Nevada Reports 1961 (77 Nev.) PDF

77 Nev.
1, 1 (1961)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 77
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77 Nev. 1, 1 (1961) Giorgi v. Giorgi
NANCY E. GIORGI, Appellant, v.
GINO G. GIORGI, Respondent
No. 4307
January 5, 1961 358 P.2d 115
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge.
Divorce action. The trial court granted divorce to wife, and wife appealed from that part of
judgment awarding husband $8,656.59 out of proceeds of sale of dwelling house which
husband and wife owned as joint tenants. The Supreme Court, Pike, J., held that evidence
disclosed that husband had contributed no more than $6,000 of his separate property to cost
of purchasing and remodeling house.
Affirmed as modified.
Lohse & Fry, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey & Thompson, of Reno, for Respondent.
1. Divorce; Husband and Wife.
Uncontradicted evidence that wife had agreed that, in event of divorce, she wished to receive no part of
property owned by husband before marriage overcame presumption that husband made a gift to
wife or to joint tenancy of his contribution of his separate property to purchase of
dwelling house which husband and wife took as joint tenants, and trial court did not
exceed its jurisdiction when it attempted, in divorce decree, to restore such separate
property to husband.
husband made a gift to wife or to joint tenancy of his contribution of his separate property to purchase of
dwelling house which husband and wife took as joint tenants, and trial court did not exceed its jurisdiction
when it attempted, in divorce decree, to restore such separate property to husband. NRS 125.150, subds.
1, 2.
2. Divorce.
In divorce action wherein husband was awarded $8,656.59 out of proceeds of sale of dwelling house
which husband and wife owned as joint tenants, evidence disclosed that husband had contributed no more
than $6,000 of his separate property to purchase price of house and cost of remodeling it.
OPINION
By the Court, Pike, J.:
The parties to this appeal were formerly married, and will be referred to as husband and
wife. They intermarried in February 1951, and the wife was granted a divorce from the
husband in January 1960. Besides granting a divorce to the wife and determining certain other
issues, the divorce decree contained provisions with reference to a dwelling house purchased
by the parties in July 1951, with title granted to them as joint tenants, and toward the
purchase price of which the husband had contributed funds owned by him before marriage
and constituting his separate property. This appeal is from the portion of the judgment
referred to, reading: It Is Further Ordered, Adjudged and Decreed that the property situate at
2200 Dickerson Road, Reno, Nevada, shall be sold for a price of not less than $12,500.00,
and that out of said sale price shall first be deducted the expenses of sale, and that the
defendant shall then be paid the sum of $8,656.59 as his separate funds, and the balance of
the sale price shall be divided equally between plaintiff and defendant.
The wife contends that the trial court exceeded its jurisdiction as set forth in NRS 125.150
1
, and also that any separate funds of the husband placed in the premises are presumed to
have been a gift by him to the joint tenancy.
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1
125.150. 1. In granting a divorce, the court may award such alimony to the wife and shall make such
disposition of the community property of the parties as shall appear just and equitable,
any separate funds of the husband placed in the premises are presumed to have been a gift by
him to the joint tenancy.
Considering that the portion of the judgment appealed from undertook to restore to the
husband his separate funds which had been applied toward the purchase price of the premises,
the provisions of NRS 125.150 do not appear to have application to the instant factual
situation. However, both parties to the appeal accept the proposition that the separate funds so
paid by the husband were presumed to have been a gift to the wife or to the joint tenancy and
that the burden was upon the husband to overcome such presumption by clear and convincing
evidence. Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750; Peardon v. Peardon, 65 Nev. 717,
201 P.2d 309; Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161.
The husband testified that the wife had repeatedly stated to him that, in the event of a
divorce, she did not want to receive any of the property which he had before marriage. The
wife did not in any way deny having made the statements and, from their nature and attendant
circumstances, the trial court was justified in considering such statements as having been
made at such times as to be applicable to the several occasions when the husband advanced
his separate funds toward the purchase price.
The wife concedes that the husband made the down payment on the purchase price, in the
amount of $2,840.59 from his separate funds. The husband testified that he paid off the
balance of a first deed of trust on the property in the amount of $1,716 from his separate
funds and, although the wife's testimony was that the funds were not so paid, the court was
entitled to accept the husband's testimony on this point, and must be viewed as having done
so.
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having regard to the respective merits of the parties and to the condition in which they will be left by such
divorce, and to the party through whom the property was acquired, and to the burdens, if any, imposed upon it,
for the benefit of the children.
2. The court may also set apart such portion of the husband's property for the wife's support and the support
of their children as shall be deemed just and equitable.
The wife also testified that when the house was remodeled several years after the purchase,
the husband sold certain Series E Bonds owned by him before marriage and used the funds
toward the payment of such remodeling. There is no evidence as to the exact amount of the
husband's funds used for this purpose. The wife testified that the husband used all of the
separate property owned by him before marriage consisting of Series E Treasury Bonds,
bank deposits, and cash, toward the acquisition of the home, but places the total value of the
same as $6,000 or a little more. The husband was indefinite as to the exact value of the
property which he owned before marriage, but estimated its total value as $10,000, of which
$5,000 was represented by Series E Bonds, and that all of such property was invested in the
house. At the trial, counsel for the husband stated to the court that the husband would seek
credit for separate property applied toward the purchase price of the house, in the amount of
$7,000.
Upon this appeal two issues require determination: (1) Did the trial court exceed its
jurisdiction in entering the portion of the judgment appealed from. (2) Did the evidence
support the judgment as to the amount ordered to be paid to the husband as his separate funds
in the amount of $8,656.89.
[Headnote 1]
(1) We conclude that the court did not exceed its jurisdiction by reason of the
uncontradicted evidence, tending to establish an agreement on the part of the wife that, in the
event of a divorce, she did not wish to receive any of his property owned by him before
marriage which, by necessary implication, was a recognition of the husband's right to receive
the same. This constituted substantial evidence supporting this aspect of the judgment and
overcoming the presumption of a gift from the husband to the wife or to the joint tenancy, and
will not be disturbed upon this appeal.
[Headnote 2]
(2) The tangible evidence relating to separate funds of the husband invested in the property
held in joint tenancy consists of the down payment of $2,S40.59, the payment made by
him in discharging the first deed of trust in the amount of $1,716, or a total of $4,556.59.
tenancy consists of the down payment of $2,840.59, the payment made by him in discharging
the first deed of trust in the amount of $1,716, or a total of $4,556.59. To the figure of
$4,556.59 there should be added the amount advanced by the husband when the house was
remodeled.
Although the wife does not concede that the husband's Series E Bonds had a value of
$5,000 as testified by him, she testified that he cashed the bonds when the house was
remodeled, and her testimony shows that at least part of the proceeds were then used in
connection with such remodeling. The amount so used does not satisfactorily appear in the
record. However, considering the wife's concession that at least $6,000 of the husband's
separate property was used by him toward the purchase price of the home, the payment of the
indebtedness thereon, or its remodeling, this concession, together with the other evidence
referred to, warrants a conclusion that the husband furnished $6,000 of his separate property
toward the home. Evidence of any amount so invested by the husband in excess of $6,000 is,
however, so uncertain and indeterminate as to be speculative, and does not constitute
substantial evidence supporting a finding or judgment for any larger sum. Clark County
School District v. Mueller, 76 Nev. 11, 348 P.2d 164, 169.
We conclude that the evidence does not sustain the judgment of $8,656.89 to be paid to
the husband, but that it does sustain a judgment in the amount of $6,000.
It is ordered that the provisions of the judgment be modified accordingly and, as so
modified, the judgment is affirmed, with costs to appellant.
Badt, C. J., and McNamee, J., concur.
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77 Nev. 6, 6 (1961) Reed v. Wheeler
HELEN SCOTT REED, Individually, and as Clerk of the Board of County Commissioners of
the County of Clark, State of Nevada, and as Clerk of the County of Clark, State of Nevada;
THE BOARD OF COUNTY COMMISSIONERS of the County of Clark, State of Nevada
and HARLEY HARMON, CLESSE TURNER and ARTHUR OLSEN, Individually, and as
Members of, and Constituting the Board of County Commissioners of the County of Clark,
State of Nevada, Appellants, v. BEATRICE G. WHEELER, Respondent.
No. 4388
January 6, 1961 358 P.2d 112
Appeal from the Eighth Judicial Court, Clark County; George E. Marshall, Judge.
Mandamus proceeding was brought to compel board of county commissioners to canvass
returns of election. The lower court rendered an order directing the issuance of a peremptory
writ of mandamus, and the board appealed. The Supreme Court held that board referred to in
statute providing that, before proceeding to canvass returns of election at which voting
machines have been used, board authorized to canvass returns shall unseal machines, take
off and record records of votes cast, and immediately reseal machines is board of county
commissioners.
Affirmed.
John F. Mendoza, District Attorney, Clark County, and Charles L. Garner, Deputy District
Attorney, Clark County, for Appellants.
Alvin N. Wartman and Calvin Magleby, of Las Vegas, for Respondent.
1. Elections.
Board referred to in statute providing that, before proceeding to canvass returns of election at which
voting machines have been used, board authorized to canvass returns shall unseal machines, take
off and record records of votes cast, and immediately reseal machines is board of
county commissioners.
unseal machines, take off and record records of votes cast, and immediately reseal machines is board of
county commissioners. NRS 244.090, subd. 5, 296.010 et seq., 296.370, 296.375, 296.385, 303.515.
2. Mandamus.
Mandamus was proper remedy to compel board of county commissioners to perform statutory duty of
canvassing election returns. NRS 303.515.
OPINION
Per Curiam:
Respondent petitioned the lower court for a writ of mandamus to compel appellants (i.e.,
the board of county commissioners) to canvass the returns of the election held November 8,
1960 pursuant to NRS 303.515. Appeal is from the order directing the issuance of such a writ.
NRS 303.515 provides:
Before proceeding to canvass the returns of an election at which voting machines have
been used to register the votes cast, the board authorized to canvass returns shall unseal the
machines and take off and record the records of votes cast for the several candidates voted for
and for and against the several measures voted upon. Each voting machine shall immediately
be resealed.
It is appellants' position that the words the board authorized to canvass returns refer to a
nonexistent canvassing board and do not contemplate any action by the county
commissioners.
Subsection 5 of NRS 244.090 provides that the board of county commissioners shall meet
as provided in chapter 296 of NRS after each general election to canvass election returns.
NRS 296.370 specifies when the county commissioners shall meet to open the returns
from the several precincts and make abstracts of the votes, and the manner of making such
abstracts.
NRS 296.375 and 296.385 both provide for the board of county commissioners to canvass
the votes.
It thus became a matter of statutory construction for the court below to determine what
board was contemplated by NRS 303.515 as "the board authorized to canvass returns."
the court below to determine what board was contemplated by NRS 303.515 as the board
authorized to canvass returns.
[Headnote 1]
We hold that the lower court was correct in determining that NRS 303.515 requires the
board of county commissioners in canvassing the returns from the several precincts using
voting machines to comply with the provisions of said section; otherwise said NRS 303.515
would be superfluous.
[Headnote 2]
Mandamus is a proper remedy to compel the performance of this duty. Therefore the order
of the lower court directing the issuance of a peremptory writ of mandamus must be affirmed.
Affirmed.
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77 Nev. 8, 8 (1961) Nev. Indus. Comm'n v. Bibb
NEVADA INDUSTRIAL COMMISSION, Appellant, v. FORREST M. BIBB, Guardian Ad
Litem for JOHN STEPHEN BIBB, Respondent.
No. 4286
January 17, 1961 358 P.2d 360
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge.
Action by newsboy against newspaper publisher, Industrial Commission, and others for
injuries received when he was knocked down by automobile while delivering newspapers.
From adverse judgment of the lower court the Commission appealed. The Supreme Court,
McNamee, J., held that judgment finding that as between newsboy and publisher
compensation and benefits provided by Industrial Insurance Act were exclusive, based on
concession by counsel for publisher that publisher had accepted provisions of act, without
specifically mentioning the newsboy was not binding on commission which was not
present during pre-trial conference at which concession was made.
mentioning the newsboy was not binding on commission which was not present during
pre-trial conference at which concession was made.
Reversed and remanded.
(Petition for rehearing denied February 7, 1961.)
Wm. J. Crowell, of Carson City, for Appellant.
Gordon W. Rice, of Reno, for Respondent.
Stipulations.
In action by newsboy against newspaper publisher, Industrial Commission, and others for injuries
received when he was knocked down by automobile while delivering newspapers, judgment finding that as
between newsboy and publisher compensation and benefits provided by Industrial insurance Act were
exclusive, based on concession by counsel for publisher that publisher had accepted provisions of act,
without specifically mentioning newsboy was not binding on commission which was not present during
pre-trial conference at which concession was made. NRS 616.010 et seq.
OPINION
By the Court, McNamee, J.:
Respondent Bibb sued appellant Nevada Industrial Commission, Reno Newspapers, Inc.,
and others in the court below on account of injuries received by him when he was knocked
down by an automobile driven by one Marilyn Wright while he was delivering newspapers to
the subscribers of the Nevada State Journal, a newspaper owned by Reno Newspapers, Inc.
Reno Newspapers, Inc., hereinafter will be referred to as the Newspaper, and Nevada
Industrial Commission as the Commission.
The answer of the Commission joined issue and denied that at the time of the accident
Bibb was an employee of the Newspaper.
The lower court found that as between Bibb and the Newspaper the compensation and
benefits provided by the Nevada Industrial Insurance Act are exclusive, and thereupon
dismissed the action as to the Newspaper and awarded judgment against the Commission for
the full amount of compensation and benefits due him under the provisions of the Nevada
Industrial Insurance Act." See Reno Newspapers, Inc., v. Bibb, 76 Nev. 332
provisions of the Nevada Industrial Insurance Act. See Reno Newspapers, Inc., v. Bibb, 76
Nev. 332, 353 P.2d 458.
We are here concerned only with the appeal of the Commission from said judgment.
The judgment resulted from two motions by the Newspaper, one to dismiss the action
against it, and the other for summary judgment in its favor. The latter motion was based upon
the amended complaint and exhibits attached thereto, and upon the affidavit of Clarence K.
Jones. This affidavit recited that the relationship between Bibb and the Newspaper was set
forth in the writing entitled Agent's or Carrier's Lease attached to the amended complaint,
that the Newspaper did not exercise supervision or control over Bibb except as permitted in
said writing, that it did not deduct withholding, social security, or any other deductions, and
that at no time did the Newspaper pay wages to Bibb. An affidavit executed by Bibb was
presented in opposition to the motion for summary judgment. In it he denies the validity of
the said writing and particularly denies that the Newspaper exercised no control over him.
The motions were argued before the lower court on September 18, 1959, at which time the
motion to dismiss was denied, and the motion for summary judgment was submitted for
decision. The minutes fail to show that the Commission was represented in court at this time.
On November 2, 1959 the court rendered its decision on the motion for summary judgment
denying the motion, but stating: That on 3 October, 1957, when personal injuries were
received by John Stephen Bibb as alleged in the complaint, he was entitled to the benefits of
the Nevada Industrial Insurance Act, and may seek to recover in this action from either
defendant Reno Newspapers, Inc., or from defendant, Nevada Industrial Commission the full
amount of benefits provided in said Act.
On December 4, 1959 a pre-trial hearing took place at which Bibb, said Marilyn Wright,
and the Newspaper were represented by counsel.
were represented by counsel. The Commission was not represented. The court then
reconsidered the said motion for dismissal and for summary judgment. In its pretrial order
based on said pre-trial hearing the lower court, after reciting its former proceedings on the
Newspaper's motion for summary judgment, stated that counsel for the Newspaper conceded
that his client had accepted the provisions of the Nevada Industrial Insurance Act, without
specifically mentioning John Stephen Bibb. As a result of such concession by the
Newspaper, the court then formally concluded that the Newspaper had accepted the
provisions of the Nevada Industrial Insurance Act at and prior to the time of the alleged
injuries to Bibb; and that by reason of the premises, as between Bibb and the Newspaper the
compensation and benefits provided by the said Act were exclusive. It thereupon dismissed
the action as to the Newspaper, and awarded judgment against the Commission as aforesaid.
1

We have concluded that the judgment appealed from must be reversed for the reason that it
is based on a concession made by an attorney acting on behalf of his own client, the
Newspaper, and not on behalf of appellant Commission during a pre-trial conference, which
did not concern appellant and at which appellant was not represented. It therefore could not
bind the Commission. Arnett v. Throop, 75 Ida. 331, 272 P.2d 308; See Gurman v.
Stowe-Woodward, Inc., 302 Mass. 442, 19 N. E. 2d 717.
There are important legal questions to be determined concerning the status of Bibb
resulting from the nature of his relationship with the Newspaper, the validity of the said
writing, and its effect if any. It must also be determined whether or not the writing was
effective as of the date of the accident. Factual issues raised by the answer of the Commission
should be determined first by the trial court and properly can be determined only if the
Commission has had its day in court.
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1
The action below is still pending to determine whether Marilyn Wright was guilty of negligence, whether
Bibb was guilty of contributory negligence, and the extent of the injuries complained of.
the trial court and properly can be determined only if the Commission has had its day in
court.
Badt, C. J., and Pike, J., concur.
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77 Nev. 12, 12 (1961) Lamb v. Knox
MAX E. LAMB and HARTFORD ACCIDENT & INDEMNITY COMPANY,
Appellants v. C. B. KNOX, Respondent.
No. 4316
January 31, 1961 358 P.2d 994
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff and George E.
Marshall, Judges.
Action to cancel mechanic's lien on real property, and for damages. The lower court
entered a judgment setting aside the mechanic's lien and granting damages and an order
denying a motion to dismiss the complaint, and the defendants appealed. The Supreme Court,
McNamee, J., held that defendants, by failing to comply with the statute providing for a
change of venue, waived any right to have the case tried in the county wherein the land
involved was situated and that the trial court properly denied defendants' subsequent motion
to set aside the default.
Affirmed.
(Petition for rehearing denied February 10, 1961.)
Carl F. Martillaro, of Minden, Hawkins, Cannon and Kelly, and Flangas and Stone, of
Las Vegas, for Appellants.
Charles E. Catt, of Las Vegas, for Respondent.
1. Venue.
Statutes relating to venue within state are rules of procedure regulating place of trial, and actions within
their terms may be commenced in any county, subject only to transfer upon demand
and motion of defendant to proper county, unless such right be waived.
77 Nev. 12, 13 (1961) Lamb v. Knox
may be commenced in any county, subject only to transfer upon demand and motion of defendant to proper
county, unless such right be waived. NRS 13.050.
2. Venue.
Action to cancel mechanic's lien on real property situated in one county could be brought in the district
court for another county, subject to defendants' right to remove action to proper county in accordance with
statute. NRS 13.010, 13.050.
3. Venue.
Defendants failing to comply with statute providing for change of venue waived any right to have action
to cancel mechanic's lien tried in county wherein land involved was situated, and hence trial court properly
denied defendants' subsequent motion to set aside default judgment. NRS 13.010, subd. 2.
OPINION
Action was brought in the Eighth Judicial District Court in and for the County of Clark to
cancel a mechanic's lien on real property situated in Nye County, Nevada, and for damages.
Respondent, plaintiff therein, obtained personal service in Nevada on the appellants, and
upon their failure to appear in the action, their default was entered. Thereafter, on May 26,
1959, the court took evidence and entered judgment on May 29, 1959 in favor of respondent
and against appellant Lamb for the relief prayed for.
On October 19, 1959, appellants filed two motions in said action, one to set aside said
default, and the other to dismiss the complaint. The motion to set aside the default was made
on the ground that within the period allowed for answering the complaint after service of
summons, appellants had prepared a motion for change of venue which the clerk of the court
refused to file. The motion to dismiss the complaint was made on the ground that the court
was without jurisdiction to hear the action. Both motions were denied on January 15, 1960.
On February 10, 1960, upon the application of respondent, the lower court entered a
money judgment against appellant Hartford Accident & Indemnity Company in the amount
prayed for in said complaint.
77 Nev. 12, 14 (1961) Lamb v. Knox
Appeal is from the said judgments of May 29, 1959 and February 10, 1960, and from said
order of January 15, 1960.
The main question for determination is whether or not the district court of Clark County
had jurisdiction to hear and determine an action involving real property in Nye County.
Appellants, as their first assignment of error, contend that the trial court lacking jurisdiction
erred in refusing to grant their motion to dismiss the complaint.
Subsection 2 of NRS 13.010 prescribes that actions for the determination in any form of a
right or interest in real property shall be tried in the county where the real property is
situated, subject to the power of the court to change the place of trial as provided in this
chapter.
The provision referred to is NRS 13.050 which reads as follows:
Cases in which venue may be changed.
1. If the county designated for that purpose in the complaint be not the proper county, the
action may, notwithstanding, be tried therein, unless the defendant before the time for
answering expires demand in writing that the trial be had in the proper county, and the place
of trial be thereupon changed by consent of the parties, or by order of the court, as provided in
this section.
2. The court may, on motion, change the place of trial in the following cases:
(a) When the county designated in the complaint is not the proper county.
(b) When there is reason to believe that an impartial trial cannot be had therein.
(c) When the convenience of the witnesses and the ends of justice would be promoted by
the change.
3. When the place of trial is changed, all other proceedings shall be had in the county to
which the place of trial is changed, unless otherwise provided by the consent of the parties in
writing duly filed, or by order of the court, and the papers shall be filed or transferred
accordingly.
With respect to actions involving land, NRS 13.010 and NRS 13.050 expressly give
jurisdiction to courts in counties other than the county in which the real estate is located
to try the actions: {1) when the action is commenced in the county where the land is
situated but an impartial trial cannot be had therein or the convenience of witnesses or
the ends of justice would be promoted by the change, or {2) where the action is
commenced in any county other than the county in which the land is located and the
defendant fails to make proper demand for a change.
77 Nev. 12, 15 (1961) Lamb v. Knox
counties other than the county in which the real estate is located to try the actions: (1) when
the action is commenced in the county where the land is situated but an impartial trial cannot
be had therein or the convenience of witnesses or the ends of justice would be promoted by
the change, or (2) where the action is commenced in any county other than the county in
which the land is located and the defendant fails to make proper demand for a change.
[Headnote 1]
In other words, statutes relating to venue within a state are rules of procedure, regulating
the place of trial, and actions within their terms, if not subject to constitutional limitations,
may be commenced in any county, subject only to transfer upon demand and motion of the
defendant to the proper county, unless such right be waived. Brock v. Superior Court of
Stanislaus County, 29 Cal.2d 629, 177 P.2d 273; Paige v. Sinclair, 237 Mass. 482, 130 N.E.
177; 4 California Law Review, 257-260. There are no constitutional limitations in Nevada;
the Nevada Constitution is silent as to venue.
We are not concerned herein with statutory provisions which provide that an action must
be commenced within a certain county as was involved in Pacific Yacht Club v. Sausalito Bay
Water Co., 98 Cal. 487, 33 P. 322.
[Headnote 2]
This action having been commenced in Clark County whose court had jurisdiction thereof
could properly be tried in said county, subject, of course, to removal to the proper county
under the provisions of NRS 13.050. Consequently, appellants' first assignment of error is
without merit.
Appellants contend, however, that their motion to set aside the default made on the ground
that they had timely moved for a change of venue prior to the entry of default should have
been granted.
[Headnote 3]
There is nothing in the record in the nature of a demand or motion for a change of venue as
required by NRS 13.050. Their mere assertion in their motion to set aside the default that
their "motion for change of venue was made by mailing same to the clerk of the court of
the Eighth Judicial District and that said clerk. refused to file said motion" must be
disregarded because it is supported by neither affidavit nor other evidence.
77 Nev. 12, 16 (1961) Lamb v. Knox
to set aside the default that their motion for change of venue was made by mailing same to
the clerk of the court of the Eighth Judicial District and that said clerk. refused to file said
motion must be disregarded because it is supported by neither affidavit nor other evidence.
In fact, the minutes show that no evidence was presented at the time of the hearing on the
motion to set aside the default. By failing to comply with NRS 13.050 appellants waived any
right under said statute to have the case tried in Nye County where the land involved in the
action was situated. Connolly v. Salsberry, 43 Nev. 182, 183 P. 391; Lyons v.
Brunswick-Balke-Collender Co., 20 Cal.2d 579, 127 P.2d 924, 141 A.L.R. 1173. The trial
court, therefore, properly denied appellants' motion to set aside the default.
The judgments and order appealed from are affirmed.
____________
77 Nev. 16, 16 (1961) Hendel v. Weaver
CHARLES A. HENDEL, Appellant, v. CHARLES E. WEAVER,
Mineral County Assessor, Respondent.
No. 4311
February 2, 1961 359 P.2d 87
Appeal from judgment of the Fifth Judicial District Court, Mineral County; Peter Breen,
Judge.
Action to enjoin county assessor from allowing statutory tax exemption to veterans. From
judgment of the lower court denying relief, plaintiff appealed. The Supreme Court, Badt, C.
J., held that statute exempting from taxation, personal property, to the extent of $1,000
assessed valuation, of certain veterans, was an exemption for charitable purposes, authorized
by constitutional provision, and was not invalid, even though exemption was not limited to
needy veterans.
Affirmed.
Ernest S. Brown and Jack I. McAuliffe, of Reno, for Appellant.
Roger D. Foley, Attorney General, John A. Porter, Deputy Attorney General, W. T.
Mathews, Special Deputy Attorney General, and L. E. Blaisdell, District Attorney, Mineral
County, for Respondent.
1. Taxation.
Statute exempting from taxation personal property, to the extent of $1,000 assessed valuation, of certain
veterans, was an exemption for charitable purposes, authorized by constitutional provision, and was not
invalid, even though exemption was not limited to needy veterans. NRS 361.090; Const. Art. 10, 1.
2. Constitutional Law.
Supreme Court, in determining constitutionality of statute, might properly consider legislative history of
statute, prior similar statutes, statutes relating to similar subject matter, fact that participating in its
legislative enactment were men who were part of constitutional convention which enacted constitutional
provision in question, and apparent determination of legislature that objective of legislation was for
charitable purpose. NRS 361.090; Const. Art. 10, 1
3. Statutes.
Legislature was presumed to have investigated facts upon which legislation was based.
4. Constitutional Law.
Statute came to Supreme Court clothed with presumption of validity.
OPINION
By the Court, Badt, C. J.:
This appeal tests the constitutionality of NRS 361.090 reading in part as follows:
Veterans' exemptions. The property, to the extent of $1,000 assessed valuation, of any actual
bona fide resident of the State of Nevada for a period of more than 3 years who has served * *
* in the Armed Forces of the United States in time of war * * * shall be exempt from
taxation.
The statute has a long history. An Act exempting property of veterans, approved March
10, 1917 (Stats. 1917, 65) granted to veterans an exemption to the amount of $1,000,
provided the veteran's income did not exceed $900 per annum and he did not own property
over $3,000 in value.
exceed $900 per annum and he did not own property over $3,000 in value. This was amended
in 1921 (Stats. 1921, 166) by increasing the maximum income proviso to $1,200 and
increasing the property proviso to $4,000. A further amendment in 1923 (Stats. 1923, 360)
increased the maximum income proviso to $1,800, but left intact the maximum ownership
proviso of $4,000. In 1925 (Stats. 1925, 250) the legislature exempted property used by any
post or unit of any national organization of ex-servicemen. In 1927 (Stats. 1927, 140) the
legislature deleted the provision limiting the benefit of the act to persons having income of
less than $1,800 per annum. In 1945 (Stats. 1945, 43) the burden of obtaining the exemption
was lightened in certain cases by eliminating the necessity for filing annual affidavits. In 1947
(Stats. 1947, 674) the legislature required proof of continuation of the veterans' status. In
1949 (Stats. 1949, 28) the statute was re-enacted providing for $1,000 exemption without
limitation as to income or ownership of property. Further amendments are found in Stats.
1951, 301, Stats. 1953, 595, Stats. 1953, 598, Stats. 1954, 30, and Stats. 1955, 341. The last
group of amendments do not involve any matters with which we are here concerned.
The constitutional limitation, which the present act is said to contravene, is contained in
the Nevada constitution, Art. 10, Sec. 1. This section, so far as here pertinent, now reads as
follows: The legislature shall provide by law for a uniform and equal rate of assessment and
taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all
property * * * and there shall also be excepted such property as may be exempted by law for
municipal, educational, literary, scientific or other charitable purposes. Since its adoption
in 1864 this section of the constitution has been amended several times. These amendments
require no discussion, other than to recognize the amendment proposed and passed by the
legislature in 1939 (Stats. 1939, 360), agreed to and passed by the legislature in 1941 (Stats.
1941, 559), and ratified by the people in 1942, which preserved the exemption from taxation
of "such property as may be exempted by law for municipal, educational, literary,
scientific or other charitable purposes."
from taxation of such property as may be exempted by law for municipal, educational,
literary, scientific or other charitable purposes.
It is conceded that only under the last-quoted clause and particularly under the last phrase
thereofor other charitable purposes, can the veterans' statutory exemption be justified.
State v. Carson City Savings Bank, 17 Nev. 146, 30 P. 703. It must be conceded also that the
decisions of the several states are not in harmony as to the validity of such legislation, under
varying constitutional provisions. See discussion in Anno. 116 A.L.R. 1437. The court below
held that the statute did not violate the constitutional provision in question.
Appellant presents the following contentions:
1. Conceding that the original statute was for a charitable purpose the statute has been so
changed by the legislature that the original purpose no longer exists.
2. Conceding that rehabilitation of veterans is a proper charitable purpose, it must be
limited and restricted to veterans who need rehabilitation.
3. That the statute as it now exists does not accomplish a charitable purpose within the
meaning of the Constitution of the State of Nevada.
[Headnote 1]
These three contentions present but a single and readily understandable concept.
Paraphrasing appellant's argument, to confer a financial benefit on a wealthy veteran is not an
act of charity. A statute that accomplishes this does not effectuate a charitable purpose. The
original statute restricting to needy veterans the benefit conferred did effectuate such a
purpose. The legislature could reasonably recognize that years of military service could
materially affect the financial status of the veteran. A partial relief from taxation could help
and hasten his rehabilitation, could lessen the danger of his becoming a public charge and
could, to that extent, reduce the burden of government. The amendment stripped the statute of
its only justification. This argument is not without persuasiveness but, by reason of the
matters hereinafter discussed, we are compelled to reject the same.
the matters hereinafter discussed, we are compelled to reject the same.
For definitional purposes, appellant quotes at length. from Young Men's Christian Ass'n.
of Germantown v. City of Philadelphia, 323 Pa. 401, 187 A. 204, 210. The case itself is not in
point on its facts. The holding is simply that the local Y. M. C. A. was properly exempted
from taxation with reference to that part of its property devoted wholly to charitable uses, but
that its dormitory rooms rented at reasonable prices were used in commercial transactions and
therefore not exempt. The holding is supported by authorities from many states. The opinion
does, however, contain an exposition of why charitable institutions are exempted from taxes,
namely, because they do, pro tanto, assume a share of the public burden, the care of persons
for whom the government would otherwise have to provide. Appellant then ties this into his
main contention that our Veterans' exemption statute, valid so long as it applied only to
veterans with limited income and with limited ownership of property, became invalid when
these limitations were removed. The Y. M. C. A. case, and all the scores of the Y. M. C. A.
cases, are undoubtedly correct as applied to charitable institutions, but that does not touch
our problem, which is more analogous to the question of exempting (to the same extent) the
property of widows and orphans.
The learned trial judge, citing State of Nevada v. Parkinson, 5 Nev. 15, 5-6-7 Nev. 17,
noted the view of this court that contemporaneous legislation may always be considered in
force in constitutional interpretation, and that this was given greater weight by reason of the
fact that a number of the members of the legislature enacting the legislation granting the
exemption to widows and orphans had likewise been members of the constitutional
convention that framed the particular constitutional provisions in point. The district judge
proceeded: In the instant case certain contemporaneous legislation throws considerable light
on the question of the intention of the constitutional convention of 1864 with respect to the
power and authority granted to the legislature concerning tax exemptions.
legislature concerning tax exemptions. The revenue act passed at the First Session of the
Legislature of Nevada contained a provision for the exemption of the property of widows and
orphans of the value of not more than $1,000. Under the analogy, then, of a veteran's
exemption from taxation to the extent of $1,000 (without regard to the veteran's annual
income or ownership of property) with the $1,000 exemption granted to widows and orphans
by the first legislature (Stats. 1864-5, 273), he concluded that the veterans' exemption did not
violate the constitutional limitation.
Appellant rejects this reasoning as follows: Inasmuch as the philosophy of the
English-speaking world since time immemorial has been to collectively aid widows and
orphans, it is a traditional burden of the body politic to ensure that such unfortunates should
not be cast out where they cannot make their way. It is, therefore, perfectly consistent for the
taxing authority to alleviate distress with tax exemptions. But it defies reason to equate all
veterans with widows and orphans. In most families the man is the breadwinner. A child is
not capable of assuming such a task, nor is a woman capable of fully meeting the
requirements of the situation. It would appear to appellant that this factor and this factor alone
is the only legitimate basis for a tax deduction to widows and orphans.
This concession by appellant must be read in connection with his primary thesis, namely,
that the statute as originally written, concededly valid because the exemption was given only
to needy veterans (those with a specified limited annual income and with a specified
limitation of property owned), became invalid when the limited income and limited property
ownership provisos were stricken. But widows may own large estates and orphans may have
extensive properties held in trust for them. This must be conceded. Nevertheless, the original
statute applied, and our present statutes still apply, to all widows and orphans, not merely to
needy widows and orphans. Thus it would appear that the exemption to all widows and
orphans does not find its approval in the conclusion that they would otherwise be burdens
upon the community and that the exemption relieves the public burden.
the conclusion that they would otherwise be burdens upon the community and that the
exemption relieves the public burden.
[Headnote 2]
The statute exempting to the extent of $1,000 taxation of the property of all widows and
orphans, under the constitutional authority to exempt property from taxation for charitable
purposes, has been on our books ever since territorial days. It was contemporaneous with the
adoption of the constitution itself. Participating in its legislative enactment were a number of
the men who were part of the constitutional convention. So far as the court is advised, the
statutory exemption (to the extent of $1,000) of the property of all widows and orphans has
never been questioned. We may properly consider these factors. Worthington v. Second
Judicial District Court, 37 Nev. 212, 142 P. 230, L.R.A. 1916a, 696. To dispose of this
situation by the examplation that without this assistance widows and orphans might become a
public charge rejects the very objection made by appellant to the veterans' exemption statute.
If wealthy widows, and orphans who are beneficiaries of large trust estates, are in no danger
of becoming public charges, and if it is nevertheless conceded that the widows' and orphans'
exemption statute does not violate the constitutional limitations (and it is so conceded), then
the argument of appellant fails.
We may consider, too, the apparent determination of the legislature that the objective of
the legislation was for a charitable purpose. In Bruce v. Young Men's Christian Ass'n., 51
Nev. 372, 379, 277 P. 798, 799, this court said: While we do not think it necessary to pass
upon the question as to whether the legislature in passing the act in question conclusively
determined the defendant to be a charitable institution, it is certainly indicative of that idea.
We may resort to the same case for a definition of charity: Mr. Justice Gray, in Jackson v.
Phillips, 14 Allen (Mass.) 539, defined a charity as follows: A charity, in a legal sense, may
be more fully defined as a gift, to be applied consistently with existing laws, for the benefit
of an indefinite number of persons, either by bringing their minds or hearts under the
influence of education or religion, by relieving their bodies from disease, suffering, or
constraint, by assisting them to establish themselves in life, or by erecting or maintaining
public buildings or works, or otherwise lessening the burdens of government. It is
immaterial whether the purpose is called charitable in the gift itself, if it is so described as
to show that it is charitable in its nature.'" Id., 51 Nev. 3S0
laws, for the benefit of an indefinite number of persons, either by bringing their minds or
hearts under the influence of education or religion, by relieving their bodies from disease,
suffering, or constraint, by assisting them to establish themselves in life, or by erecting or
maintaining public buildings or works, or otherwise lessening the burdens of government. It
is immaterial whether the purpose is called charitable in the gift itself, if it is so described as
to show that it is charitable in its nature.' Id., 51 Nev. 380, 277 P. 799.
The court frankly concedes that its conclusion is based almost entirely on analogy; that
reasoning by analogy is not infallible; that it may often be inconclusive. Yet it is often used to
support the opinions of the courts. If, says Bracton, any new and unwonted circumstances,
hitherto unprecedented in the realm shall arise, then if anything analogous has happened
before, let the case be adjudged in like manner, since it is a good opportunity for proceeding a
similibus ad similia.
1
And Coke, who took much of his law from Bracton, also noted: For
like reason doth make like law.
2
Thoreau stated: All perception of truth is the perception
of an analogy; we reason from our hands to our head.
3
Colton is quoted as having said:
Analogy, although it is not infallible, is yet that telescope of the mind by which it is
marvelously assisted in the discovery of both physical and moral truth.
4

The analogy in the present instance is more than persuasive. Granted the propriety of
exempting from taxation the property of all widows and orphans to the extent of $1,000
valuation, there follows the recognition of the propriety of exempting the property of all
veterans from taxation to the extent of $1,000. If not all veterans are in danger of becoming a
public charge, neither are all widows and orphans.
____________________

1
Bracton, De Legibus et Consuetudinibus Angliae, f. lb. Compilation by M. Frances McNamara, Matthew
Bender & Co., Inc., 1960, 12.

2
Idem.

3
Book of Unusual Quotations, ed. by Rudolf Flesch, Harper & Brothers 1957, 10.

4
Dictionary of Thoughts, by Tryon Edwards, F. B. Dickerson Co., 1906, 18.
[Headnotes 3, 4]
Or let us examine appellant's argument that the exemption granted to a needy veteran (one
having an annual income of not more than $1,800) met the constitutional requirement that the
exemption be for a charitable purpose, but that the exemption granted without the
qualification did not. Veteran A has but himself to support, but because his annual income is
only $1,700, he is a proper subject of the state's charity. Veteran B has a wife and five small
children to support, but because he has an annual income of $1,800, he is not a proper subject
of the state's charity. That this suggests only a legislative problem is not a satisfactory answer.
For over 40 years our successive legislatures have wrestled with the question. In 1927 (when
the provision relating to annual income was deleted) and finally in 1949 (when the provision
relating to ownership of property was deleted) the conclusion was apparently finally reached
that an assumption of need, or an arbitrary factual determination of need, based on a fixed
limitation of income or a fixed limitation of property owned was not right, just, accurate, or
equitable, nor was it in effect equal or uniform, but that it was based on a rubber yardstick.
Nor can it be said that this is still a legislative problem. The legislature could well have found
that it would be necessary to create a commission to determine the need of each veteran, each
year, to determine his right to the exemption, but that such commission (with its chairman, its
secretary, its field examiners, with their respective salaries, expenses, travel allowance, office
space and office equipment) would operate at an administrative cost many times the extent of
the benefit conferred.
5
Not only did the legislature have the veteran's exemption statute
before it for over 40 years, but it had the widows' and orphans' exemption statute before it for
some 97 years unchanged. The legislature is presumed to have investigated the facts on which
the legislation is based. Viale v. Foley, 76 Nev. 149, 350 P.2d 721.
____________________

5
The statutory exemption of $1,000 of property from taxation could not, under our constitutional limit of
taxation of $5 per $100 valuation, exceed $50 a year in payment of taxes.
P.2d 721. We must assume that it rejected, as thoroughly impracticable, any attempt at
administration of an exemption governed by annual income and amount of property owned
and establishing the estimated need of each veteran as determined by the findings and
conclusions of a commission's field examiners. The statute comes to us clothed with the
presumption of validity. Viale v. Foley, supra. It is our opinion that such presumption has not
been overcome.
The relief sought by appellant was that the respondent county assessor be enjoined from
allowing the tax exemption to veterans. The judgment denying such relief is affirmed.
Pike and McNamee, JJ., concur.
____________
77 Nev. 25, 25 (1961) Las Vegas Hacienda v. Gibson
LAS VEGAS HACIENDA, Inc., A Nevada Corporation, Appellant, v.
GEORGE GIBSON, Respondent.
No. 4319
February 3, 1961 359 P.2d 85
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge.
Action by golfer against corporate owner of golf course to recover $5,000 offered by
owner for shooting hole in one. From judgment of the lower court in favor of golfer,
defendant appealed. The Supreme Court, McNamee, J., held that offer by owner to pay
$5,000 to any person who, having paid 50 cents for the opportunity of attempting to do so,
shot a hole in one on course, when accepted by golfer, was a valid contract enforceable at law
and not a gambling contract.
Affirmed.
(Petition for rehearing denied March 2, 1961.)
Calvin C. Magleby, of Las Vegas, for Appellant.
C. Norman Cornwall, of Las Vegas, for Respondent.
1. Gaming.
Although gambling, duly licensed, is a lawful enterprise in Nevada, an action will not lie for the
collection of money won in gambling.
2. Gaming.
Generally, in absence of statute, the offer of a prize to a contestant therefor who performs a specified act
is not a gambling transaction.
3. Contracts.
The offer by one party of specified compensation for performance of certain act as proposition to all
persons who may accept and comply with conditions, constitutes a promise by offeror; performance of that
act is consideration for such promise; and the result is an enforceable contract.
4. Gaming.
A prize or premium differs from a wager in that in the former the person offering same has no
chance of gaining back thing offered, but, if he abides by offer, he must lose; whereas in the latter each
party interested has a chance of gain and takes a risk of loss.
5. Gaming.
Fact that each contestant is required to pay an entrance fee, where entrance fee does not specifically make
up purse or premium contested for, does not convert contest into a wager.
6. Gaming.
Offer by owner of golf course to pay $5,000 to any person who, having paid 50 cents for the opportunity
of attempting to do so, shot a hole in one on course, when accepted by golfer, was a valid contract and was
not a gambling contract.
7. Gaming.
Question whether golfer's hole in one, shot upon offer by owner of course to pay $5,000 to person doing
so, was a feat of skill, or was dependent upon chance, was for determination of trial court, and evidence
sustained finding that shooting of hole in one was feat of skill.
8. Gaming.
Test of character of a game is not whether it contains element of chance or element of skill, but which is
dominating element.
OPINION
Respondent commenced this action in the lower court to recover the sum of $5,000 based
on the following transaction.
Appellant made a public offer to pay $5,000 to any person who, having paid 50 cents for
the opportunity of attempting to do so, shot a hole in one on its golf course. There were
certain specified conditions in connection with said offer.
The lower court found from the evidence that the respondent complied with said
conditions, that he shot a hole in one, and that appellant refused to abide by its offer. It further
determined that this transaction was a valid contract enforceable at law and not a gambling
contract. Judgment was entered in favor of respondent in the sum of $5,000 plus interest and
costs. Appeal is from said judgment.
On this appeal we are not concerned with any factual matters, the lower court properly
having resolved such matters in favor of respondent.
Appellant specified the following two errors:
1. The court below erred in not holding that the alleged contract on which the action is
based was a wagering contract and therefore unenforceable.
2. The court below erred in finding that the shooting of a hole in one is a feat of skill
and not a feat of chance.
[Headnote 1]
Although gambling, duly licensed, is a lawful enterprise in Nevada (Nevada Tax
Commission v. Hicks, 73 Nev. 115, 310 P.2d 852), an action will not lie for the collection of
money won in gambling. Weisbrod v. Fremont Hotel, 74 Nev. 227, 326 P.2d 1104. It is
therefore necessary to determine whether the transaction between appellant and respondent in
this case constituted a gaming contract.
[Headnotes 2, 3]
It is generally held, in the absence of a prohibitory statute, that the offer of a prize to a
contestant therefor who performs a specified act is not invalid as being a gambling
transaction. Porter v. Day, 71 Wis. 296, 37 N.W. 259. The offer by one party of specified
compensation for the performance of a certain act as a proposition to all persons who may
accept and comply with its conditions constitutes a promise by the offeror.
to all persons who may accept and comply with its conditions constitutes a promise by the
offeror. The performance of that act is the consideration for such promise. The result is an
enforceable contract. Robertson v. United States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237.
There is no statute in Nevada prohibiting such offers.
[Headnote 4]
A prize or premium differs from a wager in that in the former, the person offering the
same has no chance of gaining back the thing offered, but, if he abides by his offer, he must
lose; whereas in the latter, each party interested therein has a chance of gain and takes a risk
of loss. Toomey v. Penwell, 76 Mont. 166, 245 P. 943; Pompano Horse Club v. State, 93 Fla.
415, 111 So. 801, 52 A.L.R.51.
Ballentine's Law Dictionary, 2d Ed., p. 1002, defines premium as a reward or recompense
for some act done. It is known who is to give before the event. It is not a be confounded with
a bet or wager, for in a wager, it is not known who is to give until after the event.
Misner v. Knapp, 13 Ore. 135, 9 P. 65, 66, was an action to recover the sum of $250
offered by defendants to the owner of a horse that should trot a mile in the best time, less than
two minutes and twenty-five seconds at City View Park, it being alleged therein that plaintiff
complied with the terms and conditions specified. The contention of defendants that the purse
offered was a bet or wager and that no action would lie to enforce the payment thereof was
held to be without merit, the court saying:
Now, according to the definition of wager,' there must be two or more contracting
parties, having mutual rights in respect to the money or other thing wagered, or, as sometimes
said, staked,' and each of the parties necessarily risks something, and has a chance to make
something upon the happening or not happening of an uncertain event. But a purse or prize
offered by a party, and to be awarded to the successful competitor in a contest in which such
party does not engage, nor has any chance of gaining, but only, perhaps, of losing, is
without the element of a chance of gain or a risk of loss which characterizes the wager
agreement.
chance of gaining, but only, perhaps, of losing, is without the element of a chance of gain or a
risk of loss which characterizes the wager agreement. The distinction has been stated thus:
In a wager or a bet, there must be two parties, and it is known, before the chance or
uncertain event upon which it is laid or accomplished, who are the parties who must either
lose or win. In a premium or reward there is but one party until the act or thing or purpose for
which it is offered has been accomplished. A premium is a reward or recompense for some
act done; a wager is a stake upon an uncertain event. In a premium it is known who is to give
before the event; in a wager it is not known until after the event. The two need not be
confounded.' Alvord v. Smith, 63 Ind. 58.
[Headnote 5]
The fact that each contestant is required to pay an entrance fee where the entrance fee does
not specifically make up the purse or premium contested for does not convert the contest into
a wager. Toomey v. Penwell, supra.
[Headnote 6]
Inasmuch as the contesting for a prize offered by another, which the one offering must lose
in the event of compliance with the terms and conditions of his offer is not gambling, it was
not error to hold that the said contract was valid and enforceable.
[Headnote 7]
Whereas we have concluded that the contract does not involve a gaming transaction,
consideration of appellant's second assignment of error, that the lower court erred in finding
that the shooting of a hole in one was a feat of skill, becomes unnecessary. We do wish to
state, however, that the record contains sufficient evidence to sustain the court's finding in
this regard. Appellant insists, however, that the testimony of one Capps, a golf professional,
precludes such a finding. He testified that luck is a factor in all holes in one where skill is not
always a factor.
always a factor. He further testified that a skilled player will get it (the ball) in the area
where luck will take over more often than an unskilled player.
[Headnote 8]
The test of the character of a game is not whether it contains an element of chance or an
element of skill, but which is the dominating element. People ex rel. Ellison v. Lavin, 179
N.Y. 164, 71 N.E. 753, 66 L.R.A. 601. It was within the province of the trial court to
determine this question. Brown v. Board of Police Commissioners, 58 Cal.App.2d 473, 136
P.2d 617.
Affirmed.
____________
77 Nev. 30, 30 (1961) Astorga v. Ishimatsu
SANTIAGO ASTORGA, Appellant, v. I. K. ISHIMATSU, dba
I. K. I. FARMS, Respondent.
No. 4312
February 6, 1961 359 P.2d 83
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge.
Action for a money judgment. From an order granting respondent's motion to dismiss in
the lower court, the plaintiff appealed. The Supreme Court, Pike, J., held that dismissal for
want of prosecution was proper.
Judgment affirmed.
Morse and Graves and Lee R. Rose, of Las Vegas, for Appellant.
Hawkins and Cannon, of Las Vegas, for Respondent.
1. Dismissal and Nonsuit.
An action not brought to trial within five years after it was filed and wherein parties had not stipulated
that such time be extended was properly dismissed for nonprosecution, it being immaterial whether
respondent's appearance was general or special where in moving for dismissal
respondent followed the required procedure.
immaterial whether respondent's appearance was general or special where in moving for dismissal
respondent followed the required procedure. NRCP 41 (e).
2. Statutes.
Where identical provisions of rule respecting dismissal of action for nonprosecution were originally
enacted into a statute and statute was an exact copy of California code, it was presumed that statute was
adopted by Nevada Legislature with construction given it by California courts before its adoption. NRCP
41(e).
OPINION
On January 15, 1952 appellant herein commenced an action against respondent in Clark
County, Nevada, seeking a money judgment against respondent. On December 22, 1959
respondent moved to dismiss said action, pursuant to the provisions of NRCP 41 (e), relating
to the dismissal of actions for non-prosecution, which provides in part, Any action * * *
shall be dismissed by the court * * * on motion of the defendant * * * or by the court upon its
own motion, unless such action is brought to trial within five years after the plaintiff has filed
his action, except where the parties have stipulated in writing that the time may be extended.
After hearing upon defendant's motion to dismiss, the court entered its order granting the
same, and this appeal is from that order granting respondent's motion to dismiss.
Appellant concedes that the action was not brought to trial within five years after the same
had been filed, and that the parties to the action had not stipulated in writing that such time be
extended, and urges upon appeal that respondent's special appearance, coupled with the
motion to dismiss, constituted a general appearance by respondent and a waiver of
respondent's right to a dismissal.
[Headnote 1]
We do not agree with appellant's contention. Appellant, while recognizing that
respondent's motion was designated a special appearance, and that it contained language
to the effect that the appearance was entered for the sole purpose of making the motion
to dismiss on the indicated ground, cites authorities to the effect that the character of the
relief sought by respondent had the legal effect of causing respondent's appearance to be
a general rather than a special appearance.
designated a special appearance, and that it contained language to the effect that the
appearance was entered for the sole purpose of making the motion to dismiss on the indicated
ground, cites authorities to the effect that the character of the relief sought by respondent had
the legal effect of causing respondent's appearance to be a general rather than a special
appearance. The authorities cited by respondent, however, involve situations substantially at
variance from those of the instant situation. Here the only relief sought by respondent was
that made mandatory upon the court, upon the motion for such relief being made by
respondent and the showing in connection therewith that the action had not been brought to
trial within five years after the filing of the same, and that the parties had not stipulated in
writing for an extension of the time.
In moving for dismissal, respondent followed the procedure prescribed by the rule itself,
and it is immaterial whether respondent's appearance was general or special. The record
affirmatively shows that the dismissal was granted after due notice to plaintiff.
[Headnote 2]
The identical provisions of this rule were originally enacted into statute as 1943 Stats.
Nev., Ch. 165, p. 231, and became effective July 1, 1943. Such statutory provisions thereafter
appeared as sec. 9932, NCL 1943 supp. Without change, the provisions of such statute
became Rule 41 (e) NRCP, when those rules became effective on January 1, 1953. In Harris
v. Harris (1948), 65 Nev. 342, 346, 196 P.2d 402, 404, this court stated that the then statute
(sec. 9932, NCL 1943 supp.) was an exact copy of 583 of the California Code of Civil
Procedure, as amended by Stats. 1933, p. 853, and held that, since the statute was taken from
California, it was presumed that it was adopted by the Nevada legislature with the
construction given it by the California courts before its adoption. Conceding the propriety of
such rule, we are satisfied that Bayle-Lacoste & Co. v. Superior Court (1941), 46 Cal.App.2d
636, 116 P.2d 458, and other cases relied upon by appellant are based on factual situations
clearly distinguishing the same from this case.
cases relied upon by appellant are based on factual situations clearly distinguishing the same
from this case.
Judgment affirmed, with costs to respondent.
____________
77 Nev. 33, 33 (1961) Novack v. Hoppin (3 Cases)
No. 4251
ALEX NOVACK & SONS, A California Corporation, and MURPHY JOHNSON,
Appellants, v. PATRICIA HOPPIN, widow of William Hoppin; PATRICK HOPPIN by His
Mother and Guardian Ad Litem, Patricia Hoppin; BILLY HOPPIN, by His Mother and
Guardian Ad Litem, Patricia Hoppin; CARRIE LYNN HOPPIN, by Her Mother and
Guardian Ad Litem, Patricia Hoppin; and HOLLY ALICE HOPPIN, by Her Mother and
Guardian Ad Litem, Patricia Hoppin, Respondents.
No. 4252
ALEX NOVACK & SONS, A California Corporation, Appellant, v. R. & M. PETROLEUM
CO., A Corporation, and CONTINENTAL CASUALTY COMPANY,
A Corporation, Respondents.
No. 4253
R. & M. PETROLEUM CO., A Corporation, and CONTINENTAL CASUALTY
COMPANY, A Corporation, Appellants, v. MURPHY JOHNSON, Respondent.
February 8, 1961 359 P.2d 390
Appeals from judgments of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge.
Action for death of a truck driver whose gasoline transport truck overturned when
attempting to avoid a collision with the parked tractor and trailer of the defendants
wherein the corporate owner of the transport truck filed another action for damages
against the same defendants and the cases were consolidated for trial.
collision with the parked tractor and trailer of the defendants wherein the corporate owner of
the transport truck filed another action for damages against the same defendants and the cases
were consolidated for trial. From judgments in the trial court, various appeals were taken. The
Supreme Court, Pike, J., held that verdicts for compensatory damages could be sustained
against owner of the trailer notwithstanding lack of verdict against driver of the tractor; that
negligence of the owner of the trailer was properly submitted to the jury; that verdict for
$175,000 compensatory damages against the trailer owner was not excessive but that
judgment against the driver of the tractor for exemplary damages must be reversed.
In Appeal No. 4251, judgment affirmed as to appellant Novack and reversed as to
appellant Johnson. In Appeal No. 4252, judgment affirmed. In Appeal No. 4253,
judgment reversed.
See also 75 Nev. 475, 345 P.2d 769.
Goldwater and Singleton, of Las Vegas, for Alex Novack & Sons.
Robert Callister, of Las Vegas, and Melvin Belli, of San Francisco, California, for
Respondents Hoppin.
Clarence Sundean, of Las Vegas, for R. & M. Petroleum Co. and Continental Casualty Co.
Deaner, Butler and Adamson, of Las Vegas, for Murphy Johnson.
1. Automobiles.
In action for death of decedent when gasoline truck he was driving overturned in avoiding a collision
with a parked trailer and tractor, where the issues were such as to permit a judgment as against the trailer
owner independent of the doctrine of respondeat superior, verdict for compensatory damages in favor of
the administratrix and against trailer owner must be sustained notwithstanding the jury returned no verdict
for compensatory damages against owner and driver of the tractor.
2. Negligence.
Negligence to be actionable must be a proximate cause of the damages complained of, though the acts
and omissions of two or more persons may work concurrently as an efficient cause of the injury, and in
such case each of the participating acts or omissions is regarded as proximate cause.
3. Automobiles.
In action for death of driver of gasoline truck which, in attempting to avoid collision with a parked tractor
and trailer, overturned, where owner of trailer had made arrangements with the owner of the tractor to
transport scrap metal, question whether trailer owner's negligence in furnishing trailers with faulty lighting
equipment or permitting a person of the driver's qualifications to use the equipment under night driving
conditions was a proximate cause of the injury was for the jury.
4. Appeal and Error.
Supreme Court upon appeal must accept as established all facts which the evidence reasonably tends to
prove and to give to the prevailing party the benefit of inferences that might reasonably be drawn from such
evidence.
5. Trial.
A verdict is to be construed as responsive to any and all material issues.
6. Automobiles.
In action for death of decedent when gasoline truck he was driving in an attempt to avoid a parked tractor
and trailer overturned, where driver of tractor had been engaged by owner of trailer to transport scrap metal
in a trailer furnished by the owner, jury verdict for plaintiff was construable as determining that the trailer
owner negligently supplied trailers equipped with inadequate lights for use at night by the driver of tractor
and that such negligence was a proximate cause of the accident.
7. Automobiles.
In action for death of decedent when gasoline truck he was driving overturned when attempting to avoid
collision with a parked tractor and trailer of codefendant who had furnished a trailer to the tractor driver to
transport scrap metal, whether the negligence of the driver of the tractor was so unusual or extraordinary to
operate as a superseding cause of the injury and to absolve the trailer owner from liability due to lack of
proper trailer lights was properly submitted to the jury.
8. Automobiles.
In action for death of driver of gasoline truck which overturned when attempting to avoid collision with
parked tractor and trailer which had been furnished by codefendant to tractor driver for transportation of
scrap metal, where negligent conduct of trailer owner could have been a substantial contributing factor in
bringing about the injury due to improper trailer lights, it was not necessary that the trailer owner should
foresee the exact manner in which the injury might occur or that the negligent acts on the part of
the driver of the tractor might also operate as a concurring cause.
the negligent acts on the part of the driver of the tractor might also operate as a concurring cause.
9. Death.
$175,000 compensatory damages for death of a driver of a gasoline transport truck was not excessive.
In death action, a judgment in favor of administratrix against defendant for exemplary damages must be
reversed where the court gave no instruction relating to exemplary damages and the jury made no award of
compensatory damages in favor of the administratrix against the defendant.
OPINION
Petitioner Hoppin, as widow of William Hoppin and as guardian ad litem of four minor
children of the marriage, brought an action for damages against Alex Novack & Sons, a
California corporation, and Murphy Johnson. Subsequently R. & M. Petroleum Company and
Continental Casualty Company, hereinafter referred to as Petroleum Corporation and
Casualty Company, filed another action for damages against the same defendants. The two
cases were consolidated for trial and tried before a jury at Las Vegas, Nevada. The appeals
now before this court in Cases Nos. 4251 and 4252 are from the judgments based upon
verdicts rendered and from orders of the trial court denying motions for new trial. The
Hoppin complaint sought damages for the wrongful death of William Hoppin by reason of the
negligent acts of defendants, and Petroleum Corporation and Casualty Company sought
damages for the loss of a truck-trailer loaded with gasoline and driven by Hoppin at the time
of the accident which caused his death and the destruction of the loaded truck-trailer.
Novack, a California corporation, was engaged in the scrap metal business in southern
California, and made arrangements with Johnson for him to transport a quantity of scrap
metal from near Las Vegas, Nevada to the Novack yards in California, using a truck owned
by Johnson and certain large capacity trailers owned by Novack.
by Novack. In the early morning hours of November 12, 1957 Johnson, enroute from Ontario,
California to obtain scrap metal at Nellis Air Force Base near Las Vegas, Nevada, had parked
the truck and trailers on or near U. S. Highway 91 in Clark County, Nevada. The paved
portion of this highway was 36 feet wide, exclusive of gravel shoulders. The evidence is
conflicting as to whether or not the truck and trailers were parked off the highway. Johnson
was in the cab of the truck when the gasoline truck-trailer driven by Hoppin, approaching the
Johnson outfit from the rear, swerved from its course to avoid it and, after passing the parked
truck and trailers, overturned, resulting in Hoppin's death and the destruction by fire of the
gasoline laden truck-trailer.
Plaintiffs in both actions alleged negligence on the part of Johnson in parking on the
highway without proper lights or flares and, under principles of respondeat superior, also
sought judgment against Novack. Plaintiffs, as a further basis for recovery against Novack,
alleged and sought to prove acts of negligence in permitting Johnson to use trailers which did
not have proper lighting devices and in permitting Johnson to use such equipment without
making proper inquiry concerning Johnson's qualifications and licensing to operate the same.
The jury returned verdicts and the court entered judgment thereon as follows: (1) In favor
of Hoppin and against Novack for $175,000 compensatory damages; (2) In favor of Hoppin
and against Johnson for $50,000 exemplary damages; (3) In favor of Petroleum Corporation
and Casualty Company and against Novack for $29,299.95 compensatory damages. The court
also, in denying the motions of Petroleum Corporation and Casualty Company to alter or
amend the judgment in the favor of each against Novack so as to provide for judgment
against Johnson as well, in the same amounts as provided in the judgment against Novack,
entered its judgment that Petroleum Corporation and Casualty Company recover nothing from
Johnson.
Novack appeals from the judgments in favor of Hoppin and Petroleum Corporation and
Casualty Company and from the orders denying its motions to set aside verdicts and motions
for a new trial.
Johnson appeals from the judgment in favor of Hoppin and from the order denying
Johnson's motion to set aside such verdict and judgment for exemplary damages.
Petroleum Corporation and Casualty Company each appeals from the above referred to
judgment of the court that each of them recover nothing from Johnson. (Appeal No. 4253)
Thus, Petroleum Corporation and Casualty Company appear as respondents in the appeal
taken by Novack, and as appellants in their appeal just referred to.
Appellant Novack argues that the verdicts for compensatory damages and judgments based
thereon in favor of respondent Hoppin cannot be sustained upon any contended showing of a
principal and agent relationship between Novack as principal and Johnson as agent, for the
reason that the jury returned no verdict for compensatory damages against Johnson and that,
in the absence of such a verdict, there was no finding of negligence on the part of Johnson as
agent, which could be imputed to Novack as principal, to serve as the basis for an award of
compensatory damages against Novack and in favor of Hoppin.
While certain authorities support appellants' contention (Thibodeau v. Gerosa Haulage and
Warehouse Corp., 278 N.Y. 551, 16 N.E.2d 98), there is, likewise, authority to the effect that
the absence of a verdict in favor of Johnson did not constitute a finding that he was not
negligent but, rather, had the effect of an incomplete verdict. Brokaw v. Black-Foxe Military
Institute, 37 Cal.2d 274, 231 P.2d 816. Each verdict for compensatory damages against
Novack was silent as to Johnson. There was also a verdict for exemplary damages only in
favor of Hoppin and against Johnson. Under these facts, by reason of the dual theories of
liability upon which plaintiffs sought recovery against Novack, it becomes unnecessary to
decide this point raised by Novack on appeal, as the jury could have found Novack liable on
the basis of Novack's independent negligence.
Novack's independent negligence. Will v. Southern Pacific Co., 18 Cal.2d 468, 116 P.2d 44.
[Headnote 1]
The issues formed by the pleadings, and the evidence at the trial, together with the
instructions given, were such as to permit the entry of a judgment in favor of Hoppin and
against Novack, independent of any application of the doctrine of respondeat superior. In
reaching its verdict the jury had before it evidence supporting the contention of Hoppin as
plaintiff that the trailers owned by Novack, and used by Johnson with Novack's consent, did
not have proper or adequate lights. Similarly, the jury had before it evidence pertaining to the
issue of negligence on the part of Novack in permitting Johnson to use the trailers for the
contemplated nightdriving conditions, which related to Johnson's qualifications, or lack of
them, for the performance of such activity.
As we conclude that there was substantial evidence that Novack's independent negligence
was a proximate cause of the accident, the verdict for compensatory damages in favor of
Hoppin and against Novack must be sustained. Herring-Hall-Marvin Safe Co. v. Balliet, 38
Nev. 164, 145 P. 941; Nelson v. Smith, 42 Nev. 302, 176 P. 261, 178 P. 625.
[Headnote 2]
The court properly instructed the jury that before negligence can be actionable, that is to
say before it can be charged against a party to a lawsuit, such negligence must be a proximate
cause of the damage complained of. This does not mean that the law seeks and recognizes
only one proximate cause of an injury, consisting of only one factor, one act, one element of
circumstance, or the conduct of any one person. To the contrary, the acts and omissions of
two or more persons may work concurrently as the efficient cause of an injury, and in such a
case, each of the participating acts or omissions is regarded in law as a proximate cause. * *
*
[Headnote 3]
Any negligence on the part of Novack in furnishing trailers with faulty lighting equipment,
or in permitting a person of Johnson's qualifications to use the equipment under the
night-driving conditions, could have been considered by the jury as having been a
concurring cause persisting to the time of the accident and separate from any negligence
on the part of Johnson, although it may have concurred with any negligent conduct by
Johnson as a contributing cause of the accident.
a person of Johnson's qualifications to use the equipment under the night-driving conditions,
could have been considered by the jury as having been a concurring cause persisting to the
time of the accident and separate from any negligence on the part of Johnson, although it may
have concurred with any negligent conduct by Johnson as a contributing cause of the
accident. Under these conditions, the question of whether Novack's negligence was a
proximate cause of the injury was for the jury to decide, since proximate cause is a question
of fact, not of law. Beiser v. Cincinnati, N.O.&T.P.R. Co., 152 Ky. 522, 153 S.W. 742, 43
L.R.A. (N.S.) 1050; Hanna v. Fletcher, 97 U.S.App. D.C. 310, 231 F.2d 469, 58 A.L.R.2d
847; 53 Am.Jur., Trial, sec. 235, 1960 Supp., p. 23. See also Benton v. Sloss, 38 Cal.2d 399,
240 P.2d 575.
By reason of our view hereinabove expressed that the verdict for compensatory damages in
favor of Hoppin and against Novack was not necessarily based upon principles of respondeat
superior, we refer to certain evidence pertaining to the relationship between them as it relates
to independent negligence on the part of Novack, including Hoppin's contention that Novack
was negligent in permitting Johnson to operate the equipment when Johnson was not
qualified or licensed to operate the same. Hoppin contended that Johnson was the agent or
employee of Novack, and Novack sought to establish that Johnson was an independent
contractor who agreed to transport the scrap metal to the Novack yard using Johnson's tractor
and the two trailers loaned to him by Novack, for an agreed price per ton. Hoppin offered
evidence that Johnson was not a properly qualified driver by reason of having been cited for
10 or 12 traffic violations in a period of about two years preceding the date when Johnson
was permitted to use the Novack trailers, and that Novack either knew or was chargeable with
knowledge of the same. The exact nature of the violations as indicating the degree of
seriousness of each such violation was not shown. In this regard there was evidence that
Johnson had hauled scrap metal to the Novack yard for some four or five months prior to
November 11, 1957 by arrangements with firms other than Novack, but that on November
1, 5 and 6, 1957 he had made trips hauling scrap metal by arrangement with Novack.
months prior to November 11, 1957 by arrangements with firms other than Novack, but that
on November 1, 5 and 6, 1957 he had made trips hauling scrap metal by arrangement with
Novack. So far as appears, the 1948 tractor-truck owned by Johnson was used on these
previous trips as on the trip of November 11, 1957. Johnson testified that he had on occasions
left such tractor and a semitrailer owned by him at the Novack yard, between hauling jobs,
and that the two pieces of equipment were at the Novack yard at the time of trial. Each of the
Novack trailers was about 24 feet long, dark colored, with 12 lights including sidelights and
taillights. In addition, each trailer had, according to the testimony of the Novack shop
foreman, a reflector on each end with a six inch reflector on the left rear flap of the rear
trailer. The shop foreman also testified that a Novack employee had worked on the lighting
systems of the trailers for about two and a half hours on November 11, 1957, which work
included installing certain new wiring and the replacement of certain light bulbs. He testified
that the lights were in working order and that the reflector on the left flap of the rear trailer
was in place when Johnson left the Novack yard about 6:30 p. m. on that date.
Although Johnson contended that he parked off the highway shortly after noticing that the
lights on the truck were dim, turned the lights off, and placed reflector-type flares to the rear
of the parked equipment, his testimony is in conflict with the testimony of the drivers of other
vehicles traveling the same direction as Johnson and who passed him prior to the time that he
parked. Their testimony was to the effect that, due to faulty lighting on the equipment driven
by Johnson, they had not seen such equipment until in its immediate proximity, when each
such driver overtaking Johnson had successfully taken last minute emergency action to avoid
collision.
The first person to arrive at the scene after the accident testified that he parked his truck to
the rear of Johnson's equipment; that Johnson was parked some five feet on the blacktop
portion of the highway; that there were no flares placed to the rear of the parked trailers
and no reflector on the flap of the rear trailer.
there were no flares placed to the rear of the parked trailers and no reflector on the flap of the
rear trailer. There is no evidence showing that Johnson could not have driven further off the
highway, or could not have placed flares, had he elected to do so.
Johnson was the only surviving eye-witness to the accident. He gave a statement to the
effect that, after parking the truck and trailers, he concluded that as it was nearly daylight he
would try to sleep in the cab. He observed the truck and trailer rig pass him, capsize, and
catch fire.
There was evidence that the wiring on the trailers was burned in places and bare of
insulation in others and that, due to the absence of, or an inadequate electrical connection
between the trailers, the lights on the rear trailer could not function. Such testimony also
shows that wiring placed on the first trailer had been strung on the outside of the frame rather
than placed through the loom on the inside of the frame and that another improvised wire ran
from a marker light on the front of the rear trailer to the two taillights on the rear of the same;
that the trailer lights did not work; and the taillights on the truck did not function.
[Headnotes 4, 5]
Upon this appeal we must accept as established all facts which the evidence reasonably
tended to prove, and to give to the prevailing party the benefit of inferences that might
reasonably be drawn from such evidence. Further, the verdict is to be construed as responsive
to any and all material issues in the case. Forrester v. Southern Pacific Company, 36 Nev.
247, 264, 134 P. 753, 136 P. 705, 48 L.R.A. (N.S.) 1; Siebrand v. Gossnell, 9 Cir., 234 F.2d
81, 88, and cases there cited.
[Headnote 6]
Accordingly, the jury verdict must be viewed as having determined that Novack
negligently supplied trailers equipped with inadequate lights for use at night by Johnson on
the particular highways which Johnson would necessarily travel to obtain scrap metal and
return it to Novack's yard.
to Novack's yard. Also, the jury could have decided that such negligence on the part of
Novack was a proximate cause of the accident. Siebrand v. Gossnell, supra; Restatement of
Torts, sec. 434 (1940 Calif.Anno. 188-190).
[Headnotes 7, 8]
We are unable to hold that the risk of injury could not have been reasonably foreseen by
Novack. Neither are we satisfied that any negligence on the part of Johnson was so highly
unusual or extraordinary as to operate as a superseding cause of the injury, as to absolve
Novack from liability. Included in the evidence supporting this conclusion, reference is made
to the testimony of the bus and truck drivers who testified to the hazardous condition created
by the lack of proper trailer lights, prior to the time that Johnson, according to his testimony,
parked the truck and trailers. Novack's negligent conduct could have been a substantial
contributing factor in bringing about the injury, and it was not necessary that Novack foresee
the exact manner in which injury might occur, or that negligent acts on the part of Johnson
might also operate as a concurring cause. Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d
119; Osborn v. City of Whittier, 103 Cal.App.2d 609, 230 P.2d 132; Restatement of Torts,
sec. 435 (1948 Supp., p. 736); Prosser, The Law of Torts, 2d Ed., sec. 48, pp. 259, 260.
[Headnote 9]
(1) The verdict for $175,000 compensatory damages against Novack must be affirmed.
Under the particular facts and circumstances of this case, we are unable to say that the award
of damages was so excessive as to justify reversal on that ground.
[Headnote 10]
(2) The judgment in favor of Hoppin and against Johnson for exemplary damages must be
reversed. The court gave no instruction relating to exemplary damages and, accordingly, the
issue was not properly submitted to the jury for its decision. The jury made no award of
compensatory damages in favor of Hoppin and against Johnson and, in the absence of same,
we are unable to sustain the judgment for punitive damages against Johnson.
Johnson and, in the absence of same, we are unable to sustain the judgment for punitive
damages against Johnson. Gerlach Land & Livestock Co. v. Laxalt, 52 Nev. 191, 284 P. 310;
Clark v. McClurg, 215 Cal. 279, 9 P.2d 505, 81 A.L.R. 908. The verdict for exemplary
damages against Johnson, although unsustainable for the reason indicated, cannot be
considered in any sense as a verdict in favor of Johnson. The trial judge, after receiving the
verdict, and noting that it provided for exemplary damages only, concerning which no
instruction had been given, should have returned the same to the jury for its further
consideration. Such procedure was not followed. Hoppin, therefore, is entitled to a new trial
as against Johnson.
(3) The judgment in favor of Petroleum Corporation and Casualty Company for
compensatory damages against Novack must be sustained, upon the basis that the pleadings,
the issues, and the evidence permitted the jury to find that the negllgence of Novack in
furnishing improperly lighted trailers for the contemplated use by Johnson on the highway, at
night, was a contributing cause of the accident, resulting in damage.
(4) In the appeal taken by Petroleum Corporation and Casualty Company from the
judgment of the court that each of such appellants recover nothing from Johnson, we
conclude that such judgment of the trial court must be reversed and that each of the said
appellants is entitled to have the case remanded to the trial court with instructions to grant a
new trial against Johnson. The jury returned its verdict for compensatory damages against
Novack, and in favor of each of these appellants. The trial court denied the motion of these
appellants to modify and amend its judgment so as to provide that each take judgment against
Johnson for compensatory damages in the sum awarded each by the verdict in favor of
appellants and against Novack and, although we find no error in such denial of the motion,
we likewise find no proper basis for the court's judgment that appellants take nothing against
Johnson, as there was no verdict returned in his favor.
In Appeals Nos. 4251 and 4252 Hoppin, Petroleum Corporation, and Casualty Company
are allowed their respective costs against Novack.
Corporation, and Casualty Company are allowed their respective costs against Novack. In
Appeal No. 4253 no costs are awarded.
____________
77 Nev. 45, 45 (1961) Folks v. Folks
LOUISE DORMAN FOLKS, Appellant, v.
LOGAN L. FOLKS, Respondent.
No. 4310
February 8, 1961 359 P.2d 92
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Post-judgment proceeding in a divorce case on the divorced wife's application to hold the
divorced husband in contempt for his default in payment of alimony, and for the entry of a
judgment for the default, and on the divorced husband's motion to terminate his obligation to
pay alimony. The lower court granted relief to the divorced husband, and the divorced wife
appealed. The Supreme Court, McNamee, J., held that the lower court did not abuse its
discretion in declining to enter a judgment for default in alimony and in terminating the
divorced husband's obligation to pay alimony, and that the statute making installment
judgments for alimony modifiable only with respect to unaccrued installments was enacted to
permit the court to modify or vacate such provisions at any time.
Affirmed.
Pike, J., dissented.
Oliver F. Custer, of Reno, for Appellant.
Goldwater, Taber and Hill, of Reno, for Respondent.
1. Divorce.
Denying divorced wife's application for judgment for arrears in alimony was discretionary where more
than half of accrued installments were paid and divorced husband, a member of the
armed services, had no property out of which a judgment could be satisfied.
77 Nev. 45, 46 (1961) Folks v. Folks
accrued installments were paid and divorced husband, a member of the armed services, had no property out
of which a judgment could be satisfied. NRS 125.180.
2. Divorce.
Discretionary denial of divorced wife's application for judgment for arrears in alimony would not
preclude her from enforcing her claim in independent action on divorce judgment. NRS 125.170,
125.180.
3. Divorce.
Statute making installment judgments for alimony modifiable only with respect to unaccrued installments
was enacted to permit court to modify or vacate such provisions at any time. NRS 125.170.
4. Divorce.
Granting motion of divorced husband, who was wholly without property other than a small current bank
account and who was in armed services, to terminate his obligation to pay alimony under default divorce
judgment was discretionary. NRS 125.170.
5. Divorce.
Court which had granted divorce had jurisdiction to allow preliminary counsel fees and suit money
relating to motion to modify alimony provisions and exercise thereof was discretionary.
OPINION
Plaintiff wife filed suit for divorce against her husband, the defendant. The jurisdiction of
the court over the defendant resulted from personal service of summons on him in Nevada.
He made no appearance in the action because at the time of service he was a member of the
armed services stationed in California, and later he was transferred to Japan. In due time
defendant's default was entered and the case proceeded to trial. The court entered judgment
for divorce on February 9, 1950, and among other things, required defendant to pay $100 a
month for the support of the two minor children, plus $75 per month for the support of the
wife. Jurisdiction relative to the support of the wife was not expressly retained.
1
On
September 22, 1959, defendant filed a motion to modify the decree of divorce by
terminating the alimony {support of the wife) provision of the decree.

