsel fees could not be recovered, for it is said in
11 Corpus Juris Secundum sec.
____________________

5
Section 3746 N.C.L. 1929 provides: The court may also allow, as part of the costs, the moneys paid for
filing and recording the lien and shall also allow to the prevailing party reasonable attorney's fees.
of the encyclopedia writers that counsel fees could not be recovered, for it is said in 11
Corpus Juris Secundum sec. 132 p. 511, as follows: Attorney's fees. A provision in a bond
further obligating the makers to pay attorney's fees in case of suit has been held not to enlarge
the measure of recovery beyond the penalty named. (Citing Chesley v. Reinhardt,
Tex.Civ.App., 300 S.W. 973.)
Likewise there was no question that such fees could not be recovered when Hartford Fire
Insurance Company v. Casey, supra, reaffirmed the settled law of Missouri. Similarly there
was no question when the Supreme Court of California in Hartford Accident & Indemnity
Co. v. Industrial Accident Commission, 216 Cal. 40, 13 P.2d 699, 703, first construed a
stipulation for the payment of counsel fees to mean that such fees are recoverable, but only in
the event the combined amounts of the award and the attorney's fee do not exceed the penal
sum of the bond and then said: Even where the bond stipulates that damages shall include
attorney's fees, under the rule that a surety on a bond is not liable beyond the penalty named
therein, the surety is not liable for attorney's fees in excess of the penalty named.' 50 Cor.Jur.,
p. 92, sec. 149. In the case of Hartford Fire Insurance Co. v. Casey, 196 Mo.App. 291, 191
S.W. 1072, 1076, the court ruled as follows: The general rule has always been that plaintiff
cannot recover more than the penalty of the bond. Farrar v. Christy's Adm'rs. 24 Mo. 474;
State ex rel. v. Woodward, 8 Mo. 353; State ex rel. v. Sandusky, 46 Mo. 381; Board of
Education v. National Surety Co., 183 Mo. 166, 184, 82 S.W. 70; Showles v. Freeman, 81
Mo. 540. An attorney's fee is a part of the loss sustained by an obligee when compelled to sue
on a bond. In other words, it partakes of the nature of the damages sustained, and the
agreement to pay same makes it a part of such damages. But the bond does not provide for
protection against damages beyond the amount of the penalty. As to such damages in excess
of the penalty, the obligee must stand the loss himself or at least look elsewhere than to the
surety.
himself or at least look elsewhere than to the surety. Consequently when the attorney's fee,
made a part of the damages by a clause to that effect in the bond, forms a part of the excess
above the face of the bond, then the obligee must stand the loss of that, too, at least so far as
the surety is concerned.'
[Headnote 7]
Under our view the particular item of attorney's fees herein involved was the sum of
$6,188.62, which was awarded to the lien claimants pursuant to our statute and became as
much a part of the judgment as the principal sum itself and subject to the same limitation,
namely, the limit of the penal amount of the bond.
From the foregoing, the court's judgment in favor of Standard and against Globe in the
sum of $30,294.50, (the penal sum of the bond), must be modified so as to comprise the
principal sum of the liens in the sum of $29,077.22, costs in the sum of $138.45, and interest
in the sum of $1,865.96, (the last two items under respondent's confession of error), making
an aggregate of $31,081.63. As so modified, it should be affirmed.
IT IS, THEREFORE, ORDERED: The judgment in No. 3875 is affirmed with costs. The
judgment in No. 3884 is affirmed with costs. The judgment in No. 3886 is affirmed with
costs, subject to the modification of No. 3889, infra. In Standard's cross appeal against Globe,
No. 3889, the judgment against Globe in the sum of $30,294.50 is modified by increasing the
same to $31,081.63 and, as modified, is affirmed, with costs in favor of Standard.
(Merrill, C. J., being disqualified, the Governor designated Honorable Grant L. Bowen,
Judge of the Second Judicial District Court, to act in his place.)
____________
72 Nev. 202, 202 (1956) State v. Corinblit
THE STATE OF NEVADA, Appellant, v.
ALEXANDER CORINBLIT, Respondent.
No. 3894
June 19, 1956. 298 P.2d 470.
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Prosecution for embezzlement. The lower court rendered judgment dismissing the case at
close of the state's evidence, and the state appealed and defendant moved to dismiss the
appeal. The Supreme Court, Merrill, C. J., held that taking case from jury and dismissing
prosecution at close of the state's evidence for failure to prove a material element of the crime
charged was error, in view of N.C.L.1929, sec. 11001, authorizing court to advise jury to
acquit defendant if court deems the evidence insufficient to warrant a conviction, but
providing that jury shall not be bound by such advice.
Upon motion to dismiss:
Motion denied.
Upon merits:
Declaration of error.
Harvey Dickerson, Attorney General; George M. Dickerson, District Attorney, Clark
County; Gordon L. Hawkins, Deputy District Attorney, Clark County, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondent.
1. Criminal Law.
Statutes, expressly giving the state a right of appeal from final judgment in all criminal cases, but
providing that such appeal shall in no case stay or affect operation of a judgment in favor of defendant
disclosed legislative intent that Supreme Court should determine issue of law presented by appeal by the
state and render a decision thereon in order that an expression upon the law may be had in the public
interest, even though rights of the parties to such litigation cannot be affected by the appeal. N.C.L.1929,
secs. 11084, 11091.
2. Statutes.
In construing a statute, it is legislative intent with which court is concerned.
3. Criminal Law.
Appeal by state from judgment dismissing prosecution for embezzlement for failure to prove a material
element of crime charged would not be dismissed as moot, in view of legislative intent disclosed by statutes
giving state a right of appeal from final judgment in all criminal cases, but limiting the effectiveness of
such appeal. N.C.L.1929, secs. 11084, 11091.
4. Criminal Law.
Taking case from jury at close of state's evidence and ordering prosecution dismissed for failure to prove
a material element of crime charged was error, in view of statute authorizing court to advise jury to acquit
defendant if court deems the evidence insufficient to warrant a conviction, but providing that jury shall not
be bound by such advice. N.C.L.1929, sec. 11001.
5. Criminal Law.
Decision by Supreme Court to determine issue of law presented by appeal by state from judgment
dismissing criminal case at close of state's evidence did not imply any determination as to constitutionality
of legislation imposing upon Supreme Court advisory duties in moot criminal appeals, where such question
of constitutionality was not presented to court. N.C.L.1929, secs. 11084, 11091.
OPINION
This is an appeal taken by the state from judgment of the trial court dismissing an action
against the defendant for the crime of embezzlement.
The dismissal occurred during trial before a jury. After the prosecution had completed its
case the court took the case from the jury upon motion of counsel for the defendant and
ordered the case dismissed for failure of the state to prove a material element of the crime
charged. Upon this appeal the state contends that this action was in violation of sec. 11001,
N.C.L.1929, which provides: If, at any time after the evidence on either side is closed, the
court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the
defendant. But the jury shall not be bound by such advice, nor must the court for any cause
prevent the jury from giving a verdict, except as provided in sections 318, 319, and 320.
Respondent opposes the appeal upon the merits and has also moved its dismissal, in each
instance upon the ground that the matter is moot.
By sec. 11091, N.C.L.1929, it is provided that with certain specific exceptions which do
not apply here an appeal taken by the state shall in no case stay or affect the operation of a
judgment in favor of the defendant. The state concedes that the defendant has already been
placed in jeopardy by the proceedings below and that under sec. 11091 he may not be retried
upon the charge involved.
The state contends, notwithstanding that the rights of the parties to this litigation cannot be
affected by this appeal, that this court should, nevertheless, proceed to determine the issue of
law which the appeal presents. It contends that since the state has expressly been given a right
of appeal from final judgment in all criminal cases (sec. 11084, N.C.L.1929), the legislature
in effect has expressed a desire that this court undertake to render a decision in all such cases
in order that an expression upon the law, in the public interest, might be had.
[Headnotes 1, 2]
We agree with that construction. State v. Dulaney, 87 Ark. 17, 112 S.W. 158, 15 Ann.Cas.
192; State v. Laughlin, 171 Ind. 66, 84 N.E. 756; See: City of Reno v. Second Judicial
District Court, 58 Nev. 325, 328, 78 P.2d 101; Note, 48 Am.St.Rep. 213. Accord: State v.
Van Valkenburg, 60 Ind. 302; State v. Ward, 75 Ia. 637, 36 N.W. 765; Com. v. Bruce, 79 Ky.
560, 3 Ky. Law Rep. 366; State v. Billups, 179 Miss. 352, 174 So. 50; State v. Granville, 45
Ohio St. 264, 12 N.E. 803; State v. Gray, 71 Okl. Cr. 309, 111 P.2d 514; State v. Hamilton,
80 Ore. 562, 157 P. 796; State v. Hows, 31 Utah 168, 87 P. 163; Territory v. Nelson, 2 Wyo.
346. While sec. 11091, N.C.L., limits the effectiveness of an appeal by the state it does not
limit or deny its right of appeal, but would seem expressly to recognize the right to exist. The
first sentence of that section reads,
sentence of that section reads, An appeal taken by the state shall in no case stay or affect the
operation of a judgment in favor of the defendant * * *. We cannot but regard this as an
expression of legislative intent that an appeal may be taken by the state notwithstanding its
limited effectiveness. It is legislative intent and not wisdom with which we are here
concerned.
[Headnotes 3, 4]
The motion to dismiss is denied. Upon the issue presented for determination we hold that,
under sec. 11001, N.C.L.1929, the trial court was in error in taking the case from the jury.
People v. Roberts, 114 Cal. 67, 45 P. 1016.
[Headnote 5]
The question of the constitutionality of legislation imposing upon this court advisory
duties in moot criminal appeals has not been presented to this court. No implication of
determination upon that question is to be drawn from this decision.
As notice of our action, IT IS ORDERED that remittitur issue to the court below setting
forth our declaration of error.
Eather, J., concurs.
____________
Badt, J. (dissenting):
The question raised by the motion to dismiss the state's appeal is whether or not this court
should rule upon the asserted error of the trial court in dismissing an action against the
defendant for the crime of embezzlement, despite the fact that the question is moot; whether,
despite the fact that it is moot, we should rule upon the point raised, in the public interest and
for the guidance of future criminal trials in the district courts. I am of the opinion that the
appeal should be dismissed.
The majority opinion relies upon the provisions of sec.
sec. 11084, N.C.L.1929, reading as follows: The party aggrieved in a criminal action,
whether the party be the state or the defendant, may appeal as follows: * * * 2. To the
supreme court from a final judgment of the district court in all criminal cases. Also, from an
order of the district court allowing a demurrer or granting or refusing a new trial. It further
asserts that the generality of the language in that section is emphasized by the language
contained in sec. 11091 to the effect that an appeal by the state shall not affect the operation
of a judgment in favor of the defendant except on appeals from orders sustaining a demurrer
to the indictment or granting a motion in arrest of judgment or granting a motion for new
trial. It asserts that the meaning of this language is that appeals may be taken from the
judgment, questioning intermediate rulings of the court, in which the judgment is in nowise
affected.
In rejecting this view I call attention to the following: Sections 11084, to and including
sec. 11105, are the sections comprising chapter 38, which governs appeals in criminal
actions. This chapter forms a part of the criminal practice act, which in itself contains 678
sections as passed by the legislature in 1911, written into the Revised Laws of 1912, and
subsequently into the Compiled Laws of 1929, subject to sundry amendments. Section 11084
must of course be construed in connection with other sections of the criminal practice act and
particularly chapter 38 governing appeals.
It will first be noted that the state may appeal only if it is an aggrieved party. One may
seriously question whether the state has been aggrieved when all it seeks is a clarification of
the law. An aggrieved person is one whose rights are in any respect concluded by the
judgment. Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83, 119 P.2d 883. The state does not assert
that an essential element of the crime of embezzlement was not lacking in the case. It is not
aggrieved by the lack of a conviction of defendant, but complains of an erroneous dismissal
instead of the court's advising the jury to acquit.
Nor does sec. 11087 help the construction given by the majority opinion. It reads: Upon
the appeal, any decision of the court in an intermediate order or proceeding, forming a part of
the record, may be reviewed. This simply follows our general theory of practice in both civil
and criminal appeals. Intermediate orders and proceedings not specifically made appealable
by statute, may be reviewed only on appeal from the judgment.
Section 11096 gives appeals in criminal cases priority. This unquestionably is for the
purpose of avoiding delay in the final determination of criminal cases. It has no reasonable
application to any necessity for haste in determining abstract questions of criminal law.
Section 11097 forbids a reversal without argument, whether orally or upon written brief,
though the respondent fail to appear. It is quite patent that the respondent would never have
appeared in this appeal had it not been for the contention in the state's opening brief that the
state was entitled to a reversal and to a remand for a new trial. It was not until the oral
argument that the state conceded that in no event could respondent be subjected to another
trial.
Sections 11100 and 11101 in particular, however, limit the generality of the words of sec.
11084. They read as follows: After hearing the appeal, the court shall give judgment without
regard to technical error or defect which does not affect the substantial rights of the parties.
This refers of course to the parties to the litigation. No substantial right of either of the parties
can be affected by a decision or opinion whose sole purpose is to declare a matter of abstract
law for future guidance.
Section 11101 is entitled Power of appellate court and reads as follows: The appellate
court may reverse, affirm, or modify the judgment appealed from, and may, if necessary or
proper, order a new trial.
The state contends, and the majority of the court agree, that the power of the appellate
court is thus defined with relation only to appeals aimed at affecting the judgment itself,
the judgment itself, and has no reference to the general right of the state to appeal from a
final judgment of the district court in all criminal cases as granted by sec. 11084. I cannot
agree with that view. If sec. 11084 must be read in connection with sec. 11101, as I think
must be conceded, then the latter section limits the power of the appellate court on appeal to
reversal, affirmance or modification of the judgment, with remand for new trial if necessary.
We may not add to sec. 11101, without judicial legislation, the additional power of rendering
opinions and decisions on moot questions of law, affecting neither the judgment nor any
substantial rights of the parties, for the purpose of clarifying the law for guidance of the
district courts in future cases. Whether such practice would be advisable, or whether, if
deemed advisable, and so enacted by the legislature, such administrative function would be
constitutional, is not for us to consider.
In State v. Pray, 30 Nev. 206, 94 P. 218, 220, Pray was convicted of receiving stolen
goods, fined $1,000 and entered into a stipulation with the district attorney that the fine
should be held pending appeal and, if a reversal was obtained, should be returned to him. This
court, on motion, dismissed Pray's appeal. It first found it unnecessary to pass on the question
whether a voluntary satisfaction of a judgment waives the right of appealthere being
authorities both ways.
It should first be noted that this was not a state's appeal but an appeal by the defendant.
This court quotes 2 Cyc. 647 as follows: Where an order appealed from is of such a nature
that its execution has left nothing upon which a judgment of reversal can operate, the appeal
will be dismissed, unless such right was specially reserved.' * * *. It then proceeds: The
Supreme Court of the United States in the case of Mills v. Green, 159 U.S. 651, 16 S.Ct. 132,
40 L.Ed. 293, said: The duty of this court, as of every other judicial tribunal, is to decide
actual controversies by a judgment which can be carried into effect, and not to give opinions
upon moot questions or abstract propositions,
questions or abstract propositions, or to declare principles or rules of law which cannot affect
the matter in issue in the case before it. It necessarily follows that when, pending an appeal
from the judgment of a lower court and without any fault of the defendant, an event occurs
which renders it impossible for this court, if it should decide the case in favor of the plaintiff,
to grant him any effectual relief whatever, the court will not proceed to a formal judgment,
but will dismiss the appeal.'
Even under the declaratory judgment act under which we held that the door was opened
to the adjudication of innumerable complaints and controversies not theretofore capable of
judicial relief' we made it clear that there must be, (1) a judiciable controversy, (2) between
persons whose interests are adverse, (3) that the parties seeking relief must have a legally
protectible interest and, (4) that the issue involved must be ripe for judicial determination.
Kress v. Corey, 65 Nev. 1, 189 P.2d 352, 364.
The highest authority in the land has emphasized the vice of hearing an appeal by the state
where the defendant has been freed from further prosecution. In United States v. Evans, 213
U.S. 297, 299, 29 S.Ct. 507, 508, 53 L.Ed. 803, an appeal by the United States, pursuant to
statute (subject to the provision that a verdict in favor of the defendant might not be set
aside), in quashing a writ of certiorari by reason of the construction of the act of Congress
involved, Mr. Chief Justice Fuller, speaking for the court, said, quoting Mr. Chief Justice
Shepard in the same case below, 28 App. D.C. 264: The appellee in such a case, having
been freed from further prosecution by the verdict in his favor, has no interest in the question
that may be determined in the proceedings on appeal, and may not even appear. Nor can his
appearance be enforced. Without opposing argument, which is so important to the attainment
of a correct conclusion, the court is called upon to lay down rules that may be of vital interest
to persons who may hereafter be brought to trial. All such persons are entitled to be heard on
all questions affecting their rights,
on all questions affecting their rights, and it is a harsh rule that would bind them by decisions
made in what are practically moot cases, where opposing views have not been presented.'
Conceding the right of the majority of the court to accord great weight to the generality of
the language of sec. 11084 and to the asserted implication arising out of the language of sec.
11091, it nonetheless appears clear to me from the purport of the other sections above
discussed that the most that can be said is that a state of confusion exists. If the legislature has
thus left the subject confused, then in my opinion we should, for a number of valid reasons,
refrain from resolving this confusion in the manner adopted by the majority of the court. It is
contrary to the uninterrupted rejection by this and virtually all other appellate courts of the
determination of moot and academic questions, the consistent application of such rule to
criminal as well as civil appeals, the contemplation of our statute that only an aggrieved party
may appeal, the actual spelling out of what this court may do in criminal appeals, the rule of
this court as enunciated in State v. Pray, supra.
There are practical, material and realistic reasons why (if at the best the sections of the
statute are in a state of confusion) the court's conclusion should not, in my opinion prevail.
On such appeals by the state it must be conceded that the respondent, the dismissed or
acquitted defendant, will not appear. We shall have an appeal argued by the appellant only.
See the characterization of such a situation in United States v. Evans, supra.
This court would then be compelled to initiate, pursue and carry to a conclusion its own
complete investigation of the law upon the question raisedpossibly such a serious question
as the constitutionality of a statute. We are traditionally opposed to conducting such
independent search. See Colton v. Murphy, 71 Nev. 71, 279 P.2d 1036. We should be
confronted with the necessity of appointing amicus curiae and thus imposing upon the
leaders of the profession in this state arduous tasks without compensation.
the leaders of the profession in this state arduous tasks without compensation.
1
I cannot feel
that the statutes in question were intended by the legislature to have such result.
One can envisage still another undesirable result of the ruling. Every time a district
attorney of some county in this state, personally offended by an acquittal or by conviction of a
lesser degree of offense than he had sought at the hands of the jury, who felt that the court
had erred in some ruling on evidence or in its giving or refusing to give some particular
instruction to the jury, could prosecute an appeal to this courtto what end?
We cannot resist a final comment which, though it may not indicate what action this court
should or should not take, is not without significance. In the eighty-odd years since the
criminal practice act has been on the books, there is no record in this court that any attorney
general of this state or any district attorney in any county in this state ever prosecuted an
appeal to this court under the theory here advanced. It is of greater significance that in every
criminal appeal decided by this court it has confined itself to the exercise of the power limited
by sec. 11101 in that it has reversed the judgment appealed from, affirmed it or modified it,
and has in proper cases ordered a new trial. It has never on such appeal made a declaration
of error.
It is said that this court in City of Reno v. District Court, 58 Nev. 325, 78 P.2d 101, 102,
held (though concededly as dictum) that the deciding of moot cases by this court is the effect
intended by [the criminal appeal] statutes. The statement there appearing was in my opinion
not even dictum. Properly paraphrased in order more correctly to state its meaning, the
statement of this court was as follows: Even conceding for the sake of argument that the
effect of the appeal statutes is to permit this court to determine a moot question upon the
state's appeal,
____________________

1
While the legislature has indeed provided for the appointment and payment of counsel for indigent
defendants, at the expense of the county, it has made no provisions permitting us to appoint and pay amicus
curiae in the case of appeals such as the present one.
of argument that the effect of the appeal statutes is to permit this court to determine a moot
question upon the state's appeal, they have no application here because this is not an appeal
but an original proceeding in certiorari.
I would dismiss the appeal as moot and as not authorized by our statute.
____________
MILTON G. SMILANICH, Appellant, v. BONANZA
AIR LINES, Respondent.
No. 3911
June 21, 1956. 298 P.2d 819.
Department No. 2.
Civil action. Summary judgment was entered against the defendant in the lower court and
the defendant appealed. The Supreme Court, Eather, J., held that the evidence did not
establish an abuse of discretion by the district judge in denying the defendant's motion for
relief from the summary judgment on the ground of mistake.
Affirmed.
See also 72 Nev. 10, 291 P.2d 1053.
(Rehearing denied July 11, 1956.)
Vargas, Dillon, Bartlett & Garroway, of Reno, for Respondent.
Judgment.
Evidence did not warrant granting relief from summary judgment for mistake, inadvertence or excusable
neglect on the ground of mistake resulting when no notice had been given of an intent to file an amended
complaint and no court order had been obtained where mistake seemingly had its origin in the appellant.
Rules of Civil Procedure, Rule 60(b).
OPINION
Summary judgment was entered against appellant in the district court. Thereafter, he
moved for relief from that judgment, basing his motion upon Rule 60(b) N.R.C.P., which
permits relief on the ground of mistake, inadvertence, excusable neglect, fraud or other reason
stated in the rule. That motion, after full argument in the court below, was denied. Thereupon,
appellant appealed from that denial and also from the summary judgment. We have already
dismissed the appeal from the judgment as not timely filed. (Opinion dated January 10, 1956,
72 Nev. 10, 291 P.2d 1053.)
The sole question now before us is whether or not the district judge abused his discretion
in denying appellant's motion for relief. We determine that he did not.
Some confusion and misunderstanding seem to have crept into the proceedings in the
lower court. The motion by respondent for summary judgment was orally argued and
respondent submitted a written brief; appellant had leave to file an answering brief. By
writing dated March 14, 1956, served on respondent March 16, (1956) and filed, appellant
submitted the motion for summary judgment without an answering brief. On or about that
date, appellant's counsel discussed the matter ex parte with the court and the court made an
order on March 18 purporting to grant a motion to dismiss the complaint (assuming the
existence of such motion, although none existed) and allowing the filing of an amended
complaint.
Appellant thereupon filed an amended complaint and mailed a copy of it to counsel for
respondent but without giving any notice of the order permitting the filing thereof or the order
dismissing the original complaint. Thereupon, respondent moved to strike the amended
complaint on the grounds that the motion for summary judgment had been submitted and,
also, because no notice had been given of intention to file an amended complaint and that
no court order had been obtained.
notice had been given of intention to file an amended complaint and that no court order had
been obtained.
When counsel for respondent appeared for argument at the time stated in that motion, he
learned for the first time of the order dismissing the complaint and allowing the filing of an
amended complaint. Respondent's counsel then called to the court's attention the fact that
there was no motion to dismiss the complaint but that the motion before the court, still
undetermined, was respondent's motion for summary judgment. Whereupon the court revoked
the order dismissing the complaint and permitting an amended complaint and it then granted
summary judgment on the original motion which had been argued and submitted.
At the argument on the motion for relief, the district judge informed counsel that he had
been under the impression that there was before him a motion to dismiss. Counsel for
appellant frankly admits that the ex parte discussion with the court was on that basis. As there
is a great difference between a motion to dismiss and a motion for summary judgment, the
mistake seems to have had its origin, or at least some sustenance, from appellant.
The affidavits and arguments presented to the district judge on the motion for relief were
ample to place the entire factual and legal situation before the court and we are satisfied that
appellant had full opportunity to present his contentions.
Appellant's main argument to us in connection with the motion for relief is that the court
erred in entering summary judgment. As we have dismissed the appeal from the judgment,
that matter is not before us. However, the opening brief of appellant informs us that upon the
argument of the motion for relief the court further stated that notwithstanding all the facts
and circumstances, even considering the amended complaint on file in the action and the copy
of the airline's pilot contract annexed thereto,
contract annexed thereto, the appellant had no cause of action and that summary judgment as
granted was proper and would not be set aside.
____________
72 Nev. 215, 215 (1956) Fry v. O'Keefe
ROBERT C. FRY and FRANCES FRY, His Wife, Appellants, v. JAMES LEO O'KEEFE
And LOTTIE O'KEEFE, His Wife, Respondents.
No. 3780
July 6, 1956. 299 P.2d 202.
Department No. 2.
Suit to dissolve a joint venture involving a proper division of the venture's capital. From a
judgment for plaintiffs, the defendant appealed. The Supreme Court, Eather, J., held that the
evidence sustained the construction of the agreement by the trial court that the capital
advanced by the plaintiff was first to be repaid.
Affirmed.
(Rehearing denied October 9, 1956.)
Guild, Busey & Guild, of Reno, for Appellants.
Bert Goldwater, of Reno, for Respondents.
1. Joint Adventures.
In suit to dissolve a joint venture for the construction of an apartment building, where the venture proved
unprofitable and a substantial loss was sustained, evidence established that under the agreement the capital
advanced by plaintiff was first to be repaid.
In suit to dissolve a joint venture, striking of testimony of defendant insofar as tending to vary the terms
of the original written contract was not prejudicial where the testimony offered did not
modify the plaintiff's right to prior reimbursement.
72 Nev. 215, 216 (1956) Fry v. O'Keefe
written contract was not prejudicial where the testimony offered did not modify the plaintiff's right to prior
reimbursement.
3. Joint Adventures.
In suit to dissolve a joint venture for construction of an apartment building which proved unprofitable and
wherein substantial loss was sustained, evidence did not establish that plaintiff's prior right to repayment of
capital contributed was to attach only in case of private sale of the property or division of the operating
profits and that it was never intended to apply to a forced sale.
OPINION
This is a suit to dissolve a joint venture. Involved upon this appeal is a question of proper
division of the venture's capital. The venture proved unprofitable and a substantial loss was
sustained. The trial court held that, under the agreement between the parties, the capital
advanced by plaintiff O'Keefe was first to be repaid. Since the proceeds available after
discharge of debts left nothing to go to defendant Fry the court awarded the full balance to
O'Keefe. Fry has taken this appeal. We agree with the construction of the trial court and upon
this ground the judgment must be sustained.
[Headnote 1]
The written contract was drawn by Fry. O'Keefe was to advance capital in the sum of
$36,000. Fry was to advance capital in the sum of $4,300. With these sums and with services
to be performed by Fry in his capacity as contractor and construction engineer the parties
were to engage in the venture of constructing an apartment building. The agreement provided
that, Upon completion of said building project it is mutually agreed that all the above
property and buildings shall be put on the market for sale, and upon sale of same, it is agreed
that Mr. and Mrs. J. O'Keefe shall receive their total investment of $36,000 and Mr. and Mrs.
Robert C. Fry shall receive their investment of $4,300,
72 Nev. 215, 217 (1956) Fry v. O'Keefe
receive their investment of $4,300, and any and all profits thereafter are to be divided equally
among the joint owners.
The meaning and intent of the parties as expressed by this provision is clear from the
testimony of Fry. Upon cross examination by O'Keefe upon his case in chief, Fry as an
adverse witness testified: Q. Then as I understand it, under the terms of that agreement, Mr.