____________________

1
We are not concerned with the applicability of the Soldiers' and Sailors' Civil Relief Act; counsel for both
parties concede the validity of the decree.
77 Nev. 45, 47 (1961) Folks v. Folks
On September 22, 1959, defendant filed a motion to modify the decree of divorce by
terminating the alimony (support of the wife) provision of the decree. Plaintiff thereupon filed
a motion for an allowance of $11.22 for bus fare from Chico, California to Nevada and
return, for $50 for expenses en route and while in Reno attending court, and for an attorney
fee to resist defendant's motion. At the same time she had issued an order to show cause (1)
why defendant should not be adjudged in contempt of court for his default amounting to
$3,663 in the payment of alimony, and (2) why judgment for said sum should not be entered
against defendant. These matters were heard by the court on February 5, 1960 and submitted
for decision on the same day. On March 10, 1960 defendant's motion to terminate the
payment of alimony, effective as of September 22, 1959, was granted, plaintiff's motion for
allowances was denied, the defendant was purged of contempt, and the plaintiff's said request
for entry of judgment was denied.
The matter now before us is plaintiff's appeal from this determination of the court made on
March 10, 1960. Henceforth the plaintiff will be referred to as appellant and the defendant as
respondent.
Three matters are presented for determination on this appeal.
1. Did the court err in refusing to direct the entry of judgment for the amount of arrears
resulting from respondent's default in the payment of alimony?
NRS 125.180 gives discretionary power to the court to make an order directing the entry of
judgment for the amount of arrears resulting from a husband's default in the payment of
money ordered to be paid in an action for divorce. It is appellant's contention that the trial
court abused this discretionary power in refusing to enter judgment for the amount of such
arrears.
Since the rendition of the judgment for divorce in 1950 some $9,000 alimony installments
accrued. More than half of these accrued installments were paid. As of February 1, 1960,
there still remained unpaid $3,963.10.
[Headnotes 1, 2]
The evidence presented to the court showed that the respondent is still in the service and
that his obligations have increased since February 9, 1950.
77 Nev. 45, 48 (1961) Folks v. Folks
respondent is still in the service and that his obligations have increased since February 9,
1950. We are reluctant to hold that the lower court abused its discretion in failing to enter
judgment for the arrears as requested, because respondent has no property out of which a
judgment, if entered, could be satisfied. Such a judgment unsatisfied could well prejudice him
in the eyes of his superiors to his detriment without affording appellant any benefit, and could
well be detrimental to her and the minor children. Despite the refusal of the court to enter
judgment pursuant to NRS 125.180 appellant may still enforce her claim to the accrued
installments in an independent action on the judgment, because, as such, the judgment of
divorce is final. NRS 125.170; De Gategno v. De Gategno, 336 Mass. 426, 146 N.E.2d 497;
Koster v. Koster, 137 Conn. 707, 81 A.2d 355; Woodhouse v. Woodhouse, 15 N.J. 550, 105
A.2d 517.
We therefore conclude that this contention of appellant is without merit.
2. On February 9, 1950, when the court rendered judgment for divorce with such
provision for alimony, without expressly retaining jurisdiction relative to the support of the
wife, did it thereafter have jurisdiction to modify the alimony provisions thereof?
Heretofore this court has held that unless the district court reserves jurisdiction in regard to
the support of the wife, thereafter it cannot modify the original decree with respect thereto,
after the term of court at which it was rendered or except under the provisions of Rule XLV
of the district court. Schneider v. Second Judicial District Court, 64 Nev. 26, 176 P.2d 797;
Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638; accord, Finley v. Finley, 65 Nev. 113, 189
P.2d 334, 196 P.2d 766.
In the Schneider case, supra, decided January 25, 1947, we said [64 Nev. 26, 176 P.2d
802]:
This situation appears to be anomalous. Nevertheless, it is so provided by statute and has
been settled as the law by the decision of this court on numerous occasions.
The only remedy for this unfortunate state of the law lies entirely with the legislature by
the enactment of a provision similar to sections 13S and 139 of the civil code of California
which provide that in regard to orders for the custody and support of the children the
court 'may at any time modify or vacate the same,' and concerning orders for the
permanent support of the wife and children 'the court may from time to time modify its
orders in these respects.'
77 Nev. 45, 49 (1961) Folks v. Folks
of a provision similar to sections 138 and 139 of the civil code of California which provide
that in regard to orders for the custody and support of the children the court may at any time
modify or vacate the same,' and concerning orders for the permanent support of the wife and
children the court may from time to time modify its orders in these respects.'
If such legislation were enacted in this state, the district courts would then have
continuing jurisdiction not only regarding custody of minor children, but also in connection
with matters of support, maintenance, and education of the minor children and alimony for
the wife.
Apparently because of this decision the legislature in 1947 (1947 Statutes of Nevada, ch.
70, p. 271, approved March 15, 1947) amended NCL 9462 (now NRS 125.140) so as to
provide that during the minority of children the court has jurisdiction to change not only the
custody provisions thereof but also the provisions relating to their maintenance and support.
And in 1949 (1949 Statutes of Nevada, ch. 79, p. 98, now NRS 125.170) the legislature
provided:
1. In divorce actions, installment judgments for alimony and support shall not be subject
to modification as to accrued installments, but only as to installments not accrued at the time
motion for modification is filed.
[Headnotes 3, 4]
It is apparent to us that by its enactment of this latter act the legislature intended to
complete the action suggested as aforesaid in the Schneider case so as to permit the court at
any time to modify or vacate provisions in a divorce decree for unaccrued alimony. Koster v.
Koster, 137 Conn. 707, 81 A.2d 355. Upon the rescission of Rule XLV by Rule 40, D.C.R.,
2
the limitation of six months within which to notice a motion to modify a judgment was
removed, but the removal of this limitation did not affect one way or another the court's
jurisdiction acquired through NRS 125.170 to modify a judgment for unaccrued alimony at
any time after the rendition thereof.
____________________

2
Adopted by the Supreme Court July 23, 1959, effective November 1, 1959, pursuant to NRS 2.120.
77 Nev. 45, 50 (1961) Folks v. Folks
judgment for unaccrued alimony at any time after the rendition thereof. State ex rel. Jones v.
Second Judicial District Court, 59 Nev. 460, 96 P.2d 1096, 98 P.2d 342. We therefore
conclude that under NRS 125.170 a trial court has discretionary power at any time to modify
or vacate alimony provisions of its decree (except as to accrued installments), and the record
fails to disclose that the exercise of the court's discretion in this instance was arbitrary or
capricious.
In reaching this conclusion we do not mean to limit in any way our decision in Schmutzer
v. Schmutzer, 76 Nev. 123, 350 P.2d 142, 144. The enactment of NRS 125.170 had no effect
upon the finality of judgments in this state except those judgments in divorce actions
containing installment provisions for alimony, and, as to such, only with respect to
installments unaccrued at the time a motion for modification is filed. The Schmutzer case did
not involve alimony, and, as stated therein, [t]he judgment in all respects except as to
custody and support of minor children became final upon the expiration of six months after
August 1, 1955, the date the judgment was entered. On August 1, 1955 said Rule XLV had
not been rescinded.
3. Appellant assigns as error the trial court's refusal to grant her motion for allowances.
[Headnote 5]
Inasmuch as the lower court had jurisdiction to modify the alimony provisions of the
decree, it also had jurisdiction to allow preliminary counsel fees and suit money relating to a
motion to modify such provisions. State ex rel. Groves v. First Judicial District Court, 61
Nev. 269, 125 P.2d 723; Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110. The exercise of
such power rests wholly within the discretion of the court. Harwood v. Carter, 47 Nev. 334,
222 P. 280. The lower court in the exercise of its discretion, refused to grant her motion for
allowances. The record discloses that the respondent is wholly without property, other than a
small current bank account, and that his necessary monthly expenses and legal obligations
amount to more than the salary and allowances he receives as a tech-sergeant in the United
States Air Force.
77 Nev. 45, 51 (1961) Folks v. Folks
he receives as a tech-sergeant in the United States Air Force. The appellant's affidavit alleges
that she has no money, bonds, stocks or securities of any kind or character and that she is
indebted in the sum of $1,461.94. The nature of this indebtedness does not appear. She
admits ownership of a house which she inherited from her mother and the fact that she is
attending college on a full-time basis. Although she alleges she has not been able to obtain
employment, she fails to state whether or not she has any income other than the child support
payments she receives from the respondent.
This evidence does not show as a matter of law that the court abused its discretion in
refusing appellant's application for counsel fees.
The orders appealed from are affirmed. No costs are allowed.
Badt, C. J., concurs.
Pike, J., Dissenting:
I dissent.
This dissent is from that portion of the majority opinion which holds that the enactment of
NCL 9474.01 (Stats. Nev. 1949, ch. 79, p. 98, now NRS 125.170) conferred upon the district
court jurisdiction to modify future payments of alimony provided to be paid under the
provisions of a decree of divorce, in the absence of either a reservation of jurisdiction or
stipulation of the parties.
The decree in the instant case was filed on February 10, 1950. It contained no reservation
of jurisdiction to modify the amount of the monthly alimony payments ordered to be paid to
the wife. The husband gave no notice of intention to move for relief under Rule XLV, District
Court Rules, within the six months' period provided by that rule.
Nevada Rules of Civil Procedure became effective January 1, 1953. It is not clear that
NRCP Rule 60(b) had the effect of continuing the time limitation of Rule XLV, but the
Advisory Committee Notes state in part, The rule [60(b)], as revised, is intended to preserve,
in substance, the existing rules as to finality of judgments.
77 Nev. 45, 52 (1961) Folks v. Folks
in substance, the existing rules as to finality of judgments. * * * Rule XLV of the District
Court Rules is thought to be of identical effect as this rule, but is temporarily not superseded,
since it is so often referred to. * * * (P. 113, Advisory Committee Notes to NRCP.)
Accordingly, if NRCP 60(b) be viewed as having perpetuated the time limitation of Rule
XLV, the subsequent repeal of Rule XLV by District Court Rule 40, effective November 1,
1959, would not have had the effect of removing the time limit from the right to move for
modification. Nevada Compiled Laws, 1929, 1941 Supp., sec. 9463 (now NRS 125.050,
125.150) providing that, in granting a divorce a court may award alimony to the wife, was
amended by Stats. Nev. 1949, ch. 45, p. 54, approved March 9, 1949. Such amendment (now
NRS 125.150, subd. (4)
1
) provided that the court might, upon written stipulation by the
parties, modify alimony awarded to the wife, whether or not the court had retained
jurisdiction to modify the same. Thereafter, the same 1949 session of the Legislature enacted
NCL 9474.01
2
(now NRS 125.170), approved March 17, 1949. Characteristically a statute
empowering a court to act contains the word court, yet this significant word does not
appear in NCL 9474.01. The statute does, however, state in effect that the parties shall not be
precluded from entering into a stipulation as to accrued installments prior to the time a
motion for modification is filed," and in this respect is similar to the then recent
amendment to NCL 9463 giving the court authority to modify alimony, upon written
stipulation of the parties, without differentiating between accrued and unaccrued
payments.
____________________

1
NRS 125.150 * * * (4) In the event alimony has been awarded to the wife, or the court otherwise
adjudicates the property rights of the parties, or an agreement by the parties settling their property rights has
been approved by the court, whether or not the court has retained jurisdiction to modify the same, such alimony
so awarded, such adjudication of property rights, and such agreements settling property rights, may nevertheless
at any time thereafter be modified by the court upon written stipulation duly signed and acknowledged by the
parties to such action, and in accordance with the terms thereof.

2
NRS 125.170 1. In divorce actions, installment judgments for alimony and support shall not be subject to
modification as to accrued installments, but only as to installments not accrued at the time a motion for
modification is filed.
2. The provisions of this section shall not preclude the parties from entering into a stipulation as to accrued
installments prior to the time a motion for modification is filed.
77 Nev. 45, 53 (1961) Folks v. Folks
filed, and in this respect is similar to the then recent amendment to NCL 9463 giving the
court authority to modify alimony, upon written stipulation of the parties, without
differentiating between accrued and unaccrued payments.
The legislative intent in enacting NCL 9474.01 is not clear. Such legislative intent may be
viewed as having been to clarify, qualify, or restrict NCL 9463, as the same had been recently
amended by Stats. Nev. 1949, ch. 45, p. 54.
Had the Legislature intended to change the established law of this state, relating to the
modification of unaccrued alimony provided to be paid by divorce decrees, it could have
followed the suggestions contained in the opinion of this court in Schneider v. Second
Judicial District Court, 64 Nev. 26, 37, 176 P.2d 797, 802, and used the language from Cal.
Civ. Code, sec. 139, relating to the support of the wife, namely, the court may from time to
time modify its orders in this respect, or language of similar import. This was not done,
although in amending the statute relating to the custody of children, NCL 1929, sec. 9462, the
1947 Legislature had used the exact language from Cal. Civ. Code, sec. 138, as suggested in
the Schneider opinion.
This evidenced lack of legislative intent to vest in the court jurisdiction to modify
unaccrued payments of alimony, in the absence of a reservation of a right to so modify, when
considered with the absence of authority supporting the view that the time limitation for
moving to modify judgments was abolished by the repeal of Rule XLV, leads to the
conclusion that the trial court did not have jurisdiction to strike that portion of the decree
relating to unaccrued payments of alimony, and that said judgment should be reversed.
____________
77 Nev. 54, 54 (1961) Gull v. Hoalst
A. EZRA GULL, Appellant, v.
BLAINE C. HOALST, Respondent.
No. 4315
February 10, 1961 359 P.2d 383
Appeal from default judgment and from order denying motion to vacate the same in the
Third Judicial District Court, Eureka County; Gordon W. Rice, judge of the second district
presiding in the entry of the default and judgment, and Taylor H. Wines of the fourth district
presiding on the motion to vacate same.
Action to recover for damage to plaintiff's mining claims resulting from allegedly
negligent operation of adjoining claims by defendants. The lower court entered default
judgment against nonresident defendant and order denying his motion to vacate default and
judgment based thereon, and nonresident defendant appealed. The Supreme Court, Badt, C.
J., held, inter alia, that clearly erroneous entry of default, immediately upon striking
defendant's motion to dismiss complaint, without notice and opportunity to file responsive
pleading, and entry of default judgment on following day, without notice of hearing on
application for judgment, all in violation of NRCP 11, 12, 55(b)(2), required vacation of
default and judgment based thereon upon direct attack by timely motion.
E. R. Miller, Jr., of Ely, for Appellant.
Vaughan and Hull, of Elko, for Respondent.
1. Pleading.
Signature of motion to dismiss complaint by defendant's attorney presumptively constituted required
certificate of good ground to support motion and it was not interposed for delay. NRCP 11, 12(a)(1),
(b)(5).
2. Pleading.
Record did not justify striking as sham and false motion, signed by defendant's attorney, to dismiss
complaint for failure to state claim on which relief could be granted. NRCP 7(a, b), 11, 12(a)(1), (b)(5).
77 Nev. 54, 55 (1961) Gull v. Hoalst
3. Judgment.
Entry of default, immediately upon striking motion to dismiss complaint for failure to state claim on
which relief could be granted, without notice and opportunity to file responsive pleading was in direct
violation of rules and erroneous. NRCP 11, 12(a)(1), (b)(5), 55(b)(2).
4. Judgment.
Conducting hearing and entering default judgment on day following entry of default without at least three
days' written notice of hearing on application for judgment constituted clear violation of rules. NRCP 11,
12(a)(1), (b)(5), 55(b)(2).
5. Judgment.
Clearly erroneous entry of default against nonresident defendant, who had not been served with
summons, without notice and opportunity to file responsive pleading, and entry of default judgment on
following day without notice, all in direct violation of rules, required, upon direct attack by timely motion,
vacation of default and judgment based thereon with allowance of proper time to plead. NRCP 11,
12(a)(1), (b)(5), 55(b)(2).
OPINION
This appeal attacks the validity of the entry of default made by the clerk, of the order for
such entry made by the court, of the default judgment based thereon, and of the court's order
denying defendant's motion to set aside and vacate the default and the default judgment. The
record discloses such an array of mistakes, errors, misconceptions, and violations of the rules
of civil procedure that the judgment and orders complained of must be reversed and the case
remanded for further proceedings.
The second cause of action asserted in plaintiff's complaint alleged on information and
belief that one Frazier conveyed his interest in certain mining claims adjoining the claims of
plaintiff to appellant, to a named corporation, to a second named corporation, or other Joe
Doe corporations or individuals; that such defendants or some of them so negligently
operated such adjoining property that (1) a dam washed out, causing rubbish, tailings and
trash to be washed over and upon plaintiff's property, to his damage in the sum of $6,000;
{2) that a spring was covered up and destroyed, to his damage in the sum of $500; {3)
that a cabin on his property was damaged to the extent of $1,000; {4) that a dam on his
property was washed out and a reservoir filled up, to his damage in the sum of $1,000;
{5) that defendants' dam encroached on plaintiff's property to his damage in the sum of
$1,000; {6) that the defendants in constructing their dam destroyed a road and right of
way into plaintiff's property, to his damage to the extent of $1,000, or an aggregate
damage of $10,500.
77 Nev. 54, 56 (1961) Gull v. Hoalst
property, to his damage in the sum of $6,000; (2) that a spring was covered up and destroyed,
to his damage in the sum of $500; (3) that a cabin on his property was damaged to the extent
of $1,000; (4) that a dam on his property was washed out and a reservoir filled up, to his
damage in the sum of $1,000; (5) that defendants' dam encroached on plaintiff's property to
his damage in the sum of $1,000; (6) that the defendants in constructing their dam destroyed a
road and right of way into plaintiff's property, to his damage to the extent of $1,000, or an
aggregate damage of $10,500. Appellant was a resident of Utah and was never served with
summons. However, he voluntarily appeared by filing a motion to dismiss on the ground that
the complaint did not state a claim upon which relief could be granted.
We now enter upon the proceedings which are conceded by respondent to present a
procedural snarl. It must, however, be said in justice to said counsel that their first
appearance in the matter was their resistance of the present appeal.
On motion of plaintiff the court set November 20, 1956 for the hearing of the motion to
dismiss. On that day the clerk of the court entered appellant's default, reciting that it appeared
that said defendant was in default for failure to plead or otherwise defend as required by law.
The clerk's minutes of that date show that plaintiff's attorney appeared in court, moved for the
entry of such default, and the court ordered such entry upon the grounds that the said
defendant having failed to appear or answer in the said matter and the time having expired for
answering. The clerk's minutes of the following day, November 21, 1956 show the
appearance of plaintiff and his attorney on hearing of motion to enter default, and that such
was the time set by the court for the hearing of the motion in said action; that the plaintiff
was sworn and testified in support of his complaint; that the court ordered that the defendant
A. Ezra Gull having failed to appear or answer and the time having expired to answer or
plead, the motion was ordered stricken, and that plaintiff recover $10,500 as prayed.
77 Nev. 54, 57 (1961) Gull v. Hoalst
It is to be observed that appellant did not appear on November 20, 1956, the time fixed for
the hearing of his motion to dismiss. No order was made at that time or at all granting or
denying such motion to dismiss. In addition to the clerk's minutes of the order striking the
motion to dismiss, the record discloses the court's findings of fact and conclusions of law
dated November 21, 1956 erroneously reciting that appellant had been regularly served with
process but reciting further his filing of a motion to dismiss and reciting the setting of the
hearing thereof for November 20, and appellant's failure to appear for such hearing and the
court having ordered the motion stricken and the default of appellant entered, it proceeded
without further or any notice to hear the plaintiff and to render judgment. No notice of the
motion to strike the motion to dismiss (and this court has repeatedly condemned the practice
of a motion to strike a motion) was ever given and, as noted, no ruling was ever made on said
defendant's motion to dismiss the complaint. No notice was ever given of the time set for
hearing of the case after the entry of appellant's default.
The findings of fact, conclusions of law, and judgment by default, with notice of entry of
judgment, were served on appellant December 13, 1956. Defendant served his notice of
motion that on January 7, 1957 he would move for an order relieving him of the default and
setting aside the default judgment, on the ground that the order striking his motion to dismiss
and the entry of judgment against him were void. It was further based on appellant's affidavit
reciting the proceedings above mentioned; that the motion to dismiss complied with the
requirements of Rule 11 as to signing of pleadings; that there were good grounds to support
the motion to dismiss, and that it was not interposed for delay; that he had been granted no
time to file a responsive pleading under Rule 12 after the striking of his motion to dismiss;
that he had received no notice, after the entry of his default, of the plaintiff's application for
judgment under the provisions of Rule 55(b)(2); and that he had a valid defense as more fully
set forth in his proposed answer submitted therewith.
77 Nev. 54, 58 (1961) Gull v. Hoalst
answer submitted therewith. This motion was heard by Judge Wines who filed a written
opinion and ruling denying the motion. The learned district judge noted: The first impression
is that the defendant makes out his case. [Adams & McGahey v. Neill, 58 N.M. 782, 276 P.2d
913], 51 A.L.R.2d 830. But apparently the default judgment was not entered pursuant to Rule
55(b)(2) but was entered after the presiding judge had ordered the defendant's pleading
stricken in accordance with the terms of Rule 11. The record is not too clear on this point.
The court then quotes Rule 11 referred to below. The court then referred to the striking of the
motion to dismiss, the entry of the default, and the taking of testimony for the purpose of
entering a judgment. He then noted: This is proper because at the time the default was
entered and judgment taken by default against defendant Gull he had not appeared in the
action, after having been served more than 20 days prior thereto.
[Headnote 1]
The record is entirely bare of the slightest suggestion of any violation of Rule 11. In
pertinent part such rule reads as follows: The signature of an attorney constitutes a certificate
by him that he has read the pleading; that to the best of his knowledge, information, and
belief there is good ground to support it; and that it is not interposed for delay. If a pleading is
not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as
sham and false and the action may proceed as though the pleading had not been served. The
motion to dismiss was signed by defendant's attorney. The signature presumptively
constituted the required certificate. It could not have been interposed for delay, as such
defendant had never been served and time for appearance was not running against him.
Nothing indicates that it was sham or false or intended to defeat the purpose of Rule 11. To
the contrary, it appears from the record that said appellant desired to be informed concerning
the plaintiff's allegations that the named and fictitious defendants or some of them had
committed the acts complained of. And the proposed answer submitted by appellant with
his motion to vacate the default asserted in effect that he was not on the property and
had nothing to do with it or its operation until after the occurrence of the events causing
the alleged damage.
77 Nev. 54, 59 (1961) Gull v. Hoalst
submitted by appellant with his motion to vacate the default asserted in effect that he was not
on the property and had nothing to do with it or its operation until after the occurrence of the
events causing the alleged damage.
The following conclusions are unavoidable:
[Headnote 2]
(1) There is nothing in the record to justify the application of Rule 11 to support the order
striking the motion to dismiss. In addition, no notice of any such motion was given. Nor is
there anything in the record to justify the conclusion of Judge Wines that Judge Rice based
his order striking the motion to dismiss upon any violation of any provision of Rule 11.
Further, respondent has not even indicated that he considers that Rule 11, entitled Signing of
Pleadings, has reference to papers other than those described in Rule 7(a) entitled
Pleadings. Motions and Other Papers are provided for in rule 7(b).
[Headnote 3]
(2) Under Rule 12(b), requiring all defenses, in law or fact, to be asserted in a responsive
pleading, it is specifically provided in Rule 12(b)(5) that the defense of failure to state a claim
upon which relief can be granted may be made by motion. Rule 12(a)(1) definitely provides
that if the court denies a motion to dismiss, the responsive pleading shall be served within
ten days after notice of the court's action. Even if the unwarranted order striking without
notice the motion to dismiss could be interpreted as an order denying the motion to dismiss,
then the order for the defendant's default without an opportunity to file a responsive pleading
within ten days after notice was in direct violation of this rule.
[Headnote 4]
(3) Even if the default had been properly entered by the clerk on direction of the plaintiff,
or pursuant to the order made by the court directing the entry of such default, the application
to the court for judgment is required by the provisions of Rule 55(b)(2) to be based upon a
written notice of such application at least three days prior to the hearing thereof.
77 Nev. 54, 60 (1961) Gull v. Hoalst
upon a written notice of such application at least three days prior to the hearing thereof. The
conducting of such hearing by the court, on the day following the entry of the default, without
notice of any kind to the appellant, was a clear violation of this rule.
(4) Each of the two judges involved recited, apparently as forming some basis, or some
part of the basis, for the orders in question, the fact that the defendant had been personally
served. Such is not the case.
[Headnote 5]
(5) It is unnecessary to enter into a discussion whether the order for the default or the
judgment based on the default, or either of them, was void, voidable, erroneous, or irregular.
See discussion in Annotation 51 A.L.R.2d 837. They were directly attacked in due time by a
motion to set the same aside. For our purpose it is sufficient that the orders were in violation
of the rules and clearly erroneous. This being so, the order denying appellant's motion to
vacate such orders was likewise erroneous.
The judgment is reversed with costs and the case remanded to the district court with
directions to vacate and set aside the default and the default judgment and to vacate and set
aside the order denying the motion to vacate and set the same aside and to grant to appellant
ten days from receipt of notice, or such further time as may seem proper, within which to file
a responsive pleading (whether his answer as heretofore tendered or such other or further
pleading as may be proper) and to take such further proceedings as are permitted or required
under the rules of civil procedure.
____________
77 Nev. 61, 61 (1961) Johnson v. Brown
HOWARD JOHNSON, A Minor, by and Through his Guardian Ad Litem, WINONA
JOHNSON, and WINONA JOHNSON, Appellants, v. FOREST W. BROWN, Respondent.
No. 4320
February 14, 1961 359 P.2d 80
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Personal injury action. The trial court granted defendant's motion to dismiss, and plaintiffs
appealed. The Supreme Court, McNamee, J., held that evidence, including defendant's own
testimony that glare of sun reflected on parked vehicles made it hard to see, was insufficient
to take to jury case against defendant whose automobile struck jaywalking child.
Affirmed.
Charles E. Catt, of Las Vegas, for Appellants.
Robert L. Gifford, of Las Vegas, for Respondent.
Irregularity in requiring defendant to present evidence while his motion for dismissal at close of plaintiffs'
evidence was pending was waived when parties, in oral argument, requested reviewing court to consider, in
determining correctness of judgment of dismissal all of evidence in record to same extent as if order had
been for a directed verdict. NRCP 41(b).
2. Automobiles.
Inference of negligence could not be drawn from bare fact that injury had occurred to infant jaywalker
who was struck by defendant's automobile.
3. Negligence.
Proof of negligence cannot be left to mere speculation or conjecture.
4. Automobiles.
Motorist need not anticipate that pedestrian will be crossing boulevard in middle of block, and motorist
cannot be charged with failure to exercise due care in such circumstance unless pedestrian was observed in
time for motorist to avoid colliding with him. NRS 484.177, 484.178.
5. Automobiles.
Motorist who had no knowledge of any children in or near boulevard had no reason to anticipate sudden
appearance of child in path of his automobile and could not be charged with negligence
in failing to anticipate that child might run into road in front of his vehicle.
child in path of his automobile and could not be charged with negligence in failing to anticipate that child
might run into road in front of his vehicle. NRS 484.177, 484.178.
6. Automobiles.
Evidence, including motorist's own testimony that glare of sun reflected on parked vehicles made it hard
to see, was insufficient to take to jury case against motorist, whose automobile struck jaywalking child.
OPINION
This is a tort action brought by a minor and his mother for personal injuries and medical
expenses in connection with an automobile accident in which the minor, while playing in a
street, was struck and injured by a car operated by respondent. A jury was impaneled to try
the case. After appellants had completed their evidence, respondent moved pursuant to Rule
41 (b), NRCP, for a dismissal. While the motion still was undecided, the respondent, upon
direction of the court, produced his evidence. Before resting and before offering his proof in
support of his claim against a third party (an insurance company), respondent renewed his
motion to dismiss, and the court granted the same.
[Headnote 1]
The parties apparently concede that the respondent should not have been required to
present any evidence while the motion to dismiss was still pending. This irregularity,
however, is waived by all parties, who in oral argument requested this court to consider all
the evidence in the record in determining the correctness of the judgment of dismissal to the
same extent as if the order had been for a directed verdict. Consequently on this appeal the
testimony of respondent given, not only while he was an adverse witness called by appellants
but also after appellants had rested, will on appeal be reviewed for the purpose of determining
whether any issue was presented for jury consideration.
Appeal is from the judgment of dismissal.
The only question on appeal is whether sufficient evidence was presented by appellants to
require the case to go to the jury for determination.
The respondent was driving along West Charleston Boulevard in the county of Clark
(outside the city limits of Las Vegas) at approximately 20 to 25 miles per hour. The
maximum safe speed under the conditions prevailing was 25 miles per hour. The police report
states that no improper driving was indicated. On respondent's right side, the south side of the
boulevard, was a row of buildings with diagonal parking. On his left side was a residential
area. There was no pedestrian crosswalk in the vicinity and no cross street. The minor, 5
1/2-year old Howard Johnson, while playing with other children near the curbing on the
left-hand side, ran across the street into the path of respondent's car. It was 7:30 p. m. daylight
saving time, during the month of July, and still daylight, approximately ten minutes before the
sun set behind the neighboring mountains.
No direct evidence of any negligence on the part of the respondent was produced by
appellants. In fact, the only eyewitnesses to the accident were the injured boy, his 8
1/2-year-old brother who was one of the said other children, and the respondent.
Howard Johnson testified that he did not see the car before he started across the street.
When he heard his brother calling to him to watch out, there is cars coming, he turned
around to his brother, and saw the car that hit him.
John Johnson, Howard's brother, testified that while he was watching another boy doing a
bicycle trick he noticed that Howard had left and he was about, more than halfway across the
street, about a foot across the street and I saw a car coming I said Howard watch out.' He
started to turn around but he didn't get all the way turned around. * * * he started to turn
around and the car hit him.
West Charleston Boulevard was 66 feet wide, exclusive of the parking area on the south
side. The officers who testified were unable to tell where the impact took place. The skid
marks of the car were 38 feet in length and the impact could have been anywhere within the
38 feet. At the end of the skid the left wheel marks were 20 feet from where the south
curbline would have been if there had been no parking area. The impact broke the glass of
the vehicle's left headlight and caused a dent in the front of its left front fender.
glass of the vehicle's left headlight and caused a dent in the front of its left front fender.
The respondent testified that he didn't see Howard Johnson until after he hit him; that
because the sun was glaring off the cars that was parked on the side of the road there, it was
rather hard to see; that the glare of the sun came from the cars parked in the shopping
center and from the cars coming towards me and anything that would glare; that his car was
toward the middle of the road when he struck the boy; that he hit the brakes at the same time
I hit him; and that there were cars coming from the opposite direction which prevented him
from seeing the other side of the street. * * * there were so many cars backing in and out of
the shopping center there, I was trying to look in all directions to make sure there was nothing
there. I heard a thud, looked in front of me, the kid was rolling down the street. * * * When I
heard the thud I guess simultaneously I hit the brakes, turned to the rightthat was it.
Appellants' counsel argues that even though the record is silent as to any direct evidence of
negligence on the part of respondent, nevertheless his negligence can be inferred from the
testimony and from the physical facts hereinabove recited. The negligence to be inferred is
that the respondent was not keeping a proper lookout at the time of the accident because he
continued to proceed normally while being unable to see the street in front of him. There is
no basis in the record for this quoted statement of appellants' counsel. In this respect
respondent while testifying as an adverse witness was asked by appellants' counsel: Was
there any obstruction so far as visibility was concerned? Answer: No obstruction, just the
glare of the sun and watching people here and there and cars backing in and out. Question:
You were driving away from the sun? Answer: Yes, sir, but the sun was glaring off the
cars that was parked on the side of the road there, it was rather hard to see. When respondent
was later asked by his own counsel whether the reflection off the other cars affected his
vision in any way, the objection of appellants' counsel to this question was sustained.
his vision in any way, the objection of appellants' counsel to this question was sustained.
[Headnotes 2, 3]
To infer negligence on the part of respondent we would have to infer that (1) respondent
was proceeding along the boulevard while his forward vision was so obscured by the glare of
a reflected sun that he was unable to see the road ahead, and (2) that the injured child could
have been seen if respondent was keeping a proper lookout. There was no evidence upon
which either of these inferences could be based. Without evidence that respondent, because of
the glare, should have been driving slower than he was driving, the court could find that such
was the fact only through speculation. An inference of negligence cannot be drawn from the
bare fact that an injury has occurred. Lesage v. Largey Lumber Company, 99 Mont. 372, 43
P.2d 896. Proof of negligence cannot be left to mere speculation or conjecture. West v.
Wilson, 90 Mont. 522, 4 P.2d 469.
It is interesting to note that appellants' counsel, in objecting to respondent's testimony
relating to the glare, stated to the lower court: I object and move that be stricken on the
ground the sun is not an unusual situation; unless there is some special situation causing it to
be different that day than any other day, then it is not an unusual situation. There was no
evidence of any special situation causing the sun to be different that day from any other
day.
NRS 484.177 provides: Every pedestrian crossing a roadway at any point other than
within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the
right of way to all vehicles upon the roadway.
NRS 484.178 provides: Notwithstanding the foregoing provisions, every driver of a
vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway * * *
and shall exercise proper precaution upon observing any child or any confused or
incapacitated person upon a roadway.
[Headnotes 4, 5]
In view of these two statutes it is not required of the driver of a vehicle to anticipate that a
pedestrian would be crossing a boulevard in the middle of a block at any point other than
within a marked crosswalk, any more than a driver should anticipate that a vehicle
approaching from the opposite direction would suddenly cross over into his lane of traffic. A
driver cannot be charged with failure to exercise due care toward a person so crossing the
boulevard, unless such person is observed in time for the driver to avoid colliding with him.
The evidence affirmatively shows that respondent did not see the child at any time prior to the
accident, and no evidence was presented to show that respondent had reason to believe that
children would be playing in the vicinity of the place where the accident occurred. These
circumstances were not present in the cases of Nissen v. Johnson, 135 Mont. 329, 339 P.2d
651, or of Gilbertson v. Huffman, 54 Wash.2d 312, 340 P.2d 559, appearing in appellants'
briefs. Other cases cited by appellants likewise can be differentiated on factual grounds.
Where, as here, the respondent had no knowledge of any children in or near the boulevard,
and had no reason to anticipate the sudden appearance of a child in the path of his
automobile, he cannot be charged with negligence in failing to anticipate that a child may run
into the road in front of his vehicle. Simpson v. Hillman, 163 Ore. 357, 97 P.2d 527.
In Johnson v. Herring, 89 Mont. 420, 425, 300 P. 535, 536, the court said: The mere fact
that a motor-driven vehicle comes in contact with a pedestrian, to the injury of the latter,
raises no presumption of negligence on the part of the driver of the vehicle; in such a case the
right to recover damages for the injury inflicted on the pedestrian depends upon proof of the
allegation, necessary in the complaint, that the driver of the vehicle was guilty of negligence
proximately causing the injury. (Citing Cases.) Nor does the fact that the injured person was a
child of tender years and the driver a man, shift the burden of proof as to the proximate cause
of the accident * * *.
The Oregon court in Simpson v. Hillman, supra, said: Certainly there is no evidence
tending to show that Howard was driving the car at an unreasonable speed. Is there any
evidence tending to show that he failed to exercise ordinary care in keeping a proper lookout
for pedestrians? It is observed that the accident did not occur in a pedestrian lane but in the
middle of the block where the automobile had the right of way. * * * Of course the above
statutory rule in reference to right of way did not relieve the driver of the duty to exercise
reasonable care to avoid injuring any pedestrian who saw fit to cross the street at some place
other than a pedestrian lane. We advert to the statutory rule, however, to show that the
defendant Howard, in the absence of notice to the contrary, could not reasonably be expected
to anticipate that an unaccompanied child of tender age would, at such place, cross the street
in front of a parked car and in the path of an oncoming vehicle.
[Headnote 6]
No fact question of negligence on the part of respondent was presented which would
require its submission to the jury. It appears as a matter of law that recovery cannot be had on
any reasonable view of the established facts.
We conclude that the judgment of dismissal was proper and must be affirmed with costs. It
is so ordered.
____________
77 Nev. 68, 68 (1961) Sierra Pacific Power Co. v. Anderson
SIERRA PACIFIC POWER COMPANY, A Maine Corporation, and FRANK TRACY,
Appellants, v. ANDREW V. ANDERSON, Respondent.
No. 4298
February 17, 1961 358 P.2d 892
Appeal from judgment of the Second Judicial District Court, Washoe County; Clel
Georgetta, Judge.
Action against gas company for injuries sustained by a fireman in an explosion. The trial
court denied defendants' motion for new trial and entered judgment for fireman, and
defendants appealed. The Supreme Court, Jon R. Collins, District Judge, held that trial court
properly refused to hold that fireman, who arrived at scene to investigate presence of gas
when there was no fire or explosion in progress, did not matter of law assume risk that
several blocks would suddenly blow up and held that award of $36,000 was not excessive.
Judgment affirmed.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno for Appellants.
Nada Novakovich, of Reno, for Respondent.
1. Negligence.
Assumption of risk, as a defense, is founded on the theory of consent and requires voluntary exposure to
danger and actual knowledge of the risk assumed.
2. Master and Servant.
A fireman assumes only those risks which reasonably flow from his occupation and not unknown,
extraordinary risks not contemplated and expected to be incidental to his work.
3. Negligence.
Contributory negligence operates as a defense when party knows, or by the exercise of ordinary care
should know, a particular fact or circumstance, and assumption of risk operates only when party actually
knows the full scope and magnitude of danger and thereafter voluntarily exposes himself to it.
4. Gas.
Fireman who was assigned to investigate presence of gas and who arrived at scene when there was no fire
or explosion in progress did not, as a matter of law, assume risk that several city blocks would suddenly
blow up.
5. Negligence.
Knowledge or lack of it on part of person against whom defense of assumption of risk is raised is factual
matter for jury, and a person in entitled to tell the condition of his own mind on that subject, and it then
becomes matter of what credibility or weight jury will attach to it.
6. Gas.
Fireman, who sought to recover from gas company for injuries sustained in explosion of gas, was
properly permitted to testify that he did not know there would be an explosion.
7. Damages.
Jury was properly permitted to pass upon fireman's claim of loss of future earnings, in view of evidence
that he had become unfit for his duties as fireman and expert testimony as to physical impairment of hand
and spine.
8. Damages.
Jury might take into consideration, in passing upon fireman's claim of loss of future earnings, the fact that
fireman, who was retired as result of injuries, had no education or preparation for a different pursuit.
9. Damages.
Award for future pain and suffering, which is subjective and cannot be observed by court and jury, must
be substantially supported by expert testimony to be probable, but if evidence is objective and can be
observed by court and jury, an award for such items of damage need not be supported by expert testimony
so long as jury otherwise finds from substantial evidence that it is probable.
10. Damages.
Laceration of wrist was an objective injury with respect to which expert testimony was not necessary to
prove future pain and suffering.
11. Damages.
Pain resulting from injury aggravating old fracture of fireman's back and fireman's sense of remorse and
guilt over his inability to save more people at scene of explosion were mainly subjective items of pain and
suffering, but in view of substantial expert testimony as to probably future pain and suffering, giving of
instruction relating thereto was not improper.
12. Damages.
All that is required for award of damages for future pain and suffering is that there be sufficient evidence
that party will probably suffer such damage in the future.
13. Damages.
Award of $36,000 to fireman, who was involuntarily retired at age of 42 for physical and mental inability
to perform duties, whose wrist was lacerated and torn, whose old back fracture was aggravated and who
suffered sense of remorse and guilt over his inability to save more people at scene of explosion was not
excessive.
OPINION
By the Court, Collins, D.J.:
This is an appeal from the order of the trial court denying a new trial, and from a judgment
of the trial court based upon the verdict of a jury in favor of respondent and against appellants
for the sum of $36,000. The jury awarded damages as follows:
(a) for bodily impairment $1,000.00
(b) for loss of earning power to date and to be incurred in the future 15,000.00
(c) for pain and suppering from accident to date of verdict 4,136.65
(d) for pain and suffering to be incurred in the future 15,000.00
(e) medical expense paid by the Nevada Industrial Commission 863.35

_________

Total $36,000.00
At the trial appellants admitted negligence but contended, as a matter of law, that
Anderson had assumed the risk of the condition which caused his injuries. The trial court
ruled that such issue was for the jury and permitted that issued and the question of damages to
be passed upon by the jury.
Appellants assign as error the following points:
1. That assumption of risk by respondent was established as a matter of law.
2. That it was improper to allow respondent to testify he didn't know there was going to be
an explosion.
3. Permitting the jury to award respondent damages for loss of future earnings.
4. Permitting the jury to award respondent damages for future pain and suffering.
5. That the verdict was excessive.
The circumstances out of which this appeal arose were the explosion and fire at North
Sierra Street in Reno, Nevada, on February 5, 1957. Respondent at that time was a captain of
the Reno Fire Department and was assigned by his superior to investigate the smell of gas
at North Sierra Street.
assigned by his superior to investigate the smell of gas at North Sierra Street. He arrived there
at approximately 12:54 p.m. There was no explosion or fire in progress at the time. He went
from building to building in the area, investigating the odor of gas, warning occupants and
customers, called the central fire station to report his findings and, about ten minutes later,
was on the west curb of the street when the first and second of two explosions occurred. As a
result, respondent Anderson suffered the injuries hereinafter discussed. The explosion and
resulting fire were of great magnitude, destroying substantial parts of two city blocks in
downtown Reno and killing and injuring several persons. The evidence adduced at the trial
indicated that Anderson's injuries consisted of a laceration of the cheek and chin; puncture
wounds and laceration of the left leg; puncture wounds and lacerations of the right wrist
severing the extensor tendons; aggravation of a previously fractured spine; nervous tension
and feeling of remorse and guilt resulting from circumstances surrounding the explosion. He
was confined to the hospital for three weeks, after which he returned to his employment with
the fire department at his regular monthly salary of $505. He was involuntarily retired late in
1958 when he was 42 years of age and had risen to rank of captain. He was granted disability
retirement of $197.42 per month. His retirement was brought about by his physical and
mental inability to perform his duties. Respondent, after the accident, enrolled in school,
completed his high school course and then entered the University of Nevada.
[Headnote 1]
The principal ground of error urged by appellants is that respondent should be held to have
assumed the risk as a matter of law. Assumption of risk, as a defense, is founded on the
theory of consent, with two main requirements: (1) voluntary exposure to danger, and (2)
actual knowledge of the risk assumed. A risk can be said to have been voluntarily assumed
by a person only if it was known to him and he fully appreciated the danger.'" Papagni v.
Purdue, {195S), 74 Nev. 32, 35
the danger.' Papagni v. Purdue, (1958), 74 Nev. 32, 35, 321 P.2d 252, 253. Appellants argue
that Anderson voluntarily exposed himself to a risk that was or should have been known to
him by reason of his training and experience as a fireman, and because of his employment by
the municipality of Reno. They urged that a fireman, by the very nature of his contract of
employment and the duties arising therefrom, voluntarily assumes all risks incident thereto
and cite Clark v. Boston and Maine Railroad, 78 N.H. 428, 101 A. 795, L.R.A. 1918a, 518;
Suttie v. Sun Oil Co., 15 Pa. D. & C. 3.
[Headnotes 2-4]
A fireman, solely by reason of his employment, does not assume all risks arising
therefrom. He is held to assume only those risks which reasonably flow from his hazardous
occupation. He does not assume unknown, extraordinary risks not contemplated and expected
to be incidental to his work. Smith v. Twin State Gas and Electric Co., 83 N.H. 439, 144 A.
57, 783, 61 A.L.R. 1015. The evidence shows that when Anderson arrived at the scene to
investigate the presence of gas, there was no fire or explosion in progress. It is not reasonable
to expect Anderson to know that several city blocks would suddenly blow up; that many
persons would be killed and injured; that vast property damage would be inflicted. Yet to
assume the risk as a matter of law, Anderson must have known all this, appreciated the
magnitude of the danger to himself and would have withdrawn from the area, if appellants'
theory is to be adopted. A clear distinction should be made between the doctrine of
contributory negligence which operates as a defense when a party knows or by the exercise of
ordinary care should have known a particular fact or circumstance, and assumption of risk,
which operates only when the party actually knows the full scope and magnitude of the
danger and thereafter voluntarily exposes himself to it. The fact that Anderson recognized the
possibility of an explosion occurring was quite different from knowledge on his part that an
explosion would occur. Papagni v. Purdue, supra; Smith v. Twin State Gas Co., supra; Fuchs
v. Mapes, 74 Nev. 366
Mapes, 74 Nev. 366, 332 P.2d 1002. The trial court was therefore correct in refusing to hold
that Anderson assumed the risk as a matter of law.
The next point of error urged by appellants was permitting Anderson to testify he didn't
know there would be an explosion. Appellants suggest this testimony was to an ultimate fact
and therefore invaded the province of the jury, citing Mikulich v. Carner, 69 Nev. 50, 240
P.2d 873, 38 A.L.R.2d 1; and Konig v. Nev.-Cal.-Oregon Railway, 36 Nev. 181, 135 P. 141.
Respondent contends it was a statement on the condition of his mind and admissible along
with other evidence for the jury's consideration.
[Headnotes 5, 6]
As stated above, an essential element of assumption of risk is actual knowledge by the
party of the danger assumed. Knowledge or lack of it on the part of the person against whom
the defense is raised is a factual matter for the jury to pass upon. A person is entitled to tell
the condition of his own mind on this subject and it then becomes a matter of what credibility
or weight the jury will attach to it. Anderson certainly could have been cross examined
thoroughly on this point in light of his training and experience, impeaching evidence could
have been offered attacking his credibility and the weight to attach to his statement, and it
could have been argued to the jury to be cautious in attaching much weight to such testimony
because Anderson was the party in interest. The objection was not well taken and the trial
court's ruling was correct. 32 C.J.S., Evidence, sec. 459; 22 C.J., Evidence, sec. 611.
[Headnotes 7, 8]
As their third contention of error, appellants urge the trial court was wrong in giving
Instruction No. 30 permitting the jury to pass upon claimed loss of future earnings by
respondent Anderson in light of the evidence presented at the trial. Appellants say the
claimed item of damage was uncertain and not supported by medical testimony or opinion.
They cite Brown v. Lindsay, 68 Nev. 196, 205, 228 P.2d 262; City of Pueblo v. Ratliff, 131
Colo.
131 Colo. 381, 281 P.2d 1021; Chesapeake & Ohio Railway Co. v. McCullough, 230 Ky.
478, 19 S.W.2d 1076, and other cases as their authority. Evidence in the record indicates that
respondent became unfit for his duties as a fireman. Respondent and Fire Chief Karl Evans
both testified to this. Doctor T. C. Harper testified to some physical impairment of
respondent's right hand and Dr. Jack P. Sargent testified to aggravation of a previously
fractured spine, all as a result of the Sierra Street explosion. Such being the evidence, it then
became the right of the jury to determine whether or not respondent's earning capacity had
been impaired, to what extent, and to accord to such evidence the significance and weight
they saw fit. Ostertag v. Bethlehem Shipbuilding Corp., 65 Cal.App.2d 795, 151 P.2d 647.
Destroyed or impaired earning capacity within life expectancy is a proper item of damage. 15
Am.Jur., Damages, sec. 91, p. 501. The jury might take into consideration, in passing upon
this item of damage, the fact the person has no education or preparation for a pursuit different
from that in which he was engaged and no longer able to follow. 15 Am.Jur., Damages, secs.
92 and 93, p. 503; Graham v. Mattoon City Railway Co., 234 Ill. 483, 84 N.E. 1070. There
being evidence upon which reasonable minds might disagree, the jury being properly
instructed on the law, this court will not disturb the judgment for the reason assigned.
[Headnote 9]
The next point urged by appellants as error is the giving of Instruction No. 30 relating to
future physical and mental pain and disability. That part of the instruction complained of
reads as follows: The physical and mental pain, suffering, anguish, and disability which you
believe is reasonably certain to be suffered by him in the future as a result of the accident.
Appellants say the jury should not have been allowed to assess damages for future pain and
suffering in the absence of expert medical testimony that such was the probable result of
Anderson's blast injury. For their authority they rely mainly upon Curti v. Franceschi, 60 Nev.
422, 111 P.2d 53, 112 P.2d 819, wherein this court stated that an award for future pain and
suffering, which is subjective {i.e., cannot be observed by the court and jury themselves),
must be substantially supported by expert testimony to be probable, as contrasted with
possible.
for future pain and suffering, which is subjective (i.e., cannot be observed by the court and
jury themselves), must be substantially supported by expert testimony to be probable, as
contrasted with possible. Whereas, on the other hand, if evidence of future pain and suffering
is objective and can be observed by the court and jury, an award for such items of damage
need not necessarily be supported by expert testimony, so long as the jury otherwise finds
from substantial evidence that it is probable.
While the rules are clear, the application of those rules does not always fit with precision.
Appellants say Anderson's injuries were mostly subjective and further there was no
substantial testimony by expert witnesses as to probable future pain and suffering.
Respondent, on the other hand, says his injuries were not all subjective, instead to a large
extent were objective; but in any event, there was expert medical testimony and other
substantial evidence supporting his probable future pain and suffering.
[Headnotes 10, 11]
Reviewing the evidence with these points in mind, we find as follows: Anderson's wrist
was lacerated and torn and the extensor tendons severed. This is an objective injury which the
jury could observe for itself. Also Anderson's back was reinjured, aggravating an old fracture.
He suffered low-back pain. He also suffered a sense of remorse and guilt over his inability to
save more people at the scene of the explosion; that he was irritable and could not get along
with his fellow employees in the fire department; that he could not perform the full scope of
his duties as a fireman; and that his career as a captain in the fire department had ended.
These latter items of pain, suffering, mental worry, distress, grief, and mortification were
mainly subjective. However, there was substantial expert medical testimony to establish
probable future pain and suffering.
[Headnote 12]
Such damages do not have to be established with the certainty of a mathematical
demonstration. All that is required is that there be sufficient evidence from which the jury
can arrive at the conclusion that the party will probably suffer such damages in the
future.
the jury can arrive at the conclusion that the party will probably suffer such damages in the
future. This being so, no reversible error was committed by the trial court or jury with respect
to future pain and suffering.
[Headnote 13]
The final point of error urged on appeal is excessiveness of the verdict. This point
necessarily falls within the foregoing rulings. This clearly is a case where substantial evidence
of a conflicting nature was before the jury, no prejudicial errors of law were made; and the
verdict of the jury must and should be upheld. Southern Nevada Gold & Silver Mining Co. v.
Holmes Mining Co., 27 Nev. 107, 73 P. 759.
Affirmed.
Badt, C. J., having disqualified himself, the Governor designated Honorable Jon R.
Collins, Judge of the Seventh Judicial District Court, to sit in his place and stead.
____________
77 Nev. 76, 76 (1961) Pearson v. Pearson
HARLOW SIMMONS PEARSON, Appellant, v.
ANNABELLE WEBB PEARSON, Respondent.
No. 4322
February 20, 1961 359 P.2d 386
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by husband for divorce on ground of three years' separation without cohabitation.
From an adverse judgment of the trial court, the husband appealed. The Supreme Court,
McNamee, J., held that the trial court abused its discretion in denying husband a divorce on
ground that a reconciliation was possible because wife had never intended separation, which
had lasted for 11 years, to be permanent.
Affirmed in part, reversed in part, and remanded with directions.
Denton & Smith and George F. Ogilvie, Jr., of Las Vegas for Appellant.
Morse & Graves, of Las Vegas, and J. K. Dorsett, Jr., of Raleigh, North Carolina, for
Respondent.
1. Divorce.
Statute authorizing divorce when husband and wife have lived apart for three consecutive years without
cohabitation does not require that party seeking divorce on such ground should be without fault and
discretion of trial court in granting divorce depends not so much upon comparative rectitude of conduct of
spouses as upon probability of their being able to live together in such manner as to be for their best
interests and best interests of society. NRS 125.010.
2. Divorce.
Trial court abused its discretion in denying husband a divorce on ground that a reconciliation was
possible because wife had never intended separation, which had lasted for 11 years, to be permanent. NRS
125.010.
3. Divorce.
Separation contemplated by statute authorizing a divorce when husband and wife have lived apart for
three consecutive years, without cohabitation, need not result from mutual consent but can result from fact
that husband, with or without acquiescence of wife, intended to discontinue marital relationship. NRS
125.010.
4. Husband and Wife.
A wife cannot in an action for separate maintenance recover sums expended by her for past support of
either herself or of minor children whether or not she would be able to entertain an independent action
therefor. NRS 125.210, subd. 1.
5. Divorce.
Wife was not entitled in an action by husband for divorce, to recover moneys expended for support of
herself and minor children following separation of husband and wife. NRS 125.210, subd. 1.
OPINION
Appellant brought this action against his wife for a divorce on the ground of three years'
separation without cohabitation.
cohabitation. In her answer the wife admitted the separation but alleged that it was without
fault on her part in that the husband had willfully deserted her. With her answer she filed a
cross-claim for separate maintenance based on her husband's willful desertion. She later
amended both her answer and cross-claim to charge her husband with adultery in addition to
the charge of willful desertion.
The trial court found that the parties had been separated for more than three consecutive
years without cohabitation and that the separation was caused by the husband's complete and
total abandonment of his wife and children since the year 1946. No finding with respect to the
charge of adultery was made. The court refused to grant the husband a divorce because the
separation was never intended by the wife to have been continual. Thereupon it entered a
judgment in favor of the wife for separate maintenance wherein it allowed her $68,948.44 for
past support of the wife and the three children of the marriage less the sum of $38,160, the
amount of a judgment she had already obtained against him in a court of another jurisdiction.
In addition thereto, the lower court awarded her $200 a month for her support and
maintenance commencing February 1, 1960.
1
Appeal is from such judgment, but appellant
does not attack that part of the judgment awarding the wife $200 a month for her support.
1. NRS 125.010 provides in part as follows: Divorce from the bonds of matrimony may
be obtained for any of the following causes: * * * When the husband and wife have lived
separate and apart for 3 consecutive years without cohabitation the court may, in its
discretion, grant an absolute decree of divorce at the suit of either party.
[Headnote 1]
This court has consistently held that such a statute does not require that a party seeking a
divorce on the ground therein stated should be without fault. Herrick v. Herrick, 55 Nev. 59,
25 P.2d 378; Jeffers v. Jeffers, 55 Nev. 201
____________________

1
Future support for the children was not required for the reason each had reached his majority.
55 Nev. 201, 29 P.2d 351; George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983;
Kohlsaat v. Kohlsaat, 62 Nev. 485, 155 P.2d 474; Lagemann v. Lagemann, 65 Nev. 373, 196
P.2d 1018; Fausone v. Fausone, 75 Nev. 222, 338 P.2d 68; Sutherland v. Sutherland, 75 Nev.
304, 340 P.2d 581. The fault of one or both of the parties which may have caused the
separation is merely a circumstance for the trial court to consider in the exercise of its
discretion. Herrick v. Herrick, supra. The trial court may, provided its discretion is not
abused, grant a divorce to a plaintiff who has been at fault from a defendant who has been
entirely without fault. Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212, 148 A.L.R. 1104. The trial
court in exercising its discretion must also consider from the evidence whether a
reconciliation between the parties is likely. The discretion which the trial court is called
upon to exercise depends not so much upon the comparative rectitude of conduct of the
spouses as upon the probability of their being able to live together in such manner as to be for
their best interest and the best interest of society. George v. George, supra.
[Headnote 2]
Appellant contends that the evidence before the lower court is overwhelming to the effect
that a reconciliation between husband and wife is impossible, and, because an 11 years'
period of separation is conceded, the court abused its discretion in refusing to grant the
husband a divorce.
It is apparent from the written decision of the trial court upon which its findings are based,
that in the exercise of its discretion resulting in the denial of a divorce to the husband, the
court did not consider any marital misconduct on the part of appellant. Its finding of willful
desertion of the wife by the husband related only to her cross-claim for separate maintenance.
Evidence of the husband's good or bad conduct is admitted to aid, but not to control the court
in the exercise of its discretion, and its consideration by the court might be reasonably
expected to influence the discretion conferred on the court by the statute. Jeffers v. Jeffers,
supra; Lemp v. Lemp, supra. The court's refusal to grant a divorce was based solely upon its
conclusion that a reconciliation was possible.
grant a divorce was based solely upon its conclusion that a reconciliation was possible. This
conclusion resulted from a finding that the wife never intended the separation to be
permanent. In this respect the court in its decision said: The law with relation to three years'
separation states that a decree may be granted in the discretion of the court. So long as the
court has any discretionary powers in this instance the court is of the opinion that the
separation of the parties was never intended by the wife to have been continual. The court is
satisfied she has been led to believe the plaintiff would make a home for her in some other
place but it never developed. Under the circumstances, a decree of divorce is denied.
[Headnote 3]
The conclusion that a reconciliation was possible solely because the wife might have
believed such to be true is, we believe, based on a false premise. Whether or not the wife
sincerely believed that a reconciliation was possible is not of controlling significance when
the evidence shows without contradiction that there is no possibility of reconciliation on his
part. The fact that one party would be willing to reconcile and one would not constitutes no
conflict in the evidence. The testimony of each party regarding his or her state of mind
relative to the possibility of a reconciliation could both be true. There can be no
reconciliation, however, if one party is unwilling to become reconciled with the other. The
separation contemplated by the statute need not result from mutual consent but can result
from the fact that the husband with or without the acquiescence of the wife intended to
discontinue the marital relationship. Caye v. Caye, 66 Nev. 78, 203 P.2d 1013, 211 P.2d 252;
Sutherland v. Sutherland, supra.
Because of the lower court's misconception of the evidence relating to reconciliation and
its resultant erroneous conclusion therefrom, the contention of appellant that the court abused
its discretion must be sustained. The case must therefore be remanded to the trial court with
instructions that it exercise its discretion in light of the proven fact that a reconciliation
between the parties is impossible.
parties is impossible. This is not to say that the lower court would be precluded, in the
exercise of its discretion, from denying the husband a divorce if, in the consideration of
recriminatory evidence, such action would in its opinion be warranted. See Fausone v.
Fausone, supra. In other words, upon reconsideration, the lower court is not by this opinion
restricted in any degree from exercising the legal discretion given it by the statute, which
discretion must be exercised in the light of all of the facts appearing in the record. Herrick v.
Herrick, supra.
2. Appellant further contends that the court erred in finding that he was indebted to
respondent in the sum of $30,788.44 and in giving judgment therefor. This figure represents a
part of moneys expended by respondent since the separation of appellant and respondent for
her support and the support of the three minor children.
The wife's only allegation relevant to such an award is * * * That plaintiff can well
afford, although plaintiff has refused since the separation of plaintiff and defendant, to
support defendant and the said minor children of the parties with the sum of $1,500 a month.
That said sum is a reasonable sum and a necessary sum for the support and maintenance of
said minor children. The sufficiency of this pleading was not attacked in the lower court.
The husband denied these allegations in his answer to the cross-claim but affirmatively
alleged therein that a court of competent jurisdiction, after hearing all the evidence, found
that $200 per month is a fair and reasonable sum for the support and maintenance of the
aforesaid minor children of the parties hereto, and prayed that she receive nothing further
than the allowance which has heretofore been made by the Domestic Relations Court of the
State of New York wherein jurisdiction of both parties was then and there had by the court.
Appellant gives the following reasons for this claim of error: (a) nowhere in her pleadings
did the respondent seek such a judgment; (b) if the evidence justified a finding that the
appellant was indebted to anyone at all with respect to such past expenditures, it would be to
respondent's father who advanced the support money to respondent; and {c)
reimbursement for past expenditures for support and maintenance is not the proper
subject of a separate maintenance suit, but could only be recovered in an independent
action.
to respondent's father who advanced the support money to respondent; and (c) reimbursement
for past expenditures for support and maintenance is not the proper subject of a separate
maintenance suit, but could only be recovered in an independent action.
[Headnote 4]
Even though there is no allegation in respondent's pleadings which would support an
award to her for sums she had expended for the past support and maintenance of herself and
the children, respondent argues that such defect was waived since it is raised for the first time
on appeal. Without deciding that issue, we have concluded that under the Nevada statute
relating to actions for separate maintenance
2
a wife cannot in such an action seek recovery of
sums expended by her for past support of either herself or of the minor children of the parties,
whether or not she would be entitled to entertain an independent action therefor. Accord,
Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212, 148 A.L.R. 1104. Our conclusion renders
unnecessary any further consideration of this claim of error.
[Headnote 5]
The judgment insofar as it appears to approve the findings of fact and conclusions of law
which determined that appellant was not entitled to a divorce is reversed; that part of the
judgment in favor of respondent and against appellant for the sum of $30,788.44 is reversed;
the security provisions of the judgment are modified so as to delete reference to the collection
of $30,788.44. In all other respects the judgment is affirmed.
Respondent is allowed her costs.
____________________

2
Subsection 1, NRS 125.210: In any such action the court may assign and decree to the wife the possession
of any real or personal property of the husband and may order or decree the payment of a fixed sum of money
for the support of the wife or for the support of the wife and of her child or children and provide that the
payment of the same be secured upon real estate, or other security may be required, or any other suitable
provision may be made; payments to be made at such times and in such manner as to the court may seem
proper.
____________
77 Nev. 83, 83 (1961) Cook v. State
R. DALE COOK, Appellant, v.
STATE OF NEVADA, Respondent.
No. 4291
February 22, 1961 359 P.2d 483
Appeal from the Seventh Judicial District Court, Lincoln County; Jon R. Collins, Judge.
The defendant was convicted of forgery. The trial court rendered the judgment, and the
defendant appealed. The Supreme Court, Badt, C. J., held that the evidence sustained the
conviction, and that the defendant was not prejudiced by allegedly erroneous rulings of the
District Court with respect to a charge of obtaining money under false pretenses, the
defendant not having been convicted on such charge.
Affirmed.
R. Dale Cook, of Caliente, in pro. per.
Roger D. Foley, Attorney General of Nevada, and Roscoe H. Wilkes, District Attorney of
Lincoln County, for Respondent.
1. Criminal Law.
Allegedly erroneous rulings of trial court with respect to charge of obtaining money under false pretenses
were not prejudicial, where defendant was convicted only of forgery and not of obtaining money under
false pretenses.
2. Criminal Law.
Jurors could not impeach their own verdict.
3. Criminal Law.
Instructions in criminal prosecution should be regarded as a whole and not disconnectedly.
4. Criminal Law.
Each instruction in criminal prosecution is equally as binding as any other.
5. Criminal Law.
Assignment that trial court erroneously failed to admonish district attorney for using allegedly
inflammatory statements in closing argument was not available to defendant, who made no objection, no
assignment of miscontuct, and no request for instruction that remarks be disregarded.
6. Criminal Law.
While discretion is vested in district judge in acting on application of defendant for probation. NRS
176.300-176.350.
77 Nev. 83, 84 (1961) Cook v. State
7. Criminal Law.
Trial court did not abuse its discretion in denying defendant's application for probation. NRS
176.300-176.350.
8. Forgery.
Evidence sustained forgery conviction.
OPINION
This is an appeal from a judgment finding appellant guilty of forgery, based upon the jury's
verdict.
Appellant, an attorney disbarred from practice in this state, accepted a retainer from one
Joan E. O'Haver in connection with divorce proceedings to be instituted on her behalf. When
she learned that he had been disbarred, she consulted the district attorney who arranged for
her to continue with appellant and complete her arrangement with him. Some half dozen
conferences were had between Mrs. O'Haver and appellant. At her final meeting with him, he
delivered to her what purported to be a certified copy of a divorce decree and accepted
balance of fee. This payment was made in marked bills. As soon as she left his office, the
peace officers entered and arrested him and found the marked bills in his possession.
An information was filed against him charging him, in the first count, of obtaining $150
from Mrs. O'Haver by false pretenses and, in the second count, of forgery in uttering,
publishing, and passing a counterfeit and forged document with intent to damage and defraud
Mrs. O'Haver. The jury was instructed that it could find the defendant guilty on only one
count. No question is raised as to this instruction or as to the information itself.
At the conclusion of the trial, the jury was handed appropriate forms of verdict as to each
count separately and returned a verdict of finding him guilty of forgery. He presents seven
assignments of error.
[Headnote 1]
We may dispose of the first three assignments together.
77 Nev. 83, 85 (1961) Cook v. State
together. He first assigns error in the court's denial of his motion to suppress certain evidence.
This evidence consisted of the marked bills with which Mrs. O'Haver paid the fee and costs in
the divorce action. The ground of his motion was that the evidence had been unlawfully
obtained because he had been unlawfully arrested without a warrant and not under the
statutory circumstances justifying his arrest without a warrant. The second assignment is that
the court improperly commented on the testimony of Mrs. O'Haver. The third is that appellant
was unduly limited as to the time within which he could recall a witness. A careful
examination of the record indicates that these three assignments had to do with the charge of
obtaining money under false pretenses. As he was not convicted of this crime, the rulings
were without prejudice. We should add, however, that notwithstanding such conclusion,
careful attention has been given to the record and the briefs with reference to these three
assignments, and we find them in any event without merit.
[Headnotes 2-4]
The fourth assignment of error is the denial of appellant's motion for new trial made on the
ground of newly discovered evidence, namely, the evidence apearing from affidavits of two
members of the jury stating that they based their verdict entirely upon instruction No. 23 and
without regard to the other instructions38 in all. Instruction No. 23 gives the statutory
definition of forgery. The affidavits evidence nothing more than a lame attempt of the two
jurors to impeach their own verdict, which they will not be heard to do. Pinana v. State, 76
Nev. 274, 352 P.2d 824. It should be noted that the jury received the regular instruction that
the instructions should be regarded as a whole and not disconnectedly and that each
instruction is equally as binding as any other.
[Headnote 5]
Appellant's fifth assignment asserts that the court erroneously failed to admonish the
district attorney for using inflammatory statements in his closing argument.
77 Nev. 83, 86 (1961) Cook v. State
Appellant made no objection, no assignment of misconduct, no request for an instruction that
the district attorney's remarks be disregarded. The assignment is not now available to him.
State v. Boyle, 49 Nev. 386, 248 P. 48.
[Headnotes 6, 7]
Appellant's sixth assignment is that the court abused its discretion in denying appellant's
application for probation. In denying probation the district judge filed a seven-page opinion in
support of his decision. He referred at length to appellant's record. To repeat that record here
would only serve further to injure appellant's reputation. Under the statutory provisions
governing suspension of sentence and probation, NRS 176.300 to 176.350, inclusive, a wide
discretion is vested in the district judge. We find no abuse in his exercise thereof.
[Headnote 8]
Appellant's last assignment of error is the insufficiency of the evidence to warrant the
verdict of the jury, and likewise the court's denial of his motion for new trial based on this
ground. Of the 328 pages of the transcript, the large volume of pleadings, and the numerous
exhibits, we find that almost all such material had to do with the count of obtaining money
under false pretenses, on which count, as we have noted, the jury returned no verdict. On the
count of forgery there was admitted in evidence the document prepared by the appellant and
delivered to Mrs. O'Haver at the time she made the final payment to appellant. It is entitled in
the Eighth Judicial District Court of the State of Nevada, in and for Clark County. Joan E.
O'Haver, plaintiff v. Lloyd Martin O'Haver, defendant. It is given Case No. 93816. It is
labeled Decree of Divorce, and it is bound in a conventional legal cover. It contains all the
regular recitals of a default divorce decree and orders the dissolution of the marriage and the
awarding of the custody of the two minor children to the plaintiff. It bears the typewritten
signature of a visiting judge from another district in the state and shows the name of a duly
licensed Las Vegas attorney, with his office address in that city, as the attorney for
plaintiff.
77 Nev. 83, 87 (1961) Cook v. State
attorney, with his office address in that city, as the attorney for plaintiff. It is followed by the
regular printed form of certification of copy used by the county clerk of Clark County
certifying the copy to be a full, true, and correct copy of the original decree of divorce in said
action now on file and of record in this office. It is issued under the hand of Helen Scott
Reed, the county clerk of Clark County, whose name is printed thereon by a written signature
reading Loretta Baker, deputy clerk, and bears the faint imprint of a seal. The evidence shows
that the Las Vegas attorney referred to in the spurious document had nothing to do with the
same; that no such case was ever filed or pending in Clark County under the given filing
number or any other number; that no such decree was ever entered; that no clerk or deputy
clerk of Clark County ever issued the certification of copy; and that there was no such deputy
clerk as Loretta Baker. The evidence of the forgery was conclusive.
Affirmed.
____________
77 Nev. 87, 87 (1961) Close v. Flanary
In the Matter of the Estate of S. PETERSON, Also Known as SVANTE PETERSON, Also
Known as SWANEY PETERSON, Deceased.
MILDRED JANE CLOSE, Appellant, v. JUANITA D. FLANARY, FRANCES ATKINSON,
VERN HURSH, NEVADA CHAPTER OF THE NATIONAL FOUNDATION FOR
INFANTILE PARALYSIS, Respondents.
No. 4304
February 22, 1961 360 P.2d 259
Appeal from the judgment of the Second Judicial District Court, Washoe County, Taylor
H. Wines, District Judge of the Fourth District, presiding.
Will contest. The trial court entered judgment admitting will to probate. Contestant
appealed. The Supreme Court, Badt, C. J., held that testator possessed testamentary capacity
and had not been subjected to undue influence and that his signature had not been forged.
Affirmed.
See also 75 Nev. 255, 339 P.2d 379.
(Petition for rehearing denied March 20, 1961.)
Nada Novakovich, of Reno, for Appellant.
Lohse and Fry, of Reno, for Respondent Security National Bank, Special Administrator,
Juanita D. Flanary and Vern Hursh.
Bible, McDonald and Jensen, of Reno, for Respondent Nevada Chapter of the National
Foundation for Infantile Paralysis.
Margaret Faires Baily, of Reno, for Respondent Frances Atkinson.
1. Wills.
Supreme Court will not disturb findings of courts or jury in will contest when supported by substantial
evidence.
2. Wills.
Supreme Court, in will contest, would limit review on assignments of error based on insufficiency of
evidence to ascertainment of whether substantial evidence supported verdict.
3. Wills.
Substantial evidence supported finding that will was not procured by fraud or undue influence.
4. Wills.
Substantial evidence supported finding that will was properly executed, attested and subscribed.
5. Wills.
Substantial evidence supported finding that instrument presented for probate was the same instrument,
without any substitution of a page, which had been signed by testator and attested by witnesses.
6. Wills.
Substantial evidence supported finding that signature to will was not forged but was guided signature of
testator.
7. Wills.
Substantial evidence supported finding of mental competency of testator.
8. Wills.
Testimony of attesting witnesses, offered to prove identity of will offered for probate and not to prove
content of will, was properly admitted.
9. Witnesses.
The dead man's rule did not prevent attorney from testifying to instructions received by him from testator
as to preparation of will, where such testimony had to do only with who could participate in distribution of
estate and instant proceeding was will contest and did not involve claim against estate, notwithstanding that
attorney was party to contest. NRS 48.010, 48.030.
10. Witnesses.
Testimony of witness to conversation in which testator had said that he had made a new will which named
certain beneficiaries and administrator and that one other person had been well taken care of otherwise was
admissible in will contest despite dead man's rule. NRS 48.010, 48.030.
11. Witnesses.
Beneficiaries under will are not disqualified by interest from testifying as to competency of testator.
12. Witnesses.
Refusal to permit witness who had testified as to competency of testator to be asked on cross-examination
as to what nudist is was not error.
13. Wills.
Instruction in will contest that testator's signature is not invalid by reason of another person's having
aided or guided testator's hand in signing his name and that such assistance is often necessary because of
physical condition or blindness of testator was not error even though statutes do not specifically provide for
such rule.
14. Wills.
Instruction that old age, blindness, senility, physical weakness, infirmity and disease are not necessarily
inconsistent with testamentary capacity was not improper, where greater part of testimony in will contest on
competency issue had to do with testator's old age, blindness, senility and arteriosclerosis.
15. Wills.
The failure of will contest instruction defining forgery as false making and making with evil mind of
written instrument for purpose of fraud or deceit, to list other elements of forgery, did not prejudice
contestant.
16. Wills.
Will contest instruction that when attorney drafts will for client and will contains gift to attorney, the law
raises rebuttable presumption that gift was result of undue influence was not error for failure to instrust
further that relationship between attorney and client was confidential relationship.
17. Trial.
Omission of issue of fraud in special verdict in will contest was not error where answer to other questions
answered question of fraud.
18. Trial.
The refusal to give instructions requested in will contest was not error in view of instructions given.
19. Trial.
The refusal to give requested instruction which improperly commented on evidence was not error.
20. Trial.
The refusal to give requested instruction which controlled deliberation of jury and which amounted to
directed verdict was not error.
21. Trial.
Verdict could not be impeached by affidavits of two jurors; that the jury, being overly tired, deliberated
in haste and due to long trial and the Christmas season were eager to get home to their families and did not
give due consideration to case.
OPINION
This is an appeal from the judgment admitting to probate the will of the above-named
decedent dated May 27, 1955 and from the order denying appellant's motion for new trial. An
earlier will dated May 4, 1953 was revoked by the later will. The effect of the judgment is
likewise to deny relief to appellant sought in her contest of said will and in her petition to
revoke the probate thereof. The judgment was based on the special verdict of the jury
answering six specific interrogatories. Such interrogatories and the answers thereto are as
follows:
1. Did the said Svante Peterson at the time of the destruction of the Will of May 4th,
1953, and at the time of the execution of the questioned Will which is dated May 27, 1955,
possess testamentary capacity as defined in the instructions?
Yes

____________________

(Answer Yes' or No')
2. Was the signing of Svant Peterson of the questioned Will dated May 27, 1955 procured
by the undue influence of Raymond S. Flanary?
No