O'Keefe was to get his money back either on a loan or upon sale so that he would be free and
clear and would share in the profits? A. I believe Mr. O'Keefe will agree I told him under any
circumstances whether we kept the property for income or whether we sold it he was to
receive his money back first that he put in and I would receive the balance. This testimony
was admitted without objection. It stands uncontroverted, clearly establishing the investment
of the O'Keefes as preferred and prior in point of reimbursement.
[Headnote 2]
The original plans of the parties were later modified. The changes involved substantial
additional cost which was raised by additional capital advanced by O'Keefe and $20,000 by
third parties. The changes also required substantial additional constructional services from
Fry, and substantial use of his construction equipment. Testimony by Fry as to the
modification of the original agreement was at first admitted by the trial court over the
objection of O'Keefe. Later, upon O'Keefe's motion, it was stricken by the court insofar as it
tended to vary the terms of the original written contract. This action is assigned as error by
Fry.
The testimony offered, however, in no respect tended to eliminate or modify O'Keefe's
right to prior reimbursement. Even under the oral contract he was first to be reimbursed. The
only material difference is that the parties now contemplated holding the property for income
and reimbursing themselves (first O'Keefe and then Fry), out of income before sale. Upon
sale the profits were to be equally divided.
72 Nev. 215, 218 (1956) Fry v. O'Keefe
profits were to be equally divided. Even if the action of the trial court in this respect was error
it was without prejudice to Fry for the right of priority enjoyed by O'Keefe remained
unchanged.
Upon completion of the building differences arose between the parties. This action for
dissolution was brought by O'Keefe. It was then clear to Fry that, in the light of their
differences the venture could not continue to operate successfully. Fry agreed to dissolution.
He stipulated that the property be sold. It was sold at public sale with resulting capital loss.
[Headnote 3]
Fry now contends that the original written contract, together with its oral modification,
demonstrates that the priority right of O'Keefe was to attach only in case of private sale or
division of operating profits; that it was never intended to apply to forced sale. It may well be
true that the parties optimistically contemplated only a successful venture and did not give
thought to the question of division in case a loss was sustained. The fact of the prior right of
reimbursement remains, however, and in the words of Fry himself it was to apply whether the
property was kept for income or was sold.
____________
72 Nev. 219, 219 (1956) Reno Realty v. Hornstein
RENO REALTY AND INVESTMENT CO., a corporation, Appellant, v. JOSEPH
HORNSTEIN, Respondent.
No. 3926
July 16, 1956. 301 P.2d 1051.
Department No. 3.
Lessor's suit for judgment declaring its right to refuse to extend term of lease. From a
judgment favorable to the lessee, the lessor appealed. The Supreme Court, Merrill, C. J., held
that lessee's violation of tax commission regulation prohibiting taking of bets by mail
justified lessor's refusal to extend term of lease, where lessee had agreed not to conduct on
premises any business prohibited by state laws and where lessee had been granted right to
extension in consideration for the full, faithful, and complete performance of lease
agreement.
Reversed.
Springmeyer & Thompson, of Reno, for Appellant.
Sinai & Sinai, of Reno, for Respondent.
1. Landlord and Tenant.
Lessee's violation of tax commission regulation prohibiting taking of bets by mail justified lessor's refusal
to extend term of lease, where lessee had agreed not to conduct on premises any business prohibited by
state laws and where lessee had been granted right to extension in consideration for the full, faithful, and
complete performance of lease agreement.
That lessee had not personally committed acts constituting breach of lease would not prevent lessor from
refusing to extend lease, where lessee was answerable for conduct of those who committed acts which
constituted breach of lease.
Acceptance of rent after knowledge of breach constitutes waiver of lessor's right to terminate lease.
4. Estoppel.
A waiver is intentional relinquishment of known right.
Lessor's acceptance of rent after knowledge of breach of lease did not constitute waiver of right to refuse
extension of term of lease where lessee's right to such extension was dependent upon faithful performance
of lease agreement.
6. Declaratory Judgment.
In lessor's action for judgment declaring his right to refuse to extend term of lease because of lessee's
failure to faithfully perform, evidence would not sustain lessee's contention that he had expended large
sums in reliance upon lessor's failure to forfeit lease after breach.
OPINION
This is an action for declaratory relief brought by appellant-lessor to establish his right to
refuse to extend the term of respondent's lease. The trial court, sitting without jury, held for
the lessee, and lessor has taken this appeal.
The premises are located in the city of Reno. The lease was executed in 1950 for a term of
five years from January, 1951. The lessee was granted the right to extend the term for an
additional five years in consideration for the full, faithful, and complete performance by
lessee of each, every and all of the terms and provisions of this lease agreement by said lessee
to be kept and performed.
Among the lease provisions was the following: Lessee further agrees that he will not
violate nor permit any person to violate any city ordinance of the city of Reno or any county,
state or federal law on the said premises whereby said premises may or might be subject to
abatement nor to conduct on said premises any business which is forbidden or prohibited by
the ordinances of the city of Reno or prohibited by the laws of the state of Nevada or the
United States of America.
Upon the premises lessee, under the name of Nevada Turf Club, conducted a gambling
business in the course of which he took bets on horse races and other sports events.
of which he took bets on horse races and other sports events. The business was licensed and
regulated under the authority of the Nevada Gambling Control Act, NCL 1931-1941 Supp.,
Secs. 3302 et seq., and under the supervision of the Nevada Tax Commission.
In 1952 the tax commission adopted a regulation governing the conduct of such gambling
transactions which provided in part, All bets accepted by race horse books or sports pools
must be on an over-the-counter basis * * *. No bets shall be placed by telephone, telegraph,
messenger or in any manner other than over the counter by the person making the bet.
During October, November and December, 1954, an investigator of the Nevada Tax
Commission under an assumed name, from San Francisco, engaged in an interstate course of
betting on football pools with the Nevada Turf Club contrary to regulation. On six occasions
by mail he received from the club cards by means of which bets could be placed. On six
occasions he placed bets by money order through the mail, which sums were duly deposited
by the Nevada Turf Club in its Reno bank account. On two occasions successful bets were
paid by the Nevada Turf Club by money order through the mail. It does not appear that any
bets offered by the investigator were rejected by the club.
Lessor became aware of the tax commission investigation through a news article published
in February, 1955. Later that month lessee voluntarily abandoned his gambling license and
confined himself to a bar business. No further proceedings were taken by the tax commission.
This action was brought the following month. In the interim, rent for March, 1955 had been
accepted by the lessor. Lessor by its action did not seek forfeiture of the lease for its
remaining eight months but sought to establish its right to refuse to renew the lease for the
extended five-year term upon the ground that lessee had failed to make full, faithful and
complete performance of the lease provisions.
The trial court decreed that lessee's right to renew the lease had not been lost. Upon three
grounds lessee supports the trial court's action.
[Headnote 1]
First. The trial court in its conclusions of law held that the unlawful acts were trivial,
technical, and in no way prejudicial to plaintiff or to said demised premises. Lessee contends
that those acts may not, therefore, be asserted to demonstrate lack of full and faithful
performance. Without deciding the point, we may concede that lessee's position would be
well taken were the court's holding to be permitted to stand. In Title Insurance and Guarantee
Co. v. Hart, 9 C.C.A., 160 F.2d 961, 969, 970, the court, in holding certain violations to be
relatively minor infractions, stated, It is not reasonable in human experience to expect that
there could have been full, exact, strict, complete and perfect compliance with all of the
covenants * * *. At certain times due to the impossibility of human perfection some of the
Mine Safety Orders were bound to be violated. Realistically it may be the fact that isolated
and technical instances of violation of the regulations of the tax commission can hardly be
avoided in an operation of any magnitude. Such was not the case here. While the proof of
violation was through a very few improper transactions as against many thousands of
unexamined and unquestioned transactions, still those few were sufficient to establish beyond
coincidence that the establishment was actually engaged in an unlawful operation. Had lessee
not voluntarily surrendered his gaming license on the premises abatement may well have
resulted.
Lessee contends that the tax commission has itself demonstrated that it regarded the
incident as trivial. It did not proceed further against the lessee. Instead it has granted him a
gaming license at another location and thus appeal's to have placed its stamp of approval
upon him. We have no way of knowing the considerations which moved the tax commission
in taking its action or of judging the significance of such action, and do not propose to
speculate upon such matters.
action or of judging the significance of such action, and do not propose to speculate upon
such matters. With due regard to the public interest we cannot hold as law that operation
contrary to such a regulation as the one here involved is but a trivial or technical violation.
Without a more unequivocal expression of intent we are not willing to construe the action of
the tax commission as a ruling to that effect. Under the proof the court's conclusion that the
violation was trivial and technical must be held to be error. The violation amounted to a
substantial breach of the lease.
[Headnote 2]
Second. The court found (and apparently regarded as significant) that lessee had not
personally committed the acts which constituted breach of the lease and had no actual
knowledge of their commission. Lessee contends that this establishes as matter of law that he
was not guilty of breach.
This might well be the case had the unlawful acts been committed by a stranger: one for
whose conduct, unknown to lessee, he was not responsible. Here the acts could only have
been committed by someone in authority on behalf of and for the benefit of the lessee's
business operation. Lessee testified that four persons were authorized to open mail and two or
three were authorized to make bank deposits. At least one was apparently authorized to
purchase money orders for the payment of bets. One may not entrust to others the operation
of his business and the fulfillment of his contractual obligations without accepting civil
responsibility for their acts in his behalf. Lessee cannot escape responsibility for breach of
lease by a simple denial of actual personal knowledge that such breach had been committed
by those for whose conduct he was answerable.
[Headnotes 3-6]
Third. The trial court concluded that any right of refusal to extend the term of the lease had
been waived by appellant by the acceptance of rent after knowledge of the breach.
of the breach. Acceptance of rent after knowledge of breach is well recognized to constitute a
waiver of the lessor's right to terminate the lease. Sharp v. Twin Lakes Corporation, 71 Nev.
162, 283 P.2d 611. Where the lease grants an unconditional right to the lessee at his election
to renew the lease upon completion of its original term, such a waiver attaches to the
extended term. The right of renewal is regarded as part of the term of the lease itself.
Kaliterna v. Wright, 94 Cal.App. 2d 926, 212 P.2d 32; Saxeney v. Panis, 239 Mass. 207, 131
N.E. 331; Hotel Allen Company v. Allen's Estate, 117 Minn. 333, 135 N.W. 812; Selden v.
Camp, 95 Va. 527, 28 S.E. 877; Henry v. Bruhn & Henry, 114 Wash. 180, 195 P. 20.
However, the situation is different where the right to renew the lease is expressly made
subject to the condition precedent that the lessee shall have performed all the terms of the
lease. As stated by Kay, J., in Bastin v. Bidwell, 18 Ch. Div. 238, 249, Supposing there was
a waiver of the right of re-entry, it does not seem to me at all to follow that the precedent
condition would be waived or affected in the least degree. The condition precedent is this: If
you have performed your covenants altogether, then, that being the precedent condition, you
shall be entitled to have the renewed lease; if you have not performed your covenants it does
not matter that the lessor may have waived his right of forfeiting the lease; the condition
precedent has not been performed, and if the precedent condition has not been performed, the
right which depends upon it does not arise at all.
This distinction was expressly recognized in Saxeney v. Panis, supra, and has resulted in
holdings for the lessor against waiver in Gadsden Bowling Center v. Frank, 249 Ala. 435, 31
S.2d 648, 172 A.L.R. 1430; and Jones v. Epstein, 134 Ark. 505, 204 S.W. 217. See also Swift
v. Occidental Mining & Petroleum Company, 141 Cal. 161, 74 P. 700; Skillman v. Lynch, 74
S.D. 212, 50 N.W. 2d 641.
The conditions precedent may themselves be waived by the lessor or he may by his
conduct become estopped to assert them. Thus we frequently find cases holding a lease
subject to renewal where the strict performance of acts required by the lease has itself been
waived by acceptance of lesser performance, Garnhart v. Finney, 40 Mo. 449, 93 Am.Dec.
303; Montant v. Moore, 135 App.Div. 334, 120 N.Y. Supp. 556; Spotts v. Westlake Garage
Co., 116 Wash. 255, 199 P. 294; Kaliterna v. Wright, supra; or of tardy performance, Seldon
v. Camp, supra; Lyons v. Osborn, 45 Kans. 650, 26 P. 31; or by acquiescence of the lessor in
the breach over a substantial period of the lease term, Armstrong v. Shapiro, 119 Misc. 522,
196 N.Y. Supp. 630, (reversed on other grounds, 207 App. Div. 304, 202 N.Y. Supp. 305);
King-Blair Co. v. Schloss, 253 Mich. 243, 234 N.W. 481; or by permitting substantial
investment by the lessee in reliance upon such acquiescence, see Title Insurance & Guaranty
Company v. Hart, supra.
However, the distinction must be observed between a waiver of the right to terminate the
lease and a waiver of the conditions precedent to the lessee's right of renewal. A waiver is the
intentional relinquishment of a known right. Santino v. Glens Falls Insurance Company, 54
Nev. 127, 139, 9 P.2d 1,000. If intention is to be implied from conduct, the conduct should
speak the intention clearly. Acceptance of rent clearly speaks an intent not to terminate a
lease. Finch v. Underwood, 2 Ch.Div. 310, 316, is one of the earliest cases dealing with the
distinction between waivers with which we are concerned. There Mellish, L. J., points out
that the waiver of the right to terminate the lease resulting from acceptance of rent is based
upon the proposition that having received rent after notice of it [the lessor] is precluded from
taking advantage of the forfeiture because it is a contradiction in terms to treat a man as a
tenant and then treat him as a trespasser. This court in Sharp v. Twin Lakes Corporation,
supra, stated, [The lessor's] conduct was consistent only with an election to hold the lessee
to its obligations under the lease.
election to hold the lessee to its obligations under the lease. Clearly he has by acceptance of
rentals under these circumstances affirmed the existence of the lease and recognized the
lessee as his tenant. His right to claim forfeiture has thus been waived.
Likewise the clear acceptance of or acquiescence in performance speaks the intention to
accept or acquiesce and thus release from any obligation to perform more fully. But it cannot
be said that acceptance of rentals or other performance speaks any intent to release a lessee
from an unrelated promise or condition. As stated in Swift v. Occidental Mining & Petroleum
Company, supra, the neglect of the landlord to strictly enforce his right of forfeiture for
breach of condition does not entitle the tenant to a renewal when such renewal is dependent
upon faithful performance of conditions. There is no finding and no evidence to warrant a
finding that plaintiffs consented to any cessation of the work of exploration and development
and their mere failure to enforce a forfeiture for the cessation which occurred in 1894-1895
and 1898-1899 was not a waiver of performance of the conditions upon which they had
bound themselves to renew the lease.
In the case at bar the right of renewal was expressly made subject to the condition
precedent of the full, faithful, and complete performance by lessee of each, every and all of
the terms and provisions of the lease. Considering the lease provisions, this is equivalent to
an express condition precedent that lessee's business enterprise be lawfully conducted. In
absence of acquiescence, acceptance of rent cannot be said to amount to a waiver of such a
condition.
Lessee contends that here there was acquiescence. He points out that no steps were taken
by lessor in protest against the unlawful acts until those acts had ceased and lessee voluntarily
had abandoned his gaming license. This cannot be said to constitute acquiescence. Lessor
never, by word or action, with knowledge that the acts were being carried on, consented to
them. The most that might be said is that,
might be said is that, upon learning of the unlawful acts, it refrained from enforcing its rights
to the fullest in that it did not enforce forfeiture. In the absence of reliance and change of
position on the part of the lessee such leniency on the part of the lessor cannot be said to
constitute waiver of performance.
Lessee contends that there was change of position. The trial court found that lessor, with
knowledge of the breach, caused defendant [lessee] to expend large sums of money in the
improvement of said premises * * * in reliance upon defendant's belief that plaintiff
recognized defendant's right to extend said lease. The record does not support this finding.
The improvements were made during the term of an earlier lease and were not made in
reliance upon the fact that lessor apparently was willing to overlook lessee's violation.
Lessee emphasizes that at the time lessor asserted its right to deny a renewal of lease
everything was operating properly; no one had suffered by any lease violation; order was fully
restored and the tax commission apparently satisfied. The breach, he asserts, was simply
water over the dam to no one's detriment. However, it is not for us to judge the desirability of
the lessee as tenant for a renewed term in the light of his past history as tenant. Under the
facts of this case that right is one expressly and specifically reserved to the lessor by virtue of
contract. We may not question the manner in which it chooses to exercise such right, nor
inquire as to its true motive in such rightful exercise.
Reversed and remanded with instructions that judgment in accordance with this opinion be
entered for the plaintiff.
(Badt, J., participated in the deliberations and concurs in the result, but was absent at the
time of filing of the opinion.)
____________
72 Nev. 228, 228 (1956) State Ex Rel. Quimby v. City of Reno
THE STATE OF NEVADA Upon the Relation of GEORGE D. QUIMBY and CLARA
QUIMBY, Appellants, v. CITY OF RENO, a Municipal Corporation, FRANCIS R. SMITH,
Mayor, and WILLIAM A. LIGON, CHARLES E. COWEN, EDWIN S. SEMENZA,
THOMAS H. HARVEY, JOHN T. MYLES and MARSHALL GUISTI, Councilmen of Said
City, Respondents.
No. 3924
July 16, 1956. 301 P.2d 1050.
Appeal from the Second Judicial District Court, Washoe County; Merwyn H. Brown,
Presiding Judge, Department No. 2.
Action in quo warranto challenging propriety of municipal action annexing certain
territory to the city of Reno. The trial judge held the annexation proper and relators appealed.
Respondents moved to dismiss the appeal. The Supreme Court held that where territory in
question was validly annexed to city by legislature approximately two years after city's action
of annexation, although question of the validity of city's action of annexation was moot
insofar as concerned rights accruing after such legislative action, as to rights dependent upon
validity of the city's action of annexation and accruing during the period between city's
annexation and legislation effecting the annexation, the appeal remained effective.
See also 71 Nev. 144, 282 P.2d 1071; 73 Nev. [136], 310 P.2d 850.
On motion to dismiss appeal, motion denied.
R. K. Wittenberg, of Reno, and Harvey Dickerson, Attorney General, for Appellants.
Samuel Francovich, City Attorney of Reno; Bruce D. Roberts, Assistant City Attorney, of
Reno and Sidney W. Robinson, of Reno, for Respondents.
Municipal Corporations.
Where certain territory was validly annexed to city by legislature approximately two years after city's
action of annexation, although question of the validity of city's action of annexation was moot insofar as
rights accruing after such legislative action, as to rights dependent upon validity of the city's action of
annexation and accruing during the period between city's annexation and legislation effecting the
annexation, the appeal remained effective.
OPINION
On Motion To Dismiss Appeal
Per Curiam:
This is a motion to dismiss the present proceedings upon the ground that the issues have
become moot. The action is one in quo warranto challenging the propriety of municipal
action annexing certain territory to the city of Reno. The matter is before this court on appeal
from judgment of the trial court holding the annexation to be proper.
The city's action was taken April 12, 1954. On February 24, 1956 the state legislature, by
statute immediately effective, accomplished the identical annexation. By virtue of the
legislative action respondent contends that the validity of the city's action is now without
legal significance and that the appeal should be dismissed.
The public concern in the annexation is twofold. Of major importance is the question
whether the territory involved has properly been annexed and is now a part of the city of
Reno. Of this there can be no question. The legislature acted with authority. Upon this motion
no contention is made that the legislative action, for any reason, was improper or invalid. The
public concern upon this question may, therefore, be set to rest. The territory involved is now
and has since February 24, 1956 been lawfully annexed to the city of Reno.
There remains, however, of minor public importance, the question whether the territory
involved was a part of the city of Reno from April 12, 1954,
the question whether the territory involved was a part of the city of Reno from April 12, 1954,
the date of the city's action, to February 24, 1956, the effective date of the legislative action.
Certain rights against the city are asserted to exist, the existence of which is dependent upon
such a determination.
It is asserted (and supported by documentary proof in the form of canceled checks) that
city taxes and license fees payable during the period in question were demanded by the city of
residents of the area and were paid by certain of those residents under protest. Unless for
some reason such protests were or have become ineffective, it may not be said that the
validity of the city's annexation proceedings is wholly without legal significance. The issues
involved upon this appeal continue to bear upon rights asserted to exist against the city and to
that limited extent such questions have not been rendered moot by legislative act.
As to rights dependent upon the validity of the legislative action the present appeal is no
longer effective. As to rights remaining, dependent upon the validity of the city's action of
annexation, the appeal remains effective. The motion to dismiss, accordingly, is denied.
Merrill, C.J.,
Eather, J.
(Badt, J., participated in the deliberations and concurs in the result, but was absent at the
____________
HENRY McCLEARY TIMBER COMPANY, Appellant, v. C. A. SEWELL and ORENE H.
SEWELL, His Wife, Respondents.
No. 3912
July 17, 1956. 301 P.2d 1047.
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Frank B.
Gregory, Presiding Judge.
Action for balance due plaintiffs for caring for defendant corporation's cattle under an
agistment agreement. Defendant filed a counterclaim for loss of some of cattle because of
plaintiff's alleged wrongful acts and neglect. From a judgment for plaintiffs and against
defendant on the counterclaim, the Supreme Court, Merrill, C. J., held that evidence
supported trial court's determination that the agreement, providing for measurement of hay
fed to cattle by plaintiffs according to so-called government rule, referred to quartermaster
rule, not federal agriculture department's leaflet proposing new rules for measurement of hay,
and that court properly received evidence of local custom as to method of computing weight
of hay in conjunction with determination of volume by means of quartermaster rule, in
absence of evidence that it extended to determination of weight from volume.
Judgment affirmed.
See also 72 Nev. 7, 292 P.2d 197.
James A. Callahan, of Winnemucca, and Anderson, Kaufman & Anderson, of Boise,
Idaho, for Appellant.
Orville R. Wilson, of Elko, for Respondents.
1. Animals.
In action for balance due plaintiffs for caring for defendant corporation's cattle under agistment
agreement, evidence supported district court's determination that such agreement, providing for
measurement of hay fed to cattle according to so-called government rule, referred to quartermaster rule
for measurement of hay in stacks to determine its volume, not federal agriculture department's
leaflet proposing new rules for measurement of both volume and weight,
federal agriculture department's leaflet proposing new rules for measurement of both volume and weight,
and court properly received evidence of local custom as to method of computing weight of hay in
conjunction with determination of volume thereof by quartermaster rule in absence of evidence that such
rule extended to determination of weight from volume.
2. Animals.
In action for balance due plaintiffs for caring for defendant corporation's cattle under agistment
agreement, evidence supported trial court's conclusion that loss of some cattle, for which defendant
counterclaimed, resulted from drifting or natural causes because of their weakened condition when
delivered to plaintiffs, rather than acts and neglect of plaintiffs.
3. Animals.
In action for balance due plaintiffs for care of defendant corporation's cattle under agistment agreement,
evidence supported trial court's findings and conclusion that plaintiff's negligence did not cause loss of
some of cattle, for which defendant counterclaimed.
4. Animals.
In action for balance due plaintiffs for care of defendant's cattle under agistment agreement, evidence
warranted trial court's conclusion that loss of some of defendant's bulls, for which defendant filed
counterclaim, was not due to plaintiff's negligence or lack of care, but to facts that defendant supplied too
few bulls to serve herd and that they were not in condition to be turned out on rugged open range and to
illness and natural causes.
OPINION
This is an appeal taken by the defendant in the court below from money judgment for the
plaintiffs and from judgment against the defendant upon its counterclaim. The appellant
contends that in neither respect does the evidence support the judgment or the findings of the
trial court which sat without jury.
Plaintiffs Sewell, residents of Elko County, possess ranch properties and range rights in
northern Nevada and southern Idaho. The defendant corporation has ranch properties in
Humboldt County, Nevada. The action arose out of an agreement of agistment between the
parties, whereby plaintiffs were to care for certain of defendant's cattle for a period of two
years.
of defendant's cattle for a period of two years. Following an accounting in the trial below the
court found that under the agreement charges against the defendant totaled $106,178.41,
while credits amounted to $67,047, leaving a balance due in the sum of $39,131.41.
Judgment was rendered against the defendant in this amount.
[Headnote 1]
Upon this appeal the defendant's sole attack upon this judgment is against the manner in
which the court computed the amount of hay provided to defendant's cattle, for which under
the agreement defendant was to pay $15 a ton. The court found that 5,025.4 tons had been
provided for a total sum due of $75,381. The defendant contends that 4,273 tons had been
provided for a total sum due of $64,095; that the court's judgment is excessive in the sum of
$11,286. The difference results from the manner in which weight was computed from the
volume of hay in cubic feet, as to which figure there was no dispute.
The agreement provided that the hay was to be measured according to the so-called
government rule'. The parties are in dispute as to the rule to which the agreement refers.
Plaintiffs contend that it refers to the Quartermaster Rule: a method of measuring hay in
stacks to determine its volume in cubic feet. The court adopted this view and received
evidence of local custom as to the method of computing weight in conjunction with a
determination of volume by means of the Quartermaster Rule.
Defendant contends that the agreement refers to the current methods of measurement of
both volume and weight as recommended by the United States Department of Agriculture.
Leaflet No. 72 of the department was introduced in evidence. It was originally issued in
1931 and has never been superseded.
It should be noted, however, that the agreement does not specify the government rule or
the approved government rule, but rather the so-called government rule. There is no
evidence that Leaflet 72 has ever been known as or called "the government rule."
known as or called the government rule. The leaflet itself refers to the Quartermaster Rule
as the so-called government rule. A reading of the bulletin indicates that its author proposes
new rules for the measurement of hay in stacks and criticizes the Quartermaster or so-called
government rule as inaccurate. The Department of Agriculture apparently agrees with the
author that his rule is preferable to the Quartermaster or so-called government rule. Yet the
evidence is conclusive that the parties to the agreement were satisfied with the Quartermaster
Rule. The measurement of the volume of the hay in stacks upon which the parties agreed was
actually done by means of the Quartermaster Rule.
Under the circumstances we are fully satisfied that the record supports a determination that
the agreement by its language had reference to the Quartermaster Rule and not to Leaflet No.
72. Since there is no evidence that the Quartermaster Rule extends to a determination of
weight from volume, it cannot be said that the agreement specified the method by which such
determination was to be made. The court considered the method proposed by Leaflet 72 and,
in the light of local climatic conditions, rejected it as less accurate than the method followed
by local custom. The record amply supports this conclusion, and the judgment in this respect
must be affirmed.
Defendant counterclaimed for $220,000 suffered through loss of cattle due to alleged acts
and neglect on the part of the plaintiffs while the cattle were in their care under contract of
agistment. Liability is dependent on proof of fault. Bramlette v. Titus, 70 Nev. 305, 267 P.2d
620. The trial court found that any loss suffered was not attributable to plaintiffs. The
findings are expressed at length and are in all respects supported by the record.
Defendant's counterclaim may be considered in three parts: Loss of cattle, loss of bulls,
loss of calf crop.
[Headnote 2]
First, as to the cattle: In early April, 1951, defendant delivered to plaintiffs on their range
in Idaho 2,701 head of cattle.
delivered to plaintiffs on their range in Idaho 2,701 head of cattle. Toward the end of June the
cattle, by then commingled with cattle belonging to plaintiffs, were moved to summer range.
A count was then made, showing 298 head less than had been delivered. It is for this shortage
that plaintiffs remained accountable upon ultimate return of the cattle to defendant in 1953.
Upon proof of this loss the burden of going forward with the evidence shifted to plaintiffs.
Bramlette v. Titus, supra. The record establishes that the plaintiffs have clearly met this
burden.
When the cattle were delivered to plaintiffs they were in weakened condition. They had
been trailed from defendant's range in Nevada and had suffered a severe snow storm enroute
during which the herd had been scattered and over 450 head had not been recovered. They
were rested for one day before being placed on plaintiffs' range. They were tired and thin.
The range on which they were placed was an extensive and rugged desert range. It
embraces the major portion of five townships and is cut by streams and by canyons of
considerable depth.
The record establishes the tendency of young cattle, such as were those in this herd, to drift
back from new and strange ranges to their home range. Approximately 100 head of the
missing cattle were subsequently found on an adjoining range by the adjoining rancher and
were by him headed back to their home range.
The average annual death and stray loss throughout the general area was shown to be from
one percent to 10 percent. In plaintiffs' experience their average loss was four percent.
From these facts the trial court concluded that the loss resulted from drifting, or natural
causes resulting from the weakened condition of the cattle. The record supports this
conclusion.
[Headnote 3]
Nor is it established that the loss might have been avoided but for the negligence of the
plaintiffs. At all times plaintiffs maintained riders to keep the cattle spread out on the
range and on its waters, in accordance with good range practice.
times plaintiffs maintained riders to keep the cattle spread out on the range and on its waters,
in accordance with good range practice. Defendant's herd received the same care as did
plaintiffs' cattle, with which it was commingled. After the loss was disclosed riders twice
were sent back to search for missing cattle. Sixty-nine head were recovered. A third search
was made by airplane after winter had set in. The record supports the court's findings and its
conclusion that defendant had failed to fix responsibility for the loss upon plaintiffs.
[Headnote 4]
Second, as to the bulls: In June, 1951, 49 young bulls were turned out on the range. That
fall only 36 were recovered. When delivered, the bulls were young and fat and had not yet
recovered from deep branding. They were turned out on rugged summer range on order of the
defendant and contrary to advice of the plaintiffs that they be conditioned for two weeks
before being turned out. This would also permit the bulls to be turned out on less rugged
range, to which the cattle herd, in the course of its summer grazing, was working its way. The
bulls were too few by one-half to serve the herd.
In June, 1952, defendant delivered an additional 50 head of bulls. An indeterminate
number of the bulls delivered had anaplasmosis, a serious blood disease of cattle which may
well result in death. Of the total of 99 bulls delivered 48 were returned.
From these facts the court concluded that the bull loss was not due to plaintiffs' negligence
or lack of care but was due to defendant's supplying too few bulls; to the fact that they were
not in condition to be turned out on rugged open range; to illness, and to natural causes.
Under the record we find no error in this respect.
Third, as to the calf crop: Defendant claims that under proper care the herd should have
produced 1,600 calves in 1951 and 1952; that only 469 calves were produced. The court
attributed this loss to an inadequate number of bulls, the condition of the bulls,
number of bulls, the condition of the bulls, and the fact that in 1951 some of the heifers were
too young to be bred. We find no error in this conclusion under the record.
Judgment affirmed.
(Badt, J. participated in the deliberations and concurs in the result, but was absent at the
____________
72 Nev. 237, 237 (1956) First National Bank v. Friednash
FIRST NATIONAL BANK OF NEVADA, a Corporation, as Administrator With Will
Annexed of the Estate of GENEVA OPAL FRIEDNASH, Deceased; OLIVE LOUISE
RICKS, THELMA PEARL IMAS, WILMER P. ADAMS, ROBERT STEWART ADAMS,
JAMES WILMER ADAMS, JOHN H. ADAMS, AND CARRIE ADAMS, as Devisees
Under the Will of GENEVA OPAL FRIEDNASH, Deceased, Appellants, v. HYMAN
FRIEDNASH, Respondent.
No. 3921
October 11, 1956. 302 P.2d 281.
Appeal from Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Action by surviving husband to enforce alleged contract with wife, since deceased, to
leave all property of either spouse upon his or her death to the survivor. From a judgment
impressing a trust in favor of plaintiff upon estate of his deceased wife, the executor of, and
beneficiaries under, the will of deceased wife appealed. The Supreme Court, Merrill, C. J.,
held that instrument executed by husband and wife, leaving all the property of either upon his
or her death to survivor, was testamentary in character,
testamentary in character, purporting to be a jointly executed reciprocal will, and that, as
such, it was revocable at any time by either party in absence of any expression of or reference
to an agreement not to revoke.
Reversed.
McNamee & McNamee and G. Williams Coulthard, of Las Vegas, for Appellants.
George E. Marshall and Benjamin T. Weinstein, of Las Vegas, for Respondent.
1. Wills.
Contracts to devise property in particular manner are enforceable, but such a contract must be definite,
clear and unequivocal.
2. Frauds, Statute of.
Where estate left by deceased wife included both real and personal property, under statute of frauds,
testimony tending to establish an oral agreement could not be considered in action by surviving husband to
enforce alleged contract with wife by which each allegedly agreed upon death to leave all property to the
survivor. N.C.L.1929, sec. 1529.
An agreement to devise in a particular manner an estate which at death consisted of both real and
personal property would amount to a contract to devise realty which would fall within the statute of frauds
as a contract for sale of lands. N.C.L.1929, sec. 1529.
4. Wills.
Written instrument executed by husband and wife, leaving all the property of either spouse upon his or
her death to the survivor, was testamentary in character, purporting to be a jointly executed reciprocal will,
and as such it was revocable at any time by either party, in absence of any expression of or reference to an
agreement not to revoke, and could not be converted into mutual irrevocable promises to devise.
A jointly executed will, while testamentary rather than contractual in nature, may by its language
evidence an irrevocable contract between the parties, and thus, as a memorandum in writing, satisfy the
statute of frauds. N.C.L.1929, sec. 1529.
6. Wills.
Something more than the mere making of reciprocal testamentary dispositions is required to convert a
revocable testamentary instrument into an irrevocable contract, and mere fact that husband and wife joined
in executing an instrument leaving all the property of either upon his or her death to the
survivor did not conclusively demonstrate and evidence an enforceable contract.
leaving all the property of either upon his or her death to the survivor did not conclusively demonstrate and
evidence an enforceable contract. N.C.L.1929, sec. 1529.
7. Wills.
Essential to every will is its revocable quality, and implicit in every testamentary expression is a
reservation of right to change such testamentary disposition as circumstances involving status or
responsibility may alter or as affection may from time to time direct.
8. Wills.
A promise not to revoke cannot be implied solely by reason of the reciprocal nature of testamentary
provisions, in absence of any expression of or reference to an agreement not to revoke.
Under the statute of frauds, an oral agreement to devise land cannot be enforced. N.C.L.1929, sec. 1529.
That husband at time of wife's death had not revoked testamentary instrument jointly executed by
husband and wife, leaving all the property of either at his or her death to the survivor, did not constitute
such performance of any oral agreement to devise property, including realty, in specified manner as
would remove the bar of statute of frauds. N.C.L. 1929, sec. 1529.
OPINION
This is an action brought by respondent, as plaintiff below, to enforce the terms of an
alleged contract between himself and his deceased wife, whereby, it is claimed, each agreed
upon death to leave all property to the survivor. The appellants, defendants below, are the
executor of the will of respondent's deceased wife and the beneficiaries under that will. The
trial court found a binding contract to exist as alleged by respondent and impressed a trust
upon the estate in his favor. From that judgment this appeal is taken.
On July 28, 1949 respondent and his wife, each being possessed of a separate estate,
executed the following instrument: We the undersigned, Hyman Friednash and Geneva
Friednash, being of sound mind, make this letter in the form of a Will in case of the death of
either one of us.
letter in the form of a Will in case of the death of either one of us. In the case of the death of
Hyman Friednash then I, Hyman Friednash leave everything I own to Geneva Friednash. In
the case of the death of Geneva Friednash then I, Geneva Friednash leave everything I own to
Hyman Friednash. Should anyone make a claim against this Will other than Hyman Friednash
and Geneva Friednash, if they are friends or relatives, then they are to receive Ten Dollars
only. This is only to satisfy their claim and for no other reason. This letter and Will is made
out in good faith and for the protection of both of us. Subsequently the wife executed the
instrument which was ultimately admitted to probate as her last will.
The court below, over objection of appellants, admitted testimony relative to a
conversation between the parties at the time of their execution of the first instrument. From
that testimony and from the language of the instrument itself the trial court concluded that an
irrevocable agreement between the parties had been reached to the effect that all property of
the first to die would go to the survivor.
[Headnote 1]
Contracts to devise property in a certain manner are enforceable. Waters v. Harper, 69
Nev. 315, 250 P.2d 915; Barringer v. Ray, 72 Nev. 172, 298 P.2d 933. It is necessary,
however, that such a contract be definite, clear and unequivocal. See annotation 168 A.L.R.
30. The question upon this appeal is whether such a contract has been established.
[Headnotes 2, 3]
Testimony tending to establish an oral agreement cannot be considered. The estate left by
the decedent included both real and personal property. An agreement to leave such an estate
in a certain manner amounts to a contract to devise real property. Turnipseed v. Sirrine, 57
S.C. 559, 35 S.E. 757, 1035, 76 Am.St.Rep. 580. A contract to devise real property falls
within the statute of frauds as a contract for sale of lands.
of frauds as a contract for sale of lands. Gibson v. Crawford, 247 Ky. 228, 56 S.W.2d 985;
Gould v. Mansfield, 103 Mass. 408, 4 Am.Rep. 573; Hale v. Hale, 90 Va. 728, 19 S.E. 739;
Rogers v. Joughin, 152 Wash. 448, 277 P. 988; Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927,
43 A.L.R. 1010; 2 Williston on Contracts, Revised Edition, 1404, sec. 488; Restatement of
the Law, Contracts, sec. 193; Anno. 102 Am.St.Rep. 240, sec. VIIIa. Our statute of frauds
provides: (sec. 1529 N.C.L. 1929) Every contract for the leasing for a longer period than one
year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or
some note or memorandum thereof, expressing the consideration, be in writing, and be
subscribed by the party by whom the lease or sale is to be made.
[Headnote 4]
We are then left with the instrument itself. Upon its face it does not purport to be a
contract but a jointly executed reciprocal will. The expressions and provisions are not
contractual but are testamentary. As a will it is revocable at any time by either party. Canada
v. Ihmsen, supra. See: Rolls v. Allen, 204 Cal. 604, 269 P. 450; 4 Page on Wills 833, sec.
1709.
[Headnote 5]
A jointly executed will, while testamentary rather than contractual in nature, may by its
language evidence an irrevocable contract between the parties and thus, as a memorandum in
writing, satisfy the statute of frauds. See Waters v. Harper, supra.
[Headnote 6]
It is contended by respondent that the fact that the parties have joined in executing the
instrument in question conclusively demonstrates and evidences an enforceable contract.
Upon this proposition authority appears to be divided. See: 19 Minn. Law Rev. 95; Anno. 169
A.L.R. 29. In our view the sounder rule rejects the proposition. As stated in Alexander's
Commentaries on Wills, sec. 85, quoted in Canada v. Ihmsen, supra: It should require
something more than the mere making of reciprocal testamentary dispositions to convert
a revocable instrument into an irrevocable compact.
require something more than the mere making of reciprocal testamentary dispositions to
convert a revocable instrument into an irrevocable compact.
[Headnotes 7-9]
Certainly it may be said that the instrument demonstrates that the minds of the parties have
met upon a common testamentary wish. Each testator has in effect stated that under the
conditions and circumstances then existing such a testamentary disposition is desired. It does
not follow, however, that either has promised, regardless of any change in those
circumstances which have brought about the common testamentary wish, that such
disposition shall nevertheless be maintained irrevocably. Essential to every will is its
revocable quality. Implicit in every testamentary expression is a reservation of right to change
as circumstances involving status or responsibility may alter or as affection may from time to
time direct. That the common testamentary wish of two people is jointly expressed does not
in reason or common sense destroy its ambulatory character in this regard. In the absence
from the instrument of any expression of or reference to an agreement not to revoke, no
promise to such effect, can be implied solely by reason of the reciprocal nature of the
testamentary provisions. Gibson v. Crawford, supra; Ginn v. Edmundson, 173 N.C. 85, 91
S.E. 696; In re Rhodes Estate, 277 Pa. 450, 121 A. 327; Beveridge v. Bailey, 53 S.D. 98, 220
N.W. 462, 60 A.L.R. 619; Hale v. Hale, supra; Gray v. Perpetual Trustee Company (1928)
A.C. 391, 60 A.L.R. 613. We may not then convert this revocable testamentary expression
into mutual irrevocable promises to devise. Under the statute of frauds an oral contract to that
effect cannot be enforced.
[Headnote 10]
Respondent contends that performance by himself has removed the bar of the statute since
he himself has never revoked the will. This is not sufficient to constitute performance. Gould
v. Mansfield, supra; Busque v. Marcou,
147 Maine 289, 86 A.2d 873, 30 A.L.R.2d 1411; McClanahan v. McClanahan, 77 Wash. 138,
137 P. 479; Canada v. Ihmsen, supra.
Reversed and remanded with instructions that judgment be entered for defendants.
____________
72 Nev. 243, 243 (1956) Lawrence v. State
HELEN WANEMA LAWRENCE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 3872
October 15, 1956. 302 P.2d 285.
Appeal from the Eighth Judicial District Court of the State of Nevada, in and for the
County of Clark; Ryland G. Taylor, Judge, Department No. 3.
Defendant was convicted of murder in the first degree. The trial court entered judgment
and defendant appealed. The Supreme Court, Eather, J., held that refusal to admit defendant's
testimony relating to her relationship with deceased prior to the crime, was prejudicial error
as such evidence was admissible to show possible provocation and circumstances which
might have affected defendant's state of mind at time of shooting.
Reversed and remanded for new trial.
(Rehearing denied November 27, 1956. See 72 Nev. 286 for Opinion.)
Jones & Pursel, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, State of Nevada; George M. Dickerson, District
Attorney, Clark County; Gordon L. Hawkins, Deputy District Attorney, Clark County, for
Respondent.
Homicide.
In first degree murder prosecution, wherein defendant contended that her mental, physical and emotional
condition at time of shooting of her former husband was such as to preclude existence
of first degree malice and premeditation
time of shooting of her former husband was such as to preclude existence of first degree malice and
premeditation and that there was provocation, refusal to admit in evidence testimony of defendant in regard
to divorce she allegedly granted husband conditioned upon his promises, which were never kept, and also
in regard to threats he made to her, was prejudicial error, as such testimony was material to defendant's
state of mind at time of shooting.
OPINION
This is an appeal taken by the defendant below from judgment of conviction of the crime
of murder in the first degree and from sentence of life imprisonment.
On March 3, 1954, on a street in Las Vegas, Clark County, Nevada, defendant shot her
former husband, Phare Lawrence, and 13 days later, following medical and surgical
treatment, he died.
Two defenses were asserted at trial and are reflected in this appeal. First, defendant
contends that the State failed to establish that the bullet wound was the cause of death. This
contention is based upon the fact that the medical testimony in evidence is in a state of utmost
confusion and inconsistency. The merits of this contention we are not called upon to decide in
the light of our views with respect to the second defense.
Defendant also contends that her mental, physical and emotional condition at the time of
the shooting was such as to preclude the existence of the first degree malice and
premeditation and that the facts show provocation for her action. Numerous assignments of
error are made in this respect. We need consider only those going to the exclusion of certain
testimony.
The record shows that the defendant and the deceased were married in 1933. In 1950
defendant suffered a case of poliomyelitis. In the course of recovery she became addicted to
drugs. She sought cure and by 1953 she had effected a cure from her addiction. In March,
1953, the defendant and deceased were divorced.
defendant and deceased were divorced. At that time the home in which they were living was
owned by the defendant as her separate property. By the divorce decree, based upon
separation agreement, the home was awarded to the deceased. Defendant, however, continued
to live in it until January, 1954 when she was ejected against her will by the deceased. At that
time, according to witnesses for the State, but denied by the defendant, she made threats
against the life of the deceased. The deceased remarried and at the time of the shooting was
living in the defendant's former home with his new wife. From the time of the divorce
defendant commenced excessive use of alcohol and just prior to the shooting had consumed a
substantial amount of liquor. Defendant testified that at the time of the shooting she had been
trying to persuade the deceased to return her former home to her and had suggested that in the
event of his refusal she would bring legal action; that the deceased had countered with a
threat that if she brought action her body would wind up on the desert.
Defendant offered to prove that in October, 1952, she had observed her husband in
intimate embrace with another woman; that in March, 1953 her physical condition was
extremely poor; that she had just been discharged from a sanitarium in California and upon
her return to Las Vegas had been met by a demand for a divorce from her husband; that her
husband, for tax reasons, was unable to make a full disclosure of his assets; that he prevailed
upon defendant to accept the property settlement under the promise that the home would be
deeded back to her and that he would seriously consider reconciliation and remarriage; that
following the divorce and until January, 1954, he reiterated these promises to defendant; that
in January, 1954, he advised defendant that the six months' period within which a
modification of the divorce decree might be sought had expired and that the decree and
settlement were final and binding; that the house would not be returned and that there would
be no reconciliation;
that there would be no reconciliation; that it was at that time that defendant was ejected from
her home; that when in Las Vegas, after that time, she seemed to be drawn as by a magnet to
the home where she could see the deceased with his new wife enjoying the home that had
been hers, and the wedding gifts that had been hers.
All of this testimony was rejected by the court as immaterial. It ruled that it would not
retry the Lawrence divorce case; that the title to the home was not in issue; that the deceased's
widow was not on trial.
But no one sought to reopen the divorce case. No one sought to recover the home. No one
sought to assert alienation of affections. Defendant simply sought to show provocation and
circumstances which the jury might find to have materially affected her state of mind. Under
no circumstances could such testimony be held immaterial. It constituted the very heart of the
defendant's defense and should have been admitted for jury consideration. Whisenhunt v.
State, Okla.Cr., 279 P.2d 366: Hill v. State, 27 Ala.App. 55, 166 So. 60: Ward v. State, 96
Tex.Cr.R. 278, 257 S.W. 536.
____________
72 Nev. 247, 247 (1956) Beebe v. Koontz
BETTY BEEBE, Petitioner, v. JOHN KOONTZ, Individually, and as Secretary of State of the
State of Nevada, et al., Respondents.
Nos. 3988 and 3992
October 18, 1956. 302 P.2d 486.
No. 3992
BETTY BEEBE, Appellant, v. JOHN KOONTZ, Individually, and as Secretary of State of
the State of Nevada, et al., Respondents.
RICHARD HAM, Intervenor and Respondent.
Original petition for writ of mandate in No. 3988, and appeal from First Judicial District
Court, Ormsby County; Hon. John F. Sexton of the Third Judicial District presiding, in No.
3992.
The Supreme Court held that where at time petition for writ of mandate to command
Secretary of State and several county clerks to omit referendum from ballots, and petition for
injunction to restrain placing of such referendum on ballots, were filed, one year had already
elapsed since filing of referendum petition with Secretary of State, and there was no
explanation given for the one year delay and consideration of the case could not be had
without disruption of the process of election, determination of the issues on the merits would
be refused by the Supreme Court.
Order in accordance with opinion.
Zenoff, Magleby & Manzonie, of Las Vegas, for Appellant in No. 3992 and for Petitioner
in No. 3988.
Harvey Dickerson, Attorney General, Carson City, for Respondents.
George Rudiak, of Las Vegas, appearing as amicus curiae in No. 3988 and as attorney for
intervenor in No. 3992.
1. Constitutional Law.
The initiative and referendum provisions of the Constitution are self-executing with reference to state
matters but are not self-executing with reference to county and municipal matters. Const., Art. XIX, sec. 1
et seq.
2. Mandamus.
Where resort to the Supreme Court by mandamus is had to prevent an issue from being presented for
popular election and when such resort is tardily had without showing of good cause for such lateness and
when, due to such tardiness and nature of the issues of law presented, orderly consideration cannot be had
without disruption of the process of election, the Supreme Court will refuse determination of those issues
on the merits. N.C.L.1929, sec. 2531 et seq.; Const., Art. XIX, sec. 1 et seq.
3. Appeal and Error; Mandamus.
Where at time petitions for writ of mandate and for injunction in order to have certain tax referendum
omitted from ballot and to restrain inclusion of such referendum in other ballots came before Supreme
Court for consideration, one year had already elapsed since filing of referendum petition involved with
Secretary of State, and no explanation was given for the delay and orderly consideration of the case could
not be had without disruption of the process of the election. Supreme Court refused determination of the
issues involved. St.1955, p. 762; N.C.L.1929, sec. 2531 et seq.: Const., Art. XIX, sec. 1 et seq.
OPINION
Per Curiam:
Both of the above entitled matters involve the placing on the ballot at the general election
on November 6, 1956, by the secretary of state of a referendum petition to determine whether
or not that certain act of the legislature known as the sales tax law, being An Act to provide
revenue for the State of Nevada; providing for sales and use taxes etc., approved March 29,
1955 (Stats. 1955, 762), should be approved by the people. The first proceeding, No. 3988,
filed with the clerk of this court October 4, 1956, is a petition for writ of mandate
commanding the secretary of state and the several county clerks to omit the said question
from the ballots and commanding the secretary of state to correct the certification made by
him on August 8, 1956, of the propositions to be voted on at said general election by
notifying each of the county clerks that such question must be omitted from the ballots
used.
each of the county clerks that such question must be omitted from the ballots used. The
second proceeding, No. 3988, is an appeal from an order of the First Judicial District Court,
in and for the County of Ormsby, denying the petition of the same plaintiff for an injunction
restraining the same respondents from similar action. The petition in that case was filed
October 8, 1956 in the district court, the denial of injunctive relief filed October 11, and
notice of appeal filed in this court on the same day, together with the record on appeal and
together with a stipulation that the two matters might be consolidated for hearing October 17,
1956.
Under both proceedings the main questions presented are (1) whether the petitions seeking
a referendum of the sales tax law purporting to be signed by 10 percent of the qualified
electors satisfy the requirements of Article XIX of the state constitution and of section 2531
et seq. N.C.L. 1929 requiring such petitions to be signed by 10 percent of the voters; and
(2) whether the verification of each of the counterparts of the petition by an affiant who was
not one of the signers and who certified, not that the signers were voters, but that they were
qualified electors, was sufficient.
Briefs in support of the contentions of the respective parties were not filed with this court
until October 17, 1956, a few minutes before the oral argument, and supplemental points and
authorities were handed to the clerk for delivery to the court during the course of the
argument.
Beebe, as petitioner herein and as appellant herein, contended that Caton v. Frank, 56 Nev.
56, 44 P.2d 521, 524, is controlling of the issues here submitted. That was an original
proceeding in mandamus to compel the respondents to proceed upon a petition signed by a
number of the qualified electors of the city of Reno to amend its charter. This court there
said: We are of the opinion that the legislature, in enacting section 1257 N.C.L. 1929,
contemplated that the signers to the petition provided for therein, in addition to being a mere
elector as provided in the constitution,
elector as provided in the constitution, must have complied with the registration laws, and
become a voter. Such was evidently the view taken by this court in the case of State ex rel.
Boyle v. State Board of Examiners [21 Nev. 67, 24 P. 614, 9 L.R.A. 385], supra. It held the
affidavit to the petition to be defective in that it does not show that the person making the
affidavit was himself a signer of the petition and in that he certified that the signers were, not
qualified voters, but electors; that an elector would not be a qualified voter until he had
registered as required by the registration laws.
Respondents contend that the holding in that case is greatly limited by the subsequent
decision of this court in Gilbert v. Breithaupt, 60 Nev. 162, 104 P.2d 183, 128 A.L.R. 1111,
in which the ouster of the appellant was sought because, while a qualified elector, he was not
a qualified voter of the city of Las Vegas or of the county of Clark, and therefore allegedly
not a qualified candidate for election. As in the Caton case, numerous authorities were
discussed by the court and it was held that the Caton case did not control but that as a
qualified elector he was eligible as a candidate for office.
The three sections of Article XIX of the constitution were discussed at length by all
parties. The attorney general supported the decision of the district court in the injunction
proceeding to the effect that injunction would not lie to interfere with the orderly processes of
legislation, and in this respect distinguished Caine v. Robbins, 61 Nev. 416, 131 P.2d 516,
upon which appellant relied. He and counsel for intervenor also argued at length that
mandamus would not lie to compel the secretary of state to undo that which he had already
done, citing a number of cases from this court and many from other jurisdictions. But see
State ex rel. Haight v. Wilson, 40 Nev. 131, 161 P. 306, in which mandamus was held proper
to compel the county clerk to exclude from the ballots the name of a candidate improperly
nominated, and a number of other cases in support. As against this, respondents refer us to
State v. Public Service Commission,
Service Commission, 44 Nev. 102, 190 P. 284, 285, in which this court said: There has been
no refusal on the part of the commission to perform any duty enjoined upon it. The writ is not
sought to stimulate the commission to action pursuant to some legal duty, but rather to cause
it to undo the result of action taken in a matter in which its jurisdiction has been invoked in
conformity with the statute defining its powers over public utilities in this state. Mandamus is
ordinarily a remedy for official inaction, and will not lie to undo what has been done. See
also State v. Gracey, 11 Nev. 223.
[Headnote 1]
The oral argument developed further disagreement among counsel as to the effect of the
holdings of this and other courts and particularly as to the proper construction and
interpretation of the constitutional and statutory provisions involved. With reference to the
effect of the Caton case upon the issues presented, it must also be noted (1) that while the
initiative and referendum provisions of Article XIX of the constitution were self-executing
with reference to state matters, they were not self-executing with reference to county and
municipal matters; State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 P.914; that, accordingly,
the referendum in the Caton case, involving amendment of the city charter, might be
considered, as to rules and methods of application, a creature of the statute rather than of the
constitution, and therefore not necessarily controlling in construing the provisions of Article
XIX; and (2) that in the Caton case the action sought by the petition was far more drastic, in
that the petition itself, signed by 60 percent of the electors, was a species of election and
actually effected the amendment without an election, while the petition in the instant case
simply initiated election proceedings. We recognized such a distinction in State ex rel.
Quimby v. City of Reno, 71 Nev. 144, 282 P.2d 1071.
Respondents further contended that the interpretation of the constitution as made by
petitioner and appellant leads to absurd results:
of the constitution as made by petitioner and appellant leads to absurd results: that the record
shows that in the various petitions circulated, there were provisions for only ten signers on
each counterpart of the petition; that if the person verifying was required likewise to be a
signer of the petition, his name would appear, for example, on a hundred petitionsyet
ninety-nine of his said signatures would be duplications; that this would impose an
impossible burden on the secretary of state to scrutinize every counterpart of the petition for
the solution of such problem; that the county clerks, pursuant to the election laws, strike from
the registration lists the names of all qualified electors who have not voted; that this is done
immediately following each election and that voters are not required to reregister until shortly
prior to the next ensuing election; that under petitioner's contention such voters not
reregistering over a period of some two years would, during that interim, be foreclosed of the
right of signing an initiative or referendum petition.
Respondents further examined the three sections of Article XIX line by line and called
attention to the constant use of the term electors and qualified electors, as well as the
term voter, in the three sections of the article.
In addition to the cases mentioned in this memorandum, the briefs cite many additional
cases from this and other states.
This is the third successive general election with respect to which this court has
entertained last-minute litigation regarding matters sought to be presented for the vote of the
people. We feel that this is the proper occasion for a statement of the limits beyond which this
court will not go in its accommodation of such litigants.