____________________

(Answer Yes' or No') "3.
3. Is page numbered 2' of the said questioned Will dated May 27, 1955 a substituted
page and not the original 2' of said questioned Will?
No

____________________

4. Was the signature on page 2 of said questioned Will dated May 27, 1955 forged by
Raymond S. Flanary?
No

____________________

5. Is the signature on the Will dated May 27, 1955, the guided signature of Svante
Peterson?
Yes

____________________

6. Was the questioned document dated May 27, 1955, attested by at least two competent
witnesses, subscribing their names to the Will in the presence of the testator?
Yes

____________________

The foregoing interrogatories and answers indicate the nature of the contest. However, for
further explanation of the specific grounds of such contest and of appellant's petition for
revocation of probate, we note the recitals in her petition as follows:
1. That such will is not the last will and testament of the decedent and that it is invalid.
2. That at the time of the execution of such will the testator was not of sound mind and
memory but was mentally incapacitated.
3. That the will was not executed, attested and subscribed in conformity with the statutory
requirements.
4. That such will does not bear the genuine signature of the testator, and was not signed by
him or by some person in his presence or by his express direction.
5. That the will was forged by Raymond S. Flanary.
6. That it was not attested by at least two competent witnesses subscribing their names in
the presence of the testator.
7. That it was procured by the fraud and undue influence of Raymond S. Flanary.
8-9. That said Flanary substituted page 2 containing a bequest to him of $10,000 and
bequest to his wife of $5,000 after the purported attestation and subscription of the will itself,
which had not contained such bequests.
10. That the said bequests and other bequests are unnatural, unreasonable, and unjust and
to purported beneficiaries who were not the natural objects of the testator's bounty.
11. That said Flanary destroyed a prior will dated May 4, 1953 which had been properly
executed and attested when the testator was competent and which had named the protestant as
sole beneficiary.
12. That said Flanary had in his own possession the will of May 27, 1955 from that date to
August 9, 1955, when it was offered for probate.
Such listing also included sundry evidentiary matters in support thereof, which, so far as
necessary, are referred to later. The material allegations of the contestant are denied by
answer of the proponents but such proponents admitted the value of the estate as [$140,000];
that they are the beneficiaries named in the will; that the protestant was the sole beneficiary of
the former will of May 4, 1953; that the testator at the time of the execution of the admitted
will was blind and approximately [83] years of age; that Flanary was an attorney at law and
the attorney for the testator at the time of the execution of his 1955 will; that the relationship
of attorney and client existed between Flanary and the testator at the time; that Flanary drafted
such will, but under the directions and instructions of the testator; that it was typed on his
stationery; that by it he was granted a bequest of $10,000 and his wife a bequest of $5,000,
and that Flanary was named therein as executor; that the will was typewritten on four pages,
the signature of the testator appearing on page 2, the same page bearing the bequests to
Flanary and his wife; that the will of May 4, 1953 was destroyed by Flanary, but under
specific instructions from the testator, who thereby intended to revoke said will of May 4,
1953.
Flanary, but under specific instructions from the testator, who thereby intended to revoke said
will of May 4, 1953.
On April 16, 1958, Flanary submitted his resignation as executor and in open court on
April 21, 1958 renounced his legacy.
On the issues thus made the case went to the jury, with the resulting special verdict above
recited. The case took ten days to try, and the record before us includes a thousand pages of
testimony, four volumes of pleadings and exhibits, in addition to numerous large exhibits,
from which opposing expert handwriting witnesses testified. These are the usual enlarged
photographs of the admitted genuine signature of the testator and of the signature on the
questioned document. The briefs on appeal in this court comprise some 600 pages,
1
and cite
some 300 authorities.
Function of This Court
[Headnote 1]
The labor of this court will be greatly lightened by our disposition of appellant's first
contention. Relying on an opinion of the Supreme Court of Oklahoma in Anderson v. Davis,
208 Okla. 477, 256 P.2d 1099, and upon an opinion of the Supreme Court of Missouri in
Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, appellant asserts that will contest cases
are purely of equitable cognizance and that it is the duty of this court to weigh the evidence
and direct the entry of such judgment as we consider proper under such evidence. Such is not
the rule in Nevada. Agricultural Insurance Co. of Watertown, N. Y. v. Biltz, 57 Nev. 370, 64
P.2d 1042. As in cases at law, we do not disturb the findings of the court or the jury when
supported by substantial evidence. Such also seems to be the rule followed in a majority of
the state courts.
____________________

1
There is no present rule of this court limiting the length of briefs, although such rule has been in
contemplation for some time. The matter of restricting the length of briefs is on the agenda for the next
Conference of Chief Justices.
the state courts. On all the factual issues presented in appellant's opening and reply
briefsthe asserted mental incompetency of the testator, undue influence exercised upon
him, forgery of his signature, the substitution of a spurious page in his will, the challenged
execution, subscription, and attestation thereofappellant attacks the credibility of the
proponents' witnesses, and contends that the evidence preponderates in favor of the contestant
of the will. These were all arguments for the jury and the trial court.
Appellant's specific assignments of error are as follows: 1. The judgment is against the
weight of the evidence on all issues. 2. Proponents failed to meet their burden of proof that
the testator was mentally competent at the time of the execution of the contested will. 3-4.
The proponents did not rebut the presumption of fraud or of undue influence. 5. The
contested will was not executed, attested, and subscribed according to law, and that the
judgment to the contrary is against the weight of the evidence. 6. Proponents did not meet
their burden of proving the due execution, subscription, and attestation of the will. 7. The
judgment to the effect that page 2 of the will is not a substituted page is against the weight of
the evidence. 8. The overruling of contestant's objection to the testimony of the attesting
witnesses as to the contents of the will. 9. The judgment that the signature on page 2 of the
will is not a forgery is against the weight of the evidence. 10. Error of the trial court in
overruling contestant's objection to testimony of Raymond S. Flanary as to purported
conversations with the testator. 11. Error in allowing instructions 5, 8, 11, 12, and the form of
the special verdict. 12. Error in refusing contestant's requested instructions 1-24, inclusive.
13. Error in overruling the objection to the testimony of Vern Hursh, a beneficiary, to
conversations with the testator. 14. Error in overruling the objection of the contestant to the
testimony of Vern Hursh as to the competency of the testator. 15. Error in overruling
contestant's objection to the testimony of Frances Atkinson, a beneficiary, to testify to the
competency of the testator. 16. Error in limiting cross-examination of Marg McElee. 17.
Denial of new trial based on misconduct of jury.
limiting cross-examination of Marg McElee. 17. Denial of new trial based on misconduct of
jury.
[Headnote 2]
It will be noted that assignments of error Nos. 1, 3-4, 5, 7, and 9 are all based upon
insufficiency of evidence. The issues to which these assignments are directed are the identical
issues of fact disposed of by the jury's special verdict. Under our notation above as to the
function of this court, our review will be limited to ascertainment of whether there was
substantial evidence to support the special verdict of the jury as to each of the items to which
the specification of error is directed. We shall then devote our attention to the remaining
specifications, which raise questions of law.
Assignment of error No. 1 is simply an accountant's total of all the other assigmments
having to do with the weight of the evidence. It does not require separate attention.
[Headnote 3]
Assignments 3-4 are to the effect that the presumption of fraud and undue influence was
not rebutted. This has to do with the execution of the testator of the will of May 27, 1955, the
document in question. As we understand the specification of error, then, it is that the
proponents of the will did not present substantial evidence to rebut the presumption. The
presumption of undue influence was properly presented and covered by an appropriate
instruction to the jury. As noted, the proponents admitted that the protestant was the sole
beneficiary under an earlier will, that the testator was 83 years of age and blind, that the
relationship of attorney and client existed between Flanary and testator, that Flanary drew the
will, that it was typed on his stationery, and that under it he received a bequest of $10,000 and
his wife a bequest of $5,000 and that he was named therein as executor. That a presumption
of undue influence arose under this situation cannot be questioned. The jury found that the
signing of the will by the testator was not procured by the undue influence of Flanary. Since
our duty begins and ends with a determination of whether there is adequate substantial
evidence to support this finding, it would be idle to attempt to analyze the evidence
submitted by appellant in conflict with that offered by the respondents.
of whether there is adequate substantial evidence to support this finding, it would be idle to
attempt to analyze the evidence submitted by appellant in conflict with that offered by the
respondents. In re Llewellyn's Estate, 83 Cal.App.2d 534, 189 P.2d 822, 191 P.2d 419. We
turn, then, to the evidence offered by the proponents of the will to rebut the presumption of
undue influence. The element of fraud, as we analyze the case, is included in this issue.
Undue Influence
We start with the fact that one Paul Danzger, who took Peterson on almost daily walks in
the spring of 1955, took Peterson, at the latter's request, on several occasions in May of 1955
to Flanary's office. Flanary requested him not to advise the appellant of these visits. That
Peterson intended to change his former will of 1953 was the testimony of other witnesses.
Peterson had theretofore transferred and conveyed to the protestant sundry pieces of property
of considerable valueprobably in excess of $60,000, and the witness, Frances Atkinson,
testified to statements made by him in the spring of 1955 that Mrs. Close had received all he
wished her to have. One Vern Hursh testified to similar statements made by Peterson to him.
With that background, we turn to the testimony of Flanary. He testified that on May 11,
1955 Peterson requested him to bring Peterson from the City of Sparks to Reno, some three or
four miles distant, to the Nevada Bank of Commerce so that he could examine some bonds to
see if it was time to clip the coupons. It should be recalled that Peterson was some 83 years of
age and blind except for his ability to distinguish light from darkness to some extent. Flanary
testifies that he brought Peterson to Reno to the bank. Danzger accompanied them but
remained in the automobile. Peterson produced his keys from his pocket and they obtained
entry to his safe deposit box, Flanary signing the card as attorney in fact. They went to the
box, opened it and had the attendant check to see if the coupons were due on the bonds.
bonds. The attendant examined the bonds and advised that the coupons were not due.
Peterson then asked Flanary to hand him his will, the will of 1953, in which appellant was the
principal beneficiary. Flanary handed him the will. Peterson put it in his pocket. On the way
back to Sparks he asked Flanary to keep it for him, as he wanted to make a change in it. Some
days before May 27, 1955, he came to Flanary's office, they discussed the will of 1953,
Peterson advised of the changes he wanted and Flanary noted these on the original document.
Within the next day or two Flanary prepared the May 1955 will. In the early afternoon of May
27, 1955 Peterson called at Flanary's office, who advised that the will was ready, read the new
will to Peterson, Peterson approved it, and instructed Flanary to destroy the 1953 will, which
Flanary thereupon did in Peterson's presence. Danzger had accompanied Peterson to Flanary's
office and the three of them proceeded to Reno to the Bank of Commerce.
All the foregoing is recited from the record of Flanary's testimony.
He was subjected to a long and rigorous cross-examination. Appellant calls attention to
discrepancies in his testimony and to parts of his testimony that she characterized as
incredible. She also attacks the testimony of Vern Hursh and Frances Atkinson as patently
interested witnesses who would benefit each to the extent of a $5,000 legacy under the 1955
will. These attacks were matters for consideration of the jury. It would serve no purpose for
us to pursue them.
On this state of the record there was sufficient before the jury to decide that the
presumption of undue influence had been rebutted to their satisfaction. However, such
rebuttal of the presumption received further important support from what occurred at the bank
when the will was executed. We turn next to the matter of the execution and attestation of the
will, but would add the events of what occurred there to Flanary's testimony as substantial
evidence rebutting the presumption of undue influence.
The Execution and Attestation of the Will
[Headnote 4]
Appellant's assignment of error No. 5, as noted, attacks the judgment that the will was
executed, attested, and subscribed according to law as against the weight of the evidence. It
will be recalled that the special verdict of the jury was that the signature on the will was the
guided signature of the testator and that it was on the same date, May 27, 1955, attested by at
least two competent witnesses, subscribing their names as such in the presence of the testator.
As to what happened at the bank we turn again, first, to Flanary's testimony. He testified
that he had made an appointment with Mr. Andrew F. Johnston, trust officer of said bank.
When he arrived at the bank he requested Mr. Johnston to provide a couple of more
witnesses, that Mr. Peterson wanted to execute his will. Mr. Johnston called Mr. Small and
Mr. Cavigilia, two other employees of the bank. Flanary introduced Mr. Peterson to them and
told them the object of their visitthat Peterson wanted to execute his will. The five men
went into the directors' room. As the two other employees went in, Flanary introduced them
to Peterson and stated the object of their presence, that Mr. Peterson wanted to execute his
will and wanted them to be witnesses to it. They all sat down around the table in the directors'
room and Flanary again announced that Peterson wanted to make his will and wanted them to
be witnesses. Peterson assented. The foregoing is the testimony of Flanary. He proceeded
further: I then read the will to him in full, paragraph by paragraph, and asked him if that is
what he wanted his will to read and he answered, Yes.' And finally I got to the point where
he was ready to sign. I placed the pen in his hand and kind of held his hand on the edge of the
desk and told him, All right, Swaney, you can sign now.' And he made this S' here. And he
says, I can't. Help me.' So I helped him to sign the rest of his sigmature. Thereafter the
witnesses signed by passing the will around the table and signing it. And I believe it was Mr.
Johnston stepped to the door or stepped out around the door and asked that a notary come
to notarize the affidavit on the will."
and asked that a notary come to notarize the affidavit on the will. He then testified that
Peterson asked him to keep the will for him, that he put it into an envelope and sealed it, took
it back to Sparks and deposited it in his (Flanary's) safe deposit box in the Sparks bank.
Andrew F. Johnston testified to his position as trust officer, and before that as assistant
trust officer, for the Nevada Bank of Commerce for some 14 years. Prior to that he worked
for the Bank of America in San Francisco in the administration of trusts for some 22 years.
Although he did not know Swaney Peterson personally, he knew who he was. On May 27,
1955 Peterson came to the bank with Flanary to execute his will. He places the time at about
one thirty in the afternoon of that day. He testified: Mr. Flanary and Mr. Peterson came in
about one thirty in the afternoon and Mr. Flanary mentioned that we were here to execute his
will. This (identifying the document handed him) was the will that was executed in my office
on the 27th day of May, 1955. He then told about bringing Mr. Gene Small and Mr. Tommy
Cavigilia to act as witnesses. While they were being brought in, he and Small talked to Mr.
Peterson for a minute or two. Flanary again mentioned that Mr. Peterson was there to
execute his will. And so I asked Mr. Flanary if he would read the will out loud so that
everybody in the room could hear it before it was executed, and as he read the different
clauses, I asked Mr. Peterson, Is that in accordance with your wishes?' and he said, Yes.'
* * * After the signature was affixed by Mr. Peterson, I then affixed my own signature as a
witness to the will. I saw Mr. Gene Small and Mr. Tommy Cavigilia sign in my presence and
in the presence of Mr. Peterson.
Mr. Cavigilia, who had known Peterson for two years prior fo the date of the execution of
the will and had helped him in some commercial transactions, testified to the same meeting at
the bank with Peterson, Flanary, Johnston, Small, and himself present. He testified that
Peterson came into the bank with Flanary to have his last will and testament witnessed; that
Mr. Johnston requested that the will be read aloud and that when that was accomplished the
paper was signed "and we witnessed it.
was accomplished the paper was signed and we witnessed it. * * * Realizing that Mr.
Peterson was totally blind, Mr. Flanary placed the pen in Mr. Peterson's hand and guided the
pen to the line where he was to sign and assisted him in the signature. After that, he signed
and Mr. Small and Mr. Johnston signed, in his presence and in the presence of Mr. Peterson.
Such is the testimony of Mr. Cavigilia.
Gene R. Small had been employed by the Nevada Bank of Commerce for about 13 years.
He knew who Peterson was but not personally. He had seen him come into the bank on
several occasions. His testimony was similar to that of Mr. Johnston and Mr. Cavigilia. He
said, The will was read. Mr. Peterson was asked whether it was in accord to his wishes,
which he said, Yes.' The will was signed. And we acknowledged it as witnesses for Mr.
Peterson * * *. The three of us signed after Mr. Peterson had signed. I don't recall what
order.
The cross-examination of the witnesses to the will developed certain inconsistencies.
Appellant argues them at length. The jury, under proper instructions, found that the will had
been signed by the testator and attested at least by two competent witnesses. That such
finding finds substantial support in the testimony quoted can hardly be disputed.
The Issue of the Substituted Page
[Headnote 5]
Assignment of error No. 7 is that the judgment that page 2 of the will is not a substituted
page is against the weight of the evidence. The jury found that it was not a substituted page
but that it was the original page 2. Again we can accept the assignment of error only as an
assignment that there is no substantial evidence to sustain the finding. Again we turn to the
testimony of Mr. Johnston, one of three attesting witnesses. He testified that the instrument
that he attested was in the same form as it was while holding it in his hand on the witness
stand, that all the sheets were in the same order and attached to the cover.
witness stand, that all the sheets were in the same order and attached to the cover. The other
two attesting witnesses were not questioned on the point, either on direct or
cross-examination, but all the subscribing witnesses testified that the will was read aloud
before it was executed, and two of the witnesses testified to their recollection of the reading
of the bequest to Flanary. The jury, if it accepted this testimony, as it apparently did, had the
right to mark the lack of logic in the charge that Flanary later substituted a page for the very
page that gave him his $10,000 legacy. And that Flanary substituted the page before the
signing and attestation was apparently likewise rejected by the jury in view of the testimony
that the will was read aloud, paragraph by paragraph, and approved by the testator. Mr.
Flanary testified, as above noted, that the will, after its execution and attesting, was placed in
an envelope and sealed and placed in his safe deposit box at his bank in Sparks. He further
testified that it had not been taken out of the envelope but remained in the sealed envelope
until it was delivered by Flanary to the clerk of the court, shortly after Peterson's death. Mr.
Clark Sellers, the expert on questioned documents, also testified that in his opinion page 2
was present at the time the will was executed.
We are compelled to hold that the foregoing is substantial evidence supporting the fact that
the instrument presented for probate was the same instrument, without any substitution of a
page, that had been signed by the testator and attested by the witnesses at the bank on May
27, 1955.
The Asserted Forgery of the Testator's Signature
[Headnote 6]
Appellant's assignment of error No. 9 is again that the finding that the signature was not
forged but was the guided signature of the testator is against the weight of the evidence.
Again our inquiry is directed only as to determining whether this finding is substantially
supported.
supported. Flanary testified categorically, These pages, these four pages [the will held in his
hand on the witness stand] are the identical papers that were in the bank on that day, May 27,
1955. * * * I did not substitute any page 2. * * * I did not forge the instrument and I did not
trace it from any other signature either.
Two eminent handwriting experts, Mr. Clark Sellers and Mr. Albert D. Osborn, were
called by the respondents and testified at considerable length. In their direct testimony and in
their testimony upon the lengthy and intensive cross-examination they stated definitely and
repeatedly that the signature of the testator to the will was not forged. Much of the
questioning had to do with the guiding of Peterson's hand by Flanary. Mr. Sellers' ultimate
conclusion on cross-examination, from which he refused to be shaken, was, I could find no
evidence in the questioned signature that it is a forgery. But I do find evidence, and I think
definite evidence, that corroborates Mr. Flanary's statement as to how the signature was
signed. Mr. Osborn was in agreement.
Competency or Incompetency of the Testator
[Headnote 7]
Appellant devotes some 80 pages of her brief to a review of the testimony having to do
with the physical and mental condition of the testator. She reviews at length the testimony of
her witnesses as to the testator's age of 83 years, his blindness, his inability to feed or clothe
himself, his senility in general, his hallucinations of little horses flying around the room and
wrinkling their noses at him, and his chasing them away by spitting at them, the limitation of
his conversations to business deals of his early days in Sparks, and other similar habits and
characteristics, his admission to the hospital for senility and catarrhal deafness, partial
blindness, with admitting diagnosis of senility with accompanying weakness according to
the hospital records, the further notation in the hospital report upon his discharge that his
condition was not improved, the necessity for restraining him while he was in the hospital,
the necessity for admission of nasal oxygen to him while in the hospital, etc.
the necessity for admission of nasal oxygen to him while in the hospital, etc. She notes that
the testator's hospitalization occurred only 15 days after the execution of the will. Again we
may note that our task is not to measure the weight of this evidence against the evidence of
his mental competency, which the jury found to exist. Our task, as addressed to the other
factual issues, is again to determine whether the jury's verdict of competency is based on
substantial evidence.
The three subscribing witnesses, though not making a specific examination of the
testator, testified to his competency. The respondents produced many lay witnesses, some of
whom knew the testator only casually and for relatively brief periods and some who had
known him for a great many years, some of whom saw him infreqently and some frequently.
These witnesses testified by using varying expressions, but agreeing in general that the
testator was competent. It is unnecessary to review such testimony. Two doctors who had
attended the respondent in the hospital, while agreeing to Peterson's senility, and the fact that
he was hard of hearing and blind, considered that he was mentally competent. The third
doctor, an ophthalmologist, attended the testator only with reference to the latter's blindness
due to glaucoma, but expressed the opinion that Peterson was extremely competent. A
special nurse attending Peterson while he was at the hospital from June 6 to June 11, 1955
and who had several lengthy conversations with him, testified that he was perfectly
competent.
Appellant, in her oral argument and in her voluminous opening and closing briefs
categorically asserts that the testator was, over a considerable period of time, including the
time of the execution of his will in May 1955 and his hospitalization, suffering from senile
dementia. She makes much of the fact that the death certificate indicated that he died on
August 2, 1955, something over two months after the execution of the will by cerebral
accident, due to generalized arteriosclerosis. Nowhere, however, is there any direct
testimony that Peterson was suffering from senile dementia. Although appellant vigorously
attacks the testimony of all the respondents' witnesses, asserting contradictions,
discrepancies, insufficient opportunity for observation, personal interest in the result of
the litigation, etc.
appellant vigorously attacks the testimony of all the respondents' witnesses, asserting
contradictions, discrepancies, insufficient opportunity for observation, personal interest in the
result of the litigation, etc. (and we may say that respondents just as vigorously attack the
testimony of the appellant's witnesses), these were all matters for the consideration of the
jury, which apparently accepted as true the testimony of the respondents' lay and professional
witnesses. That such testimony amounted to substantial evidence in support of the jury's
verdict of competency seems to us beyond dispute. This is as far as we need go on this issue.
Burden of Proof as to Competency or
Incompetency of Testator
Appellant contends that the burden was upon the proponents of the will to prove that the
testator was mentally competent at the time of his execution thereof on May 27, 1955, and
that the proponents failed to meet such burden.
From 2 Page on Wills, Lifetime Edition, 489, Evidence of Capacity, sec. 767, we learn that
there is a hopeless division of authority on the question of the burden of proof as to mental
capacity. The notes refer to numerous jurisdictions which hold that the burden of proof is
upon the party who alleges incapacity, as well as numerous other jurisdictions which hold that
the burden of proving competency is upon the proponents of the will. There has apparently
been no occasion for this state to adopt either rule in the past. Nor do we find it necessary to
adopt one rule or the other for the purposes of this opinion. There was ample substantial
evidence to support the jury's special verdict that the testator was mentally competent. In such
situation we need not determine where the burden of proof lay. See our discussion under title
Competency or Incompetency of Testator.
Burden of Proof of Due Execution, Subscription,
and Attestation of Will
Again we find it unnecessary to discuss the question whether this burden of proof lay upon
the proponents of the will or the contestant.
of the will or the contestant. Under the heading Execution, Subscription, and Attestation of
Will we held that the special verdict finding due execution, subscription, and attestation
found substantial support in the evidence, and it is unnecessary to inqure further.
Rulings on Admissibility of Evidence
[Headnote 8]
Appellant's specification of error No. 8 is that trial court committed prejudicial error in
allowing the testimony of attesting witnesses to the contents [of the will]. The ground of the
objection was that the content of the will, the desire of the testator, must appear from the
paper itself and is not established as a man's will merely by proving that he intended to make
a disposition of his property similar to or even identical with the disposition made in the
paper. The matter before the court at the time is not the establishment of the contents of the
will but the question whether the instrument admitted to probate, and whose probate the
contestant sought to revoke, was the same instrument as that executed, signed, and attested or
was, as contended by protestant, an instrument whose page 2 had been substituted after the
execution. The witness in identifying the instrument in his hand as the same instrument which
he had attested at the bank was simply identifying characteristics thereof to show the absence
of any change. In like manner similar testimony of the other two attesting witnesses was
received over objection. As noted, the issue being tried was the identity of the instrument
itself, and not an instrument that had been changed by the substitution of a spurious page
numbered 2, but was the identical instrument that had been executed by the testator and
attested by the witnesses. The content of the will was proved by the introduction of the
instrument itself. The testimony was not offered for the purpose of proving the content. The
objections were properly overruled.
[Headnote 9]
Appellant's specification No. 10 is that the trial court committed prejudicial error in
allowing Flanary to testify to conversations had with the decedent.
committed prejudicial error in allowing Flanary to testify to conversations had with the
decedent. Objection was made under the deadman's rule NRS 48.010 and NRS 48.030 when
Mr. Flanary was shown the will of 1953 and testified to numerous pencilled notations in the
margin with reference to changes he said had been directed by the testator. This was at the
meeting of the testator and Flanary at the latter's office in May 1955, pursuant to which
Flanary drew the will of May 27, 1955.
In considering the application of the statute to such situation, the relationship of the parties
to the proceedings involved must be kept in mind. Flanary sought to establish the will of
1955. So did the beneficiaries under that will. Appellant, Mrs. Close, sought to prove the
invalidity of the 1955 will (including its revocation of the 1953 will) and to establish the
existence of the assertedly unrevoked 1953 will. The absent and minor heirs, appearing
through court-appointed counsel in an earlier proceeding that reached this court (Estate of
Peterson, Close v. Flanary, 75 Nev. 255, 339 P.2d 379), could profit only if the decedent had
died intestate, which could result only if both the 1953 will and the 1955 will were declared
invalid. Thus we have a situation in which the testimony of Flanary, with reference to
instructions received by him from the testator, had to do only with which of the parties could
participate in the distribution of the estate. The proceedings did not involve a claim against
the estate which would tend to reduce or impair it. The objection to Flanary's testimony was
properly overruled. In the Matter of the Estate of Lucy V. Kimble (Kimble v. First National
Bank, Special Administrator), 73 Nev. 25, 307 P.2d 615, and cases therein cited. See also
Hough v. Reserve Gold Mining Co., 55 Nev. 375, 35 P.2d 742. In re Swartz's Will, 79 Okla.
191, 192 P. 203, 16 A.L.R. 450; In re Miller's Estate, 31 Utah 415, 88 P. 338; 97 C.J.S.,
Witnesses, sec. 288, p. 815; Lampe v. Franklin American Trust Co., 339 Mo. 361, 96 S.W.2d
710, 107 A.L.R. 465. Appellant relies strongly upon In re Golding's Estate, 58 Nev. 274, 76
P.2d 1099, but we do not find the case in point. Nor do we find anything in Burgess v. Helm,
24 Nev. 242
we find anything in Burgess v. Helm, 24 Nev. 242, 51 P. 1025, or in Su Lee v. Peck, 49 Nev.
124, 240 P. 435, contrary to the views expressed.
The foregoing discussion has to do with appellant's asserted violation of NRS 48.010.
2
Appellant asserts in addition that the admission of the evidence is in violation of 48.030.
3
That section, however, refers exclusively to actions against an executor or administrator upon
a claim or demand against the estate of a deceased person and is not applicable to this
proceeding. Appellant insists that she is protected by the statute because she is the executrix
named in the will of May 4, 1953. The present proceeding, however, involves only the will of
May 27, 1955.
Appellant also contends that as Flanary was a party to the proceeding, this fact alone
disqualified him as a witness. This is based upon the old common-law rule, which has never
been the rule in this state.
[Headnote 10]
Assignment of error No. 13 asserts error in overruling the objection to the testimony of
Vern Hursh to a conversation with the testator. He testified to a conversation in which the
testator said: Vern, I made a new will. * * * I mentioned you in the will and Mrs. Atkinson
and have Flanary as my administrator. I said, 'Well, what did you do for Mildred?' And his
very words was, 'Mildred [the appellant] has been well taken care of.' * * *" For the
reasons above expressed and under the authorities there cited there was no error in
overruling the objection.
____________________

2
* * * * No person shall be allowed to testify:
(a) When the other party to the transaction is dead.
(b) When the opposite party to the action, or the person for whose immediate benefit the action or
proceeding is prosecuted or defended, is the representative of a deceased person, when the facts to be proven
transpired before the death of such deceased person; provided, that when such deceased person was represented
in the transaction in question by an agent who is living, and who testifies as a witness in favor of the
representative of such deceased person, or, when persons other than the parties to the transaction, claiming to
have been present when the transaction took place, testify as witnesses in favor of the representative of such
deceased person, in such case the other party may also testify in relation to such transaction.

3
The following persons cannot be witnesses: * * *
3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or
proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a
deceased person, as to any matter of fact occurring before the death of such deceased person.
Well, what did you do for Mildred?' And his very words was, Mildred [the appellant] has
been well taken care of.' * * * For the reasons above expressed and under the authorities
there cited there was no error in overruling the objection.
[Headnote 11]
Designations of errors Nos. 14 and 15 are to the court's overruling of objections to the
testimony of Vern Hursh and Frances Atkinson with reference to the competency of the
testator. Appellant says: Both are interested parties and the law is clear that beneficiaries
under a will are not competent to testify as to the competency of the testator. The authorities
do not substantiate this statement as to the competency of witnesses. To the contrary, the
theory of disqualification by interest has long since been abandoned. See Wigmore on
Evidence, Third Edition, Vol. 2, 686, sec. 575, and quotation therein from Jeremy Bentham.
[Headnote 12]
Assignment of error No. 16 is the court's refusal to allow appellant to test the competency
of Marg McElee. Mrs. McElee had testified to her acquaintanceship with the testator in the
spring of 1955, to numerous conversations with him, and that he was as competent as
anyone else, as you or anyone. On cross-examination appellant asked the witness if she had
ever been a member of a nudist colony, to which she replied, Never. Appellant pursued her
line of questions as to nudists and nudist colonies and whether the witness was a nudist, and
finally asked: I would like to know what a nudist is? At this point respondents objected on
the ground that the matter was completely immaterial and beyond the scope of direct
examination. The matter was largely in the court's discretion, and we see no materiality in the
question and no error in its sustaining of the objection.
Instructions to the Jury
Assignment No. 11 is that there was prejudicial error in allowing instructions 5, 8, 11, and
12, and the form of the special verdict.
[Headnote 13]
Instruction No. 5 instructed the jury that the signature of a testator to a will is not invalid
by reason of another person's having aided or guided the hand of the testator in signing his
name. It further instructed that such assistance is often necessary because of the physical
condition or the blindness of the testator. Further explanation was contained in the
instruction. The assignment of error is based on the fact that the statutes of this state do not
specifically provide such rule. This is without merit.
[Headnote 14]
Instruction No. 8 explained at length what factors were to be taken into consideration in
determining whether a testator had testamentary capacity. The objection is to the following
sentence contained in such instruction: Old age, blindness, senility, physical weakness and
infirmity, and disease, are not necessarily inconsistent with testamentary capacity. The
objection is that this is a comment on the evidence. We do not so consider it. By far the
greater part of the testimony adduced by appellant on the issue of competency had to do with
the testator's old age, blindness, senility and the arteriosclerosis from which he suffered.
Many pages of appellant's cross-examination of respondents' expert witnesses were full of
references to senile denaentia, which diagnosis the witnesses rejected. Under the
circumstances the instruction was proper.
[Headnote 15]
Instruction No. 11 defined forgery as the false making, a making with an evil mind, of
any written instrument for the purpose of fraud or deceit. The objection is that all of the
elements of forgery are not present. This is the language approved in State v. McKiernan, 17
Nev. 224, 30 P. 831. Nor can we see how the appellant could have been prejudiced for the
failure of the court to insert many more conditions and requirements to constitute forgery. It
was the appellant who was asserting that Flanary was guilty of forgery. The inclusion of many
additional requirements to prove forgery would have prejudiced rather than aided
appellant's case.
would have prejudiced rather than aided appellant's case.
[Headnote 16]
The objection to instruction 12 is that, It does not give the law relating to confidential
relationships. The instruction did instruct the jury that when an attorney drafts a will for his
client, and the will contains a gift to the attorney, the law raises a rebuttable presumption that
the gift was the result of undue influence. To instruct further that the relationship between
attorney and client was a confidential relationship would have added nothing to the
instruction. Indeed, the instruction as given is a stronger instruction against Flanary than if it
had contained such additional matter.
[Headnote 17]
The objection to the form of the special verdict is because it omitted the issue of fraud.
When the jury found that the testator's signature was not procured through the undue
influence of Flanary, that page number 2 of the will was not a substituted page but was the
original page 2 of the will, and that the signature of the testator on page 2 of the will was not
forged by Flanary but was the guided signature of the testator on the very instrument that was
attested by the witnesses, it is difficult to see how the special verdict could have been further
aided by the question whether the execution of the will by the testator, if it was executed by
him, was the result of fraud practiced upon him by Flanary. The answers to the other
questions answered that one.
[Headnote 18]
Assignment No. 12 is asserted error in refusing appellant's instructions 1 to 24, inclusive.
In the argument in support of this rather comprehensive and all-embracing assignment, the
refused instructions are not referred to by number, and it becomes nesessary to take them up
in the order argued in appellant's brief. The first relates to the matter of presumptive fraud
where an attorney deals with a client for the attorney's benefit. This has been referred to
above with reference to intruction 12 as given.
as given. Inasmuch as this instruction must be considered in connection with several further
assignments of error in the court's refusal to give other instructions requested by appellant, we
here set forth instruction 12 in full. It is as follows:
Undue influence in a case such as this means that degree of influence exercised by a
person over the testator so as to destroy the wishes of the testator.
When an attorney drafts a will for his client, and the will contains a gift to the attorney,
the law raises a rebuttable presumption that the gift was the result of undue influence, which
is a species of fraud, unless it appears by a preponderance of the evidence that the attorney
drafted the will in accordance with instructions given him by the testator, and the will truly
records the declaration of the testator's mind regarding his estate.
The mere possession of influence and the opportunity and motive to exercise it are not
sufficient to invalidate a will on the ground of undue influence, but it must appear, either
directly or by justifiable inference from the facts proved, that the influence was exercised, so
as to destroy the free agency of the testator and control the disposition of the property under
the will.
We are satisfied that the refused instruction was included in the given instruction 12. The
same applies to the refusal to give appellant's next three requested instructions, as well as five
later ones.
The next refused instruction was as follows:
If a person is laboring under senile dementia he is incapable of making a will. There was
no such evidence of senile dementia as to justify this instruction. The court's refusal to give
the instruction contained the notation:
Refuseddecedent's mental and physical health was an issue of fact. Other instructions
fully defined testamentary capacity.
The next two refused instructions, as well as a later one, concern the steps necessary to
revoke a will. The subject was fully covered by other instructions, and these three instructions
were properly refused.
The next refused instruction instructed that fraud could be found on circumstantial
evidence and that the contestant was entitled to the benefit of all reasonable inferences
which might be reasonably and legitimately derived from established facts.
could be found on circumstantial evidence and that the contestant was entitled to the benefit
of all reasonable inferences which might be reasonably and legitimately derived from
established facts. The next was a similar instruction, which referred again to the presumption
of fraud in cases of confidential relationship and the burden of proof to rebut the same. These
were covered by other instructions, and properly refused.
[Headnote 19]
The next refused instruction was as follows:
The probability that a guided signature can be written by a feeble hand without a tremor
or without interruptions and violent variations is very remote and adverse to experience.
Arbitrary angles or erratic pen strokes may be certain evidence of the testator's resistance,
indicating that the unwilling hand had been forced to write by the stronger guiding hand.
Such factor would show the element of control, and not the genuine signature of the
testator. The court refused it upon the ground that it was improper comment on the evidence.
There was no error.
[Headnote 20]
The court refused appellant's requested instruction as follows:
If you should find that the signature on page 2 of the paper writing dated May 27, 1955 is
a guided signature, then you must compare said guided signature with other signatures of
Svante Peterson known to be genuine.
If you should find that the character and quality of the guided is superior and better
executed than could have been possible by Svante Peterson on May 27, 1955, such fact alone
is sufficient to deny probate of the paper writing dated May 27, 1955. The ground of the
ruling was that it was improper to control the deliberation of the jury and also that it
amounted to a directed verdict. There was no error in the refusal.
Exception is taken to the court's refusal to give a definition of the phrase to forge. It
properly noted, without error, that a proper definition of forgery had been given.
The same situation existed in the court's refusal to instruct the jury: A will cannot be
established by merely showing the intent to make one.
The same applies to a requested instruction as to how a valid signature to a will may be
made by another person other than the testator. The complete statutory requirement was
contained in another instruction.
Two further requested instructions concerning undue influence were properly refused for
the same reason.
The court refused the following requested instruction:
You are instructed that it requires much less influence to control the will of a person of
weak mind and infirm purpose than one of vigorous intellect and determined character. In
refusing to give this instruction the court noted: Improper comment on evidencejury
deemed to have common sense. We could not suggest a better valid reason for rejecting the
instruction.
The foregoing disposes of the assignment of error in the court's refusal to give appellant's
requested instructions 1 to 24, inclusive.
Misconduct on Part of Jury
[Headnote 21]
Appellant asserts that a reversal must result from alleged misconduct of the jury as shown
by the affidavits of two of the jurors containing the following allegation:
That the jury, being overly tired, deliberated in haste and due to the long trial and the
Christmas Season were eager to get home to their families and did not give due consideration
to the case which the case should have had.
Appellant does not support this assignment of error with any authorities. No treatment of
this subject in the decisions or texts appears to recognize such a situation as coming within
any rule warranting an order for mistrial, or for reversal of a judgment based on jury verdict.
Fernandez v. Consolidated Fisheries, Inc., 117 Cal.App.2d 254, 255 P.2d 863; 31 Am.Jur.,
Jury, sec. 66, p. 64. Irrespective of this, however, it is the well-recognized rule in this state,
both in criminal and civil cases, that jurors will not be thus permitted to impeach their own
verdict.
jurors will not be thus permitted to impeach their own verdict. Pinana v. State, 76 Nev. 274,
352 P.2d 824.
In Southern Nevada Gold & Silver Mining Co. v. Holmes Mining Co., 27 Nev. 107, 145,
73 P. 759, 762, appellant produced affidavits of two jurors tending to show that the jury
reached a quotient verdict. The court stated:
At common law, affidavits of jurors could not be received to impeach their verdict, but
could be admitted in its support. * * * There are reasons of public policy why jurors should
not be heard to impeach their verdict, * * * If it were otherwise, but few verdicts could stand'
* * *.
The following reasons are given * * *: (1) Because they would tend to defeat their own
solemn acts under oath. (2) Because their admission would open a door to tamper with
jurymen after they had given their verdict. (3) Because they would be the means, in the hands
of the dissatisfied juror, to destroy a verdict at any time after he had assented to it.'
The trial court properly rejected this assignment made in support of appellant's motion for
new trial.
Denial of New Trial
Errors asserted in the court's denial of appellant's motion for new trial are all embraced
within the matters herein discussed, and are all covered by the conclusions above reached.
The briefs contain other matters not discussed in this opinion. All such other matters have
had our consideration but do not require further comment.
Affirmed with costs.
____________
77 Nev. 115, 115 (1961) Hotel Last Frontier v. Universal Match Co.
HOTEL LAST FRONTIER CORPORATION, a Nevada Corporation, Appellant, v.
UNIVERSAL MATCH COMPANY, a Delaware Corporation, Respondent.
No. 4326
February 24, 1961 358 P.2d 896
Appeal from the Eighth Judicial District Court, Clark County; Jon R. Collins, Presiding
Judge.
Action by a seller against an existing corporation to recover the price of matchbooks which
advertised prospective corporation. The trial court rendered judgment for the plaintiff, and the
defendant appealed. The Supreme Court, Badt, C. J., held that the seller, which had not been
informed of a pre-incorporation agreement between the defendant and the prospective
corporation that the prospective corporation would pay the costs of its own advertising, was
not bound by the agreement.
Affirmed.
Morse and Graves and Lee R. Rose, of Las Vegas, for Appellant.
Jones, Weiner and Jones and Boyd and Brenman, of Las Vegas, for Respondent.
1. Corporations.
Evidence sustained finding that seller, which was seeking to recover from existing corporation price of
matchbooks advertising prospective corporation, was dealing not with prospective corporation but with
existing corporation, whose purchasing agent had executed purchase order for the matchbooks.
2. Corporations.
Seller, which had not been informed of pre-incorporation agreement between existing corporation and
prospective corporation that prospective corporation wouid pay cost of its own advertising, and which
sought to recover from existing corporation the price of matchbooks advertising prospective corporation,
was not bound by the agreement.
OPINION
[Headnote 1]
Hotel Last Frontier Corporation has appealed from a judgment in favor of Universal
Match Company in the sum of $4,024.9S as the agreed purchase price of certain
advertising material consisting of matchbooks.
the sum of $4,024.98 as the agreed purchase price of certain advertising material consisting of
matchbooks. At the trial Hotel Last Frontier Corporation contended that the purchaser of the
books was New Frontier Hotel Corporation and that the plaintiff had sued the wrong
corporation. We refer to the parties in their abbreviated namesLast Frontier, New Frontier,
and Universal Match. The trial court held that Universal Match was dealing with the Last
Frontier and rendered judgment accordingly. The same point is at issue here under the
contention that the evidence does not support such finding and judgment. We have then
before us a factual situation as developed by the witnesses and by the exhibits in evidence,
and are concerned only with the question whether such evidence accords substantial support
to the findings. We have concluded that it does and that the judgment must be affirmed.
Last Frontier owned and operated the Last Frontier Hotel, including the gambling casino,
restaurant, and extensive grounds, buildings, and improvements. There was in contemplation
a lease agreement with New Frontier, a corporation to be formed in the near future.
Negotiations were carried on and apparently tentative agreements arrived at among three
groupsthe Last Frontier, the New Frontier, and something in the nature of a joint venture,
to which interested individuals in the old corporation and the contemplated new corporation
and others were parties.
Under these circumstances Last Frontier, in its corporate name, executed a purchase order
from Universal Match for 2,000 cases of 5,000 books each at a specified price and at
specified times of delivery. The matches advertised the New Frontier. The order recited,
Ordered by Last Frontier Hotel Corp. by C. Goshert. It also bore the signature of the
salesman of Universal Match, R. B. Macgurn. Opposite the name of Last Frontier appeared
also the name New Frontier Hotel. At the top of the purchase order appeared the words, Bill
to Last Frontier Hotel Corp. It was dated January 1, 1955. A rubber stamp upon the order
read, New Account. A second instrument denominated Purchase Order, dated February 4,
1955, on which was stamped "Construction Account," repeated the order, "per new sketch
submitted by Dick Macgurn," had printed thereon: "Ship to: Hotel Last Frontier, Highway
91, Las Vegas, Nevada," with notation, "Attention: New Frontier Hotel." It bore the words,
"Approved by Irving Leff," and was executed by the printed name, "Hotel Last Frontier,
Inc., by C.
stamped Construction Account, repeated the order, per new sketch submitted by Dick
Macgurn, had printed thereon: Ship to: Hotel Last Frontier, Highway 91, Las Vegas,
Nevada, with notation, Attention: New Frontier Hotel. It bore the words, Approved by
Irving Leff, and was executed by the printed name, Hotel Last Frontier, Inc., by C.
Goshert. Goshert was identified as the purchasing agent of Last Frontier. Macgurn knew him
to be such. Leff was identified as the executive vice president for the New Frontier.
[Headnote 2]
There was a complete conflict between the testimony of Mr. Maurice H. Friedman,
secretary-treasurer of the Last Frontier, and the testimony of Macgurn with reference to the
situation under which the Last Frontier ordered the matches from Universal Match, bearing
advertising matter for the New Frontier. Mr. Friedman outlined a situation which had in
contemplation the incorporation of the New Frontier, a lease of all the hotel properties to the
New Frontier, and a preincorporation agreement between the two (and to which certain
persons were also parties with overlapping interests in both entities), under which it was
understood that sundry matters, including such things as New Frontier advertising would be
paid for by New Frontier. The important point in his testimony was that Universal Match and
Mr. Macgurn, its agent, had full knowledge of such situation. Macgurn categorically denied
any knowledge of any such agreement. The trial court resolved this in favor of Universal
Match. It is not our function to say that the court should have rejected Macgurn's testimony
and accepted Friedman's. Fishman v. Las Vegas Sun, 75 Nev. 13, 341 P.2d 102. We have,
then, the court's determination, which we approve, that any understanding between Last
Frontier and New Frontier not communicated to Universal Match could not be binding upon
Universal Match.
New Frontier was incorporated March 9, 1955. It was adjudicated a bankrupt March 17,
1957. Last Frontier had suggested to Universal Match that the latter file its claim against the
New Frontier in the bankruptcy court.
court. Universal Match refused, relying on its purchase order from and contract with the Last
Frontier.
As a matter of law we find no error in the trial court's construction of the purchase order
and contract. And Last Frontier does not even suggest in this court that there was any legal
reason why it could not so bind itself for the purchase of advertising material for the New
Frontier. With the trial court's rejection of Friedman's testimony that Universal Match and its
agent were advised that the cost of the matches was to be paid for by New Frontier and was
not to be paid for by Last Frontier, under the terms of an agreement between Last Frontier and
the proposed incorporators of the New Frontier, and the court's acceptance of the testimony
on behalf of Universal Match that it had no knowledge of such situation, the issues of the
appeal must be resolved in favor of Universal Match.
The judgment is affirmed with costs.
____________
77 Nev. 118, 118 (1961) City of Henderson v. Henderson Auto Wrecking, Inc.
CITY OF HENDERSON, NEVADA, WILLIAM B. BYRNES, Mayor, AUDREY PAGAN,
WILLIAM B. MAINOR, ROBERT E. KESTERSON, and LOUIS F. La PORTA, City
Council Thereof, and N. D. VAN WAGENEN, City Clerk of Said City, Appellant, v.
HENDERSON AUTO WRECKING, Inc., a Nevada Corporation, Respondent.
No. 4318
February 27, 1961 359 P.2d 743
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Mandamus to require a city to issue a use permit and a business license for the operation of
a wrecking yard. From an adverse judgment of the trial court the city appealed. The Supreme
Court, Pike, J., held that the city council, in denying the application for a use permit without
substantial evidence in support of the denial abused its discretion, and would be required to
issue a permit and a license.
Judgment affirmed.
John Manzoni, City Attorney, Las Vegas, for Appellant.
Edwin J. Dotson, of Las Vegas, for Respondent.
1. Mandamus; Zoning.
City planning board's recommendation of approval of application for use permit was not binding on city
council, but was to be considered in mandamus proceeding in determining whether council abused
discretion in denying permit.
2. Mandamus; Zoning.
City council which denied permit for operation of wrecking yard in zone wherein wrecking yards were
permitted, without substantial supporting evidence, abused its discretion, and would be required by
mandamus to take contrary action.
3. Mandamus.
Wrecking company which brought mandamus to require city to issue permit and license for wrecking
yard was required to establish that denial of application was abuse of discretion.
4. Mandamus.
City council's administrative ruling on application for permit for wrecking yard would not be interfered
with by mandamus in absence of manifest abuse of discretion.
5. Mandamus.
Administrative discretion of city council could not be sustained in mandamus proceeding on basis of
conclusions reached by council in absence of circumstances reasonably justifying conclusions.
6. Mandamus.
Evidence in mandamus proceeding to require city to issue permit and license for wrecking yard in zone
wherein wrecking yards were permitted sustained finding that change to more restrictive zoning after
commencement of proceeding was in furtherance of council's illegal denial of permit.
Finding supported by substantial evidence would not be disturbed on appeal.
OPINION
The judgment appealed from ordered the issuance of a peremptory writ of mandate
directed to the City of Henderson, its city council, and clerk, ordering them to issue to
respondent corporation a use permit for the operation of a wrecking yard, and also, upon the
payment by respondent of the fees therefor, to issue to respondent a business license to
conduct said wrecking yard business in the city.
The court found that respondent had, for some 14 months prior to the commencement of
the action, operated an automobile wrecking company within the city limits; that on March
27, 1959 respondent applied to the city planning commission for a use permit pertaining to
the particular location therein referred to, which location was at that time zoned M-2, in
which zone the operation of salvage and wrecking yards was permitted; that on April 2, 1959
the planning commission recommended to the city council that said use permit be issued; that
thereafter, the matter having been referred back to the planning commission by the city
council, the planning commission on April 23, 1959 again approved respondent's application
for the use permit covering approximately five acres within the city limits; that on May 4,
1959 the city council denied the application for the use permit; that on the same date and at
the same meeting the city council granted a use permit for the identical type of business in the
same M-2 zone within the city and about 2,500 feet distant from the area for which
respondent sought its use permit; that respondent had paid or tendered all fees required to be
paid relating to the use permit and business license; that since the commencement of the
action by respondent the city had enacted an ordinance changing the zoning of the premises
sought to be used by respondent, from the M-2 zoning which it previously had.
the premises sought to be used by respondent, from the M-2 zoning which it previously had.
The court concluded that the denial of the use permit to respondent, while at the same
meeting of the city council a use permit was issued for the operation of a wrecking yard in the
same zone area, constituted an abuse of discretion on the part of the council; that the same
was arbitrary and capricious, and that the council's action was discriminatory and in violation
of respondent's rights; that the change in zoning was an act in aid of the illegal act of the
council in denying the use permit to respondent and that such action did not affect the right of
respondent corporation to the use permit and business license sought by it. Based upon such
findings the court then entered the judgment here appealed from.
[Headnotes 1, 2]
The record shows that in the M-2 area within which the council granted a wrecking yard
permit to one Estes, while at the same meeting it denied a like permit to respondent, there
were several other wrecking yards and a welding shop. Certain of these last mentioned
installations were between the location for which respondent sought a use permit and the
location for which a use permit was issued to said Estes. Certain other of the wrecking yards
were situated in the immediate vicinity of both the location which the council approved for
use by said Estes as a wrecking yard and the location sought to be used by respondent. The
record shows that a public hearing was had by the city planning commission on each of the
two occasions when that commission approved and recommended to the city council that
respondent's application for a use permit be granted. However, it does not appear from the
record, nor is it contended that any evidence was given or statements made before the city
council at the meeting at which the council rejected respondent's application, other than
statements which were made by counsel for the interested parties, including a statement made
by counsel representing a protestant to the granting of respondent's application. Likewise,
nothing appears in the record as constituting the basis upon which the council denied
respondent's application while, at the same time, it granted a use permit to the other
applicant for the operation of a wrecking yard in the same M-2 district.
the record as constituting the basis upon which the council denied respondent's application
while, at the same time, it granted a use permit to the other applicant for the operation of a
wrecking yard in the same M-2 district. It is recognized that the recommendation of approval
given by the city planning board, after a public hearing on two separate occasions, was not
binding upon the council in the exercise of the city council's discretion; however, it was a
circumstance which the trial court was entitled to consider, together with the other matters
above referred to, in determining whether the council had denied respondent's application in
the proper exercise of its discretion or whether there had been an abuse of that discretion. The
trial court held that the council had abused its discretion. Under the circumstances above
recited, this conclusion was justified and fully supports the judgment based upon the same
and, accordingly, the judgment must be affirmed.
[Headnotes 3-5]
(1) Respondent, as plaintiff before the trial court, was required to establish abuse of
discretion on the part of the city council in the denial by that body of respondent's application
for a use permit. Such showing of an abuse of the discretion vested in the council was
established before the trial court by respondent's showing of a lack of substantial evidence
before the council, which served as a basis for its action in denying respondent's application.
Concededly, the action taken by the city council in its administrative capacity, upon the
matter properly before it, would not warrant interference by the trial court except where there
was a manifest abuse of discretion. Here, however, where there was no evidence to support
the council's actions, the trial court's action was proper. Perelman v. Yeadon Borough Board
of Adjustment, 144 Pa. Super. 5, 18 A.2d 438; Freed v. Power, 392 Pa. 195, 139 A.2d 661.
The exercise of discretion by the city council as an administrative board, could not be
sustained in court on the basis of conclusions reached by the city council in the absence of
circumstances which reasonably justified such conclusions. Strain v. Mims, 123 Conn. 275,
193 A. 754, 760.
[Headnotes 6, 7]
(2) The trial court must be sustained in its holding that the change in the zoning area from
M-2 to a more restrictive zoning, subsequent to the commencement of suit by respondent to
enforce the issuance of such permit to him, did not affect respondent's right to the permit. The
trial court found in that connection that the action by the city council in so rezoning the area
was in furtherance of the council's illegal action in having denied the use permit to
respondent. As substantial evidence supports such finding, it will not be disturbed on appeal.
Affirmed.
____________
77 Nev. 123, 123 (1961) Wallace v. State
ALLEN CALVIN WALLACE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 4289
March 2, 1961 359 P.2d 749
Defendant was convicted in the trial court of possession of narcotic drugs, and he
appealed. The Supreme Court, McNamee, J., held that evidence of defendant's prior
possession of marijuana was admissible to show intent, though it revealed defendant's prior
arrest for an independent and distinct matter.
Affirmed.
Murray Posin, of Las Vegas, for Appellant.
Roger D. Foley, Attorney General, and John F. Mendoza, District Attorney, Clark County,
and Clarles L. Garner, Deputy District Attorney, for Respondent.
1. Criminal Law.
An exception to general rule against proof of distinct, independent offense is that such evidence is
competent to prove the specific crime charged when it tends to establish intent.
2. Poisons.
An essential element of statutory offense of possession of narcotic is knowledge of narcotic character of
the object possessed.
3. Criminal Law.
Where defendant charged with possession of narcotic had testified that he had never seen marijuana nor
had it in his possession or under his control, evidence of defendant's prior possession of marijuana was
admissible to show intent, though it revealed defendant's prior arrest for an independent and distinct matter.
4. Criminal Law.
District attorney could comment in argument on evidence of defendant's previous possession of
marijuana, which had been properly admitted to show intent.
OPINION
Appellant was charged in an information with the offense of feloniously possessing and
having under his control on May 20, 1958 narcotic drugs, to wit, cannabis (marijuana). A jury
found him guilty as charged and the court rendered its judgment sentencing him to
imprisonment for a term of not less than two years nor more than five years, and, in addition,
he was ordered to pay a fine of $2,000.
Appeal is from such judgment.
The sole error specified is that the lower court permitted testimony relative to a prior arrest
of the appellant which was unrelated to the commission of the act charged in the information.
After the prosecution had rested, appellant took the stand on his own behalf and testified
that neither on May 20, 1958 nor at any other time did he have any marijuana in his
possession or under his control. He was asked by his counsel about the Golf Manor
Apartments and he stated that he had lived there for a period of time and that he had never
knowingly had any possession of marijuana.
of time and that he had never knowingly had any possession of marijuana. On
cross-examination he stated that he had never seen marijuana. Thereafter, the prosecution
called Detective Smith of the sheriff's office who testified that on May 27, 1957 he had
conducted a search of appellant's apartment in the Golf Manor Apartments. When asked what
he found there, Smith stated: We found two white paper hand-rolled cigarettes which were
later established to be marijuana.
Appellant's counsel immediately moved for a mistrial and for a withdrawal of the jury. The
motion for mistrial was denied and the prosecution was ordered to proceed with the
examination of Smith who then testified that he placed appellant under arrest for possession
of narcotics and that subsequently the case was dismissed. During his cross-examination by
appellant's counsel relating to the May 27, 1957 arrest, Smith testified that he had had
appellant's apartment under surveillance; that after he saw appellant go into the apartment he,
himself, went to the apartment; that when appellant answered the door, he entered the
apartment, searched it, and found a green, leafy material in a paper towel roll which later was
identified as marijuana.
Aside from the said motion for mistrial no further objection was made to the aforesaid
testimony.
[Headnote 1]
It is a general rule that on a trial of a person accused of a crime proof of a distinct,
independent offense is inadmissible. The rule is subject to certain exceptions, one of which is
that evidence of other crimes is competent to prove the specific crime charged when it tends
to establish intent. Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524.
[Headnote 2]
Under a statute making it unlawful for any person to possess a narcotic drug except as
authorized, an essential element of the offense is knowledge of the narcotic character of the
object possessed. People v. Winston, 46 Cal.2d 151, 293 P.2d 40; People v. Hancock, 156
Cal.App.2d 305, 319 P.2d 731.
[Headnote 3]
Inasmuch as the appellant in his own behalf had testified that he had never seen marijuana
nor had had it in his possession or under his control, it was not error for the court to permit
contradiction of such testimony by a third party. Such evidence was material to the issues
because it related to an essential element of the crime, to wit, the intent to possess an object
known to be contraband.
The fact that this evidence revealed appellant's prior arrest for a matter independent and
distinct from that for which he was being tried was merely incidental. McLaughlin v. State,
18 0kla.Cr. 627, 197 P. 717.
In People v. Toms, 163 Cal.App.2d 123, 329 P.2d 90, 93, testimony by an officer that the
defendant had previously been arrested for possession of narcotics was held to be admissible
to show guilty knowledge of the narcotic character of the article possessed. Following such
testimony appellant made a motion for mistrial. The motion was denied. The appellate court
there said: * * * evidence that is relevant is not excluded because it reveals the commission
of an offense other than that charged. * * * In the instant case the presence or absence of such
knowledge was a material fact and the testimony was properly admitted to show guilty
knowledge on the part of appellant Moore.
It was incumbent upon appellant, if he so desired, to request a jury instruction as to the
limited purpose for which such evidence was admitted. This he did not do, and he made no
objection to any instructions given or refused.
[Headnote 4]
Since the testimony of Detective Smith properly was received in evidence, it was not error
for the district attorney to comment on the same in his final argument to the jury.
Judgment affirmed.
____________
77 Nev. 127, 127 (1961) Herrmann v. Blase
WALTER E. HERRMANN and FERN E. HERRMANN, Appellants,
v. AUGUST BLASE, Respondent.
No. 4321
March 2, 1961 359 P.2d 745
Appeal from judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
An action based upon quantum meruit for plaintiff's work in improving ranch. The trial
court rendered judgment for the plaintiff and the defendants appealed. The Supreme Court,
Pike, J., held that evidence sustained finding that there was an oral contract that defendant
ranch owners were to pay the plaintiff $31,000 to improve ranch, that the plaintiff had
performed and that the ranch owners had breached the agreement.
Judgment affirmed.
Streeter and Sala, of Reno, for Appellants.
Richards and Swanson, of Reno, for Respondent.
1. Contracts.
Evidence sustained finding that there was an oral contract that ranch owners were to pay piaintiff $31,000
to improve ranch, that plaintiff had performed and that ranch owners had breached agreement.
2. Work and Labor.
Upon finding, in action based upon quantum meruit, that defendants agreed to pay plaintiff $31,000, the
agreed $31,000 became the quantum meruit.
OPINION
This is an appeal from a judgment of the trial court in favor of respondent in the sum of
$30,400.
The court found that appellants and respondent had entered into an oral contract that Blase
was to contribute his personal services and finance the improvements on appellants' ranch
property, and that appellants promised to pay Blase the sum of $31,000 therefor; that the
contract was fully performed by Blase, and that the appellants breached the said contract
on or about June 2S, 1955; that the sum of $600, representing one-half of $1,200,
received by Blase from lessors of certain grazing rights of the ranch, was due and payable
to appellants and should be Sapplied as a setoff against the $31,000 found to be due
Blase, leaving a balance due respondent Blase of $30,400.
promised to pay Blase the sum of $31,000 therefor; that the contract was fully performed by
Blase, and that the appellants breached the said contract on or about June 28, 1955; that the
sum of $600, representing one-half of $1,200, received by Blase from lessors of certain
grazing rights of the ranch, was due and payable to appellants and should be Sapplied as a
setoff against the $31,000 found to be due Blase, leaving a balance due respondent Blase of
$30,400. Appellants appeal from the judgment based upon such findings.
The former owner of the Nevada potato ranch referred to herein was adjudicated a
bankrupt in bankruptcy proceedings had in California. Walter E. Herrmann, one of the
appellants herein, a California electrical contractor at the time of the bankruptcy adjudication,
held a promissory note in the approximate amount of $144,000, secured by a deed of trust
upon the ranch property. Herrmann, as a secured creditor, filed his claim in the bankruptcy
proceeding.
Respondent Blase, who had for many years been engaged in the wholesale produce
business, and who was familiar with the particular ranch then constituting an asset of the
bankrupt's estate, also filed a creditor's claim in the bankruptcy proceeding on behalf of Blase
Bros., the produce firm of which Blase was a member. Such claim was unsecured and was for
the sum of $36,000, representing funds advanced to the bankrupt's ranching business in
connection with a potato transaction prior to the bankruptcy. The evidence shows that about
December 1, 1953, as the trustee in bankruptcy had been unable to effect a sale of the ranch,
the bankruptcy court ordered the ranch conveyed to Herrmann. Herrmann and Blase were
both present at the court session at which the order was entered. Prior to that date Blase had
rendered services for the trustee in bankruptcy in connection with the ranch and his services
in that regard terminated when the court ordered the ranch conveyed to Herrmann. Blase,
while so acting for the trustee in bankruptcy, had among other things started proceedings to
protect the range rights of the ranch. Blase testified that on the day of the court hearing
above referred to he advised Herrmann that the range rights of the ranch were in
jeopardy, and of the action instituted by Blase before the grazing authorities for the
purpose of protecting such rights.
the court hearing above referred to he advised Herrmann that the range rights of the ranch
were in jeopardy, and of the action instituted by Blase before the grazing authorities for the
purpose of protecting such rights. Blase also informed appellants that he had cleaned up the
ranch and made it more presentable for sale. Blase testified further, And at that time Mr.
Herrmann asked me if I would consider remaining in the same capacity for him and in return
for my services he would see that I was taken care of for as near as possible the amount of
money that I had lost with the previous owner; that respondent accepted Herrmann's offer at
the time that it was made, about December 1, 1953, and that the amount then discussed
between Herrmann and Blase as being due Blase was $36,000.
Blase further testified that thereafter he sought and obtained a reestablishment of the range
rights and performed other services relating to the improvement of the ranch; that Herrmann
accompanied Blase to the hearing upon the application for grazing rights, which Blase had
previously filed on behalf of Herrmann; that early in 1954 respondent Blase incurred expense
of about $700 for the repair of a water pump and additional expenses involving trips relating
to the employment of laborers to clean up the ranch and show the ranch to prospective
purchasers; that Blase was reimbursed for such expenses so incurred by the payment to him
by Herrmann of $1,000, the balance over the actual expenses to be applied as partial
compensation for respondent's services up to that date; that extensive cleaning up and repair
operations to the ranch property, including land, structures, machinery and equipment were
conducted under Blase's supervision; that Blase also effected the cleaning of ditches, repair of
fences, reestablishment of ranch boundary stakes, leveling about 70 acres of land, and took
action to acquire additional water rights for the ranch; that Blase advised Herrmann that Blase
had listed the ranch at a sale price of $175,000; that Herrmann advised Blase the amount that
Herrmann had invested in the ranch was $144,000 and that Herrmann told Blase that all Blase
received over and above that sum could be retained by Blase.
Blase received over and above that sum could be retained by Blase. In April 1954 one
Sanchez agreed to buy the ranch from appellant under a written six months' leasepurchase
agreement, and respondent pursuant to a written agreement between him and Sanchez was to
assist in the operation of the ranch. Although the sale price stated in the April 1954 agreement
between Herrmann and Sanchez was $144,000, respondent testified that the actual sale price
was $175,000; that Herrmann would receive $144,000 and Blase would receive $31,000.
Blase was with Sanchez on the ranch from about May 1 to October 21, 1954, during which
time, besides carrying on ranching operations, the irrigating system was improved by the
rebuilding of a dam and the repairing of ditches. Repairs to the ranch house and other
structures were also made. About September 1954 Sanchez notified Herrmann that Sanchez
was unable to conclude the purchase of the ranch and thereafter, although the time originally
designated by Herrmann for Sanchez to leave the ranch was October 1954, this time was
subsequently extended for 60 days, and after Sanchez left Blase remained there. Blase
testified that in October 1954 Herrmann advised him that, if Sanchez left the ranch, Blase's
interest
1
in the ranch would be retained by Blase, if Blase would stay on the ranch and
keep it active; that again in January 1955, when Herrmann gave written notice to Sanchez that
the rights of Sanchez under the purchase agreement were terminated, appellants reaffirmed, to
Blase, Herrmann's recognition of Blase's interest in the ranch.
Blase continued to spend the majority of his time at the ranch, according to his testimony,
until near the end of June 1955. Blase left the ranch shortly after appellants arranged for one
Cliff Gregor to operate and manage the ranch. In May 1955 Herrmann paid Blase $500
which, according to Blase's testimony, was to cover expenses and, according to Herrmann's
testimony, was salary paid to Blase.
____________________

1
The word interest appears to have been used in a colloquial sense. NRS 111.205 provides that no interest
or estate in lands other than leases for not exceeding a term of one year, shall be created or granted, unless by
operation of law or by written conveyance signed by the party granting or conveying the same.
was salary paid to Blase. Blase's testimony was corroborated in many particulars by that of
both Sanchez and Gregor. The testimony of other witnesses, and written evidence, tended to
corroborate other portions of Blase's testimony.
Herrmann denied Blase's version of the conversation had between them about December 1,
1953. Herrmann testified he had no imformation concerning certain work or improvements
which Blase claimed to have performed on the ranch; that he did not know conditions at the
ranch; did not make trips to the ranch; was busy in California with his other interests during
the period of February 17 to April 21, 1954 when, according to Blase's testimony, cleaning up
and other improvement work was being done at the ranch; that he paid nothing for labor or
gasoline for any cleaning up and other work done on the ranch by Blase; that, while
recognizing that Blase had leveled land at the ranch, Herrmann had paid nothing toward the
cost of such work.
Respondent's complaint, alleging two causes of action, was filed in Ormsby County,
Nevada on June 11, 1959. Respondent, on appeal, abandoned his first cause of action and,
accordingly, the same, together with appellants' specification of error directed to such cause
of action, is not discussed in this opinion. The second cause of action alleged that from
December 1, 1953 to June 30, 1955 respondent performed services on the ranch at appellants'
request; that appellants refused to pay respondent for the same and to reimburse respondent
for expenditures made by respondent for and on behalf of appellants upon said property, all to
respondent's damage in the sum of $35,000. The remaining specification alleged that the
court erred in the measure of damages, in awarding to respondent remote and speculative
damages rather than damages based upon the reasonable value of respondent's services and
expenditures performed pursuant to the contract.
[Headnotes 1, 2]
The trial court found that there was an oral contract between the parties; that appellants
promised to pay to respondent the sum of $31,000; the performance by respondent; and the
breach by appellants.
respondent; and the breach by appellants. There is substantial evidence supporting this
finding, and the judgment based thereon must be affirmed. The evidence is undisputed that
the basis for the bankruptcy court's action in ordering the ranch conveyed to Herrmann by the
trustee in bankruptcy was that the trustee had been unable to sell the ranch. Herrmann's claim
in bankruptcy based upon a secured indebtedness upon the ranch was in the amount of about
$144,000, and it may properly be inferred that the trustee was unable to effect a sale in excess
of the last mentioned amount. However, in April of 1954 after the ranch had been conveyed
to Herrmann in February 1954, a contract for the sale of the ranch to Sanchez for $175,000
was entered into. This was $31,000 more than the $144,000 that Herrmann had invested in
the same. The court was entitled to accept the testimony relating to this transaction as
showing not only what appeared to be an increased value of the ranch properties, but the
determination as between Blase and Herrmann that the sum of $31,000 was the measure of
the compensation to be paid Blase for the improvement at the ranch, through his services and
the expenditures made by him for the benefit and improvement of the ranch property.
Accordingly, under the court's finding that there was an oral contract between Blase and
Herrmann, the sum of $31,000 may be viewed as the agreed compensation arrived at as the
quantum meruit. These circumstances are not substantially altered, so far as the evidence
supporting the findings and judgment are concerned, even though for the period between
April 1954 and February 1955 during which Blase was on the ranch with Sanchez under an
agreement with Sanchez is considered as having involved services and expenditures made by
Blase under conditions where recompense for the same could not properly be expected by
Blase from Herrmann. The record shows that such last mentioned circumstances were fully
considered by the court and under its consideration at the time it entered the findings and
judgment. The court did, however, also have before it the evidence that, after Sanchez
notified Herrmann he was unable to proceed with the purchase of the ranch, about
September 1954, after conversations between Blase and Herrmann, Blase continued to
stay on the ranch, and that again when Sanchez actually left the ranch in February 1955
Blase continued on performing services and making expenditures, having the effect of
improving the ranch and assisting Herrmann, who denied familiarity with conditions at
the ranch.
unable to proceed with the purchase of the ranch, about September 1954, after conversations
between Blase and Herrmann, Blase continued to stay on the ranch, and that again when
Sanchez actually left the ranch in February 1955 Blase continued on performing services and
making expenditures, having the effect of improving the ranch and assisting Herrmann, who
denied familiarity with conditions at the ranch. We conclude that the evidence shows the
amount which Herrmann agreed to pay to Blase at the time of the Sanchez transaction in 1954
was the sum of $31,000. Under these conditions, in this action by Blase for recovery upon the
basis of quantum meruit, the agreed $31,000 became the quantum meruit. Warren v. Glasgow
& Western Exploration Co., 40 Nev. 103, 160 P. 793; Burgess v. Helm, 24 Nev. 242, 51 P.
1025.
Affirmed, with costs to respondent.
____________
77 Nev. 133, 133 (1961) Osman v. Cobb
VERA OSMAN, Appellant, v. HARRY COBB and
SONIA LUBIN COBB, Respondents.
No. 4275
March 8, 1961 360 P.2d 258
Appeal from the judgment of the Eighth Judicial District Court, Clark County; Harry M.
Watson, district judge of the Seventh District, presiding.
The trial court rendered a judgment adverse to the plaintiff, and the plaintiff appealed. The
Supreme Court, Badt, C. J., held that the judgment, which was rendered and entered by the
judge subsequent to the expiration of his term of office, was void and was required to be
vacated, and that an appeal from a void judgment may be considered and be acted on by the
Supreme Court.
77 Nev. 133, 134 (1961) Osman v. Cobb
Harry E. Claiborne, of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondents.
1. Judges.
Judgment rendered and entered by judge subsequent to expiration of term of office was void and was
required to be vacated. NRS 3.180, subds. 1, 2; NRCP 58(c).
Appeal from void judgment could properly be considered and be acted on by Supreme Court.
3. Costs.
Supreme Court would not allow costs to plaintiff-appellant, who was successful in having judgment
vacated as void because rendered and entered by judge subsequent to expiration of term of office, where
case was at issue in 1954, but was not brought to trial until 1958, and appellant did not seek relief in trial
court where relief could have been obtained more quickly, easily, and inexpensively. NRCP 60(b)(3).
OPINION
One of the grounds asserted for reversal of the judgment in favor of respondents is that the
supposed presiding district judge who signed the purported judgment was not a judge at the
time.
Respondents' answering brief discusses other issues raised in the opening brief but ignores
the above assignment. They have advised the court that they can make no response to such
assignment and have stipulated to the following facts:
The action was commenced in August 1954, respondents filed their answer in December
of that year, and the case was tried on May 7 and 8, 1958, at which time the court ordered the
matter submitted on briefs. In the trial court plaintiff's opening brief was filed on August 13,
1958, defendants' answering brief was filed December 3, 1958, and plaintiff's reply filed
December 5, 1958. No explanation appears for the lapses of time involved. It may be noted
that at the general election held November 4, 1958 Judge Watson was defeated for reelection
by a narrow margin, and that contest proceedings extended for a number of months into
1959.
77 Nev. 133, 135 (1961) Osman v. Cobb
for a number of months into 1959. This only increases the confusion with reference to filing
the final briefs in December of 1958. His term of office expired December 31 of that year. No
action was taken by him until February 9, 1959 when he filed his decision in favor of the
defendants, respondents herein, and on February 17, 1959 he signed the judgment in favor of
respondents as defendants therein and against plaintiff, the appellant here. Such judgment was
not filed or entered until November 10, 1959.
The filing with the clerk of the judgment signed by the judge constitutes the entry of such
judgment, and the judgment is ineffective for any purpose until the entry thereof. NRCP
58(c).
It is true that under NRS 3.180, paragraph 1, a judge may at any time within 12 months
after the expiration of his term sign any records of his court that he may have left unsigned at
the time of his going out of office. However, under paragraph 2 of that section, judges about
to retire from office, by reason of resignation or the expiration of their term, are required
before such retirement to decide all cases and matters submitted to them and remaining
undetermined.
From the facts as presented to us no criticism can be directed to Judge Watson. The case
was at issue in 1954. It was not brought to trial till 1958, when it was ordered submitted on
briefs. Counsel took almost seven months to get their briefs filed, leaving the judge about 26
days (which included the Christmas holidays) to decide a case which had been cold for some
seven months.
[Headnote 1]
Under our statute and rules of court, and under the rule so well established as not to
require citation, the judgment rendered and entered by a judge subsequently to the expiration
of his term of office was void and must be vacated.
[Headnote 2]
One additional point requires attention. The cases are in hopeless conflict with reference to
the appealability of a void judgment. See annotation, 33 L.R.A. (N.S.) 733.
77 Nev. 133, 136 (1961) Osman v. Cobb
This court, however, has since its beginnings held that an appeal from a void judgment might
properly be considered and acted upon. Chapman v. Justice Court, 29 Nev. 154, 86 P. 552, 99
P. 1077; Jumbo Mining Co. of Goldfield v. District Court, 28 Nev. 253, 81 P. 153; Hastings
& Co. v. Burning Moscow Company, 2 Nev. 93.
[Headnote 3]
The judgment is vacated and the case remanded for further proceedings. In view of the
facts above recited and in view of the failure of appellant to seek relief in the district court
under NRCP 60(b)(3) where such relief could have been obtained more quickly, easily, and
inexpensively, no costs are allowed.
____________
77 Nev. 136, 136 (1961) McDowell v. Drake
MARJORIE McDOWELL, Appellant, v. ROBERT A. DRAKE and
HERMAN BAKER, dba DeLuxe Taxi Service, Respondents.
No. 4387
March 17, 1961 360 P.2d 257
The lower court rendered a judgment, an appeal was taken and a motion to dismiss was
filed. The Supreme Court held that fact that the plaintiff's two attorneys each thought the
other was perfecting appeal, that the plaintiff was unable to pay for a transcript, that there was
delay by the reporter, and that the attorneys were absent from their offices did not excuse the
failure to timely file and docket the record on appeal.
Guild, Busey and Guild and Gordon W. Rice, of Reno, for Appellant.
Woodbury, Forman, Wedge, Blakey and Thompson, of Reno, for Respondents.
Fact that plaintiff's two attorneys each thought the other was perfecting appeal, that plaintiff was unable
to pay for transcript, that there was delay by reporter, and that attorneys were absent
from their offices did not excuse failure to timely file record.
transcript, that there was delay by reporter, and that attorneys were absent from their offices did not excuse
failure to timely file record. NRCP 73(g).
On motion to dismiss appeal for failure to timely file record, entire record would not be reviewed on
merits to determine whether substantial question existed. NRCP 73(g).
On Motion to Dismiss Appeal
OPINION
Per Curiam:
Respondents have moved to dismiss the abovecaptioned appeal for failure of appellant to
file the record on appeal and to docket the same in this court within the time prescribed by
Rule 73(g) NRCP. In opposition to the motion, appellant has filed a 26-page brief, with a
9-page appendix of affidavits, reciting facts upon which appellant relies and reviewing our
many decisions in which we have either granted or denied motions to dismiss.
[Headnote 1]
The notice of appeal herein was filed July 7, 1960, and the time to file the record on appeal
expired August 16, 1960. The record was actually filed November 30, 1960, some 3 1/2
months late. Excusable neglect is sought to be shown by reason of the fact that, of the two
attorneys representing the appellant, each thought that the other was perfecting the appeal
through proper and timely filing of the record. This is supported by lengthy affidavits which
also recite the financial difficulties of the appellant, her inability to produce funds to pay for
the transcript, delay by the reporter, absence of each attorney from his office on important
legal matters, etc. No purpose will be served by reviewing the situation at length. In our
opinion the delay and the neglect were not excusable. Hartstone v. Hartstone, 75 Nev. 107,
335 P.2d 431; Dreyer v. Dreyer, 74 Nev. 167, 325 P.2d 705; Cole v. Cole, 70 Nev. 486, 274
P.2d 358; Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955.
Aside from the question of excusable neglect, appellant contends that the court should
deny a motion to dismiss where a substantial question on the merits of the appeal and a
possible reversible error is present, citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S.
695, 67 S.Ct. 954, 91 L.Ed. 1184.
[Headnote 2]
Without deciding this point we are satisfied from the briefs that the substantial question
for consideration on appeal would not be an error of law committed by the court but the
asserted error of the jury in its determination of the facts. If we were required to consider
errors other than that asserted in the briefs, it would necessitate a review as on the merits of
the entire record on appeal. This we do not feel inclined to do in a disposition of a motion to
dismiss.
The appeal is hereby dismissed.
____________
77 Nev. 138, 138 (1961) Wolf v. Bonanza Investment Co.
DAVID S. WOLF and REVA N. WOLF, Appellants, v. BONANZA INVESTMENT CO., a
Corporation; FIRST WESTERN SAVINGS AND LOAN ASSOCIATION, a
Corporatlon; MAC L. GILSON; WILLIAM RAYSON, Respondents.
No. 4338
March 22, 1961 360 P.2d 360
Appeal from judgment of the Eighth Judicial District Court, Clark County; A. S.
Henderson, Judge.
Action by purchasers against vendor and others for rescission and damages. The trial court
rendered judgment for defendants, and plaintiffs appealed. The Supreme Court, Pike, J., held,
inter alia, that alleged misrepresentations by third persons, not parties to contract, were not
ground for rescission.
Judgment affirmed.
Calvin C. Magleby, of Las Vegas, for Appellants.
Goldwater and Singleton, of Las Vegas, for Respondents First Western Savings and Loan
Association, and William Rayson.
Jones, Wiener and Jones, of Las Vegas, for Respondents Bonanza Investment Co. and
Mac L. Gilson.
1. Vendor and Purchaser.
Evidence in purchasers' action for rescission supported finding that purchasers had not been misled by
any statements made by president of vendor corporation.
2. Contracts.
Alleged misrepresentations by third persons, not parties to contract, were not ground for rescission.
3. Trial.
Trial court, in granting defendants' motion to dismiss at close of plaintiffs' case, must be viewed as having
accorded plaintiffs' evidence, as well as all inferences which might properly be drawn therefrom, the
construction most favorable to plaintiffs.
4. Building and Loan Associations.
Evidence in purchasers' action against savings and loan association, whose president had acted as
purchasers' agent in transaction with vendor, supported finding that president, in making alleged assurances
that association would make loan, had not acted within his authority from association.
5. Vendor and Purchaser.
Evidence in purchasers' action against vendor and others for rescission and damages was insufficient to
support a judgment for compensatory damages.
6. Damages.
Exemplary damages may not be allowed where the allegedly injured purchaser cannot show grounds for
compensatory damages.
OPINION
Appellants herein, as plaintiffs below, brought suit against respondents, seeking rescission
of a certain contract for the purchase of a building lot in Las Vegas, and damages. At the
close of appellants' case, respondents moved to dismiss appellants' complaint, and the trial
court entered the judgment herein appealed from, granting said motion to dismiss, and
denying all relief sought by appellants.
court entered the judgment herein appealed from, granting said motion to dismiss, and
denying all relief sought by appellants.
Appellants' complaint sought rescission of a contract dated May 15, 1956 between
appellants and respondent Bonanza Investment Company, charging that appellants would not
have entered into said contract except for their reliance upon certain false and fraudulent
representations made to them by respondents.
Respondent Rayson, vice president of the respondent Savings and Loan Association, and
respondent Gilson, president of Bonanza Investment Company, allegedly falsely represented
to appellants that said Savings and Loan Association would make a loan to appellants,
covering the full cost of constructing a 14-unit apartment building on said lot, on the sole
security of the lot and the said improvements to be placed thereon, thereby inducing
appellants to purchase said lot from Bonanza Investment Company for the sum of $11,300.
After having purchased the lot and having failed to obtain the loan, appellants in the action
for rescission sought to recover as damages the amount of the purchase price, as well as
exemplary damages.
Appellants specify as error on the part of the trial court, (1) failure to apply the correct
measure of damages; (2) failure to hold that respondent First Western Savings and Loan
Association was liable for the promises made by respondent Rayson. We find no merit in
either of these asserted errors.
[Headnotes 1, 2]
The record shows that appellant Wolf and respondent Rayson had been business
acquaintances in the Los Angeles area prior to Wolf's coming to Las Vegas and renewing his
acquaintanceship with Rayson. Wolf had, for a number of years, been in the mortgage
business, arranging trust deeds for individuals, when he authorized Rayson to act on his
behalf in arranging for the purchase, by Wolf, of the particular lot from Bonanza Investment
Company. Wolf's testimony shows that Rayson was acting on behalf of Wolf and not on
behalf of the Investment Company at the time that Wolf entered into the contract of
purchase.
the Investment Company at the time that Wolf entered into the contract of purchase. Wolf's
testimony also showed that, after he had told Rayson that he understood that the particular lot
in which Wolf was interested was for sale, Rayson acted for Wolf in the purchase of the lot
for $11,300, some $700 less than the owner's asking price for the same. The record also
shows that Wolf and Bonanza Investment Company were the only parties to the contract for
the purchase of the lot by Wolf and that Wolf did not become acquainted with respondent
Gilson, president of the vendor corporation, until after entering into the contract, and the
escrow pertaining to the sale of the lot had been opened. Under these circumstances, Wolf
could not have been in any way misled by any statements made to him by Gilson, president of
Bonanza Investment Company; and the court properly refused rescission of the contract
between Wolf and the Investment Company, and refused to grant Wolf any damages against
either the Investment Company or Gilson, based upon any loss that Wolf may have suffered
by reason of having purchased the lot. Necessarily, there was no basis for a judgment of
rescission of the lot purchase agreement, based upon any representations made by Rayson to
Wolf in connection with the purchase of the lot, or against respondent Savings and Loan
Association, of which Rayson was vice president and loan officer, as neither was a party to
said contract.
To establish authority on the part of Rayson to bind the Association, appellants relied
solely upon the admitted fact that Rayson occupied the indicated official positions with said
Association on the occasions when he had talked to Wolf. Rayson denied having made the
oral representations concerning the loan which Wolf's testimony attributed to him.
[Headnote 3]
The trial court, in granting respondents' motion to dismiss at the close of appellants' case,
must be viewed as having accorded appellants' evidence, as well as all inferences which
might properly be drawn from the same, the construction most favorable to appellants. In the
instant situation it was not a question of a failure on the part of the court to apply the
proper test or accord appropriate weight and recognition to appellants' evidence but,
rather, a failure on the part of appellants to produce evidence which would have
permitted a recovery against any of the respondents.
the instant situation it was not a question of a failure on the part of the court to apply the
proper test or accord appropriate weight and recognition to appellants' evidence but, rather, a
failure on the part of appellants to produce evidence which would have permitted a recovery
against any of the respondents. Appellants on appeal appear to have conceded that this was
true, except as to respondent Rayson.
[Headnotes 4-6]
However, disregarding any such concession, we have already disposed of the issue of any
liability of any respondents other than Rayson and the Association; and the record also shows
that there was no evidence which would have sustained a judgment against either of them. As
appellants admitted Rayson was their agent in conducting the negotiations and purchase of
the lot, it is apparent that there would have been no liability on the part of the Association to
appellants based upon any representations that Rayson may have made to them concerning
the value of the lot. The conversations between Wolf and Rayson, and Rayson's admitted
official capacity with the Association, was the only evidence relied upon by appellants to
establish liability on the part of the Association. Yet, from the evidence, those discussions
inextricably commingled the purchase of the lot by Rayson as appellants' agent with the
contended assurances that the construction loan would be made by the Association. The only
writings relating to any phase of the transaction appear to have been those placed in the
escrow pertaining to the purchase of the lot and, while there was a set of plans in such escrow
furnished to appellants by the seller, no specifications, cost estimates, or building contract
relating to the suggested apartment house were produced. There is no showing of the amount
or the approximate amount of any such construction loan, and appellants testified that they
never filed any written application for such a loan. There is no evidence that the Association
ever refused to make a construction loan to appellants. Upon this inadequate and obscure
proof the trial court properly concluded that there was not sufficient evidence that Rayson
acted within his authority as an officer of the Association in making the contended
assurances to appellants.
concluded that there was not sufficient evidence that Rayson acted within his authority as an
officer of the Association in making the contended assurances to appellants. Accordingly,
there was no liability on the part of the Association, and the judgment of dismissal as to it
must be sustained. There is no evidence that Rayson ever breached any assurances given by
him, as an individual, upon which respondents relied to their loss or damage. There was no
evidence before the trial court which would have supported a judgment for compensatory
damages. A real estate man, called as a witness by appellants, testified on cross examination
that the lot, zoned for a 14-unit apartment building, had a greater value than the purchase
price paid by appellants. This uncontradicted evidence negatived the basis for compensatory
damages against any respondent and, in the absence of a judgment for actual damages, there
could not have been a valid judgment for exemplary damages. Novack v. Hoppin, 77 Nev. 33,
359 P.2d 390.
Affirmed, with costs to respondents.
Badt, C. J. and McNamee, J., concur.
____________
77 Nev. 143, 143 (1961) Force v. Peccole
ARTHUR R. FORCE, Appellant, v. WILLIAM PECCOLE, L. L. OUSLEY, FRANK B.
DITTMAN and MARGARET A. DITTMAN, Husband and Wife, Respondents.
No. 4376
March 22, 1961 360 P.2d 362
An action was brought for a judgment awarding the plaintiff a certain interest in described
land. The trial court rendered a judgment adverse to the plaintiff, and the plaintiff appealed.
The Supreme Court, McNamee, J., held that the evidence sustained the finding of the
District Court that the plaintiff's assignor had not substantially performed under an oral
agreement whereby he was to render services in the processing of the application of the
defendants for an exchange of lands under the Taylor Grazing Act for an interest in the
joint venture of the defendants.
the plaintiff appealed. The Supreme Court, McNamee, J., held that the evidence sustained the
finding of the District Court that the plaintiff's assignor had not substantially performed under
an oral agreement whereby he was to render services in the processing of the application of
the defendants for an exchange of lands under the Taylor Grazing Act for an interest in the
joint venture of the defendants.
Affirmed.
Morton Galane, of Las Vegas, for Appellant.
George E. Franklin, Jr., of Las Vegas, and Guild, Busey and Guild, of Reno, for
Respondents.
1. Joint Adventures.
Evidence sustained finding that plaintiff's assignor did not substantially perform his part of oral contract
with defendants to render services for defendants in processing application for exchange of lands under
Taylor Grazing Act for interest in joint venture of defendants. Taylor Grazing Act, secs. 1 et seq., 8, 43
U.S.C.A., secs. 315 et seq. 315g.
Party on appeal cannot assume attitude or adopt theory inconsistent with or different from that taken at
hearing below.
Plaintiff, who sought recovery in trial court under oral contract, couid not, on appeal, seek to recover as
third-party beneficiary under written contract.
OPINION
This action was brought by appellant to obtain a judgment awarding him a certain interest
in land described in his second amended complaint.
The allegations of the second amended complaint material to this appeal are as follows:
It is alleged in paragraph IV thereof that the defendants promised and agreed that in
consideration of the performance of services by the said James J. Shepard, Jr., for and on
behalf of said defendants and the said Robert W. Shrake, aka R. W. Shrake, in connection
with the processing of the aforesaid application and transfer of lands purchased by the
defendants under the provisions of said Section S of the United States Statute known as
the Taylor Grazing Act [43 U.S.C.A. sec.
the processing of the aforesaid application and transfer of lands purchased by the defendants
under the provisions of said Section 8 of the United States Statute known as the Taylor
Grazing Act [43 U.S.C.A. sec. 315 et seq.] and other services in connection therewith in the
District of Columbia, said defendants would transfer, and the said James J. Shepard, Jr., [aka
J. J. Shepard] appellant's assignor, would own 15% of the joint venture therein contemplated;
that pursuant to said agreement, the said James J. Shepard, Jr., performed said services as
agreed upon.
The said complaint in a separate paragraph also refers to a written agreement dated
January 5, 1950 creating the joint venture contemplated above which was executed by the
respondents wherein $15,000 was to be paid by respondents Dittman to Clark Guild, Jr., in
trust partly for his services in connection with the acquisition of said lands from Southern
Pacific Land Co. and said written agreement specified that J. J. Shepard was to own 15
percent thereof.
A motion for a more definite statement was made by respondents to require plaintiff to
furnish a statement of the following: (1) the date of the agreement alleged in said paragraph
IV; (2) whether the agreement was written or oral; (3) if oral, with which defendants was said
oral agreement entered into; and (4) what services were to be performed by appellant's
assignor and what services were actually performed. Pursuant to said motion, appellant
furnished a statement that the agreement mentioned in paragraph IV was oral; that it was
made prior to the filing of the application for land transfer under Section 8 of the statute
commonly known as the Taylor Grazing Act; that the said oral agreement was the
culmination of numerous conversations and conferences and was entered into in the late
summer of 1949, and after the 5th day of August 1949; that said oral agreement was made by
James J. Shepard, Jr., with the respondents William Peccole, L. L. Ousley, and Robert W.
Shrake, with the ratification and approval of the respondents Dittman; and that the services to
be performed by Shepard, were the processing with the Department of Interior, the
defendants' application for transfer of land under said Taylor Grazing Act, and to serve as
Washington, D. C. counsel for said defendants; that pursuant to said agreement the said
James J. Shepard, Jr., plaintiff's assignor, held conferences with agents of the
Department of Interior; entered into correspondence with the defendants' Nevada
counsel, Clark Guild, Esquire, advised, counselled and coordinated the work involved in
said application between the defendants and their Nevada counsel and agents of the
Department of Interior; that said James J. Shepard, Jr., plaintiff's assignor, performed all
duties requested and required of him under said agreement."
Department of Interior, the defendants' application for transfer of land under said Taylor
Grazing Act, and to serve as Washington, D. C. counsel for said defendants; that pursuant to
said agreement the said James J. Shepard, Jr., plaintiff's assignor, held conferences with
agents of the Department of Interior; entered into correspondence with the defendants'
Nevada counsel, Clark Guild, Esquire, advised, counselled and coordinated the work
involved in said application between the defendants and their Nevada counsel and agents of
the Department of Interior; that said James J. Shepard, Jr., plaintiff's assignor, performed all
duties requested and required of him under said agreement.
The allegations contained in paragraph IV of the second amended complaint were denied
in respondents' answer thereto; wherein defendants affirmatively alleged that prior to the
execution of the said joint venture agreement of January 5, 1950, upon the representation
and inducement of defendant R. W. Shrake that J. J. Shepard was an attorney at law
practicing in the District of Columbia who could be of material assistance in the securing of a
Federal land exchange, the Defendants agreed to set apart fifteen per cent of said joint venture
to be conveyed to J. J. Shepard, in the event he were employed by said Defendants and did
ultimately secure the consummation of said Federal Land Exchange. * * * That Defendants
L. L. Ousley and William Peccole, with the express authorization of all the defendants,
conferred with the said J. J. Shepard with respect to his employment by the defendants, and
determined after one meeting not to continue the employment of J. J. Shepard. * * * That
the said J. J. Shepard was paid in full by the Defendants for his services for several
conferences with the Defendants and one luncheon meeting with a Federal Land Official, and
accepted said money, nor was ever returned or tendered back said money. * * * At no time
did Defendants agree with the said J. J. Shepard to convey to him any interest in said joint
venture.
After a trial without a jury, the court rendered a written decision dated July 21, 1960,
wherein it recited that an order had been made that briefs should be filed, the first brief to
be filed by plaintiff, and that although the trial had been concluded on November 20,
1959, and although defendants had requested plaintiff's counsel to file his brief, no briefs
had been filed, and the court decided the case without the benefit of briefs.
an order had been made that briefs should be filed, the first brief to be filed by plaintiff, and
that although the trial had been concluded on November 20, 1959, and although defendants
had requested plaintiff's counsel to file his brief, no briefs had been filed, and the court
decided the case without the benefit of briefs. The court found in said decision that there was
a contract entered into between the parties and therein the name of James J. Shepard was
inserted, showing that he was to receive fifteen (15) per cent of the product received upon his
preparing, processing, and completing of the work of obtaining title thereto from the
government.
There is evidence to show that many conferences were held between the various parties to
the contract and in particular with one Robert W. Shrake whereby he said Shepard was
employed to make application, process and to carry on to completion the procuring of the
lands mentioned in the application to the benefit of the Defendants, and there is much
evidence to show that the said Shepard did do a considerable amount of work through
correspondence and that there was filed with the proper Governmental agency an application
for said land.
It is further shown that said application was returned and to whom was not definitely
proven but the said Shepard received the notice that the same was returned and rejected
because not in proper form and for other reasons set out in the notice of rejection.
The proof further shows that the said Shepard did nothing more thereafter; that all he did
was enter into certain conversations and correspondence with certain of the Defendants,
particularly a Mr. Peccole, and was instrumental in filing the original application, which
original application was rejected by the Governmental Agency.
Thereafter the matter was continued to be processed through Counsel in the State of
Nevada, and the original application, although rejected, was used, whereupon Counsel in
Nevada filed an amended application with the Department in the State of Nevada; the
amended application being so filed, being an amended application to the original application
in order to obtain certain priority rights by reason of said first application.
original application in order to obtain certain priority rights by reason of said first application.
Thereafter the entire work was done by Nevada Counsel and nothing at all was done by
Mr. Shepard.
The Court feels that Mr. Shepard would be entitled to the reasonable value of his services
rendered but cannot find that he is entitled to the amount set forth in the contract, fifteen (15)
per cent, or to the amount prayed for in the complaint or for damages as prayed for.
It should be noticed also that the contract was never signed by Mr. Shepard and there is
no evidence definitely fixing the compensation between the Defendants and Mr. Shepard as
being fifteen (15) per cent of the benefits to be received.
The evidence does show that Mr. Shepard did nothing beyond what has been heretofore
said and that the processing and filing of the amended application and carrying the matter
through to final determination was all done by the Nevada Counsel.
Inasmuch as no evidence was submitted as to the value of the services rendered by Mr.
Shepard the Court is unable to fix any value of the same;
Therefore, the Court cannot find that the said Plaintiff in this case, Assignee of the said
Shepard would be entitled to relief prayed for in the complaint and, therefore, the Court finds
in favor of the Defendant and against the Plaintiff.
No formal findings of fact or conclusions of law, other than what appear in said written
decision, were made by the trial court, and its judgment that the appellant take nothing by
reason of his said complaint resulted from said decision.
Appeal is from said judgment.
Appellant cites six errors in his opening brief. He filed no reply brief.
The first error assigned is that the court erred in failing to find a contract among Shepard
and the Respondents. This assertion is without merit because it appears from the quoted
portion of the trial court's decision that a contract of employment was entered into between
Shepard and the respondents.
The second assigned error is that the court erred in failing to find that Shepard did not
substantially perform his part of the contract."
failing to find that Shepard did not substantially perform his part of the contract. Whether
Shepard substantially performed his part of the contract was a factual determination. Shepard
testified that the agreement to share with him the lands to be acquired resulted from
discussions had in the middle of 1949 between him on the one hand and Shrake, Peccole and
Ousley on the other. Ousley testified that all of the respondents had employed Shepard and
agreed to pay him 15 percent of the said joint venture as compensation for his services in
processing the application in Washington for an exchange of lands under the Taylor Grazing
Act.
Peccole testified that a 15 percent interest was to be given to Shepard if he would deliver
patents to us on this land that we were applying for. * * * Actually, the understanding at the
beginning was this was going to be handled in Washington and we had to do nothing except
just sit back and provide the information as to what lands we wanted to select and we were to
get options or to buy lands to be offered; in other words we had to offer our land or privately
owned land for Federal land or selected land. It further appears from Peccole's testimony that
the reason Shepard was not given 15 percent or any interest in the joint venture was because
he hadn't produced or delivered as our understanding was; he had not secured patents; in fact
he quit working and he didn't do anything; that after Shepard indicated that he no longer
could render service to the respondents the agreement between the respondents to give
Shepard 15 percent was rescinded; that the first application for the exchange of lands was
actually filed by Nevada Counsel and filed not in Washington, D. C., but in Reno which was
the proper place for filing; that the amended application with which Shepard had nothing to
do was likewise filed in Reno and finally approved.
[Headnote 1]
True it is that there was a conflict in the evidence not only as to what Shepard was to do to
be entitled to the 15 percent interest but also as to whether he substantially performed his part
of the employment agreement. The trial court decided these issues in favor of respondents
and there was competent evidence to sustain the court's determination of these
contested matters.
respondents and there was competent evidence to sustain the court's determination of these
contested matters.
The third assignment of error also involves a factual question. Appellant here asserts that
the trial court erred in construing the contract among Shepard and respondents to mean that
Shepard was bound to actually complete the procuring of lands in Nevada inasmuch as there
was no such express or implied term in the contract. If appellant is referring to the written
contract of January 5, 1950, to which he was not a party, the assignment would need no
further consideration because this action according to the pleadings, as amplified by the more
definite statement is based on a prior oral agreement to which Shepard was a party. Both
appellant and Shepard testified that the claim sued upon was based on an oral contract entered
into some six months before the date of said written contract. The evidence in the record
sustains the contention of respondents that Shepard in consideration for an interest in the joint
venture was to perform legal services to procure the desired patents and that there was a
failure of consideration. In fact it developed during the trial from Shepard's own admission
that he was not admitted to practice law in the District of Columbia.
[Headnotes 2, 3]
In his fourth assignment of error appellant contends that the trial court should have found
that the agreement of January 5, 1950 constituted appellant a third party beneficiary. Without
considering the fact that said written agreement was later rescinded by the signatories thereto
or the legal effect a rescission would have on the rights of a third party beneficiary, we must
hold that this contention is without merit because as shown heretofore the pleadings were
based on the oral contract entered during the year 1949 and the suit was tried on that theory.
Evidence was received on behalf of appellant and respondents pertaining to said oral contract
and the terms thereof. The written agreement of January 5, 1950 was relevant only with
respect to the compensation Shepard would receive under the oral agreement in the event
the oral agreement was performed by Shepard in accordance with the terms of said oral
agreement.
agreement in the event the oral agreement was performed by Shepard in accordance with the
terms of said oral agreement. In asserting rights as a third party beneficiary under the written
agreement of January 5, 1950 appellant on this appeal is adopting a theory inconsistent with
that taken in the trial court. The settled rule in this state is that a party on appeal cannot
assume an attitude or adopt a theory inconsistent with or different from that taken at the
hearing below. Clark County v. State, 65 Nev. 490, 199 P.2d 137. The case of Ward v.
Taggart, 51 Cal.2d 736, 336 P.2d 534, cited by appellant in his oral argument is not
applicable to the situation here presented. In that case the facts pleaded and proved were
sufficient to uphold a recovery under the theory adopted in the appellate court. Such is not the
situation in the case now before us.
The fifth assignment of error is that the trial court erred in failing to find that the
respondents are estopped from denying the existence of a contract between themselves and
Shepard because the latter reasonably relied on their misrepresentations and substantially
performed his part of their agreement. This contention assumes that respondents made
misrepresentations to Shepard and, further, it assumes that Shepard substantially performed
his part of the agreement. These matters were determined by the trial court adversely to
appellant and substantial evidence justifies such determination.
Lastly, appellant contends that the court erred in finding that there was no evidence
definitely fixing compensation between the respondents and Shepard at 15 percent of the
benefits to be received pursuant to the agreement dated January 5, 1950. Here again, appellant
fails to recognize that the suit was based on the prior oral contract under which compensation
was to be paid only in the event of substantial compliance by appellant with the terms thereof.
It is clear from the record that all the parties, including Shepard, assumed that Shepard was to
receive the 15 percent interest in the joint venture only for specific services which he (and
Shrake also on his behalf) represented he could or would perform. Whether he was entitled to
any compensation for partial performance is not a matter for consideration on this appeal.
for partial performance is not a matter for consideration on this appeal. No evidence was
presented in the court below relating to the value of any services rendered by Shepard to the
respondents.
That the court's decision is inconsistent with certain admitted and proven facts perhaps can
be attributed to the lack of final oral argument in the court below and the failure of counsel to
file therein the ordered briefs. As a result it is not likely that the evidence would be accurately
recalled with the interim of eight months between trial and decision that resulted.
Affirmed.
____________
77 Nev. 152, 152 (1961) County of Washoe v. City of Reno
THE COUNTY OF WASHOE, THE BOARD OF COMMISSIONERS OF THE COUNTY
OF WASHOE, State of Nevada, and BENJAMIN F. WINN, J. C. MCKENZIE, and
RAYMOND A. PETERSON, Constituting the Members of Said Board, Appellants,
v. CITY OF RENO, NEVADA, a Municipal Corporation, and CITY OF
SPARKS, NEVADA, a Municipal Corporation, Respondents.
No. 4340
March 24, 1961 360 P.2d 602
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Mandamus proceeding by cities to compel county commissioners to apportion the general
road fund. The lower court entered an order granting the writs, and an appeal was taken. The
Supreme Court, McNamee, J., held that mandamus was not a proper remedy.
Reversed.
Roger D. Foley, Attorney General, and William J. Raggio, District Attorney, Washoe
County, for Appellants.
Roy Lee Torvinen, City Attorney, of Reno, for Respondent City of Reno.
James R. Brooke, City Attorney, of Sparks, for Respondent City of Sparks.
1. Highways.
Upon compliance by city with statute pertaining to apportionment by county commissioners of general
road fund, it becomes duty of commissioners to make such apportionment, and upon failure to do so, an
action at law would lie. NRS 403.450.
2. Mandamus.
Mandamus is not the proper remedy if there is a plain, speedy and adequate remedy at law. NRS
34.170.
3. Mandamus.
Mandamus lies only where there is no other remedy, and a remedy does not fail to be speedy and
adequate because by pursuing it through the ordinary course of law more time probably would be
consumed than in a mandamus proceeding.
4. Mandamus.
Mandamus was not proper remedy to compel board of county commissioners to apportion general road
fund as provided by statute. NRS 34.170, 403.450.
5. Mandamus.
Inadequacy of a remedy at law to produce money is not the test of right to mandamus, but true test is
whether judgment could be obtained in a proceeding at law, and if it could, mandamus will not lie.
6. Mandamus.
If judgment based on claim for money were obtained against a county, and county commissioners refused
to pay such final judgment, mandamus would be an appropriate remedy.
OPINION
Respondent City of Sparks on April 13, 1959 and respondent City of Reno on April 27,
1959, both through their respective city councils, requested the board of county
commissioners of appellant Washoe County to apportion the general road fund as
provided by subsection 2 of NRS 403.450.
county commissioners of appellant Washoe County to apportion the general road fund as
provided by subsection 2 of NRS 403.450.
Said statute provides:
1. To provide funds for paying the expenses of road work, the several boards of county
commissioners shall, from time to time upon the request of the city council, apportion to each
incorporated city within the respective counties such proportion of the general road fund of
the county as the value of the whole property within the corporate limits of such city or cities,
as shown by the last assessment roll, shall bear to the whole property in the county, inclusive
of property within the incorporated cities.
2. The apportionment of moneys to cities as provided in subsection 1 shall not exceed an
amount greater than 10 percent of the total amount levied and collected for general road
purposes within the county, exclusive of funds for the payment of the principal and interest of
bonds for road and street purposes.
3. All such moneys so apportioned shall be expended upon the streets, alleys and public
highways of such city or cities under the direction and control of the city council.
Upon the refusal of said board of county commissioners to apportion the general road fund
as requested, each city petitioned the lower court for a writ of mandamus to compel such
apportionment.
Appeal is from the order granting the writs.
Appellants specify two errors:
Their first contention is that mandamus is not the proper remedy, because respondents
have a plain, speedy, and adequate remedy at law.
[Headnote 1]
It is apparent from NRS 403.450 that upon compliance by a city with the provisions
thereof it becomes the duty of the county commissioners to make the apportionment of funds
as in said statute provided, and upon its failure to do so an action at law would 1ie.1
Oregon City v. Clackamas County, 11S Or.
its failure to do so an action at law would 1ie.
1
Oregon City v. Clackamas County, 118 Or.
546, 247 P. 772.
[Headnote 2]
We held in State ex rel. Brown v. Nevada Industrial Commission, 40 Nev. 220, 161 P.
516, that mandamus is not the proper remedy if there is a plain, speedy, and adequate remedy
at law, and NRS 34.170 so provides. Respondents contend, however, that even though a legal
remedy here exists, it is not as plain, speedy, and adequate a remedy as is provided by
mandamus, and that an action for money damages would not be equally as convenient,
complete, beneficial, and effective as a writ of mandamus. To support this view they refer to
the decision of the trial court wherein the following appears:
While it is possibly true that an action at law would lie for the amount claimed by the two
Cities, it is difficult for me to comprehend that such a procedure comes under the category of
plain, speedy and adequate' in that a complaint, summons, trial, judgment, execution and sale
would have to be brought before any relief could be obtained under respondents' contention,
something which is not equally convenient, beneficial and effectual.'
Inasmuch as an action at law would lie to compel the performance of the duty imposed by
the statute a plain remedy other than mandamus is available to respondents. We need
consider, therefore, only whether said remedy is also speedy and adequate.
[Headnotes 3, 4]
A judgment in an action at law that the respondents apportion the funds could as easily be
obtained as a judgment of mandate ordering them to partition the funds. In either case the
procedure for relief would require a complaint or petition, summons or notice, trial or
hearing, and judgment or order.
____________________

1
In the present case the exact amount the cities are entitled to has been ascertained and agreed upon by all
parties.
trial or hearing, and judgment or order. However, the fact that mandamus would give an
easier or more expeditious remedy is not the criterion. Mandamus lies only where there is no
other remedy, both legal and specific. Steves v. Robie, 139 Me. 359, 31 A.2d 797. A remedy
does not fail to be speedy and adequate, because, by pursuing it through the ordinary course
of law, more time probably would be consumed than in a mandamus proceeding.
2
Hubbard
v. Justice's Court, 5 Cal.App. 90, 89 P. 865. We therefore conclude that the legal remedy was
both speedy and adequate, and we disapprove of the reasoning of the lower court as so
expressed in its decision. If that view were accepted, mandamus could issue in any case
where the cause of action arises out of a mandatory statute, and an action at law is available.
During oral argument, counsel for respondents suggested that an action at law would not
be adequate because it could not be enforced by a writ of execution against a county fund.
Whether this be true or not, it is hardly to be supposed that an execution would be necessary
in the event a judgment at law were obtained against the county in this type of case any more
than a contempt proceeding would be required in the event a peremtory writ of mandamus
were issued. In answer to this suggestion, however, it is necessary to say only that our
concern is with the existence of a remedy and not whether it will be unproductive in this
particular case, Hughes v. Newcastle Mutual Insurance Co., 13 U.C.Q.B. (Ont.) 153, or
inconvenient, Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457, or
ineffectual, United States ex rel. Crawford v. Addison, 22 How. 174, 63 U.S. 174, 16 L.Ed.
304.
In Stewart v. Manget, 132 Fla. 498, 181 So. 370, in affirming an order dismissing a bill in
equity on the ground that the plaintiff had an adequate remedy at law, the Florida
Supreme Court cited with approval the following language from Tampa & G.C.R. Co. v.
____________________

2
It appears from the record in the present case that the respondent cities were a year late in making their
requests for the apportionment, and that although their requests were considered and not granted by the appellant
board on May 5, 1959, these proceedings in mandamus were not commenced in the lower court by the City of
Reno until December 1, 1959 and by the City of Sparks until January 11, 1960.
affirming an order dismissing a bill in equity on the ground that the plaintiff had an adequate
remedy at law, the Florida Supreme Court cited with approval the following language from
Tampa & G.C.R. Co. v. Mulhern, 73 Fla. 146, 74 So. 297, 299:
The inadequacy of a remedy at law to produce money is not the test of the applicability of
the rule. All remedies, whether at law or in equity, frequently fail to do that; and to make that
the test of equity jurisdiction would be substituting the result of a proceeding for the
proceeding which is invoked to produce the result. The true test is, could a judgment be
obtained in a proceeding at law, and not, would the judgment procure pecuniary
compensation.
[Headnote 5]
This statement is true with respect not only to suits in equity, but also to mandamus
proceedings.
[Headnote 6]
If a judgment based on a claim for money should be obtained against the county, and the
county commissioners then should refuse to pay such final judgment, mandamus then would
be an appropriate remedy. State ex rel. Brown v. Nevada Industrial Commission, supra. But
as heretofore stated we are concerned only with the existence of a remedy at law and not with
the enforcement thereof after judgment.
Disposition of the appeal by sustaining appellants' first claim of error eliminates
consideration of other matters.
Reversed.
____________
77 Nev. 158, 158 (1961) Cicerchia v. Cicerchia
JOSEPH A. CICERCHIA, Appellant, v.
CARMELA CICERCHIA, Respondent.
No. 4342
April 4, 1961 360 P.2d 839
Action by husband for a divorce. From an order of the lower court setting aside a default
judgment entered against the wife, the husband appealed. The Supreme Court, McNamee, J.,
held that where the wife's physical condition could have been a contributing cause of her
out-of-state attorney's failure to engage counsel in Nevada prior to entry of default decree and
wife acted immediately upon learning of default and presented a defense on the merits which,
if proven, would defeat the husband's action, the court did not abuse its discretion in setting
aside the default and judgment resulting therefrom.
Affirmed.
Robert Cohen, of Las Vegas, for Appellant.
George Rudiak, of Las Vegas, for Respondent.
1. Appeal and Error; Judgment.
Motion to set aside a default and vacate judgment resulting therefrom is addressed to sound discretion of
court and will not be disturbed on review unless there has been an abuse of discretion. NRCP 60(b).
2. Judgment.
A court has wide discretion in determining what neglect is excusable and what is inexcusable for purpose
of determining whether a party is entitled to be relieved from a default judgment. NRCP 55(c), 60(b).
3. Divorce.
Where wife's physical condition could have been a contributing cause of her out-of-state attorney's failure
to engage counsel in Nevada prior to entry of default decree in husband's divorce action and wife acted
immediately upon learning of default and presented a defense on the merits which, if proven, would defeat
husband's action, court did not abuse its discretion in setting aside default and judgment resulting
therefrom. NRCP 5(b), 55(c), 60(b).
Appellate court is not inclined to disturb order setting aside default regularly entered where application is
made to court upon ground of inadvertence or excusable neglect supported by evidence showing a defense
on the merits. NRCP 55(c),60(b).
OPINION
Appellant commenced an action for divorce against his wife in the lower court through
Robert Cohen of Las Vegas, Nevada, his attorney of record. Summons was served on
respondent in Rhode Island on April 1, 1960 after publication of summons had been ordered.
She failed to appear in said action on or before April 21, 1960, the time provided by law for
appearance after service of summons. On April 22, 1960 respondent's default was entered and
on the same day appellant appeared in court in said action and obtained a decree of divorce.
Judgment to that effect was thereupon entered. On May 19, 1960 respondent caused to be
served on Robert Cohen, as appellant's attorney, and filed in the court below a motion to set
aside the default and decree of divorce for the reason of her mistake, inadvertence, surprise,
and excusable neglect and asked for leave to file her proposed answer and counterclaims for
separate maintenance. Appeal is from the order granting said motion.
Three errors are assigned, to wit, (1) the court erred in setting aside the default and decree
of divorce because the respondent was negligent and not timely in filing an answer herein; (2)
the court erred in setting aside the default and decree of divorce because respondent failed to
show that her failure to file within the time provided by law was due to mistake, inadvertence,
and excusable neglect; (3) in setting aside the default and decree of divorce the court erred in
finding that both parties appeared by duly authorized counsel.
Specification 3 was waived by appellant during oral argument.
argument. It is without merit in view of our decision in State ex rel. Groves v. First Judicial
District Court, 61 Nev. 269, 125 P.2d 723. See Rule 5(b), NRCP, and Caplow v. Eighth
Judicial District Court, 72 Nev. 265, 302 P.2d 755.
Specifications of errors 1 and 2 can be considered together.
Under Rule 60(b) NRCP, a party on motion made within six months after entry of
judgment may be relieved from a judgment entered due to his mistake, inadvertence, surprise,
or excusable neglect. Under Rule 55(c), NRCP, the court likewise may set aside an entry of
default. In order to prove excusable neglect the affidavits of respondent and of Benjamin A.
Friedman, an attorney at law, with offices at Taunton, Massachusetts, were received in
evidence in support of respondent's motion and were not controverted. The sole question
presented for decision herein is whether said affidavits are sufficient to establish excusable
neglect on the part of respondent.
Respondent's affidavit, dated May 6, 1960, states that she suffered a nervous breakdown
and mental disorder because of the cruel and abusive conduct of appellant; that she
communicated with attorney Friedman to engage him to defend the divorce proceedings in
Nevada and after being informed by said Friedman that a hearing on the merits would not
take place for 60 to 90 days, she became ill, was confined to bed, and unable to check upon
the work of Friedman until May 2, 1960 when she learned that a decree of divorce had
already been entered; that immediately thereafter she took steps to have the decree set aside.
The affidavit of Friedman states that respondent engaged him to hire a Las Vegas attorney to
do all things necessary to protest the divorce proceedings; that he was under the mistaken
belief that respondent had at least 30 days to file an answer and so notified respondent; that
he was absent from his office until May 2, 1960 when he was contacted by respondent at
which time he learned that a decree of divorce had been entered; that he then engaged
Las Vegas counsel to represent respondent; and that the delay was in no way attributable
to the fault of respondent.
at which time he learned that a decree of divorce had been entered; that he then engaged Las
Vegas counsel to represent respondent; and that the delay was in no way attributable to the
fault of respondent.
The said answer and counterclaims were part of the moving papers and were verified by
respondent's Nevada counsel. The answer denied the alleged ground for divorce, to wit,
extreme cruelty, while the counterclaims prayed for separate maintenance alleging extreme
cruelty and desertion on the part of appellant.
[Headnote 1]
A motion to set aside a default and vacate the judgment resulting therefrom is addressed
largely to the sound discretion of the court, Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050, and
will not be disturbed on review unless there has been an abuse of discretion. Lukey v.
Thomas, 75 Nev. 20, 333 P.2d 979; Schultz v. King, 68 Nev. 207, 228 P.2d 401. In Blundin
v. Blundin, 38 Nev. 212, 147 P. 1083, 1084, this court through Chief Justice Norcross stated
that the rule (authorizing a court to set aside a default judgment) is to be very liberally
applied in a divorce proceeding.
Appellant contends, however, that under our decision in Guardia v. Guardia, 48 Nev. 230,
229 P. 386, 387, the negligence of an attorney is imputable to his client, and that the evidence
herein shows that the default judgment was a result of Friedman's inexcusable neglect. There
we stated that the client cannot be relieved from a judgment taken against him in consequence
of the neglect, carelessness, forgetfulness, or inattention of his attorney. We went on to say,
however, that this court is quite indulgent in setting aside defaults in consequence of
excusable neglect' of attorneys, provided the party himself was not directly in fault.
[Headnote 2]
A court has wide discretion in detemining what neglect is excusable and what is
inexcusable. Baumann v. Nevada Colony Corp.,
v. Nevada Colony Corp., 44 Nev. 10, 189 P. 245; Howe v. Coldren, 4 Nev. 171.
[Headnote 3]
In the present case respondent was not directly in fault. Her physical condition during the
period within which she had to answer the complaint was properly before the court for its
consideration. See Wagner v. Anderson, 63 Nev. 453, 174 P.2d 612. It could have been a
contributing cause of Friedman's failure to engage Las Vegas counsel prior to the entry of the
default. She and her out-of-state counsel lived in different states. She acted immediately upon
learning of the default. And finally she presented a defense on the merits which, if proven,
would defeat appellant's action.
[Headnote 4]
Although every case depends largely upon its own facts, Baumann v. Nevada Colony
Corp., supra, an appellate court is not inclined to disturb an order setting aside a default
regularly entered where the application is made to the court upon the ground of inadvertence
or excusable neglect supported by evidence showing a defense on the merits. Esden v. May,
36 Nev. 611, 135 P. 1185.
In Lukey v. Thomas, supra, it was unnecessary to decide whether the evidence offered in
support of respondent's claim of excusable neglect was sufficient because there was no
competent evidence to show any defense on the part of the defendant.
Under the facts of this case we find no abuse of discretion on the part of the lower court in
setting aside the default and judgment resulting therefrom.
Affirmed.
Heretofore we granted respondent's motion for attorney fees in this court to the extent of
$250. All proceedings on the part of the appellant in the lower court are stayed until payment
of this sum to respondent.
____________
77 Nev. 163, 163 (1961) State v. Redman Petroleum
STATE OF NEVADA; LEE BIRGE, State Director, Department of Agriculture; DUDLEY
ZOLLER and ROBERT W. NICHOLS, Representatives, Directors or Coordinators of the
Southern District of the Department of Agriculture, Appellants, v. REDMAN
PETROLEUM CORP.; HUDSON OIL CO.; VEGAS MAIN OIL CO.; JAMES WHITE
OIL CO.; CHAUNCEY COX dba FEARLESS FERRIS STINKER STATION; E. R.
HERBSTS and L. G. HERBSTS dba HERBSTS OIL CO.; ROY HAIGH and REX
HAIGH dba SAVE-U-MORE STATIONS, Respondents.
No. 4341
April 5, 1961 360 P.2d 842
Action to determine the constitutionality of a statute prohibiting a sign which states the
price of gasoline and which is larger than 12 by 12 inches from being on or about a gasoline
station. The trial court held that the statute was unconstitutional and the state appealed. The
Supreme Court, Badt, C. J., held that the statute was not reasonably related to preventing false
advertising, the end sought to be achieved by it, and it violated the due process provisions of
the federal and the state Constitutions.
Affirmed.
Roger D. Foley, Attorney General, and John A. Porter, Deputy Attorney General, of
Carson City.
John F. Mendoza, District Attorney, and Charles L. Garner, Deputy District Attorney, of
Las Vegas, for Appellants.
Robert Callister, of Las Vegas, for Respondents.
Trade-Marks and Trade-Names and Unfair Competition; Constitutional Law.
Statute prohibiting sign which states price of gasoline and which is larger than 12 by 12 inches from
being on or about gasoline station was not reasonably relatcd to preventing false advertising, the end
sought to be achieved, and violated due process provisions of federal and state
Constitutions.
advertising, the end sought to be achieved, and violated due process provisions of federal and state
Constitutions. NRS 590.325, 590.326; Const. art. I, sec. 8; U.S.C.A. Const. Amend. 14.
OPINION
This appeal tests the constitutionality of NRS 590.325 and 590.326, making it unlawful to
offer gasoline or petroleum products for sale unless the seller companies conspicuously post
on the individual gas pumps signs not less than 7 x 8 inches nor larger than 12 x 12 inches in
size, stating the price per gallon, the taxes per gallon, and the trade name, prohibiting any
other sign than as thus specified on, at, near, or about the premises, and making violations
punishable by fine and imprisonment. Section 590.325 is set forth in full in the margin.
1
Section 590.326 is to like effect with reference to size and location of signs.
In the court below it appeared that respondents had been served with a notice or order from
the Nevada
____________________

1
590.325 Signs, placards on retail gasoline pumps, other dispensing devices; specifications; contents; other
signs prohibited; penalties.
1. Notwithstanding any other provision of law, no person, firm or corporation shall sell or offer for sale, at
retail, any gasoline for use in internal combustion engines in motor vehicles, unless such seller posts and keeps
conspicuously posted on the individual pump or other dispensing device from which such gasoline is sold or
offered for sale a sign or placard which shall:
(a) Be not less than 7 inches in height and 8 inches in width, nor larger than 12 inches in height and 12
inches in width.
(b) State clearly and legibly in numbers of uniform size the selling price or prices per gallon of such
gasoline so sold or offered for sale from such pump or other dispensing device.
(c) State clearly and legibly in numbers of uniform size the total amount of taxes per gallon to be collected
with the sale of such gasoline.
(d) State clearly and legibly the trade name, brand, mark or symbol, if any, of such gasoline.
2. No sign or placard stating or referring directly or indirectly to the price or prices of gasoline, other than
such signs or placards as mentioned in subsection 1, shall be posted or maintained on, at, near or about the
premises on which such gasoline is so sold or offered for sale.
3. Any person violating any of the provisions of this section shall be punished as provided in NRS
590.330.
State Department of Agriculture ordering the removal of respondents' price signs within 48
hours. Respondents then sought a permanent injunction against the enforcement of such order
and a temporary injunction pending the determination of the action and obtained ex parte a
temporary restraining order. The case was tried on the motion for temporary injunction and
the trial court held that the section violated constitutional limitations, and ordered a
temporary injunction, following the taking of testimony which will be referred to later. This
appeal followed.
Appellants' brief presents to the court the most relevant cases on the subject, citing 12
cases which have held similar statutes or ordinances unconstitutional and 6 cases sustaining
such statutes or ordinances, and urges us to follow the latter and be guided by the
presumption of their validity in the state's exercise of its police power. Respondents urge that
we follow the cases admittedly stating the majority rule, striking down statutes and
ordinances in all respects similar to the one in question.
We have concluded that the better law is stated in those cases striking down the statute and
that the judgment of the court below must accordingly be affirmed.
The respondents are what are known as independent oil companies. One of the officers
of Redman Petroleum Corporation testified with reference to his own company and it was
stipulated that such testimony might apply to all the respondent independent companies. Such
testimony showed that the independent companies were in competition with other service
stationsboth other independent companies and major company service stations. He testified
that his company displayed on its pumps 11 x 12 inch signs stating all the matters required by
subparagraphs (a), (b), (c), and (d) of subsection 1 of NRS 590.325; that in addition, his
company displayed a large sign located on the parkway containing letters approximately 30
inches high where the same information is posted; that it had signs in different places and
larger in size and lettering from those displayed on the pumps themselves; that it always had
available for sale gasoline products at the prices advertised and that the larger signs were for
the purpose of enabling the public to be able to read them; that the purpose of the larger
price signs was to tell the public in an effectual way what the station had for sale, what it
offered to the public so that the members of the traveling public could make a choice of
where to buy their gasoline; that such was the station's only means of advertising the
product offered for sale; that it was essential to his company's business thus to advertise
in order to compete with the larger, major oil companies; that his company had a very
substantial investment in its station and a substantial investment in the price signs
themselves; that it had maintained such signs for approximately 10 years; that such signs
contained no matter of deceit, fraud, or misrepresentation; that the smaller signs as
limited by the statute would be totally ineffective in that the public would never see them;
that in order to see the smaller sign on the pump as required by the statute it would be
necessary for a driver to drive into the station and up to the pump to read it; that, with
respect to the stating of prices and other matters, the larger signs were the same as the
smaller signs.
larger signs were for the purpose of enabling the public to be able to read them; that the
purpose of the larger price signs was to tell the public in an effectual way what the station had
for sale, what it offered to the public so that the members of the traveling public could make a
choice of where to buy their gasoline; that such was the station's only means of advertising
the product offered for sale; that it was essential to his company's business thus to advertise in
order to compete with the larger, major oil companies; that his company had a very
substantial investment in its station and a substantial investment in the price signs
themselves; that it had maintained such signs for approximately 10 years; that such signs
contained no matter of deceit, fraud, or misrepresentation; that the smaller signs as limited by
the statute would be totally ineffective in that the public would never see them; that in order
to see the smaller sign on the pump as required by the statute it would be necessary for a
driver to drive into the station and up to the pump to read it; that, with respect to the stating of
prices and other matters, the larger signs were the same as the smaller signs.
No question of aesthetics is involved in this case, nor any contention made that any one of
the respondents is in league with any other respondent or any other person to restrain trade or
to create a monopoly, or that a price-war was involved.
We may note at this point other provisions of the statute which are aimed directly at
preventing any false, misleading, or fraudulent advertising. It is unlawful for any person
selling gasoline products to represent them to be the products of any other than the true
dealer, manufacturer, or producer (NRS 590.030); or to display a sign describing a brand or
trade name thereof not actually offered for sale on the premises, or to make, through
advertising, any statement concerning the product known to be untrue or misleading
(590.050); or to display any such products for sale unless the actual price per gallon,
including taxes, is also there shown {590.170); or to place his advertising signs in
misleading position as regards other advertising {590.2S0); or to add words distorting the
meaning of his advertisement {590.290).
(590.170); or to place his advertising signs in misleading position as regards other advertising
(590.280); or to add words distorting the meaning of his advertisement (590.290). The
purpose of these provisions may be readily understood.
Appellants refer us to a number of cases
2
which, although distinguishable in some
respects, upheld the minority rule supporting such legislation. To such extent as they are in
conflict with the majority rule hereinafter discussed, we reject these authorities.
Appellants, in discussing State v. Hobson, 46 Del. 381, 83 A.2d 846, in which the
regulatory statute similar to ours was held unconstitutional, find comfort in the indication
given by the court that a restriction of size of signs might be constitutional legislative action
for aesthetic reasons and for the effect on competition and in connection with price control.
Appellants then say: This * * * is precisely the situation in the instant case also.
None of these objectives appears to be the objective sought by the legislation in question
here. At least this would appear from the arguments made by appellants in the district court.
They argued there: [As] the State of Nevada is, to a greater extent than most states,
substantially dependent for its economic welfare upon tourism, there can be no question that
disruption and serious damage would result from the indiscriminate display of signs.
Moreover, the restrictive regulation relating to sizes, location and number of signs, as well as
their contents, may also properly and legally be justified on aesthetic grounds * * *. [Such
signs] are generally disruptive of the economic stability of such retail business operations.
____________________

2
People v. Arlen Service Stations, Inc., 284 N. Y. 340, 31 N.E.2d 184; Merit Oil Co. v. Director of the
Division on the Necessaries of Life, 319 Mass. 301, 65 N.E.2d 529; Breard v. City of Alexandria, 341 U. S. 622,
71 S.Ct. 920, 95 L.Ed. 1233; Slome v. Chief of Police, 304 Mass. 187, 23 N.E.2d 133; Sun Oil Co. v. Director
of the Division on the Necessaries of Life, 340 Mass. 235, 163 N.E.2d 276; State v. Woitha, 227 Iowa 1, 287
N.W. 99, 123 A.L.R. 884; Serve Yourself Gasoline Stations Assn. v. Brock, 39 Cal.2d 813, 249 P.2d 545
(appeal denied, 345 U. S. 980, 73 S.Ct. 1130, 97 L.Ed. 1394).
generally disruptive of the economic stability of such retail business operations. * * * [T]hey
result in many economic abuses, such as perpetration of fraud and deceit on the consumer
public through bait advertising,' and price wars' that result in serious losses and damage not
only to those directly engaged in such business operations, but also the community at large.
This is not factual. It is appellants' argument. It cannot be said to consist of presumptive
factual findings by the legislature. There was no price war. There was no bait advertising.
There was no question of aesthetics. If a sign 12 inches x 12 inches, defined as legal in the
statute, would not interfere with the surrounding beauty, it is not realistic to conclude that a
legislative investigation could result in the finding that a sign 13 inches x 13 inches would
destroy the beauty of the landscape.
Although defendants denied plaintiffs' allegations that the prices placed by them on their
premises on larger signs and in different places than those specified in the section were
honest and true prices, including tax, total price charged, etc., all in conformity with the
statute, proof of such allegations was made and accepted by the court and no proof offered to
the contrary.
Under these conditions we find no justification in departing from the majority rule that
such legislation bears no reasonable relationship to the objective soughteven in such broad
terms as the general welfare of the community.
In the margin we list the cases cited by appellants as concededly reciting the majority rule
supporting the foregoing statement.
3
Rather than discuss these cases, other than to note
that they are directly in point to the effect that they violate the Fourteenth Amendment
{advertising one's business being conceded to be a property right), we refer to the
position taken by this court in Viale v. Foley, 76 Nev. 149

____________________

3
Sears, Roebuck & Co. v. City of New Orleans, 238 La. 936, 117 So.2d 64; City of Lake Charles v. Hasha,
238 La. 636, 116 So.2d 277; State ex rel. Walters v. Blackburn, Fla. 1958, 104 So.2d 19; State v. Union Oil
Company of Maine, 151 Me. 438, 120 A.2d 708; Town of Miami Springs v. Scoville, Fla. 1955, 81 So.2d 188;
State v. Guyette, 81 R.I. 281, 102 A.2d 446; Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634; State v.
Hobson, 7 Terry 381, 46 Del. 381, 83 A.2d 846; Levy v. City of Pontiac, 331 Mich. 100, 49 N.W.2d 80;
Alabama Independent Service Station Assn. v. McDowell, 242 Ala. 424, 6 So.2d 502; State v. Miller, 126 Conn.
373, 12 A.2d 192; Regal Oil Co. v. State, 123 N.J.L. 456, 10 A.2d 495.
Rather than discuss these cases, other than to note that they are directly in point to the
effect that they violate the Fourteenth Amendment (advertising one's business being conceded
to be a property right), we refer to the position taken by this court in Viale v. Foley, 76 Nev.
149, 350 P.2d 721, 723. There we upheld our statute prohibiting outdoor advertising of motel
rates. In this regard it is interesting to note the reaction of the learned trial judge to the present
case as presented to him.
4
However, we refused to recognize the analogy between the motel
statute and the gasoline sale statute. We said: Even in cases where there is no total
prohibition of advertising, the regulation will not be sustained if it is arbitrary or
unreasonable, and is not reasonably related to the end sought to be achieved which in this
case is the protection of the traveling public. It was because of this rule that legislation
limiting outside price advertising of gasoline to small placards posted on gas pumps has been
held invalid. Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634. The purpose of the
regulation in that case was to prevent fraud and deception, and it is apparent that the public
could be better protected by signs in excess of a certain prescribed size. Accord, State v.
Guyette, S1 R.I. 2S1, 102 A.2d 446.
____________________

4
He said: Until and unless the service station industry engages in false or misleading advertising, number
one, or in the alternative so grossly abuses the right to advertise as to materially affect the aesthetic senses of our
community the operators of the service stations have a right to sell goods in any honest way or manner they see
fit.
In this instance by examination of the one picture already examined by the Court, the service station in
question did not do anything but advertise its product. There is no showing that the contents of the signs
themselves were false or intended to mislead. The save-yourself' is like an ordinary salesman trying to sell his
products. It is up to the traveling public to determine whether they can buy a gallon of gas at one price at that
station or at a higher or lower price at another station.
In the motel situation the use of figures on the signs and the gimmicks used induced the traveling tourist
after a hot day in the desert to stop only to find that the price as advertised did not exist, or was false; that the
room as advertised did not exist; that the language used on the signboards did not mean in fact what it was
intended to mean and did not say what was ordinarily intended to say; that was false and fraudulent; that was
subject to regulation.
Guyette, 81 R.I. 281, 102 A.2d 446. The contention of appellants that an analogy may be
drawn from such cases is without merit.
Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634, 637, thus cited by us with
approval, is one of the cases supporting the majority rule. In that case Chief Justice Horace
Stern, speaking for the Supreme Court of Pennsylvania, said: Defendants state that the
object is to prevent fraud and deception, it being claimed that some dealers endeavor to attract
passing motorists by misleading advertisements calculated to make them believe that the
gasoline was being sold at a lower price than was actually the case. It is quite impossible,
however, to see how the size of the sign would have any relevancy to the perpetration of such
fraud; on the contrary, it would seem that the larger the sign the more difficult it would be for
the dealer to deceive the purchaser. It would also seem that, to prevent such fraud, the
prohibition should be directed, not against the size of the sign, but against the placing thereon
of any false statements concerning the price; incidentally such a provision already exists in
the Penal Code * * *.
Although our approval in Viale v. Foley, supra, of Gambone v. Commonwealth, supra,
was dictum, we now accept it as correctly stating the law applicable to this case. It in turn is
thoroughly supported by the cases cited in the text of the opinion and in the footnotes. We
hold that, as a matter of law, the legislation in question is not reasonably related to the end
sought to be achieved, and is violative of the Fourteenth Amendment to the federal
constitution and section 8 of article 1 of the state constitution.
The order granting a temporary injunction is affirmed.
____________
77 Nev. 171, 171 (1961) L. V. Valley Water v. Michelas
LAS VEGAS VALLEY WATER DISTRICT, A Quasi-Municipal Corporation, Appellant, v.
THEODORE MICHELAS, dba MICHELAS WATER COMPANY, Respondent.
No. 4339
April 7, 1961 360 P.2d 1041
Proceedings for declaratory judgment concerning rights under franchise to supply water in
city, wherein defendant counterclaimed for injunction and other relief. The trial court
rendered judgment favorable to defendant, and plaintiff appealed. The Supreme Court, Badt,
C. J., held that franchise granted to individual, by certificate of public convenience and
necessity, to supply specified blocks in city with water, was not exclusive and did not make it
necessary for water district to bring condemnation proceeding and pay compensation for the
franchise rights before supplying water in the same territory.
Reversed.
(Petition for rehearing denied May 31, 1961.)
McNamee and McNamee and Franklin Rittenhouse, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
1. Eminent Domain; Waters and Water Courses.
Franchise granted to individual, by certificate of public convenience and necessity, to supply specified
blocks in city with water, was not exclusive and did not make it necessary for water district to bring
condemnation proceeding and pay compensation for the franchise rights before supplying water in same
territory. Stats. 1947, ch. 167, sec. 1 et seq.; NRS 37.010, 37.030, 704.010 et seq., 704.210.
2. Eminent Domain.
For water district to supply water to area for which individual had certificate of public convenience and
necessity for supplying water, did not constitute compensable taking of individual's nonexclusive
franchise rights. Stats. 1947, ch. 167, sec. 1 et seq.; NRS 37.010, 37.030, 704.010 et seq., 704.210.
3. Waters and Water Courses.
A water district was not required to obtain certificate of public convenience and necessity before
supplying water in area for which individual had previously obtained a nonexclusive franchise for
supplying water. Stats. 1947, ch. 167, sec. 19 as amended by Stats. 1956-1957, ch. 402; NRS 704.010 to
704.810, 704.330, 704.340.
The Public Service Commission had no authority to control rates of Las Vegas water district.
5. Appeal and Error; Costs.
Briefs in district court had no proper place in record on appeal and costs for including them would not be
awarded.
OPINION
Respondent agrees with appellant's statement of the legal issue presented to this court,
adding only the last phrase as italicized to appellant's statement of the issue. It is as follows:
May the Appellant, Las Vegas Valley Water District, supply water service in an area
where Respondent may and does already supply water service under a certificate of public
convenience and necessity issued by the Nevada Public Service Commission without the
payment of just compensation to Respondent?
Likewise, in pre-trial proceedings, it was ordered, pursuant to stipulation, as follows:
That the questions of law shall be to determine whether or not the plaintiff may invade the
territory so held by franchise by the defendant, or whether it can only invade the territory
through the [exercise] of right of eminent domain.
In the same pre-trial proceedings the court ordered that the Public Service Commission of
the State of Nevada might intervene and that its filing of points and authorities would be
tantamount to filing a petition in intervention and an order granting intervention. A copy of
such order was served upon the Public Service Commission. The commission did not take
advantage of the court's order.
We refer to appellant as the Water District and to the respondent as Michelas. The
proceedings were initiated in the court below by the complaint of the Water District, alleging
that it was a "quasi-municipal corporation" organized under what is hereafter referred to
as the Act of 1947, and engaged in the business of selling water to persons living in the
Las Vegas Valley Water District, Clark County, Nevada; that Michelas was engaged in the
business of selling water in a portion of the City of Las Vegas and had "a nonexclusive
right" to sell water, said right being issued by the Public Service Commission of Nevada;
that there were difficult questions of law pertaining to the rights and duties of the parties
and that a declaratory judgment was sought defining same, and for further relief.
District, alleging that it was a quasi-municipal corporation organized under what is
hereafter referred to as the Act of 1947, and engaged in the business of selling water to
persons living in the Las Vegas Valley Water District, Clark County, Nevada; that Michelas
was engaged in the business of selling water in a portion of the City of Las Vegas and had a
nonexclusive right to sell water, said right being issued by the Public Service Commission of
Nevada; that there were difficult questions of law pertaining to the rights and duties of the
parties and that a declaratory judgment was sought defining same, and for further relief.
Michelas answered, alleging that in 1941 he received an exclusive right to operate a water
service in the six named blocks of the Meadows Addition to the City of Las Vegas.
As a first counterclaim he alleged that he had expended in excess of $300,000 in the
acquisition of pumps, wells, real property, machinery, and other equipment for the purpose
of serving water users in his exclusive territory; that the Water District had, with full
knowledge of plaintiff's grant from the Public Service Commission knowingly, willfully, and
deliberately, without first seeking the utilization of the rights conferred by the Act of 1947,
entered upon Blocks 15 and 16 of the said Meadows Addition (for the servicing of which
blocks he had obtained a certificate of convenience and necessity from the Public Service
Commission), and unlawfully installed water mains and service connections within the area
being then serviced by Michelas; that by reason thereof defendant had been damaged in the
sum of $28,800, the value of the loss of profits directly resulting by reason of plaintiff's
illegal acts; that plaintiff's acts were malicious and in gross and wanton disregard of
defendant's rights and privileges, by reason whereof defendant demanded exemplary damages
in the sum of $50,000.
As a second counterclaim, Michelas likewise asserted that a controversy existed between
the parties; that Michelas had been granted by the commission the exclusive right to furnish
water in the disputed area; that the Water District had no right to service such disputed area
other than under the Act of 1947; that it had deliberately, willfully, and knowingly neglected
and failed to follow the provisions of said act, and that Michelas would suffer irreparable
injury unless the Water District should be restrained; that he had no adequate remedy
other than injunctive relief.
deliberately, willfully, and knowingly neglected and failed to follow the provisions of said
act, and that Michelas would suffer irreparable injury unless the Water District should be
restrained; that he had no adequate remedy other than injunctive relief. He prayed for a
restraining order, $28,000 compensatory damages, $50,000 exemplary damages, and further
relief.
Michelas' references to the failure of the Water District to act within the provisions of the
Act of 1947 had reference to paragraph 7 of section 1 of said act, reading as follows:
7. To have and exercise in the State of Nevada the right of eminent domain, either within
or without said district, and in the manner provided by law for the condemnation of private
property for public use, to take any property necessary to carry out any of the objects or
purposes of this act, whether such property be already devoted to the same use by any district
or other public corporation or agency or otherwise, and to condemn any existing works or
improvements in said district now or hereafter used. The power of eminent domain vested in
the board of directors of said district shall include the power to condemn, in the name of the
district, either the fee simple or any lesser estate or interest in any real property which said
board by resolution shall determine is necessary for carrying out the purposes of this act. Such
resolution shall be prima-facie evidence that the taking of the fee simple or easement, as the
case may be, is necessary.
The order of the Public Service Commission relied upon by Michelas, after caption
reciting the proceeding, reads as follows:
ORDER
It Appearing There has been filed with the Commission an application by Theodore
Michelas for a certificate of public convenience and necessity to operate a water service in
Blocks 4, 12, 13, 14, 15 and 16, in the Meadows Addition to the City of Las Vegas; and
It Further Appearing That there is no such service now being given in said District; and
by granting said application would be in the public interest,
now being given in said District; and by granting said application would be in the public
interest,
It Is Ordered That the application of Theodore Michelas for a certificate of public
convenience and necessity to operate a water service in Blocks 4, 12, 13, 14, 15 and 16 in the
Meadows Addition to the City of Las Vegas, be and the same is hereby granted.
Dated: Carson City, Nevada
April 28, 1941
[Headnote 1]
(1) It is advisable at this point to dispose of the categorical statement of Michelas that the
foregoing order vests in him an exclusive franchise to render water service in the area
described as against the similar categorical statement by the Water District that this is a
non-exclusive franchise. Patently, on its face, the franchise given in the order granting to
Michelas a certificate of public convenience and necessity to operate his service in the six
blocks described is not exclusive. However, the matter may not so simply be dismissed.
Michelas insists that it is exclusive in this sense, namely, that before any other person or
corporation may invade the territory described, such person or corporation must likewise
obtain from the commission a certificate or permission authorizing such entry, and that to
accomplish this a petition would have to be filed, a hearing advertised and held, and that an
opportunity for objection be given, to the end that the commission might determine whether
the convenience and necessity of the public would be best served by granting such petition;
further, that if at such hearing Michelas could show that he had in all respects complied with
any and all rules, regulations, and orders of the commission, that the rates charged by him
were reasonable, that the services rendered by him in furnishing water adequately supplied
the needs of the district involved, that the public convenience and necessity required no
further service, that his large investment had been made pursuant to the certificate granted
him by the commission, and that he would be irreparably damaged by an unnecessary and
unwarranted permit to another applicant, he would be entitled to an order denying such
second petition and, in the event of a ruling adverse to him, to have access to the district
court and to the supreme court for review.
would be irreparably damaged by an unnecessary and unwarranted permit to another
applicant, he would be entitled to an order denying such second petition and, in the event of a
ruling adverse to him, to have access to the district court and to the supreme court for review.
This contention on behalf of Michelas leads us to the statutes involved. We turn, first then,
to what we have referred to as the Act of 1947, and it must be first emphatically stated that
Michelas does not attack the validity or constitutionality of such act or of any section,
subsection, paragraph, or part thereof. The act is found in Stats. 1947, p. 553, Chapter 167.
Although it is entitled An Act to create a water district in the Las Vegas valley, Clark
County, Nevada; * * *, both parties refer to it as the enabling act. This indeed it is. Section
1 provides that a water district may be created in the Las Vegas valley, as hereinafter
provided for, for the following objects and purposes: (Emphasis added.) This is followed by
subparagraphs numbered 1 to 14, which provide for such matters as having perpetual
succession, the right to sue and be sued in its name, to adopt a seal, to take by grant, purchase,
etc., and to dispose of real and personal property, to acquire rights of way, easements,
privileges, etc., and to maintain and operate works and improvements to carry out its
purposes, to store surface and underground waters, to appropriate and acquire water and water
rights, import water into the district, to commence, defend, or intervene in litigation
concerning water or water rights, to exercise the right of eminent domain, to acquire or
condemn lands, water rights, improvements, reservoirs, and other works owned by others, to
enter into agreements with the United States or any state, county, or district, public or private
corporations, or individuals with reference to the acquisition, use, and administration of
waters (carried out in great detail), to incur indebtedness and issue bonds, to cause taxes to be
levied and collected for paying its obligations during its organizational stage, to do all things
necessary for the exercise of its powers, and to supply water to the United States, the State of
Nevada, Clark County, and any city, town, corporation, etc., within Clark County, Nevada,
"for an appropriate charge, consideration, or exchange made therefor."
etc., within Clark County, Nevada, for an appropriate charge, consideration, or exchange
made therefor. (Emphasis added.)
Section 2 of the act provides the procedure to establish the Las Vegas Valley Water
District by the filing of a petition praying for its organization, with the board of county
commissioners of Clark County, with bond, notice, and publication thereof. Section 3 and
following provide for a hearing on the petition, the granting thereof, the calling of an election,
the nomination and election of officers, their qualifications, provisions for polling places,
canvass of votes, terms of office, notices of election, appointment of inspectors, registration
of electors and their qualifications, regulation of poll books, and many incidental provisions
concerning the election. Organization meetings are provided for and the filling of vacancies
on the board of directors.
Sections 9 and following provide the duties of the directors and of the treasurer,
remuneration for the services of the directors, limitations on their powers, the sale of bonds
and the nature and conditions thereof, and the requirement for the collection of rates and
charges for services in such amounts as shall be sufficient to pay operating expenses and
provide a sinking fund for the payment of interest and principal on the bonds.
Section 16 contains the following provision: No board or commission other than the
governing body of the district shall have authority to fix or supervise the making of such rates
and charges.
Section 19, as amended,
1
reads in part as follows: This act shall in itself constitute
complete authority for doing of the things herein authorized to be done. The provisions of no
other law, either general or local, except as provided in this act, shall apply to doing of the
things herein authorized to be done, and no board, agency, bureau or official, other than the
governing body of the district shall have any authority or jurisdiction over the doing of any of
the acts herein authorized to be done. * * * The validity of these provisions being conceded
by Michelas, it becomes evident that the certificate of public convenience and necessity
granted to him was not exclusive even in the sense contended for by him; that the rights
created in the Water District under the Act of 1947 were not governed by any other acts
of the legislature, and in particular, the utilities act requiring an application to the Public
Service Commission and vesting rights of regulation and of rate fixing in that commission.
____________________

1
Stats. 1956-1957, p. 778. Ch. 402.
The validity of these provisions being conceded by Michelas, it becomes evident that the
certificate of public convenience and necessity granted to him was not exclusive even in the
sense contended for by him; that the rights created in the Water District under the Act of 1947
were not governed by any other acts of the legislature, and in particular, the utilities act
requiring an application to the Public Service Commission and vesting rights of regulation
and of rate fixing in that commission. (NRS, Chapter 704, Regulation of Public Utilities
Generally)
2
We are compelled to reject Michelas' insistent and repeated contention that not
only the Act of 1947 but Chapter 37 NRS on the subject of eminent domain (NRS 37.030 and
NRS 37.010) require condemnation and the attending compensation. This is simply not so.
All the statutes referred to are permissive in their nature and do not require condemnation.
But even if such be the case, argues Michelas, there may not be an actual taking of property
without resorting to condemnation and compensating the condemnee. This leads us to the
crux of Michelas' support of the district court's judgment, namely, that there has been a taking
by the Water District of Michelas' property without compensation.
[Headnote 2]
(2) Michelas cites numerous authorities to the effect that the right of a person whose
property is taken for public use to be compensated therefor is guaranteed by both the state and
federal constitutions. This of course must be conceded. Michelas then asserts that the rule
recited in some of the cases that there must be a taking altogether, a seizure, a direct
appropriation and dispossession of the owner, such a taking as divests the owner of title and
control of the property taken, and an unqualified appropriation of it to the public, is against
the weight of authority, citing Lea v. Louisville & N. R.
____________________

2
704.210 Commission's authority to supervise, regulate public utilities. The commission shall have full
power:
1. To prescribe classifications of the service of all public utilities, and fix and regulate the rates therefor.
* * *
3. To make just and reasonable regulations for the apportionment of all joint rates and charges between
public utilities.
Co., 135 Tenn. 560, 188 S.W. 215; 6[A] Fletcher Cyclopedia Corporations, [Perm.Ed. 592,
sec. 2918], and cases therein cited; also Wilmington R. R. Co. v. Reid, 13 Wall. 264, 80 U.S.
264, 20 L.Ed. 568, and Greenwood v. Union Freight R. Co., 105 U.S. 13, 26 L.Ed. 961, and
other cases, to the effect that a franchise is property, which cannot be taken for public use
without compensation. Again conceding the law as enunciated in these cases, we are
confronted with the fact that in the instant case there has been no such taking as considered
in those cases. The only taking of Michelas' property asserted by him is that the Water
District in servicing the same district serviced by Michelas damages and destroys Michelas'
franchise. If this be so, it is damnum absque injuria. Knoxville Water Co. v. Knoxville, 200
U.S. 22, 26 S.Ct. 224, 228, 50 L.Ed. 353, similar in virtually all respects to the instant case,
except that in the Knoxville case the City of Knoxville itself made the later installation of
water works, while in the present case the installation was made pursuant to direct authority
of the legislature. There, as here, the Knoxville Water Company had been granted a franchise
to furnish water for the city (for a period of 30 years) under a stipulation that it would not
during that period grant to any person or corporation the same privileges it had given to the
water company. The city did not bind itself not to install its own waterworks. The court first
disposed adversely of the contention that the city's installation of its own waterworks was a
violation of its contract. It first held: The doctrine is firmly established that only that which
is granted in clear and explicit terms passes by a grant of property, franchises or privileges in
which the Government or the public has an interest. Statutory grants of that character are to
be construed strictly in favor of the public, and whatever is not unequivocally granted is
withheld; nothing passes by mere implication.' Citing other cases, the court went on: We
have never departed from or modified these principles, but have reaffirmed them in many
cases. (See cases cited in note 50 L.Ed. 359.) It will be noted that this likewise disposes of
Michelas' contention that the grant to him, while not exclusive in its terms, was The United
States Supreme Court in the Knoxville case then turned its attention to the contention
that the city's installation destroyed the value of the water company's franchise, thus
destroying a property right which it could not constitutionally do without making
compensation.
The United States Supreme Court in the Knoxville case then turned its attention to the
contention that the city's installation destroyed the value of the water company's franchise,
thus destroying a property right which it could not constitutionally do without making
compensation. Citing a number of cases, the court said: And it may be that the erection and
maintenance of gas works by the city at the public expense, and in competition with the
plaintiff, will ultimately impair, if not destroy, the value of the plaintiff's works for the
purposes for which they were established. But such considerations cannot control the
determination of the legal rights of parties. Quoting from Helena Water Works Co. v. City of
Helena, 195 U.S. 383, 25 S.Ct. 40, 43, 49 L.Ed. 245, the court said: It is doubtless true that
the erection of such a plant by the city will render the property of the water company less
valuable and, perhaps, unprofitable, but if it was intended to prevent such competition, a right
to do so should not have been left to argument or implication, but made certain by the terms
of the contract.'
In Skaneateles Water Works Co. v. Skaneateles, 184 U. S. 354, 22 S.Ct. 400, 405, 46
L.Ed. 585, it was likewise held that while the installation of its own waterworks by the city
may have seriously impaired the value of the water company's property, it had taken none of
it.
In City of Tucson v. Polar Water Co., 76 Ariz. 126, 259 P.2d 561, we again have
installation by the city of its own waterworks where there had been a prior certificate of
convenience and necessity to the water company, and the city extended its boundaries and
made its connections to the area in which the water company had been franchised. There, as
here, the water company sought injunctive relief, but the court held that any damage suffered
by the plaintiff water company as a result of the city's installing of its own waterworks was
damnum absque injuria. In accord, Puget Sound Power & Light Co. v. City of Seattle, 291
U.S. 619, 54 S.Ct. 542, 78 L.Ed. 1025; Alabama Power Co. v. Guntersville, 235 Ala. 136,
177 So. 332, 114 A.L.R. 181. Many cases of similar import arose out of the use by a number
of cities of T.V.A. power, and all held to like effect as the foregoing.
of T.V.A. power, and all held to like effect as the foregoing. Illustrative cases are cited in the
footnote.
3