[Headnote 2]
Where resort to this court is had to prevent an issue from being presented for popular
election and when such resort is tardily had without showing of good cause for such lateness
and when,
for such lateness and when, due to such tardiness and the nature of the issues of law
presented, orderly appellate consideration cannot be had without disruption of the process of
election, this court will refuse determination of those issues on the merits.
[Headnote 3]
In the instant cases no explanation has been given to this court for the delay in seeking our
determination upon the issues involved. One year has elapsed since the referendum petition
was filed with the secretary of state. The issues should then have become apparent.
Due to the lateness in filing, unless a decision be handed down by this court forthwith, the
election process will be disrupted. We can take note of the fact that the time has already
passed when the clerks of some of our counties ordinarily set in motion the machinery for the
printing of ballots. Further delay will seriously prejudice the rights of absentee voters to
participate in the election. In Brown v. Georgetta, 70 Nev. 500, 275 P. 2d 376, we had
occasion to comment upon the nature of those rights. They were not permitted to prejudice
the rights of the general electorate to express its election upon a proper issue. The rights of
absentee voters, however, are of sufficient substance to warrant our refusal to sanction their
destruction by the delays inherent in orderly judicial procedure where such destruction would
have been avoided by timely action on the part of the petitioner.
The legal issues presented in these matters cannot be decided forthwith upon their merits.
If such decision is to stand as law a careful consideration must be had of the many issues
already mentioned.
We can, then, foresee that in the course of orderly appellate consideration the judicial
process itself may well render these issues of law moot prior to the announcement of our
decision.
Under these circumstances for this court to entertain this litigation further would amount
to an unwarranted interference by the judicial department with the electoral franchise of
the people of this state.
interference by the judicial department with the electoral franchise of the people of this state.
Such interference, so far as the ensuing election is concerned, might well amount to a
substantial destruction of that most important civil right.
Accordingly we hold that, regardless of the merits of the contentions of
petitioner-appellant, delay in presenting the matter to the courts of this state has in practical
necessity lost her the right of judicial determination by this court.
In Case Number 3988 writ denied.
In Case Number 3992 judgment affirmed.
____________
72 Nev. 254, 254 (1956) Schumann v. Martin
GEORGE SCHUMANN, EMMA R. SCHUMANN, HYRUM SCHUMANN, MARLENA P.
SCHUMANN, GEORGE A. SCHUMANN, SUSAN B. SCHUMANN, HENRY M.
SCHUMANN and JUNE LA PRIEL SCHUMANN, A copartnership, Appellants, v. ROSS
MARTIN and SARA LEA MARTIN, His Wife, Respondents.
No. 3910
October 18, 1956. 302 P.2d 284.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Action for damages to plaintiffs' cattle by reason of defendants' acts in depriving them of
stock water. From a judgment for plaintiffs, defendants appealed. The Supreme Court,
Merrill, C. J., held that negligent trespass was within scope of action which was brought on
theory that defendants, as upstream landowners, had wrongfully placed an obstruction in
water course and thereby diverted all water therefrom, including the flow of stock water to
which plaintiffs, downstream, were rightfully entitled,
rightfully entitled, and hence defense of contributory negligence was available to defendants.
Orville R. Wilson, of Elko, and L. Delos Daines, of Salt Lake City, Utah, for Appellants.
F. Grant Sawyer, of Elko, for Respondents.
1. Negligence.
Contributory negligence is a defense to an action for negligent invasion of one's property right.
Negligent trespass was within scope of action for injury to cattle from lack of water on theory that
defendants, as up-stream landowners, had wrongfully placed an obstruction in water course and thereby
diverted all water therefrom, including flow of stock water to which plaintiffs, down-stream, were rightfully
entitled, and hence defense of contributory negligence was available to defendants.
OPINION
This is an action for damages to respondents' cattle by reason of appellants' acts in
depriving them of stock water. From a jury verdict in favor of respondents, the appellants
have taken this appeal. The sole question involved is whether in such an action the defense of
contributory negligence is available to the appellants as defendants below.
It was alleged by the respondents that appellants, upstream, had wrongfully placed an
obstruction in the water course and thereby diverted all water therefrom, including the flow of
stock water to which respondents, downstream, were rightfully entitled. Among their
defenses appellants alleged that respondents had been guilty of negligence through failure to
examine their cattle, the pasture where they were held and the accessible watering spots,
which negligence proximately contributed to and caused the injury to the cattle. This defense
was stricken by the trial court "for the reason that the same does not state a defense to
the complaint of plaintiffs in that contributory negligence is not a defense to an action
based upon dispossession of real property."
defense was stricken by the trial court for the reason that the same does not state a defense to
the complaint of plaintiffs in that contributory negligence is not a defense to an action based
upon dispossession of real property.
[Headnote 1]
Such may be the rule in a case of willful dispossession, but it is not the rule in the case of a
negligent invasion of one's property rights. See 2 Restatement of the Law, Torts, 1287-8, secs.
497, 498. Accord, O'Connor v. North Truckee Ditch Company, 17 Nev. 245, 30 P. 882.
[Headnote 2]
Respondents contend that this was an action for willful rather than negligent trespass. The
complaint alleges that an obstruction was placed in the water course. Whether it was willful
or negligent is not specified. It must be recognized that such an obstruction may well result
from negligent rather than willful conduct. The testimony of one of the respondents was that
such was the cause.
With reference to the nature of trespass, the court instructed the jury as follows: You are
instructed that the sense of trespass,' as used in this case, is one of the following: A shutting
off of the stock waters at one of the points of diversion; or, the diversion of such a quantity of
the waters of Steele Creek as to substantially reduce the required flow of stock waters down
Steele Creek; or, the failure to exercise proper care in making the diversion, which lack of
care operates to cut off or reduce the required flow. Thus a negligent trespass was clearly
recognized to be within the scope of the action.
It may be noted that another instruction also related to the exercise of proper care: that the
flow of stock water to which respondents were legally entitled was that which would flow
through a six-inch pipe or such amount as would in the judgment of a reasonably prudent
man * * * constitute an equal flow. (In both quotations, emphasis supplied.)
The defense of contributory negligence, properly confined, was therefore available to the
appellants.
____________
72 Nev. 257, 257 (1956) Riemer v. Riemer
PHYLLIS M. RIEMER, Appellant, v. KARL
RIEMER, Respondent.
No. 3986
October 22, 1956. 302 P.2d 483.
Motion for allowances, in appeal from order modifying support provisions in divorce
decree, Second Judicial District Court, Washoe County; John S. Belford, Judge, Department
No. 1.
Divorce action. The trial court entered an order granting husband's motion for modification
of an order for support of the parties' minor children and wife appealed, and moved the
Supreme Court for preliminary allowances to enable her to prosecute such appeal. The
Supreme Court held that where necessitous circumstances were not shown by wife, a
preliminary order granting her preliminary allowances for costs of appeal would not be
granted, notwithstanding fact that husband might have agreed to pay costs of her litigation
and notwithstanding fact that her appeal sought a reversal of an order reducing husband's
payment for support, maintenance and education of the parties' children.
Motion denied.
Morgan Anglim and John S. Field, of Reno, and Wright, Wright, Green & Wright, of Los
Angeles, California, for Appellant.
Oliver C. Custer, of Reno, for Respondent.
1. Divorce.
Preliminary allowances are granted in divorce actions in order to enable a wife to prosecute an appeal.
2. Divorce.
In divorce action, where necessitous circumstances were not shown by wife, a preliminary order granting
her preliminary allowances for costs of appeal would not be granted, notwithstanding fact that husband
might have agreed to pay costs of her litigation and notwithstanding fact that her appeal sought a reversal
of an order reducing husband's payment for support, maintenance and education of the parties' children.
OPINION
Per Curiam:
Motion for allowances and for stay of proceedings ad interim. Phyllis M. Riemer, having
filed her appeal from the order of the district court granting her husband's motion for
modification of an order for support of their minor children, now moves this court for
allowances as follows: clerk's fee of $25 for filing appeal; $350 for preparation of record on
appeal; and $2,500 preliminary attorney fees for prosecuting the appeal. These proceedings
are the latest in a long history of litigation between the parties.
Neither in this court nor in the lower court has the wife alleged necessitous circumstances,
but she asserts that neither an allegation nor a showing of necessitous circumstances is
essential to her right to the allowances sought. In support of this contention she insists (1) that
by a contract of settlement with her husband, the latter agreed to pay all costs and expenses of
the then pending or future litigation, and (2) that in any event she is not seeking any further
allowances for herself but merely for the minor children of the parties.
[Headnotes 1, 2]
(1) The contractual obligation of the husband is disputed by him as a matter of law. Should
it be determined to exist, it may indeed be grounds for the wife's demand for judgment for
attorney fees etc. upon the conclusion of the case,
for judgment for attorney fees etc. upon the conclusion of the case, but does not bring her
within the rule consistently followed by this and other courts that preliminary allowances are
granted in order to enable her to prosecute her appeal. Black v. Black, 47 Nev. 346, 221
P.239; Effinger v. Effinger, 48 Nev. 205, 228 P.615;, Fleming v. Fleming, 58 Nev. 179, 72
P.2d 1110. If she has ample funds to prosecute the appeal, the husband's agreement as above
recited would not in itself compel a preliminary order.
(2) Nor does the fact that her appeal seeks a reversal of the order reducing the husband's
payments for the support, maintenance and education of the children (as distinguished from
alimony orders) alter the situation. No authorities have been cited recognizing such a
distinction.
The motion for allowances is denied.
____________
72 Nev. 259, 259 (1956) Farrell v. Farrell
BARBARA BLAIR FARRELL, Appellant v. GEORGE
RAYMOND FARRELL, Respondent.
No. 3904
October 24, 1956. 302 P.2d 484.
Department No. 3.
Divorce action. From custodial provisions of a divorce decree entered by the trial court,
the wife appealed. The Supreme Court, Eather, J., held that Supreme Court would remand to
trial court for further proceedings in connection with wife's motion for modification of
custodial provisions of the decree, with direction that trial judge should be empowered to give
full consideration to all matters bearing upon fitness of both parents and suitability of their
respective homes, and that actions so far taken should in no respect be deemed a final
determination as of any date upon any such matters.
so far taken should in no respect be deemed a final determination as of any date upon any
such matters.
Remanded for further hearing.
(Rehearing denied November 30, 1956.)
Arthur G. Lambert, Washington, D. C., Pike & McLaughlin, and Edwin C. Mulcahy, of
Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey & Thompson, and John S. Belford, of Reno, for
Respondent.
1. Divorce.
Where it appeared that trial judge was faced with an extremely perplexing problem in fixing custody of
children of divorced parties, and Supreme Court could not state that discretion could only be exercised in
one way, Supreme Court would not substitute its discretion for that of trial judge.
2. Divorce.
Where trial court awarded custody of minor children of divorced parties to governess, who subsequently
surrendered custody, and mother then filed motion for modification of custodial provisions of divorce
decree, trial court should have considered question of mother's recovery of health and her fitness to have
custody of children.
3. Divorce.
Where trial court awarded custody of minor children of divorced parties to governess, who subsequently
surrendered custody, and thereafter awarded custody of children to father without hearing upon vital
question of mother's fitness upon her motion for modification of custodial provisions of the divorce decree.
Supreme Court would remand to trial court for further proceedings in connection with the pending motion
for modification, with direction that trial judge should be empowered to give full consideration to all
matters bearing upon fitness of both parents and suitability of their respective homes, and that actions so far
taken should in no respect be deemed a final determination as of any date upon any such matters.
4. Divorce.
Where divorced wife was personally present in court in support of her motion for modification of
custodial provisions of divorce decree, and it appeared that she had successfully borrowed necessary sum
for conducting such proceedings, trial court did not abuse its discretion in denying wife's motion for
allowance to cover cost of expenses of appearing in two of the hearings had on her application.
OPINION
This is an appeal taken by the wife from the custodial provisions of a divorce decreean
award of custody of two minor girls aged 11 and 8 to the respondent husband.
In several respects it is contended that the trial court committed error; also it is contended
that the fitness of the mother and the unfitness of the father are demonstrated by the record
before us and that the granting to the father was therefore an abuse of discretion. A careful
study of the record and of the briefs of counsel (with their assignments of error and of abuse
of discretion) has convinced us of three things.
[Headnote 1]
First: It cannot be said that the relative fitness of the parties appears so clearly as to point
but one course to the trial judge. We cannot state that discretion could only be exercised in
one way, and thus direct the trial judge in his exercise of discretion. On the contrary, it most
clearly appears that the trial judge was faced with an extremely perplexing problem. We may
not then substitute our discretion for that of the trial judge. If his exercise of discretion for any
reason is to be disturbed, it must be through reconsideration on his part.
Second: The errors assigned by appellant wife are largely procedural matters. It is
contended that in many respects the procedures followed by the trial judge deprived the
appellant of opportunity fully and accurately to present to the court her fitness to serve as
custodian. A consideration of the steps taken in the court below demonstrates that these
contentions are not without merit.
Trial of the divorce action was completed on February 10, 1955 and the court then
announced its decision. (1) It directed the clerk to enter an order granting unto the defendant a
decree of divorce based on her cross complaint on the ground of extreme cruelty; (2) that the
court would not award custody to the husband;
court would not award custody to the husband; (3) that the court was inclined to award
custody to the wife if her physical and mental condition was fit; (4) that, under the facts as the
court saw them, it would award the custody to a Mrs. Hyatt, the children's governess; (5) that
if Mrs. Hyatt would not accept such custody, the court would award custody to some other
person or organization but not to either of the parties to the action.
At this time the judge in effect stated that were it not for the condition of the mother's
health he would have no hesitancy in giving her custody. Also by the very act of giving
custody to Mrs. Hyatt and by the emphasis used by the court in its determination to give
custody to a third person, if not Mrs. Hyatt then to some other third person, the conclusion is
inescapable that the court was definitely refusing to give custody to the father and must have
felt very strongly at that time he was unfit.
Mrs. Hyatt accepted custody reluctantly. Subsequently, and prior to signing of judgment, at
a conference in chambers attended by the plaintiff husband, Mrs. Hyatt advised that she
would be compelled to surrender custody. Thereupon, with notice to appellant and in open
court but apparently with no further hearing, the court entered judgment awarding custody to
the father. This action is so inconsistent with the apparent belief of the court at the conclusion
of trial as to suggest that in so acting the court was accepting statements made to it in
chambers and thus departing from established legal forms of procedure. Remarks by the court
from the bench at the time of the award to the father were conflicting as to its reliance upon
such matters. Such statements, if accepted by the court as a basis for its change of opinion as
to the fitness of the father, were unsworn, undisclosed, not subject to cross examination or to
rebuttal, and even at this time the nature of such statements does not appear in the record.
Examination of Mrs. Hyatt as to such statements was not permitted by the trial court.
[Headnote 2]
In our opinion not only was the court's action at this time inconsistent with its earlier view
as to the fitness of the father but it was inconsistent with its view as to the fitness of the
mother. The mother sought at this time to reopen the case in order to establish that after the
taking of further tests suggested by certain court-appointed doctors it had been established
that she had recovered her health. At the time of the Hyatt award the court appeared greatly
concerned with the question of her recovery of health. At the time of the award to the father
no consideration was given to this phase of the matter.
[Headnote 3]
Third: The trial court contemplated further consideration. A motion for modification of the
decree was made by the appellant, and, so far as the record before us demonstrates, at the
time of the appeal had never been brought to hearing upon the vital question of appellant's
fitness. The motion remains pending.
Therefore, our course in one respect appears clear. We have but to remand to the trial court
for further proceedings in connection with the pending motion for modification. Without
specification of the scope of those proceedings, however, some ambiguity may well result,
and some prejudice still attach to the errors assigned by appellant.
The confusion of the proceedings below would indicate that a fresh start would best serve
the interests of the minor children. Further, the original award to the respondent would appear
to have been based to an important degree upon such temporary considerations as the
interruption of the children's school program. It would appear that the trial judge himself, on
hearing of motion for modification, contemplated a full reconsideration of all circumstances
bearing upon the welfare of the children. In our view, therefore, the trial judge in acting upon
motion for modification should be empowered to give full consideration to all matters
bearing upon the fitness of both parents and the suitability of their respective homes;
give full consideration to all matters bearing upon the fitness of both parents and the
suitability of their respective homes; that actions so far taken should in no respect be deemed
a final determination as of any date upon any such matters.
[Headnote 4]
One matter remains for our consideration. It is contended that the trial court was guilty of
abuse of discretion in denying appellant's motion for allowances to cover the expenses of
appearing in two of the hearings had below. In each instance the motion was presented and
the ruling made on the very day of the hearing. In each instance the appellant was then
personally present in court, and it appeared that she had successfully borrowed the necessary
sum. Under these circumstances it was proper to refuse allowances. Black v. Black, 47 Nev.
346, 221 P.239.
It is ordered that this matter be remanded to the trial court for a full new hearing upon the
question of the custody of the minor children of the parties in accordance with the views
expressed in this opinion.
Appellant to have her costs.
____________
72 Nev. 265, 265 (1956) Caplow v. District Court
DAVID H. CAPLOW and SOL GERSHENHORN, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT of the State of Nevada, in and for the County of Clark, and HARRY
WATSON, District Judge, Respondents.
No. 3968
October 26, 1956. 302 P.2d 755.
Original proceedings in prohibition to restrain district court from proceeding further in
contempt proceeding against petitioners. The Supreme Court, Merrill, C. J., held that under
the Nevada Rules of Civil Procedure, a judgment directing cancellation and surrender of
notes may be enforced by contempt proceedings where petitioners had not sought a stay of
execution pending appeal.
Writ denied.
Morse, Graves and Compton and Bruce Beckley, of Las Vegas, for Respondents.
Judgment directing surrender and cancellation of notes could be enforced by contempt, in absence of stay
of execution pending appeal. Rules of Civil Procedure, Rules 70, 73(d) (3).
2. Contempt.
Service upon defendants' attorney of record of findings of fact and conclusion of law, judgment, and
motion to hold in contempt or order to show cause for failure to comply with judgment was sufficient
notice of contempt proceedings which were incidental to pending cause. Rules of Civil Procedure, Rule
5(b).
3. Prohibition.
Claim that specific reference to notes in sums specified in judgment directing surrender of notes removed
any possible ambiguity in judgment presented issue which could be resolved by trial court in contempt
proceedings for failure to surrender notes and was not ground for issuance of writ prohibiting court from
proceeding further in contempt proceedings. Rules of Civil Procedure, Rules 70, 73(d)(3).
OPINION
This is on application for writ of prohibition. On May 11, 1956 final judgment against
petitioners was rendered by respondent court in an action brought against petitioners by Stutz
Enterprises, and others. Judgment included a provision that certain notes given by plaintiff,
Stutz Enterprises, payable to the defendants in the total sum of $47,500 be canceled and
surrendered by defendants to said plaintiff. An appeal from this judgment is now pending
before this court.
On July 13, 1956, upon motion of plaintiffs, an order was entered by respondent court
directing defendants to appear and show cause why they should not be held in contempt for
failure to surrender the notes pursuant to judgment. Contending that respondent court is
without jurisdiction to entertain said proceedings or to hold petitioners in contempt,
petitioners seek a writ of prohibition restraining respondents from proceeding further in such
matter. An alternative writ was issued by this court.
[Headnote 1]
Rule 70, N.R.C.P., provides that a judgment directing execution or delivery of documents
may be enforced by contempt. It does not appear that petitioners have, pursuant to Rule 73(d)
(3) N.R.C.P., sought a stay of execution of the judgment rendered in the trial court.
Enforcement of the judgment, pursuant to Rule 70 was, therefore, available to the trial court.
Closset v. Closset, 71 Nev. 80, 280 P.2d 290.
[Headnote 2]
Petitioners attack the jurisdiction of the trial court upon the ground of lack of notice. They
were not personally served with findings of fact and conclusions of law, judgment, motion to
hold in contempt or order to show cause. Service of these documents was, however, made
upon the petitioners' attorney of record in the action below.
made upon the petitioners' attorney of record in the action below. This is the prescribed
method of service under Rule 5(b) N.R.C.P.
Petitioners contend that contempt is a special proceeding; that at the least the motion and
order to show cause should have been served upon them personally. The California authority
they cite is not persuasive. California's secs. 1015, 1016, C.C.P. expressly except contempt
proceedings from its code provisions with reference to service upon counsel. Even so the law
of that state cannot be said to be clear. Smith v. Smith, 120 Cal.App.2d 474, 261 P.2d 567,
with considerable citation of supporting authority, holds service upon counsel to be sufficient
in contempt proceedings under the circumstances there considered.
Our sec. 5(b), N.R.C.P., does not provide for the California exception. Indeed in drafting
the Federal rules (from which our 5(b) was taken) such an exception was considered by the
advisory committee to the Supreme Court and was rejected. See Barron & Holtzoff, Fed. Pra.
& Proc., sec. 201. There can be no question but that in such a case as this where the contempt
proceedings are not original proceedings but are incidental to a pending cause, service upon
counsel of record was proper. Watkins v. Rives, (C.A.D.C., 1941), 125 F.2d 33; Ebert v.
Ebert, (C.A.D.C., 1945), 148 F.2d 226; Tilghman v. Tilghman, (D.C.D.C., 1944), 57 F.Supp.
417; and N.L.R.B. v. Hopwood Retinning Company, (C.A. 2, 1939), 104 F.2d 302.
[Headnote 3]
Petitioners next contend that the judgment is not susceptible of enforcement by contempt
for the reason that it is ambiguous in that it cannot be ascertained what notes the judgment
has reference to. The judgment upon its face does not appear ambiguous. Petitioners assert,
however, that as a matter of fact no notes exist precisely as described in the judgment.
Respondents assert that testimony in the court below in specific reference to notes in the
sums specified in the judgment removes any possible ambiguity.
in the sums specified in the judgment removes any possible ambiguity. This issue, we feel,
should be first resolved by the trial court under its order to show cause.
Petitioners have raised other objections to the trial court's proceeding which do not reflect
upon its jurisdiction to act, but assert or anticipate error on its part. These matters we do not
feel it necessary to discuss.
Writ denied. Alternative writ dismissed.
____________
72 Nev. 268, 268 (1956) Weeks v. Weeks
DOROTHY C. WEEKS, Appellant, v.
RUSSEL S. WEEKS, Respondent.
No. 3928
October 26, 1956. 302 P.2d 750.
Appeal from Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Suit by wife for divorce involving questions affecting disposition of certain property as
either community or husband's separate property. The trial court entered decree, and wife
appealed. The Supreme Court, Badt, J., held, in part, that where husband, who had been
experiencing serious marital difficulties, registered securities which he had inherited from his
father in his and his wife's name, as joint tenants with right of survivorship and bank held
securities deposited under agency agreement whereby bank invested money subject to
directions of both husband and wife, fact that husband's motive in placing property in joint
tenancy was, inter alia, to avoid probate and administration of his estate in case of death
would not be such clear and convincing proof sufficient to rebut presumption of gift of
property to wife.
Affirmed in part. Reversed in part and remanded with instructions.
(Petition for rehearing denied December 10, 1956.)
72 Nev. 268, 269 (1956) Weeks v. Weeks
Robbins & Denton and F. Grant Sawyer, of Elko, for Appellant.
Vaughan & Hull, of Elko, for Respondent.
Where husband, who had been experiencing serious marital difficulties, registered securities which he
had inherited from his father in his and his wife's name, as joint tenants with right of survivorship, and bank
held securities under agency agreement whereby bank invested moneys subject to directions of both
husband and wife, fact that husband's motive in placing property in joint tenancy was, inter alia, to avoid
probate and administration of his estate in case of death, would not be such clear and convincing proof
sufficient to rebut presumption of gift of property to wife.
Where husband registered securities which he had inherited from his father in his and his wife's name, as
joint tenants with right of survivorship, and bank held securities under agency agreement whereby bank
invested money subject to directions of both husband and wife, husband made delivery of gift of securities
to wife by delivering securities to bank, as agent for both husband and wife, within requirement that valid
gift needs immediate delivery.
In absence of clear and convincing proof to the contrary, the presumption of gift, arising from fact that
husband had registered securities which he had inherited from his father in his and his wife's name, as joint
tenants with right of survivorship, would prevail.
Fact that husband, who had created joint tenancy with wife of inheritance husband had received from his
father's estate, only intended, in creating tenancy, to avoid probate and administration of his estate in case
of death, and did not intend that wife should thereby acquire community interest in proceeds upon divorce,
would not destroy tenancy or avoid gift which he had thus made to wife of inheritance.
In suit by wife for divorce involving question whether cattle purchased by husband by draft on parties'
joint bank account were separate property of husband, in view of fact that husband had deposited
inheritance in overdrawn joint account shortly before he wrote check to pay for cattle, evidence sustained
finding that cattle were separate property of husband.
6. Divorce.
In suit by wife for divorce involving question whether certain ranch property which wife desired to have
assigned to her in division of community property had been so organized and integrated into
ranching unit that it could not be partitioned from other properties, evidence
sustained finding and judgment to this effect.
72 Nev. 268, 270 (1956) Weeks v. Weeks
and integrated into ranching unit that it could not be partitioned from other properties, evidence sustained
finding and judgment to this effect.
7. Divorce.
The Supreme Court may not, in first instance, make disposition of community property between parties to
divorce suit; the trial court, under guidance of statutory provisions, must make such disposition.
OPINION
Dorothy C. Weeks, plaintiff and appellant, obtained a decree of divorce from Russel S.
Weeks, defendant and respondent. The pleadings and the pretrial order made by the trial court
put in issue the question as to whether certain securities, standing in the name of the parties as
joint tenants, and certain purebred cattle purchased by draft on their joint account were jointly
owned by the parties or comprised the separate property of the husband. The court made
findings of fact, conclusions of law and judgment to the effect that each of such items was the
separate property of the husband. For each of such findings the defendant assigns error. She
further assigns error in the court's finding and judgment to the effect that a certain ranch
property on which the parties had resided and which she desired to have assigned to her in
division of community property had been so organized and integrated into a ranching unit
with the other ranch properties that it could not be partitioned from the other properties. We
treat of these assignments separately.
1. This item involves certain securities comprising the capital stock of some twelve
corporations of the value of approximately $120,000, inherited by defendant from the estate
of his deceased father. Appellant concedes that these securities so inherited were the separate
property of defendant at the time of such distribution, but points out that subsequently thereto
the title to these securities was, at defendant's direction,
72 Nev. 268, 271 (1956) Weeks v. Weeks
securities was, at defendant's direction, changed and placed in the name of both parties as
joint tenants with right of survivorship. At the time of the trial the stock certificates remained
so registered. The pretrial order recited: It is admitted all of the securities * * * are registered
as follows: Russel S. Weeks and Dorothy Weeks, as joint tenants with right of survivorship
and not as tenants in common. These securities were held by the First National Bank of
Nevada, Reno, Nevada, under an agency agreement. This agreement, executed by Russel S.
Weeks and Dorothy Weeks, his wife, as principals and the bank as agent, called for the
holding, investment, disbursement or other disposition of the property deposited by the
principals, or its proceeds, upon the written order of the depositors; that directions to the
agent should be in writing given by the depositors; that the agent should not invest any
moneys subject to the agency except upon direction of the depositors; that the agent would
pay the income from the property to the depositors and would hold the same to the further
order of the depositors; that semiannual statements would be furnished to the said
depositors. The agency agreement further provided: This agency may be terminated at any
time by either party upon written notice. The term either party clearly refers to the
depositors on the one hand and the bank on the other. Upon termination of the agency the
property is to be returned to the depositors. Authorization to the agent to execute
certificates of ownership etc., as required by regulations of the treasury department, is given
by the depositors.