The result of all these cases is that the holder of the prior nonexclusive franchise may not
under such circumstances recover damages or prevent the competition by injunction.
Michelas seeks to distinguish the Knoxville and other cases above referred to, because in
each of such cases it was the city itself that installed the competing utility, an activity in
which the city was entitled to engage unless it had bound itself otherwise by contract, while in
the instant case the competition is entered into by the Water District created under the Act of
1947. We do not recognize this as a distinction affecting in any way the principles of law
involved. Other distinctions are pointed out by Michelas, but we do not find the same
important.
[Headnote 3]
(3) Michelas refers to the general act regulating public utilities (NRS 704.010-704.810)
and particularly to NRS 704.330 which requires all public utilities to obtain a certificate of
public convenience and necessity from the Public Service Commission and more particularly
to NRS 704.340, which reads: A municipality constructing, leasing, operating or
maintaining any public utility shall not be required to obtain a certificate of public
convenience. He then points out that in White Pine Power District v. Public Service
Commission, 76 Nev. 497, 358 P.2d 118, 119, this court, after quoting White Pine Power
District v. Public Service Commission, 76 Nev. 263, 352 P.2d 256, held that the appellant
power district, not having been granted a certificate from the Public Service Commission of
Nevada, could not maintain its suit for an injunction. There we said: Only municipalities * *
* maintaining any public utility are exempt from the provisions of NRS 704.330.
____________________

3
Mississippi Power Co. v. City of Aberdeen, 5 Cir., 95 F.2d 990; West Tennessee Power & Light Co. v. City
of Jackson, 6 Cir., 97 F.2d 979; Metropolitan-Edison Co. v. Ickes, D.C., 22 F.Supp. 639; Southwestern Gas &
Electric Co. v. City of Texarkana, 5 Cir., 104 F.2d 847; Kentucky-Tennessee Light & Power Co. v. City of
Paris, 173 Tenn. 123, 114 S.W.2d 815, 118 A.L.R. 1025.
NRS 704.330. NRS 704.340. A municipal power district is not a municipality * * *. We
therefore conclude that municipal power districts are subject to the provisions of NRS
704.330. From this, Michelas concludes that as Las Vegas Valley Water District is not a
municipality it too may proceed only when armed with a certificate from the commission.
This, however, is conclusively rejected by the provisions of sec. 19 of the Act of 1947, above
quoted, which completely and effectively foreclose the commission of any authority in the
matter.
But Michelas further argues that the power district act, NRS, Ch. 312, particularly NRS
312.030, contains the identical provision found in the Act of 1947 to the effect that the act is
complete in itself irrespective of any other special or general act of the legislature, and that if
the White Pine Power District had no powers without a certificate from the Public Service
Commission, it must follow that the Las Vegas Valley Water District had no powers without
a certificate. However, there is a clear distinction. The power district act, under which the
White Pine Power District was organized, must of necessity be construed in connection with
the general act regulating public utilities. The identical provision referred to is limited to
that found in both the power district act (NRS 312.030) and in the Act of 1947 (sec. 19) as
the latter act was originally written. That language was later drastically enlarged by the
legislature, as quoted by us above as being part of sec. 19, precluding the exercise of any
power by the Public Service Commission. In addition the restrictive provisions of sec. 16
were retained. This is entirely consistent with the language used by us in White Pine Power
District v. Public Service Commission, 76 Nev. 497, 358 P.2d 118.
[Headnote 4]
In addition, the Act of 1947 contains sec. 16 providing specifically that no board or
commission * * *, other than the governing body of the water district shall have authority to
fix or supervise the water rates provided for in the Act of 1947.
have authority to fix or supervise the water rates provided for in the Act of 1947. This clear
language of sec. 16 negatived the authority of the Public Service Commission to control the
rates of the Las Vegas Water District.
Even more conclusive is the following. That part of the power district act (now NRS
312.030) which provides that it is complete in itself and controlling and that no other special
or general act shall apply, except as provided in this chapter, is followed by numerous
provisions vesting control in the Public Service Commission. A certified copy of the original
resolution reciting the advisability of creating the district must be filed in duplicate with the
commission. NRS 312.060, Sub. 1. The commission must then make an investigation.
312.060, Sub. 2. The commission must then approve or disapprove the proposed creation of
the district. 312.060, Sub. 3. It must find, before approval, that the public convenience and
necessity require the creation of the district and that it is economically sound and desirable.
312.060, Sub. 3(a), (b). The territorial limits of the district may be altered only by order of the
commission. 312.220. Districts may be consolidated or dissolved only by order of the
commission. 312.230, 312.240. No such provisions or conditions can be found in the Act of
1947.
(4) Finally, in oral argument before this court, Michelas argued the equities of the case;
that his large investment and labor that went into his furnishing of service to a portion of the
Meadows Addition to the City of Las Vegas under what appeared to him to be an exclusive
franchise so long as he complied with all rules and regulations of the Public Service
Commission was being lost to him through no fault of his own; that this loss was the result of
the deliberate action of the Water District in invading his territory; that equity could be done
to all parties by the Water District's condemnation of Michelas' property for a fair
compensation, or that at the least the Water District should be compelled to apply to the
Public Service Commission for a certificate, under proceedings at which Michelas' objections
could be heard.
could be heard. The Act of 1947 under which the Water District was incorporated presents,
under the authorities cited, a complete answer. The wisdom of the legislation is a matter
beyond our concern, and, as aforesaid, its validity has not been questioned.
Reversed with costs to appellant.
[Headnote 5]
The record on appeal includes briefs of the parties in the district court. They have no
proper place in the record and appellant will not recover costs for including them.
Pike, J., and Zenoff, D. J., concur.
McNamee, J., having disqualified himself, the Governor commissioned Honorable David
Zenoff, Judge of the Eighth Judicial District, to sit in his place.
____________
77 Nev. 184, 184 (1961) Martinez v. State
GENARO BALDINO MARTINEZ, Appellant, v.
No. 4347
April 7, 1961 360 P.2d 836
Appeal from judgment of the Seventh Judicial District Court, White Pine County; Jon R.
Collins, Judge.
Defendant was convicted in the trial court of rape and he appealed. The Supreme Court,
Pike, J., held that the evidence sustained the conviction.
Judgment affirmed.
E. R. Miller, Jr., of Ely, for Appellant.
Roger D. Foley, Attorney General, and Norman H. Samuelson, Deputy Attorney General,
of Carson City; A. D. Demetras, District Attorney, White Pine County; for Respondent.
1. Rape.
Sexual intercourse by 23-year-old man with 17-year-old girl would have constituted offense of statutory
rape. NRS 200.360, subd. 2.
2. Rape.
Rape conviction was sustained by evidence.
3. Criminal Law; Indictment and Information.
Time is neither a material nor an essential element of offense of rape and need not be proved precisely as
alleged, so long as commission of offense on any day prior to filing of information and within four years of
filing of information is proved; and it was not error to so instruct jury and to refuse to give requested
instruction which would, in effect, have told jury that date alleged in information must be viewed as
approximate date of offense. NRS 173.270; Cal.Pen.Code, sec. 955.
4. Criminal Law.
In absence of appeal from order denying motion for new trial, action of trial court in that regard could not
be reviewed, especially since motion had been made on ground of newly discovered evidence. NRS
177.060, subd. 2, 177.090, 177.110, subd. 2.
OPINION
Appellant was charged in an information filed at Ely, White Pine County, Nevada, with
having on or about the 18th day of March 1959 committed the crime of rape. The jury
returned a verdict of guilty, upon which verdict the court entered its judgment. Appellant's
notice of appeal is from the judgment and the whole thereof entered by the district court on
March 25, 1960. There is no notice of appeal from the order of the court denying appellant's
motion for new trial, appellant's counsel contending that the notice of appeal above referred
to should be viewed as including an appeal from the order denying the motion for new trial
entered March 25, 1960, prior to the entry of the judgment on the same date.
Points urged on appeal by appellant are (1) the verdict is contrary to the law and the
evidence; (2) error by the trial court in giving instruction No. 25 and in refusing to give
appellant's proposed Instruction No. 1; (3) error by the trial court in refusing to grant a new
trial based on the affidavit of Juan Rivera.
error by the trial court in refusing to grant a new trial based on the affidavit of Juan Rivera.
The girl referred to in the information was 17 years of age and an eighth grade student at
the time of the alleged offense. She testified that a few days prior to March 18, 1959 appellant
who was sitting alone in his car near a local drug store told her that he wanted a date with her,
and she told him that she couldn't go out with him unless she asked her mother. She further
testified that, although on two or three occasions on subsequent days he honked the horn of
his automobile outside her house, she did not go out of the house to see him; that on March
18 when he parked in front of the house and asked her to go for a ride with him, she accepted
his invitation after her mother had given her permission to do so. Her further testimony was
that it was about seven o'clock in the evening and getting dark when the appellant, after
taking her for a ride outside of town, turned around and drove past the girl's house, but
refused to stop when she told him to, and grabbed her arm and prevented her from getting out
of the car while he continued about a mile and a half out of town where he stopped the car.
The girl testified that appellant then committed an act of sexual intercourse with her in his
automobile. He thereafter returned her directly to her home, where she hurried into the house
and did not tell her mother what had happened. Likewise, there is no evidence that she told
anyone until the following September 9th that appellant had intercourse with her. On the
latter date appellant, upon the insistence of the girl's father, came to the girl's home where, in
the presence of her parents, she identified appellant as the man responsible for her pregnancy.
She testified that, although he at that time denied that he was the father of her unborn child,
he pleaded with her not to report him to the police and promised that he would give her
everything he had if she would not do so. The following day, September 10, 1959, the girl
verified a criminal complaint charging the defendant with having committed the offense of
rape on or about the 30th day of April 1959. On December 28, 1959 the district attorney
filed the information here under consideration, charging the offense to have been
committed on or about the "1Sth day of March, 1959."
charging the offense to have been committed on or about the 18th day of March, 1959. The
documents bearing inconsistent dates were read to the jury.
The girl and her mother testified that, after the March 18 occurrence appellant drove
around the girl's house at night, but there was no evidence that they ever talked or spent any
time together again until the above mentioned meeting of September 9. The girl's mother
testified concerning appellant's taking the girl with him in his car on the evening of March 18,
and returning the girl home. She also testified to appellant's riding in the vicinity of the girl's
home on occasions both before and after March 18. Both parents and a 16-year-old sister
corroborated portions of the girl's testimony relating to appellant's conduct and statements
made at the girl's home on September 9.
A younger sister testified concerning the occasion when appellant sought to have her go
with him in his automobile. Other girls residing in the community, as well as certain adults,
told of appellant's language and conduct in their presence and of his efforts to have them
accompany him on automobile rides. Both the mother and a younger brother testified
concerning the requests made by appellant that two girl members of another family
accompany him and another man on a fishing trip.
Other testimony showed similar activities on the part of appellant in seeking to have
schoolgirls accompany him in his car.
Appellant denied that he had committed the offense, and attacked the credibility of the girl
and that of other witnesses who testified for the prosecution. He testified that the only time he
was alone with the girl in his car was one evening in May 1959, and that his purpose in
having her accompany him on roads outside of town was to talk to her and discourage any
inclination she may have had to marry appellant's brother. Appellant further testified that,
after heated arguments in the course of which the girl admitted to him she had had sex
relations with other men, she reluctantly promised appellant she would not marry appellant's
brother.
Appellant's brother testified that he and a group of young people, including the girl, were
occupants of an automobile which stopped at night in January of 1959 outside of Ely and
that he remained immediately outside the car and that other members of the group
remained in the near vicinity of the car while the girl and a male member of the group had
sex relations within the automobile.
automobile which stopped at night in January of 1959 outside of Ely and that he remained
immediately outside the car and that other members of the group remained in the near vicinity
of the car while the girl and a male member of the group had sex relations within the
automobile. The testimony of this witness, had the jury accepted it as true, would not only
have contradicted certain of the girl's testimony but, by reason of her participation in sex
relations, would have tended to support appellant's contention that the child born to her had
been conceived at a date prior to March 18. A doctor of medicine, called as a witness by the
prosecution, testified that in his opinion the child born on September 24, 1959 could have
been conceived on March 18, 1959. Appellant's counsel conducted an extensive cross
examination of such medical witness, in the course of which reference was made to
statements appearing in a text on the subject of obstetrics written some 20 years previously by
a recognized authority in that field. Appellant sought to show that the medical text writer
considered that the chances of survival of a child delivered before the 30th week of gestation
were less than the medical witness considered them to be. The acceptance by the jury of the
text writer's opinions would not have been inconsistent with the jury returning a verdict of
guilty. While appellant argues that, under the evidence referred to, as the child was born only
six months and eight days after the alleged act of intercourse between the appellant and the
girl, no credence could be given the girl's testimony. No such conclusion could properly be
drawn from the evidence, and the jury was entitled to decide the credibility of, and the weight
to be accorded to, her testimony.
[Headnotes 1, 2]
(1) Appellant urges as his first point on appeal that the verdict is contrary to the law and
the evidence. Appellant was 23 years of age, and the girl 17 when, according to the girl's
testimony, the appellant had sexual intercourse with her. Accordingly, as the girl was under
the statutory age of consent when the offense was shown to have been committed, the fact
of sexual intercourse or sexual penetration by appellant would have constituted the
offense of statutory rape.
shown to have been committed, the fact of sexual intercourse or sexual penetration by
appellant would have constituted the offense of statutory rape. NRS 200.360, subd. 2. State v.
Diamond, 50 Nev. 433, 437, 264 P. 697, 698, held There is no rule requiring the testimony
of a prosecutrix in a rape case to be corroborated. It is sufficient, standing alone, to sustain a
conviction. We do not wish to intimate that a case could not arise in which the other
circumstances in evidence might, as a matter of law, be enough to destroy the credibility of
the complaining witness. In the instant case there was, however, evidence corroborating the
testimony of the prosecuting witness, and upon appeal the verdict cannot be disturbed as
contrary to the evidence.
[Headnote 3]
(2) There was no error on the part of the trial court in giving Instruction No. 25 and in
refusing to give appellant's proposed Instruction No. 1. Instruction No. 25 given by the court
read as follows: You are further instructed that the precise time at which an offense was
committed need not be stated in the Information but it May [sic] be alleged to have been
committed at any time before the filing of the Information, except where or when the time is a
material ingredient to the offense. Time is neither a material nor an essential element in rape
and hence need not be proved precisely as alleged so long as the commission of the offense is
found by you to be on any day prior to the filing of the Information and within four years of
the filing of the Information. The first sentence of such instruction, except for the
introductory language of that sentence referring to its being given as an instruction, contains
the exact language of NRS 173.270, and the language contained in the second sentence is
supported by the following authorities: NCL 10853, based upon California Penal Code, sec.
955; Cal. Jur. 2d, sec. 54, Rape, p. 241.
Appellant's proposed Instruction No. 1 was identical with Instruction No. 25, except that
the additional language was added thereto, The common understanding of the words on or
about' when used in connection with the definite point of time, where time, as in this case,
is not an essential ingredient of the crime, but is alleged in the Information, is that the
State does not put the time at large, but indicates that it is stated with approximate
accuracy."
the definite point of time, where time, as in this case, is not an essential ingredient of the
crime, but is alleged in the Information, is that the State does not put the time at large, but
indicates that it is stated with approximate accuracy. By reason of the provisions of NRS
175.515
1
Instruction No. 25 given by the court and appellant's proposed Instruction No. 1
requested to be given by appellant, will be considered on this appeal, although there is the
absence of an exception expressly stated to the court's refusal to give the latter. We find no
error of the court on either of such points on appeal. The court acted properly in refusing such
instruction proposed by appellant. The effect of it would have been to tell the jury that the
date of March 18, 1959 alleged in the information, must be viewed by the jury as having been
the approximate date of the offense, whereas the language appearing in the same proposed
instruction and constituting the body of Instruction No. 25, as given by the court, told the jury
that it might find the offense on any day prior to the filing of the information and within four
years of the filing thereof. There is no showing that appellant was in any way misled to his
prejudice by the dates appearing in either the criminal complaint filed in September 1959 or
the information filed the following December. Appellant testified that the only time he was
with the girl alone in his car was on the night of May 2, 1959. The girl also testified that she
was alone with the defendant in his automobile on only one occasion. Their respective
explanations of what occurred on the single occasion upon which they were together under
the indicated circumstances were, of course, entirely different.
[Headnote 4]
(3) Appellant urges error on the part of the trial court in denying appellant's motion for
new trial. NRS 177.060, subd.
____________________

1
NRS 175.515, When any written charge has been requested and given, or refused, or given by the court of
its own motion, the question or questions contained in such charge need not be excepted to, but the written
charge, given or refused, with the endorsements showing the action of the court, shall form part of the record,
and any error in the decision of the court thereon may be taken advantage of on appeal in like manner as if
presented in a bill of exceptions.
subd. 2, authorizes the party aggrieved in a criminal action to appeal from a final judgment or
from an order refusing a new trial, and NRS 177.110, subd. 2, states that both such appeals
may be included in one notice of appeal so specifying. Here, however, the only appeal was
from the judgment and, in the absence of an appeal from the order denying the motion for
new trial, the action of the trial court in that regard cannot be reviewed. State v. Ritz, 65
Mont. 180, 211 P. 298, 301, so holding, was decided upon statutory provisions of the same
substance as NRS 177.060, subd. 2, and NRS 177.090. This must necessarily be so when the
motion for new trial is made, as it was here, on the ground of newly discovered
evidenceevidence discovered after the trial and judgment. Such situation is clearly
distinguishable from the right, on appeal from the judgment, to review intermediate orders, as
provided in NRS 177.090.
Affirmed.
____________
77 Nev. 191, 191 (1961) Blakeney v. Fremont Hotel, Inc.
JESS BLAKENEY, Appellant, v. FREMONT
HOTEL, Inc., a Nevada Corporation, Respondent.
No. 4345
April 10, 1961 360 P.2d 1039
Personal injury action. From an order of the lower court setting aside a default judgment
on the ground of inadvertence and excusable neglect, the plaintiff appealed. The Supreme
Court, McNamee, J., held that the setting aside of the default was not an abuse of discretion
where an application was promptly made to set it aside, there was no intent to delay the
proceedings, the client was blameless, and may have had a valid defense, and the attorney's
failure to answer or appear was due to negligence in misplacing and overlooking the file
after the file had gone through the usual office procedure to index and calendar the case.
defense, and the attorney's failure to answer or appear was due to negligence in misplacing
and overlooking the file after the file had gone through the usual office procedure to index
and calendar the case.
Affirmed.
Edward G. Marshall, of Las Vegas, for Appellant.
Goldwater and Singleton, of Las Vegas, for Respondent.
1. Judgment.
In general, party who has good defense should, when prompt application to vacate default judgment is
made, be allowed to set it up, notwithstanding any negligence of himself or counsel.
Supreme Court will affirm action of lower court in exercise of its discretion upon motion to vacate
default unless there is showing of clear abuse thereof.
3. Judgment.
Setting aside default was not abuse of discretion where application was promtly made, there was no intent
to delay proceedings, client was blameless and may have had valid defense, and attorney's failure to answer
or appear was due to negligence in misplacing and overlooking file.
OPINION
This is an action brought by appellant against respondent to recover the sum of $35,000
general and $25,000 punitive damages for injuries allegedly caused by the negligence of
respondent's employee. Summons was served upon the resident agent of respondent on
February 25, 1960 and on March 3, 1960 the papers were delivered to the hotel's attorney,
David Goldwater, for the purpose of defending the action. Time to answer expired on March
16, 1960. No appearance having been made by the respondent its default was entered on
March 21, 1960. On April 13, 1960, appellant proved up his case in court and obtained a
judgment in the sum of $7,911.20 plus costs.
of $7,911.20 plus costs. On the following day, after a writ of execution was issued and levy
made upon the assets of respondent, Mr. Goldwater filed a motion to set aside the default
judgment on the grounds of inadvertence and excusable neglect. The motion was granted and
appeal is from the order setting aside the entry of default and the judgment.
The order appealed from recites the following: the Court finding that the failure to file
and serve said answer to the Complaint was the result of excusable neglect by counsel for the
Defendant, and finding that the failure to file said answer was not an attempt to delay any of
the proceedings in the above entitled cause, and the Court finding that the application for
relief from the default and judgment of default entered by the Plaintiff was made promptly;
and the Court further finding that the Defendant, on the hearing on the motion, may have a
valid defense to the allegations of the Complaint of the Plaintiff, and further finding that the
Plaintiff will not be harmed by the granting of relief pursuant to said motion and that justice
will best be served by the granting of said motion * * *.
The only question for determination in this case is whether the lower court abused its
discretion in finding that the neglect of Mr. Goldwater was excusable. It appears from his
affidavit and from his oral testimony, both given in support of the motion, that upon receipt
of the papers from the respondent, Mr. Goldwater took them to his office. There, the case was
assigned a file number, a folder and index card by number were prepared and the necessary
steps were taken to calendar the case so that it could be taken care of within the time required
for answering. Somehow or another this particular file, even though filed by number and
indexed, was misplaced and overlooked, and apparently in the press of other matters, many
other matters, which occurred and were current at about that time. He then intimates that an
inexperienced secretary could have misfiled the papers.
This evidence shows a clear case of negligence on the part of the attorney.
part of the attorney. The lower court felt, however, that the negligence was excusable
inasmuch as there was no willful intent to delay the case, the court being satisfied that
evidence of a meritorious defense would be presented.
1

In his oral decision the trial judge stated, Now, I think in truth and in fact it is this: that
Mr. Goldwater had it on his desk and one of the girls filed it and he doesn't know which one
and I don't think that he paid much attention to it at that time. We all make errors and
mistakes and I think Mr. Goldwater just forgot it. Now, the question is: is that under the terms
of the rule excusable neglect? It is true that he neglected to file an answer and he neglected to
do anything on behalf of the defendant who had left the summons and complaint with him,
but I think it is excusable and I think attorneys all make errors.
In Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050, the court sustained the lower court in
refusing to open up the default. There, when the papers were served upon the defendant he
mislaid them in his home. No evidence was presented to show in what manner the papers
were mislaid or misplaced. Some such effort, however, was made in the present case.
Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d. 839, in our most recent case on the subject
of defaults. There, we stated that an appellate court is not inclined to disturb an order setting
aside a default regularly entered where the application was made to that court upon the
ground of inadvertence and excusable neglect, supported by evidence showing a defense on
the merits.
[Headnote 1]
As a general rule, we think a party who has a good defense should, when prompt
application is made * * * be allowed to set it up, notwithstanding any negligence on the part
of himself or counsel. Howe v. Coldren, 4 Nev. 171.
In the Coldren case the court distinguished a situation where the negligence has been so
extreme as to cause suspicion of willful intent to delay the case; and in reviewing appellate
action on cases concerned with defaults, it said: "* * * we find several cases where the
appellate Court has held that it would reverse the ruling of a nisi prius Court in refusing to
set aside a default; but we do not see a reference to a single case where an order setting
aside a default has been reversed.
____________________

1
The necessity of presenting such evidence on the motion was waived expressly in open court by appellant's
counsel.
in reviewing appellate action on cases concerned with defaults, it said: * * * we find several
cases where the appellate Court has held that it would reverse the ruling of a nisi prius Court
in refusing to set aside a default; but we do not see a reference to a single case where an order
setting aside a default has been reversed. Certainly there are strong reasons why an appellate
Court should interfere in the one case and not in the other. If there is a refusal to set aside a
default, a ruinous judgment may be sustained against a party who, upon hearing, might have
interposed a perfectly good defense. By sustaining the default, he would forever be debarred
the right of a hearing. If, then, a nisi prius Court refuses to set aside a default when a party
shows with reasonable certainty that he has a good defense, and he has only been guilty of
carelessness and inattention to his business, but no willful or fraudulent delay, it would be
highly proper even for an appellate Court to come to his relief if the lower Court refused it.
But when the default has been set aside the case is far different. In such case, if the plaintiff
has a good cause of action and clear proof of his demand, he could generally try his case in
the Court below and obtain another judgment in less time, and with far less expense, than he
could bring his case to this Court. In fine, if the plaintiff has a good case there is no necessity
of appealing. If he has a bad one, this Court ought not to be very anxious to help him keep an
advantage he has obtained, not through the justice or strength of his cause, but by the
accidental blunder of his opponent.
[Headnotes 2, 3]
The true significance of the decisions in this state, some of which uphold the granting of
the motions to open default and some of which uphold the denial of such motions, is that this
court will affirm the action of the lower court in the exercise of its discretion unless there is a
showing of a clear abuse thereof. As in the Cicerchia case the client here was blameless,
application was promptly made, and there was no intent to delay proceedings. As
distinguished from Bryant v. Gibbs, supra, where the defendant failed to show a single act or
circumstance tending to excuse his mislaying of the papers, Goldwater did show that the
papers when brought into his office went through the usual office procedure to index and
calender the case; and as distinguished from Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979,
and Guardia v. Guardia, 4S Nev. 230
papers, Goldwater did show that the papers when brought into his office went through the
usual office procedure to index and calender the case; and as distinguished from Lukey v.
Thomas, 75 Nev. 20, 333 P.2d 979, and Guardia v. Guardia, 48 Nev. 230, 229 P. 386, where
there was a failure to present evidence which would show a defense on the merits, the
existence of evidence in support of a meritorious defense was conceded.
Under the particular facts of this case we find no abuse of discretion in the action of the
lower court.
Affirmed.
____________
77 Nev. 196, 196 (1961) Barreth v. Reno Bus Lines
ALBERT BARRETH and EVERETT V. BURGESS, Appellants, v. RENO BUS LINES,
Inc., a Nevada Corporation, and WILLIAM BRAZ, Respondents.
No. 4377
April 12, 1961 360 P.2d 1037
Georgetta, Judge.
Action by the driver of and a passenger in an automobile for injuries sustained when the
automobile which had been following a bus down a highway collided with the rear of the bus
as it was being turned to the left. The bus line interposed a counterclaim. The trial court
rendered judgment on a verdict in favor of the bus line both on the complaint and the
counterclaim and the plaintiffs appealed. The Supreme Court, Pike, J., held that the evidence
sustained verdict finding that negligence of the automobilist had approximately caused the
accident.
Judgment affirmed.
Nada Novakovich, of Reno, for Appellants.
Vargas, Dillon and Bartlett, of Reno, for Respondents.
1. Negligence.
Generally proximate cause issue is one of fact.
2. Automobiles.
Evidence sustained verdict finding that automobilist's negligence and not negligence of bus driver had
caused collision between front of automobile and rear left side of left-turning bus which had preceded
automobile down highway.
OPINION
At about 5:30 p. m. November 9, 1959 a southbound car owned and driven by appellant
Burgess, with appellant Barreth as a passenger, collided with the left rear side of the
passenger bus owned by respondent bus lines corporation and driven by respondent Braz, as
said bus made an easterly turn across the highway.
Appellants brought suit against respondent bus lines and Braz, alleging that said bus had
been driven in front of the automobile occupied by appellants and had made a sudden turn
without giving any signal whatsoever, striking the car then driven by appellant Burgess.
Appellants sought damages for personal injuries incurred by each of them, and Burgess also
sought to recover for damage to his automobile.
The answer of respondents Reno Bus Lines, Inc. and Braz, besides denying negligence on
the part of either, alleged as affirmative defenses (1) that the collision was caused solely and
proximately by the negligence of Burgess; and (2) that Barreth and Burgess were guilty of
contributory negligence.
By counterclaim respondent bus lines sought to recover from appellant Burgess for
damage allegedly caused to respondent's bus by Burgess negligently running his automobile
into said bus.
The jury rendered a verdict in favor of respondent bus lines and Braz and against
appellants herein. It also rendered a further verdict on the counterclaim of respondent bus
lines in favor of said bus lines and against appellant Burgess in the sum of $1,2SS.19.
against appellant Burgess in the sum of $1,288.19. Judgment was entered on said verdicts,
and this appeal is from that judgment.
The accident occurred on U. S. Highway 395 at a point several miles south of Reno,
Nevada. The testimony shows this portion of the paved highway to have been four lanes in
width, with each lane separately marked by white lines for vehicular traffic, and with concrete
islands in the center of the highway separating the north and southbound lanes. There was
also a paved shoulder on each side of the highway. Respondent's bus with its lights on
traveled south to its customary turning point and made a brief stop on its righthand or
westerly shoulder, before making a lefthand turn. While making such lefthand turn, and
before the rear of the bus had cleared the center line of the highway, there was an impact
between the left rear portion of the bus and the front end of the southbound car driven by
appellant Burgess. Physical injuries were sustained by both appellants, and both vehicles
were damaged.
Appellants contend that respondents' negligence was the sole proximate cause of the
collision and that the verdict of the jury and judgment are against the manifest weight of the
evidence and are plainly wrong and should be reversed.
[Headnotes 1, 2]
Generally the issue of proximate cause is one of fact and not one of law, and this case
presents no exception to such general rule. Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390.
Accordingly, it was within the province of the jury, in reaching its verdict, to consider and
pass upon the issues presented by the pleadings, including any negligence on the part of
respondents as alleged in appellants' complaint, as well as any negligence on the part of
appellants as alleged in respondents' answer as an affirmative defense, and any negligence on
the part of appellants as alleged in respondent bus line's counterclaim. Likewise, the jury in so
determining the issue of negligence was required to decide the issue of proximate cause of the
collision, and must be viewed as having done so under instructions from the court.
Appellants on appeal do not contend that there was any error on the part of the court
either in the matter of instructions given or refused.
any error on the part of the court either in the matter of instructions given or refused. As the
verdict was in favor of respondents and against appellants, and the further verdict of the jury
was that the respondent bus lines recover judgment in the specified sum referred to against
appellants for damages to respondent's bus, the same must necessarily be considered as
having determined issues of negligence and proximate cause in a manner contrary to
appellants' contentions. The jury verdict in favor of respondents and against appellants was,
of course, a finding of fact against appellants' contentions that respondents' negligence was
the sole proximate cause of the collision.
The further verdict in favor of respondent bus lines and against appellants for damages to
respondent's bus was a finding that negligence on the part of appellants was the proximate
cause of the accident while, at the same time, such verdict was entitled to recognition as a
finding negativing any negligence on the part of respondents as having contributed to the
collision, for the reason that, had respondents' negligence so contributed to the collision,
respondent bus lines could not have recovered on its counterclaim. As it was within the
province of the jury to determine the weight to be accorded the evidence and the issue of
proximate cause as a question of fact, it cannot be said as a matter of law that the jury verdict
was against the manifest weight of the evidence, if there was substantial evidence in
support of such verdict.
While appellant Burgess testified that he was driving south at a speed of about 40 miles
per hour; that he saw the bus when about 300 feet distant from it when the bus was in the
outside westerly lane of the highway; that he saw no signal given for a turn; and that the bus
turned in front of him when he was less than 100 feet distant from it, the jury was not
required to accept this testimony.
The bus driver testified in substance that he looked back before starting his turn and saw
appellants' car about 1,000 feet distant traveling south; that he then gave a hand signal and,
while turning, noted that appellants' car was approaching at a high rate of speed. There was
evidence that one headlight of appellants' car was not on just prior to the accident.
was evidence that one headlight of appellants' car was not on just prior to the accident.
Appellant Burgess testified that his car skidded only some 38 feet before the impact, but there
was other evidence given by one of the police officers who investigated the accident that the
skidmarks made by each of the four wheels of appellants' car were more than 110 feet in
length and averaged 117 feet. The same witness estimated from the skidmarks that appellants'
car was traveling at a minimum speed of 48 miles an hour to the point of impact, and testified
that the collision occurred in the southbound passing lane in a zone where the speed limit was
45 miles per hour. A passenger on the bus testified that appellants' car was coming very fast
and that she saw no lights on it as it approached the bus.
The jury, upon conflicting evidence, found for respondents. As there is substantial
evidence in support of the verdict, neither it nor the judgment based thereon will be disturbed
on appeal.
____________
77 Nev. 200, 200 (1961) Gross v. Lamme
EVELYN L. GROSS, Appellant, v.
VERNE A. LAMME, Respondent.
No. 4346
April 17, 1961 361 P.2d 114
Suit against the maker and the guarantor on a note. The trial court gave a judgment against
the maker but refused to hold the guarantor individually liable, and the plaintiff appealed. The
Supreme Court, McNamee, J., held that the addition of the abbreviation Pres. to the signature
of the guarantor, without disclosing the name of the principal, did not exempt the guarantor
from liability on his guarantee, although the front of the instrument disclosed the
principal to be the maker.
77 Nev. 200, 201 (1961) Gross v. Lamme
liability on his guarantee, although the front of the instrument disclosed the principal to be the
maker.
Reversed and remanded with instructions.
C. Norman Cornwall, of Las Vegas, for Appellant.
John F. Mendoza and Carl E. Achee, of Las Vegas, for Respondent.
1. Bills and Notes.
Lack or failure of consideration is not available to maker as defense against holder in due course, or
holder's assignee. NRS 92.002, 92.033, 92.035, 92.041, 92.065.
2. Bills and Notes.
Addition of abbreviation Pres. to indorser's signature, without disclosing name of principal, did not
exempt indorser from personal liability on note to holder who took for value with knowledge that indorser
was only accommodation party, although front of note disclosed pincipal to be maker. NRS 92.027,
92.036.
3. Guraranty.
Addition of abbreviation Pres. to guarantor's signature, without disclosing name of principal, did not
exempt guarantor from liability on his guarantee, although front of note disclosed principal to be maker.
NRS 92.027.
4. Bills and Notes; Guaranty.
Contracts of endorsement and of guarantee were separate and distinct obligations from obligation
contained in note itself.
OPINION
This is an action brought by appellant against Mike Gordon's Buckhorn Bar, Inc., a
corporation, and Verne A. Lamme on the following promissory note:
$3,600.00 Las Vegas, Nevada, 5-2-1959
In instalments as herein stated, for value received, the undersigned, jointly and
severally, promise to pay to the Kool Temp Inc. or order, at Las Vegas, Nevada the
principal sum of Thirty six hundred and No/100 Dollars with interest * * * payable One
Hundred and No/100 Dollars each on the fifth day of each consecutive month,
beginning on the fifth day of June, 1959. * * *
77 Nev. 200, 202 (1961) Gross v. Lamme
Should an attorney be employed to procure payment hereof by suit or otherwise, the
undersigned agrees to pay a reasonable sum as attorney's fees therefor. * * * The
makers, endorsers and guarantors of this note waive presentment for payment, protest,
notice of protest, demand for payment, notice of non-payment and declaration of
acceleration of payment. * * * The makers and endorsers of this note waive the statute
of limitations for fifteen years after legal expiration, and agree to pay twenty-five
percent of the balance due if it is necessary, to assign the note to an agency for
collection.
MIKE GORDON'S BUCKHORN BAR, INC.
Verne A. Lamme Pres.
M. H. Gordon Sec'y
(Seal)
On the back of the note appeared the following:
Verne A. LammePres
M. H. GordonSec'y
For value received, I hereby guarantee, absolutely and unconditionally, the payment
of this note, * * * at the times and according to the terms expressed therein, with all
costs of collection thereof, including reasonable attorney's fees in any action on said
note or on this guaranty and authorize the granting of extensions of time or other
indulgences to maker and alterations and amendments of any instruments securing said
note and sales of and the taking and releasing of any security, whether real or personal
property, the discharging or releasing of any party or parties, and the making of
compositions or other arrangements with the maker or principal, all without notice to
me and same shall not affect my liability. I hereby waive the right to require the holder
of this note to proceed against the maker or any other party or to proceed against or
apply any security the holder may hold, and waive the right to require the holder to
pursue any other remedy for my benefit, and agree that the holder may proceed against
me for the amount hereby guaranteed without taking any action against the maker or
any other party and without proceeding against or applying any security the holder
may hold.
77 Nev. 200, 203 (1961) Gross v. Lamme
guaranteed without taking any action against the maker or any other party and without
proceeding against or applying any security the holder may hold. * * * Demand,
presentment for payment, notice of nonpayment, and protest waived.
Verne A. LammePres.
M. H. Gordon Sec
Kool Temp, Inc. by John Pierce, Pres.
Liberal Loan and Discount Co
Leslie Devor, Treas.
As appears from said note the payee therein, Kool Temp, Inc., indorsed the note in blank
and the evidence shows that it was thereupon delivered to Liberal Loan and Discount Co. The
latter thereafter transferred the note to First Southern Corporation by indorsement and
delivery. Subsequently thereto First Southern Corporation, by a separate instrument, assigned
the note to appellant for collection. First Southern Corporation became the holder of the note
before it was overdue. There is no evidence to show that it took the note otherwise than in
good faith or that it had notice of any infirmity in the instrument.
The lower court gave judgment in favor of the plaintiff against Mike Gordon's Buckhorn
Bar, Inc., for the balance due on the note, but refused to hold Verne A. Lamme individually
liable on the note. This appeal is from that portion of the judgment which fails to hold Verne
A. Lamme liable as an individual.
[Headnote 1]
Although the Findings of Fact and Conclusions of Law do not expressly refer to First
Southern Corporation as a holder in due course, under NRS 92.059 it necessarily became
such when, as appears from the evidence, it took the instrument which was complete and
regular upon its face, before it was overdue, in good faith and for value, without notice of any
infirmity in the instrument or defect in the title of the person negotiating it. If it be a fact that
the maker of the note received no consideration therefor or if it received consideration which
thereafter failed, such defense result ing to the maker from lack or failure of consideration
would not be available as against a holder in due course.
77 Nev. 200, 204 (1961) Gross v. Lamme
would not be available as against a holder in due course. Allen v. Hernon, 74 Nev. 238, 328
P.2d 301; NRS 92.035. Likewise, any such defense would not be available as against the
assignee of a holder in due course, NRS 92.033, such assignee being a holder within the
meaning of NRS 92.033 by virtue of NRS 92.041 and subsection 7, NRS 92.002. Being a
holder who derives her title through a holder in due course (the assignor), appellant as
assignee, has all the rights of her assignor in respect of all parties prior to the latter. NRS
92.065.
Appellant's main argument for reversal of the judgment insofar as respondent is concerned
relates to the failure of the trial court to hold respondent liable in his individual capacity. It is
clear to us that the trial court erred in finding that respondent Lamme signed the instrument
on the back thereof in his representative capacity as president.
NRS 92.027 provides:
Where the instrument contains or a person adds to his signature words indicating that he
signs for or on behalf of a principal, or in a representative capacity, he is not liable on the
instrument if he was duly authorized; but the mere addition of words describing him as an
agent, or as filling a representative [capacity] character, without disclosing his principal, does
not exempt him from personal liability.
[Headnotes 2-4]
It is to be noted that Lamme on the back of the note signed the instrument first as an
indorser, which under NRS 92.036 made him an accommodation party, liable to a holder for
value, notwithstanding such holder at the time of taking the instrument knew him to be only
an accommodation party. His signature did not disclose that he signed for or on behalf of a
principal. The mere addition of a word describing him as a president without disclosing the
name of a principal does not exempt him from personal liability. NRS 92.027. The same is
true with respect to his signature after the words of guarantee.
1
There, likewise, he signed his
name, with the notation "Pres." following his signature, without disclosing his principal.
Although the name of a principal is disclosed on the front of the instrument as the maker
thereof where he signed as an officer of Mike Gordon's Buckhorn Bar, Inc., such corporate
name will not be inserted by implication either to the indorsement in blank or to the
guarantee.
____________________

1
The personal liability of M. H. Gordon, the other indorser, is not an issue in this case.
77 Nev. 200, 205 (1961) Gross v. Lamme
notation Pres. following his signature, without disclosing his principal. Although the name
of a principal is disclosed on the front of the instrument as the maker thereof where he signed
as an officer of Mike Gordon's Buckhorn Bar, Inc., such corporate name will not be inserted
by implication either to the indorsement in blank or to the guarantee. To do so would make
both the blank indorsement and the guarantee redundancies. See Chesebro, Robbins and
Graham v. Leadbetter, 19 Conn. Sup. 422, 116 A.2d 578. The contract of indorsement as well
as the contract of guarantee are separate and distinct obligations from the obligation
contained in the note itself. First State Bank v. Ovalo Warehouse Ass'n (Tex.Civ.App.) 276
S.W. 773.
The judgment is reversed and the cause remanded with instructions that the lower court
enter judgment against not only Mike Gordon's Buckhorn Bar, Inc., but also against Verne A.
Lamme for the amount found due on the note, together with the attorney fees allowed and
costs, total sum to draw interest thereon at the rate of 7 percent per annum from March 21,
1960, the date of the original judgment.
Costs to appellant.
Comparative Section Tables
____________
Nevada Revised Statutes (NRS) to
Uniform Negotiable Instruments Act
NRS 92.002 U.N.I.A. 191
NRS 92.027 U.N.I.A. 20
NRS 92.033 U.N.I.A. 26
NRS 92.035 U.N.I.A. 28
NRS 92.036 U.N.I.A. 29
NRS 92.041 U.N.I.A. 34
NRS 92.059 U.N.I.A. 52
NRS 92.065 U.N.I.A. 58
____________
77 Nev. 206, 206 (1961) Marshburn v. Marshburn
RUTH B. MARSHBURN, Appellant, v.
WILLIAM MARSHBURN, Respondent.
No. 4378
April 17, 1961 361 P.2d 112
Appeal from the judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Suit by husband for a divorce, wherein wife counterclaimed for separate maintenance. The
trial court rendered judgment granting husband a divorce, and defendant wife appealed. The
Supreme Court, Badt, C. J., held that the evidence justified findings that wife had been guilty
of extreme mental cruelty which had impaired husband's health and that the parties had no
community property.
Affirmed.
C. Norman Cornwall and D. Owen Nitz, both of Las Vegas, for Appellant.
V. Gray Gubler, of Las Vegas, for Respondent.
1. Divorce.
In determining whether conduct complained of as constituting extreme cruelty resulted in danger or
reasonable apprehension of danger to life, limb or heath of injured spouse, reviewing court must rely upon
trial court's observation of injured spouse and evaluation of his testimony.
2. Divorce.
Evidence justified finding that wife was guilty of extreme mental cruelty which had impaired husband's
health.
Interest in property assigned by parents to son without consideration became his seperate property, even
if received by assignee during coverture.
Evidence supported finding that parties to divorce suit had no community property.
OPINION
Under the issues raised by the husband's suit for divorce on the ground of extreme cruelty
and the wife's counterclaim for separate maintenance on the ground of the husband's
extreme cruelty, the court granted the husband a divorce.
the husband's extreme cruelty, the court granted the husband a divorce. The wife has
appealed, specifying as error that the asserted mental cruelty of the wife was not shown to
have resulted in danger to the life, limb, or health of the husband, or in the reasonable
apprehension of such danger.
The parties were married in Phoenix, Arizona, September 1955. In the spring of 1957,
while they were living in Pasadena, California, the husband was attending school and the wife
was attending school part time and also attending a modeling school in Pasadena. The wife
was twenty years old and the husband in his twenties. The wife started to model at various
places and the parties quarreled. [S]he told me her nerves were on a tight string, and it was
the first time she had ever gotten mad enough that she wanted to kill me. They separated but
had a reconciliation after some five months, went back together in September 1957, and lived
at Long Beach, California. The husband was employed as a dispatcher for Marshburn Farms
and worked from 12:00 midnight to 7:00 a. m.
The evidence shows that from this point on the wife commenced a series of escapades
with other men to such extent as to be altogether intolerable to any husband. We omit the
details. The husband's remonstrances were received with flippant replies or with his wife's
refusal to discuss the matter with him.
[Headnote 1]
When one considers the tortured frame of mind of a young husband knowing that the wife
with whom he is in love is spending night after night with some other man, one must be
astonished at his understatements of the effect this had on him. Well, I was nervous at the
time. I just felt bad about it, you know. I felt bad. * * * It made me nervous because I never
knew where she was. On cross-examination he stated that his wife's conduct did not affect
his appetite or his sleep. One could hardly picture a worse witness in his own behalf. He
finally did concede: Well, I am edgy and irritable. I can't get along with anybody, and I was
about the hardest guy to work with down there [at the produce plant]. And he finally did
testify that he could not live under existing conditions and enjoy good health.
existing conditions and enjoy good health. In such case reliance must be placed upon the trial
court's observation of the witness and the trial court's evaluation of his testimony. If
overstatements and gross exaggerations become evident to the trial judge from his
observation of the demeanor of the witness, so likewise do understatements, shyness, and
timidity.
In Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355, 360, this court noted that it had not
departed from the rule that the conduct complained of (as constituting extreme cruelty) must
result in danger to life, limb, or health, or in the reasonable apprehension of such danger. In
that case the parties had raised a large family, and the husband had been treating his wife with
increasing harshness and indifference as to her happiness or welfare. During the entire period
she did a man's work on the ranch. She finally left. She had been irrigating, helping with the
haying, trying to keep a garden, and keeping house, and stated that she was just about ready
to break down, that she was all in. This court remarked: This is the only testimony
bearing directly upon the effect appellant's treatment had upon the respondent. Against the
appellant's insistence that it was not enough and did not establish danger to health, life, or
limb, or the reasonable apprehension thereof, we replied: We think it does. We cannot
always expect that a party in a divorce action will express himself explicitly. In such a matter
as this we must to a great extent rely on the trial judge's impressions. He sees and hears the
witnesses, and acquaints himself with the way in which a witness expresses himself. He is in
a better position to observe the conduct and demeanor of the witness and whether the witness
tends to overstate or understate his testimony.
Where the same question was raised in Coolman v. Coolman, 76 Nev. 43, 348 P.2d 471,
472, this court said, in considering whether the conduct complained of resulted in danger to
life, limb, or health, or reasonable apprehension of such danger: [T]he court is obliged to
consider the character and refinement of the parties, and the conclusion to be reached must
depend upon the particular facts of each case * * *. The trial judge * * *
would be in a position to evaluate [the parties'] character and refinement as well as [their]
sensibilities * * *. It is upon such evaluation rather than upon the testimony of the
complaining party alone that his determination of the effect of the cruel treatment upon the
health of the injured spouse should be based.
[Headnote 2]
The trial court found: That the defendant has since and during said marriage been guilty
of extreme cruelty (mental in character) toward the plaintiff without cause therefor, and that
said plaintiff's health was and is thereby and therefrom impaired. If such was the court's
conviction resulting from the husband's testimony, it was justified under our holdings in the
Ormachea and Coolman cases, supra.
[Headnotes 3, 4]
The wife also assigns error in the court's finding that there was no community property
belonging to the parties. The husband's parents had assigned to him a 5 percent interest in
Marshburn Farms. The wife contended that this was a gift to her husband and herself. The
husband testified that this gift was made to him individually in like manner as a 5 percent
interest had been made to other members of the immediate family. In support of his testimony
there was received in evidence the original assignment of such interest running directly to
William Marshburn. No consideration was paid for it. Even if received by the husband during
coverture, the gift became his separate property. This is the only item which the wife
contends was community property. The finding that the parties had no community property
was, therefore, amply supported.
The judgment is affirmed.
____________
77 Nev. 210, 210 (1961) Lockart v. Maclean
BERNARD E. LOCKART, Appellant, v. KENNETH MACLEAN and
WILLIAM MANNING TAPPAN, Respondents.
No. 4344
May 2, 1961 361 P.2d 670
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Malpractice action by patient against physician in treatment for a broken leg. From an
order of the trial court, granting the physicians' motion for summary judgment, the patient
appealed. The Supreme Court, Pike, J., held that physician who had received none of his
training in Nevada and had conducted his practice solely in California was not competent to
give his medical opinion as to the standard of practice in Reno, Nevada, as to diagnosis,
pre-operative, operative, and post-operative procedures in plaintiff's treatment.
Judgment affirmed.
Fitz-Gerald Ames, Sr. and LeRoy W. Rice, of San Francisco; Harry A. Busscher, of Reno,
for Appellant.
Woodburn, Forman, Wedge, Blakey and Thompson, of Reno, for Respondents.
1. Evidence.
Physician who had received none of his training in Nevada and had conducted his practice solely in
California was not competent to give his medical opinion in a malpractice suit as to standard of practice in
Reno, Nevada, as to diagnosis preoperative, operative and post-operative procedures in plaintiff's treatment
for broken leg. NRCP 56(c, e).
2. Stipulations.
Doctors' depositions in support of their motion for summary judgment in a malpractice action were
properly admitted when depositions of doctors were taken at plaintiff's instance and parties stipulated that
affidavits of doctors in support of motion for summary judgment referring to depositions might be used by
doctors.
OPINION
This is an appeal from an order of the trial court granting respondents' motion for
summary judgment.
granting respondents' motion for summary judgment.
On August 18, 1956 appellant Lockart, who had fallen and sustained a fracture of the
mid-right thigh, was taken to the Washoe Medical Center at Reno where he remained as a
patient under the care of the two respondent doctors until his discharge from that hospital on
November 13, 1956. On the day following his arrival at the hospital appellant was operated
upon by respondents who performed an incision, inserting an intramedullary pin in the
fractured femur. Subsequently osteomyelitis, or infection of the bone, developed. Appellant
brought suit against respondents, seeking damages and alleging that respondents negligently
treated, cared for and operated upon appellant, and that respondents did not exercise the
degree of care, skill and learning ordinarily possessed by hospitals and physicians and
surgeons practicing in the same locality. Respondents, by answer, denied all material
allegations of appellant's complaint. Appellant took the depositions of both respondent
doctors and also that of the record clerk of Washoe Medical Center who produced and
identified the hospital records pertaining to the treatment received by appellant while a
patient.
On September 23, 1959 respondents filed a motion for summary judgment under Rule 56
NRCP, stating that the motion was made on the ground that there was no genuine issue as to
any material fact in the action, and respondents were entitled to judgment as a matter of law.
In making the motion respondents relied upon their own above referred to depositions, as
well as the affidavits of Edwin Cantlon, M.D., William A. O'Brien III, M.D., and Eugenia
LaFevere, surgical nurse. In support of appellant's opposition to the granting of said motion,
the affidavit of Dr. David J. Tepper, an osteopathic physician and surgeon with offices in
Oakland, California, was offered in evidence. The offer was rejected for lack of a showing of
competency on the part of the affiant Dr. Tepper.
NRCP, Rule 56, subd. (c), under which the motion for summary judgment was made, after
providing that the motion may be made with supporting affidavits, had that the adverse party
may serve opposing affidavits, states in part "The judgment sought shall be rendered
forthwith if the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
in part The judgment sought shall be rendered forthwith if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.
Subd. (e) of the same rule provides Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn
or certified copies of all papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affidavits to be supplemented or opposed
by depositions or by further affidavits.
The parties stipulated that the affidavits of Edwin Cantlon, M.D., William A. O'Brien III,
M.D., and Eugenia LaFevere, surgical nurse, might be considered in support of respondents'
motion for summary judgment. These affidavits may be summarized as follows: Dr. Cantlon's
affidavit, after outlining his background of education, training and experience in medicine
and surgery, including some 14 years' practice in Reno, stated that he was a former chief of
staff of both Washoe Medical Center and St. Mary's Hospital in Reno, Nevada and, at one
time, had been called upon to review and establish the standards of surgical and orthopedic
practice in Reno; that he had participated in surgery with most surgeons in Reno and, by
observation, knew the standard of surgeons in that locality. Based upon the hospital records
and respondents' depositions, he expressed his opinion that the standard of conduct of
respondent doctors was in accordance with the standards of surgeons in Reno and that, in his
opinion, there was no basis in fact for appellant's claim that said respondent doctors did not
meet or comply with the said standards. This affiant also stated that, in his opinion, the cause
of the infection and osteomyelitis which appeared in patient Lockart's right leg subsequent to
the operation was impossible of determination, and that the procedures selected by the
respondent doctors to combat the same were proper and in accordance with the standard
of conduct of surgeons and orthopedic surgeons practicing in Reno, Nevada.
combat the same were proper and in accordance with the standard of conduct of surgeons and
orthopedic surgeons practicing in Reno, Nevada.
Dr. O'Brien's affidavit showed that he had practiced medicine in Reno for about 13 years,
was a former chief of staff of Washoe Medical Center and, as such, had assisted in
establishing the procedures and standard of conduct for members of the staff and had, among
other things, established a sepsis committee to formulate procedures to control hospital
infections; that affiant had, on occasion, observed the work of every surgeon serving in the
area at either Washoe Medical Center or St. Mary's Hospital, and knew the standard of
conduct of surgeons and orthopedic surgeons practicing in said area; that affiant was the
anesthesiologist for Bernard Lockaet during his operation by Dr. Maclean; and that, in his
opinion, the preoperative preparations to guard against infection were excellent in that
instance, as were the methods selected by Dr. Maclean to reduce the fracture, and that the
same were in accordance with the standard of conduct of surgeons and orthopedic surgeons
practicing in Reno, Nevada. Affiant stated that, in his opinion, it was impossible to determine
the cause of infection or osteomyelitis in patient Lockart, and further stated that the same will
occur even though the highest degree of care is exercised by those in attendance, and that
such care was exercised in this particular instance. The affiant further stated his opinion,
based upon his review of the records, that the postoperative care and treatment of patient
Lockart by respondent doctors, and the procedures selected by said doctors to combat the
infection and osteomyelitis were proper and in accordance with the standard of conduct of
surgeons and orthopedic surgeons practicing in Reno, Nevada. The affiant stated that the
infection was recognized immediately and every precaution taken thereafter to combat it; that
it was treated vigorously; that it was affiant's belief that, even with proper technique,
approximately one percent of all surgical patients will develop infection and that, in affiant's
opinion, there was no basis in fact for Lockart's claim that respondent doctors did not meet or
comply with the standard of conduct of surgeons in Reno, Nevada, in either the diagnosis,
preoperative care, operation, and postoperative care and treatment.
conduct of surgeons in Reno, Nevada, in either the diagnosis, preoperative care, operation,
and postoperative care and treatment.
The affidavit of Eugenia LaFevere, surgical nurse, who was present at the Lockart
operation, stated the procedures followed to protect against infection before and after surgery
and that the same were followed in the surgery performed upon appellant.
Dr. Tepper's affidavit stated that he had studied the records of the Washoe Medical Center
concerning Lockart and the depositions of Drs. Cantlon and Tappan and that your affiant,
based upon his study and review of the records and depositions and his practical knowledge
of what is usually and customarily done by physicians and surgeons under similar
circumstances to those confronted by the defendants in this action, and upon his knowledge
of the standard of conduct of surgeons and orthopedic surgeons practicing throughout the
United States, states:
* * *. Dr. Tepper's affidavit enumerated the following as not in accordance with good
practice throughout the United States: the manner in which Lockart had been prepared for
surgery; the failure to delay surgery for a longer period in order to permit bodily equilibrium
to be regained; failure to irrigate with antibiotics and with a widespread incision to remove
necrotic material, following the removal of a bone fragment on September 2, 1956; the use of
physiotherapy on September 26, 1956. The affidavit also stated that the failure to take a blood
culture for a specified purpose in the early postoperative period and regularly thereafter was
not proper and in accordance with the standards of physicians and orthopedic surgeons
throughout the United States. The affidavit asserted that the internal fixation of a nail should
have been supplemented with external support of plaster spica.
Dr. Tepper's affidavit also contained two further items, namely; that, in Dr. Tepper's
opinion, the cause of the infection and osteomyelitis was due to the improper preparation of
the operative skin surface and the lack of preparation of the patient for surgery; that, in
affiant's opinion, the respondent doctors did not meet or comply with the standard of
conduct of surgeons and orthopedic surgeons practicing in the United States in either the
diagnosis, preoperative, operative and postoperative care and treatment of patient,
Bernard Lockart." Dr. Tepper's affidavit contained citations to medical treatises, without
quoting from the texts so referred to.
or comply with the standard of conduct of surgeons and orthopedic surgeons practicing in the
United States in either the diagnosis, preoperative, operative and postoperative care and
treatment of patient, Bernard Lockart. Dr. Tepper's affidavit contained citations to medical
treatises, without quoting from the texts so referred to.
Two prior decisions of this court, Corn v. French, 71 Nev. 280, 291, 289 P.2d 173, and
Percifield v. Foutz, 71 Nev. 220, 285 P.2d 130, have used language indicating, without
holding, that the test of the competency of a witness to give opinion evidence, medical or
surgical, concerning the standards prevailing in a given locality in this state, would require a
prior showing by the witness of his knowledge of such standards. This rule pertaining to the
competency of the expert witness in the fields of medicine and surgery, sometimes referred to
as the locality rule, has been liberalized in certain jurisdictions so as to provide, in effect,
that a showing of competency may be made by establishing that the witness is familiar with
the standards prevailing in the particular locality or a similar locality. Prosser, Torts 134 (2d
ed. 1955). Appellant urges that the locality rule is unduly restrictive, considering the changes
and progress that have been made in the wider and faster dissemination of information
pertaining to developments in the fields of medicine and surgery. See Anno. 8 A.L.R. 2d 772.
[Headnote 1]
It appears unnecessary to review the arguments advanced in support of the application of
the locality rule requiring that the medical witness seeking to give opinion evidence must
first show his knowledge of the standards prevailing in the particular locality. The legal
authorities indicate that it is the rule in the majority of jurisdictions. We are in accord with the
views expressed by the trial court that, in the instant case, there was no sufficient showing in
Dr. Tepper's affidavit to qualify him to give an opinion admissible in evidence that the
diagnosis, preoperative, operative and postoperative procedures taken and followed by
defendants were not in accordance with the standard of conduct of surgeons and
orthopedic surgeons practicing in Reno, Nevada. Dr. Tepper's affidavit stated that such
procedures on the part of respondents were not in accordance with those standards
throughout the United States in the particulars mentioned in his affidavit.
defendants were not in accordance with the standard of conduct of surgeons and orthopedic
surgeons practicing in Reno, Nevada. Dr. Tepper's affidavit stated that such procedures on the
part of respondents were not in accordance with those standards throughout the United States
in the particulars mentioned in his affidavit. His affidavit shows that, with the exception of
training had by him in Denver, Colorado in 1943 and in Kansas City the following year, the
affiant had received all of his other education and training and had conducted his practice
solely within the state of California. Under the argument advanced by appellants, based upon
the background referred to, Dr. Tepper would be competent to testify concerning the
standards of surgeons in communities of all sizes, urban or rural, accessible or isolated,
without regard to the relative medical facilities of the same or how widely separated from
each other, so long as within the United States. Neither practice nor presence at any time in
the community would be a prerequisite to the competency of the witness.
Under the present facts we consider that the liberalizing of the rule pertaining to
competency, based upon knowledge of standards of surgeons and orthopedic surgeons, to the
extent of making the locality the entire geographical United States would, in effect, constitute
such an extensive and unjustifiable relaxation of the locality rule as to amount to an
abandonment of the same. Even though under certain circumstances and in the furtherance of
justice a trial court might, in the exercise of its discretion, relax the locality rule so as to
permit competency of an expert witness to be established by a showing of knowledge of
standards in a similar rather than the same locality, this would in no way constitute a
recognition of the principle here contended for by appellant.
Appellant urges error on the part of the trial court in refusing to strike the affidavits of Drs.
Cantlon and O'Brien, and Eugenia LaFevere, surgical nurse. These affidavits conform with
the requirements of NRCP, Rule 56, subd. (e). Further, appellant stipulated that the affidavits
might be considered in support of respondents' motion for summary judgment.
the affidavits might be considered in support of respondents' motion for summary judgment.
[Headnote 2]
The affidavits of Drs. Cantlon and O'Brien referred to each of such doctors having studied
the medical records of Washoe Medical Center concerning appellant Lockart and the
depositions of the respondent doctors as a basis for certain opinions expressed by each
affiant. Upon oral argument appellant urged error on the part of the trial court in permitting
respondents to use the depositions in support of respondents' motion for summary judgment.
Our attention was not directed to any such prior objection having been made in the trial court.
The depositions of respondent doctors were taken at the instance of appellant. Each was an
adverse party and each was called as an adverse witness by appellant. The surgical nurse,
whose deposition was taken by appellant, produced the medical records of appellant Lockart
and photostatic copies of the same. These records were, of course, available to all parties to
the action. The parties having stipulated that the affidavits of the doctors, which referred to
the depositions, might be used by respondents, we find no merit in the contention now made
by appellant that such use of the depositions by respondents constituted error.
Badt, C. J., concurring:
I agree that under the generally recognized majority rule Dr. Tepper was not competent to
testify that the several acts and omissions of respondents were not in accord with good
practice in the particular locality. I agree, too, that this is not a proper case in which we
should essay a re-examination of that rule. However, in view of the recognized standing of
such a hospital as Washoe Medical Center, and in view of the great advancements in
communication, publication, and general professional knowledge of medical and surgical
science over the many years since the first promulgation of such rule, I feel that this first
formal acceptance of such rule by this court should not be taken as precluding us, in a proper
case in the future, from re-examining said rule and, if necessary for the just
determination of any specific case, reconsidering and possibly departing from its general
application.
us, in a proper case in the future, from re-examining said rule and, if necessary for the just
determination of any specific case, reconsidering and possibly departing from its general
application.
McNamee, J., concurring:
I concur in the result.
The primary question involved in this appeal relates to the qualification of Dr. Tepper to
give evidence as a medical expert. Dr. Tepper's affidavit failed to show that he was familiar
with the standard of care and practice exercised by members of the medical profession either
in Reno, in neighboring towns, or in some other area where conditions were similar to those
in Reno. It was because of this omission that the trial court refused to receive Dr. Tepper's
affidavit in evidence in opposition to the motion for summary judgment.
It is to be noted that in the first cause of action contained in appellant's complaint,
appellant alleged: That the defendants above named, through their agents, servants, and
employees, did not exercise that degree of care, skill and learning ordinarily possessed and
exercised by hospitals and physicians and surgeons practicing in the same locality during said
times and places, to the present date * * *.
The second cause of action charges respondents with a failure to communicate to appellant
the risk and hazard inherent in the treatment given appellant.
The third cause of action charges respondents with negligently failing to call into
consultation other specialists and negligently entrusting the performance of the physical
examination, diagnosis, care, and treatment of appellant to unskilled and incompetent
persons.
With respect to these last two causes of action, Dr. Tepper's affidavit was silent and no
other evidence relating thereto was presented on behalf of appellant.
It appears that primarily because of the aforesaid pleadings the majority opinion herein
recognizes the so-called locality rule which bases the competency of a medical expert upon
his knowledge of the standard of care, prevailing in the particular locality.
I reach the conclusion to affirm not by establishing as a law of this state the locality rule,
but on the basis that the qualification of a medical expert to testify in a malpractice action is a
question for the sound discretion of a trial court irrespective of whether he is familiar with the
standards of care within the particular community and that its ruling will not be disturbed
upon appeal unless a clear abuse of discretion is shown. See Hundley v. St. Francis Hospital,
161 Cal.App.2d 800, 327 P.2d 131. The locality rule is meeting more and more with
disfavor by the courts due to the improvement of medical and hospital standards and the
expansion of the requirements for qualification of medical practitioners.
In commenting upon the locality rule, the court in Gist v. French, 136 Cal.App.2d 247,
288 P.2d 1003, after terming it archaic, said:
It was not without merit in former days when distances were great and the mode of travel
was in keeping with muddy lanes, swollen streams and impassable mountains; when the
means of communication were restricted to handwritten letters; when medical journals were
rare and their contents were largely concerning personalities. Today the discoveries of insulin,
iron, quinine, strychnine or the antibiotics is instantly heralded throughout the civilized world
and as speedily communicated are the methods of administering them and the symptoms for
which they are to be applied. Every great hospital in the land maintains systems for
preserving statistical information relative to the treatments of diseases and injuries, much of
which is published to the medical world in attractive journals, whereby practitioners are
equipped immediately to utilize the new remedies. The same is true with respect to all new
methods and devices of the surgical art. The ubiquity of such knowledge, the popularity of
ethical standards in every part of the nation and the uniformity of curricula in medical schools
have combined to create one community of medical practitioners out of the 48 states and the
District of Columbia.
The various recent decisions which are concerned with the competency of medical experts,
although the rules resulting therefrom appear to differ in certain cases, establish one
principle common to all which is that appellate courts endeavor to uphold the lower
courts in the exercise of their discretion in the determination of competency whenever
possible.
resulting therefrom appear to differ in certain cases, establish one principle common to all
which is that appellate courts endeavor to uphold the lower courts in the exercise of their
discretion in the determination of competency whenever possible.
____________
77 Nev. 220, 220 (1961) Richardson v. Minker
T. W. RICHARDSON AND NEVROY CORPORATION, a Nevada
Corporation, Appellants, v. WILLIAM MINKER, Respondent.
No. 4348
May 2, 1961 361 P.2d 669
Appeal from judgment of the Eighth Judicial District Court, Clark County; John C.
Mowbray, Judge.
Action on the corporation's promissory note upon which a judgment was entered in favor
of the assignee thereof by the trial court, and the corporation and the assignee appealed. The
Supreme Court, Pike, J., held that the original payee who wrote on the back of note that it
was assigned to particular individual, was an endorser who was required to pay note in event
maker refused, and the evidence sustained the finding that the payment of the note was not
contingent upon the corporation making a profit.
Judgment affirmed.
Morse & Graves, of Las Vegas, for Appellants.
Murray Posin, of Las Vegas, for Respondent.
1. Bills and Notes.
Original payee of corporation's promissory note who noted on back thereof that it was assigned to
specified individual was an endorser subject to statutory warranties including warranty that he would pay
note in case payment was refused by maker. NRS 92.070, 92.073.
2. Corporations.
Evidence sustained the finding that the payment of corporation's note was not contingent upon
corporation making profit. NRS 92.059.
OPINION
This appeal is from a judgment for $2,000 plus interest, based upon a promissory note,
entered in favor of respondent.
Appellant Richardson owned 60 percent of the corporate stock of appellant Nevroy
Corporation. On February 18, 1957 Richardson delivered to respondent Minker a negotiable
promissory note bearing the same date. Nevroy Corporation was the maker of said note, by its
terms due six months from date thereof, and Richardson was the payee named therein. Prior
to the delivery of the note to Minker, Richardson wrote the following notation on the same, I
hereby assign the within note to William Minker. (Signed) T. W. Richardson.
When the note was not paid upon maturity, Minker brought suit on the note against
Richardson as indorser and, upon order of the court, Nevroy Corporation, the maker of the
note, was subsequently joined as a defendant in the action. Defendants' answer admitted the
execution and delivery of the note to Richardson by Nevroy Corporation but, by way of
affirmative defense, denied that the note was indorsed by Richardson and alleged that said
note was delivered by Richardson to Minker without consideration of any kind.
However, there was evidence that on the date of such delivery respondent Minker
delivered to Richardson respondent's personal check payable to Richardson in the sum of
$2,000, which Richardson indorsed and caused to be deposited in the bank account of Nevroy
Corporation.
Both Richardson and Nevroy Corporation offered evidence in support of their contention
that Minker had taken the promissory note with knowledge of and subject to the condition
that said note would be paid only if Nevroy Corporation should earn profits with which to pay
the same. Appellants also sought to prove failure of consideration. In this connection
appellants produced evidence seeking to establish that Minker had purchased certain stock in
Nevroy Corporation and had also, as a stockholder, been subjected to a substantial
assessment in connection with additional corporate financing, and that the $2,000 paid
by Minker to Richardson was on account of these obligations, with Richardson acting as a
mere conduit for the transmission of the funds from Minker to the corporation.
a stockholder, been subjected to a substantial assessment in connection with additional
corporate financing, and that the $2,000 paid by Minker to Richardson was on account of
these obligations, with Richardson acting as a mere conduit for the transmission of the funds
from Minker to the corporation. Also there was evidence that, as Nevroy Corporation was
insolvent, payment of the note from corporate profits would not be made.
Richardson contended that the writing placed on the note, including his signature, was a
mere assignment of his rights in the instrument and was not such an indorsement of the same
as to cause him to be personally liable.
[Headnote 1]
The trial court found that the placing of the notation upon the note by Richardson
constituted an indorsement of the same by him. NRS 92.070 provides that, A person placing
his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to
be an indorser, unless he clearly indicates by appropriate words his intention to be bound in
some other capacity. In the instant situation no such qualifying language appeared. See also
8 Am.Jur., Bills and Notes, sec. 320, p. 55. As an indorser of the negotiable promissory note
Richardson was subject to the warranties set forth in NRS 92.073, which included the
warranty that, should payment be refused, he would undertake to pay the amount of the note
to the holder. The finding of these facts, each supported by substantial evidence, in favor of
respondent, sustains the judgment entered against Richardson as indorser of the promissory
note.
[Headnote 2]
Minker testified that while he had entered into a prior arrangement for the purchase of
stock in the corporation, which had a condition for the repayment of funds similar to those
sought to be imposed upon the instant promissory note, the prior transaction was completely
separate and distinct from the present one in which he had paid Richardson $2,000 in
consideration of Richardson indorsing and delivering the promissory note to Minker.
note to Minker. The trial court accepted Minker's testimony on this point and concluded that
the factual situation constituted Minker a holder in due course under the provisions of NRS
92.059. The court thereupon entered judgment in favor of Minker and against Nevroy
Corporation.
Appellants' specifications of error, seven in number, are not set out with particularity
herein for the reason that those specifications, pertaining to contended errors of law on the
part of the trial court, lack persuasiveness when it is recognized that the purported facts to
which appellants seek to relate them have in each instance been determined in a manner
adverse to appellants' contention. Each finding of fact so made by the trial court is supported
by substantial evidence.
____________
77 Nev. 223, 223 (1961) Anderson v. Havas
JUNIUS ANDERSON, Appellant, v. VIC HAVAS,
Doing Business as VIC HAVAS MOTORS, Respondent.
No. 4353
May 2, 1961 361 P.2d 536
Action wherein the trial court granted a motion to vacate and set aside a default and
judgment. The Supreme Court, McNamee, J., held that grant of motion to vacate default and
judgment, made promptly and without evidence of intent to delay proceedings, would not be
reversed by reviewing court in absence of clear showing of abuse of discretion, the record
failing to disclose all evidence considered by the lower court.
Affirmed.
Lester H. Berkson and James H. Phillips, of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondent.
Reviewing court could not assume that lower court had been guilty of abuse of discretion in granting
motion to vacate default and judgment where evidence, other than affidavits, was not in record.
Grant of motion to vacate default and judgment, made promptly and without evidence of intent to delay
proceedings, would not be reversed by reviewing court in absence of clear showing of abuse of discretion,
the record failing to disclose all evidence considered by lower court.
OPINION
This is an appeal from an order vacating and setting aside default and judgment based
thereon.
Summons was served upon defendant (respondent herein) on May 27, 1960. Respondent
had to and including June 16 in which to appear in the action. Upon his failure to do so his
default was entered June 17, 1960 and on June 21, 1960 a judgment based on said default was
entered. On June 21 respondent filed his motion to vacate said default and judgment because
of inadvertence, surprise, or excusable neglect and said motion was granted on July 1,
1960. In support of his motion the affidavit of respondent's attorney, Calvin C. Magleby, and
two affidavits of respondent were received in evidence and, in addition thereto, the oral
testimony of Calvin L. Magleby.
The nature of Mr. Magleby's oral testimony does not appear in the record on appeal. His
affidavit states that either on May 27 or May 31 respondent phoned him, stating that he had
been served with the summons and complaint in this action and that he was sending the same
to Mr. Magleby for him to defend the action on respondent's behalf; that no record in Mr.
respondent's behalf; that no record in Mr. Magleby's office shows that these papers were ever
delivered there; and that the failure to answer the complaint was solely the result of said
papers having been lost or misplaced.
The first affidavit of respondent states that shortly after being served with the papers on
May 27, 1960 he communicated with his attorney, Mr. Magleby, and sent the papers to him;
and that I am informed and believe the aforesaid copy of the summons and complaint never
reached said Calvin C. Magleby or his office.
The second affidavit of respondent states that he sent the summons and complaint to Mr.
Magleby by messenger along with other papers and that said summons and complaint were
lost by said messenger while traveling from affiant's place of business to Mr. Magleby's
office; and that the loss of said summons and complaint were not discovered until after June
17, 1960.
A copy of respondent's proposed answer containing in legal effect a general denial of the
material allegations in the complaint was attached to respondent's second affidavit.
[Headnote 1]
It is unnecessary to determine whether the aforesaid affidavits were legally sufficient to
constitute a showing of inadvertence, surprise, or excusable neglect or whether respondent's
proposed answer is sufficient to constitute a defense on the merits for the reason that the
court's decision was based not only upon said affidavits but also upon the oral testimony of
Mr. Magleby which is not before this court. We do not know what evidence in addition to
said affidavits was considered by the lower court which resulted in the exercise of its
discretion to set aside the default and judgment and in the absence thereof we cannot assume
that the lower court was guilty of an abuse of discretion. See Nelson v. Sierra Construction
Corp., 76 Nev. 257, 352 P.2d 125; State ex rel. Lyon v. Lyon, 75 Nev. 495, 346 P.2d 709.
Under such circumstances the lower court's action is presumed to be valid. See Bond v.
Thruston, 60 Nev. 19, 98 P.2d 343, 100 P.2d 74.
[Headnote 2]
Inasmuch as application for relief was promptly made and there was no evidence of intent
to delay proceedings and the record having failed to disclose all of the evidence considered by
the lower court in the exercise of its discretion, our recent decision in Blakeney v. Fremont
Hotel, Inc., 77 Nev. 191, 360 P.2d 1039, 1041, is controlling. In that case we said:
The true significance of the decisions in this state, some of which uphold the granting of
the motions to open default and some of which uphold the denial of such motions, is that this
court will affirm the action of the lower court in the exercise of its discretion unless there is a
showing of a clear abuse thereof.
Judgment affirmed.
Pike, J., concurs.
Chief Justice Badt did not participate in the consideration or determination of this appeal,
and both parties stipulated to the submission of the appeal to Justices Pike and McNamee.
____________
77 Nev. 226, 226 (1961) Shephard v. Gebo
In the Matter of the Estate of ROY FREDERICK KRUKENBERG,
Also Known as ROY F. KRUKENBERG, Deceased.
JANELLE SHEPHARD, Appellant v.
GILBERT GEBO, Respondent.
No. 4370
May 4, 1961 361 P.2d 537
Appeal from the Fifth Judicial District Court, Nye County; Peter Breen, Judge.
Proceeding for probate of a holographic will and a codicil. From an order of the lower
court admitting the will and codicil to probate and appointing an administrator with the will
annexed, the contestant appealed. The Supreme Court, McNamee, J., held that where the
testator executed a holographic will leaving all his property to his sister and subsequently
executed a codicil providing that in case he should remarry, all his property should be
turned over to his wife instead of his sister and leaving to his daughter the sum of $1,
testator remarried and subsequently was divorced and his divorced wife agreed to waive
any interest under the will, the codicil revoked the gift to the sister, but did not revoke the
will and the will and codicil were entitled to admission to probate.
testator executed a holographic will leaving all his property to his sister and subsequently
executed a codicil providing that in case he should remarry, all his property should be turned
over to his wife instead of his sister and leaving to his daughter the sum of $1, testator
remarried and subsequently was divorced and his divorced wife agreed to waive any interest
under the will, the codicil revoked the gift to the sister, but did not revoke the will and the
will and codicil were entitled to admission to probate.
Affirmed.
Diehl & Recanzone, of Fallon, for Appellant.
William P. Beko, of Tonopah, and Clifton Young, of Reno, for Respondent.
1. Wills.
Where testator executed holographic will leaving all property to his sister and subsequently executed
codicil providing that in case he should remarry all property should be turned over to wife instead of sister
and leaving to daughter sum of $1, testator remarried and subsequently was divorced, and divorced wife
agreed to waive any interest under will, codicil revoked gift to sister but did not revoke will and will and
codicil were entitled to admission to probate.
2. Wills.
An inconsistent disposition by codicil may impose condition on gift which was unconditional and
absolute under original will.
3. Wills.
Fact that wife declined to be heir under codicil did not revive gift to sister contained in will and revoked
by inconsistent provision in codicil giving property to wife instead of sister. NRS 133.130.
4. Wills.
If subject has been disposed of in will and same subject is again disposed of, either in subsequent will or
in codicil, and if there are, apart from description of subject, words expressly or impliedly effecting
revocatin, revocation will stand whatever the fate of subsequent disposition. NRS 133.130.
5. Wills.
Until remarriage of tesator only effect of codicil providing that in case testator should remarry all
property should be turned over to wife instead of sister was to republish original holographic will leaving
residue of property to sister.
6. Wills.
Codicil does not revoke will unless testator's intention so to revoke is clear.
7. Wills.
Codicil conditionally revoking provision of will became effective upon happening of condition, and its
becoming effective was not delayed until testator's death. NRS 133.120.
8. Wills.
Doctrine of dependent relevant revocation would not be applied to save provision of holographic will
giving all property to sister, but revoked by codicil, providing that in event of remarriage property should
go to wife rather than sister, and testator's subsequent remarriage, where codicil continued as valid
testamentary expression for more than 15 years and was not induced by mistake, fraud or the like, even
though testator was subsequently divorced and wife agreed as part of divorce settlement to waive claim
under will. NRS 133.120.
OPINION
On October 21, 1959 Gilbert Gebo filed a petition for letters of administration with the
will annexed in the court below and presented therewith a will of decedent, Roy F.
Krukenberg, dated June 5, 1943, together with a codicil thereto, dated June 1, 1944.
Thereafter, Janelle Shephard, appellant herein, filed a contest to the probate of said will and
codicil. After hearing the contest, the lower court, on August 8, 1960, made an order
admitting the will and codicil to probate and appointing Gilbert Gebo administrator with the
will annexed.
Appeal herein is from said order of August 8, 1960.
The will of June 5, 1943 was holographic and, after expressly revoking all wills
theretofore made, the testator named his sister, Bertha Vernanda McManus, now Bertha V.
Gebo, executrix and stated that: it is my wish and I do hereby request that she may not be
required to give any bond or security as such executrix, and that she may settle my estate in
her own way and sell any or all of the real or personal property at public or private sale as she
may think best, and pay the debts without being compelled to account to the Probate or any
other court. He further directed that his executrix pay all of his just debts and funeral
expenses and that he be placed in a companion crypt in the Forest Lawn Mausoleum beside
his wife, Marie Krukenberg. The will further provided that after the payment of such funeral
expenses and debts, I give, devise and bequeath unto my beloved sister Bertha Vernanda
McManus * * * all of my property, real and personal, and effects of every nature which I
either have, may die possessed of or may be entitled to."
such funeral expenses and debts, I give, devise and bequeath unto my beloved sister Bertha
Vernanda McManus * * * all of my property, real and personal, and effects of every nature
which I either have, may die possessed of or may be entitled to.
The testator added to said document, on the second page thereof, the following
holographic codicil:
June 1, 1944.
In case that I should remarry, all of my properties and anything that I may own
including my Bank Account shall be turned over to my wife instead of the above
mentioned Executrix. To my Daughter Janelle Krukenberg Shephard I wish to leave the
sum of One Dollar.
Roy Krukenberg
On June 17, 1944 said testator married Ruth Krukenberg. This marriage was dissolved by
divorce on September 14, 1959. Prior to such dissolution, on August 24, 1959 a property
settlement agreement was executed by Roy and Ruth Krukenberg wherein each waived any
interest in the other's estate whether by the laws of succession or under a will. This agreement
was ratified and confirmed by the divorce court. Testator died October 3, 1959. Janelle
Shephard is the sole surviving child.
Bertha V. Gebo renounced her right to act as executrix under the original will and
requested by a writing filed in the court below that administration be granted to her husband,
Gilbert Gebo.
The foregoing facts present several difficult legal questions. At this time we are concerned
with only the admission to probate of the will and codicil and the appointment of the person
entitled to administer the estate.
Appellant contends that by virtue of said codicil the original will was revoked upon the
marriage of Roy and Ruth Krukenberg; that the codicil itself was revoked as a result of the
property settlement and divorce; that by reason of such revocations the decedent died
intestate, and as a result of intestacy she is the sole heir of the deceased and entitled to have
letters of administration issue to her.
It is respondent's contention that the will and codicil could not take effect until the date of
the death of decedent on October 3, 1959, at which time the codicil was ineffective and,
therefore, the original will was not affected thereby.
The effect of the codicil upon the original will is considered first.
[Headnote 1]
There can be no doubt that the remarriage of the testator after the execution of the codicil
revoked the gift to his sister.
[Headnote 2]
If the codicil had been executed at the same time and as part of the original will, the gift to
the sister would have been conditional and effective only in the event the testator did not
remarry. We see no reason why the result should be different when the gift to the sister is
made conditional by a codicil of subsequent date. An inconsistent disposition by codicil may
impose a condition on a gift which was unconditional and absolute under the original will. In
re Berkel's Will, 184 Misc. 711, 55 N.Y.S.2d 279. The language of the codicil contains an
express revocation of the gift to the sister effective upon and at the time of testator's
remarriage. Nothing therein expressly revokes her designation as the executrix or any other
part of the original will. To hold otherwise would produce the absurd result of nullifying even
the provision in the original will revoking all wills theretofore made. It is apparent from the
detailed duties imposed upon his sister as executrix that the testator had complete faith and
trust in her and felt he could rely upon her to carry out the provisions of his testamentary
expressions. Even in the codicil he refers to her as the above mentioned Executrix rather
than as his sister.
[Headnote 3]
The fact that the wife at some time after her marriage to the testator declined to be an heir
does not revive the revoked gift to the sister any more than the wife's death would have
during the lifetime of the testator.
1
See Dependent Relative Revocation, by Francis T.
____________________

1
Is a dead man revived by killing his slayer? Quotation from Harwell v. Lively, 30 Ga. 315, 76 Am.Dec.
649.
See Dependent Relative Revocation, by Francis T. Cornish, 5 So.Cal. L.R. 273, Note 2. Once
a will or gift therein is revoked it cannot be revived except by republication or re-execution.
NRS 133.130.
[Headnote 4]
If when a subject has been disposed of in a will and the same subject is again disposed of,
either in a subsequent will or in a codicil, then if you can find, apart from the description of
the subject, words expressly or impliedly effecting revocation, that revocation will stand,
whatever the fate of the subsequent disposition * * *. Ward v. Van der Loeff, [1924] A.C.
653, 671, 93 L.J., Ch. 397, 131 L.T.R. 292, 68 S.J. 517, 40 T.L.R. 493 (H.L. 1924).
[Headnotes 5, 6]
Until the remarriage of the testator the only effect of the codicil was to republish the
original will. Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326;
Ward v. Curry's Ex'r, 297 Ky. 420, 180 S.W.2d 305; Fidelity & Columbia Trust Co. v.
Vivian, 294 Ky. 390, 171 S.W.2d 987. If, after making the codicil, the testator had died
without remarrying, the former will would not, in any way, have been affected. The minor
child, however, would have taken the nominal bequest in the codicil rather than as a
pretermitted heir under the original will. See In re Carl Ray, 69 Nev. 204, 245 P.2d 990,
which construes the Nevada law then in existence. His remarriage merely effected a change
of beneficiary. A codicil does not revoke a will unless testator's intention so to revoke is clear.
Ward v. Curry's Ex'r, supra; Fidelity & Columbia Trust Co. v. Vivian, supra. That there was
no intent by the codicil to revoke the entire original will appears from the act of creating the
codicil on the same paper as the original will. Revocation of a former will is presumed where
a second will is executed. On the other hand, confirmation of the original will is presumed
where a codicil thereto is executed. 51 A.L.R. 692. In accordance with the foregoing
principles a codicil is construed with the will as a part thereof, and as making one instrument
with the will, so that the provisions of the two will be reconciled as far as can be done with a
reasonable construction."
be done with a reasonable construction. 1 Page, Wills sec. 466 (3d ed. 1941).
[Headnote 7]
Contrary to the contention of respondent aforesaid that the will and codicil could not take
effect until the death of decedent on October 3, 1959, a codicil valid when made which
expressly revokes a provision of a will unconditionally, takes effect as of the date of its
execution, while a conditional revocation becomes effectual upon the happening of the
condition. 1 Page, Wills sec. 476 (3d ed. 1941). This rule is a result of NRS 133.120 which is
derived from the English Statute of Victoria. See 1 Page, Wills sec. 474 (3d ed. 1941).
We thus conclude that the codicil revoked the original will pro tanto only. 1 Page, Wills
sec. 464 (3d ed. 1941). The lapsed gift in the codicil nullified the codicil only to the extent of
such gift. The will and codicil therefore are entitled to admission to probate as the validly
executed testaments of the decedent.
[Headnote 8]
Because the codicil was validly executed and its continuance as a valid testamentary
expression lasted for more than 15 years, and the testator was not induced to revoke the
original gift to his sister by mistake, fraud, and the like, the question of dependent relevant
revocation does not arise. Worcester Bank and Trust Co. v. Ellis, 292 Mass. 88, 197 N.E.
637; Estate of Nelson, 183 Minn. 295, 236 N.W. 459.
Appellant has not questioned the right of respondent to act as administrator with the will
annexed in the event the will is admitted to probate. Inasmuch as appellant is not a resident of
the State of Nevada, she would not be entitled to letters of administration in any event. NRS
139.010.
Affirmed. No costs are allowed.
____________
77 Nev. 233, 233 (1961) Williams v. Lamb
G. P. WILLIAMS, Appellant, v. SHELDON W.
LAMB, Respondent.
No. 4380
May 17, 1961 361 P.2d 946
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Replevin action to recover possession of tractor. The trial court entered a judgment for the
plaintiff and the defendant appealed. The Supreme Court, McNamee, J., held that the
evidence sustained the finding that the defendant had fraudulently induced the plaintiff to sell
the tractor, that the defendant had warranted and guaranteed the corporate stock given in
consideration for the sale and that the stock was worthless, and rental value of tractor during
period of wrongful possession was a proper basis for damage award.
Affirmed.
Maurice J. Sullivan, of Reno, for Appellant.
Streeter and Sala, of Reno, for Respondent.
1. Corporations; Sales.
Evidence sustained findings that defendant had fraudulently induced plaintiff to sell his tractor, that
defendant warranted and guaranteed corporate stock transferred as purchase price, and that stock was
worthless.
Judgment based upon conflicting evidence will not be disturbed if there is any substantial evidence to
support it.
3. Sales.
It was unnecessary for seller of tractor for corporate stock to restore worthless stock before seeking
rescission by taking possession of tractor.
4. Sales.
Deposit in court of stock certificate given as purchase price for tractor was sufficient tender by seller who
sought to replevy tractor.
5. Pleading.
Allegations in pleading admitted by adversary need no evidence to support court's finding of their truth.
6. Sales.
Rental value was proper basis of damages for use of property sold by fraudulent inducements of buyer.
OPINION
This is a replevin action to recover possession of an Oliver tractor alleged to be of the
value of $10,000. Respondent denies the allegation of ownership and by way of counterclaim
he alleges that prior to June 3, 1958 he was the owner of said tractor and that due to the fraud
of appellant, he was induced to part with the title of said tractor in exchange for 25,000 shares
of worthless corporation stock; that upon his discovery of the fraud, he rescinded the sale and
took possession of the tractor. For a second counterclaim respondent alleged that he agreed to
sell the tractor to appellant for $25,000, payable within 30 days, and that the sum of $25,000
was never paid. Appellant's reply denies the matters contained in the counterclaims.
After a trial before the court without a jury, the court formally found that respondent was
the owner of the tractor; that the value of the same was $19,000; that in order to induce
respondent to sell said tractor, appellant in connection with other misrepresentations falsely
and fraudulently stated to respondent that the corporate stock mentioned above would have a
ready market value of at least $1 a share within 30 to 90 days; that said stock in fact was
worthless and known by appellant at the time to be worthless; that appellant intended to
transfer his personal stock as distinguished from stock held by the corporation to respondent
in exchange for title to the tractor so that the tractor would become his personal property and
not the property of the corporation, and he did this thereafter in his capacity as secretary of
the corporation; that appellant had represented to respondent that ownership of the tractor by
the corporation would necessarily increase the corporation assets and enhance the value of the
corporate stock; that after discovery of the fraud, respondent rescinded the sale and took
possession of the tractor and has been willing ever since to return the 25,000 corporation
shares to appellant; that since October 6, 1959, by virtue of the provisional remedy of claim
and delivery, the sheriff took possession of said tractor from respondent and respondent has
been deprived of possession of the same for a period of 9 months and 21 days; and that
the rental value of said tractor as admitted by both parties in the pleading is the sum of
$1,000 per month.
respondent and respondent has been deprived of possession of the same for a period of 9
months and 21 days; and that the rental value of said tractor as admitted by both parties in the
pleading is the sum of $1,000 per month.
Based on said findings, the trial court entered judgment rescinding the sale and ordering
appellant to return the tractor to respondent or pay respondent the sum of $19,000. It was
further ordered therein that appellant pay respondent the sum of $9,966.66, being the rental
value of said tractor, and the said 25,000 shares of corporate stock theretofore deposited with
the court were ordered returned to appellant. Appeal is from said judgment.
Errors assigned are: (1) in finding that appellant fraudulently induced respondent to sell
the tractor; (2) in finding that respondent rescinded the sale in view of the fact that respondent
did not return or tender the stock at the time he took possession of the tractor; (3) in finding
that appellant warranted and guaranteed the stock; (4) in finding that the stock was worthless;
and (5) in awarding damages in the sum of $9,966.66 to respondent.
[Headnotes 1, 2]
Errors 1, 3, and 4 above pertain purely to factual matters and the testimony of respondent
alone, which substantiates such findings, is sufficient to sustain them although other evidence
in the record corroborates respondent's testimony. Nevertheless appellant argues that the
judgment should be reversed because such evidence was not sufficient, by reason of
evidence to the contrary, to sustain the judgment. Upon conflicting evidence, if there is any
substantial evidence to support the judgment, it will not be disturbed on appeal. Barreth v.
Reno Bus Lines, 77 Nev. 196, 360 P.2d 1037.
[Headnotes 3, 4]
With respect to assigned error 2, the evidence shows that respondent in May 1959 when he
took possession of the tractor did not return or offer to return the stock certificate which
represented the 25,000 corporate shares. In view of the trial court's finding that the stock was
worthless it was unnecessary for the respondent in seeking rescission by taking possession
of the tractor to restore or offer to restore any valueless consideration.
in seeking rescission by taking possession of the tractor to restore or offer to restore any
valueless consideration. Schlake v. McConnell, 83 Cal.App. 725, 257 P. 175. Furthermore,
when appellant commenced this action for replevin, respondent had the right to set up
rescission as a defense thereto which he in fact did in his answer, and at that time he offered
to return the stock to appellant. At the trial he deposited the stock certificate in court. This in
itself constitutes a sufficient tender. Tyner v. Stults, 102 Wash. 168, 172 P. 850. The fact that
he alleged in such pleading a rescission already accomplished does not change the nature of
such defense. Ito v. Watanabe, 213 Cal. 487, 2 P.2d 799.
Appellant's argument in support of his fifth assigned error relates to the award of damages
to respondent for the rental value of the tractor in the absence of evidence to support such
award.
Appellant alleged in his complaint herein that the rental value of the tractor is $1,000 per
month. This allegation was admitted by respondent in his answer. Likewise in his first
counterclaim respondent alleged that the rental value of the tractor was $1,000 per month and
appellant in answer thereto expressly admits this allegation.
[Headnote 5]
Allegations in pleadings admitted by an adversary need no evidence to support the court's
finding of their truth. Boydstun v. Jacobs, 38 Nev. 175, 147 P. 447; Frances-Mohawk v.
McKay, 37 Nev. 191, 141 P. 456.
[Headnote 6]
Appellant does not question the power of the trial court to award damages for the use
value of property during the period a person who is entitled to its possession has wrongfully
been deprived thereof. Rental value may be a proper basis in determining the value of use.
Giannini v. Wilson, 43 N.M. 460, 95 P.2d 209; Stanley W. Smith, Inc., v. Pilgrim, 117
Cal.App. 244, 3 P.2d 573.
There being no merit in any of the assignments of error, the judgment must be and is
hereby affirmed.
Pike, J., concurs.
Chief Justice Badt did not participate in the consideration or determination of this appeal,
and both parties stipulated to the submission of the appeal to Justices Pike and McNamee.
____________
77 Nev. 237, 237 (1961) McKenzie v. Shelly
J. C. MCKENZIE, HOWARD F. McKISSICK, Sr., ROBERT CLARKSON, MIKE
MIRABELLI and DICK STREETER, the Duly Elected, Qualified and Acting Commissioners
of the County of Washoe, State of Nevada, Constituting the Board of County Commissioners
of Said County, and VICTOR J. TEGLIA and NELLIE TEGLIA, Appellants, v. CARL
SHELLY, WM. E. PETTIS, WM. GARELL, GEORGE BELL, FARREL L. ROSS,
RICHARD W. ROCK, F. J. CARLSON, ORELIA F. RINEHART, ROBERT E. ADAMS,
HERMAN PEAVEY, JAMES L. BANKS, BOBBY CLEMENTS, S. J. DI MAGGIO,
PAULINE DI MAGGIO, ALFRED DUNCAN, HELEN B. DUNCAN, GEO. A.
PROBASCO, INC., MILO HERSTINE, ROWENA HERSTINE, JACK LEMIRE, AUDREY
LEMIRE, PAUL E. LESSENGER, RUBY L. LESSENGER, C. EMMETT LEWIS, DORIS
M. LEWIS, EUGENE D. MOORE, ANDELLA M. MOORE, JOHN T. MOWBRAY,
REALTY INVESTMENT CORPORATION, GERALD ROCK, DOROTHY W. ROCK, R.
N. SMITH, LETHA M. SMITH, GEORGE W. WILSON, THEODORA C. WILSON and C.
E. WINSLOW, Respondents.
No. 4410
May 17, 1961 362 P.2d 268
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action challenging determination of Board of County Commissioners, acting as a zoning
board of appeals, in granting an application for change of land use along highway from
residential to light industrial.
highway from residential to light industrial. The lower court entered judgment directing the
board to rescind its action and change the classification back to residential, and the board
appealed. The Supreme Court, McNamee, J., held that the evidence was sufficient to sustain
the board's determination.
Reversed and remanded with directions.
(Petition for rehearing denied June 5, 1961.)
William J. Raggio, District Attorney, and Eric L. Richards, Deputy District Attorney,
Washoe County, for Appellants County Commissioners.
Ernest S. Brown and Jack I. McAuliffe, of Reno, for Appellants Victor J. Teglia and Nellie
Teglia.
Belford, Anglin and Brown, of Reno, for Respondents.
1. Zoning.
Courts are not empowered to substitute their judgment for that of zoning boards when boards' actions are
supported by substantial evidence.
2. Zoning.
Board of county commissioners, acting as a zoning board of appeals, in determining a change of land use,
could take into consideration oral testimony adduced at public hearing, maps of general zoning plan,
communications submitted to board, as well as its own members' knowledge of existing conditions. NRS
278.260.
3. Zoning.
Evidence was sufficient to sustain determination of zoning board of appeals that area adjacent to heavily
traveled highway should be zoned from residential to light industrial.
4. Zoning.
Presumption of validity attaching to local zoning enactments also includes amendments thereto which
constitute rezoning.
5. Zoning.
Zoning is a matter within sound legislative action under the police power, and such legislative action
must be upheld if facts do not show that bounds of discretion have been exceeded.
OPINION
On October 21, 1957 the board of county commissioners of Washoe County enacted an
ordinance establishing a land use plan for the unincorporated area of Washoe County
which ever since November S, 1957 has been in effect.
a land use plan for the unincorporated area of Washoe County which ever since November 8,
1957 has been in effect. The plan classified the land involved in this action as E-1 or
residential. In 1958 Oddie Boulevard, a Reno-Sparks highway, was constructed and it
constitutes the northern boundary of said land.
On October 5, 1959 Victor Teglia, one of the appellants herein, made application to the
regional planning commission of Reno, Sparks, and Washoe County for a change of land use
which if granted would classify said property as C-1 or light commercial. After a hearing, the
regional planning commission made its ruling recommending denial of the application. Teglia
thereupon appealed to the board of county commissioners from said ruling. After a public
hearing, the board of county commissioners overruled the recommendation of the regional
planning commission and on January 5, 1960 granted Teglia's application for change of land
use.
Respondents commenced this action on February 9, 1960, naming Teglia, his wife, and the
board of county commissioners as defendants. The complaint alleges that the action of the
board was arbitrary, capricious, unreasonable and in excess of its jurisdiction and authority
in that: (1) there was no evidence produced at said hearing before said Board which justified a
change in the then-existing land use classification of said real property; (2) said Board in
effect granted a variance rather than a change in land use classification, which action was in
excess of its jurisdiction and authority. Respondents further allege that they will suffer
irreparable injury if said land use classification is changed.
Pursuant to the prayer of said complaint, the lower court entered judgment directing the
board of county commissioners to rescind its action overruling the recommendation of the
planning commission, adjudged such action of the board to be null and void, and ordered said
land be classified as E-1.
Appeal is from said judgment.
Two errors are assigned but, inasmuch as we have concluded that the judgment must be
reversed, only one requires consideration.
Appellants contend that the respondents have failed to prove that the action of the board of
county commissioners was improper and that therefore the judgment of the trial court is
erroneous.
[Headnote 1]
Respondents recognize the general rule that a court is not empowered to substitute its
judgment for that of a zoning board, in this case the board of county commissioners, when the
board's action is supported by substantial evidence. They argue however that the only
evidence supporting a change of use is the statement by appellant McKenzie hereinafter set
forth, and that this evidence, if it can be termed evidence, is completely refuted. This
argument in our opinion is without merit.
Under NRS 278.260, changes of the land use plan may be made by the governing body,
which in this case is the board of county commissioners, after a public hearing in relation
thereto upon notice. The record shows that at the public hearing which was properly noticed,
eight witnesses testified against and eleven in favor of the requested amendment of the land
use plan. All persons wanting to speak for or against the requested amendment were given an
opportunity to do so.
[Headnote 2]
It would serve no purpose to detail the nature of all the evidence presented at the public
hearing. It does appear from the record that the board's action was based not only on such oral
evidence, but also upon a map of the general plan and upon its own knowledge of existing
conditions. Also, over one thousand signed written communications were submitted to the
board.
Appellant McKenzie, a member of the board of county commissioners, stated for the
record:
[T]he last two weeks I have spent a lot of time down in the vicinity of Oddie Boulevard at
Twelfth Street, your Sullivan Lane, and your Fifteenth Street, and Oddie Boulevard itself, at
different times of the day, just to see what the traffic situation down there was, so I am
convinced that the Oddie Boulevard has a terrific amount of traffic, and it is also very noisy
traffic, and I cannot conceive of anyone wanting to build a residence, residential home
alongside Oddie Boulevard, either side of it.
and I cannot conceive of anyone wanting to build a residence, residential home alongside
Oddie Boulevard, either side of it. I cannot see how it can be sold for residential purposes
with the noise on one hand, and because of the danger to their children, if they happen to have
children in the family.
On the other hand, we have to face the fact that the day will come when we have to
change the land use down there. It cannot be used for residential. I just cannot see it being
used for residential, and I do not see why we should wait any longer to change that land use,
considering the fact that this shopping center, if it is built, will not be built for four or five
years. By that time, that area will be built solid, and those people down there are certainly
entitled to have the convenience of a shopping district in their area.
It was proper for the board to consider the said remarks of McKenzie. In the case of
Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27, 32, one factor in determining the validity of the
zoning change was the familiarity of the county commissioners with the county and the
neighborhood. Certainly, on the evidence before them, and the facts known to them, the
County Commissioners as a legislative body could honestly, soundly, and fairly conclude that
the public need required the amendment to the zoning map.
[Headnote 3]
Evidence in favor of amending the land use plan showed that a change was desirable
because the stores in Sparks, which are the closest to the land in question, were nevertheless,
by reason of their distance, inconvenient and for such reason inadequate for the needs of this
particular area and that prospective purchasers of land to be subdivided nearby favored
proximity to shopping facilities. With a change of land use from residential to light
commercial, shopping centers for this area would be permissible. We see no abuse of
discretion on the part of the board of county commissioners in concluding that the land in
question has become more suitable for commercial development than for residences.
The lower court had before it the same evidence as the board.
the board. Its function was not to conduct a trial de novo, but only to ascertain as a matter of
law if there was any substantial evidence before the board which would sustain the board's
action. The function of this court at this time is the same as that of the lower court. See
Nevada Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852.
[Headnote 4]
The presumption of validity which attaches to local zoning enactments includes also
amendments thereto which constitute rezoning. 8 McQuillin, Municipal Corporations, sec.
25.93, p. 212 (3d rev. ed. 1957); Wakefield v. Kraft, supra; see Viale v. Foley, 76 Nev. 149,
350 P.2d 721.
In City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118, 359 P.2d 743, 745,
we held that the action taken by the city council in its administrative capacity, upon the
matter properly before it, would not warrant interference by the trial court except where there
was a manifest abuse of discretion.
A trial court should uphold discretionary action of a municipal body to the same extent as
an appellate court upholds the discretionary action of a trial court. See State v. Coleman, 67
Nev. 636, 224 P.2d 309.
[Headnote 5]
Under the police power, zoning is a matter within sound legislative action and such
legislative action must be upheld if the facts do not show that the bounds of that discretion
have been exceeded. Keller v. City of Council Bluffs, 246 Iowa 202, 66 N.W.2d 113, 51
A.L.R. 2d 251.
Because the board's action is clothed with the presumption of validity, and is supported by
substantial evidence, in the absence of a showing of an abuse of its discretion, the lower court
was without power to nullify the same.
The trial court in its opinion stated that the case of Cresskill v. Dumont, 15 N.J. 238, 104
A.2d 441, is completely determinative of the issues raised by the present action even
though the evidence in support of the board's action is considered sufficient as to form.
With this conclusion we do not agree. In the Cresskill case the amendment to the zoning
ordinance was held to be spot zoning and invalid.
case the amendment to the zoning ordinance was held to be spot zoning and invalid. The test
of spot zoning is whether the amendment was made with the purpose of furthering a
comprehensive zoning scheme or whether it was designed merely to relieve the land of a
restriction which was particularly harsh upon that particular land. The Cresskill case is
distinguishable from the matter presently before us in that the court there found that the
ordinance was in effect a special exception or variance and not in accordance with a
comprehensive plan. In the present case the decision of the board to change the classification
of the particular land from residential to light commercial was consistent with the board's
determination to recognize the necessity of a commercial growth in this area. In such
circumstances the judiciary must not interfere. See Kozesnik v. Montgomery Township, 24
N.J. 154, 172 et seq., 131 A.2d 1; 8 McQuillin, Municipal Corporations, sec. 25.84 (3d rev.
ed.1957).
Judgment is reversed and the case remanded with directions that the lower court enter
judgment for the defendants.
____________
77 Nev. 244, 244 (1961) Marble v. Wright
In the Matter of the Determination of the Relative Rights of Claimants and Appropriators of
the Waters of the Humboldt River System and Its Tributaries.
JOHN M. MARBLE, ROBERT E. MARBLE, and PETER E. MARBLE, Doing Business as
MARBLE RANCHES, Appellants, v. WILLIAM B. WRIGHT, Respondent.
No. 4368
May 23, 1961 362 P.2d 265
Appeal from the Sixth Judicial District Court, Humboldt County; Merwyn M. Brown,
Judge.
Proceeding for a determination of water rights. The lower court granted a motion to correct
a purported clerical error in the decree which had been entered in the matter, and an appeal
was taken. The Supreme Court, McNamee, J., held that omission in the decree of brackets in
description of certain lands which had been allotted water rights by being bracketed in a prior
order of determination, and a prior decree, was a clerical error, and not a judicial error, and
such error was therefore subject to correction on motion.
Affirmed.
Orville R. Wilson, of Elko, for Appellants.
Leslie B. Gray, of Reno, and Mann & Scott, of Elko for Respondents.
Doctrine of relation means that priority of water on land shall be from time appropriator first
commences a dam, flume or ditch to take water and not from day water is actually placed in use on a given
parcel of land.
2. Judgment.
A clerical error as applied to judgments and decrees is a mistake or omission by a clerk, counsel, judge
or printer which is not the result of exercise of judicial function. NRCP 60(a).
3. Judgment.
A judicial error, as applied to judgments and decrees, is one made when a court reaches an incorrect
result in intentional exercise of judicial functions, and it occurs when a judge reaches a wrong or incorrect
decision in deciding a judicial question.
4. Judgment.
Omission of brackets in description of certain lands in a decree pertaining to water rights of such lands
which had been allotted water rights by being bracketed in a prior order of determination, and a prior
decree, was clerical error, and not judicial error, and such error was therefore subject to correction on
motion. NRCP 60(a).
OPINION
In 1923 the state engineer made his final order of determination of water rights on the
Humboldt River system which was filed in the court below. Certain exceptions to the said
order were filed and hearings on these exceptions were had before Judge Bartlett whose
findings and decree were subsequently filed and entered. He made certain changes in the
order of determination and reclassified some of the lands including those involved herein.
This decree is hereinafter referred to as the Bartlett decree. In both the order of determination
and the Bartlett decree certain acreages were bracketed. With respect to the lands here in
question the order of determination used no brackets, while the Bartlett decree did use
brackets. The Bartlett decree applied the doctrine of relation to lands and waters in Elko
County, although the order of determination had not done so. Thereafter, Judge Edwards
granted a new trial on the sole issue as to whether the doctrine of relation should be applied to
claimants who had filed no exceptions to the said order of determination.
[Headnote 1]
The doctrine of relation means that the priority of water on land shall be from the time the
appropriator first commences a dam, flume, or ditch to take water and not from the date the
water is actually placed in use on a given parcel of land.
Upon such new trial, Judge Edwards held that the application of the doctrine of relation to
the said claimants by Judge Bartlett was without authority of law and void, and he entered his
decision and decree accordingly. This became known as the Edwards decree.
To the latter decision, motions for new trial were made and granted by Judge Lockhart.
Thereafter, this court granted a writ of prohibition restraining Judge Lockhart or any other
judge from proceeding with a new trial. Carpenter v. Sixth Judicial District Court, 59 Nev.
42, 73 P.2d 1310, 84 P.2d 489.
The land in question shown in the order of determination as belonging to the Union Land
and Cattle Co. was later transferred to the Marbles as shown in the Bartlett decree. Within the
last few years said land has been partitioned and is now held by several owners, appellants
owning parcels thereof and respondent owning a part.
In using brackets both the state engineer and Judge Bartlett stated that where the acreages
irrigated are bracketed with legal subdivisions, the water allotted is appurtenant to one or
more legal subdivisions or part thereof within such bracket, but limited to the aggregate
acreage and amount of water indicated for such bracket.
On April 23, 1959 respondent, one of the successors in interest of Union Land and Cattle
Co. as aforesaid, filed a motion herein to correct clerical errors in the Edwards decree in
that the brackets which were rightfully on the properties were inadvertently omitted from the
properties variously known as the Marble properties or the Union Land and Cattle Co.
properties.
Upon the hearing of said motion the lower court entered an order nunc pro tunc as of the
date of the Edwards decree correcting the Edwards decree by restoring therein to the lands in
question the brackets as they appeared in the Bartlett decree.
From this action of the lower court the present appeal is taken.
The main issue relates to the intent of Judge Edwards in failing to include brackets to the
lands here in question as had theretofore been ordered by the Bartlett decree.
The lower court found that this failure of the Edwards decree to include brackets was
due to oversight on the part of Judge Edwards, and such omission constituted a clerical
error.
Edwards decree to include brackets was due to oversight on the part of Judge Edwards, and
such omission constituted a clerical error. We have concluded that this finding is supported
by substantial evidence.
It appears from Judge Edward's affidavit in support of respondent's said motion and also
from his oral testimony in court that the new trial which resulted in the Edwards decree was
not for the purpose of readjudicating all of the matters that had been before Judge Bartlett, but
that the new trial (with certain exceptions not relevant to this appeal) concerned itself solely
with the question of whether the doctrine of relation should be afforded those claimants who
had filed no exceptions. In fact the Edwards decree expressly recites (1) that the issue
involved in the new trial was limited to the application of the doctrine of relation to the
claimants who had not contested the order of determination, and (2) that all questions of fact
presented by the record and the evidence therein were limited to the application of the
doctrine of relation as above stated.
Under these circumstances it is apparent that in all other respects the Bartlett decree,
except as to certain intervening, subsequent, or separable orders relating to the Humboldt
River adjudication, none of which pertain to the land here in question, was not intended to be
modified by the Edwards decree.
Appellants urge that if the Edwards decree is erroneous in this respect the error is not
clerical but judicial, and could only have been corrected by a proper appeal therefrom. This
same contention was unsuccessfully made in the case of Smith v. Epperson, 72 Nev. 66, 294
P.2d 362. The action there was brought to quiet title to certain real property and to recover
possession thereof. Despite the fact that one of the three defendants therein entered a
disclaimer, judgment was rendered in favor of the plaintiff against all three defendants which
contained an award of damages in the sum of $105. Thereafter, the disclaiming defendant
successfully moved pursuant to Rule 60 (a) NRCP to correct the conclusions of law and
judgment nunc pro tunc.
conclusions of law and judgment nunc pro tunc. This court in holding that the judgment could
be corrected under the provisions of said rule for the reason that the error was clerical rather
than judicial stated: 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.
[Headnote 2]
A clerical error is a mistake in writing or copying. As more specifically applied to
judgments and decrees a clerical error is a mistake or omission by a clerk, counsel, judge, or
printer which is not the result of the exercise of the judicial function. In other words, a
clerical error is one which cannot reasonably be attributed to the exercise of judicial
consideration or discretion. Wilson v. Wilson, 109 Cal.App.2d 673, 241 P.2d 281; Martin v.
Ray, 74 Cal.App.2d 922, 170 P.2d 75.
[Headnote 3]
A judicial error, on the other hand, is one made when the court reaches an incorrect result
in the intentional exercise of the judicial function. It occurs when a judge reaches a wrong or
incorrect decision in deciding a judicial question. Stevens v. Superior Court, 7 Cal.2d 110, 59
P.2d 988; Lankton v. Superior Court, 5 Cal.2d 694, 55 P.2d 1170; Liuzza v. Brinkerhoff, 29
Cal.App.2d 1, 83 P.2d 976.
[Headnote 4]
Supported by the above authorities we hold that the omission of the brackets in the
Edwards decree was a clerical error and not a judicial error.
Under Rule 60 (a) NRCP clerical errors may be corrected by the court at any time on its
own initiative or on the motion of any party.
Since the said error was clerical it is not necessary to consider the question of whether the
modification of the Bartlett decree by such omission of brackets was within the jurisdiction of
Judge Edwards.
Appellant further contends that the brackets were properly left out of the Edwards decree
because the particular land should never have been bracketed; that when they were inserted
by Judge Bartlett after they had been omitted from the order of determination, error was
committed. It appears, however, from the record that evidence was presented to Judge Bartlett
which would authorize him to determine judicially that said land should be bracketed. But
even in the absence of such evidence, a modification of the Bartlett decree is not within the
issues before us at this time.
Appellants also raise the question of laches. The record shows that respondent had no
knowledge of the absence of the brackets until 1954 when the state engineer directed the
application of the allotted water to particular land. This is understandable, because during the
time the land was under one ownership the presence or absence of brackets would not affect
the water allotment. Appellants do not contend that respondent has been guilty of laches since
1954.
Affirmed.
Pike, J., and Georgetta, D. J., concur.
Badt, C. J., being disqualified, the Governor designated Honorable Clel Georgetta, Judge
of the Second Judicial District, to sit in his stead.
____________
77 Nev. 250, 250 (1961) Bonamy v. Zenoff
GENEVIEVE BONAMY, Appellant, v.
MORITZ ZENOFF, Respondent.
No. 4355
May 31, 1961 362 P.2d 445
Action for malicious prosecution. From an adverse judgment of the lower court the
plaintiff appealed. The Supreme Court, McNamee, J., held that probable cause existed for
prosecution for disorderly conduct of employee, who refused to leave employer's premises
after being informed that she was discharged and who untruthfully stated over telephone that
employer was going out of business.
Affirmed.
Herman E. Fisher, Jr., of Las Vegas, for Appellant.
Calvin C. Magleby and Albert M. Dreyer, of Las Vegas, for Respondent.
1. Malicious Prosecution.
Probable cause existed for prosecution for disorderly conduct of employee, who refused to leave
employer's premises after being informed that she was discharged and who untruthfully stated over
telephone that employer was going out of business.
Elements of malicious prosecution, aside from termination of criminal prosecution, are want of probable
cause, and malice.
Malice in bringing criminal action may be inferred from proof of want of probable cause, but want of
probable cause cannot be inferred from malice.
When facts relating to existence of probable cause for bringing a criminal action are not in dispute, it
becomes a question of law whether such facts constitute probable cause.
OPINION
[Headnote 1]
Appellant had been employed as an advertising saleswoman by respondent in connection
with respondent's TV station.
TV station. Upon reporting for work on October 4, 1956 she was informed by respondent that
she was discharged and was ordered to leave the station. She refused to do so. After such
refusal, respondent contacted the Las Vegas city attorney for advice and, as a result of said
call, city police officers arrived at the TV station. They requested appellant to leave the
station and she refused, stating that she would leave only under a warrant of arrest. During
this interim she sat at a desk, answered the telephone and stated over the telephone to the
person or persons calling that the TV station was out of business or was going out of
business. Thereupon, respondent swore to a complaint charging her with disorderly conduct.
She was arrested, removed from respondent's premises, and taken to the police station where
she was released on bail after having been photographed, fingerprinted, disrobed, and
searched. After her plea of not guilty, the charges against her were dismissed when
respondent refused to testify.
As a result of the foregoing, appellant commenced the action herein for wrongfully,
falsely, and maliciously arresting appellant upon a pretended charge of disorderly conduct.
The case was tried before a jury. At the close of the case respondent, pursuant to Rule 50
(a) NRCP, moved for a directed verdict. The motion was granted, judgment was entered in
favor of respondent, and this appeal is from said judgment.
The only matter to consider on this appeal is whether the lower court erred in granting the
motion for a directed verdict.
[Headnote 2]
It is appellant's theory of the case that the complaint is one for malicious prosecution.
Elements of malicious prosecution, aside from termination of the criminal prosecution, are (a)
want of probable cause, and (b) malice.
[Headnote 3]
It is conceded that malice may be inferred from proof of want of probable cause.
McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37. On the other hand, want of probable cause
cannot be inferred from malice.
cause cannot be inferred from malice. Fenstermaker v. Page, 20 Nev. 290, 21 P. 322.
We, thus, are concerned at this time only with the element of want of probable cause. No
evidence tending to show want of probable cause was presented, and the evidence showing
probable cause is undisputed. Appellant was committing a trespass, she refused to leave
respondent's premises upon request, and she stated untruthfully over the telephone that the
TV station was out of business.
[Headnote 4]
Because the facts relating to the existence of probable cause are not in dispute, it becomes
a question of law whether such facts constitute probable cause. Centers v. Dollar Markets, 99
Cal.App.2d 534, 222 P.2d 136; Short v. Stuyvesant Ins. Co. of New York, 6 Cal. App.2d 309,
43 P.2d 872. The lower court determined this question in favor of respondent and, in our
opinion, properly did so. See Mechanics' Foundry v. Ryall, 62 Cal. 416; 75 Cal. 601, 17 P.
703. Consequently, there was nothing to go to the jury and the motion for a directed verdict
was correctly granted.
Affirmed.
____________
77 Nev. 252, 252 (1961) Weisberger v. Baker
HOWARD WEISBERGER, Appellant, v. SAM
BAKER and LOUISE BAKER, Respondents.
No. 4357
May 31, 1961 362 P.2d 277
Action to restrain defendant from removing improvements on disputed land. The trial
court rendered a judgment for the defendant, and the plaintiff appealed. The Supreme Court,
McNamee, J., held that the evidence supported the finding as to the location of the
boundary.
Supreme Court, McNamee, J., held that the evidence supported the finding as to the location
of the boundary.
Affirmed.
Robert L. Gifford and William R. Devlin, of Las Vegas, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondents.
Reviewing court will not disturb trial court's conclusions on disputed questions of fact, but may reverse
where trial court's decision is based upon misconception of material evidence.
2. Boundaries.
Evidence sustained judgment for defendant in boundary dispute.
OPINION
This case involves a boundary dispute. Appellant's land adjoins respondents' to the north,
both parcels being located on Las Vegas Boulevard South which is the so-called Strip area
in Clark County.
The action was brought by appellant to restrain respondents from removing improvements
made by appellant on the disputed area between them which is approximately five feet wide.
Respondents in their counterclaim prayed for a decree quieting title in them to the disputed
area and requiring appellant to remove the alleged encroachment thereon. From the decree in
favor of respondents this appeal was taken.
Four licensed surveyors testified in the court below, only one of whom, L. M. Bobeau,
actually surveyed the boundary between the two properties. The other three testified from
surveys already made, including the Bobeau survey or from surveys personally made in the
vicinity. It is to be noted that this is the same Bobeau who testified at length in the case of
Backer v. Gowen, 73 Nev. 34, 307 P.2d 765, 766, which case involved disputed surveys in
this same vicinity.
[Headnote 1]
Appellant recognizes the general rule that this court will not disturb the conclusions of the
trial court resulting from its consideration of disputed questions of fact. They contend,
however, that this case comes within the exception to this rule which is to the effect that
where the trial court's decision is based upon a misconception of material evidence the
judgment should be reversed.
The written decision of the trial court recites the following: Baker had his property
surveyed. He is the only one who did. The survey reveals that the plaintiff is encroaching
upon Baker's land. All disputes as to surveys were reconciled in the evidence, and David S.
Snyder appeared as a witness for the plaintiff and, in substance, inferred that at the time of the
making of the survey Mr. Bobeau had made a wrong determination of the quarter corner of
the west line of section 16 [being the same section 16 referred to in Backer v. Gowen, supra].
Mr. Bobeau testified that this quarter corner of the west line of section 16 was the quarter
section; that it was identified by a two-inch truck axle housing well firmly planted
approximately five feet in the ground and projecting a foot or more above the ground; and
that the two inch pipe was a flanged, floating, truck type axle; and that he used this
monument as the survey point since it was also a monument of record for ownerships and
surveys. In view of the fact that the plaintiff did not see fit to have his property surveyed and
the evidence revealing that Mr. Bobeau is a man of integrity as is, incidentally, Mr. Snyder,
and the survey being the only one in the area affecting this ground, the Court feels it must
accept the same. There is considerable support for the Bobeau survey coming from Ty Tyson,
registered engineer, and Mr. Jack Leavitt, a registered engineer. Mr. Leavitt stated that he had
a feeling that perhaps the quarter section location was wrong but that if it was it was only
coincidental and that the fact of encroachment would nevertheless appear. Mr. Tyson stated
he had used the quarter section monument in the surveys that he had made in the area for
other property owners and that it was the true location."
the area for other property owners and that it was the true location.
The formal findings of fact and conclusions of law recite that there was conflicting
evidence on the part of plaintiff and defendants as to the boundary line between the respective
properties of the said parties to this action, and inasmuch as the said evidence is conflicting
the court specifically finds that the only survey made to determine the accurate boundary line
between said property was made by one L. M. Bobeau, a duly licensed engineer and land
surveyor of Las Vegas, Nevada, and the court accepts said survey as true and accurate.
In Backer v. Gowen, supra, this court said: The question involved is almost entirely a
factual one and we have concluded that there is substantial evidence in the record to support
the trial court's rejection of the plaintiffs' contentions that the evidence compelled an
acceptance of a point fixed in the center of the highway as the discovered original
government corner and original government monument evidencing the same fixed by the
original government survey of 1881. We have come to the further conclusion that there is
substantial evidence to support the trial court's finding that the corner known as the Hesse
corner, some 80 feet west of the center line of the highway, was the corner common to the
four sections, and that the judgment must therefore be affirmed.
Similar language properly could be applied to the lower court's approval of respondents'
evidence relating to the Bobeau monument.
Mr. Bobeau testified that in order to commence his survey of the particular land in
question he first determined the center of section 16. This had already been ascertained by
Mr. Tyson. From that point he discovered the monument, a two-inch axle housing monument,
at the quarter corner on the west line of section 16 which is herein referred to as the Bobeau
monument, and from this monument he was able to fix the boundaries of respondents'
property, and he found that appellant was encroaching on respondents' property
approximately 5 feet 3 inches.
feet 3 inches. Bobeau further testified that said monument is sustained by the highway
department and other surveys of neighboring property, and was the same monument which he
used in his survey for Gowen, which survey was sustained by this court in Backer v. Gowan,
supra.
While this testimony alone would be sufficient to support the lower court's judgment, its
written decision, a part of which is quoted herein, indicates other testimony in support of
Bobeau.
[Headnote 2]
The sole issue on this appeal is one of fact, and from an examination of the entire record
we find the evidence amply sufficient to support the judgment. The contention of appellant
that the trial court misconstrued a material part of the evidence is without merit.
Affirmed.
____________
77 Nev. 256, 256 (1961) Milner v. Dudrey
OLIVE MILNER, Executrix of the Estate of MAYME SMITH, Deceased,
Appellant, v. FRANCES I. DUDREY, Respondent.
No. 4352
June 1, 1961 362 P.2d 439
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, District
Judge.
Suit to determine whether a surviving partner had properly exercised an option to purchase
the deceased partner's interest in a motel pursuant to the partnership agreement and to
determine the amount of money to be paid to the estate. From a judgment of the trial court the
executrix appealed. The Supreme Court, Clel Georgetta, District Judge, held that notice of the
surviving partner of her intention to exercise the option was given to the "legal
representative" as provided in the agreement; that the tender of the amount required was
sufficient and that a remand was necessary in order to determine the amount to be paid
by the surviving part ner for the interest of the deceased partner.
to the legal representative as provided in the agreement; that the tender of the amount
required was sufficient and that a remand was necessary in order to determine the amount to
be paid by the surviving part ner for the interest of the deceased partner.
Affirmed in part.
Reversed in part and remanded.
Foley Brothers, of Las Vegas, for Appellant.
M. Gene Matteucci, of Las Vegas, for Absent Heirs.
Hawkins, Cannon and Hawkins, of Las Vegas, for Respondent.
1. Executors and Administrators; Prinicpal and Agent.
The words legal represntative do not have a definite meaning in law, and should be interpreted in
accord with the surrounding circumstances, and in the strict legal sense, the legal representative of a
deceased is an administrator or an executor, and in a more liberal sense the words refer to any person who
lawfully represents another in any way.
2. Executors And Administrators.
Where a certain person is designated in a will as executor, he is the legal representative of the
deceased, even before there has taken place a formality of filing a probate petition and having the court
issue letters testamentary.
3. Executors and Administrators.
An executor designated in the will acts as the legal representative of the deceased when he files a
petition to have the will probated.
An executor derives his authority from the will by which he is appointed and not from the probate
thereof, which merely recognizes and confirms the appointment, and even though letters must be issued
before he has general power to act, the letters issued by the court are primarily evidence of the executor's
authority.
5. Attorney and Client.
Notice to the attorney of any matter relating to the busincss of the client in which the attorney is engaged
is notice to the client.
6. Partnership.
Under partnership agreement authorizing survivor to purchase share of deceased partner, and requiring
notice of election to be given to legal representative of deceased within 15 days, notice to the attorney
within 11 days after death of deceased was notice to his client who was named in the will as executrix and
who a few days later was issued letters testamentary and met the requirements of the agreement.
7. Contracts.
The use of the future tense may under some circumstances constitute present action.
8. Contracts.
The word will when used as an auxiliary verb is sometimes used in the present tense.
9. Sales.
In exercising an option to purchase property, there must be a decision of the optionee to exercise under
the exact terms of the option, and a communication thereof to the optionor within the period of the option.
10. Sales.
An option is exercised by giving of an unconditional notice that the holder does elect to exercise it, and
the tense used is not always a controlling factor, and a factor of greater importance is whether
communication indicates an intent to be thereby bound.
11. Partnership.
Statement that surviving partner will exercise her option to purchase the interest formerly held by the
deceased in the partnership of motel constituted a written notice of present election to exercise the option,
especially in view of the statement that $10,000 was being deposited thereby indicating an intent to be
bound by the notice accepting the option.
12. Tender.
Even though a check is not ordinarly a good medium of tender, the objection may be waived and is by
failure to object on that ground at the time the tender is made.
13. Partnership.
A tender of $10,000 by cashier's check made by surviving partner was legally sufficient to comply with
partnership agreement providing for purchase by survivor of the deceased partner's interest.
14. Partnership.
Where there was not sufficient evidence in the record from which the Supreme Court could determine the
proper amount for a surviving partner to pay for the interest of a deceased partner in the motel business, the
cause would be remanded to take additional evidence on such matters.
OPINION
By the Court, Georgetta, D. J.:
This is an appeal taken by the executrix of a deceased partner from a judgment of the trial
court holding that the surviving partner had properly exercised an option to purchase the
deceased partner's interest in a motel pursuant to terms of the partnership agreement, and
determining the amount of money to be paid to the estate.
Facts: The facts which are pertinent to this appeal are the following:
1. Mayme Smith, the deceased, and Frances I. Dudrey were partners in the ownership of
the DeLuxe Motel, located in Las Vegas, Nevada.
2. Frances I. Dudrey, respondent, resided in Las Vegas, Nevada. Mayme Smith, deceased,
resided in Napa, California.
3. The partnership agreement dated 10 July, 1952, contains the following:
Paragraph 3 acknowledges that the capital contributions of the partners were:
Frances Dudrey............... $25,580.00
Mayme Smith.................. $42,998.63
It was agreed that these capital accounts would subsequently be made equal by either
drawing or additional investment.
Paragraph 7 reads as follows:
7. At the end of the partnership, the partners, each to the other, shall make a true, just and
final account of all things relating to their said business, and in all things adjust the same; and
all stock, as well as the gains and increase thereof, which shall appear to be remaining, either
in money, goods, wares, fixtures, debts, or otherwise, shall be divided between them equally.
Paragraph 8 reads as follows:
8. In the event of the death of either of the parties hereto the partnership shall
immediately teminate and the survivor shall have the option to purchase the share of the
deceased partner in the capital and assets of the partnership business as determined from an
audit made by the accountant aforesaid, as of the date of death of the deceased partner, and
the purchase price shall be the amount which said audit shall disclose and the good will of
said business shall be regarded as a partnership asset without value. If the survivor shall elect
to purchase the share of said deceased partner such notice of election shall be given in writing
to the legal representative of said deceased within fifteen days after the date of death and shall
tender therewith a good faith deposit of not less than $10,000.00. In the event of such
purchase the purchase price shall be due and payable in equal monthly installments of
$250.00 or more, payable on the 1st day of each month until the balance shall have been
paid in full, plus interest on the unpaid balance at the rate of Four Per Cent {4%) per
annum.
of such purchase the purchase price shall be due and payable in equal monthly installments of
$250.00 or more, payable on the 1st day of each month until the balance shall have been paid
in full, plus interest on the unpaid balance at the rate of Four Per Cent (4%) per annum. In the
event the election to purchase is not exercised, the partnership shall be dissolved according to
law.
4. On 2 June, 1957, Mayme Smith died in Napa, California. On that day, pursuant to a
subsequent audit made by the partnership accountant, the capital accounts of the partners
stood as follows:
Frances Dudrey................ $22,926.64
Mayme Smith................... $38,147.42
This audit also indicates that as of the date of death the total assets were $110,978.06
based upon the value of land and improvements which the auditor carried on the books of the
partnership, the land being valued at $15,000.
5. On 5 June, 1957, Mrs. Dudrey, the surviving partner, attended the funeral of the
deceased partner in Napa, California at which time she saw and talked with William
Locarnini, Esq., who had been the attorney for the deceased partner, Mrs. Smith, for many
years and who later acted as attorney for Olive Milner, a niece of the deceased, appellant here,
when she probated the will of Mayme Smith in Napa, California. On that occasion, Mrs.
Dudrey, the surviving partner, consulted Mr. Locarnini regarding the partnership and offered
to tender him the $10,000 good faith deposit required by paragraph 8 of the partnership
agreement, in order to exercise the option to purchase the deceased partner's interest in the
DeLuxe Motel partnership.
6. On 11 June, 1957, nine days after death, Howard W. Cannon, Esq., of Las Vegas,
Nevada, as attorney for Mrs. Dudrey, the surviving partner, wrote a letter to Mr. Locarnini in
Napa, California, which contained the following words:
* * * Mrs. Dudrey will exercise her option to purchase the interest formerly held by
Mrs.
purchase the interest formerly held by Mrs. Smith in the DeLuxe Motel. I am advised that a
deposit of $10,000.00 will be made forthwith at the First National Bank of Nevada, 730
South Fifth Street, Las Vegas, Nevada, in accordance with paragraph 8' of the agreement
between Mrs. Smith and Mrs. Dudrey * * *.
7. On 13 June, 1957, Mr. Locarnini in reply wrote a letter to Mr. Cannon which contained
the following words:
* * * [T]he estate of Mrs. Mayme Smith has been filed and Letters Testamentary in all
probability will be issued on June 28th and Miss Olive Milner will be appointed as legal
representative at that time.
* * * (portion omitted) I have made a thorough search of the effects of Mrs. Smith and to
date have not found a copy of the contract between Mrs. Dudrey and Mrs. Smith. I presume
that the deposit of $10,000.00 is in accordance therewith and as the California law states that
the ancillary proceedings be opened in Nevada to consummate the transaction, it will of
course necessitate some time before this matter may be closed.
8. On 17 June, 1957, which was the last day of the fifteen-day period specified in
paragraph 8 of the partnership agreement, the surviving partner, Mrs. Dudrey, deposited at
First National Bank of Nevada, in Las Vegas, a cashier's check for $10,000, payable to the
estate of Mayme Smith.
9. On 28 June, 1957, eleven days after the period had expired, Olive Milner, the niece,
was issued letters testamentary as executrix of the estate of the deceased partner, Mayme
Smith, in Napa, California.
10. On 3 December, 1957, Howard Cannon, as attorney for the surviving partner,
informed Joseph Foley, Esq., who represented Olive Milner in Nevada, that certain checks
payable to the estate of Mayme Smith were at the First National Bank of Nevada, in Las
Vegas.
11. On 11 January, 1958, Howard Cannon, Esq., wrote a letter to Olive Milner, the
executrix, tendering the cashier's check for $10,000 and seven other checks in the amount of
$250 each. The tender was refused.
12. After 28 January, 1958, there was tendered to the executrix each month a cashier's
check for $250. These tenders were refused.
13. On 4 March, 1958, Olive Milner qualified as ancillary executrix of the estate in
Nevada.
14. On 11 March, 1958, this action was filed by the executrix, Olive Milner, seeking an
accounting, a winding up of the affairs of the partnership and a distribution of the assets
thereof.
15. On 12 April, 1960, the trial court entered judgment to the effect that the option had
been legally exercised by the surviving partner and the price to be paid to the estate for the
interest of the deceased partner is $38,147.42.
16. On 5 May, 1960, the plaintiff appealed to this court from that judgment.
Points of Law To Be Determlned
The issues of law raised on this appeal are the following:
I. Notice to Legal RepresentiativeWhether or not the notice of the surviving partner of
her intention to exercise the option was given to the legal representative as provided in the
partnership agreement.
Pursuant to paragraph 8 of the partnership agreement (item 3 of the above stated facts) in
order to exercise the option the surviving partner was required to give notice of such election
to the legal representative of the deceased partner, in writing, within fifteen days after death.
There now arises the question as to whether or not these wordslegal representative
mean a duly appointed administrator or an executor holding letters testamentary.
The fifteen-day period ended on 17 June, 1957, during which time no personal
representative of the deceased had been issued letters of administration or letters testamentary
by any court. Letters testamentary were not issued to the executrix named in the will until 28
June, 1957 (item 9 of above stated facts).
Three days after death, the surviving partner verbally informed William Locarnini, Esq.,
that she desired to exercise the option (item 5 of above stated facts). The partnership
agreement specified written notice. Therefore, this verbal notice would not legally exercise
the option even if Mr. Locarnini had been a duly appointed personal representative of the
deceased.
[Headnote 1]
On 11 June, 1957, nine days after death, and well within the fifteen-day period, written
notice was sent to Mr. Locarnini that the surviving partner desired to exercise the option
(item 6 of above stated facts). Mr. Locarnini had been the attorney for the deceased partner
for a number of years. At the time he received the letter from Mr. Cannon he was the attorney
for Olive Milner, the person named as executrix in the will, as he had then been retained by
her to file the petition for probate and he continued to represent the executrix after she
received letters testamentary on 28 June, 1957. At the time written notice was given on 11
June, 1957, was Mr. Locarnini, or Olive Milner, the legal representative of the deceased
partner? The words legal representative do not have a definite meaning in the law and
should be interpreted in each case in accord with the surrounding facts and circumstances. In
the strict technical sense a legal representative of a deceased person is an administrator or
an executor. In a more broad or liberal sense the words refer to any person who lawfully
represents another in any way whatsoever. 52 C.J.S. 1040; Nudelman v. Thimbles, Inc., 225
Mo.App 553, 40 S.W.2d 475.
In at least one case it has been held that the words legal representative in a will may
mean those persons entitled to take by inheritance, or executors, or administrators, or
children, or lineal descendants. Caudle v. Eckles, 282 Ky. 295, 138 S.W.2d 468, 469.
In this case, if the evident intent of the partners is to be implemented, justice requires that
the more broad or liberal meaning be given to these words in the partnership agreement.
[Headnotes 2-4]
Where a certain person is designated in a will as executor, he is the legal representative
of the deceased even before there has taken place the formality of filing a probate petition and
having the court issue letters testamentary. An executor designated in the will acts as the
legal representative of the deceased when he files a petition to have the will probated. An
executor derives his authority from the will by which he is appointed and not from the
probate of the will which merely recognizes and confirms the appointment. Even though
letters testamentary must be issued before he has general power to act, the letters testamentary
issued by the court are primarily evidence of the executor's authority. 33 C.J.S. 904; State ex
rel. Huber v. Tazwell, 132 Ore. 122, 283 P. 745; Matter of Bergdorf, 206 N.Y. 309, 99 N.E.
714.
[Headnote 5]
Notice to the attorney of any matter relating to the business of the client in which the
attorney is engaged, is notice to the client. 7 C.J.S., Attorney and Client, sec. 69, p. 853;
Smith v. Thomsen, 8 Cal.App.2d 603, 48 P.2d 102; Goldston v. Randolph, 293 Mass. 253,
199 N.E. 896, 103 A.L.R. 1117; Perkins v. Public Service Co., 93 N.H. 459, 45 A.2d 210.
[Headnote 6]
In this case notice to the attorney, Mr. Locarnini, was notice to his client, Olive Milner,
who was named in the will as executrix and was a few days later issued letters testamentary.
The notice given in writing eleven days after death was notice which met the requirement of
paragraph 8 of the partnership agreement.
II. Present Election or Future ProspectiveWhether or not the words of the written
notice (item 6 of above stated facts) constituted notice that the option is exercised rather than
notice that it may be exercised sometime in the future.
[Headnotes 7, 8]
The crucial words here involved are: Mrs. Dudrey will exercise her option to purchase the
interest formerly held by Mrs. Smith in the DeLuxe Motel. The use of future tense may
under some circumstances constitute present action.
use of future tense may under some circumstances constitute present action. The word will
when used as an auxlliary verb (as in the sentence above quoted) is sometimes used in the
present tense. The courts have recognized this usage by holding that the words, I will
exercise the option, are equivalent to, I do exercise the option.
The case of Grey v. Nickey Bros., Inc., 5 Cir., 271 F. 249, 251, is a case squarely in point
on both facts and law. In that case a telegram, from a party having an option to purchase land,
stated: Will exercise our option. * * * The owner of the land contended (as respondent
contends here) that the words Will exercise our option expressed a future intention and
therefore was not an unequivocal acceptance of the option. That court held that the telegram
constituted a present, definite, unconditional, and unequivocal acceptance of the option. See
also Ackerman v. Carpenter, 113 Vt. 77, 29 A.2d 922. Moss v. Cogle, 267 Ala. 208, 101
So.2d 314.
[Headnotes 9, 10]
Where are two steps, or elements, in the exercising of an option to purchase property. First
there must be the decision of the optionee to purchase under the exact terms of the option;
and second the communication of this decision to the optionor within the period of the
option. An option is exercised by the giving of an unconditional notice that the holder does
elect to exercise it. Sneed v. Wood, 24 Ga.App. 210, 100 S.E. 714. The tense used is not
always a controlling factor. A factor of greater importance is whether or not the
communication indicates an intent to be thereby bound. McNaughton v. Conkling, 9 Wis.
316.
[Headnote 11]
In this case the letter from Cannon to Locarnini, with the statement that $10,000 was being
deposited, certainly indicated the intent to be bound by this notice accepting the option.
For all of the above mentioned reasons, in this case the letter from Cannon to Locarnini
constituted written notice of present election to exercise the option.
III. TenderWhether or not the tender of $10,000 made by the surviving partner was
legally sufficient to fully comply with the provisions of the partnership agreement.
made by the surviving partner was legally sufficient to fully comply with the provisions of the
partnership agreement.
Pursuant to paragraph 8 of the partnership agreement (item 3 of above stated facts) in
order to exercise the option the surviving partner was required to tender with the notice a
good faith deposit of not less than $10,000.
The letter from Cannon to Locarnini (item 6 of above stated facts) which is the notice
exercising the option, stated that a deposit of $10,000 would be made forthwith at a bank in
Las Vegas. On 17 June, 1957, the fifteenth day after death, there was delivered to the bank a
cashier's check for $10,000 payable to the estate of Mayme Smith. Mrs. Smith died a resident
of California. The DeLuxe Motel property was located in Clark County, Nevada, and
therefore any money received by the estate of Mrs. Smith for her interest in that property
would be disposed of by ancillary administration in Nevada.
[Headnote 12]
In this case the appellant contends that deposit of the cashier's check for $10,000 at the
First National Bank of Nevada in Las Vegas was not proper tender required by the
partnership agreement because it was not tendered to the executrix, or her attorney, or any of
their heirs. This was part of the ancillary estate in Nevada. An ancillary executrix of the estate
in Nevada did not qualify until 4 March, 1958. Therefore, during the option period (which
ended on 17 June, 1957) there was no ancillary personal representative of the estate in
Nevada to whom tender could have been made. The appellant did not object to the tender on
the ground that the money was in the form of a check. It is well settled that even though a
check is not ordinarily a good medium of tender, such objection may be waived, and it is
waived by failure to object on that ground at the time the tender is made, because in the event
of exception to the form of the money the party making the tender should have the
opportunity of getting the cash and tendering it instead of its apparent equivalent, the check.
the check. 23 A.L.R. 1288, and cases cited; 51 A.L.R. 395, and cases cited; American Oil &
Refining Co. v. Clements, 99 Okla. 204, 225 P. 349; Murray v. American Savings Bank, 197
Iowa 318, 197 N.W. 69; Steckel v. Selix, 198 Iowa 339, 197 N.W. 918.
[Headnote 13]
In this case the cashier's check made payable to the estate delivered to a bank in Nevada,
where the ancillary administration was required, with written notice to the attorney who had
represented the deceased and who, at the time of the delivery, represented the person named
as executrix in the will, was legally sufficient tender under the terms of the partnership
agreement.
[Headnote 14]
IV. Amount of Money To Be PaidWhether or not the sum of $38,147.42 set by the trial
court is the proper amount of money for the surviving partner to pay for the interest of the
deceased partner in the DeLuxe Motel property and business.
Pursuant to paragraph 8 of the partnership agreement, the surviving partner had the option
to purchase the share of the deceased in two items which were the capital and the assets of the
partnership as determined by an audit. The audit made by the partnership accountant
indicated that as of 2 June, 1957, the date of death, the capital interest of the deceased partner
was $38,- 147.42, but it also indicated assets in the sum of $110,987.06 (item 4 of above
stated facts).
The deceased partner had some interest in assets over and above her capital investment,
which evidently the trial court did not take into consideration in arriving at the amount to be
paid by the surviving partner for the interest of the deceased partner in the DeLuxe Motel
property and business.
An examination of the entire partnership agreement discloses that the association of the
partners was intended to be strictly a business arrangement. It does not appear that either
party intended to make a gift of any assets to the other. The wording of paragraph 7 (item 3 of
above stated facts) indicates that at the termination of the partnership each partner was to
receive one half of the full value of all assetswhich would be the market value, less
liabilities as of that date, and not whatever value had been carried on the books for tax
and accounting purposes.
receive one half of the full value of all assetswhich would be the market value, less
liabilities as of that date, and not whatever value had been carried on the books for tax and
accounting purposes. This would apply to termination of the partnership by either dissolution
or death of a partner.
Paragraph 8 of the partnership agreement (item 3 of above stated facts) insofar as it is in
conflict with the wording of paragraph 7, was probably an oversight in draftsmanship.
There is not in the record sufficient evidence from which this court could determine the
proper amount for the surviving partner to pay for the interest of the deceased partner.
Therefore, it is necessary for us to remand the case to the trial court for the purpose of taking
additional evidence to determine the following issues:
1. What was the market value of all the assets of the partnership, less all liabilities, as of
the date of death of the deceased partner?
2. What amount of money must be paid by the surviving partner as one half of the net
market value after adjustment has been made for the difference in the capital accounts of the
partners, which at time of death had not been made equal as provided in the partnership
agreement.
The judgment of the trial court is affirmed as to the surviving partner's exercise of the
option to purchase the interest of the deceased partner in the property and business of the
DeLuxe Motel.
The judgment of the trial court as to the amount to be paid by the surviving partner is
reversed and remanded for further evidence and decision in accord with the above direction.
No costs are allowed.
Pike, J., and Gregory, D. J., concur.
Badt, C. J., being absent on account of illness, the Governor commissioned Honorable
Frank B. Gregory, Judge of the First Judicial District Court, to sit in his place.
McNamee, J., being disqualified, the Governor commissioned Honorable Clel Georgetta,
Judge of the Second Judicial District Court, to sit in his place.
____________
77 Nev. 269, 269 (1961) Conforte v. State
JOE CONFORTE, Appellant, v. STATE OF
NEVADA, Respondent.
No. 4343
June 2, 1961 362 P.2d 274
Appeal from the Second Judicial District Court, Washoe County; Jon R. Collins, Judge.
Prosecution for threatening a public officer. The lower court rendered a judgment and the
defendant appealed. The Supreme Court, McNamee, J., held that evidence on examination of
jurors after court learned of private communication with juror was sufficient to support
finding that any presumption of prejudice was rebutted.
Affirmed.
Gordon W. Rice, of Reno, for Appellant.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Washoe County,
John C. Bartlett, and Harold O. Taber, of Reno, for Respondent.
1. Criminal Law.
Any part of communication with jurors in criminal case during trial on subject connected with trial is
presumptively prejudicial.
2. Jury.
Jurors who have earlier been sworn were not required to be resworn during examination into question
whetner private conmmunication had had prejudicial effect.
3. Criminal Law.
Determination of whether private communication with criminal case jury had had prejudicial effect was
factual.
4. Criminal Law.
Evidence on examination of jurors after court learned of private communication with juror was sufficient
to support finding that any presumption of prejudice was rebutted. NRS 175.320, 205.320.
5. Criminal Law.
Evidence concerning physical examination of person by physician was immaterial to issues in
prosecution for threatening public official with rape charge, and properly excluded. NRS 205.320.
6. Criminal Law.
Refusal of trial court, in prosecution for threatening public officer, to permit inquiry into officer's conduct
with respect to another extortion case was not prejudicial error, where defendant offered no evidence to
refute commission of crime charged and consented to introduction of recorded threat. NRS 205.320.
7. Criminal Law.
Stock instructions given in prosection for threatening public officer did not prejudice defendant's rights.
NRS 205.320.
OPINION
Appellant was convicted by a jury of extortion in violation of NRS 205.320 which
provides, in part, that every person who, with intent to influence the action to any public
officer shall threaten directly or indirectly to accuse any person of a crime, or to publish or
connive at publishing any libel, or to expose or impute to any person any disgrace, or to
expose any secret, shall be punished by imprisonment in the state prison or by imprisonment
in the county jail or by a fine or by both fine and imprisonment.
Appeal herein is from the judgment based on the verdict of guilty under which appellant
was sentenced to a term of not less than three nor more than five years in the state prison.
It appears from the evidence that appellant contacted William J. Raggio, the District
Attorney of Washoe County, and stated to him that unless a vagrancy charge against him was
dismissed he, appellant, would cause criminal charges of rape and furnishing liquor to a
minor to be brought by the Attorney General against Raggio. This threat was made in the
office of Frank Petersen, the then attorney for appellant.
Petersen, the then attorney for appellant. The office had been wired for recording of
conversations and this threat was recorded unbeknown at the time to appellant, and the
recording thereof was played to the jury without objection. In fact, appellant states in his
opening brief on appeal that he desired to have the recording admitted. Appellant offered no
evidence to refute the commission of the actual crime with which he was charged.
The only error complained of which requires serious consideration is the court's denial of
appellant's motion for mistrial.
Mistrial was claimed because of the following circumstances. The jury after being selected
was ordered by the court to be kept in charge of the bailiff, who was sworn to keep the jurors
together until the next meeting of the court, to suffer no person to speak to them or
communicate with them, nor to do so himself on any subject connected with the trial, all
pursuant to NRS 175.320.
After the state had rested and before the introduction of any evidence on behalf of the
appellant, a bailiff in charge of the jury whispered to Mrs. Arlene Thomas, one of the jurors,
that her husband wanted to know where she had put the gun. Telling him where it was, she
asked why her husband wanted to know and the bailiff told her a threat had been made. At
least one other juror heard this whispered conversation. When the related conversation
became known to the court the presiding judge conducted an investigation outside the
presence of the jury and ascertained and determined that no threat had been made. Appellant's
attorney thereupon moved for a mistrial. Ruling thereon was reserved until the court
examined Mrs. Thomas as to whether this matter had influenced her. She stated: I would be
fair in the decision regardless of any of the consequences. In answer to the court's question
whether she would be in any way influenced, she said: No, I don't think that would be the
right thing to do. In explaining what she meant by her said statement regardless of any of
the consequences she said: Well, I would follow the instructions regardless" and that she
would accord to the defendant and the State of Nevada a true and fair and honest trial.
I would follow the instructions regardless and that she would accord to the defendant and the
State of Nevada a true and fair and honest trial. The court thereupon called in the remainder
of the jury advising them that there had been a communication made to Mrs. Thomas which
certain of the jurors might have knowledge of. The court stated that it had made an inquiry
and concluded that no threat had been made to Mrs. Thomas' husband or any member of the
family. It then asked the jury if any one of them, under these circumstances, felt that he could
not continue to be fair and impartial in the trial. Each juror upon being polled answered that
he would be fair and impartial. The motion for mistrial was thereupon remade and denied.
[Headnote 1]
Any private communication with a juror in a criminal case during a trial on any subject
connected with the trial is deemed presumptively prejudicial. See Parsons v. State, 74 Nev.
302, 329 P.2d 1070.
Because of the aforesaid conversation between the bailiff and Mrs. Thomas, it became
necessary for the court when apprised of the fact, to determine whether the communication to
Mrs. Thomas by the bailiff related to any subject connected with the trial and if so whether
Mrs. Thomas or any other member of the jury was prejudiced thereby.
In order to make such determination, the court pursued the procedure suggested in
Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654. There the case was
remanded to the District Court with directions to hold a hearing to determine whether the
incidents complained of were harmful to the defendant and if after a hearing they were found
to have been harmful, to grant a new trial. On remand the District Court held a hearing and
found the incidents to be free from harm. When the case again came before the Supreme
Court a new trial was ordered for the reason that on remand, the hearing conducted by the
District Court was limited, and there was no exploration of the entire picture of the incident
complained of. Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435.
[Headnote 2]
It is to be noted that in the Remmer case the hearing was conducted after the return of the
verdict, and the defendant therein had no knowledge of the incident which he contended had
prejudiced a juror until after the verdict. In the present case the hearing took place before the
case was submitted to the jury and even before the defense offered its evidence. Furthermore,
in the court below every person connected with the incident was examined by the court in the
presence of the appellant and his counsel, and each juror was apprised of the fact that no
threat had been made. Thereafter each juror stated separately that he would act fairly and
impartially with respect to the appellant and to the state. Each member of the jury when being
selected had been sworn to answer truthfully any questions pertaining to his qualifications as
juror. The fact that the jurors were not resworn during said subsequent examination is, in our
opinion, immaterial.
[Headnotes 3, 4]
Inasmuch as the statement made by the bailiff did not pertain to any subject connected
with the trial, and all the jurors were so informed, it is questionable whether the private
communication was presumptively prejudicial. Considering it as such, the lower court then
had the duty to determine whether the evidence presented during its investigation and hearing
independent of but during the main trial was sufficient to rebut any presumption of prejudice.
See Johnson v. United States, 5 Cir., 207 F.2d 314. Such determination was a factual one.
The lower court determined from such evidence that any presumption of prejudice was
rebutted and that the communication to the juror did not prejudice any member of the jury.
This determination is supported by substantial evidence and will not be disturbed.
[Headnote 5]
Another error assigned related to the examination of Jackie Leigh Hitson and to an inquiry
into the records of Dr. Vollert, her physician. We conclude that it is without merit because the
evidence excluded was not material to the issues, that is to any of the elements of extortion.
of extortion. It is not contended that the excluded evidence was relevant to impeachment.
[Headnote 6]
Appellant contends that in testing the District Attorney's credibility, the failure to permit
inquiry into his conduct with respect to another extortion case was prejudicial error. In view
of the fact that the appellant offered no evidence to refute the commission of the actual crime
with which he was charged and consented to the introduction in evidence of his recorded
threat, any error of the trial court in this respect was clearly not prejudicial.
[Headnote 7]
Appellant finally complains of the giving of certain instructions, all of which have been
stock instructions used by the trial courts of this state for many years. We have examined the
same and find that they, in no way, have prejudiced any substantial right of the appellant.
Affirmed.
Pike, J., and Craven, D. J., concur.
Badt, C. J., being absent on account of illness, the Governor designated Honorable
Thomas O. Craven, Judge of the Second Judicial District Court, to sit in his stead.
____________
77 Nev. 275, 275 (1961) Florey v. Sinkey
CHAUNCEY FLOREY, MARJORIE FLOREY, GENE L. BROWN and
JEAN BROWN, Appellants, v. JOHN SINKEY, Respondent.
No. 4351
June 2, 1961 362 P.2d 271
Appeal from judgment of the Fifth Judicial District Court, Mineral County; Peter Breen,
Judge.
Action for value of services in selling mineral rights. The trial court rendered a judgment
for plaintiff, and the defendants appealed. The Supreme Court, Pike, J., held that evidence
supported finding that defendants had agreed to pay reasonable value of services.
Judgment affirmed.
Springmeyer, Thompson and Dixon, of Reno, and Gene L. Brown, of Grants Pass, Oregon,
for Appellants.
Breen, Folsom, McDonald and Young, of Reno, for Respondent.
1. Brokers.
Evidence in action for compensation for services in selling mineral rights supported finding that
defendants had agreed to pay reasonable value of services.
2. Brokers.
Reasonable value of services in selling mineral rights was portion of price under established custom of
mining locality.
3. Evidence.
Person who acted as broker in selling mineral rights was competent witness to value of services.
In action for compensation for services in selling mineral rights, where there was competent testimony to
establish custom as to compensation, any error in refusing to strike testimony concerning same
compensation in particular instances was harmless.
Under circumstances, any error in permitting witness to testify, in answer to hypothetical question in
action for value of services in selling mineral rights, that reasonable value was 10 percent of price received
was harmless, although amount received was incorrectly stated in question.
Judgment against all vendors for reasonable value of services in selling mineral rights implied finding
that vendor who had dealt with plaintiff had acted for and on behalf of other vendors.
7. Brokers.
Evidence in action for value of services in selling mineral rights supported implied finding that vendor
with whom plaintiff had dealt had acted for and on behalf of other joint tenants.
OPINION
This is an appeal from a judgment entered in favor of respondent, against each appellant,
for the sum of $8,400 as compensation due respondent for having procured one Kaufmann as
a purchaser of a mining property owned by appellants. Appellants were the owners of a group
of tungsten mining claims in Mineral County, Nevada, known as the Silver Dyke property.
On April 1, 1955, by written agreement, appellants agreed to sell the property to one
Kaufmann for the sum of $300,000. Kaufmann as purchaser delivered to appellants a
promissory note for $50,000 as well as other promissory notes and certain corporate stock on
account of the agreed purchase price. The $50,000 note was subsequently paid by Kaufmann
and after Kaufmann had been adjudicated bankrupt the other notes were submitted by
appellants as claims in the Kaufmann bankruptcy. Kaufmann operated the mining property
for several months and removed ore of considerable value, upon which he also paid $34,000
in royalties to appellants.
The sale by appellants to Kaufmann had the following factual background. Respondent
Sinkey was president of Nevada Tungsten Corporation which owned a tungsten mill in
Mineral County. He introduced appellant Chauncey Florey to one James Keyser, a mining
engineer and prospective purchaser of the Silver Dyke properties. Thereafter Keyser and his
associates organized the Industrial Tungsten Corporation, of which Keyser was president and
a director, and of which said Kaufmann was also a director. On February 8, 1955 said
corporation entered into a written agreement as purchasers, with Florey and the other
appellants as sellers, to purchase the Silver Dyke properties for $400,000, and on March 11,
1955 a supplemental agreement was entered into between the same parties and a note for
$50,000 payable to appellants herein executed by Industrial Tungsten Corporation and
endorsed by Keyser and Kaufmann was attached to the same.
entered into between the same parties and a note for $50,000 payable to appellants herein
executed by Industrial Tungsten Corporation and endorsed by Keyser and Kaufmann was
attached to the same. Kaufmann in the meantime had succeeded Keyser as president of the
corporation.
On April 1, 1955 appellants and Industrial Tungsten Corporation executed an agreement
canceling the agreement of sale between them dated February 8, 1955, Kaufmann signing as
president of the corporate signatory. On the same date, Kaufmann and appellants entered into
the agreement between them hereinabove referred to. On account of the agreed sale, 400,000
shares of Industrial Tungsten Corporation stock were issued and delivered to appellants,
together with the said $50,000 promissory note of that corporation, bearing the endorsements
of Keyser and Kaufmann, and certain other promissory notes as part of the agreed purchase
price to be paid by Kaufmann. Kaufmann was adjudged bankrupt. There is nothing in the
record showing that appellants ever received any cash from the corporate stock, or from the
notes filed in the Kaufmann bankruptcy. The $50,000 received as payment of the promissory
note, and the royalties of $34,000, or a total of $84,000, were received by appellants as a
result of the sale of Kaufmann.
On July 25, 1957 respondent, as plaintiff, brought action against appellants, alleging that
appellants promised to pay Sinkey the reasonable value of his services if Sinkey would
procure a purchaser for the mining property; that by reason of Sinkey's informing Kaufmann
and interesting him in the purchase, the agreement of April 1, 1955 had been entered into
between appellants and Kaufmann and that appellants had received substantial sums of
money from Kaufmann under said agreement. Sinkey sought judgment against appellants for
$30,000. Appellants' answer denied having entered into the agreement to pay any
compensation to Sinkey, and alleged as additional defenses (1) that Sinkey acted as agent for
Kaufmann without the knowledge or consent of appellants; (2) that Sinkey secretly
participated in the purchase of the property; and {3) that Sinkey realized a secret profit
from the purchaser of the property, without the knowledge or consent of appellants.
participated in the purchase of the property; and (3) that Sinkey realized a secret profit from
the purchaser of the property, without the knowledge or consent of appellants. In connection
with the last-mentioned defenses, evidence was introduced showing that some 182,994 shares
of Industrial Tungsten Corporation stock were issued to Sinkey on February 18, 1955. Sinkey
denied having received the stock.
Upon conflicting evidence the trial court found in favor of respondent and against
appellants upon the issues referred to, and entered the judgment herein appealed from.
The court found that there was an agreement between Florey and Sinkey whereby Sinkey
undertook to find a buyer for the mining properties; that he made trips and contacted persons
and firms with venture money in efforts to interest them in such purchase; that he conducted
prospective purchasers to the mining properties; that Sinkey spent some of his own funds in
connection with such efforts. The court reviewed the several agreements entered into and
found that it was not established that the Industrial Tungsten Corporation stock was delivered
to Sinkey and found that stock had no value at any time; that on October 1, 1955 Nevada
Tungsten Corporation and Kaufmann agreed that Kaufmann would cause tungsten ore to be
milled at the corporation's mill; that the evidence established the existence of a custom in the
particular Nevada locality which provided that the seller of mining property should pay 10
percent of the consideration actually received by him to the person who was the procuring
cause of the sale, and that said custom was sufficiently known to charge Florey with
constructive knowledge of the same; that Sinkey was the procuring cause of the sale of the
properties to Kaufmann, who paid $84,000 to appellants; that although the evidence did not
establish that appellants agreed to pay Sinkey a definite amount as a commission, there was
an implied agreement to pay Simkey the reasonable value of his services; that the reasonable
value of the services performed by Sinkey was $S,400; that Sinkey had not acted as agent
for Kaufmann and had not secretly participated in the purchase of appellants' property
without the knowledge or consent of appellants.
$8,400; that Sinkey had not acted as agent for Kaufmann and had not secretly participated in
the purchase of appellants' property without the knowledge or consent of appellants.
[Headnotes 1, 2]
While it is true that any written evidence, consisting principally of correspondence,
relating to an express agreement on the part of Florey to pay reasonable compensation to
Sinkey was fragmentary and far from specific with reference to either an offer by Florey or an
acceptance by Sinkey, such evidence was supplemented not only by Sinkey's testimony that
Florey agreed to pay Sinkey for his services but by evidence of the above referred to custom
relating to the pavment of the person producing a buyer of mining property. The trial court
found that there was an implied agreement on the part of Florey to pay Sinkey the reasonable
value of his services, and as there was substantial evidence in support of such finding, as well
as the other findings of the trial court, the same may not be disturbed on this appeal. The
amount found to be the reasonable value of Sinkey's services was the same as 10 percent of
the $84,000 found to have been actually received by Florey from Kaufmann. In effect, the
sum found to be due Sinkey as compensation for his services, under the established custom of
the mining locality, became the reasonable value of such services. Herrmann v. Blase, 77
Nev. 127, 359 P.2d 745; Tamney v. Scheeline Banking & Trust Co., 53 Nev. 7, 290 P. 1027;
Siebert v. Smith, 49 Nev. 120, 239 P. 396.
[Headnote 3]
Additional specifications of error by appellants are: (1) that Sinkey was permitted, over
objection, to state his opinion concerning the reasonable value of the services rendered by
him. We find no merit in the assigned error. Sinkey was a competent witness to so testify and
the court could determine the weight to be given to his testimony. Coogan Finance Corp. v.
Beatcher, 120 Cal. App. 278, 7 P.2d 695.
[Headnote 4]
(2) One McBoyle testified concerning certain instances of compensation having been paid
to persons procuring the sale of mining properties in the locality, and appellants specify error
on the part of the trial court in denying appellants' motion to strike such testimony as not
being based upon any established custom or usage in the community but rather upon
particular instances. As other witnesses shown to be experienced mining men of the locality
testified concerning the established custom or usage, error, if any, in denying the motion to
strike was harmless.
[Headnote 5]
(3) Appellants specify as error the trial court's action in permitting the same witness,
McBoyle, to answer, over objection, a certain hypothetical question, which sought to elicit the
witness' opinion relative to the reasonable value of Sinkey's services. In the hypothetical
question, the amount referred to as having been received by the sellers was erroneously stated
as $130,000 rather than the $84,000 shown by the evidence. The witness answered the
question by stating that the person procuring the buyer would be entitled to 10 percent of the
money received by the sellers without specifying any amount. Such answer was permitted to
stand without a motion to strike being made. Under the circumstances, any error was
harmless.
(4) Appellants' remaining contention requiring consideration is that there was no basis in
the evidence for a judgment against appellants Marjorie Florey, Gene L. Brown and Jean
Brown. The trial court denied appellants' motion to dismiss the action as against those three
appellants and for entry of judgment in their favor.
[Headnotes 6, 7]
Appellants' principal argument is that the joint tenancy relationship did not operate to bind
the designated appellants. There was, however, evidence to the effect that appellant Chauncy
Florey, after acquiring the property in 1951, caused title to the same to be placed in the names
of himself, his wife Marjorie Florey, Gene L.
L. Brown and his wife, Jean Brown, as joint tenants, and that Chauncey Florey was the
individual who had active charge and control of the Silver Dyke properties and who
conducted all negotiations for their sale. The evidence, including the documents introduced as
exhibits, shows that the other three joint tenants signed each of the agreements hereinabove
referred to and that each of them was also designated as an assignee of certain interests in
land given as security by Kaufmann for the payment of the $50,000 note which he had
endorsed and which note was ultimately paid by him. There was also evidence that these
three appellants ratified and confirmed Florey's actions by signing the agreements, and
accepting the benefits of the agreement with Kaufmann. While the court did not make a
specific finding that Chauncey Florey acted for and on behalf of the other three joint tenants
and appellants herein, such a finding will be implied to support the judgment rendered against
each of them. Krick v. Krick, 76 Nev. 52, 348 P.2d 752. There is substantial evidence to
support such a finding and judgment.
McNamee, J., and Brown, D. J., concur.
Badt, C. J., having disqualified himself, the Governor designated Honorable Merwyn H.
Brown, Judge of the Sixth Judicial District Court, to sit in his place and stead.
____________
77 Nev. 282, 282 (1961) Union Pacific R.R. Co. v. Adams
UNION PACIFIC RAILROAD COMPANY, a Utah Corporation,
Appellant, v. JOSEPH HENRY ADAMS, Respondent.
No. 4295
June 5, 1961 362 P.2d 450
Action against railroad for destruction of cattle, wherein railroad counterclaimed for
damage to its engine and cars. The trial court entered judgment against railroad and it
appealed. The Supreme Court, Badt, C. J., held that statute imposing on railroads duty of
maintaining fences, and statute providing liability of railroads for negligent killing of
livestock, are separate and distinct, and each of such sections fixes liability upon a railroad
under particular circumstances specified in each section, the former fixing an absolute
liability upon a railroad to an owner of cattle killed on unfenced right-of-way, irrespective of
negligence.
Affirmed.
Deaner, Butler & Adamson and Calvin M. Cory, of Las Vegas, and Edward C. Renwick,
Malcolm Davis and M. W. Vorkink, of Los Angeles, for Appellant.
G. William Coulthard and John Peter Lee and Franklin N. Smith, of Las Vegas, for
Respondent.
1. Railroads.
Statute imposing on railroads duty of maintaining fences, and statute providing liablity of railroads for
negligent killing of livestock, are separate and distinct, and each of such sections fixes liablity upon a
railroad under particular circumstances specified in each section, the former fixing an absolute liability
upon a railroad to an owner of cattle killed on unfenced right-of-way, irrespective of negligence. NRS
705.120, 705.150, subd.2.
2. Railroads.
Statute pertaining to transfer of functions formerly resting in Railroad Commission to Public Service
Commission, would not be deemed to have impliedly repealed statute pertaining to prima facie negligence
of railroad in destroying cattle on unfenced right-of-way. NRS 703.010 to 710.600, 704.020,
705.150.
3. Construtional Law.
Consideration of constitutionality of a statute would not be made where unnecessary to disposition of an
appeal.
OPINION
This appeal challenges the constitutionality of our statutes fixing the liability of railroads
whose engines and cars have killed livestock. Before turning to the statutes in question and to
the constitutional issues presented to this court, reference must be made to the pleadings and
to the issues as presented to the district court pursuant to agreement and stipulation. By way
of prolepsis it may be noted that these differ from the issues presented here on appeal.
The complaint of the plaintiff, respondent in this appeal, contained, as we interpret it, two
separate counts. As to both of these counts, he alleged the existence and operation of the
defendant railroad, his ownership of five head of cattle specifically described, and their value
of $1,250, and the destruction of said cattle by the engine and cars of the railroad, as well as
the specific point at which the destruction had occurred. The first count alleging the statutory
liability of the railroad is contained in a paragraph reading as follows: That the place at
which plaintiff's animals went upon the railroad and where they were injured and killed by the
engine and cars as aforesaid was not at a point where the railroad was enclosed by lawful
fence
* * *. The railroad's answer specifically admitted this allegation.
The second count alleges that the animals were negligently and carelessly killed while the
engine and cars of the defendant were being negligently run and operated, and that the
resulting damage of $1,250 for the loss of said cattle was the result of such negligence.
While it is true that these counts are not set up as separate claims or causes of action but
are simply contained in separate paragraphs of the complaint, the railroad did not attack the
complaint in any way {except by challenging the constitutionality of the statutes
involved).
railroad did not attack the complaint in any way (except by challenging the constitutionality
of the statutes involved). It accepted the pleading as permitted by NRCP Rule 8(e)(2)
allowing a party to set forth two or more statements of the claim in one count or separate
counts, and did not assert, as permitted by NRCP Rule 12(e), that the complaint was vague or
ambiguous, or move for a more definite statement. Accordingly, under Rule 12(h), it waived
any such ground of attack. Instead, the railroad admitted the destruction of the cattle on its
unfenced railroad, denied negligence, and alleged the contributory negligence of the plaintiff.
It counterclaimed for $412.71 damages to its engine and cars as the result of plaintiff's alleged
negligence in permitting his livestock to stray upon the right-of-way and tracks of the
defendant.
As a further defense the railroad alleged: Defendant is informed and believes, and upon
such information and belief alleges that the plaintiff intends to rely upon the provisions of
Sections 705.120, 705.130 and 705.150 of the Nevada Revised Statutes. Defendant alleges
that said sections * * * are unconstitutional * * * and deny to the defendant the equal
protection of the laws of the State of Nevada, in violation of section 1 of the Fourteenth
Amendment to the Constitution of the United States of America.
1