Respondent admits the presumption of gift arising out of these circumstances, Peardon v.
Peardon, 65 Nev. 717, 201 P.2d 309, but insists that such presumption is rebuttable (which is
not disputed), and that the same has been successfully rebutted by the following
circumstances, namely, (1) that there was no donative intent in the husband, (2) that there was
no delivery and
72 Nev. 268, 272 (1956) Weeks v. Weeks
that the so-called gift did not become immediately effectiveall three of such elements being
necessary to a gift, and the failure of any one of them being destructive thereof. In contending
that there was no donative intent, respondent points to his testimony to the effect that he
desired to avoid costs of probate and administration in the event of his death and was advised
by his attorney (not his present counsel) that this could be accomplished by placing all of his
property in the joint ownership of himself and his wife, with the right of survivorship. This
was done. And we may note here that other real and personal property acquired by the parties
during coverture, and concerning the community nature whereof there is no question, was
likewise held by the parties in joint tenancy. In any event, we find nothing here but an
unexpressed intention (giving the testimony its fullest effect) that despite the transfer of the
securities to the parties in joint tenancy the respondent should remain the sole legal and
beneficial owner, or that it should be ineffective except in the event of his death. His wife
testified that he expressed no such intention to her and he did not deny this testimony. It is
further asserted by the husband that the relations of the parties at the time indicate the lack of
donative intentthat the parties were having serious marital and personal difficulties prior to
the time of transfer of the stock; that appellant was keeping a diary listing objectionable acts
on the part of respondent; that they had continual differences and arguments concerning their
son; that, as a matter of fact, respondent was looking to these securities to see him through his
old age in the event he should become incompetent as was the case with his father; that the
parties were also having disputes with reference to appellant's refusal to have more children.
Respondent insists that under such circumstances it is entirely unreasonable to credit him
with donative intent.
[Headnote 1]
It is our opinion, however, that the circumstances thus recited fall far short of the "clear
and convincing proof" essential to rebut the presumption of a gift.
72 Nev. 268, 273 (1956) Weeks v. Weeks
recited fall far short of the clear and convincing proof essential to rebut the presumption of
a gift.
Nor are we impressed with the contention that there was no delivery. We have above
quoted some of the terms of the agency agreement with the bank. In this we find no
distinction whatsoever in the agency thus created on behalf of both parties as principals.
There was no greater possession or control in the husband than in the wife. The wife's
signature was, to a like degree with the husband's, essential in all instructions to the bank
concerning the handling of the securities. That respondent recognized this even at the time of
the trial is evident from his testimony. The securities were apparently transferred directly
from the estate of his father to appellant and respondent as joint owners, and respondent
testifies: We had them transferred into a joint ownership * * * we deposited them in an
agency with the First National Bank in Reno. The joint tenancy conversation' was had
concerning the securities shortly after we received them * * *. We had dividends coming. * *
* [An agency was recommended] that fit our purpose [under the agency agreement], that
would give us an accounting twice a year * * * and would deposit dividends to our account.
We held [certain later acquired bonds] and I took them to Reno to add to the stock account.
[Headnotes 2, 3]
What has been said is an equal answer to the contention that the gift must fail because of
lack of immediate delivery. Such delivery was accomplished by delivery to the bank as agent
for both parties. In such lack of clear and convincing proof to the contrary, the presumption of
gift must prevail. Peardon v. Peardon, supra, and cases therein cited.
[Headnote 4]
Before leaving this subject, it may be well to comment on respondent's contention that he
never intended to effect such a title situation as now confronts him.
72 Nev. 268, 274 (1956) Weeks v. Weeks
effect such a title situation as now confronts him. In Mullikin v. Jones, 71 Nev. 14, 278 P.2d
876, 881, we used language which is rather apt here: The benefits and dangers, the
advantages and disadvantages of joint tenancies by husband and wife have been for many
years the subject of wide discussion among lawyers, banks, trust companies and others, and in
later years with a special view to federal tax liabilities. A choice of the tenancy must be made,
and we may assume that it will sometimes be made inadvisedly or that later developments
may indicate that the choice seemingly advantageous at the time, has resulted in loss or
hardship. Here the respondent by gift created a joint tenancy for the purpose of gaining
certain advantages which such tenancy provided. The fact that respondent had in mind the
advantages to be gained does not weigh against the creation of such a tenancy, but in its
favor. The fact that he did not have in mind the disadvantages of joint tenancy is unfortunate
but cannot act to destroy the tenancy or avoid the gift.
The trial court was in error in concluding that the securities standing in joint tenancy were
respondent's separate property.
Plaintiff's next assignment of error deals with the court's finding that certain purebred
livestock was the separate property of the husband.
In the pretrial order it was recited:
In October, 1951 defendant received $31,815.59 from his father's estate. The check was
deposited in the joint bank account of the parties, which account at the time was overdrawn
$900. This deposit was October 25, 1951. On November 13, 1951 balance in the account was
$17,890. On that date there was deposited a check for $14,508.71, payment of ranch cattle
sold. Such ranch cattle were community property. In December, 1951, against plaintiff's
disapproval, defendant wrote checks for $16,855.00 to pay for a small herd of purebred cattle.
The market price for purebred cattle has depreciated.
72 Nev. 268, 275 (1956) Weeks v. Weeks
Of the remaining herd, and increase now on hand, the value is $8,400.00.
After making findings of fact to the above effect, the court made its conclusions of law
which (after finding the securities to be the separate property of the defendant as above
discussed) found the purebred herd to be the separate property of the defendant.
The purebred cattle were purchased less than two months after the deposit in the bank of
the $31,000 inherited by defendant from his father's estate; defendant brusquely refused to
accede to plaintiff's suggestion that they acquire a new house with such moneys; he overruled
her protests against the purchase of the purebred cattle; he insisted that it was his business
and his cattle; he obtained certificates of registration of the purebred cattle (identified by
tattoo marks) in his individual name. When he deposited in the joint bank account the
proceeds of his inheritance, the community funds were exhaustedin fact, $900 overdrawn.
The community funds deposited to the joint bank account in the same period were for the
most part earmarked for specific purposes and were disbursed for such specific purposes. All
of the foregoing circumstances, including the tracing of the title to the cattle back to
defendant's separate funds, furnished ample support to the court's finding of his separate title
thereto.
[Headnote 5]
In assigning error in the court's finding that the purebred livestock were the separate
property of defendant, plaintiff contends that by depositing the money in the joint account
defendant made a valid, completed gift to plaintiff, and that the purebred cattle, purchased out
of such deposit became part of the community. In support of this assignment, she quotes the
following from Beach v. Holland, 172 Or. 396, 142 P.2d 990, 995, 149 A.L.R. 866 (which in
turn is a quotation from 7 Am.Jur. 304, Banks, 431): The majority of cases, however, hold
that if the intention of the donor is to vest a present right to share in the deposits
constituting the joint account,
72 Nev. 268, 276 (1956) Weeks v. Weeks
to share in the deposits constituting the joint account, such an act constitutes a gift that can be
sustained. The opinion opens with the statement: The evidence clearly shows, and counsel
for the defendant concede in their brief, that the action of the deceased, in causing her bank
account to be changed to a joint account in the names of herself and the plaintiff, was taken,
not to serve the convenience of the deceased, but with a donative purpose. The annotation to
the Beach case found at 149 A.L.R. 879 and supplementing the annotation in 48 A.L.R. 189,
66 A.L.R. 881, 103 A.L.R. 1123, and 135 A.L.R. 993, presents to us literally hundreds of
cases, under varying conditions, different theories, statutory provisions, relations of the
parties, presumptions to be indulged and the conclusiveness or rebuttability thereof, nature of
the contract with the bank when making the deposits, the distinctions between savings
deposits and commercial accounts (indeed the Beach case involved a savings account in
contrast to the nature of the instant account), yet appellant asks us to reverse the trial court
upon the citation of the Beach case alone, and in which the donative intent was conceded.
Respondent in turn has presented no authorities whatsoever and does not even comment on
the Beach case. Under the circumstances the court will undertake no individual research. In
the instant case the deposit in the joint account was as consistent with a purpose of banking
convenience for the depositor as with donative intent. Even if we assume the presumption of
gift in the nature of the deposit, the facts above recited are sufficient to rebut the theory of gift
and to support the court's holding of the defendant's individual ownership of the purebred
cattle. We accordingly find no merit in this assignment.
Appellant's third and last assignment of error is the court's refusal to assign to her a certain
ranch property on which the parties had resided, with reference to the entire inventory of real
and personal community property. The court found the ranch and range lands, buildings and
improvements, supplies and equipment to be worth $1S0,000;
72 Nev. 268, 277 (1956) Weeks v. Weeks
worth $180,000; livestock $56,008; a promissory note $12,000; cash on deposit $15,522.17;
an automobile $2,320; all of which, subject to an encumbrance of $45,000 for payment of the
Ralph ranch, left a net value in the sum of $220,850.17. The court then found: The above
set-out ranch property has, since the acquisition of the Ralph ranch, the last of several ranches
acquired during the marriage, been organized and integrated into a ranching unit. This
ranching unit is capable of producing more cattle, when so operated, than the component
parts whereof would produce and support. A partition of these ranching properties would not
only decrease the value thereof, but would require the expenditure of a substantial sum of
money for the purchase of necessary equipment for fencing and the building of
improvements.
[Headnote 6]
Although there is sentimental appeal in plaintiff's desire to have assigned to her the Ralph
ranch, heretofore owned by her parents, upon which she spent her childhood, sold by her
parents to herself and husband on very liberal terms, it cannot be said that the court's finding
is without substantial support in the evidence. This assignment of error is therefore without
merit.
A fourth assignment of error, having to do with the admission of evidence in connection
with the ownership of the securities, does not require consideration in view of our holding
upon that item.
[Headnote 7]
In remanding this case, a further observation is necessary. We have statutory provisions to
guide the court in making disposition of community property of the parties. No such
disposition may be made by us in the first instance. Our holding that the securities are the
joint property of the parties may well disturb the factual situation upon which the trial court
relied in making its final disposition of the property of the parties. On remand, therefore, the
trial court must be left at liberty to make a final order for such disposition,
72 Nev. 268, 278 (1956) Weeks v. Weeks
to make a final order for such disposition, after such hearing and upon such notice to the
parties as may appear proper.
Reversed and remanded with instructions to modify the judgment by providing that the
securities therein listed are owned by the parties in the manner actually set forth in the First
National Bank of Nevada agency account No. 281, namely, by Russel S. Weeks and Dorothy
Weeks, as joint tenants, with right of survivorship and not as tenants in common, and for
further proceedings in accordance with this opinion.
____________
72 Nev. 278, 278 (1956) Duffy v. Flynn
PATRICK DUFFY, Appellant, v.
A. E. FLYNN, Respondent.
No. 3834
November 1, 1956. 302 P.2d 967.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action for damages for personal injuries under so-called guest-passenger statute. The
lower court entered judgment upon verdict which found plaintiff guilty of contributory
negligence, and plaintiff appealed. The Supreme Court, Badt, J., held that where person, who
was guest passenger in automobile owned and driven by friend, fell asleep when friend and
another left automobile to have a drink, and friend, though all had had several drinks, was
not intoxicated at time, and had previously driven carefully, guest was not on that account
guilty of such contributory negligence as would bar his recovery for injuries received in
accident following friend's intoxication after two hours' steady indulgence.
(Petition for rehearing denied December 19, 1956.)
72 Nev. 278, 279 (1956) Duffy v. Flynn
Foley Brothers, of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas, for Respondent.
Automobiles.
Where guest passenger fell asleep when host and another left automobile to have a drink, and host
though all had had several drinks, was not intoxicated at time, and had previously driven carefully, guest
was not on that account guilty of such contributory negligence as would bar his recovery for injuries
received in accident following host's intoxication after two hours' steady indulgence and verdict, in
personal injury action, of contributory negligence was without factual support. N.C.L.1931-1941 Supp.,
sec. 4439.
OPINION
Appellant Duffy, as plaintiff below, has appealed to this court from a judgment in favor of
defendant pursuant to verdict of a jury. Plaintiff's action was for damages for personal injuries
under what is known as the guest passenger statute of the State of Nevada, being sec. 4439,
N.C.L., 1931-41 Supp. The jury drew its own form of verdict which was as follows: Verdict.
We, the jury, after mature consideration of the evidence presented, find that the plaintiff
Patrick Duffy is not entitled to recover damages from the defendant, A. E. Flynn, by reason of
contributory negligence. While several errors are assigned, the appeal is subject to
determination upon the single question as to whether the verdict finds any support in the
evidence. To this end an examination of the facts must be had, concerning which there is no
material dispute. Duffy, Flynn and one Ernest Rawlins had all come off night shift at 11:00
A.M., February 27, 1952, having worked that day from 3:00 A.M. Duffy met Flynn and
Rawlins in Las Vegas, and Flynn invited him to go for a ride with them in Flynn's car. He
accepted, they had one or two drinks, then drove some twelve miles to Pittman, stopped there
for about 45 minutes and had one or two more drinks there,
72 Nev. 278, 280 (1956) Duffy v. Flynn
there for about 45 minutes and had one or two more drinks there, after which they again
entered the car and drove to Lake Mead Lodge, arriving about two o'clock. Such part of the
trip was accomplished without incident. Defendant Flynn did the driving, apparently with
care and skill and without any recklessness or carelessness subjecting him to criticism of any
kind. At Lake Mead Lodge Flynn and Rawlins left the car and invited plaintiff to join them
for a drink. Plaintiff declined and went to sleep in the car. Defendant and Rawlins entered
the lodge and started drinking. How many drinks they had does not appear, but they were
drinking straight shots of whiskey and did not emerge from the lodge till about 4:30 or 4:45
P.M. Plaintiff was still asleep in the car. He was not awakened and apparently Flynn drove a
short distance to the boat docks at Lake Mead, which consumed some twenty minutes. From
there to the scene of the accident, which occurred about five o'clock, Flynn's driving revealed
his extreme case of intoxication. The car was weaving about the road and at one point went
completely off the road but without mishap and returned to the road. Thereafter on a straight
strip of highway Flynn drove off a steep incline, travelled a distance of about 250 feet,
whereupon the car jumped a ditch some four feet wide and finally came to rest. During all
this time Duffy was asleep in the back seat until he was awakened by being jolted to the floor
of the car. Flynn, after emerging from the car, staggered, reeled and weaved when he walked,
mumbled and was thick-tongued, and his breath smelt strongly of alcohol.
Defendant concedes that the jury's verdict implied a determination that he was intoxicated
at the time of the accident, but insists that its finding of plaintiff's contributory negligence is
supported by Duffy's negligent behavior in going to sleep in the car. This theory first appears
in defendant's answer as follows: That plaintiff was guilty of negligence which was a
contributing cause of the accident and plaintiff's injuries, if any, in that at the time of said
accident as aforesaid plaintiff,
72 Nev. 278, 281 (1956) Duffy v. Flynn
at the time of said accident as aforesaid plaintiff, while being a guest passenger in said motor
vehicle was asleep in the rear seat of said vehicle, thereby failing to keep a proper and
necessary lookout for his own safety. In his answering brief, this defense is expressed by the
recital of Duffy's knowledge of one or two drinks first had at Las Vegas, the drive to Pittman
following such drinks, then one or two drinks had at Pittman, followed by the drive to Lake
Mead Lodge, and the expressed intention of Flynn and Rawlins to go into the lodge and have
a drink.
Respondent concedes that appellant's going to sleep would not of itself constitute
contributory negligence under circumstances that were such that there was no anticipation of
danger. He insists, however, that plaintiff had reason to anticipate dangerthat defendant
might become intoxicated as a result of his indulgences, his own past and immediately
anticipated consumption of intoxicants. We are entirely unimpressed by this argument. The
reasonably prudent man, in the absence of telepathic powers not ordinarily possessed by
mankind, could hardly be expected to anticipate at the time of his going to sleep that the
defendant, a man with whom he had ridden before without his committing any act evoking
criticism, who had up to then driven with due care, who was not then intoxicated, having
expressed an intention to have a drink, would spend upwards of two hours in drinking, would
become thoroughly intoxicated, would then proceed to drive his car in violation of law and,
without bothering to awaken plaintiff, would take him along without his consent or ability to
protest.
The jury verdict of contributory negligence is, then, wholly without factual support. The
trial court was in error in denying motion for new trial.
____________
72 Nev. 282, 282 (1956) Globe Indem. v. Peterson-McCaslin Lumber Co.
GLOBE INDEMNITY COMPANY, Appellant, v. PETERSON-McCASLIN LUMBER
COMPANY, a Nevada Corporation, and State of Nevada for the Use and Benefit of
Peterson-McCaslin Lumber Company, a Nevada Corporation, Respondents.
No. 3936
November 15, 1956. 303 P.2d 414.
Department No. 3.
Action by contractor's unpaid materialman against contractor's surety upon public works
bond. The lower court rendered, upon the pleadings, summary judgment for materialman, and
surety appealed. The Supreme Court, Merrill, C. J., held that, where contractor defaulted in
performance of contract with state highway department for certain construction work, and
surety was compelled to complete performance, surety's subrogation was not limited to rights
of the contractor, but surety was subrogated to right of state to apply the retent against cost of
completing performance, and, therefore, surety's right to retent was free from any claim
thereto which might be asserted by the materialman.
Reversed.
Vargas, Dillon & Bartlett and Alex A. Garroway, of Reno, for Appellant.
A. Dyer Jensen, District Attorney, Washoe County, of Reno, for Respondents.
1. Subrogation.
Where contractor defaulted in performance of contract with State Highway Department for certain
construction work, and surety upon contractor's public works bond was compelled to complete
performance, surety was subrogated to right of state to apply the retent withheld by state against cost of
completing performance, and therefore surety's right to retent was free from any claim thereto
which might be asserted by contractor's unpaid materialman.
free from any claim thereto which might be asserted by contractor's unpaid materialman. N.C.L.1929, secs.
5337-5340; N.C.L.1931-1941 Supp., sec. 5338; N.C.L.1943-1949 Supp. sec. 5337.
If contractor's surety, instead of performing contract, elects to pay damages, surety can be held for no
more than the amount which obligee would be compelled to pay to complete the work over and above the
amount which it had on hand at time of contractor's default, but, when this happens, surety receives benefit
of the unpaid current estimates as well as the retained percentages, and equity will not place surety who
performs the contract in a worse position than that he would have been in had he elected to respond in
damages.
OPINION
This is an action brought by respondent lumber company against appellant indemnity
company as surety upon a public works bond. From summary judgment in favor of the
lumber company, rendered upon the pleadings, the indemnity company has taken this appeal.
The sole question involved is as to the respective rights of the parties to that portion of the
contract price retained by the State as security for completion of the work by the contractor.
The lumber company asserts rights as an unpaid materialman. The indemnity company asserts
rights by subrogation.
One Mills entered into a contract with the highway department of the State of Nevada for
certain construction work. Pursuant to the provisions of secs. 5337-40 N.C.L. 1941, 1949
Supp. a bond was provided in the sum of $35,652, appellant indemnity company serving as
surety thereon. Sec. 5337, N.C.L. 1949 Supp., with reference to the bond required, provides
that 2/3 of the bond shall be conditioned upon full performance and 1/3 shall be conditioned
upon payment of those supplying labor and materials. The bond was conditioned accordingly.
The surety's limit of liability under the bond for unpaid bills for labor and material was thus
$9,836.51.
Mills defaulted in performance. Sec. 5338, N.C.L. 1941 Supp., provides that in making
progress payments ten percent shall be withheld until the work is satisfactorily completed and
accepted by the State; that should it become necessary for the State to take over the contract
for completion the amount withheld shall first be applied toward the cost of completion.
Upon Mills' default the State made demand upon the indemnity company that it complete
performance pursuant to its obligation as surety. This the indemnity company did, expending
(according to the allegations of its answer) more than the amount of the State's retent in such
performance. The amount of the retent was then paid to it by the State.
At the time of Mills' default certain materialmen remained unpaid, among them being
respondent lumber company. The total amount of unpaid bills was more than the surety's
liability under the bond of $9,836.51. Payment of this amount, pro rata to the creditors, was
tendered by the surety and such payment was rejected by the lumber company, which
demanded payment in full. It contended that it had an equitable right to the retent to the extent
of full payment of its bill, which right was superior to that of the surety.
Such was the holding of the trial court. In support of such holding respondent relies upon
American Surety Company v. Westinghouse Manufacturing Company, 296 U.S. 133, 80
L.Ed. 105, 56 S.Ct. 9.
That case, as does the one before us, involved a dispute between the surety and unpaid job
creditors as to their respective rights to the retent. (It thus differs from Union Indemnity
Company v. Drumm, 57 Nev. 242, 252, 62 P.2d 698, 70 P.2d 767.) In the American Surety
Company case, as here, although the surety had paid job creditors to the extent of its liability
under the bond, the creditors' claims were not discharged in full. The Supreme Court held the
surety not entitled to the retent. It stated [296 U.S. 133, 56 S.Ct. 11], A surety who has
undertaken to pay the creditors of the principal, though not beyond a stated limit,
not beyond a stated limit, may not share in the assets of the principal by reason of such
payment until the debts thus partially protected have been satisfied in full. This is the rule
where the right to a dividend has its basis in the principle of equitable subrogation. A surety
liable only for part of the debt does not become subrogated to collateral or remedies available
to the creditor unless he pays the whole debt or it is otherwise satisfied.'
In that case, however, the contractor had completed performance. The surety's rights by
subrogation arose solely by virtue of its partial payment of creditors' claims. The subrogation
was solely to the right of the contractor to the retent which right was held subject to the
contractor's duty to pay the creditors in full.
[Headnotes 1, 2]
In the instant case the surety was compelled to complete performance. Its subrogation was
not limited to the rights of the contractor. It was subrogated to the right of the State to apply
the retent against the cost of completing performance. Prairie State National Bank v. U.S.,
164 U.S. 227, 41 L.Ed. 412, 17 S.Ct. 142. As stated in Lacy v. Maryland Casualty Company,
4 Cir., 32 Fed.2d 48, 51, If the surety, instead of performing the contract, elects to pay
damages, it can be held for no more than the amount which the obligee is compelled to pay to
complete the work over and above the amount which it has on hand at the time of the
principal's default, for this is all the damage that the surety sustains. But when this happens
the surety receives the benefit of the unpaid current estimates as well as the retained
percentages. Equity, of course, will not place him in worse position where he performs the
contract of the principal in accordance with his obligation than where he elects to respond in
damages. * * * The right of the casualty company to subrogation entitled it to be substituted
to the right which the highway commission might have asserted against these funds.
The surety's rights by subrogation were not, then, limited by any rights which the creditors
might have asserted against the contractor. Its right to the retent is free from any claim thereto
which might be asserted by respondent lumber company.
The lumber company disputes the surety's contention that cost of completion exceeded the
amount of the retent. We do not feel it necessary to dispose of any issues of law which might
arise should the lumber company prevail in this regard. The extent of the cost of completion
is a question which should first be resolved by the trial court.
Reversed and remanded with instructions that summary judgment be set aside and for
further proceedings.
____________
HELEN WANEMA LAWRENCE, Defendant, Appellant, v. THE STATE OF NEVADA,
Plaintiff, Respondent.
No. 3872
November 27, 1956. 303 P.2d 704.
Defendant was convicted in the Eighth Judicial District Court, Clark County, Department
No. 3, Ryland G. Taylor, J., of murder in the first degree, and she appealed. The Supreme
Court, 72 Nev. 243, 302 P.2d 285, reversed and remanded for new trial. On the State's
petition for rehearing, the Supreme Court, per Eather, J., adhered to its original opinion that
extent of provocation, state of defendant's mind, and existence or lack of wilfullness,
deliberation, and premeditation necessary to first degree murder could not be determined
without knowledge of basis of fatal dispute, and that where such dispute related directly to
earlier differences between parties,
parties, it was reversible error to deprive jury of knowledge as to nature of earlier differences
between defendant and the victim, who was her divorced husband.
Petition denied.
Jones and Pursel, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George M. Dickerson, District Attorney, Clark
County, Gordon L. Hawkins, Deputy District Attorney, Clark County, for Respondent.
Homicide.
Extent of provocation, state of defendant's mind, and existence or lack of wilfullness, deliberation, and
premeditation necessary to first degree murder could not be determined without knowledge of basis of fatal
dispute; and where such dispute related directly to earlier differences between parties, it was error,
requiring reversal of first degree murder conviction, to deprive jury of knowledge as to nature of earlier
differences between defendant and the victim, who was her divorced husband.
Opinion Denying Petition for Rehearing
On petition for rehearing the State has directed our attention to an erroneous statement in
our opinion as to the facts established by the record. We stated that, following the divorce of
the parties, the defendant continued to live in their home until ejected by deceased in January,
1954. The record shows that during this period of time she kept her clothing and personal
effects in the home but, for the most part, was traveling and lived elsewhere, returning to the
home occasionally. This error does not affect our decision.
The State directs our attention to the fact that certain of the matters which we stated the
defendant had offered to prove were not rejected by the court but were admitted in evidence.
The matters so specified were minor and such correction would not affect our decision.
such correction would not affect our decision. The essentials of the defendant's offer of proof
were never admitted in evidence.
The State contends that the offer of proof upon which defendant's assignments of error
were based was a single, comprehensive offer in narrative form which included within it
certain matters already admitted in evidence and other matters which were inadmissible; that
under the circumstances it was not error to reject the offer in its entirety. However, as to the
matters specified in defendant's assignments of error, the action of the court was not limited
to the comprehensive offer of proof. Time after time the court rejected offered testimony
relating to the divorce agreement of the parties, the collateral promises of the deceased with
reference to the home, and the repudiation of those promises at the time defendant was
ejected from the home.
The State contends that, in any event, such evidence was inadmissible for the reason that it
related to occurrences which could not, as a matter of law, constitute provocation since they
were entirely too remote from the time of the shooting; that acts of provocation to be relevant
must be shown to exist at the time of the shooting. Our opinion, perhaps, was not clear in
expressing the relevancy of such testimony.
The record establishes that the shooting occurred in conjunction with a dispute between
the parties. Defendant testified as to that dispute as follows: I told him he would have to
make things right with me or we would go to court over it and he said to me, You won't live
long enough to take this fraud suit to court. I'll certainly see to that.' I got out of the car and he
was shaking me and I got hold of his arm. He said, Your body will be found out on the desert
and people will be wondering what happened to you.' That's all I know.
The fatal dispute, then, related directly to the earlier differences between the parties, the
nature of which was unknown to the jury. The extent of the provocation, the state of
defendant's mind,
state of defendant's mind, and the existence or lack of the wilfullness, deliberation, and
premeditation necessary to first degree murder could not be determined without knowledge of
the basis of the dispute. The defendant was entitled to have the jury determine whether the
dispute in connection with the former relation of the parties as shown by the excluded
testimony furnished an adequate cause and brought about a condition of mind in appellant
which would have reduced the homicide. Ward v. State, 96 Tex.Cr.R. 278, 257 S.W. 536,
538.
Petition denied.