The parties to the action and to this appeal filed a stipulation agreeing, among other things,
as follows: The appellant contends that the conclusions of law and judgment from which this
appeal is taken are erroneous in that sections 705.120 NRS and 705.150 NRS are
unconstitutional and discriminate against the appellant and deny to the appellant the
equal protection of the laws of the State of Nevada contrary to the Fourteenth
Amendment of the Constitution of the United States * * *.
____________________

1
Defendant also asserted that the statutes in question deprived the defendant of property without due process
in violation of Art. 1, sec. 8, of the state constitution, and also violated the provisions of Art. 4, sec. 21, requiring
all laws to be general and of uniform operation thoughout the state in all cases where a general law can be made
applicable. However, as these grounds are discussed incidentally to the main contention of the denial to
defendant of the equal protection of the laws, such additional grounds are not discussed in this opinion.
unconstitutional and discriminate against the appellant and deny to the appellant the equal
protection of the laws of the State of Nevada contrary to the Fourteenth Amendment of the
Constitution of the United States * * *. The respondent on the other hand, contends that said
sections of NRS are constitutional, * * *.
In its oral argument before this court on appeal appellant specifically waived its attack
upon the constitutionality of section 705.120 NRS and restricted the grounds of its appeal to
its contention that section 705.150 is unconstitutional.
The minutes of the trial court show the further stipulation: Stipulated between counsel
that a train belonging to the defendant the Union Pacific Railroad Company did on the 6th
day of December, 1957 at a point approximately 4 1/2 miles northeast of Moapa, Nevada at
2:30 a.m. run against, strike and kill five cattle owned by the plaintiff (said cattle being more
particularly described in the complaint). Further stipulated that the area where the cattle were
killed was unfenced and the cattle were killed on the right-of-way of the defendant railroad
company. The trial court found the value of the cattle killed to be $1,250. No evidence was
offered by plaintiff of any negligence on the part of the defendant. No evidence was offered
on behalf of defendant as to any contributory negligence on the part of the plaintiff.
We turn now to the statutes involved.
Our main statute governing the rights and obligations of railroads is NRS Chapter 705 and
comprises sections 705.010 to 705.480. Section 705.120 is entitled:
Duty of maintaining fences; liability for killing livestock. It reads as follows:
1. Railroad corporations must make and maintain a good and sufficient fence on both
sides of their track and right-of-way. In case they do not make and maintain such fence, if
their engines or cars shall kill or maim any cattle or other domestic animals upon their line of
road, they must pay to the owner of such cattle or other domestic animals a fair market
price for the same, unless it occurred through the neglect or fault of the owner of the
animal so killed or maimed.
or other domestic animals a fair market price for the same, unless it occurred through the
neglect or fault of the owner of the animal so killed or maimed.
2. Nothing in this section shall require any railroad company to fence its right-of-way
through any town or city.
Sections 705.130 and 705.140 are not involved in this appeal.
Section 705.150 is entitled: Liability of railroad for negligent killing, injuring livestock;
prima facie evidence of negligence. It reads as follows: Every railroad corporation or
company, operating any railroad or branch thereof within the limits of this state, which
negligently injures or kills any animal of the equine, bovine, ovine or porcine species, or the
goat kind, by running any engine or engines, car or cars, over or against any such animal shall
be liable to the owner of such animal for the damages sustained by such owner by reason
thereof, unless it be shown on the trial of any action instituted for the recovery of such
damages as provided in NRS 705.160 that the owner of such animal or animals immediately
contributed to such killing or injury; provided:
1. That the mere straying of such animal or animals upon or along the railroad track or
tracks concerned shall not be held upon such trial to be any evidence of contributory
negligence on the part of the owner of such animal or animals, nor shall the grazing of the
same unattended by a herder be so considered; and
2. That the killing or injury in such actions shall be prima facie evidence of negligence
on the part of such railroad corporation or company.
The trial court's findings of fact were in favor of the plaintiff, respondent herein, on both
counts. On the count of liability for livestock killed by the railroad on its unfenced
right-of-way the court found: That on said date, one of the defendant corporation's trains
struck and killed said cows [plaintiff's five head of cattle of the total fair market value of
$1,250.00] on an unfenced portion of defendant's railroad right-of-way located outside of
any town or city, in said County of Clark."
an unfenced portion of defendant's railroad right-of-way located outside of any town or city,
in said County of Clark.
The court then found, on the second count, that no evidence tending to prove or disprove
negligence or contributory negligence on the part of either party was offered but that the
plaintiff relied solely on the provisions of subsection 2 of section 705.150 to establish
evidence of negligence.
As conclusions of law the court likewise concluded in favor of plaintiff on both counts, (1)
that under section 705.120 the defendant was under a duty to make and maintain a good and
sufficient fence along its railroad right-of-way, and (2) that under section 705.150 defendant
was prima facie guilty of negligence.
[Headnote 1]
(1) We hold that sections 705.120 and 705.150 are separate and distinct from each other.
Each of these sections fixes a liability upon the defendant under the particular circumstances
of each section. The title of each of the two said sections may well have been inserted by the
codifier of the statute, and may perhaps not properly be considered a part of the section. In
our opinion, however, it properly and appropriately in each case recites the nature and
purpose of the section.
Section 705.120 fixes an absolute liability upon the railroad to the owner of cattle killed on
the unfenced right-of-way, irrespective of the presence or absence of negligence on the part of
such railroad. Arizona Eastern R.R. Co. v. Matthews, 28 Ariz. 443, 237 P. 384; Saccamonno
v. Great Northern Ry. Co., 30 Idaho 513, 166 P. 267; Bernardi v. Northern Pacific Ry. Co.,
18 Idaho 76, 108 P. 542, 27 L.R.A.(N.S.) 796.
The rule is expressed in 440 Am.Jur., Railroads, sec. 575, p. 828, as follows:
575 The ordinary statute requiring railroad corporations to construct fences along their
right of way and cattle guards and gates at crossings imposes upon them, for negligent failure
to obey its requirements, a direct liability for injuring or slaughtering livestock straying
upon the tracks in consequence of the absence of barriers required by the statute.
direct liability for injuring or slaughtering livestock straying upon the tracks in consequence
of the absence of barriers required by the statute. Whether or not such statutes provide in
terms for the recovery of damages for neglecting to erect and maintain fences, their general
effect is to make railroad companies liable for injuries to cattle entering on the track where so
unfenced, without regard to any question of negligence or the degree of care used in the
management of the train, or to the fact that the cattle are trespassers, and to give a private
party whose animals have been killed or injured a right of action for such injuries although
the statute does not in terms confer a remedy * * *. This is supported by reference to
decisions of the United States Supreme Court and of a majority of the courts of last resort of
all the states in the Union, and by annotations in 5 L.R.A. 737; 8 L.R.A. 135; 9 L.R.A. (N.S.)
348; L.R.A. 1915 E 539; 22 Am.St.Rep. 148; 38 Am.St.Rep. 222; 39 Am.St.Rep. 138; 56
Am.St.Rep. 458.
While it is true that the statutes considered in these various cases are not identical and that
in some of the statutes a negligent failure to obey the requirements for fencing or some
other form of negligence is included, many of the statutes considered are identical with our
own and the rule seems well established that without any consideration of negligence,
destruction of livestock on the railroad's unfenced right-of-way entitles the plaintiff to a
recovery.
(2) During the oral argument respondent for the first time raised the effect upon this appeal
of NRS 704.020, which reads in part (704.020(1)(e)) as follows:
All duties required of and penalties imposed upon any railroad or any officer or agent
thereof shall, insofar as the same are applicable, be required of and imposed upon the owner
or operator of such automobiles, auto trucks or other self-propelled vehicles transporting
persons or property for hire over and along the highways of this state as common carriers,
express companies, telegraph and telephone, radio, broadcasting, airship companies, and
companies which may own cars of any kind or character, used and operated as a part of
railroad trains in or through this state, and their officers and agents, and the commission
shall have the power of supervision and control of all such companies and individuals to
the same extent as of railroads."
kind or character, used and operated as a part of railroad trains in or through this state, and
their officers and agents, and the commission shall have the power of supervision and control
of all such companies and individuals to the same extent as of railroads.
[Headnote 2]
Appellant argues that because NRS 705.150 is limited in its application to railroads only, it
has either been impliedly repealed by NRS 704.020, last above quoted, or, in effect, denies to
railroads the protection given to common carriers by motor vehicle against whom negligence
would have to be proved in order to establish liability.
NRS 704.020 is a part of Title 58 which includes Chapters 703 to 710, inclusive, a
comprehensive act governing all utilities, railroads, and other carriers. The original act
creating the railroad commission is found in Chap. 44, Stats. 1907, p. 73. It was amended in
1909, 1911, 1915 and 1917. See Nevada statutes of those years. It was repealed by Chap. 109,
Stats. 1919, p. 198. This act was entitled An Act defining public utilities, providing for the
regulation thereof, creating a public service commission, defining its duties and powers, and
other matters relating thereto. Under section 7 of that act the term public utility was
defined as embracing all corporations, companies, individuals, etc., and specifically including
all railroads. In Chap. 162, Stats. 1911, p. 322, the legislature passed an act making the
railroad commission of Nevada ex officio a public service commission for the regulation and
control of certain public utilities. However, section 45 of the act defining public utilities,
Chap. 109, Stats. 1919, p. 198, specifically repealed not only the act of 1907 creating the
railroad commission but likewise the act of 1911 making it ex officio a public service
commission. In short, all of the functions and duties formerly resting in the railroad
commission are now contained in the act creating the public service commission. Numerous
sections of that act provide in detail for the complete transfer of these duties and functions.
Section 704.020 is, in our opinion, one of such sections showing such complete turnover of
power.
is, in our opinion, one of such sections showing such complete turnover of power. It bears no
relevancy to the asserted denial to railroads of the equal protection of the laws.
[Headnote 3]
(3) We have emphasized in this opinion the fact that appellant withdrew all claim that
section 705.120 is unconstitutional. This being so, under the pleadings, admissions,
stipulations, and agreements of the parties, respondent is entitled to an affirmance of his
judgment by reason of the destruction of his livestock by the engines and cars of the railroad
on its unfenced right-of-way. There is no occasion, then, for this court to pass upon the issue
raised by the appellant to the effect that the provisions of 705.150 are violative of
constitutional provisions. Such consideration is entirely unnecessary to the determination of
this appeal. Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568-575, 67
S.Ct. 1409, 91 L.Ed. 1666; State v. Plunkett, 62 Nev. 265, 149 P.2d 101; State ex rel. Whalen
v. Welliver, 60 Nev. 160, 104 P.2d 1016 (On Petition for Rehearing); State ex rel. Adams v.
Allen, 55 Nev. 346, 34 P.2d 1074.
Affirmed with costs.
____________
77 Nev. 290, 290 (1961) Appeal of William Gregory
In the Matter of the REPORT OF THE WASHOE COUNTY
GRAND JURY; APPEAL OF WILLIAM GREGORY.
No. 4375
June 5, 1961 362 P.2d 447
Appeal from the Second Judicial District Court, Washoe County; Clel Georgetta, Judge.
Proceeding by a former police chief to expunge a grand jury report so far as it pertained to
the chief. The trial court denied relief, and the chief appealed.
The Supreme Court, George E. Marshall, D. J., held that the report did not accuse the
police chief of any crime or willful or corrupt misconduct in office, and indicated nothing
more than inefficiency or incompetency, and the refusal to expunge the report was proper.
Affirmed.
Ernest S. Brown, of Reno, for Appellant.
William J. Raggio, District Attorney of Washoe County, for Washoe County Grand Jury.
Grand Jury.
Grand jury report indicating that in one instance instructions apparently came from police chief not to
arrest a prostitute and that instruction was requested by a councilman, and setting forth recommended
standards for appointment of police chief, alleged at most inefficiency and incompetency, did not allege
that police chief was guilty of any crime, and did not indicate that chief had engaged in any willful or
corrupt misconduct, and refusal to expunge report was proper. NRS 172.300.
OPINION
By the Court, Marshall, D. J.:
This is an appeal from a judgment and decision of the trial court denying appellant's
amended petition and motion to expunge the Washoe County grand jury report insofar as it
pertains to the appellant. The gist of the proceedings is such that the appellant contends by the
filing of its third report consisting of very numerous topics pertaining to the office of the chief
of police that he was charged by the grand jury with the commission of a crime or crimes
without authority in the law and therefore requests that the complete record of the doings of
the said appellant be expunged and the report stricken from the records.
The pertinent facts are that on June 18, 1959 William Gregory was appointed chief of
police of the city of Reno by the Reno City Council. On June 22, 1960 the Washoe County
grand jury returned to the court a written report of its investigation of the Reno police
department in which the grand jury criticized the chief of police, William Gregory, found him
incompetent to administer the department and recommended that he be replaced by a
person who was a qualified administrator.
of police, William Gregory, found him incompetent to administer the department and
recommended that he be replaced by a person who was a qualified administrator. Thereafter,
on June 28, 1960 the appellant was dismissed by the city council of the city of Reno.
The entire inquiry involves the construction of NRS 172.300, which reads as follows:
1. The grand jury must inquire into:
(a) The case of every person imprisoned in the jail of the county, on a criminal charge,
and not indicted.
(b) The condition and management of the public prisons within the county.
(c) The willful and corrupt misconduct in office of public officers of every description
within the county.
2. The grand jury may inquire into any and all matters affecting the morals, health and
general welfare of the inhabitants of the county, or of any administrative division thereof, or
of any township, incorporated city, irrigation district or town therein.
The extensive briefs that have been filed by the parties hereto would indicate that the case
for either side requires this court to reexamine the case of In Re Ormsby Grand Jury, 74 Nev.
80, 322 P.2d 1099, wherein the court held that where a grand jury is unable to indict for
alleged misconduct it has no right to deal with the issue of guilt or to administer censure, and
in making its report should confine itself to finding the facts and making recommendations in
the public interest. In that case the above-enumerated duties of the grand jury were stated, and
in that case the appellants sought to expunge the conclusions. The final conclusion of the
Ormsby County grand jury case states that, We have no present criminal recourse in any of
the transactions herein reported. It was contended that the grand jury had no right to deal
with the issue of guilt or to administer censure, and that in making a report it should have
confined itself to its findings of fact and recommendations.
The court speaking through Justice Merrill in the Ormsby County grand jury case states:
"There are limits to its reportorial power, however.
There are limits to its reportorial power, however. Such power to report upon public
affairs must be distinguished from the power to accuse of public offense, which by statute is
accomplished by indictment or presentment. The grand jury has no power, where the law is
silent, to declare certain acts to be public offenses through the fixing of standards in
accordance with its ethical or moral views.
In the present case it is the contention of the appellant that the entire report of the grand
jury filed June 22, 1960 should be expunged; so that leaves for consideration whether or not
the Washoe County grand jury exceeded its prerogative in filing the report so referred to.
There are many instances in the report which could readily indicate the grand jury's
displeasure with the manner in which the appellant conducted his office. The report in
Section II recommended as follows that suitable qualifications should be adopted for
selection of a police chief:
Basic qualifications should be established for the position of Chief of Police. As a
suggestion, to be eligible, a person should:
(1) Have reached age thirty (30); and
(2) Have graduated from high school or equivalent; and
(3a) Have held a command position with a law enforcement agency of comparable or
larger size for a minimum period of two (2) years, with at least five (5) years total service in
law enforcement; or
(3b) Have graduated from the F.B.I. Academy or a training program of comparable
stature; or
(3c) Have served as an agent with the Federal Bureau of Investigation, or comparable
agency, for a minimum period of five (5) years; * * *
And these were followed by further recommendations of the grand jury. They are nothing
more than standards which are recommended for the appointment of a chief of police.
And the report refers to instances of members of the press having been invited to attend
secret raids of the vice squad and to attend the capture of a wanted criminal outside
Nevada; and that the press corps had been allowed to view all reports even before the
same were transmitted to the prosecuting agency.
the vice squad and to attend the capture of a wanted criminal outside Nevada; and that the
press corps had been allowed to view all reports even before the same were transmitted to the
prosecuting agency. Such practice was stated to be antagonistic to certain provisions of the
Municipal Code of Reno.
Under another topic, political interference, reference was made to councilmen having
attempted to exert influence on Chief Gregory. The report states in part:
In one instance instructions apparently came from Chief Gregory not to arrest a prostitute,
and this instruction was requested by a councilman (Cowen).
Viewing the report in its entirety and in the light of the decision of the Ormsby County
grand jury case, supra, it is difficult to find where or in what paragraph of the report the
appellant has been accused of any criminal act. Certainly on the basis of the report of the
grand jury there is no indication from the record that an act of prostitution had been
committed within the presence of or even the knowledge of the chief which would warrant an
arrest, since to make an arrest for an offense of this type it would seem that more than a mere
request not to arrest somebody for prostitution would be necessary to constitute a crime. And
again the recommendations to the city council of Reno to improve their standards by adopting
some form of standard to be used in the appointment of a chief cannot be said to be charging
the chief with any crime, and the entire report certainly fails to indicate that the chief had
engaged in any willful or corrupt misconduct in office referred to in NRS 172.300. In fact, the
report only indicates that the grand jury was inquiring into matters concerning the morals,
health, and general welfare of the inhabitants of the city of Reno.
Counsel filed a supplementary opinion wherein he referred to the case of Wood v. Hughes,
9 N.Y.2d 144, 212 N.Y.S.2d 37, wherein the Court of Appeals of New York held that there
was no authority for the filing of a report by a grand jury on alleged mismanagement in public
office where investigation of the charges of misconduct on the part of the public officers
uncovered no evidence warranting indictment.
warranting indictment. A careful analysis of the case would indicate that the statutes of New
York upon which the decision was rendered do not contain the provisions of section 2 of
NRS 172.300 referring to an inquiry of matters affecting the morals, health, and general
welfare of the inhabitants of the county, etc. In spite of the lack of statutory authority in New
York to investigate into such matters the three very strong dissenting opinions compel us to
the view that had such a provision as section 2 of NRS 172.300 been incorporated in the laws
of New York that the weight of the dissenting opinions would have compelled a different
result in the New York case. We believe that section 2 of NRS 172.300 gives to the grand
jury a much broader power than is indicated in the New York statute where the only provision
that the grand jury was empowered to inquire into was willful and corrupt misconduct in
office by public officers. Code Cr.Proc.N.Y., sec. 253.
Respondent contends that no violation of the rules enunciated in the Ormsby County grand
jury case have been violated by the filing of the report in the instant case. In this we concur
upon the ground that there is nothing stated in the report that would constitute an accusation
of anything except inefficiency and incompetency.
It is apparent from the voluminous opinion of the lower court that the remarks sought to be
expunged were legitimate as being the result of a legitimate inquiry into matters affecting the
morals, health, and general welfare of the public.
Affirmed.
Badt, C. J., being absent on account of illness, the Governor commissioned Honorable
George E. Marshall, Judge of the Eighth Judicial District Court, to sit in his place.
____________
77 Nev. 296, 296 (1961) Nev. Industrial Comm'n v. Dixon
NEVADA INDUSTRIAL COMMISSION, Appellant,
v. HARVEY J. DIXON, Respondent.
No. 4365
June 12, 1961 362 P.2d 577
Claim for compensation under Nevada Industrial Insurance Act, NRS 616.010 et seq., for
injuries suffered while traveling to regular place of work was denied, and claimant brought
suit against the Industrial Commission. The lower court rendered judgment awarding benefits
under the Act, and the commission appealed. The Supreme Court, McNamee, J., held that, as
used in provision of labor agreement requiring employer to provide board and lodging or
subsistence in stated amount, quoted word meant money furnished employees in lieu of
board and lodging and not travel time pay within exception to general rule precluding
compensation for injuries suffered while going to or from work.
Reversed.
(Petition for rehearing denied July 17, 1961.)
William J. Crowell, of Carson City, for Appellant.
1. Workmen's Compensation.
Generally, injuries sustained by employee while going to or returning from regular place of work are not
regarded as arising out of and in course of employment within Industial Insurance Act. NRS 616.010
et seq.
Where contract of employment covers travel time to and from work and compensation is computed from
time employee leaves home until his return, under exception to general rule, injury suffered while traveling
to or from work is one arising out of and in the course of employment within Industrial Insurance Act.
NRS 616.010 et seq.
Whether subsistence allowance payable under labor agreement was allowed employee, wholly or in part,
to compensate him for travel time within exception to general rule precluding compensation for injuries
suffered while going to or from work was legal question requiring construction of subsistence provision of
agreement. NRS 616.010 et seq.
As used in labor agreement requiring employer to provide board and lodging or subsistence in
specified amount, quoted word meant money furnished employees in lieu of board and lodging and not
travel time pay within exception to general rule precluding compensation for injuries suffered while going
to or from work. NRS 616.010 et seq.
5. Labor Relations.
Labor agreement provision requiring payment of travel time for one trip to job and one trip back in
addition to subsistence, meant initial trip to and final trip from job.
OPINION
Respondent was injured in an automobile accident while traveling from his home in Las
Vegas to Camp Mercury where he was employed as a pipefitter by Reynolds Electrical &
Engineering Company, hereinafter called Reynolds. The distance between Las Vegas and
Camp Mercury is 60 miles. At the time of the accident respondent was riding in an
automobile owned and operated by a friend who had no connection or relationship with
Reynolds. Both respondent and Reynolds had accepted the provisions of the Nevada
Industrial Insurance Act and coverage under said Act was in effect on the date of said
accident.
Respondent filed a claim with appellant Nevada Industrial Commission for compensation
as a result of the accident. The claim was denied on the ground that the accident did not arise
out of and in the course of respondent's employment. Thereafter, this suit was brought by
respondent against the Commission. The lower court held that the respondent was entitled to
the benefits of said Act. Appeal is from the judgment to this effect. This case involves the
application of the going and coming rule to the particular facts and circumstances involved
herein.
[Headnote 1]
If the foregoing were the only facts relating to the action it is conceded by all parties that
respondent would not have been entitled to compensation under said Act because of the
general rule which provides that injuries sustained by employees while going to or
returning from their regular place of work are not deemed to arise out of and in the
course of their employment.
Act because of the general rule which provides that injuries sustained by employees while
going to or returning from their regular place of work are not deemed to arise out of and in
the course of their employment. See Voehl v. Indemnity Ins. Co., 288 U.S. 162, 169, 53 S.Ct.
380, 382, 77 L.Ed. 676, 680.
[Headnote 2]
The present case involves additional facts which respondent contends brings this case
within an exception to said general rule. This exception is that where the contract of
employment covers the period of going to and from work and compensation is computed
from the time the employee leaves home until his return, an injury sustained by him while on
his way to and from work is one arising out of and in the course of his employment.
The additional facts which respondent claims support his contention arise from the
provisions of a labor agreement.
The terms of respondent's employment were covered, in part, by a labor agreement,
Section 8(a) of which provides:
On any work performed outside the city limits of Las Vegas and North Las Vegas, the
Employer shall allow travel expense to and from the job, based on the straight time hourly
wage rate as agreed between the employer and the union.
On any job so located that it would be impracticable to travel forth and back to the city
limits of Las Vegas, the employer shall provide suitable board and lodging or Forty Dollars
($40.00) per week subsistence, or Eight Dollars ($8.00) per day if job is of less than five (5)
days' duration; or if more than five (5) days are worked per week, Eight Dollars ($8.00) per
day. In the event suitable board and lodging can be obtained for less than the subsistence per
week, the employee shall receive the difference.
On jobs where subsistence is paid, the employer shall pay travel time plus ten cents (10)
per mile for one trip to the job and one trip back, in addition to the subsistence. If employer
provides transportation, the 10 per mile need not be paid.
10 per mile need not be paid. The travel time pay shall be at the stipulated straight time
hourly wage rate.
It shall be the prerogative of the employee to choose between the subsistence or the board
and lodging.
In addition to respondent's regular wages he received extra pay of $8 per day under the
subsistence terms of said Section 8(a). This subsistence allowance was paid to all employees
whether they used the facilities for board and room at Camp Mercury or commuted and
irrespective of the amount of their hourly pay.
[Headnote 3]
Thus the question to determine is whether the $8 per day in whole or in part was allowed
respondent to compensate him for travel time to and from work. He is entitled to the benefits
of said Act only if this question is determined in the affirmative. The question is not a factual
one as claimed by respondent. It is purely legal, the determination of which can be made only
by construing Section 8(a).
[Headnotes 4, 5]
We are not concerned herein with the first paragraph of Section 8(a) because subsistence
in the amount of $8 per day was being paid under the second paragraph. Nevertheless
respondent argues that because an employee has the prerogative to choose between
subsistence or board and lodging, subsistence being something other than board and lodging
can only mean travel pay. This is a fallacia consequentis, an inference that does not follow
from the premises. Subsistence as used in Section 8(a) means money furnished by the
employer to the employee in lieu of the board and lodging the employer was required to
furnish under the labor agreement. The agreement in effect so states. That it is different and
distinct from travel pay for travel time is apparent from the third paragraph, which provides
for travel time in addition to subsistence for one trip to the job and for one trip back which we
construe to mean the initial trip and the final trip to and from the job. This was not the final
trip from the job. Neither was it the initial trip to the job.
There was no obligation on the part of Reynolds to provide respondent transportation for
the particular trip during which the accident occurred.
provide respondent transportation for the particular trip during which the accident occurred.
We necessarily conclude from the foregoing that respondent was not receiving travel time pay
at the time of the accident and, therefore, he is not within the claimed exception to the general
rule which would allow him compensation under the Act. Kerin v. Industrial Commission,
239 Wis. 617, 2 N.W.2d 223; National Surety Corp. v. Bonds, 5 Cir., 275 F.2d 389.
Cases cited by respondent which allow recovery under a workmen's compensation act can
be distinguished.
In Puett v. Bahnson, 231 N.C. 711, 58 S.E.2d 633, where the employer assumed the
burden of the workman's coming and going expense the court held that the coming and going
was a part of the time of employment.
In the case of Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 67 S.Ct. 801, 91
L.Ed. 1028, the employer therein, as distinguished from the present case, was contractually
obligated to pay transportation allowance in lieu of providing daily transportation. To the
same effect are the cases of U. S. Fidelity & Guaranty Co. v. Donovan, 94 U.S.App. D.C.
377, 221 F.2d 515, and Shaver v. Allstate Insurance Co. (Tex.), 289 S.W.2d 429.
Freire v. Matson Navigation Co., 19 Cal.2d 8, 118 P.2d 809, while recognizing the general
rule, held that the injured employee was entitled to compensation under the Workmen's
Compensation Act applicable for the reason that there was a causal relationship between the
accident and his employment.
The following Nevada cases were not cited by either party: Provenzano v. Long, 64 Nev.
412, 183 P.2d 639; Nevada Ind. Com. v. Leonard, 58 Nev. 16, 68 P.2d 576; Costley v.
Nevada Ind. Ins. Com., 53 Nev. 219, 206 P. 1011. Each can be distinguished from the present
case.
In Provenzano, plaintiff was injured after stepping out of defendant's building where he
had just quit work while he was still in front of the door by defendant's truck which drove up
and was unable to stop because of defective brakes. In Leonard, a teacher was injured while
going from her home to school at a time when she was performing a duty incidental to her
employment.
while going from her home to school at a time when she was performing a duty incidental to
her employment. The Costley case involved a miner who was injured before the hour to work
had arrived but while he likewise was performing a service incidental to his employment and
on the employer's premises. This court properly held in each case that the accident arose out
of and in the course of the claimant's employment.
The judgment of the trial court that the respondent be awarded benefits provided by the
Nevada Industrial Insurance Act together with costs of suit being based on erroneous findings
must be reversed.
It is so ordered.
Pike, J., was present during the oral argument herein but resigned as justice prior to the
filing of this opinion.
____________
77 Nev. 301, 301 (1961) Archibald v. State
THAYNE H. ARCHIBALD, Appellant, v.
STATE OF NEVADA, Respondent.
No. 4330
June 19, 1961 362 P.2d 721
Appeal from the Second Judicial District Court, Washoe County; Richard R. Hanna, Peter
Breen, and Jon R. Collins, Judges.
Prosecution for murder wherein used cartridge fired from defendant's pistol was admitted
without objection. From adverse judgment of the lower court the defendant appealed. The
Supreme Court, McNamee, J., held that three photographs which portrayed portion of ledge
where body was found and which were offered to show where used cartridge had been found
19 days after death had occurred, were properly admitted over objection as to the time
interval.
Affirmed.
Alexander A. Garroway and Robert Leland, of Reno, for Appellant.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Confessions were sufficient to justify court in finding murder in the first degree. NRS 200.030.
2. Homicide.
Murder committed in perpetration of a robbery is deemed murder in the first degree. NRS 200.030.
3. Criminal Law.
In prosecution for murder wherein used cartridge fired from defendant's pistol was admitted without
objection, three photographs which portrayed portion of ledge where body was found and which were
offered to show where used cartridge had been found 19 days after death had occurred, were properly
admitted over objection as to time interval.
4. Criminal Law.
Exhibit of two confessions taken down in question and answer form and transcribed by court reporter,
who testified he transcribed notes correctly, were admissible over objection that transcript had not been
signed by defendant who had receieved a copy of exhibit and was given opportunity to read it before the
hearing.
5. Criminal Law.
Evidence of an armed robbery committed by defendant in Oregon some weeks afer committing murder in
Nevada was properly received to aid court in determining punishment on plea of guilty.
6. Criminal Law.
Testimony by defendant's stepmother as to what psychiatrist had told her following medical examination
of defendant was hearsay and properly rejected.
7. Criminal Law.
Records of penal institutions pertaining to psychiatric examinations of defendant and containing evidence
of prior felony conviction and juvenile criminal record and violations of army regulations while in military
service were properly excluded in a prosecution for murder.
OPINION
Appellant pleaded guilty to murder and after a hearing by a three-judge court to determine
degree and punishment pursuant to NRS 200.030, the court concluded that appellant was
guilty of murder in the first degree, fixed the penalty at death, and entered its judgment
accordingly.
that appellant was guilty of murder in the first degree, fixed the penalty at death, and entered
its judgment accordingly.
Appeal is from such judgment.
The evidence presented at the hearing showed that appellant on August 26, 1959 robbed
one Waters, a 17-year old service station attendant, in Livermore, California, kidnaped him
and drove him east of Sparks, Nevada, where appellant killed him by shooting him in the
back of the head. Thereafter, appellant stretched the victim out on the ground and shot him
again in the back of the head to make sure he was dead. The evidence was mainly obtained
from confessions of appellant and from his oral testimony in court.
It is not contended that the confessions were involuntary nor is the sanity of appellant
questioned on appeal. His counsel argues, however, that the killing was an impulsive act and
that there was not a sufficient showing of premeditation.
One version of the shooting as given by the appellant is that when the car stopped east of
Sparks, the victim suddenly bolted from the car and started to run; appellant then, without
thinking, impulsively shot at Waters. The other version given by him was that appellant took
Waters up to a narrow ledge off the road where, after giving some thought to the situation, he
determined to and did kill Waters by shooting him twice.
A letter written by appellant after his apprehension to Mr. Raggio, the district attorney, in
itself establishes premeditation:
Mr. Razzo, you hurt my feelings today. I also discovered that there is a squawk box
planted in the jail. You also crushed my ego when you cut up the idea of me writing my little
book to convince the public that I am only a misjudged good kid.
I like you, Razzo. You have got class and a smart way of getting a defenseless kid like me
to melt like butter. You are too easy and considering. No kidding, I really like you. I guess I
admire you. I like the Assistant D.A. He is a little strict but he is all right. Two people I
should fear but I like you.
I tell you what, my whole life has been centered around writing that book A Teenage
Desire'. It has been the plot of my life. Seriously, Razzo, I lived and breathed so I could write
it. I have lived and dreamed, robbed and murdered. Then what happened? You laugh at me. I
got back here to the jail and blew my top. I said things I never meant in the least. Tried to
make an impression on the boys. Sure, it is silly. I am smart enough to realize it. I act dumb
sometimes.
Look, Mr. Razzo, you have got the story all wrong. Very little of it is the truth. I lied a
lifetime just so I could write all the facts, write the truth, be the hero in my book. I studied
day and night while I was in prison so I would be prepared for my exit, be the brave one and
know all the answers. What happens? A stiffcollared, smooth-talking D.A. breaks my back.
You should feel real good. Appreciate your character, because you and Janice (my girl friend)
are the only people who have been able to get the truth out of me.
Your lie detector test don't work with me. I can control my blood pressure and
temperatures enough to make your machine mad. I wouldn't take one anyway. They are silly
and embarrassing.
Know something, Mr. Razzo, if I had taken the time to get rid of those empty cartridges
by the body and got rid of the gun and kept my mouth shut you people would have never had
connected me with that murder in a million years. You have got to give me that much credit. I
planned this to the split second. And I only goofed when I left the empty shells by the body.
This was premeditated murder because I was planning to collect ransom. And if you want
the story and no bull shit or no lies I will talk. But I want out of this cell. And if you are good
enough to do that I will play ball. It is really a remarkable story and every detail fits to a T'.
Think it over. Archibald.
[Headnotes 1, 2]
Although the various confessions differ in some respects, particularly with reference to
what took place immediately prior to the shooting, any one of them was sufficient to justify
the court in finding murder in the first degree.
first degree. Furthermore, under NRS 200.030 murder which is committed in the perpetration
of a robbery is deemed murder in the first degree. As in State v. Fouquette, 67 Nev. 505, 221
P.2d 404, the homicide in this case took place during the perpetration of a robbery and a
kidnaping.
Appellant assigns the following errors in his brief on appeal.
[Headnote 3]
1. Three photographic exhibits were received in evidence over objection which portrayed
the portion of the ledge where the body was found. They were offered for the purpose of
showing where the district attorney had found a used cartridge which later was identified as
having been fired from appellant's automatic pistol. The main objection to this evidence was
that the cartridge was not found until September 14th although death had occurred August
26th. This objection is without merit inasmuch as the cartridge itself was admitted into
evidence without objection. The interval of time, in any event, would affect merely the weight
and not the admissibility of the evidence.
[Headnote 4]
2. Two of the confessions given by appellant were taken down in question and answer
form and were introduced as one exhibit through the testimony of an official court reporter,
Richard Tuttle. He testified that the transcribed notes correctly and accurately stated verbatim
the conversations, one of which was with District Attorney Raggio and the other with
Assistant District Attorney Gezelin. Appellant's objection to this evidence was based on the
fact that appellant had not signed the transcript.
In State v. Boudreau, 67 Nev. 36, 51, 214 P.2d 135, 142, this court said: The general rule
is that a confession is admissible although not in the exact words of the accused, where it was
read by the accused and signed or otherwise admitted by him to be correct. In the present
case, appellant upon order of court received a copy of the exhibit and was given the
opportunity to read the same before the hearing. He acknowledged that the statements were
made by him and he did not dispute their accuracy.
the statements were made by him and he did not dispute their accuracy. The confession had
been made in Tuttle's presence. He could have testified from memory. A fortiori Tuttle's
written report of the same would be admissible.
On oral argument appellant's counsel made further objection to the exhibit on the ground
that the confession therein to Gezelin was a repetition of Gezelin's oral testimony already in
evidence. Counsel expressly stated that his objection was not based on the ground that the
evidence was cumulative. He argued that by having such evidence in written form it could be
taken into the jury room when the jury retired for deliberations. Although the same could be
true also with respect to that part of the exhibit containing the confession to Raggio, counsel
freely admitted that the Raggio part of the exhibit was properly in evidence even though it
could be taken by the jury into the jury room. It is difficult to follow counsel's logic in such
argument. Tuttle, as well as Gezelin, heard the confession to Gezelin and each was competent
to testify regarding the same. As stated before, the fact that Tuttle's evidence of the confession
was in written form did not make it inadmissible. Furthermore, this was not a trial before a
jury, but a proceeding before the court after a plea of guilty. See Rainsberger v. State, 76 Nev.
158, 350 P.2d 995.
[Headnote 5]
3. When appellant was apprehended in Baker, Oregon, it was for an armed robbery
committed by him there some weeks after the shooting of Waters. The circumstances of his
Oregon arrest were brought out by him on his direct examination. Thereafter, appellant
objected to evidence of this independent crime being received through appellant's written
statement given to the chief of police in Baker, Oregon. This evidence of an independent
crime was properly received in order to aid the court in determining the punishment. State v.
Blackwell, 65 Nev. 405, 198 P.2d 280, 200 P.2d 698. See also Anno., 77 A.L.R. 1211.
[Headnote 6]
4. Appellant objects to the court's refusal to permit his stepmother to testify what Dr.
Gorman, a Utah psychiatrist, had told her following his medical examination of appellant
while appellant was a ward of the Utah Industrial School. The testimony was clearly hearsay
and was properly rejected.
[Headnote 7]
5. After appellant had been a ward of the Utah Industrial School he became an inmate of
the Oregon State Penitentiary. Records of these institutions pertaining to psychiatric
examinations of appellant were obtained. Doctors testifying at the hearing were permitted by
stipulation to testify from said records, but the records themselves were excluded. Error is
claimed in the failure to admit said records in evidence. The exclusion of these records was
proper. They contained much hearsay and other matters immaterial to any of the issues
herein. Appellant's counsel did not designate any particular parts of the records he desired in
evidence. If the testimony of the doctors was inconsistent any way with the records they could
have been used for impeachment purposes, but they were not offered for impeachment. In fact
they were offered during the direct examination of Dr. Brown, one of appellant's own
witnesses, appellant's counsel stating at the time: I offer them in connection with the
testimony of this witness not as statements of facts but something on which he has based his
opinion * * *. These records contain evidence of appellant's prior felony conviction for
grand larceny and his imprisonment of more than two years therefor, his juvenile criminal
record, and his violations of army regulations while be was in the military service. The
exclusion of these records could only have been beneficial to appellant.
No prejudicial error appearing, the judgment is affirmed.
Inasmuch as the Honorable Richard R. Hanna, one of the judges who constituted the court
which heard the matter below, has resigned his office as district judge, the remaining two
judges who constituted the court are directed to execute another warrant pursuant to
NRS 176.440.
matter below, has resigned his office as district judge, the remaining two judges who
constituted the court are directed to execute another warrant pursuant to NRS 176.440.
Badt, C. J., and Thompson, J., concur.
____________
77 Nev. 308, 308 (1961) United Air Lines v. Krotke
UNITED AIR LINES, Inc., Appellant, v.
ENO C. KROTKE, Respondent.
No. 4373
June 21, 1961 363 P.2d 94
Georgetta, Judge.
Action by baggage owner for breach of contract by air carrier. The lower court entered a
judgment for the baggage owner and the air carrier appealed. The Supreme Court, Thompson,
J., held that the owner of lost luggage, whose air carrier baggage claim check stated that it
was subject to tariff regulations, failed to prove right to declared value of baggage received
when tariff regulations were not placed in evidence and court could not determine conditions
of contract.
Reversed.
(Petition for rehearing denied August 24, 1961.)
Vargas, Dillon and Bartlett, and Alexander A. Garroway, of Reno, for Appellant.
Gordon C. Shelley, of Reno, for Respondent.
1. Commerce.
Where luggage was lost on interstate airplane flight, rights and liabilities of parties were determined by
federal law. Federal Aviation Act of 1958, sec. 403, 49 U.S.C.A. sec. 1373.
2. Carriers.
Tariff filed by air carriers with Civil Aeronautics Board is part of contract under which baggage is
carried. Federal Aviation Act of 1958, sec. 403, 49 U.S.C.A. sec. 1373.
3. Carriers.
Owner of lost luggage whose air carrier baggage claim check stated that it was subject to tariff
regulations failed to prove right to declared value of baggage when tariff regulations were not placed in
evidence and court could not determine conditions of contract.
OPINION
By the Court, Thompson, J.:
This action is for damages for breach of contract. The material facts reveal that Krotke,
plaintiff below, purchased a ticket from United Air Lines, defendant below, for Flight 354
scheduled to leave Reno, Nevada at 6:50 a.m. November 7, 1957. His destination was Seattle,
Washington. At about 6:30 a.m. on that day Krotke reported to the air lines' counter at the
airport and checked two pieces of baggage, advising the clerk that he wished to insure them
for $3,600. He paid an additional $3.60 for his asserted value of the baggage and contents,
was given claim checks therefor, and a receipt on which was written $3,600 bag Ins. The
claim checks and receipt each contained the phrase that it was subject to tariff regulations.
Krotke then left the Reno airport and returned to his place of business. He did not board
Flight 354. However, his baggage was placed on the plane. Flight 354 went to San Francisco,
California, where passengers and baggage were transferred to United Air Lines Flight 671,
nonstop to Seattle, Washington, arriving there at 12:13 p.m. November 7.
On November 8 Krotke obtained a refund on his passenger ticket, less a no show
penalty. According to the records of United Air Lines, Krotke, at about 2:20 p.m. on the same
day, inquired about his baggage. At 2:45 p.m. November 8 the Reno office teletyped Seattle.
On November 9 the Seattle office advised the Reno office that Krotke's baggage was not
there. Subsequent inquiry failed to disclose its presence at any airport servicing United Air
Lines planes and, to this date, its whereabouts is unknown. Much later Krotke presented a
formal claim to United Air Lines for his loss in which, for the first time, he made reference
to thirty-six $100 bills, rolled and placed in a sock which was in one of the two pieces of
lost baggage.
for his loss in which, for the first time, he made reference to thirty-six $100 bills, rolled and
placed in a sock which was in one of the two pieces of lost baggage.
The lower court granted judgment to Krotke against United Air Lines for the sum of
$3,600, from which United Air Lines has appealed.
The claim for relief is based solely upon an alleged breach of contract. In his complaint
Krotke states that he contracted with defendant for transportation of his person and baggage
from Reno, Nevada to Seattle, Washington; that he delivered certain luggage to defendant,
to wit, one small satchel and one large Taperlite valise, and received from defendant a claim
check therefor; that upon presentation of the claim check and demand for the return of the
luggage the defendant neglected and refused to deliver said luggage. Krotke did not attempt
to plead or prove a claim for relief against United Air Lines on any other legal theory. The
complaint was not amended. Indeed, on appeal, counsel for Krotke conceded by his brief and
again during oral argument that his claim for relief is based upon an alleged breach of
contract only.
The lower court did not make findings of fact that would support a judgment against
United Air Lines upon any theory other than that pleaded. However, the lower court did
conclude, as a matter of law, that defendant failed to establish any defense to its liability as
either an insurer, a common carrier, a bailee, or a warehouseman. This, we think, was error
because the case below presented a claim for relief upon one theory only, to wit, breach of
contract. We do not feel constrained, therefore, by reason of the conclusion of the lower court
just mentioned, to discuss all possible theories upon which liability might be based.
[Headnotes 1, 2]
The flight here involved was interstate. Accordingly, the rights and liabilities of the parties
are determined by federal law. Ward v. Gulf, M. & N. R. Co., 23 Tenn. App. 533, 545, 134
S.W.2d 917, 925. Air carriers must file with the Civil Aeronautics Board, and keep open to
public inspection, tariffs showing all rates, fares and charges for air transportation between
points served by it.
and charges for air transportation between points served by it. 49 U.S.C.A., sec. 483, now sec.
1373. The tariff thus filed becomes a part of the contract under which baggage is carried.
Lichten v. Eastern Airlines, 2 Cir., 189 F.2d 939, 25 A.L.R.2d 1337; Wilkes v. Braniff
Airways, 288 P.2d 377; Randolph v. American Airlines, Inc., 103 Ohio App. 172, 144 N.E.2d
878; Jones v. Northwest Airlines, Inc., 22 Wash.2d 863, 157 P.2d 728; Melnick v. National
Air Lines, 189 Pa.Super. 316, 150 A.2d 566; Mustard v. Eastern Air Lines, Inc., 338 Mass.
674, 156 N.E.2d 696; S. Toepfer, Inc. v. Braniff Airways, 135 F.Supp. 671; Wadel v.
American Airlines, Tex.Civ.App., 269 S.W.2d 855.
[Headnote 3]
In the instant case the baggage claim checks were given subject to tariff regulations. The
receipt for the declared value of $3,600 was issued subject to tariff regulations. However,
the tariff regulations were not in evidence. It is, therefore, impossible for this court to
determine the terms and conditions of the contract upon which Krotke predicates his claim
for relief. Those terms and conditions may not be supplied by conjecture. Indeed, it is not
uncommon for such regulations to provide that money will be carried only at the risk of the
passenger. See: Lichten v. Eastern Airlines, supra; Wilkes v. Braniff Airways, supra;
Radinsky v. Western Air Lines, 125 Colo. 286, 242 P.2d 815.
We conclude that the plaintiff, Krotke, has failed to prove a claim for relief. Accordingly,
the judgment must be, and is, reversed.
____________
77 Nev. 312, 312 (1961) MacDonald v. Krause
CHARLES H. MacDONALD and ELSA V. MacDONALD, Appellants, v. MILTON H.
KRAUSE and NOLA L. KRAUSE, Husband and Wife, Respondents.
No. 4363
June 23, 1961 362 P.2d 724
Action by one who had entered into a contract to purchase property from the defendant to
recover, after he failed to make payments called for, the difference between that which he had
paid and the actual rental value of the property. The lower court rendered a judgment for the
defendants and the plaintiff appealed. The Supreme Court, Badt, C. J., held that the action
was a compulsory counterclaim in a prior quiet title action.
Affirmed.
(Petition for rehearing denied August 21, 1961.)
Gordon L. Hawkins and Tad Porter, of Las Vegas, for Appellants.
Richards & Swanson, of Reno, for Respondents.
1. Quieting Title.
Equity has inherent jurisdiction of bill to quiet title and to remove a cloud from title.
2. Quieting Title.
Defendant in quiet title action must plead as compulsory counterclaim demand for money judgment
against plaintiff arising out of same transaction as is subject matter of plaintiff's claim or be thereafter
barred from a separate suit therefor, irrespective of whether defendant in quiet title action has failed to
appear and has suffered a default judgment to be taken against him. NRCP 13(a); Fed.Rules Civ.Proc.,
Rule 13(a), 28 U.S.C.A.
OPINION
Two questions are presented for determination in this appeal: (1) In an action to quiet title
to real property must the defentant plead as a compulsory counterclaim defendant's demand
for a money judgment against plaintiff arising out of the same transaction that is the
subject matter of plaintiff's claim, or be thereafter barred from a separate suit therefor?
counterclaim defendant's demand for a money judgment against plaintiff arising out of the
same transaction that is the subject matter of plaintiff's claim, or be thereafter barred from a
separate suit therefor? We answer this question in the affirmative. (2) Is this conclusion
affected by the fact that the defendant did not appear in the action but suffered judgment to be
entered against him by default? We answer this inquiry in the negative.
1

We refer to the MacDonalds, appellants herein, as MacDonald, and to the Krauses,
respondents herein, as Krause.
Krause entered into a written contract to sell the property to MacDonald for $35,000. The
district court filed a decision reciting the facts in part as follows: (We have substituted the
names MacDonald and Krause for the court's use of the designation of plaintiffs and
defendants.) MacDonald paid a deposit of $500 to Krause and a down payment of $11,000
as provided by the terms of said contract and thereupon took possession. MacDonald failed to
make the subsequent payments that were due under the contract, and seeks relief upon the
theory that the difference between the money paid to Krause and the actual rental value is
$9,500. The contract was recorded in the office of the county recorder * * *. The filing of the
document created a cloud upon Krause's title * * *. Krause filed suit requiring MacDonald to
come forth and assert any interest he may have in said premises * * *. MacDonald failed to
answer or otherwise plead in said cause and a judgment was entered in favor of Krause
quieting title to the lands in dispute in said controversy. This judgment * * * is set up as a bar
to the litigation at hand upon the ground that the matter is res judicata.
____________________