____________
72 Nev. 289, 289 (1956) Turrillas v. Quilici
AGUEDA TURRILLAS, Individually and as Administratrix of the Estate of Felix Turrillas,
Sr., Copartners Doing Business Under the Firm Name and Style of BIG MEADOWS
HOTEL, Appellants, v. MAMIE QUILICI, as Administratrix of the Estate of Louis
Quilici, Deceased, MAMIE QUILICI, Individually, JOHN DOE, MARY ROE, AND
LENA BUCKMASTER, Respondents.
No. 3819
November 27, 1956 303 P.2d 1002
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn H. Brown,
Judge.
Proceeding by plaintiffs to establish an easement by prescription on the property of
defendants, adjoining landowners. The trial court held for the defendants and plaintiff
appealed. The Supreme Court, Eather, J., held that where there was no proof of an actual
claim of adverse right,
adverse right, determination that presumption of permissive use of an L-shaped area running
around the projecting portion of plaintiffs' property had not been rebutted was justified.
Peter Echeverria, of Reno, for Appellants.
Goldwater, Taber & Hill, of Reno, for Respondents.
1. Easements.
Generally open and notorious use of property for an extended period creates a presumption that use was
adverse.
2. Easements.
Where a roadway is established or maintained by a landowner for his own use, the fact that his neighbor
also makes use of it, under circumstances which in no way interfere with use by the landowner himself,
creates a presumption that neighbor's use was not adverse but is permissive and the result of neighborly
accommodation on the part of the landowner, but presumption is rebuttable.
3. Easements.
Where there was no proof of an actual claim of adverse right, in a suit to establish easement by
prescription to an L-shaped area running around projecting portion of plaintiffs' property, trial court's
determination that presumption of permissive use was unrebutted was justified.
OPINION
This is a right-of-way dispute. Appellants, as plaintiffs, brought suit to establish an
easement by prescription over property of the respondents. The lower court held for the
respondents and this appeal has been taken from that judgment. The sole question involved is
whether appellants as plaintiffs have established that their user was adverse.
The parties are owners of adjoining premises in the city of Lovelock. Appellants and their
predecessors in interest for many years have operated the Big Meadows Hotel upon their
property. Respondents own business property adjoining on the south. A public alleyway runs
north and south,
north and south, behind (to the west of) respondents' property, coming to a dead end at
appellants' property. Between the two parcels a 5-foot right-of-way running east and west for
the use of both parcels has been created by a mutual grant of two and a half feet from each
parcel. Its easterly terminus is at West Broadway Street. Due to a projection of appellants'
property this right-of-way does not reach the alley but also comes to a dead end at appellants'
property line. Respondents and their predecessors have so maintained their property that an
open L-shaped area running around the projecting portion of appellants' property serves to
connect the right-of-way and the alley. This area has been used in conjunction with the alley
and the right-of-way by both parties and to a certain degree by members of the public.
Appellants have shown extensive and continuous use by tradesmen in making delivery to the
hotel. Such use has been made for more than 30 years. It is over this L-shaped portion of
respondents' property that appellants seek to establish their prescriptive right-of-way.
[Headnote 1]
Appellants claim that their open and notorious use of respondents' property for such an
extended period creates a presumption that their use was adverse and was asserted by them as
a matter of right. Such is the general rule. Chollar-Potosi Mining Co. v. Kennedy & Keating,
3 Nev. 361. The presumption, however, does not apply in every case. As stated in Howard v.
Wright, 38 Nev. 25, 143 P. 1184, 1187, [The] mere use of a passage over another's land for a
long time with his knowledge is not necessarily an adverse use. The circumstances may be
such as to authorize an inference that the use is adverse but they may also be such as to
intimate that the use was by permission.
[Headnote 2]
Where a roadway is established or maintained by a landowner for his own use, the fact that
his neighbor also makes use of it, under circumstances which in no way interfere with use
by the landowner himself, does not create a presumption of adverseness.
way interfere with use by the landowner himself, does not create a presumption of
adverseness. The presumption is that the neighbor's use is not adverse but is permissive and
the result of neighborly accommodation on the part of the landowner. Howard v. Wright,
supra. See Anno. 170 A.L.R. 825.
The presumption is rebuttable. In this case, however, the facts proven are in no respect
inconsistent with an acceptance by appellants of the neighborly accommodation of
respondents.
[Headnote 3]
There is no proof of an actual claim of adverse rights. Each party relied on a number of
unconnected incidents as proof of his theory of the nature of user. Respondents point out that
they posted a sign in the area Private Property, Permission to pass revocable at any time;
that they also constructed a fence and gate in the area which they insisted they had a right to
maintain and which was kept locked; that on occasion they stopped traffic from going
through. Appellants, on the other hand, claim that the private property sign was knocked
down, pushed aside and otherwise ignored, and that the fence and gate were removed and did
not hinder traffic. It was clearly available to the lower court as trier of the facts to weigh the
testimony of the witnesses as to these and other incidents and to conclude that the
presumption of permissive use continued, unrebutted, to control.
____________
72 Nev. 293, 293 (1956) Gershenhorn v. Stutz
SOL GERSHENHORN and D. H. CAPLOW, Appellants, v. WALTER R. STUTZ
ENTERPRISES, a Limited Partnership, WALTER R. STUTZ and LOUIS STUTZ,
Respondents.
No. 3981
November 30, 1956 304 P.2d 395
Appeal from judgment of Eighth Judicial District Court, Clark County; Harry M. Watson,
Judge of Seventh Judicial District, presiding.
Action by lessors for declaration of rights of parties under a lease and option, for
cancellation of the lease, restitution of the premises and damages. The lower court entered
judgment awarding lessors $225,000 damages and lessees appealed. The Supreme Court,
Badt, J., held that evidence was sufficient to support findings that building, which lessors
agreed to construct, was substantially completed and ready for occupancy in accordance with
agreement of the parties, that lessees entered into occupancy thereof, and that lessees were in
default in the performance of numerous covenants of the lease, and also to support findings
that lessors were only entitled to damages in the amount of $100,000 for past-due rentals and
$75,000 for excess costs of structure under terms of contract.
Modified, and affirmed as modified.
(Rehearing denied January 29, 1957. See 72 Nev. 312 for Opinion.)
(Certiorari denied by United States Supreme Court June 17, 1957.)
Harry E. Claiborne, of Las Vegas, and Alvin Gershenson, of Chicago, Illinois, for
Appellants.
Morse, Graves & Compton, of Las Vegas, and W. Bruce Beckley, of Las Vegas, for
Respondents.
In action by lessors for declaration of rights of parties under a lease and option, for cancellation of the
lease, restitution of the premises and damages, on ground lessees had defaulted under the lease, evidence
was sufficient to support findings that building, which lessors agreed to construct, was substantially
completed and ready for occupancy in accordance with agreement of the parties, that lessees entered into
occupancy thereof, and that lessees were in default in performance of numerous covenants of the lease.
Laws 1953, c. 284, sec. 1 et seq.
The Supreme Court cannot substitute its judgment for that of the trial judge as to weight to be given to
evidence.
Where, under terms of lease, lessors were obliged to obtain from county authorities certain certificates of
occupancy, but delay or failure of lessors to fully perform that covenant was in turn caused by failure of
lessees to complete lease terms which fell under their own responsibility, substantial compliance by lessors
was all that was required of such covenant.
Where lease and option to purchase both rested upon a common and indivisible consideration, which was
the performance by the lessees of lease covenants including payment of rent, and lessors gave notice of
cancellation upon lessees' default in payment of rent, and such cancellation was in accordance with terms of
lease, lease was thereby terminated, and right to exercise option thereupon ceased.
Where purported exercise of option to purchase leased property was contingent upon determination of
issues already raised and pending in suit between lessors and lessees, lessees who attempted to exercise the
option, failed to unequivocally offer to purchase the property in accordance with the terms of the option,
and consequently no bilateral contract came into existence between lessors and lessees and option could
not be considered as exercised.
Where defendants failed to make motion for dismissal of action upon ground of misjoinder of parties
plaintiff in trial court, and question was raised for first time on appeal but it was not shown how asserted
misjoinder was prejudicial, assignment of error was without merit. Rules of Civil Procedure, Rule 21.
Where defendants, who had waived joinder of alleged essential parties defendant in trial court, contended
on appeal that waiver could not bind other parties and that court should have joined them of its own
motion, but no argument was advanced in support of this contention, and there was no showing of
prejudice resulting to named defendants or to other persons purportedly interested
with them in the enterprise,
showing of prejudice resulting to named defendants or to other persons purportedly interested with them in
the enterprise, failure of trial court to join such parties was not reversible error.
8. Cancellation of Instruments.
Where pleadings alleged that $47,500 had been advanced on note which lease, incorporated into the
complaint, required lessors to give to lessees, but that there had been a default in the advance of $12,500
on the note, and both lessees testified to the making of the loan, and the matter of the note was the subject
of considerable examination, there was not a fatal variance between pleadings and proof with reference to
part of judgment ordering cancellation of the $47,500 note. Rules of Civil Procedure, Rule 15(b).
In action by lessors for declaration of rights of parties under lease and option, for cancellation of lease,
restitution of premises and damages, evidence was sufficient to support award of damages to lessors in the
amounts of $100,000 for past-due rentals, $75,000 for excess costs of structure under terms of contract, but
was insufficient to support finding of $50,000 damages for costs of defending numerous foreclosure actions
damages for costs of defending numerous foreclosure actions for labor and materials for which lessees
were responsible under the lease.
OPINION
In this action, by a landlord for a declaration of the rights of the parties under a lease and
option, for a cancellation of the lease, restitution of the premises and damages, the main
questions presented on this appeal are as follows: (1) Is there substantial evidence to support
the trial court's findings that the building, which the lessors agreed to construct, was
substantially completed and ready for occupancy in accordance with the agreement of the
parties; that the lessees entered into occupancy thereof and that the lessees were in default in
the performance of numerous covenants of the lease? (2) Was substantial compliance by
the lessors sufficient to entitle them to relief or were certain covenants on their part to be
performed such conditions precedent as to require an exact and complete performance?
Was the option to purchase, contained in the lease, such an independent, separate and
severable contract as to entitle the lessees to exercise such option despite their default in
payment of rents and in the performance of other covenants of the lease? (4) Did the lessees
effectively exercise their option to purchase in accordance with the terms of the lease? (5)
Was there a fatal misjoinder of parties plaintiff? (6) Was there a fatal nonjoinder of parties
defendant? (7) Was there a fatal variance between the pleadings and the proof? (8) Is there
support in the record for the items of damage found by the court in the respective sums of
$100,000 past-due rentals, $75,000 excess costs of the structure under the terms of the
contract, and particularly $50,000 damages reflecting the finding of fact that the lessors were
compelled to defend at their own cost numerous lien foreclosure actions for labor and
materials for which the lessees were responsible under the lease? Our disposition of some of
these questions will eliminate the necessity for any extensive treatment of others. Some
additional incidental points are also involved. In the following statement of facts we shall, for
the most part, refer to the plaintiffs and respondents as the lessors and the defendants and
appellants as the lessees.
Appellant Caplow, by assignment, replaced one O'Connor as one of the original lessees.
On February 12, 1954, the lessors leased to the lessees certain real property in Clark County,
Nevada, described by metes and bounds, for which the lessees agreed to pay $5,000 a month
rent for five years beginning when the premises and building being constructed by lessors
for lessees is completed, ready and approved for occupancy. The lessors represented that the
zoning and other classification of the premises permitted the erection, construction and
operation of a building and appurtenances which shall be used for legal gambling and other
incidental purposes in accordance with the laws of the State of Nevada. The size of the
building was agreed upon and its use described as for cocktail lounge, coffee shop, gambling
casino and incidental purposes,
casino and incidental purposes, with road approaches, driveways, parking facilities and
landscaping to the satisfaction of the lessees, as well as facilities for sewage disposal, water,
electrical and other utilities and facilities. The lessors were not required to furnish the air
conditioning, heating or ventilating units, trade fixtures or outdoor neon signs, but were to
provide the necessary outlets and openings therefor. The lessors agreed not to permit
mechanics' liens to be filed against the premises and to pay promptly for all labor and
materials. The lease provided further: The lessors agree that all improvements, installations
and repairs made by them shall be approved in respect to inflammability and safety to the
public before the premises are open to the public by some person granted authority to do so
by the County of Clark, State of Nevada, and if there is no such authorized person, then by a
person or agency qualified to do so by reason of experience in fire protection. The lease
further provided that in default of payment of rent for 30 days or the breach of any other
covenant for 60 days after notice, the lessors might cancel and terminate the lease and reenter.
The lease provided further: Lessees agree that if a valid execution or other process be levied
upon the interest of the lessees or shall not be cured, removed or satisfied within 90 days * *
*, the lessors should have the right to cancel the lease and reenter. A successful action by the
lessors against the lessees would entitle the lessors to a judgment for attorney fees as part of
the costs. There was a corresponding reciprocal clause for the lessees.
Paragraph 28 of the lease reads in part as follows: Lessees * * * are hereby given the
option for three years from completion of the building to be erected * * * to purchase the
entire premises * * * at the price and value of $417,000 * * * plus a sum equivalent to the
cost of the improvements to be erected * * * ascertained by the production of the records of
the lessors * * *. Such option may be exercised by the lessees as aforesaid, by written notice
to the lessors or their assigns,
lessors or their assigns, at any time within such 3-year period.
On May 19, 1954, an amendment to the lease was executed in which the size of the
building to be constructed was increased, the date of completion extended to July 15, 1954,
and the cost fixed at not more than $123,200, plus excess costs of construction not to exceed
$12 per square foot. To the $5,000 monthly rental was added an additional sum of 20 percent
of the net profits of the business conducted on the premises, subject to certain reductions and
conditions. This provision apparently never came into effect. It was further provided that if
the business to be conducted should not commence within 6 months from completion of the
building, the lease might be terminated at the option of the lessors, in which event, however,
they were to reimburse the lessees for the latter's costs of furniture, fixtures, equipment,
supplies etc. The amendment provided further that if the lease were assigned to a limited
partnership in which the lessors should hold a 20 percent interest, a three-year option was
given to such limited partnership to purchase the premises for $750,000. This provision never
became effective. The lessees agreed to lend the lessors $60,000 to assist in the construction
of the premises, to be evidenced by noninterest bearing notes payable on or before five years.
Of this sum $47,500 was advanced and the notes were given.
A second written amendment was executed June 12, 1954, which permitted the lessees to
erect at their own costs a theater and restaurant building to be attached to the casino building.
This would involve no further rentals and would add no additional amount to the option price.
Date for completion of construction and delivery of possession was extended to September
10, 1954. On or about that date a notice of completion of construction was filed and the
lessors served the lessees with a written notice thereof, and with notice of the additional
construction costs subject to the limitations of the contract, computed according to figures
submitted to be the sum of $65,163.32, payment of which sum was demanded.
computed according to figures submitted to be the sum of $65,163.32, payment of which sum
was demanded.
The original complaint in the action filed December 4, 1954, alleged accrual of rentals
from September 10, 1954, to date, and two supplemental complaints alleged the further
accrual of rentals, default in payment and default in the obligation to commence business
within six months, in addition to default in payment of construction costs, discharge of liens,
etc.
The lessees and defendants, Caplow and Gershenhorn, appellants herein, answered
separately, denied the material allegations of the complaint, alleged default of the lessors in
not completing the building, alleged conspiracy and fraud to deprive the lessees of the
building and counterclaimed for damages in the sum of $547,500, plus $200,000 additional
damages for failing to carry out an oral agreement for the acquisition and assignment of a
lease on certain neighboring premises. Further pleadings put all of these matters at issue.
The case was tried to the court without a jury and after submission on briefs, it appears
that the court filed a written decision, into which the learned trial judge incorporated findings
of fact and conclusions of law drawn by him. In these findings the court found that the
structure was substantially completed and ready for occupancy as of September 10, 1954, and
that any delay was the result of numerous changes of plans by the lessees; that notice of
completion was given and that the lessees entered into possession September 10, 1954, and
that no part of the $5,000 monthly rentals has been paid; that the lessees failed to pay the
excess costs; that they failed to advance $12,500 of their agreed $60,000 loan; that they failed
to commence business within six months after completion or at all; that they failed to keep
the premises clear of mechanics' and materialmen's liens; that the lessors were compelled, to
their damage, to defend numerous lien foreclosure actions; that the lessors had received from
the lessees $47,500 of the agreed $60,000 loan and had signed notes for the sums received;
sums received; that excess costs of the structure, payable by the lessees under their
agreement, had actually been paid by the lessors in the sum of $75,220, subject to certain
credits; that the lessees were in default under the lease agreement at the time they attempted
to exercise the purported option; that, except as specifically found, the allegations and denials
of the counterclaim were untrue.
As conclusions of law the court found the lessors, respondents herein, entitled to judgment
for $100,000 past-due rentals, $75,000 excess costs of the structure under the agreement,
$50,000 damages, subject to credit of $47,500 for advances on the notes, and entitled to the
surrender and cancellation of the $47,500 notes; plus the plaintiffs' costs including an attorney
fee in the sum of $10,000.
These conclusions of law were written into a formal judgment except that the item of
$50,000 damages, less credit of the sums advanced on the notes, was written as a judgment
for $2500 damages, plus the surrender and cancellation of the notes. The judgment also
ordered cancellation of all of the agreements and that a writ of restitution issue.
[Headnote 1]
(1) The main assignment of error by appellants is that the evidence does not support the
court's findings of fact. They repeatedly call attention to the frank statements of respondents
that a number of items of construction required completion. The record, however, is replete
with the testimony of the respondents and their witnesses amply sustaining the trial court's
view that such items (except as to certain trivial matters) were entirely the responsibility of
appellants. It will be recalled that the second amendment to the lease permitted the appellant
lessees, at their own cost, to build a theater cafe. This required substantial revision of the
casino building itself. The kitchen was increased to about double size,
double size, which in turn necessitated the opening up of the plumbing. New openings in the
walls had to be constructed, present openings had to be closed. The bar was moved to the
opposite side of the building. The electrical plans were drastically changed. The spot lights,
the projection room, the stage lighting, etc., required a large power substation to take care of
the two buildings. The original power plans were entirely inadequate to the added load. It was
items such as these and numerous others that had not been completed. There was ample
testimony, which the court apparently decided was credible, to the effect that lessees had
agreed to defray the costs of all such items. Other changes in plans made by the lessees were
the cause of the delaying of the completion date from June to July and eventually to
September 10, 1954. To consider in detail the five large volumes of record and the many
exhibits would prolong this opinion without necessity or purpose. Many of the contentions of
respondents are not disputed, many of them are the subject of much conflicting testimony.
Under such condition of the record we shall not disturb the finding. Friendly v. Larsen, 62
Nev. 135, 144 P.2d 747. The same thing applies to substantiation of the default of the lessees
in the performance of their covenants. Not any of the $5,000 monthly rentals had been paid.
The lessees had not opened for business within six months after completion. Accounts
submitted by the lessors showed that the lessees, after being credited with all payments made
by them, had not paid the construction costs as agreed. They had failed to obtain the
necessary gambling licenses from the Nevada Tax Commission, Stats. 1953, 439, to authorize
them to open up their gambling casino. They had not completed the construction of the
theater restaurant.
[Headnotes 2, 3]
(2) Pointing to a number of unfinished details and pointing particularly to the alleged
failure of the lessors to obtain from the county authorities certain certificates of
occupancy,
to obtain from the county authorities certain certificates of occupancy, appellants contend that
the theory of substantial compliance does not apply, but that the performance of these
covenants is a condition precedent to plaintiffs' right of recovery. They refer particularly to
the covenant that rental was to begin under the lease when the premises and building being
constructed by lessors for lessees is completed and ready for occupancy; that the lessors
agree that all improvements, installations and repair made by them shall be approved in
respect to inflammability and safety to the public before the premises are open to the public
by some person granted authority to do so by the County of Clark, State of Nevada, and if
there is no such authorized person, then by a person or agency qualified to do so by reason of
experience in fire protection; that under the uniform building code of Clark County no
building on structure may be occupied without a certificate of occupancy issued by a building
official; that it was admitted that even after September 10, 1954, the electrical and plumbing
inspector certified: 1. The substation is not completed. 2. The electric in building is not
completed. 3. The plumbing in building is not completed. 4. The kitchen is not completed. 5.
The dining room and theater is not completed in any detail. It may be noted in response to
this contention, however, that each of these items was the obligation of the lessees and was
not the obligation of the lessors. Many pages of testimony and numerous exhibits were
devoted to these items and we cannot substitute our own judgment for that of the learned trial
judge as to the weight to be given to this evidence. The official building inspectors testified
that as of September 10, 1954, they would have recommended the issuance of a certificate of
occupancy if the lessees had completed their changes in the kitchen and electrical system. The
architect on the project likewise testified that on that date the building was substantially
completed and he would give an architect's certificate of completion. Delay or failure in
obtaining such certificate can hardly be urged by the lessees when such delay or failure was
the result in turn of the failure of the lessees to complete the very items which fell under
their own responsibility.
urged by the lessees when such delay or failure was the result in turn of the failure of the
lessees to complete the very items which fell under their own responsibility. There was ample
support for the court's finding of substantial compliance and for its conclusion that substantial
compliance was all that was required. Sharp v. Twin Lakes Corporation, 71 Nev. 162, 283
P.2d 611.
Respondents point out that even assuming a failure of completion of the building, such
failure was waived because the lessees went into possession and thereby became liable for the
rent. Anno. 28 A.L.R.2d 458. They point out that the keys were delivered to appellants, who
thereupon began installation of fixtures, bars, carpets, booths, stage curtain, stools, slot
machines and gambling equipment; that they opened their offices on the second floor,
installed a telephone, employed an operator, publicity men etc., and carried on all operations
available to them prior to opening. However, in view of our holding that there was ample
support of the court's findings of substantial completion, it becomes unnecessary for us to
pass on the question of waiver.
[Headnote 4]
(3) Appellants assert that they exercised their option to purchase; that it was an
independent, separate and severable contract not dependent upon the lessees' performance of
the covenants of the lease; that upon such exercise the rentals ceased, as the contract then
became one of seller and buyer and no longer one of lessor and lessee. Under some
circumstances this might be so. See Murfee v. Porter, 96 Cal.App.2d 9, 214 P.2d 543. Here
the lease and option to purchase both rested upon a common and indivisible consideration.
This consideration was the performance by the lessees of the covenants of their lease,
foremost of which was the payment of rent. As the lessees were in default in payment of rent
and as the lessors gave notice of cancellation by reason thereof and as such cancellation was
in accordance with the terms thereof, the lease was thereby terminated, and, the lease being
terminated,
the lease being terminated, the right to exercise the option ceased. Estfan v. Hawks, 166
Kans. 712, 204 P.2d 780, 10 A.L.R.2d 877.
[Headnote 5]
(4) For a further equally impelling reason the purported exercise of the option to purchase
cannot prevail. It will be recalled that the action was commenced December 4, 1954, alleging
completion of the building September 10, 1954. The defendants answered on March 15 and
March 17, respectively, putting in issue all of the matters hereinabove discussed with
reference to the completion of the building. On March 21, 1955, after such issues had been
framed, and six months after plaintiffs claimed completion and delivery of the premises,
Caplow, one of the lessees, handed to the lessors a letter comprising some 1300 or 1400
words stating: This is to advise that as lessee under the lease dated February 12, 1954, I have
elected to exercise the option to purchase the premises and property containing all buildings
and appurtenances described as: [description] in accordance with paragraph 28 of said lease
at the price of $417,000 plus a sum equivalent to the cost of the improvements erected by
lessors upon said premises; that is, the casino building and appurtenances, and in connection
with the exercise of said option, I call your attention to the following matters. The letter then
listed under separate captions carpentry work, electrical work, plumbing, painting, insulation,
staining of roof, landscaping etc. It then refers to sundry paragraphs of the lease requiring the
improvements to be made in accordance with applicable city, county and state laws,
ordinances, codes, regulations etc., and alleges the failure of the lessor to procure certificates
of occupancy from the building commission, the fire department, the health department, etc.
Demand was made for the completion of said building in all of the respects mentioned. The
letter analyzed and defined the provisions of the lease, demanded a preliminary title report,
outlined the matters to be contained therein, and called attention to the covenant of the lessors
not to permit mechanics' liens to be filed, etc.
permit mechanics' liens to be filed, etc. Attention was then called to the provision of the lease
that rental was to begin only upon completion of the building and was to cease on exercise of
option to purchase. Reference was then made in the letter to certain credits against the option
price of $417,000 and concludes: We have arranged for deposit of the option price with
Tannen Investment Company, 139 South Beverly Drive, Beverly Hills, California, and will be
prepared to deposit the option price in an escrow company to be mutually agreed upon,
located in Las Vegas, Nevada, or in California.
Thus the so-called election to purchase put in issue the very matters already in issue under
the pleadings in the pending suit in the district court. It is hardly conceivable that these issues
could be tried out in any other tribunal while such suit was pending. The letter was handed to
the lessors in the midst of one of the proceedings of that very action, namely, during the
taking of a deposition. It was by its very terms contingent upon the determination of the
issues already raised in the pending suit. The statement that the lessees will be prepared to
deposit the option price in an escrow company cannot be considered otherwise than as being
tied in to the contentions of the lessee Caplow that no rentals were due from September 10,
1954, to March 21, 1955; that no rentals would accrue after March 21, 1955; that the option
price would be reduced to the extent of all liens filed against the property and to the extent of
large sums of money as damages resulting from alleged breaches on the part of the lessors
and to the extent of an estimated $50,000 required to complete the building. These were all
contested matters, and the notice by lessee Caplow to the effect that I have elected to
exercise the option and that we will be prepared to deposit the option price under the
conditions mentioned and particularly in view of the finding of the court that lessors had
substantially completed the building and had delivered the premises on September 10, 1954,
cannot in law be considered an exercise of the option.
Judge William E. Orr, a former chief justice of this court, writing the opinion for the Court
of Appeals of the Ninth Circuit in United States v. Corder, 9 Cir., 208 F.2d 411, 413, cites
Estfan v. Hawks, supra, with approval, but the Corder case is also direct authority for the
proposition that under the conditions discussed above the so-called notice of election to
exercise the option was not such an unequivocal offer as to be effective. Judge Orr notes, in
the Corder case, that the government's notice was mere notice that the Government wished
to exercise its option (emphasis supplied) and a request that appellee advise it of the lowest
price appellee would accept for the property. * * * the Government never made an
unconditional offer to pay $75,000.00 for the property. It at all times insisted that it had the
right to deduct the alleged overpayment of three days rent. As a result of the failure to
exercise the option in accordance with its terms no bilateral contract for the purchase of the
property came into existence. To exercise an option the notice thereof must be unconditional
and in exact accord with the terms of the option.' (citing authorities) The Government was at
no time bound by its conditional acceptance of the option and appellee was not bound
because the option had not been exercised. The language used above is particularly
applicable here where appellants at no time unequivocally offered to purchase the property in
accordance with the terms of the option. They simply notified the lessors that they would be
prepared to deposit the option price with the escrow company, upon compliance by
respondents with many disputed conditions, some of which respondents contended they had
substantially performed and some of which they contended it was the duty of appellants to
perform. No bilateral contract came into existence. Assuming an offer by lessors (the granting
of an option to purchase) there was no acceptance by the lessees. The purported acceptance
was subject to many conditions which, as noted, were already in issue in the pending suit.
[Headnote 6]
(5) Appellants assert that there was a misjoinder of parties plaintiff, relying upon certain
sections of Nevada Compiled Laws, which have been superseded by N.R.C.P. They also refer
to authorities based upon the former practice. Plaintiffs named in the complaint were, Walter
R. Stutz Enterprises, a limited partnership, Walter R. Stutz and Louis Stutz. Appellants
assert that all of the exhibits and the testimony of plaintiff Walter R. Stutz show that the only
proper party plaintiff was Walter R. Stutz Enterprises, a limited partnership, and that neither
Walter R. Stutz, individually, nor Louis Stutz, individually, was shown to have any interest
entitling him to be joined as plaintiff. Rule 21 N.R.C.P. is now applicable to the alleged
misjoinder. It reads: Misjoinder of parties is not ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party or of its own initiative
at any stage of the action and on such terms as are just. * * * The record does not disclose
any motion in the premises in the trial court. The question is raised here for the first time. It is
not shown how the asserted misjoinder was prejudicial. The assignment is without merit.
Meyercheck v. Givens, 7 Cir., 180 F.2d 221.
[Headnote 7]
(6) Appellants contend that there was a nonjoinder of essential parties defendant. While a
motion to join additional parties defendant was made in the trial court, this motion was
withdrawn when the plaintiffs called the court's attention to their attempts to obtain through
depositions of the named defendants the names of other parties who might be interested with
them in the enterprise described, and the consistent refusal of such named defendants to
divulge the names of any persons who might be so interested. The separate counsel for
defendant Gershenhorn and for defendant Caplow conceded in open court that plaintiffs'
point was well taken, and the court denied the motion. Appellants do not deny that such was
the situation,
such was the situation, but appear now to contend that their waiver could not bind other
parties and that the court should have joined them of its own motion. No argument is
advanced in support of this contention, nor do appellants attempt to point out any prejudice
resulting either to the named defendants or to the other persons purportedly interested with
them in the enterprise. The cases cited by appellants in support of the assignment are not in
point, and we find no merit in the assignment.
[Headnote 8]
(7) Appellants next assert that there was a fatal variance between the pleadings and the
proof with reference to that part of the judgment ordering a cancellation of the $47,500
five-year noninterest bearing notes given the lessees by the lessors in evidence of moneys
advanced by the lessees to assist in the construction by the lessors. Appellants say that these
notes were not described in the complaint. However, the lease attached to the complaint as an
exhibit and expressly made a part thereof required the notes to be given and the complaint
alleged that of the required $60,000 loan required by the specific provision of the lease,
$47,500 had been advanced but that there had been a default in the advance of $12,500.
Defendants in their pleadings alleged their advance of $47,500 as a loan in accordance with
the terms of the lease, defendants Caplow and Gershenhorn both testified to the making of the
loan, and the matter of the notes was the subject of considerable examination, in which the
court itself joined. Accordingly, (a) the question of the notes was sufficiently raised by the
pleadings; and (b) the issue of the right to a cancellation of the notes was tried before the
court by consent of the parties and must in any event be treated in all respects as if it had been
raised in the pleadings. Rule 15(b) N.R.C.P. Nor does the lack of an amendment in the
premises affect the validity of the judgment. See Moore's Federal Practice, sec. 15.13,
commenting on this rule.
rule. See also Barron and Holtzoff, Federal Practice and Procedure, sec. 449. The assignment
is without merit. We have thus concluded that there is no merit in any of the assignments 1 to
7, inclusive. The next assignment, however, presents more difficulty.
[Headnote 9]
(8) We have noted that, in addition to adjudging a cancellation of the contract and
awarding restitution of the premises, the court rendered judgment against the lessees for
$100,000 past-due rentals, $75,000 excess costs of the structure under the terms of the
contract, $10,000 attorney fees and $50,000 additional damage. The $100,000 rental is based
upon the agreed $5,000 per month for twenty months. The item of $75,000 for excess
construction costs was arrived at by the court from oral and documentary evidence supporting
these costs in a considerably larger sum but limited by the provisions of the lease to $12 per
square foot, and finds ample substantiation in the record. The $10,000 attorney fee was
allowed under the provisions of the lease.
The judgment for $50,000 damages, however, apparently is based upon finding of fact No.
7, which reads in full as follows: 7. That defendants failed to keep the premises clear of
mechanics' or materialmen's liens, neither did they contest the same, nor did they satisfy
process levied against lessees' interest within ninety days or at all. That plaintiffs have been
damaged in that they had to defend at their own cost and expense numerous actions against
liens and process in which defendants here were named therein as defendants. (Emphasis
supplied.) Such finding patently does not of itself support a judgment for $50,000. If it does,
it might as well be said that it supports a judgment on such item for several times that
amount. The record does indeed contain much evidence concerning the filing of liens against
the premises by reason of labor and materials ordered by the lessees and for whose costs they
were responsible. The record further discloses the commencement of suits to foreclose such
liens asserted against the property of the lessors and in which suits the lessors were
named as defendants.
to foreclose such liens asserted against the property of the lessors and in which suits the
lessors were named as defendants. Restitution of the entire premises benefiting by the work
and labor involved in the lien suits was made to the lessors, and this included not only the
casino building constructed by them but the theater-restaurant building constructed (subject to
certain required completion) by the lessees. It is not indicated either by the court in its
findings, conclusions and judgment or in the briefs of the respondents that the lessors were
not made completely whole as a result of the judgment. Accordingly, the $50,000 judgment
and the finding on which it is based must look for support to evidence as to costs, expenses
and attorney fees incurred by the lessors in their defense of the said lien foreclosure suits. As
the briefs of the parties made no attempt to deal with this item we had the clerk instruct
counsel for respondents to point out any parts of the record supporting any damage by reason
of costs and expenses incurred by respondents in defending against the sundry lien
foreclosures. Respondents replied by listing the lien foreclosure suits filed, with the expressed
conclusion that this amply supports the sum of $50,000 allowed as damages. Of course, it
does nothing of the kind. Appellants properly point out in their response to respondent's letter
that there is no basis for the judgment of $50,000. We are satisfied that the judgment must
be modified by striking this item.
Other questions lurk in the record which have caused the court some concern but which
have not been properly presented for determination. Indeed, by reason of our desire to do
justice to the parties and because of the very substantial amounts involved, we have gone to
considerable length in attempting to define the issues presented despite obstacles and
difficulties growing out of the manner of their presentation. In the first place, appellants'
opening brief assigned as error variance between the pleadings and the proof, misjoinder of
parties plaintiff, nonjoinder of parties defendant, failure of the plaintiffs to prove a cause of
action because plaintiffs first breached the contract,
the plaintiffs to prove a cause of action because plaintiffs first breached the contract,
insufficiency of substantial completion, and failure of plaintiffs to comply with statutory
provisions having to do with unlawful detainer actions. It will have been noted from the
foregoing opinion that the court was able to dispose of these assignments without too great
difficulty. Appellants' reply brief (some four times as long as their opening brief) raised for
the first time the other questions above discussed. We ignored this as well as other failures to
comply with our rules and went so far as to request submission of further memoranda as
noted above. Orderly appellate procedure demands that at some point we must consider the
appeal finally submitted for our decision and we feel that such point has been reached in this
case. We do not choose, of our own motion, to add to the assignments of error issues which
to us may seem of importance but which counsel have not seen fit to present.
In concluding we find it necessary to define the manner in which our decision affects the
judgment. This was in its final effect as follows:
For rental.................................................................. $100,000
For excess costs of construction..................................75,000
For damages for costs of defending
lien suits............................................................ 50,000
Attorney fee allowed.................................................... 10,000
________
Gross judgment........................................................$235,000
Offset allowed by reason of moneys
advanced by defendants.................................... 47,500
________
Net judgment............................................................ $187,500
Modification by this court by
deducting item of.............................................. 50,000
________
Net judgment pursuant to
our modification..........................................$137,500
In order to make the offset effective the trial court ordered defendants to surrender to
plaintiffs the $47,500 five-year noninterest bearing notes.
ordered defendants to surrender to plaintiffs the $47,500 five-year noninterest bearing notes.
This order we leave undisturbed. Except as modified above, the judgment and order denying
new trial are affirmed. Appellants and respondents shall pay their own respective costs in this
court.
____________
On Petition for Rehearing
January 29, 1957 306 P.2d 121
After modification and affirmance of judgment appealed from, a petition for rehearing was
filed. The Supreme Court, Per Curiam, held that petition for rehearing should be confined to
statement of points upon which right to present argument and authority is sought and that
argument upon merits is out of place in such petition; and held that since the thirty-four page
petition filed herein was, in substance, a reargument of appeal, rehearing must be denied.
Petition denied.
(See 72 Nev. 293, 304 P.2d 395, for opinion on merits.)
Harry E. Claiborne, of Las Vegas, and Alvin Gershenson, of Chicago, Illinois, for
Appellants.
Morse, Graves & Compton, of Las Vegas, and W. Bruce Beckley, of Las Vegas, for
Respondents.
Appeal and Error.
Petition for rehearing should be confined to statement of points upon which right to
present argument and authority is sought, and argument upon merits is out of place in
such petition; and where thirty-four page petition was, in substance, a reargument of
appeal, rehearing would be denied.
OPINION
Per Curiam:
With increasing frequency counsel seem to be confusing the function of a petition for
rehearing with the rehearing itself. In this case a petition of 34 pages has been filed by the
appellants which, upon patient reading, is discovered to be in substance a reargument of the
appeal. For this reason, rehearing is denied.
We deem this an appropriate occasion to point out to the members of the bar that argument
upon the merits is out of place in a petition for rehearing. The petition asks leave to argue and
should, therefore, confine itself to a statement of the points upon which the right to present
argument and authority is sought. See Rehearing In American Appellate Courts, 44 Cal.
Law Review 627. At page 658 of the cited article it is stated (referring to the petition), It
should be brief and it should not be argumentative; it should point to the conflict created [by]
or the controlling' matter overlooked in the original decision. It should not be expected to
also serve the role of persuading the court how the conflict or error should be resolved. That
is the object of resubmission. The object of the petition is only to show that the petitioner is
entitled to a rehearing, not that he is entitled to a different decision on the merits.
____________
72 Nev. 314, 314 (1956) Kassabian v. Jones
Levon G. Kassabian, Appellant, v. Glen Jones and Bur-Wy, Inc., a Corporation, Respondents.
No. 3982
December 7, 1956 304 P.2d 962
Upon motion for order for deposit in Court pending appeal.
Action by landlord to terminate a lease. From adverse judgment, plaintiff appealed and
filed motion for an order directing tenant to make monthly deposits in court equivalent to
monthly rental fixed by lease. The Supreme Court held that requested order was not an order
appropriate to preserve the status quo or the effectiveness of judgment ultimately to be
entered within meaning of Rules of Civil Procedure, Rule 62(g).
Motion denied.
George Rudiak and Betty Aronow, Associate Attorneys, of Las Vegas, for Appellant.
George F. Marshall, of Las Vegas, for Respondent Glen Jones.
Hawkins and Cannon, of Las Vegas, for Respondent Bur-Wy, Inc.
Appeal and Error.
Requested order directing tenant to make monthly deposits in court equivalent to monthly rental fixed by
lease pending appeal from judgment adverse to landlord in his action to terminate lease was not an order
appropriate to preserve the status quo or the effectiveness of judgment ultimately to be entered within
meaning of rule of procedure preserving power of Supreme Court to make any order pending appeal
appropriate to such purpose. Rules of Civil Procedure, Rule 62(g).
72 Nev. 314, 315 (1956) Kassabian v. Jones
OPINION
Upon Motion for Order for Deposit in Court
Pending Appeal
Per Curiam:
This is upon motion for order of this court directing deposit in court by respondents of
certain sums pending the appeal in this matter. The order is sought under Rule 62(g) N.R.C.P.
which provides in part that the provisions of Rule 62 relating to stay of execution shall not
limit the power of this court pending appeal to make any order appropriate to preserve the
status quo or the effectiveness of the judgment subsequently to be entered. The motion is
opposed by respondents.
It appears from the record that the action is one in part to terminate a lease between
appellant and respondent Jones, which lease provides for the payment of monthly rental.
Appellant contends that in the alternative he is entitled to the rental fixed by the lease (should
respondents prevail here) or to equivalent sums as damages for use and occupancy (should
appellant prevail and the lease be terminated); that this court should, therefore, order such
sums deposited monthly during the pendency of this appeal and should in effect restore an
order for such deposits made by the trial court under Rule 67(2) during the pendency of these
proceedings before that court.
We do not regard such requested relief as relating to a preservation of the status quo. Save
as a provisional remedy in aid of collection of a money judgment such relief does not appear
to relate to the effectiveness of any judgment we might render. That the effectiveness of our
ultimate judgment might be defeated should we fail to act does not appear at all.
Motion denied.
____________
72 Nev. 316, 316 (1956) Deboer v. Fattor
HENRIETTA DEBOER, Appellant, v.
ERNEST FATTOR, Respondent.
No. 3930
December 12, 1956 304 P.2d 958
Department 3.
Personal injury action. The lower court entered summary judgment for defendant on
ground that plaintiff's action was not commenced within the two year limitation on an action
for damages caused by defendant's wrongful act. The plaintiff appealed. The Supreme Court,
Badt, J., held that issuance of a summons under Rules 3 and 4(a) of the Nevada Rules of
Civil Procedure required that the summons be delivered to a person authorized to serve it
before commencement of an action was effected.
Judgment affirmed.
Eather, J., dissented.
(Petition for rehearing denied February 7, 1957.)
John W. Barrett and John E. Gabrielli, both of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondent.
1. Limitation of Actions.
Where plaintiff's attorney received a summons from clerk of court but did not deliver it to the sheriff for
service until more than two years after personal injuries had been received, issuance of the summons was
not effected and personal injury action was not timely commenced. N.C.L.1929, sec. 8573, and sec. 8524
as amended St.1951, p. 247; Rules of Civil Procedure, Rules 3, 4(a).
2. Process.
Plaintiff's attorney was not authorized to make service of process.
3. Limitation of Actions.
An action is not commenced until the summons is placed in the hands of the sheriff or other person
authorized to serve it with the intention that it be served in due course. N.C.L. 1929, sec. 8573, and sec.
8524 as amended St.1951, p. 247; Rules of Civil Procedure, Rules 3, 4(a).
OPINION
This appeal presents for our determination the question whether plaintiff's action was
commenced within the statutory two-year limitation on an action for damages caused by the
defendant's wrongful act. Section 8524, N.C.L.1929, as amended, Stats. 1951, 247. In 1944
this court, construing sec. 8573, N.C.L., providing that civil actions are commenced by the
filing of a complaint with the clerk of the court, and the issuance of a summons thereon,
concluded that the word issuance' * * * means not only the act of signing the summons and
the placing of the seal thereon, but also delivery to the sheriff or other person qualified to
serve same, with the intent that said summons be served in due course. Woodstock v.
Whitaker, 62 Nev. 224, 146 P.2d 779, 780.
The personal injuries occurred May 22, 1952, and the cause of action would, accordingly,
be barred after May 22, 1954. The complaint was filed May 12, 1954, on which date the clerk
signed and sealed the summons and handed it to plaintiff's attorney, who in turn delivered it
to the sheriff for service August 9, 1954.
Appellant contends that the rule under sec. 8573 and applied in Woodstock v. Whitaker
has been superseded and changed by Rules 3 and 4(a) of the Nevada Rules of Civil Procedure
which became effective January 1, 1953. Respondent insists that the Rules of Civil Procedure
expressly adopt and require adherence to Woodstock v. Whitaker.
We turn to the rules and note first Rule 1: These rules govern the procedure in the district
courts in all suits of a civil nature * * *. They shall be construed to secure the just, speedy,
and inexpensive determination of every action. (Emphasis supplied.)
Chapter II is entitled in part Commencement of action; service of process, and Rule 3
thereunder is entitled Commencement of action and reads: A civil action is commenced
by filing a complaint with the court, and the issuance of a summons thereon."
action is commenced by filing a complaint with the court, and the issuance of a summons
thereon.
The notes of the Advisory Committee to the Supreme Court of Nevada, on Rules of Civil
Procedure, remark that the rules are modelled after, and numbered in accordance with, the
Federal Rules of Civil Procedure and comment on Rule 3 as follows: Rule 3.
Commencement of action. The federal rule is revised to add the requirement of issuance of
summons in order that an action be commenced. This preserves the present Nevada rule. Cf.
sec. 8573 N.C.L. 1929.
Rule 4. Process (a) Summons: Issuance. Upon the filing of the complaint the clerk shall
forthwith issue a summons and deliver it for service. Upon request of the plaintiff separate or
additional summons shall issue against any defendants.
The Advisory Committee's notes as to Rule 4(a) read: Summons: Issuance. The federal
rule is revised to delete the phrase providing that the summons shall be delivered to the
marshal or to a person specially appointed to serve it.' As at present, the summons may be
delivered to plaintiff's attorney or to whomever he designates.
The parties appear to be in accord on two things, first, that the Advisory Committee's notes
should be considered as an expression by this court, and, secondly, that the Committee's
reference to preserving the present Nevada rule means the rule as applied in Woodstock v.
Whitaker.
[Headnotes 1-3 incl.]
Appellant's contention is that, reading and considering Rules 3 and 4(a) together, Yudin v.
Carroll, 57 F.Supp. 793, we have the following result: A civil action is commenced by filing a
complaint with the court, the issuance of a summons thereon, and the delivery of the
summons by the clerk for service, which delivery may be made to the plaintiff's attorney or to
whomever he designates. As such was done on May 12, 1954, ten days before the running of
the statute of limitations in the instant case,
running of the statute of limitations in the instant case, the action was commenced within the
statutory limitation. Appellant submits further that if such be not clearly the case, then the
Advisory Committee's note, with regard to Rule 4(a), conflicts with its note regarding Rule 3;
that the matter is left in a state of uncertainty; that the situation is simply a trap for the
unwary; that this is illustrated and emphasized by the facts in the instant case in which
plaintiff's attorney, on May 12, 1954, the date of his receipt of summons from the clerk,
called on the sheriff with the summons, explained that the only address of the defendant
known to the plaintiff was a Reno post-office box number, and returned to his office with the
summons still in his possession; that if we should hold under Rules 3 and 4(a) and under
Woodstock v. Whitaker and under the Advisory Committee's notes that issuance of the
summons was thereby not effected and that the action had, accordingly, not been commenced,
we should be holding and adhering to the necessity of actual delivery to the sheriff for service
simply to satisfy a rule and not to accomplish service. Appellant argues that such conclusion
is unnecessary, unreasonable and unwarranted. The argument is not without appeal, but our
consideration of the provisions of sec. 8573, N.C.L.1929, the construction placed thereon by
this court in Woodstock v. Whitaker, thus establishing the rule in this state, and the clear
intention of N.R.C.P. to preserve that rule leave us with no other alternative than to hold that
a summons is not issued, and an action, accordingly, not commenced until the summons is
placed in the hands of the sheriff, or other person authorized to serve it,
1
with the intention
that it be served in due course. This conclusion results from a combination of factors. First,
the intention of N.R.C.P., as specifically stated by the Advisory Committee's notes, is to
preserve the present Nevada rule; second, such rule is the rule enunciated in Woodstock v.
Whitaker
____________________

1
Service may not be made by plaintiff's attorney, Nevada Cornell Silver Mines v. Hankins, 51 Nev. 420, 279
P. 27.
rule is the rule enunciated in Woodstock v. Whitakerthat issuance of summons requires
delivery to the sheriff or other person qualified to serve it with the intent that it be served in
due course; third, that delivery of summons for service is now expressly required by Rule 4(a)
2
; fourth, that, though it was contended in Woodstock v. Whitaker that the 1915 amendment
of sec. 8573 eliminated the requirement of delivery of summons to the sheriff for service,
which requirement was included in the 1911 statute, and that, therefore, such delivery was no
longer required, this court rejected the contention, holding that the provision as originally
contained in the 1911 statute was merely declaratory of the common law and that the
amendment did not repeal the common law rule, but left it more clearly in force.
We are of the opinion that the Nevada Rules of Civil Procedure imbed more firmly than
ever the rule enunciated in Woodstock v. Whitaker.
____________________

2
The possible dual sense of the word issue in Rule 4(a) may be unfortunate in view of the fact that our
entire decision turns upon the Woodstock definition of the meaning of the word issuance. This, however, does
not logically effect the result, as the picture made by the words is clear. It might seem that first to issue a
summons and then to deliver it for service is a contradiction in terms, if there is no issuance until it is actually
placed in the hands of the sheriff for such service. The clerk invariably signs and seals the summons and hands it
to plaintiff's attorney who places it in the hands of the sheriff (or other qualified person) for service. The rule
does indeed refer to such signing, sealing and delivery to plaintiff's attorney as issuing it. The Advisory
Committee's notes say: As at present, the summons may be delivered to plaintiff's attorney or to whomever he
designates. If issue has such a dual meaning under Rule 4(a), when considered in connection with Rule 3,
there is still no confusion in understanding the requirement that the clerk shall sign and seal the summons which
may then be placed in the hands of plaintiff's attorney, who, as under the former practice, will attach it to a copy
of the complaint, Rule 4(d). and hand it to the sheriff for service. Thereupon the summons is issued and the
action, accordingly, commenced.
Indeed, the use of the terms issue, issuing and cause to be issued, as used in N.C.L. sec. 8574 and as
compared with the use of the word issuance in sec. 8573, N.C.L., would seem to indicate a like dual use of the
term. Yet this court was not confused thereby in Woodstock v. Whitaker.
We must dispose of one further contention. Appellant contends that Woodstock v.
Whitaker definitely recognized two rules regarding the meaning of the term issuance, one,
as above stated, requiring the summons to be placed in the hands of one qualified to serve it
in order to complete issuance, and the other deeming issuance complete where delivery is
made to a party (emphasis supplied) with the intent that the summons be by him delivered to
some one authorized to serve it.
Such so-called second class of cases, and any reliance thereon, was entirely unnecessary
to the decision. The first positive holding that issuance included the necessary delivery to
the sheriff, or other qualified person, for service, followed by the repeated holding at the end
of the opinion that the action was commenced May 21, 1942, because that was the date the
summons was placed in the hands of the sheriff for service, definitely indicates the real
holding in the case. That the decision may be further fortified for other reasons does not, in
our opinion, weaken that holding.
3
The contention that the delivery of the signed and sealed
summons by the clerk to plaintiff's attorney constituted an issuance of the summons, and,
therefore, a commencement of the action, under the so-called second class of cases, is
rejected.
____________________

3
Of the 16 cases and one text cited by the court and followed by the statement that such cases may be
divided into two classes, one dealt with publication summons and one dealt with a dictionary definition and
may be put aside. Of the remaining cases ten held to the positive rule requiring delivery to the sheriff or other
qualified person for service. The other three permitted a slight variation, such as requiring delivery or that the
summons be put on way of delivery to the officer for purpose of service, or to some one for him or to some
one to give to an officer for the purpose of being served. The one text citation is to 37 C.J. 1055. Limitations of
Actions, sec. 481, where the rule is stated to be that the writ is not sued out until it is delivered, or put in course
of delivery, to a proper officer, with a bona fide intent to have the same served.Only one jurisdiction (Illinois)
is cited as holding delivery to the sheriff not to be requiredand that by a divided court. Schroeder v. Merchants
etc. Co., 104 Ill. 71.
As the action was commenced after the bar of the statute of limitations had become
effective, the order for summary judgment was proper.
Judgment affirmed.
Merrill, C. J., concurring:
I concur, but under the circumstances of this case, feel that an apologetic footnote might
well be added.
In the light of the explanatory note to Rule 4(a) N.R.C.P., that rule would seem to me to be
wholly inconsistent with Woodstock v. Whitaker, appearing to provide that delivery to an
attorney for a party may constitute effective delivery for service. It may, then, be contended
that we are saying to those who attempt to follow our Rules of Civil Procedure, Do not do
what we say. Rather, do what we meant to say. It may be a pertinent inquiry whether we
have not, through our Rules of Civil Procedure, laid a trap for the trusting attorney.
However, should such an attorney do what we say (that is follow N.R.C.P. without
regard to the explanatory notes) he would not be misled. Rule 3 must still be read in the light
of Woodstock v. Whitaker. Rule 4(a) would not necessarily be inconsistent. It is only when
one turns to the notes that the inconsistency of Rule 4(a) with Woodstock v. Whitaker
becomes apparent. However, those very notes demonstrate clearly the intent that Woodstock
v. Whitakerthe present Nevada rulebe continued in effect.
Rule 4(a) it is true in the light of the notes is unfortunately expressed with resultant
confusion and inconsistency but it can hardly in good sense be construed to repeal the very
rule which so clearly we intended to preserve.
Failure to comply with the rule of Woodstock v. Whitaker cannot, then, be attributed to the
language in which Rule 4(a) or its explanatory note is expressed. It can only be attributed to
unawareness that the rule of that case was the present Nevada rule.
We cannot, of course, condone a disregard of our case law nor be persuaded into a
change of rule solely through sympathy with those who may have overlooked it in a
particular case.
law nor be persuaded into a change of rule solely through sympathy with those who may have
overlooked it in a particular case. Moreover, I feel it doubtful that change of rule should be by
court decision where such rule has expressly or by clear implication found its way into
N.R.C.P. and modification with notice is available by the method we have there prescribed.
Eather, J., dissenting:
I dissent. I would hold that suit had been commenced within the statutory period; that
summary judgment should be set aside and the matter remanded for further proceedings.
As was recently stated in Lewis v. Neblett, ...Cal. App.2d..., 302 P.2d 859, 863, Statutes
of limitation are intended to run against those who are neglectful of their rights, and who fail
to use reasonable and proper diligence in the enforcement thereof'. (Citing Neff v. New York
Life Insurance Co., 30 Cal.2d. 165, 180 P.2d 900, 171 A.L.R. 563.)
In the case at bar it cannot be said that appellant has been neglectful of his rights or failed
to use reasonable or proper diligence. On the contrary, as concerns service of process, the
record demonstrates the utmost good faith in attempts to make prompt service. After
receiving summons from the clerk, appellant's counsel (1) conferred with the sheriff with
reference to service and did not deliver summons to the sheriff for the reason that counsel did
not know where the defendant might be served; (2) checked the Reno police department
report of the collision out of which the cause of action arose; (3) made further inquiry at the
Reno police station as to the address or whereabouts of the defendant; (4) checked the records
of the safety responsibility division of the Nevada Public Service Commission; (5) checked
the Reno telephone directory; (6) checked the Reno city directory; (7) made inquiry from the
defendant's attorney; (8) when the defendant's whereabouts were learned, accomplished
service forthwith.
All that precludes recognition of this diligence is the rule, announced by this court in
Nevada Cornell Silver Mines, Inc. v. Hankins, 51 Nev. 420, 279 P. 27, 32, to the effect that
the attorney for the plaintiff is not a person authorized to make service of process. This court
was divided in that case, Mr. Justice Ducker dissenting from the majority opinion. In his
dissenting opinion he emphasized that the applicable section of the civil practice act made no
prohibition against service of process by counsel; that such prohibition must be found in the
common law. He referred to First National Bank of Whitewater v. Estenson, 68 Minn. 28, 70
N.W. 775, stating, The court pointed out that the same reasons of public policy which
moved the legislature to deny such authority to a party to an action do not apply to the same
extent to an attorney who is an officer of the court, and answerable to it for fraud or
misconduct in the premises.
It is my opinion that the majority of this court in that case was in error and that such error
should now be corrected and the dissenting opinion recognized to be the rule of this state.
In the case at bar, delivery of summons to the attorney for the plaintiff should be held to
constitute effective delivery to a person authorized to make service and thus complete the
requirement of issuance of summons under Woodstock v. Whitaker.
____________
72 Nev. 325, 325 (1956) Gabler v. Gabler
WERNER K. GABLER, Appellant, v.
DOROTHY I. GABLER, Respondent.
No. 3923
December 14, 1956 304 P.2d 404
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge,
Department No. 1.
Divorce action by wife on ground of extreme cruelty, mental in character. Husband
charged wife with adultery and asked that the divorce be denied. The lower court entered
decree for wife, and husband appealed. The Supreme Court, Merrill, C. J., held that evidence,
which revealed that wife had been guilty of adultery, was not sufficient to sustain trial court's
determination that husband had been the party greater in matrimonial fault.
(Petition for rehearing denied January 25, 1957.)
Jack Streeter, of Reno, for Appellant.
Vargas, Dillon & Bartlett, of Reno, for Respondent.
1. Divorce.
Under the rule of comparative rectitude, it cannot be said that adultery must, per se, be held a graver
matrimonial delict than cruelty, but the degree of fault in each party must be determined under the facts of
the particular case. N.C.L.1931-1941 Supp., sec. 9467.01.
2. Divorce.
In divorce action by wife on ground of extreme cruelty, mental in character, wherein husband charged
wife with adultery, evidence which revealed that wife had been guilty of adultery, was not sufficient to
sustain trial court's determination that husband had been the party greater in matrimonial fault.
N.C.L.1931-1941 Supp., sec. 9467.01.
OPINION
This is an action for divorce. The husband has appealed from a decree in favor of the wife,
granting her a divorce and custody of the minor child of the parties,
her a divorce and custody of the minor child of the parties, together with an allowance for
child support. The sole question which we reach in this opinion is whether, under our rule of
comparative rectitude, it was available to the trial court upon the record to award a decree of
divorce to the wife as the party less at fault. Sec. 9467.01, N.C.L., 1931-1941 Supp., provides
as follows: In any action for divorce when it shall appear to the court 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.
The wife charged the husband with extreme cruelty, mental in character. The husband
charged the wife with adultery and asked that the divorce be denied. As to both charges the
proof was confined to the testimony of the wife and is undisputed. Upon cross examination
she admitted that commencing in 1954, eight years after marriage and one year prior to suit,
she had engaged in acts of adultery with a specified married person, father of two children.
[Headnote 1]
It cannot be said today that for historical, moral or ecclesiastical reasons, adultery must,
per se, be held a graver matrimonial delict than cruelty. The degree of fault in each party must
be determined under the facts of the particular case.
In the case at bar it may be noted that the wife's infidelity was not an isolated or
spontaneous instance. While her examination was lacking in detail, it gives rise to an
implication, unrebutted, that the adultery amounted to or approached a deliberate course of
conduct.
The wife's testimony with reference to her husband's acts of extreme cruelty is brief and
we quote it in full.
Q. Mrs. Gabler, can you describe for us the conduct on the part of your husband which
you stated constituted extreme cruelty.
A. Shortly after we were married, approximately a year and a half, I felt that something
was wrong with our marriage, and I couldn't quite figure out what it was; and I tried to talk to
Werner about it, and he just laughed and said that there was nothing wrong, and I wasn't busy
enough, I should get a job or do something to keep me busy. I tried all those things; I worked
in his office for him, and continuously tried to talk to him, and he refused all the time, and it
just went on like that for years.
I also felt that perhaps if we were able to have children it would alleviate the matter,
although we didn't have any until we were married four years; and when Audrey was born he
didn't seem interested in her very much, or me. His business seemed to be the only thing that
really meant very much to him. I was something pretty to look at and to entertain his friends,
he had a nice little daughter, and that's about all I seemed to mean to him.
Then as the years went on, I felt that he sexually was not interested in me at all, and I
worried about this, too; and all the time every effort I made to talk to him I just couldn't get
through to him; and he would say, Well, that's silly'; he'd laugh at me, and then the moment
would pass again.
Then during our married life Werner bought a dog, an English Pitt Bull Terrier, which is
a very strong, very nervous type dog. He imported it from England. And I was in deathly fear
of this dog all the time. He became very attached to Werner, and whenever Werner was out of
the house I couldn't control him. Our friends were all frightened of him; whenever anyone
came around we had to lock the dog up. And three times when Werner was away I had to put
Minor in a kennel because I was afraid he was going to bite me or Audrey or some of our
friends. And when I tried to talk to him about this, he absolutely couldn't understand what I
meant. He said, Well, you don't give the dog enough love, enough attention.' I just couldn't
cope with this dog and manage the house and Audrey and work in his office and everything
all at the same time.
house and Audrey and work in his office and everything all at the same time. This went on for
about two and a half, nearly three years, and finally the dog bit our maid; and Werner then
finally thought, I suppose, it was time to get rid of him, and he finally sold him.
I also felt that there was something lacking in Werner's and my married life with regard to
religion. He always belittled everything I thought about it. I felt that we should go to church
and, seeing as we had a little girl, we should bring her up to believe in God, things like that,
and he just wouldn't even talk to me about it. It was one of those things that would come up,
just as I always tried to talk to him, he just laughed at me.
Q. Now, did this refusal to talk to you, did that cause you to feel extremely frustrated?
A. Well, completely. I just felt that it was a very important part in our married life that we
couldn't get to, and the fact that he wouldn't talk to me was to me the frustrating part of it.
Q. And how did it affect your health, Mrs. Gabler, with reference to being nervous or
upset?
A. Well, I realized, particularly after Audrey was born, that I became very nervous all the
time, and hated to be alone; and I went to the doctor, and I said, This is silly; is there
something wrong with me? I'm afraid to stay alone in the house and things like that.'
And I always had a cold, felt miserable all the time, and became in such a state,
apparently, that I got pneumonia three times. The doctor told me I should leave Audrey and
Werner and the house and go away for a rest somewhere, but it wasn't possible, we had work
to do at the office, and I just had to stay around and look after things.
Q. Do you believe that that health problem was caused by his conduct in not being
willing or able to discuss these matters with you?
A. Yes, I do.
Q. And particularly with reference to the baby's
the time Audrey was born, was there anything that happened then that caused difficulty?
A. Well, I had felt that maybe a child would be the thing that Werner and I needed to
keep us together; and then when she was born, I looked forward to it so much, and expected
that Werner did, too; but the night she was born he wasn't at the hospital even, and the doctor
couldn't find him to tell him that he had a small daughter. He apparently was out with friends
of ours drinking. And then when I came home from the hospital I found the house full of
empty glasses, and, well, all the signs of a party the night before, which he told me he had
had. I felt that it meant so much to us, this childWell, it just didn't seem right to me. I was
very hurt and upset by that, althoughthat's about all I have to say about that.
Without disregarding the specified instances of inconsiderate action, the gravamen of the
husband's offense that which the wife believed to have caused her feeling of frustration and
to have affected her healthwas his refusal to discuss with her certain matters which
troubled her.
On examination of this testimony we note that while the wife felt that something was
wrong with the marriage, she does not charge her husband with fault in this respect for she
could not herself figure out what it was that was wrong. Even at the time of trial she
apparently had not solved this problem sufficiently to specify it. While she felt that her
husband had lost interest in her sexually and otherwise, we do not know the facts upon which
this feeling was based or whether, in the face of her husband's laughing denial, it was at all
reasonable. The husband's fault apparently lay in his refusal to aid his wife in her inquiry, he
apparently being of the belief that if you yourself see nothing wrong with your marriage there
is little profit or point in searching out sources of trouble.
[Headnote 2]
Appellant husband contends that this proof is insufficient to establish grounds for divorce,
even in the absence of recrimination. Our problem, however, is more simply resolved. We
conclude only that such casual and scanty proof wholly fails to provide any support
whatsoever for a determination by the trial court that the husband in this case is the party
greater in matrimonial fault.
Reversed and remanded with instructions that judgment be entered for the defendant in
accordance with the prayer of his answer. No costs are allowed.
____________
72 Nev. 330, 330 (1956) Bryant v. State
PATRICIA ANN BRYANT, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 3892
December 17, 1956 305 P.2d 360
Department No. 3.
Defendant was convicted of involuntary manslaughter. The lower court entered judgment,
and defendant appealed. The Supreme Court, Merrill, C. J., held that, in denying challenge of
one juror for bias in involuntary manslaughter prosecution, trial court could not accept juror's
final declaration that she could act fairly and impartially notwithstanding her previously
formed opinion as to defendant's guilt or innocence and render of no significance her earlier,
spontaneous, and emphatic confession of bias, and, therefore, it was error to reject the
challenge of such juror for cause.
Samuel S. Lionel, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; George M. Dickerson, District
Attorney, Clark County, of Las Vegas; Gordon L. Hawkins and Arthur Olsen, Deputy District
Attorneys, Clark County, of Las Vegas, for Respondent.
1. Jury.
In denying challenge of one juror for bias in involuntary manslaughter prosecution, trial court could not
accept juror's final declaration, elicited by district attorney's leading question, that she could act fairly and
impartially notwithstanding her previously formed opinion as to defendant's guilt or innocence and render
of no significance her earlier, spontaneous and emphatic confession of bias, and therefore it was error to
reject the challenge of such juror for cause. N.C.L.1929, secs. 10946, 10948.
2. Jury.
Condition of juror's mind should be determined from the whole of his examination, and doubts should be
resolved in favor of the accused, as in other matters, to the end that he be tried by twelve fair and unbiased
men. N.C.L.1929, secs. 10946, 10948.
3. Jury.
Existing opinion, by a person called as a juror, of guilt or innocence of defendant charged with crime, is
prima facie a disqualification, but it is not a conclusive objection, provided the juror makes the required
declaration and the court, as judge of the fact, is satisfied that such opinion will not influence juror's action,
but the declaration must be unequivocal, not qualified or conditional. N.C.L.1929, sec. 10948.
4. Criminal Law.
Fact that juror, whom defendant had unsuccessfully challenged for cause, was thereafter peremptorily
challenged by defendant would not eliminate any prejudice which might have resulted from court's error in
disallowing the challenge for cause in view of fact that defendant exhausted her peremptory challenges and
therefore was unable to remove from jury another juror whom defendant had unsuccessfully attempted to
challenge for cause. N.C.L.1929, secs. 10946, 10948.
5. Criminal Law; Jury.
Where no objection was made to form of challenge of juror for cause, and thereafter both judge and
district attorney examined juror upon nature of her opinion, and the examination related to that one ground
of challenge and clearly demonstrated that no one misunderstood the basis for the challenge, the challenge
of the juror for cause, implied bias, in conjunction with and in light of the examination, constituted a
sufficient allegation to make known the specific ground of challenge, and therefore was sufficient to permit
consideration of the question of the cause by the Supreme Court on appeal. N.C.L.1929, secs. 10946,
10948.
OPINION
This is an appeal from judgment of conviction of the crime of involuntary manslaughter.
The only question we reach in this opinion is whether the trial court erred in denying a
challenge of one of the jurors for bias.
Sec. 10946, N.C.L.1929, defines implied bias, in part, as having formed or expressed an
unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.
Sec. 10948, N.C.L.1929, with reference to such implied bias, provides but no person shall be
disqualified as a juror by reason of having formed or expressed an opinion upon the matter or
cause to be submitted to such jury founded upon public rumor, statements in public press or
common notoriety provided it appears to the court upon his declaration under oath, or
otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly
upon the matters submitted to him.
In examining the juror in question, a Mrs. Walker, the defendant's counsel brought out the
fact that she had already formed an opinion as to the guilt or innocence of the defendant.
Counsel then asked, And can you impartially and fairly judge this case by reason of those
opinions which you now have? Mrs. Walker replied, I suppose, yes. I don't think I could,
either, the way I feel like I do about it. The challenge was then interposed.
This was followed by examination of the juror by the trial judge and district attorney from
which examination it appeared that her opinion was based upon what she had read in the
newspapers and assumed the truth of what she had read and would be set aside if the evidence
justified; that if, upon conclusion of the trial, the court instructed her to determine guilt or
innocence from the evidence presented, she would follow the court's instructions. In
conclusion the district attorney asked, And if the facts are presented in this courtroom
under oath by witnesses
the facts are presented in this courtroom under oath by witnesses * * * [and are] different
from what you read in the newspapers would you set aside your opinion based upon the
newspaper and decide it fairly and impartially; that you will act fairly and impartially upon
the matters submitted to you regardless of your opinion now? Mrs. Walker answered, Yes.
Thus she ultimately did declare that she could act fairly and impartially notwithstanding her
opinion.
[Headnote 1]
Could the court, under sec. 10948, accept this final declaration as superseding and
rendering of no significance the earlier, spontaneous and emphatic confession of bias? In our
opinion it could not.
This court in many cases has dealt with the problem of a juror's qualification to act
notwithstanding the existence of an opinion as to the defendant's guilt or innocence. In many
cases it has upheld the trial court's determination that the juror could and would act
impartially notwithstanding such opinion. State v. Lewis, 50 Nev. 212, 255 P. 1002; State v.
Milosovich, 42 Nev. 263, 175 P. 139; State v. Salgado, 38 Nev. 64, 413, 149 P. 919 and 150
P. 764; State v. Casey, 34 Nev. 154, 117 P. 5; State v. Simas, 25 Nev. 432, 62 P. 242; State v.
Millain, 3 Nev. 409. In none of these cases, however, did the juror express doubt as to his
ability to act impartially. On the contrary, in each case he stated unequivocally and without
self-contradiction that notwithstanding his opinion he could act impartially.
[Headnote 2]
The condition of the juror's mind should be determined from the whole of his
examination and doubts should be resolved in favor of the accused, as in other matters, to the
end that he be tried by twelve fair and unbiased men. State v. Williams, 28 Nev. 395, 409,
82 P. 353, 354. To the same effect: State v. Casey, supra; State v. Buralli, 27 Nev. 41, 71 P.
532.
The nature of an unqualified opinion, as that term is used in law, may well require
explanation to a lay mind and an examination into the nature of a juror's opinion is
anticipated under sec. 10948. However, such terms as fairness and impartiality are not
peculiar to a lawyer's lexicon. A layman should be able without instruction to ascertain the
state of his own mind in relation to the existence of such qualities. The inquiry demands no
peculiar knowledge but only an honest search of conscience.
In this case the examination by the court and district attorney did not serve simply to
explain the nature of the opinion held. In the absence of any other apparent explanation it
actually seems to have persuaded the juror to change her mind as to the fact of her lack of
impartiality. In State v. McNeil, 53 Nev. 428, 440, 4 P.2d 889, 892, this court stated, It may
be true that on cross-examination his answers tended to contradict his previous statements but
we believe that his very self-contradictions do not increase his fitness as a juryman.
[Headnote 3]
With reference to the juror's declaration as contemplated by sec. 10948, we approve the
statement of the New York Court of Appeals in People v. McQuade, 110 N.Y. 284, 18 N.E.
156, 162, 1 L.R.A. 273. Now, as formerly, an existing opinion, by a person called as a juror,
of the guilt or innocence of a defendant charged with crime, is prima facie a disqualification;
but it is not now, as before, a conclusive objection, provided the juror makes the declaration
specified, and the court, as judge of the fact, is satisfied that such opinion will not influence
his action. But the declaration must be unequivocal. It does not satisfy the requirement of the
statute if the declaration is qualified or conditional. It is not enough to be able to point to
detached language which, alone considered, would seem to meet the statute requirement, if,
on construing the whole declaration together, it is apparent that the juror is not able to express
an absolute belief that his opinion will not influence his verdict.
absolute belief that his opinion will not influence his verdict. * * * Fairly construed, their
declaration of their belief that they could render an impartial verdict was qualified by a doubt,
and was not sure and absolute. The defendant was at least entitled to a certain and
unequivocal declaration of their belief that they could decide the case uninfluenced by their
previous opinions.
It is our view that in the case before us the declaration of the juror, Mrs. Walker, was at
best qualified by doubt as to her ability to act fairly and impartially. We conclude that it was
error to reject the challenge of that juror for cause.
[Headnote 4]
Mrs. Walker was thereafter peremptorily challenged by the defendant. The state contends
that this eliminates any prejudice which may have resulted from the court's error in
disallowing the challenge for cause. The defendant, however, exhausted her peremptory
challenges and there still remained upon the jury a juror whom the defendant had
unsuccessfully attempted to challenge for cause. Had the challenge to Mrs. Walker been
allowed for cause, a peremptory challenge would have remained to the defendant by means of
which the objectionable juror might have been removed from the jury. This is sufficient to
establish prejudice. See: State v. Raymond, 11 Nev. 98; Fleeson v. Savage Silver Mining
Company, 3 Nev. 157.
The State contends that the challenge of Mrs. Walker was not sufficiently stated to permit
consideration of the question of cause by this court. Appellant's challenge of the juror was as
follows: At this time the defendant will challenge this juror for cause, implied bias.
Sec. 10948, N.C.L.1929, provides In a challenge for implied bias one or more of the
causes stated in [sec. 10946] must be alleged. Eleven causes are set forth in sec. 10946. This
court has frequently held that a simple challenge for cause or for implied bias is
insufficient under sec. 10948. State v. Squaires, 2 Nev. 226; State v. Chapman,
Chapman, 6 Nev. 320; State v. Vaughan, 22 Nev. 285, 39 P. 733; State v. Simas, supra; State
v. Salgado supra; see State v. Gray, 19 Nev. 212, 8 P. 456. As stated in State v. Squaires,
supra, 2 Nev. 226, 231, When a challenge is interposed in general terms, as in this case, how
is the Court to know the ground of challenge? * * * To enable the court to act
understandingly, it is necessary to state the particular grounds of the challenge. If that be not
done, the appellate court cannot determine whether it was properly disallowed or not.
Such we construe to be the reason for the statutory rule. State v. Chapman and State v.
Vaughan are entirely consistent with such construction. In neither case does it appear that the
cause for challenge was made known to the court.
In State v. Simas and State v. Salgado, however, this court applied the rule to a situation
where the examination of the juror had demonstrated beyond question the specific ground
upon which the challenge was based. In both cases concurring opinions criticize the majority
opinion in this respect and in State v. Salgado, Norcross, J. dissented from that portion of the
opinion stating (38 Nev. 64, 77, 145 P. 919, 924) The right of the defendant to be tried by a
fair and impartial jury ought not to turn on the mere technical form of the objection where the
form of the challenge was not questioned by the court or opposing counsel and where the
course of the examination of the juror indicated that a proper challenge was assumed to have
been made. In State v. Raymond, supra, where objection was made under the statute that the
specific cause had not been alleged in the making of the challenge, this court, nevertheless,
undertook to examine the question of cause stating, We have concluded to waive this
preliminary objection and examine the question upon its merits. The same practice was
followed in State v. Lewis, supra.
[Headnote 5]
In the case at bar, not only was no objection to the form of challenge made, but following
the challenge both the judge and the district attorney examined the juror upon the nature
of her opinion.
the judge and the district attorney examined the juror upon the nature of her opinion. The
entire examination of the juror related to that one ground of challenge and clearly
demonstrates that no one misunderstood the basis for the challenge. Under these
circumstances we conclude that the challenge of the juror in conjunction with and in the light
of the examination of the juror constituted a sufficient allegation to make known the specific
ground of challenge. State v. Simas and State v. Salgado, insofar as the opinions in those
cases are opposed to that here expressed, are overruled.
____________
72 Nev. 337, 337 (1956) Universal C.I.T. Credit Corp. v. Wagner
UNIVERSAL C.I.T. CREDIT CORPORATION, a Foreign Corporation, Appellant, v. J. H.
WAGNER, dba WAGNER MOTOR CO., Respondent.
No. 3934
December 19, 1956 305 P.2d 363
Department No. 3.
Action by buyer to determine ownership of automobile purchased in Nevada from owner
possessing Kentucky registration certificate and bill of sale stamped paid by Kentucky
dealer who had previously assigned conditional sales contract to finance company. From an
adverse judgment of the lower court, the finance company appealed. The Supreme Court,
Eather, J., held that the conditional sales contract recorded in Kentucky was valid notice of
the lien of the finance company which was not estopped from asserting its lien against the
buyer and that buyer purchased only the seller's equity.
(Petition for rehearing denied February 8, 1957.)
Zenoff, Magleby and Manzonie, of Las Vegas, for Appellant.
Bonner and Rittenhouse, of Las Vegas, for Respondent.
1. Sales.
Automobile conditional sales contract properly recorded in accordance with laws of Kentucky is notice to
the world of the validity of the lien or title of the holder even if automobile is taken into another state.
2. Estoppel.
Where automobile buyer admitted knowledge that any liens against automobile would be filed in
Kentucky and paid only part of purchase price pending a search for liens, finance company was not
estopped from asserting its lien or title under a conditional sales contract recorded in Kentucky on claim
that buyer relied on Kentucky registration and dealer's bill of sale stamped paid in possession of seller.
3. Estoppel.
Where Kentucky automobile dealer assigned conditional sales contract to finance company but gave
automobile buyer a bill of sale stamped paid after the contract had been recorded, finance company was
not estopped from asserting its lien against buyer's vendee on claim finance company was negligent in
allowing buyer to have bill of sale in possession, in absence of evidence that finance company had either
the opportunity or duty to notify buyer's vendee that lien existed.
4. Estoppel.
When a failure to act or a silent standing by is relied upon to create an estoppel, the same must occur
under such circumstances that there is not only an opportunity, but also an apparent duty to act or speak.
5. Sales.
Nevada buyer of automobile on which finance company held conditional sales contract properly recorded
in Kentucky purchased only the equity of the seller with title remaining in the finance company.
OPINION
Action to determine ownership of automobile.
Wagner, respondent herein, the local purchaser of the car, sued the finance company to
whom the foreign dealer had assigned the conditional sales contract.
had assigned the conditional sales contract. Judgment was rendered for plaintiff, and
defendant appeals. Neither the foreign dealer nor the person to whom he sold the car was a
party to the action.
September 13, 1954, Purdy Motors, Inc., of Frankfort, Kentucky, sold the car to one
Morrison, on a title retaining conditional sales contract, for $3,978.88, with $1,100 paid down
by cash or trade-in, leaving a balance of $2,978.88. Embodied in the contract itself is
assignment to Universal C.I.T. Credit Corporation, appellant herein, reciting that all payments
must be made to such assignee and that Purdy was not an agent of C.I.T.
September 18, 1954, this contract was duly filed per Kentucky law in the county clerk's
office.
September 20, 1954, two days after such filing, Purdy, without knowledge of C.I.T., gave
Morrison a bill of sale of the car stamped Paid.
January 4, 1955, the deputy clerk in Kentucky issued what appears to be a 1955 transfer
and registration certificate showing transfer from Purdy Motors to Morrison of the car in
question. The form of such certificate contains no place for entry of any showing of the
holder of any lien against the vehicle or of any person holding legal title or other claim.
Apparently the Nevada form of official certificate indicating such outstanding claim, lien or
ownership is not used in Kentucky, and nothing in the record suggests any requirement for
such indication.
Armed with such certificate and with Purdy's bill of sale marked Paid, Morrison came to
Las Vegas on March 6, 1955 and arranged to sell the car to Wagner for $1,850. He certified
that there were no liens against the car and exhibited his operator's license. Wagner paid him
$1,200 down and on the same date wrote airmail to the county clerk at Frankfort, Kentucky,
requesting a rush airmail reply in enclosed envelope concerning the existence of any liens,
etc. He testified: I knew if there were any liens it had to be filed in the county where he
resided, so I wrote the letter to the county clerk at Frankfort, Kentucky * * *. Two days later,
March 8, he phoned the county clerk at Frankfort,
phoned the county clerk at Frankfort, who advised that the records were being checked, and
that afternoon he received a wire advising there was a $2,000 unpaid mortgage against the
car. He wired for further details, which he then received.
The court found: 7. That the vendor (Purdy Motors) and the defendant (C.I.T., the
assignee) were jointly and severally negligent in the handling of said sale through which
negligence the plaintiff herein (Wagner) was led to believe the said automobile was free and
clear of encumbrances. 8. That the vendor's negligence is chargeable to and against vendor's
assignee. As a conclusion the court found that the defendant is estopped from asserting the
lien against plaintiff to the extent plaintiff was induced to part with money as part payment of
said automobile, and that plaintiff was entitled to the automobile upon payment to defendant
of $650 or, in the alternative, that defendant might have the automobile upon payment to
plaintiff of the $1,200 plus $434.78, costs, damage, expense and attorney fees.
It would seem that the court's finding is based entirely upon the conception that after Purdy
assigned its title retaining contract to C.I.T. and after C.I.T. had recorded the same in
accordance with Kentucky law, Purdy could thereafter, by its independent and unilateral act,
in which C.I.T. did not join and of which it had no notice or knowledge of any kind, affect
C.I.T.'s legal rights, claims to ownership, etc.
This appears to have followed plaintiff's brief in the district court which asserted that
C.I.T. was estopped because of its own negligence in allowing Morrison to have possession
of a bill of sale (executed by Purdy Motors) showing no liens except to vendor and marked
paid by vendor. In his briefs and oral argument in this court, respondent enlarges upon this
contention by the assertion that C.I.T.'s negligence in permitting Purdy to give Morrison a bill
of sale marked Paid estopped C.I.T. from asserting its rights under its assigned title
retaining contract.
retaining contract. Respondent has made no suggestion as to how appellant could have
accomplished this.
[Headnote 1]
1. The validity of respondent's lien or its title under the assigned title retaining contract,
admittedly properly recorded in accordance with the laws of Kentucky, was notice thereof to
the world, even though the car was taken into another state. Vincent v. General Motors
Acceptance Corporation (Fla.1954), 75 So.2d. 778; Ashland Finance Company v. Mollet
(Ky.1934), 252 Ky. 491, 67 S.W.2d 717; Finance Service Co. v. Kelly (Mo.App. 1921), 235
S.W. 146; Anno. in 13 A.L.R. 2d series, 1312, 1329.
[Headnote 2]
2. As against respondent's claim of estoppel, there is absent the element that Wagner, in
making the $1,200 payment, relied upon the documents submitted by Morrison. Wagner
frankly admits that he knew that any liens against the title would be on file at Frankfort,
Kentucky, and he, accordingly, wrote the county clerk there. He apparently concluded that he
would not make the remaining payment of $650 to Morrison until he found that there were no
liens recorded, but was willing to take his chances in making the first payment of $1,200. In
doing this, he relied upon Morrison's assurance and on Purdy's bill of sale marked Paid.
Purdy could well have been paid for the car with proceeds of a loan or other financing method
whereunder a third person, in this case C.I.T., obtained a valid lien. Wagner evidenced a
knowledge of such possible situation.
[Headnotes 3, 4]
3. That there is an equitable estoppel against C.I.T.'s assertion of its lien because it was
negligent in allowing Morrison to have possession of a bill of sale showing no liens except
to vendor and marked paid by vendor is entirely without support. When a failure to act or a
silent standing by is relied upon to create an estoppel, the same must occur under such
circumstances that there is not only an opportunity, but also an apparent duty to act or
speak.
the same must occur under such circumstances that there is not only an opportunity, but also
an apparent duty to act or speak. Finance Service Corporation v. Kelly (Mo. App.1921), 235
S.W. 146; Anno. in 13 A.L.R.2d 1312, 1329. There is an entire absence of showing of such
opportunity or duty.
[Headnote 5]
Respondent has succeeded to Morrison's equity in the automobile. Subject only to such
equity, title to the automobile remains in appellant.
The judgment is reversed with costs, and the case remanded to the district court with
instructions to enter judgment for defendant accordingly.
____________

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