1
Rule 13(a) NRCP reads as follows:
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction, except that such a claim need be so stated if at the
time the action was commenced the claim was the subject of another pending action. This is identical with the
federal rule (Rule 13(a), 28 U.S.C.A).
Krause had moved for a summary judgment. The court granted the motion, holding that
under NRCP Rule 13(a) MacDonald was barred by reason of his failure to set up his
counterclaim in the prior quiet title action and that the judgment in that action was res
judicata.
MacDonald's assignment of error is as follows: The court erred in its ruling that an action
to recover a penalty under a real property purchase and sale agreement, must be pleaded as a
compulsory counterclaim in an action to quiet title to the property involved. He further says:
The problem in this case is whether by virtue of appellants herein failing to counterclaim
upon the theory of unjust enrichment in the quiet title action, they are now precluded from
maintaining this action in an independent suit. Although we do not base our conclusions
upon the duty of the court, in such case, to do complete equity, it adds emphasis to the
conclusions hereinafter reached.
(1) In support of his assignment that the court erred in holding that MacDonald's action
against Krause was barred by the provisions of NRCP Rule 13(a), MacDonald places his
main reliance on two New Mexico cases and one California case. They are Lanehart v. Rabb,
63 N.M. 359, 320 P.2d 374; Clark v. Primus, 62 N.M. 259, 308 P.2d 584; and Zainudin v.
Meizel, 119 Cal.App.2d 265, 259 P.2d 460.
Lanehart v. Rabb depends entirely upon the earlier Clark v. Primus, which it follows.
Clark v. Primus was a proceeding brought by a bill to quiet title to realty formerly owned
by decedent, against decedent's first wife.
____________________
The prior sections of the civil practice act, secs. 8603 and 8604 NCL, 1929, read as follows:
8603. The counterclaim mentioned in the last section shall be one existing in favor of the defendant and
against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the
following causes of action:
1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the
plaintiff's claim, or connected with the subject of the action.
2. In an action arising upon contract, any other cause of action arising also upon contract and existing at the
commencement of the action.
8604. If the defendant omit to set up a counterclaim in the cases mentioned in the first subdivision of the
next preceding section, neither he nor his assignee can afterward maintain an action against the plaintiff
therefor.
a proceeding brought by a bill to quiet title to realty formerly owned by decedent, against
decedent's first wife. The first wife counterclaimed, seeking an accounting of rents and profits
from the premises. The trial court dismissed her counterclaim and, in affirming this action,
the Supreme Court of New Mexico simply disposed of the matter as follows: Appellee
assigns as error the action of the court in dismissing her counterclaims. We have considered
this assignment and find no error. The counterclaims, in the main, seek an accounting of the
rents, profits, etc., received from the premises. Hence, the issues raised by the counterclaims
are unrelated to the title to the premises. This being a statutory proceeding, counterclaims are
not within the purview of the quiet title statute, 22-14-1, N.M.S.A. 1953 Compilation.
Petrakis v. Krasnow, 54 N.M. 39, 213 P.2d 220, 222; Albarado v. Chavez, 36 N.M. 186, 10
P.2d 1102; Otero v. Toti, 33 N.M. 613, 273 P. 917. Compare McCarthy v. Kay, 52 N.M. 5,
189 P.2d 450. The authorities relied on for this holding are all decisions by the same court. It
is necessary to refer to them. Otero v. Toti, it may be noted, was decided in 1928, some 14
years before New Mexico adopted the federal rules. As we read the case, the holding was
simply that under the facts the plaintiff had no cause of action to quiet title, but that she
should have sued to establish a trust. The court said that both actions to establish a trust and
actions to declare a deed an equitable mortgage entitling the grantor to redeem are well
known to equity. The court then held [33 N.M. 613, 273 P. 918]: But they are not to be had
in a statutory proceeding to quiet title, the only issue in which is whether plaintiff has an
interest or estate in the property superior to the adverse claims. * * * But in our statutory suit
to quiet title we have created a form of action. * * * In such suits, however, the relief is
limited by the statute. A title may be quieted against an adverse claim, but a trust may not be
decreed, or a deed declared a mortgage. The case is of no assistance.
Nor is Albarado v. Chavez helpful. The Supreme Court of New Mexico sustained the
judgment of the trial court dismissing the plaintiff's complaint with prejudice.
prejudice. The holding was simply that a vendor who had been paid the purchase price of
realty, which was the sole condition precedent to delivery of an escrow deed, could not
maintain an action to quiet title as against the vendee in possession to cut off the latter's
equitable estate.
In Petrakis v. Krasnow the lower court dismissed the plaintiff's complaint and this
dismissal was reversed on appeal, the supreme court holding [54 N.M. 39, 213 P.2d 224]:
The plaintiff herein seeks * * * to quiet the title to lands to which he holds the record legal
title and is in possession as against liens claimed by others which cloud that title. The
dismissal of his complaint was not justified * * *.
The last notation of authority in Clark v. Primus is Compare McCarthy v. Kay * * *. The
headnote in that case reads as follows: The res judicata doctrine and rule against splitting
causes of action did not bar lessor's action against lessee for expenses incurred by lessor in
exposing forgery of lease set up by lessee to support his defense and cross-complaint for
damages in lessor's previous ejectment action, as count for such expenses could not be joined
in such action. The opinion was written when the federal rules were in effect in New
Mexico. Although in no way supporting the holding of the main case relied on, namely, Clark
v. Primus (it is referred to only for comparison and not as authority), it would appear to
support appellants' contention that the defendant's counterclaim for damages resulting from
the fraud of the quiet title plaintiff, arising out of the same transaction, did not constitute a
compulsory counterclaim but the proper basis of a subsequent action. In The New Rules' in
New Mexico, by Professor Jerrold L. Walden, 25 F.R.D. 107, 119, the author first notes:
The holding in Primus v. Clark makes little sense not only in light of the broad objectives of
procedural reform but from a practical standpoint * * *.
* * * Here the New Mexico supreme court held that in a suit to quiet title, a counterclaim
demanding an accounting of rents and profits derived from the premises in question could
not be asserted by defendant.
premises in question could not be asserted by defendant. No explanation for what appears to
be outright judicial repeal of Rule 13 was offered except that This being a statutory
proceeding, counterclaims are not within the purview of the quiet title statute.' We agree
with his comment that a careful reading of the quiet title statute reveals nothing specifically
nor inherently at variance with the unrestrictive counterclaim provisions of Rule 13. Pertinent
also is his reference to the New Mexico case of Martinez v. Mundy, 61 N.M. 87, 295 P.2d
209, 215, to the effect that a counterclaim to a quiet title complaint was proper since it merely
conformed to the old equity practice that * * * * [W]hen a court of chancery obtains
jurisdiction of a cause, it will retain it to administer full relief.
We are unable to accept the reluctance of the Supreme Court of New Mexico to accord to
Rule 13(a) the scope of the procedural relief, which we think was clearly intended by it. Since
the adoption of the federal rules in Nevada, effective January 1, 1953, litigants and attorneys
have continuously benefited by the reforms adopted therein. To limit unnecessarily the scope
of Rule 13(a) would, in our opinion, be a backward step.
[Headnotes 1, 2]
Before we leave the New Mexico cases upon which the appellants place such strong
reliance, we refer again to the statement made by the supreme court of that state in the Clark
case, supra: This being a statutory proceeding, counterclaims are not within the purview of
the quiet title statute. It has always been recognized that equity has inherent original
jurisdiction of bills to quiet title to property and to remove a cloud from the title. 74 C.J.S.,
Quieting Title, sec. 1, p. 10. They originated in the chancery courts to correct abuses
encouraged under the common-law system under which designing litigants by bringing
successive actions in ejectment harassed and annoyed the rightful owner. 44 Am.Jur. 5, n. 5;
Anno., 12 L.R.A. (N.S.) 49, Effect of Remedy at Law upon Equitable Jurisdiction to
Remove Cloud on Title. See Howard, Bills to Remove Cloud from Title, 25 W.Va.L.Q. 4
(1917-1918). In Low v. Staples, 2 Nev. 209
Staples, 2 Nev. 209, this court noted in 1866: The plaintiff [in this suit to quiet title] seeks a
remedy which Courts of Equity have always granted independent of any statute, where a
proper case was made out. This was quoted with approval by this court in Clay v. Scheeline
Bank & Trust Co., 40 Nev. 9, 16, 159 P. 1081. Such being true and in view of the recognized
province of the courts of equity to do complete justice between the parties, appellants' claim
for unjust enrichment, likewise grounded in equity (with restitution, quasi contract, implied
contract, resulting and constructive trust, accounting, and possibly other remedies), Magill v.
Lewis, 74 Nev. 381, 333 P.2d 717, may be the means applied to afford complete equitable
relief in one action.
The third case relied upon by appellants is Zainudin v. Meizel, 119 Cal.App.2d 265, 259
P.2d 460, 463. This was an action for fraudulent representations leading to the plaintiffs'
purchase from defendants of a leasehold in a hotel. Judgment was for the plaintiffs. The
contention in the trial court and on appeal was that the failure of the plaintiffs to plead their
claim as a counterclaim in defendants' prior suit for cancellation of the leasehold agreement
and to quiet title to the hotel furniture did not preclude their maintaining the present action.
The court said: Here the appellants' suit to quiet title to personalty could not have been
offset' in any degree by respondents' suit for damages for fraud. For that reason it would not
have been a proper counterclaim in the suit to quiet title. Further language of the court
indicated that the plaintiff's claim for damages in the second action could not have been
asserted by way of counterclaim in the first quiet title action, because it would not have
diminished or defeated the prior quiet title action. The case was decided in 1953. Strangely
enough, the court made no reference to Hill v. Snidow, 100 Cal.App.2d 37, 222 P.2d 962,
963, decided in 1950. That case (in which not only was a rehearing denied but a hearing by
the Supreme Court of California likewise denied) is directly in point in favor of respondents
in the instant appeal. In Hill v. Snidow, Hill sued to recover moneys alleged to be due him
as the result of a transaction entered into between the parties relative to the purchase by
Hill of certain realty.
moneys alleged to be due him as the result of a transaction entered into between the parties
relative to the purchase by Hill of certain realty. The California court sustained the action of
the trial court in favor of defendant to the effect that where defendant, as an affirmative
defense to plaintiffs' action, pleaded that there had theretofore been another action between
the same parties arising out of the same transaction, and that in such prior action the present
plaintiffs had omitted to set forth facts in the counterclaim, which facts arose out of the
transaction set forth in the previous complaint, the plaintiffs were now barred from alleging a
grievance arising out of the transaction. The court set forth the California statute C.C.P. sec.
439 as follows: If the defendant omits to set up a counterclaim upon a cause arising out of
the transaction set forth in the complaint as the foundation of the plaintiff's claim, neither he
nor his assignee can afterwards maintain an action against the plaintiff therefor.' It quoted
with approval the language used in Brunswig Drug Co. v. Springer, 55 Cal.App.2d 444, 449,
130 P.2d 758, as follows: A party cannot by negligence or design withhold issues and
litigate them in separate actions * * *. He may not split his demands or his defenses. * * *
Equity will not deal with a case by piece-meal.' When we note that the first action had been
brought by Snidow against Hill to quiet title to the property in question and the second action
had been filed by Hill against Snidow to recover money damages growing out of the same
transaction relative to the purchase of the property, we have here a direct holding by the
California court in support of the respondents. If Zainudin v. Meizel is contra, it is because it
is the result of applying C.C.P. sec. 438, which requires that the counterclaim must tend to
diminish or defeat the plaintiff's recovery, a requirement which does not appear in NRCP. In
2 Chadbourn, Grossman, Van Alstyne, California Pleading sec. 1686 (1961), the California
situation is discussed as follows: The chief restriction on counterclaims under the present
[California] statute is that a counterclaim must tend to diminish or defeat plaintiff's
recovery[Zainudin v. Meizel] a requirement in keeping with the theory that the
counterclaim is a part of the answer.
diminish or defeat plaintiff's recovery[Zainudin v. Meizel] a requirement in keeping with
the theory that the counterclaim is a part of the answer. In practice this means that use of the
counterclaim is confined principally to conflicting monetary claims. * * * When the
counterclaim relates to the same transaction as the complaint, however, the requirement may
perhaps be deemed satisfied even though the relief sought by the counterclaim differs from
that sought in the complaint. In support of this conclusion the writers cite as an example Hill
v. Snidow. We are justified in concluding that on this phase of the subject and on the facts of
the present appeal the California rule is reflected by Hill v. Snidow.
In United Artists Corp. v. Masterpiece Productions, Inc. (CA2d), 221 F.2d 213, 216, the
following language was used: We think that these pleadings disclose a sufficient logical
relationship so that, in the interest of avoiding circuity and multiplicity of action, the
counterclaim should be considered compulsory under the authorities cited above.
The rule is expressed as follows in 3 Moore, Federal Practice, par. 13.13, at 33 (2d ed.
1953): Subject to the exceptions, any claim that is logically related to another claim that is
being sued on is properly the basis for a compulsory counterclaim; only claims that are
unrelated or are related, but within the exceptions, need not be pleaded. See United States v.
Eastport S.S. Corp. (CA2d), 255 F.2d 795. The logical relationship between the claims
asserted in the quiet title suit and the present action is manifest. The subject matter of the
quiet title suit was the recorded contract of sale. MacDonald's possession of the real property
arose out of that contract. His present claim for money damages is the result of his having
paid money to Krause under that contract.
As to the breadth of meaning to be applied to a claim which arises out of the transaction
or occurrence that is the subject matter of the opposing party's claim, reference is made to
McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445, 33 L.R.A. {N.S.) 264, which used the
following language: "The words are general to the last degree; indeed, they must be so
for they are intended to provide for and apply to the myriad difficulties that may arise
between man and man in all kinds of situations, and no words of limited or narrow
meaning could be used."
N.W. 445, 33 L.R.A. (N.S.) 264, which used the following language: The words are general
to the last degree; indeed, they must be so for they are intended to provide for and apply to the
myriad difficulties that may arise between man and man in all kinds of situations, and no
words of limited or narrow meaning could be used. See 3 Moore, Federal Practice, par.
13.13, at 34, et seq. (2d ed. 1953), for many other federal cases. The reasons given for the rule
as requiring parties to litigate their differences in one suit, thus avoiding a multiplicity of
suits, are reflected in this state in Warren v. Delong, 59 Nev. 481, 97 P.2d 792, 795. Quoting
with approval the language of the Supreme Court of Minnesota in King v. Coe Commission
Co., 93 Minn. 52, 100 N.W. 667, this court said: The term transaction,' as used in the
statute, is obviously broader than the term contract,' and authorizes matters to be set up as
counterclaims, which could not be so pleaded as arising upon the contract relied upon by
plaintiff. The cause of action arises from the transaction set forth in the complaint when the
combination of acts and events, circumstances and defaults, upon which the rights of the
parties are based, when viewed in one aspect, result in plaintiff's right of action, and, when
viewed in another aspect, result favorably to defendant. The transaction is not necessarily
confined by the facts stated in the complaint, but the defendant may set up new facts, and
show the entire transaction, and counterclaim upon that state of facts as the transaction upon
which plaintiff's claim is founded.'
(2) Appellants contend that, conceding the ban against the second suit by reason of the
compulsory counterclaim rule, this can only apply where the defendant in the first suit has
appeared and answered. We do not consider that this contention is valid. Keller v. Keklikian,
362 Mo. 919, 244 S.W.2d 1001; Friedrichsen v. Cobb, 84 Mont. 238, 275 P. 267 (but see
dicta in Douglas v. Wisconsin Alumni Research Foundation, D.C. Ill., 81 F.Supp. 167, 170).
In Firemen's Insurance Co. of Newark v. L. P. Steuart and Bros., Inc., D.C. Mun.App.,
D.C. Mun.App., 158 A.2d 675, it was definitely held that the failure to assert a claim in an
earlier action, where the then-defendant suffered a default judgment, bars him from suing on
it in a later action, citing Woods v. Cannady, 81 U.S. App.D.C. 281, 158 F.2d 184, and
Comer v. Fistere, D.C. Mun.App., 103 A.2d 206. Likewise in United States v. Eastport S.S.
Corp. (CA2d), 255 F.2d 795, 805, the court rejected the contention that the rule applied only
when there was a trial on the merits. It is stated in the Advisory Committee notes to the
federal rules that independent suit is barred if the earlier action has proceeded to judgment,
without indicating what kind of a judgment it contemplates.
Affirmed.
McNamee, and Thompson, JJ., concur.
____________
77 Nev. 322, 322 (1961) Southern Nev. Tel. Co. v. Christoffersen
SOUTHERN NEVADA TELEPHONE COMPANY, a Nevada
Corporation, Appellant, v. V. CHRISTOFFERSEN, Respondent.
No. 4361
June 27, 1961 363 P.2d 96
Appeal from the judgment of the Eighth Judicial District Court, Clark County; Ryland G.
Taylor, Judge, writing opinion, and John C. Mowbray, Judge, signing findings and judgment.
Action against telephone company for penalties for failure to furnish requested service.
The lower court rendered judgment for plaintiff, and defendant appealed. The Supreme Court,
Thompson, J., held that the statute creating Public Service Commission and defining its
duties and powers repealed, by necessary implication, statute imposing penalty on telephone
company's failure to furnish requested service.
Judgment reversed.
McNamee & McNamee and E. M. Gunderson, of Las Vegas, for Appellant.
Gordon L. Hawkins, of Las Vegas, for Respondent.
1. Statutes.
A later expressed repeal of statute may be some indication that legislature did not previously intend to
repeal it by implication, but is not determinative.
2. Public Service Commissions.
Public Service Commission's power to prescribe classifications of service must not be arbitrarily or
capriciously used. NRS 704.210.
3. Telecommunications.
Statute creating Public Service Commission and defining its duties and powers repealed, by necessary
implication, statute imposing penalty on telephone company's failure to furnish requested service. Stats.
1913, ch. 274, sec. 1; Stats. 1919, ch. 109; NCL 1929, sec. 7684; NRS 704.210.
4. Statutes.
A statute establishing comprehensive plan for regulating a particuiar subject repeals, by necessary
implication, earlier laws dealing with but small part of same subject.
OPINION
Christoffersen commenced this action against Southern Nevada Telephone Company to
recover the penalties provided by Ch. 274, Stats. Nev. 1913, contending that he had requested
telephone service but none was furnished. The lower court found for Christoffersen and
entered judgment against the telephone company for $2,040, from which judgment the latter
has appealed.
The mentioned statute reads: Section 1. Upon the application in writing of the owner or
occupant of any building or premises located within a telephone exchange district distant not
more than two hundred feet from any wire or supply except ones used in interstate service of
any telephone company or corporation, and payment by the applicant of all money due from
him, the company or corporation must install and place in proper position, all necessary
instruments and appliances, and furnish and supply necessary electric energy and power for
use in operating said telephone instruments in such building or premises, and cannot
refuse on the ground of any indebtedness of any former owner or occupant thereof,
unless the applicant has undertaken to pay the same, nor require any deposit or payment
in advance; provided, however, any such corporation may at its option require such
applicant to execute a bond to such corporation in a sum not to exceed five dollars with
one surety thereon who is a freeholder of the county within which said premises are
located conditioned for the payment of any indebtedness due or to become due such
corporation by reason of any such service, which bond shall be prepared by such
corporation requiring the same.
and power for use in operating said telephone instruments in such building or premises, and
cannot refuse on the ground of any indebtedness of any former owner or occupant thereof,
unless the applicant has undertaken to pay the same, nor require any deposit or payment in
advance; provided, however, any such corporation may at its option require such applicant to
execute a bond to such corporation in a sum not to exceed five dollars with one surety thereon
who is a freeholder of the county within which said premises are located conditioned for the
payment of any indebtedness due or to become due such corporation by reason of any such
service, which bond shall be prepared by such corporation requiring the same.
If for the space of thirty days after such application, the company or corporation refuses
or neglects to provide and install such instruments and furnish services required, it must pay
to the applicant the sum of fifty dollars as liquidated damages, and five dollars per day as
liquidated damages for every day such refusal or neglect continues thereafter.
The evidence is not in conflict. It discloses that Christoffersen is the owner and occupant
of a residence located within the telephone exchange district which encompasses the city of
Las Vegas, Nevada. In 1955 the telephone company had completed installation of a
temporary drop wire from a cable terminal to the Red Rock school. This wire passed within
200 feet of 87 dwellings, one of which belonged to Christoffersen. Before that installation
Christoffersen had requested the telephone company to furnish him service. That request was
renewed following installation of the drop wire to the Red Rock school. Service could have
been furnished Christoffersen by soldering a drop wire to the Red Rock school line. Indeed,
three of the 87 dwellings could have received service in this manner. However, no more than
three dwellings could have been furnished service because the ringing equipment at the
central office would not signal more than four parties on any one line. To supply service to
the 87 dwellings would require a different ringing system which could not be obtained and
installed in less than one year.
In its written decision the lower court found that all requirements of the 1913 statute,
necessary to a claim for the penalties therein provided, were satisfied by the proof.
That court also rejected the contention of the telephone company that Ch. 109, Stats. Nev.
1919, defining public utilities, creating a public service commission and defining its duties
and powers, repealed by necessary implication the 1913 statute upon which this action is
based. This ruling is one of the many alleged errors assigned by the telephone company and,
in our view, is the only assignment of error that need be considered.
[Headnote 1]
The 1913 statute continued in apparent existence until after the decision in the instant case
was rendered. 1919 Rev. Laws, p. 3206; NCL 1929, sec. 7684; NRS 707.330. In 1959 the
legislature expressly repealed that statute. Stats. Nev. 1958-1959, ch. 139, p. 156; NRS
707.330. Christoffersen argues that this fact, standing alone, nullifies the possibility of an
implied repeal as urged by the telephone company. It is true that a later express repeal of a
particular statute may be construed as some indication that the legislature did not previously
intend to repeal that statute by implication. However, such indication of legislative intent
cannot prevail if, in reality, the 1913 statute upon which the present suit is based, is basically
inconsistent with the 1919 act creating and defining the powers of the public service
commission.
The latter act, and particularly NRS 704.210 thereof, provides, inter alia, that the
commission shall have full power to prescribe classifications of the service of all public
utilities, and fix and regulate the rates therefor. The record on appeal reveals that the
commission did approve rules and regulations for telephone service and established priorities.
The Red Rock school, a governmental service, qualified within Category 1 of that priority
schedule, thus being entitled to a preference to service. Christoffersen, and others similarly
situated, fell within Category 9 of that schedule, meaning that those within the 8 preceding
categories had a preferred right to service.
[Headnote 2]
The legislative grant of full power to prescribe classifications of the service must mean
precisely what it says. It cannot reasonably mean a limited or restricted power. Therefore, it
cannot mean, as Christoffersen must contend, full power to classify in all cases except the
case involving an owner or occupant of a residence within a telephone exchange district and
situated within 200 feet of a wire or supply. Of course, the power thus granted the
commission must not be arbitrarily or capriciously used. However, the present case presents
no contention in this regard.
[Headnote 3]
In our view, application of the 1913 act is necessarily inconsistent with the full power
granted the commission by the later statute. The latter, by necessary implication, repealed the
former. This view is squarely supported by the case of State Public Utilities Commission ex
rel. Baber v. Cleveland, C., C. & St. L. Ry. Co., 283 Ill. 374, 119 N.E. 310, decided by the
Supreme Court of Illinois and followed by the Missouri Supreme Court in State ex rel.
Missouri Pac. Ry. Co. v. Public Service Commission of Missouri, 275 Mo. 60, 204 S.W. 395.
[Headnote 4]
This court has heretofore recognized that a statute establishing a comprehensive plan for
regulating a particular subject matter, repeals, by necessary implication, an earlier law dealing
with but a small part of the same subject. City of Carson v. County Commissioners, 47 Nev.
415, 224 P. 615; State v. Economy, 61 Nev. 394, 130 P.2d 264.
Accordingly, the judgment of the lower court must be, and is, reversed.
Badt, C. J., and Compton, D. J., concur.
McNamee, J., having disqualified himself, the Governor designated Honorable Wm. P.
Compton, Judge of the Eighth Judicial District Court, to sit in his place and stead.
____________
77 Nev. 327, 327 (1961) Board of Trustees of Douglas County v. Savage
BOARD OF TRUSTEES OF DOUGLAS COUNTY SCHOOL DISTRICT, NEVADA,
and W. D. JONES, JOHN MICHELSEN, LOUIS BERGEVIN, GRAHAM HOLLISTER and
JOHN PASEK, Constituting Said Board of Trustees, Appellants, v.
JOHN L. SAVAGE, Respondent.
No. 4441
July 5, 1961 363 P.2d 354
Appeal from a judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
The respondent moved to dismiss the appeal. The Supreme Court held that when the
record on appeal was not filed until 145 days after the filing of a notice of appeal and where
court had not extended the time for the filing of a record, appeal would be dismissed.
Appeal dismissed.
(Petition to Have Order Dismissing Appeal Set Aside denied July 27, 1961.)
Carl F. Martillaro, District Attorney, Douglas County, for Appellants.
William J. Crowell, of Carson City, for Respondent and Movant.
Appeal and Error.
When record on appeal was not filed until 145 days after the filing of notice of appeal and lower court
had not extended time for filing of record, appeal would be dismissed. NRCP 73(g); SCR 26.
OPINION
On Motion to Dismiss Appeal
Per Curiam:
Respondent has moved to dismiss this appeal for failure of appellants to file their record
on appeal within the time designated by Rule 73(g) NRCP.
The notice of appeal was filed January 12, 1961. The record on appeal was not filed with
this court within forty days from January 12, 1961, nor did the lower court extend the time
for filing such record.
77 Nev. 327, 328 (1961) Board of Trustees of Douglas County v. Savage
forty days from January 12, 1961, nor did the lower court extend the time for filing such
record. One hundred and forty-five days after January 12, 1961, appellants filed their record
on appeal. Appellants have not presented opposition to the motion to dismiss. Rule 26 S.C.R.
The appeal is dismissed.
____________
77 Nev. 328, 328 (1961) Alper v. Posin
ARBY W. ALPER, Appellant, v.
MURRAY POSIN, Respondent.
No. 4437
July 10, 1961 363 P.2d 502
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Action for accounting and dissolution of a joint venture and for appointment of a receiver.
The lower court entered an order confirming a sale of the assets by the receiver pursuant to a
bid submitted, and one of the joint venturers appealed. On motion to dismiss the appeal, the
Supreme Court, Thompson, J., held that the order of the court was interlocutory in nature and
did not constitute an appealable final judgment.
On motion to dismiss appeal, motion granted.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Jones, Wiener & Jones, and Magleby & Posin, of Las Vegas, for Respondent.
Aggrieved parties do not have the right to appeal unless such right is expessly granted by statute or rule.
2. Judgment.
Final judgment in action or proceeding is one that disposes of issues presented, determines costs, and
leaves nothing for future consideration of court.
Order of court, in action for dissolution and sale of parties' joint venture and distribution of proceeds by
receiver, confirming sale of assets by receiver, was interlocutory in nature and did not
constitute an appealable final judgment.
77 Nev. 328, 329 (1961) Alper v. Posin
confirming sale of assets by receiver, was interlocutory in nature and did not constitute an appealable final
judgment. NRCP 72(b) (1-3).
4. Judgment.
There may not be more than one final judgment in an action or proceeding.
OPINION
On Motion to Dismiss
In the court below, Posin brought suit against Alper for accounting and dissolution of their
joint venture, and for the appointment of a receiver. He requested that the receiver take
possession of the motel business operated by the coadventurers, sell it for a fair price, and
distribute the proceeds according to their interests. By his answer, Alper also requested the
court to proceed immediately with the sale of the assets of the joint venture. A receiver was
appointed and bond furnished. Thereafter Alper submitted an offer to purchase the assets for
the gross sum of $600,000. In addition, a third person submitted an offer to the receiver to
purchase for the net sum of $200,000. The receiver sought court confirmation of the latter
offer. After a hearing, and over the objections of Alper, the lower court, in the exercise of its
discretion, determined that the $200,000 net offer was the best offer submitted, and entered
its order confirming a sale on that basis.
From such order confirming sale, Alper has appealed to this court. Posin seeks to dismiss
the appeal by motion, contending, inter alia, that the order confirming the sale is not an
appealable order.
1. NRCP 72(b) reads, in part, (b) Appealable Determinations. An appeal may be taken:
(1) From a final judgment in an action or proceeding commenced in the court in which
the judgment is rendered.
(2) From an order granting or refusing a new trial, or granting or refusing to grant or
dissolving or refusing to dissolve an injunction, or appointing or refusing to appoint a
receiver, or vacating or refusing to vacate an order appointing a receiver, or dissolving or
refusing to dissolve an attachment, or changing or refusing to change the place of trial,
and from any special order made after final judgment.
77 Nev. 328, 330 (1961) Alper v. Posin
to appoint a receiver, or vacating or refusing to vacate an order appointing a receiver, or
dissolving or refusing to dissolve an attachment, or changing or refusing to change the place
of trial, and from any special order made after final judgment.
(3) From an interlocutory judgment, order or decree made or entered in actions to redeem
real or personal property from a mortgage thereof or lien thereon, determining such right to
redeem and directing an accounting, and from an interlocutory judgment in actions for
partition which determines the rights and interests of the respective parties and directs
partition, sale or division to be made.
An order confirming a sale by a receiver does not fall within the provisions of NRCP 72(b)
(2) or (3) above quoted. However, the appellant Alper insists that the order confirming sale,
entered in this case, is truly a final judgment within the meaning of NRCP 72(b)(1), for it
disposes of all assets of the joint venture. We do not agree.
[Headnote 1]
An aggrieved party does not have the right to appeal, unless it is expressly granted by
statute or rule. Esmeralda County v. Wildes, 36 Nev. 526, 137 P. 400; Quinn v. Quinn, 53
Nev. 67, 292 P. 621.
[Headnote 2]
A final judgment in an action or proceeding is essentially one that disposes of the issues
presented in the case, determines the costs, and leaves nothing for the future consideration of
the court. Smith v. Smith, 69 Nev. 171, 243 P.2d 1048; Magee v. Whitacre, 60 Nev. 202, 96
P.2d 201, 106 P.2d 751; Nevada First National Bank of Tonopah v. Lamb, 51 Nev. 162, 271
P. 691.
[Headnote 3]
In our view, the order confirming sale here involved, is interlocutory in nature, and not the
final judgment in the action. Hurley v. Universal Clay Co., 278 Mo. 408, 213 S.W. 28. After
consummation of the sale, the receiver must liquidate the debts of the joint venture, wind up
its affairs, distribute the proceeds remaining and present his final report to the court, at
which time the court must act again. Cf. Martin & Co. v.
77 Nev. 328, 331 (1961) Alper v. Posin
wind up its affairs, distribute the proceeds remaining and present his final report to the court,
at which time the court must act again. Cf. Martin & Co. v. Kirby, 34 Nev. 205, 117 P. 2,
where, by way of dictum, the court indicated that the order of final distribution was the final
judgment in a receivership proceeding.
[Headnote 4]
(2) There may not be more than one final judgment in an action or proceeding. Nevada
First National Bank of Tonopah v. Lamb, supra.
Some states, by statute or court rule, have provided for an appeal from the interlocutory
court order confirming a sale by the receiver. Vol. 2, Clark on Receivers, 3d Ed., sec. 525, p.
840. Nevada has not done so. The motion by respondent to dismiss this appeal is granted.
____________
77 Nev. 331, 331 (1961) United States v. McLean
In The Matter of The Estate of
HENRY C. McLEAN, Deceased.
UNITED STATES OF AMERICA, Appellant, v.
HARRIET P. McLEAN, Respondent.
No. 4424
August 23, 1961 364 P.2d 407
Bowen, Judge.
Probate proceeding wherein the United States, as residuary legatee, moved to terminate a
widow's allowance. The lower court denied the motion, and the United States appealed. On
motion to dismiss the appeal, the Supreme Court held that order denying motion to terminate
widow's allowance was appealable.
On motion to dismiss appeal, motion denied.
Howard W. Babcock, United States Attorney, of Las Vegas, and Chester C. Swobe,
Assistant United States Attorney, of Reno, for Appellant.
Richard C. Bennett, of Reno, for Respondent.
Order denying motion to terminate widow's allowance was appealable. NRS 155.190.
Appellant's failure to docket record on appeal within 40 days of notice of appeal, without extension
granted, did not require dismissal where record was docketed within 90 days, and it appeared that appellant
would have been granted extension had request been made.
Appellant's failure strictly to comply with rule dealing with service of statement of points and transmittal
of true copy of record on appeal did not require dismissal, in absence of showing of prejudice to
respondent. NRCP 75(d, g).
OPINION
Per Curiam:
In 1956 the lower court entered its order granting an allowance of $1,500 a month to
decedent's widow. In 1961, United States of America, residuary legatee under decedent's last
will, filed a motion to terminate that allowance. The court below denied that motion. The
United States appeals from the order denying its motion to terminate the widow's allowance.
The widow has filed a motion to dismiss the appeal, contending (1) that the order is not
appealable, (2) that the record on appeal was not docketed within 40 days from the date of
filing of the notice of appeal, and no extension of time was granted therefor, (3) that a
statement of points was not served upon respondent, and (4) that a copy of the record on
appeal was not furnished respondent.
[Headnote 1]
1. In our view, an order denying a motion to terminate a widow's allowance is appealable
because of the provisions of NRS 155.190 reading, in part, as follows: * * * an appeal may
be taken to the Supreme Court from an order or decree: * * * {5) Granting or modifying a
family allowance.
from an order or decree: * * * (5) Granting or modifying a family allowance. * * * (13)
Refusing to make any order heretofore mentioned, * * *.
The California decisions relied upon by movant respondent each deal with a motion to
vacate a prior order granting a widow's allowance. In each case the California court held that
an order denying a motion to vacate the prior order granting widow's allowance was not
appealable. In re Fallon's Estate, 49 Cal.2d 402, 317 P.2d 963, 308 P.2d 389; In re Caldwell's
Estate, 67 Cal.App.2d 652, 155 P.2d 380; California Probate Code, Sec. 1240. The party
believing himself aggrieved must appeal from the order granting the widow an allowance. He
may not mark time, and at some later date move to vacate that order, and appeal from the
court's refusal to do so.
The instant case does not involve a motion to vacate a prior order granting a widow's
allowance, and an appeal from the court's denial of such motion. Rather, it concerns itself
with a motion to terminate a prior order granting a widow's allowance, and an appeal from
the court's denial of such motion. In presenting that motion to the lower court, the United
States contended that the assets of the estate were being wasted, and the interest of the United
States as residuary legatee prejudiced. It asked that the widow's allowance be terminated. The
relief sought was directed to the future, not the past, thus distinguishing this case from the
California decisions above referred to. We believe the lower court's refusal to terminate the
widow's allowance to be a refusal to modify a family allowance, and appealable because of
the express provisions of NRS 155.190(5)(13) above quoted.
[Headnote 2]
2. The record on appeal, though not docketed within 40 days from the date of filing the
notice of appeal, was docketed within 90 days thereof. Undoubtedly, appellant would have
been granted an extension of time by the district court, had request been made. Its oversight
in this regard, and the explanation therefor, we find to be excusable and within the authorities
of Garibaldi Bros.
v. Waldren, 72 Nev. 12, 292 P.2d 356; Novack & Sons v. Hoppin, 75 Nev. 475, 345 P.2d
769; and Berto v. Wilson, 73 Nev. 162, 312 P.2d 635, and not within the holdings of
Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955; Bank of Nevada v. Drayer-Hanson, Inc., 70
Nev. 416, 270 P.2d 668; Cole v. Cole, 70 Nev. 486, 274 P.2d 358; or McDowell v. Drake, 77
Nev. 136, 360 P.2d 257; Board of Trustees of Douglas County School District, et al. v.
Savage, 77 Nev. 327, 363 P.2d 354.
[Headnote 3]
3. The record on appeal does not disclose prejudice to respondent resulting from
appellant's failure to strictly comply with NRCP, Rule 75(d) and (g) dealing with service of
the statement of points and transmittal of a true copy of the record on appeal. Basic
Refractories v. Bright, 71 Nev. 248, 286 P.2d 747. Each has been supplied respondent since
the docketing of the record on appeal with this court.
For the reasons stated, respondent's motion to dismiss this appeal is denied.
McNamee, J., did not participate in the consideration or determination of this motion.
____________
77 Nev. 334, 334 (1961) Nelson v. Sierra Constr. Corp.
HERBERT E. NELSON and WALLACE R. NELSON, Appellants, v. SIERRA
CONSTRUCTION CORP., R K R CONSTRUCTION COMPANY, a Nevada Corporation,
W. E. KOERWITZ, and A. P. RAPONE, Respondents.
No. 4364
August 24, 1961 364 P.2d 402
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Presiding
Judge.
Stockholders' derivative action. On motion of the defendants, the lower court dismissed
the amended complaint with prejudice, and the plaintiffs appealed. The Supreme Court,
Badt, C. J., held that the amended complaint, which deliberately omitted allegations with
respect to damage to the corporation, failed to state a claim on behalf of the corporation,
and the court's dismissal with prejudice was not an abuse of discretion where no
indication was made that the plaintiffs could have amended by alleging additional facts to
support their action.
Supreme Court, Badt, C. J., held that the amended complaint, which deliberately omitted
allegations with respect to damage to the corporation, failed to state a claim on behalf of the
corporation, and the court's dismissal with prejudice was not an abuse of discretion where no
indication was made that the plaintiffs could have amended by alleging additional facts to
support their action.
Affirmed.
(See also 76 Nev. 257, 352 P.2d 125.)
Morton Galane, of Las Vegas, for Appellants.
Samuel S. Lionel and Dwight B. Claar, Jr., of Las Vegas, for Respondents R K R
Construction Company, W. E. Koerwitz, and A. P. Rapone.
1. Corporations.
Stockhoiders' derivative cause of action arises out of invasion of rights of corporation, and if corporation
has no cause of action, stockholder cannot sue on its behalf. NRCP 12(b)(5), 23(b).
2. Corporations.
Complaint by minority stockholders failed to allege facts showing that majority stockholders and
directors, by conducting general contracting business using facilities and equipment of corporation,
invaded any rights of corporation resulting in any damage to corporation, and failed to state claim on which
relief could be granted. NRCP 12(b)(5), 23(b).
Supreme Court on review of dismissal of stockholders' derivative action with prejudice could consider
failure of complaint to state claim for relief even though motion for dismissal and dismissal were based on
failure to show efforts to secure action from managing directors and stockholders. NRCP 12(b)(5), 23(b).
A correct judgment will not be reversed on appeal simply because it was based on a wrong reason.
5. Pleading.
Granting leave to amend is largely within discretion of trial court.
6. Pleading.
Dismissal of stockholder's derivative action without granting leave to amend was not abuse of discretion
where complaint deliberately omitted essential allegations and there was no indication that plaintiffs could
allege additional facts to support their action. NRCP 12(b)(5), 23(b).
OPINION
The amended complaint in the court below presented a stockholders' derivative action in
three counts. The first two counts sought relief from one Charles L. Horsey, Jr., and one Fred
L. Allred, the former being a codirector with Koerwitz and Rapone of Sierra Construction
Corporation, and the third count sought relief against R K R Construction Company,
Koerwitz, and Rapone. An order of severance was made whereunder this action proceeded
against R K R, Koerwitz, and Rapone. A separate action is now pending against Horsey and
Allred. Counts 1 and 2 therefore have been dropped, but Count 3 incorporates in such count
paragraphs 1, 2, and 3 and paragraphs 10, 11, and 12 of the first count. It omits, however,
paragraphs 15 and 16 of Count 3 of the original complaint, the significance whereof is later
discussed. Some question has arisen whether paragraphs 1, 2, 3, 10, 11, and 12 of the first
count remain incorporated in the present third count. We are satisfied that the presentation to
the district court on sundry motions pertaining to the third count assumed that the said
paragraphs of the first count, thus incorporated by reference, were retained in the third count.
1
We hold for the purposes of this opinion that such paragraphs remained included in the
third count, the only count with which we are here concerned.
This count is asserted pursuant to Rule 23(b) NRCP which permits a derivative or
secondary action by shareholders of a corporation.
2
It alleges that Koerwitz and Rapone,
being directors and officers of Sierra Construction Corporation, formed R K R Construction
Company which, since May 1, 1959 has been conducting a general contracting business,
using the time, facilities and equipment of Sierra Construction Corporation to operate
their own construction business.
____________________

1
It is impossible to conclude from the wording of the trial court's order granting the motion to dismiss,
hereinafter discussed, whether such court made its ruling with or without the inclusion of such paragraphs in the
third count.

2
NRCP 23(b): Secondary Action by Shareholders. In an action brought to enforce a secondary right on the
part of one or more shareholders in an association, incorporated or unincorporated, because the association
refuses to enforce rights which may properly
contracting business, using the time, facilities and equipment of Sierra Construction
Corporation to operate their own construction business. The relief they seek under this count
is: 1. That a constructive trust be impressed on the stock of defendants Koerwitz and Rapone
in R K R Construction Company and the assets of defendant R K R Construction Company
for benefit of the corporation Sierra Construction Corp. 2. For costs and attorney fees, and 3,
for further relief.
The motion to dismiss as to R K R, Koerwitz, and Rapone was granted on the ground that
the amended complaint failed to state a claim against said parties under the requirements of
Rule 23(b) NRCP, and the amended complaint as to them was ordered dismissed for said
reasons, with prejudice.
Two errors are assigned: 1. That the court erred in holding that the [amended] complaint
failed to state a claim against said parties upon which relief could be granted. 2. That the
court erred in holding that the [amended] complaint should be dismissed with prejudice.
1. In determining whether or not the amended complaint stated a claim upon which relief
could be granted, we turn to the allegations in question. Paragraphs 1, 2, and 3, incorporated
by reference into the third count, recite the ownership of 1,200 shares of the stock of Sierra by
appellant Herbert E. Nelson, and the ownership of 1,200 shares of said stock by Wallace R.
Nelson, by reason of an agreement by Sierra to sell such shares for a total price of $5,000 on
each issue, of which $3,750 remained unpaid by Herbert on his stock and $3,800 by Wallace
on his stock, with an agreement to extend time for payment of the balance. Paragraphs 10, 11,
and 12, incorporated by reference into the third count, contain allegations apparently made
in support of the requirements of Rule 23{b) NRCP with reference to the necessary
allegations in a derivative action.
____________________
be asserted by it, the complaint shall be verified by oath and shall aver that the plaintiff was a shareholder at the
time of the transaction of which he complains or that his share thereafter devolved on him by operation of law.
The complaint shall also set forth with particularity the efforts of the plaintiff to secure from the managing
directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his
failure to obtain such action or the reasons for not making such effort.
allegations apparently made in support of the requirements of Rule 23(b) NRCP with
reference to the necessary allegations in a derivative action. Such allegations are substantially
as follows: That in a five and one-half year period commencing in June 1953 Sierra had done
a construction business of seven and one-half million dollars, embodied in 54 projects, and
earning a profit of $250,000; that during this period the Nelsons accepted minimum salaries
but that Herbert E. Nelson, as president, was authorized on April 25, 1958 to pay himself and
Wallace R. Nelson bonuses of $8,000 each and to pay similar bonuses to two other directors;
that the bonuses were paid to the other directors but not to the Nelsons, the Nelsons being, on
the contrary, removed from office. These allegations, of course, establish, at most, a right of
action in each of the Nelsons against the corporation, either in contract or in quantum meruit.
It is further alleged that, on January 27, 1959, Sierra tentatively resolved to complete present
jobs under contract and to provide later for formal resolution for the liquidation of assets and
final dissolution; and that, contingent upon the adoption of a formal resolution for liquidation
and dissolution, Sierra tentatively resolved that the present members of the corporation
could form other contruction businesses; that, starting about April 15, 1959 Koerwitz and
Rapone, with defendant Horsey and directors McColley and Kraft, terminated Herbert E.
Nelson's position as president and director and Wallace R. Nelson's position as vice president
and director, and substituted Koerwitz as president, who failed to pay the $8,000 bonus to
each of the Nelsons although theretofore authorized to do so; that Sierra then commenced an
action against the Nelsons for the balance of the subscription price of their stock, and levied
attachment against other assets owned by them; that, in place of taking steps toward
liquidation and final dissolution of Sierra, the directors contracted for new construction work
through a newly formed corporation in which they were directors and stockholders, namely R
K R Construction Co., and operated R K R by the use of the time, facilities and equipment
of Sierra"; that Koerwitz and Rapone and the remaining directors convened a meeting for
October 13, 1959 in response to a written demand by the Nelsons that action be
commenced against Horsey by reason of certain transactions by him which were set out
in the first two counts and, as noted above, segregated from the present action; that at
such meeting they selected an attorney who earlier that day had filed suit against the
Nelsons "for the purpose of revoking control which the plaintiffs [the Nelsons] allegedly
had to certain assets in which the defendant Horsey and the other directors had a
proprietary interest and which had an approximate value of $250,000, and causing the
service of process on [the Nelsons] at the very meeting which was purportedly called to
consider a suit by Sierra against defendant Horsey."
Sierra; that Koerwitz and Rapone and the remaining directors convened a meeting for
October 13, 1959 in response to a written demand by the Nelsons that action be commenced
against Horsey by reason of certain transactions by him which were set out in the first two
counts and, as noted above, segregated from the present action; that at such meeting they
selected an attorney who earlier that day had filed suit against the Nelsons for the purpose of
revoking control which the plaintiffs [the Nelsons] allegedly had to certain assets in which the
defendant Horsey and the other directors had a proprietary interest and which had an
approximate value of $250,000, and causing the service of process on [the Nelsons] at the
very meeting which was purportedly called to consider a suit by Sierra against defendant
Horsey. It is further alleged that, at the same meeting, they authorized steps to be taken to
secure the stock certificates theretofore issued in the names of the Nelsons but which were
still in escrow. It is then alleged that, although the Nelsons on September 21, 1959 served a
written demand on the managing directors of Sierra for action against Horsey, they withdrew
such demand at the meeting of October 13, 1959 because of their acquisition of information
in the meantime of the refusal of the directors to take steps for dissolution and, instead,
bidding for construction work through R K R as above alleged. It is then asserted: It was not
necessary for the plaintiffs to continue with said demand and the plaintiffs have made no
further effort to secure the action desired by the managing directors of Sierra against the
defendant Horsey for the combination of reasons [above] set out with particularity. The final
allegation shows the ownership by Horsey, McColley, Kraft, Koerwitz and Rapone of an
aggregate of 68 1/2 percent of the capital stock of Sierra and the provisions in the bylaws of
Sierra that a quorum of 75 percent of stock is necessary for corporate actions;
3
that for the
reasons set out hereinabove the plaintiffs have made no effort to secure the action desired
against the defendant Horsey by the stockholders of Sierra Construction Corp."
____________________

3
This allegation was contained in Par. XIII of the first count, which was not incorporated into the third count
by reference. However, it is mentioned here, as both parties argued it orally and in their briefs.
have made no effort to secure the action desired against the defendant Horsey by the
stockholders of Sierra Construction Corp.
Such is the entire statement in support of the derivative action. At this point it should be
further noted that, in such amended complaint, the plaintiffs omitted entirely paragraphs
numbered 15 and 16 of their original complaint. These paragraphs referred again to Horsey as
a director, alleged a breach by Horsey of his fiduciary duty as a director, and that corporate
action could be taken only by three directors, which could be commenced only by the votes of
Rapone and Koerwitz, and that none of these directors could vote disinterestedly in the
interest of Sierra on the question of a proposed suit against Horsey and a proposed suit
against Koerwitz and Rapone; that the bylaws required a majority for corporate action,
namely, three out of five directors, and it was therefore impossible for a quorum of
disinterested directors to be present and vote on the demand for legal action against Horsey
and against Koerwitz and Rapone.
The original paragraph 16, omitted as aforesaid from the amended complaint that was
before the lower court and is now before this court, alleged immediate and irreparable injury
to Sierra; that it had performed a gross of over $3,000,000 during the fiscal year ending April
30, 1959 with a profit of $90,000; that the conduct of Koerwitz, Rapone, and R K R
threatens to divert a substantial value of construction contracts from Sierra Construction
Corporation and threatens to impair and destroy the good will of Sierra Construction
Corporation.
[Headnotes 1, 2]
We repeat that the allegations thus contained in the original complaint were, as the district
court must have concluded and as we must conclude, deliberately and advisedly omitted from
the amended complaint. The asserted cause of action against Horsey, as noted, was removed
from the present action, leaving only Koerwitz, Rapone, and R K R. We must then find
support for an action by Sierra against these defendants before a derivative action can lie,
as the stockholders' derivative suit on behalf of the corporation derives its cause of action
out of an invasion of the rights of the corporation, and it follows that, if the corporation
itself has no cause of action, a stockholder cannot sue on its behalf.
action by Sierra against these defendants before a derivative action can lie, as the
stockholders' derivative suit on behalf of the corporation derives its cause of action out of an
invasion of the rights of the corporation, and it follows that, if the corporation itself has no
cause of action, a stockholder cannot sue on its behalf. Gallagher v. Pacific American Co., 9
Cir., 97 F.2d 193, 195; Linker & Herbert, Inc. v. Marshall, D.C., 133 F.Supp. 148; Cohen v.
Beneficial Industrial Loan Corporation, D.C., 69 F.Supp. 297, 301; 18 C.J.S., Corporations,
sec. 559, p. 1274. Yet the allegations contained in the amended complaint do not indicate that
any rights of the corporation have been invaded, resulting in damage to it. The allegation that
R K R is using the time of Sierra conveys no meaning. The allegation that R K R is using
the facilities and equipment of Sierra contains no statement that such use is without
consideration or without an entirely adequate consideration. That arrangement, so far as
appears, might afford great profit to the corporation and be preferable to winding up and
liquidation and possible forced sale of its assets. For all that appears, the managing directors
of Sierra have not only used their best judgment in their arrangement with R K R but such
judgment may have been fully justified and resulted in profit to Sierra. The amended
complaint is devoid of any statement indicating that the Sierra equipment thus used by R K R
might or would depreciate in value or that Sierra was not fully protected in its arrangement
with R K R. From the allegation of the arrangement with R K R, in place of the winding up
and dissolution of Sierra, the conclusion can as well be drawn that this was far more to the
benefit of the stockholders of Sierra than it would have been to carry out the original tentative
plan to dissolve. We find no allegation of fraud, no allegation of bad faith, no allegation of
damage, no allegation that a legal wrong had been committed. Sutton v. Eastern Viavi Co., 7
Cir., 138 F.2d 959, 960; Mebco Realty Holding Co. v. Warner Bros. Pictures, Inc., D.C., 44
F.Supp. 591, 592; Linker & Herbert, Inc. v. Marshall, D.C., 133 F. Supp. 148, 150. We are
forced to the conclusion that the amended complaint failed to state a claim on which relief
could be granted.
[Headnotes 3, 4]
2. We are however confronted with the proposition that, as the motion to dismiss was
based on the provisions of Rule 23(b) and on the particular ground that the amended
complaint did not state a cause of action for the specific reasons that it did not show that the
plaintiffs were stockholders and did not show with particularity the efforts of the plaintiff to
secure action from the managing directors and, if necessary, from the stockholders and, as the
order dismissing the amended complaint was based on the grounds stated in the motion, the
consideration of this appeal must be limited to such specific action of the court upon such
specific grounds. If we are thus limited, under this theory, we should be compelled to
consider at length the two questions thus raised in the motion and then, if we should find that
the allegations supported the fact that the plaintiffs were stockholders and further supported
the fact that demand on management or on the stockholders was unnecessary under the
allegations made, we should further be compelled to reverse the trial court even though we
were fully convinced that the amended complaint did not otherwise state a claim on which
relief could be granted. We find no merit in this argument. Rule 23(b) does indeed recite
certain things necessary to stating facts essential to support a secondary action by
stockholders. Absent such necessary allegations, no claim for relief has been stated. Thus,
Rule 23(b) is definitely tied to Rule 12(b)(5) under which failure to state a claim upon which
relief can be granted is subject to a motion to dismiss. Therefore it would be idle to discuss
the necessary requirements for a secondary action under Rule 23(b) if, in other respects, the
amended complaint fails to state a claim upon which relief can be granted. In the latter event
we simply do not reach the additional requirements of Rule 23(b). It would be just as futile
for us to examine the two points raised under Rule 23(b) and then to determine perchance that
the complaint should not have been dismissed under that section even if it definitely appears
that the judgment of dismissal was correct under Rule 12{b){5).
12(b)(5). We have many times upheld the rule in this state that a correct judgment will not be
reversed simply because it was based on a wrong reason. Goldsworthy v. Johnson, 45 Nev.
355, 363, 204 P. 505, 507; see also Lemel v. Smith, 64 Nev. 545, 552, 187 P.2d 169, 172;
Merritt v. District Court, 67 Nev. 604, 609, 610, 222 P.2d 410, 412. Logically, the same rule
should be applied to the present appeal.
[Headnotes 5, 6]
3. Appellants contend, however, that it was error for the court to grant the motion to
dismiss without giving plaintiffs below an opportunity to amend. We should first note that
plaintiffs had amended once, and that by such amendment they had deleted from their original
complaint their allegations of irreparable injury and of the impairment and destruction of the
good will of Sierra. The granting of leave to amend is largely a matter of discretion in the trial
court and failure to grant leave to amend will not be held to be error in the absence of an
abuse of such discretion. 3 Moore's Federal Practice, 2d Ed., p. 833; Heay v. Phillips, 9 Cir.,
201 F.2d 220, 222; Young v. Garrett, 8 Cir., 159 F.2d 634. Nowhere in the record is there any
suggestion that plaintiffs could have amended by alleging additional facts to support their
cause of action. The nearest approach to this would be in the paragraphs of the original
complaint which were deliberately omitted from the amended complaint. Nor in the briefs or
oral argument to this court was any suggestion made that the derivative action could be
supported by allegation of additional facts if opportunity to amend further were given. We
find no abuse of discretion in the trial court's action.
Affirmed, with costs.
McNamee, J., concurs.
Thompson, J., concurring:
In ordering dismissal of the amended complaint, the district court found that plaintiffs had
failed to aver legally sufficient reasons excusing them from attempting to secure the action
they desired from the corporate directors as required by NRCP 23{b).
directors as required by NRCP 23(b). I believe the lower court was correct. Though I agree
with the majority opinion that the amended complaint is defective in the other respects as
therein specified, I would affirm the lower court for the reason stated above, because that was
the point to which counsel directed their briefs and arguments on appeal.
____________
77 Nev. 344, 344 (1961) Gordon v. Lynch
HARRY GORDON, Appellant, v.
CECIL LYNCH, Respondent.
No. 4385
September 20, 1961 364 P.2d 889
Mowbray, Judge.
Action on a renewal note. The lower court entered a judgment for the maker for the
amount of payments he had made on the note, and the payee appealed. The Supreme Court,
Thompson, J., held that the payee could not recover from the maker although the maker had
made installment payments, where the note had been given for the payee's interest in chattel
mortgages, and the maker did not learn that chattel mortgages had been discharged until after
giving the note.
Judgment affirmed.
Morton Galane, of Las Vegas, for Appellant.
1. Bills And Notes.
Payee could not recover amount of renewal note although manner had made installment payments
thereon, where note had been given for payee's interest in chattel mortgages, and maker did not learn that
chattel mortgages had been discharged until after giving the note. NRS 92.035.
2. Bills and Notes.
Finding, after consideration of entire evidence, that there was complete failure of consideration for note
and renewal and that such notes, which were given for payee's interest in certain chattel mortgages were
null, void, and of no effect was implied finding that matter, sued on the note, had legal
defense which he did not waive.
implied finding that matter, sued on the note, had legal defense which he did not waive. NRS 92.035.
3. Bills and Notes.
Maker who made payments on renewal note before learning that chattel mortgages, for which note had
been given, had been discharged, was entitled to recover the amount of such payments. NRS 92.035.
OPINION
In the district court Gordon brought suit against Lynch on a promissory note. The note was
dated December 1957, signed by Lynch as maker in favor of Gordon as payee in the principal
amount of $10,800, and payable $200 a month commencing January 3, 1958. By his
complaint Gordon claimed the principal amount to be due. The responsive pleading of Lynch
disclaimed liability, asserting, among other defenses, absence of consideration for the note. In
addition, Lynch asserted a counterclaim for $2,000 installments paid according to the terms of
the note. Gordon's reply to the counterclaim averred, in substance, that the note upon which
this suit is based was a renewal of an earlier note made by Lynch in Gordon's favor for the
identical amount; that Lynch, in executing the renewal note, did so with full knowledge of his
claimed defense of absence of consideration for the original note, and thereafter made ten
installment payments thereon, thereby waiving such defense. The district court denied
Gordon relief upon his complaint, and entered judgment for Lynch for $2,000 on his
counterclaim. It found that there was an absence of consideration for the original and renewal
notes. No specific finding was made regarding two matters: first, whether Lynch knew of the
defense of absence of consideration to the original note at the time he executed the renewal
note and; second, whether such defense had been waived by Lynch.
The record on appeal reveals that in 1955 Gordon made two loans to the Golden Slot Club,
Inc., one for $3,000 and the other for $10,000. Golden Slot Club, Inc., made two promissory
notes in favor of Gordon for the amount of the loans and, as security therefor, executed
two chattel mortgages upon most of its personal property consisting primarily of gaming
equipment.
amount of the loans and, as security therefor, executed two chattel mortgages upon most of its
personal property consisting primarily of gaming equipment. The mortgages were recorded.
Sometime later Gordon purchased 50 percent of the Golden Slot Club, Inc. Part of the
purchase price was the cancellation of the notes and mortgages. However, the discharge of
the mortgages was not recorded. In 1956 Lynch purchased all of the assets of Golden Slot
Club, Inc., at a tax sale. That purchase was subject to valid encumbrances. In 1957 Gordon
sold his interest in the chattel mortgages to Lynch for $10,800. Lynch gave Gordon a
promissory note for that amount. Lynch defaulted after making two payments. After some
discussion, that note was canceled, and the renewal note upon which this action is based was
made.
On appeal Gordon has assigned eight errors. Each assignment of error assumes that the
lower court should have found as a fact that Lynch had knowledge that the chattel mortgages
were discharged before he executed the renewal note or, in the alternative, that by reasonable
diligence he should have known that the mortgages were discharged. From such assumed
facts Gordon contends that, by executing the renewal note, Lynch thereby waived all defenses
which he may have had to the orginial.
[Headnote 1]
During trial Lynch testified that he did not learn that the chattel mortgages had been
discharged until December 1958. Upon obtaining such knowledge, he made no further
installment payments on the renewal note. The trial court was at liberty to accept his
testimony in this regard, and apparently did so. The record on appeal does not indicate that
Lynch should have known of this circumstance at an earlier time. Gordon, with whom he had
been friendly for years, had always represented that the chattel mortgages were valid. The
trial court apparently was of the view that Lynch could properly believe such representations
until he acquired knowledge that they were not correct. There was substantial evidence to
justify such view.
Therefore, we need not decide the question of the waiver of the defense of absence of
consideration claimed because of the execution of the renewal note and the payments made
thereon. That question assumes knowledge of such defense to the original note when the
renewal note is made. See Anno., 35 A.L.R. 1258, supplemented Anno., 72 A.L.R. 600. As
indicated above, the testimony of Lynch justified the trial court in its apparent view that he
did not possess such knowledge, nor should he have possessed it. The court below was
correct, therefore, in denying relief to Gordon upon his complaint. The absence of
consideration for the renewal note upon which suit was brought is a complete defense,
Gordon being the original payee thereof, and not a holder in due course. NRS 92.035; Dixon
v. Miller, 43 Nev. 280, 184 P. 926; cf. Rocky Mountain Powder Co. v. Hamlin, 73 Nev. 87,
310 P.2d 404.
[Headnote 2]
It is true that the court below failed to find specifically (1) that Lynch did not have
knowledge of the defense of absence of consideration to the original note when he made the
renewal note, and (2) that such defense was not waived by him. In our view, this does not
require a reversal of the judgment. The lower court after a consideration of the entire
evidence did find that there was a complete failure of consideration for Lynch's promissory
notes to Gordon, and that such notes are null, void, and of no effect. We consider this to
be an implied finding that Lynch had a legal defense to an action upon the renewal note
which he did not waive. Florey v. Sinkey, 77 Nev. 275, 362 P.2d 271; Timney v. Timney, 76
Nev. 230, 351 P.2d 611.
[Headnote 3]
The lower court's conclusion that Lynch was entitled to recover the $2,000 paid by him,
was clearly correct. Under the circumstances here present, Gordon could not equitably retain
that sum. Anno., 87 A.L.R. 649.
The judgment below is affirmed.
____________
77 Nev. 348, 348 (1961) Franktown v. Marlette
In the Matter of the Determination of the Relative Rights in and to the Waters of Franktown
Creek and Its Tributaries in Washoe County, State of Nevada.
FRANKTOWN CREEK IRRIGATION COMPANY, INC., APPELLANT, v.
MARLETTE LAKE COMPANY, a Nevada Corporation, and STATE ENGINEER
OF THE STATE OF NEVADA, Respondents.
No. 4386
September 27, 1961 364 P.2d 1069
Bowen, Judge.
Proceeding on exceptions to determination of the State Engineer in regard to rights of
various claimants to waters of a creek. The lower court granted summary judgment adverse to
an irrigation company and it appealed. The Supreme Court, Thompson, J., held that irrigation
company did not acquire prescriptive rights in waters flowing in a creek, even though it used
all such water for statutory period, where such use was not adverse, but was with permission
of parties in control of a diversion works.
Judgment affirmed.
M. A. Diskin and John S. Halley, of Reno, for Appellant.
Roger D. Foley, Attorney General, and L. William Paul, Deputy Attorney General, of
Carson City; Vargas, Dillon & Bartlett, of Reno, for Respondents.
1. Judgment.
In deciding propriety of the grant of a summary judgment, all evidence favorable to party against whom
such judgment was rendered would be accepted as true.
To establish a prescriptive right to use of water, the use and enjoyment must have been uninterrupted,
adverse and under a claim of right and with knowledge of owner, and such use must have been for a period
of at least five years. NRS 11.150.
3. Judgment.
In deciding whether an issue of fact was raised, for summary judgment purposes, a court had to rely upon
fact deposition of a person and disregard conclusions of a verified pleading, where the deposition did not
support averment of the verified pleading.
An irrigation company did not acquire prescriptive rights in waters flowing in a creek, even though it
used all such water for statutory period, where such use was not adverse, but was with permission of parties
in control of a diversion works. NRS 11.150.
Where a water right vested in owner's predecessor before 1913, it was necessary to establish owner's
intention to abandon and relinquish such right before an abandonment could be found. NRS 533.060,
subd. 2.
An irrigation company could not be deemed to have acquired right to use of certain water through
abandonment of another's right to such water, where irrigation company did not acquire a prescriptive right
to use such water, as in the event of abandonment, such water rights would have reverted to the state.
An irrigation company could not except to state engineer's final order of determination in regard to water
rights on theory of a party's abandonment of its rights, where irrigation company was unable to show a
vested right to the water, or a right under permit from the state engineer. NRS 533.145, 533.170.
Sale of waters from North Creek to an irrigation company had no relation with waters of Franktown
Creek and its tributaries, and therefore irrigation company had no right to use of a certain amount of water
from Franktown Creek based on previous sales to it from North Creek.
OPINION
Throughout this opinion Marlette Lake Company will be referred to as Marlette, and
Franktown Creek Irrigation Company, Inc., as Franktown.
Marlette owns a water distribution system by which water is supplied for domestic,
industrial, commercial and municipal purposes to the general area comprising Virginia City,
Gold Hill, Silver City and Carson City.
Franktown is a private corporation through which its shareholders manage their interests in
the waters of Franktown Creek.
Pursuant to NRS 533.090 Franktown, by petition, requested the state engineer to determine
the relative rights of various claimants to the waters of Franktown Creek and its tributaries,
including Hobart Creek. Following investigation, the state engineer entered his order granting
the petition, and arranged to proceed with his determination. The final order of determination
was subsequently made, and thereafter filed with the county clerk of Washoe County.
Verified exceptions thereto were filed by Franktown and Marlette. NRS 533.170. A pre-trial
conference was held, during which various exhibits were received and certain admissions of
fact made. Depositions were secured and affidavits obtained which, with the pleadings,
exhibits, and admissions, formed the supporting documents for the motion for summary
judgment thereafter filed by Marlette. Summary judgment was granted. Franktown appeals
from that judgment.
For the purposes relevant to this appeal, the summary judgment entered by the lower court
approved the final order of determination made by the state engineer. The judgment thus
entered permits Marlette to appropriate 10 c.f.s. of water from Hobart Creek, a tributary to
Franktown Creek, above the Red House diversion, for municipal, commercial, industrial and
domestic purposes. The period of use is designated as January 1 to December 31, in the
general area comprising the cities of Carson City, Virginia City, Silver City and Gold Hill.
The judgment granted Franktown permission to appropriate 37.09 c.f.s. of water from
Franktown Creek below the Red House diversion, for irrigation, stockwatering and domestic
purposes for use on a full-year basis. The allocation to Franktown is not disputed. However,
Franktown asserts that the allocation to Marlette is excessive. To understand Franktown's
position in this regard, the following factual information is necessary.
In 1878, by agreement and deed, the predecessors of Franktown sold and conveyed to the
predecessors of Marlette all waters naturally flowing in Hobart Creek at and above the Red
House diversion. From that date to the present, Marlette and its predecessors have completely
controlled the means which allow water arising above the Red House diversion to flow down
Franktown Creek to the lower users. At Red House the water is diverted into two flumes
which, in turn, convey the water to storage tanks, and from the tanks the water is tramsmitted
by pressure pipe lines to the Virginia City area. All waters not so diverted at Red House are
allowed to spill into Franktown Creek channel, where they flow down the creek and are used
by the shareholders of Franktown.
The watershed of Franktown Creek, Hobart Creek and tributaries, is located on the eastern
slopes of the Carson Range. To the north, and on the western slopes of the Carson Range in
the Mt. Rose area, is a separate and distinct watershed. Waters from the last-mentioned
watershed would flow naturally into Lake Tahoe, unless artificially diverted. In 1946 a
predecessor of Marlette sold 5.5 c.f.s. of water to a Mr. Heidenreich who later sold to
Franktown. These waters were collected from North Creek in the Mt. Rose watershed and
artificially diverted to a point above Red House where they commingled with the waters of
Hobart Creek. These commingled waters were then diverted at Red House in the manner
above indicated. The waters collected from the Mt. Rose watershed were of such amounts as
permitted diversion at Red House to the flumes without adversely affecting the ability of the
diversion works to carry the waters from the Franktown and Hobart Creek watershed, except
to the extent of surplus waters due to seasonal variations. The carrying capacity of the flumes
below Red House is admitted to be at least 10 c.f.s.
From about 1936 until about 1943, Marlette's predecessor diverted at Red House from 1.5
c.f.s. to 4.5 c.f.s. of water into the flumes. During that period of time, all waters not so
diverted flowed into Franktown Creek and were applied to beneficial use by Franktown.
and were applied to beneficial use by Franktown. Before, during said period, and since,
Marlette and its predecessors maintained full control of the diversion works at Red House.
Franktown never demanded water from Marlette's predecessor during this period, or at any
time. It simply made use of the water that was not diverted and used by Marlette's
predecessor.
In support of its claim that the district court erred in granting summary judgment,
Franktown contends:
First: That before 1949 (Stats. Nev. 1949, ch. 83, p. 102; NRS 533.060 (3)) it had
acquired by prescription, i.e., by adverse use for the period of five years, the right to use all of
the waters of Franktown Creek and its tributaries except the 1.5 c.f.s. to 4.5 c.f.s. mentioned
above; that, in any event, an issue of material fact in this regard was raised, thus precluding
summary judgment.
Second: That Marlette or its predecessor, abandoned its right to use the waters of
Franktown Creek and its tributaries, including Hobart Creek, except the 1.5 c.f.s. to 4.5 c.f.s.
mentioned above, and that such abandonment is available to Franktown as a defense to this
adjudication; that, in any event, an issue of material fact in this regard was raised, thus
precluding summary judgment.
Third: That Marlette's right to use the waters of Franktown Creek and its tributaries,
including Hobart Creek, should be reduced by the 5.5 c.f.s. of water sold in 1946 by
Marlette's predecessor to Heidenreich who, in turn, sold to Franktown; that, in any event, an
issue of material fact in this regard was raised, thus precluding summary judgment.
[Headnote 1]
These contentions were presented to the lower court. In deciding whether that court was
correct in granting summary judgment, we accept as true all evidence favorable to Franktown.
Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492; Smith v. Hamilton, 70 Nev. 212, 265 P.2d
214.
[Headnote 2]
1. Prescription: To establish a right by prescription in Franktown before 1949 to the use
of water claimed by the predecessor of Marlette, the use and enjoyment must have been
uninterrupted, adverse, under a claim of right, and with the knowledge of such predecessor.
Authors v. Bryant, 22 Nev. 242, 247, 38 P. 439, 440; Application of Filippini, 66 Nev. 17, 23,
202 P.2d 535, 538. Such use must have been for a period of at least five years. Vansickle v.
Haines, 7 Nev. 249, 286; NRS 11.150. Though it is clear that Franktown did use all waters
flowing in Franktown Creek and its tributaries (except the 1.5 c.f.s. to 4.5 c.f.s. of water
diverted by Marlette's predecessor) for the statutory period, the record on appeal does not tend
to establish that such use was adverse and under a claim of right. The opposite appears to be
true. Such use was permissive, not adverse or hostile. It is admitted that Marlette and its
predecessors have always maintained absolute control of the diversion works at Red House.
Waters not diverted at that point were permitted to flow in Franktown Creek and were applied
to beneficial use by the lower ranchers. The cases relied upon by Franktown to support its
position on this issue are not in point. In Smith v. Logan, 18 Nev. 149, 1 P. 678, the trial
court had found all elements of adverse user to be present. Because of that finding the
Supreme Court affirmed the trial court in decreeing a prescriptive right in the lower user. The
trial court made a similar finding in the cases of Gardner v. Wright, 49 Ore. 609, 91 P. 286,
and Pflueger v. Hopple, 66 Ida. 152, 156 P.2d 316. In the instant case, the elements of
adverse use under a claim of right are not present.
[Headnote 3]
The exceptions of Franktown to the state engineer's final order of determination constitute
the pleadings, as between those parties. NRS 533.170(2). Those exceptions were verified by
Lathrop, secretary of Franktown, and contain the conclusion that its use of the waters during
the period mentioned was open, notorious, hostile and adverse. Franktown insists that such
averment contained in pleading, verified by an officer of the company, of itself creates an
issue of material fact and thus precludes a summary judgment.
contained in pleading, verified by an officer of the company, of itself creates an issue of
material fact and thus precludes a summary judgment. We need not decide this question,
because in this case Lathrop subsequently gave a fact deposition, covering the same subject
matter, which deposition is a part of the record on appeal. That deposition does not support
the averment of the verified pleading mentioned above. Under such circumstances, we hold
that, in deciding whether an issue of fact is raised, the lower court must rely upon the fact
deposition of such person and disregard the conclusions of his verified pleading. Bennett v.
Flanigon, 7 Cir., 220 F.2d 799, 803.
[Headnote 4]
In our view, the lower court properly decided for Marlette on this issue.
[Headnote 5]
2. Abandonment: It is admitted that, as of September 11, 1878 (the date of the agreement
and deed between the predecessors of Franktown and the predecessors of Marlette), Marlette's
predecessor had a vested right to use all of the waters of Franktown Creek and its tributaries,
including Hobart Creek, flowing at and above the Red House diversion. Franktown contends
that such right was abandoned by Marlette's predecessor by reason of the non-use of all but
1.5 c.f.s. to 4.5 c.f.s. of water during the period from 1936 to 1943. The water right having
vested in Marlette's predecessor before 1913, it is necessary to establish the owner's intention
to abandon and relinquish such right before an abandonment can be found. Stats. Nev. 1913,
ch. 140, sec. 8; amended Stats. Nev. 1917, ch. 190, p. 353; 1943 NCL sec. 7897; NRS
533.060(2). In re Waters of Manse Springs, 60 Nev. 280, 287, 108 P.2d 311, 315. Franktown
submits that non-use for the period mentioned is some evidence of an intent to abandon the
water right, and of sufficient substance to withstand a motion for summary judgment. We
agree that non-use for such a period of time may inferentially be some evidence of an intent
to abandon. In re Waters of Manse Springs, supra, 290; Valcalda v. Silver Peak Mines, 9
Cir.,
Manse Springs, supra, 290; Valcalda v. Silver Peak Mines, 9 Cir., 86 F. 90, 95. However, in
this case we need not decide whether such evidence of itself defeats summary judgment on
this issue.
[Headnote 6]
We have heretofore determined that the lower court was correct in deciding that
Franktown had not acquired a prescriptive right to use such waters. It is admitted that
Franktown has never sought to appropriate such waters by first making application to the
state engineer in the manner required by statute. If abandonment had in fact occurred, as
Franktown contends, such waters reverted to the state without any title to its use outstanding
against the state. In re Waters of Manse Springs, supra, pp. 286, 287. Had Franktown desired
to apply for such waters, it was required by statute to follow the statutory procedure. No other
avenue was open by which Franktown could acquire a right to use the waters here being
considered. Accordingly, it is clear that its claim of abandonment set forth in the exceptions
to the final order of determination can amount only to a claim that Marlette was awarded
water that belonged to the state; it is not, and cannot be, a claim that Franktown is entitled to
such waters.
[Headnote 7]
NRS 533.145, designating who may object to a preliminary order of determination,
appears to require that the objector claim an interest in the stream system by reason of a
claimed vested right or under permit from the state engineer. One or the other need be shown
to establish his interest in the adjudication. NRS 533.170 permits exceptions to the final order
of determination to be filed by a party in interest who is aggrieved or dissatisfied. Therefore,
it is clear that the court below was correct in deciding that Franktown's claim of abandonment
was not a valid exception to the state engineer's final order of determination. Franktown is not
a party in interest as to that claim. Accordingly, no genuine issue as to a material fact exists as
to this issue, and summary judgment was proper.
[Headnote 8]
3. Subtraction Theory: In 1946 Marlette's predecessor sold 5.5 c.f.s. of water to a Mr.
Heidenreich who, in turn, sold to Franktown. Because of that sale, Franktown insists that
Marlette should not be permitted to divert more than 4.5 c.f.s. at Red House. It reaches this
conclusion by stating that the capacity of Marlette's flumes at the Red House diversion has
always been, and is, 10 c.f.s.; subtraction of the 1946 sale from the flume capacity leaves for
Marlette's use the aforementioned 4.5 c.f.s. of water.
In our view, this contention is without merit. It is not disputed that the source of the water
sold to Heidenreich is North Creek, sometimes called Third Creek, and tributaries thereto.
That creek is located on the western slopes of the Carson Range, and is a part of the Mt. Rose
watershed, having its natural drainage into Lake Tahoe. North Creek is not included in the
present adjudication. The pre-trial order of the lower court states: The state engineer defined
the statutory adjudication as encompassing the watershed of Franktown Creek, including its
tributary Hobart Creek and the minor tributaries of Franktown Creek on the eastern slope of
the Sierra Nevada [Carson Range] in the same watershed. No other waters have at any time
been comprehended in the adjudication proceeding; more particularly, Lake Tahoe, Washoe
Lake, Ophir Creek, Marlette Lake, North Flume and waters in the Mt. Rose area, all distinct
and separate watersheds, and not encompassed thereby. The sale in 1946 by Marlette's
predecessor to Heidenreich of 5.5 c.f.s. of water had nothing to do with the waters of
Franktown Creek and its tributaries, including Hobart Creek, embraced in the present
adjudication.
Judgment affirmed.
____________
77 Nev. 357, 357 (1961) Moore v. District Court
THE STATE OF NEVADA on the Relation of C. W. MOORE and JACK UTTER, Relators,
v. THE FOURTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, The Honorable TAYLOR H. WINES, Presiding Judge
Thereof, Respondent.
No. 4459
September 28, 1961 364 P.2d 1073
Original petition for writ of mandamus.
The relators, who had been intervenors in an action in the Fourth Judicial District Court of
the State of Nevada, sought a writ of mandamus directing the judge of that court to call in a
district judge of some other district to preside at the hearing and trial of the action. The
Supreme Court, Badt, C. J., held that the judge was deprived of all discretion in the matter
when affidavit of prejudice against him was timely filed, and that it was his statutory duty to
proceed no further in the action other than to assign it to another judge as provided by law,
and that it was error for him to direct that a separate trial be had as to the issues raised by the
complaint in intervention and that the separate trial be had before another judge.
Writ granted.
Grubic, Drendel & Bradley, of Reno, for Relators.
Orville R. Wilson and Mann and Scott, of Elko, for Respondent.
1. Judges.
District court judge had no discretion when affidavit of prejudice was timely filed by intervenors, and it
was his statutory to duty to proceed no further in action other than to assign it to another judge, and judge
erred in ordering that separate trial be had before another judge only on claim of intervenors. NRS 1.230,
subds. 1-5, 7; NRCP 24(b), 42(b).
2. Judges.
Intervenors were not precluded from filing affidavit of prejudice against district court judge because they
did not file affidavit of prejudice before filing their petition for intervention, since they did not become
parties to action until they filed complaint in intervention prusuant to leave granted by court. NRS 1.230,
subds. 1-5, 7; NRCP 24(b).
3. Judges.
Intervenors were not precluded from filing affidavit of prejudice against district court judge because
affidavit of prejudice was not filed until after hearing of plaintiff's motion to set the cause for trial, in view
of provision of rule that requirement that every affidavit of prejudice must be filed before hearing on any
contested matter shall not apply to arrangement of calendar or regulation of order of business. NRS
1.230, subd. 7; DCR 11, subd. 2.
4. Judges.
Intervenor has same right to file affidavit of prejudice against district court judge as has any of original
parties. NRS 1.230, subds. 1-5, 7.
OPINION
Relators seek a writ of mandamus directing the respondent district judge to call in the
district judge of some other district to preside at the hearing and trial of an action pending
before the respondent judge. The petition grows out of said respondent's refusal to call in
another judge despite the filing by relators, as parties to the pending action below, of the
statutory affidavit of prejudice.
1

The circumstances are as follows: A. R. Sartain sued Pioneer Title Insurance Company of
Nevada (made a defendant simply because of its position as escrow holder) and Spring
Creek Ranch Co., both being Nevada corporations, to recover a $25,000 cash deposit and
a $175,000 draft, and to cancel a subsisting escrow.
____________________

1
NRS 1.230(5): A judge shall not act as such if either party to a civil action in the district court shall file an
affidavit alleging that the judge before whom the action is to be tried has a bias or prejudice either against him or
in favor of an opposite party to the action. The judge shall proceed no further therein but either transfer the
action to some other department of the court, if there be more than one department of the court in the district, or
request the judge of some other district court of some other district to preside at the hearing and trial of the
action. Every affidavit must be filed before the hearing on any contested matter in the action has commenced,
and if no contested matter has been heard in the action prior to the day of the trial thereof, then the affidavit must
be filed at least 10 days before the date set for the trial of the action. No affidavit shall be filed unless
accompanied by a certificate of the attorney of record for affiant that the affidavit is made in good faith and not
for delay, and the party filing the affidavit for change of judge shall at the time of filing same pay to the clerk of
the court in which the affidavit is filed $25, which sum shall be by the clerk transmitted to the state treasurer who
shall place the same to the credit of the district judges' traveling fund.
defendant simply because of its position as escrow holder) and Spring Creek Ranch Co., both
being Nevada corporations, to recover a $25,000 cash deposit and a $175,000 draft, and to
cancel a subsisting escrow. The complaint was apparently based on a written contract
whereunder Sartain agreed to purchase, and Spring Creek agreed to sell, certain real property
for the agreed sum of $200,000, and upon an alleged breach by Spring Creek. The latter
answered alleging full performance, and filed a counterclaim and cross-claim seeking
damages. Sartain and Pioneer Title both replied, the latter asking simply that the rights of the
main parties be determined and the escrow fees paid.
These matters being at issue, Moore and Utter on May 3, 1961 filed their motion for leave
to intervene and their proposed complaint in intervention. They alleged that they were
licensed real estate brokers and had a written contract with Sartain for the payment of a
$30,000 commission upon final closing of the sale. They alleged their performance, Sartain's
willful breach of his contract with Spring Creek and his refusal to pay the commission, and
sought judgment against Sartain for $30,000. The motion was made pursuant to NRCP Rule
24(b)
2
that the interveners' claim and the main action had a question of law and fact in
common. The motion was presented in chambers on May 18, 1961, with all parties
represented, and was submitted without argument, Sartain refusing, however, to stipulate to
the intervention. The court on said date granted the order. The complaint in intervention was
filed May 22, 1961 and Sartain answered June 8. On July 5, Sartain noticed for July 17 his
motion to set the case for trial. At the hearing of the motion to set, Sartain asked for a trial
date of September 5, while interveners asked for a trial later than October 15. Defendant
sought a date later in September.
____________________

2
NRCP Rule 24(b): Permissive Intervention. Upon timely application anyone may be permitted to intervene
in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or
defense and the main action have a question of law or fact in common. In exercising its discretion the court shall
consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original
parties.
date later in September. The court set the trial for September 18, 1961, without a jury.
On July 24, 1961 interveners filed a statutory affidavit of prejudice (see footnote 1) with
the required affidavit and payment, and on August 14 Sartain, on notice, moved to strike the
same on the ground that it had been untimely filed in that two contested matters (the motion
for leave to intervene and the motion to set the cause for trial) had theretofore been heard.
The court minutes show that the court granted the motion to strike the affidavit of prejudice,
ordered that the trial proceed between the original parties on the date set, and that a separate
trial be had before another judge on the claim of interveners. The court thereafter on August
23, 1961 made and filed an additional order reciting the previous order striking the affidavit
because it was untimely filed, and stated further: Now, therefore, pursuant to NRCP Rule
42(b),
3
the Court, on its own motion and to avoid prejudice, does hereby order, adjudge and
decree: 1. That a separate trial be had as to the issues raised by the Complaint in Intervention
and the Answers thereto. 2. That the Undersigned District Judge does hereby disqualify
himself from hearing or deciding the issues raised in such separate trial.
[Headnote 1]
Were our statutes and rules other than they are, and were our opinions in earlier appeals
other than they are, we should be inclined to say that respondent's orders constituted a fair and
reasonable disposition of the matter. We are, however, compelled to hold that the affidavit of
prejudice was not untimely filed, and that the respondent judge was therefore deprived of all
discretion in the matter and it was his statutory duty to proceed no further in the action other
than to assign it to another judge as provided by law. Tarsey v. The Dunes Hotel, 75 Nev. 364
____________________

3
NRCP Rule 42(b): Separate Trials. The court in furtherance of convenience or to avoid prejudice may
order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of
any number of claims, cross-claims, counterclaims, third-party claims, or issues.
v. The Dunes Hotel, 75 Nev. 364, 343 P.2d 910; State ex rel. Kline v. District Court, 70 Nev.
172, 264 P.2d 396; State ex rel. Stokes v. District Court, 55 Nev. 115, 27 P.2d 534; State ex
rel. Beach v. District Court, 53 Nev. 444, 5 P.2d 535.
It remains then only to consider the two instances of the asserted prior hearings of
contested matters.
[Headnote 2]
(1) We first consider the hearing of the petition for leave to intervene. Bearing in mind that
the right to file a disqualifying affidavit is restricted by NRS 1.230(5) to a party to a civil
action, it is evident that Moore and Utter were not parties to the action at the hearing of their
intervention petition. They did not become parties to the action until they had filed their
complaint in intervention pursuant to the leave granted by the court. It is true that they were
parties to an ancillary proceeding, but this did not qualify them to file an affidavit of
prejudice. It is not without significance that all the provisions of the preceding sections 1, 2,
3, and 4 of NRS 1.230 having to do with the disqualifying of the judge for actual or implied
bias prohibit him from acting in the particular action or proceeding. This cannot be
characterized as a mere inadvertence of the legislature. Significant, too, is the fact that our
original disqualification statute (Sec. 2464, Baily & Hammond, General Stats. 1885; Sec.
2545, Cutting, Compiled Laws, Stats. 1864-65, p. 116, Chap. XIX, Sec. 45) precluded a judge
from acting as such in an action or proceeding to which he is a party or in which he has an
interest, or where he is related to the parties, etc. And any party to such proceeding might file
the charge of actual or implied bias. Not so under subsection (5). Moore and Utter, not being
parties to the action at the time of the intervention hearing, had no statutory right at that time
to file an affidavit of prejudice under subsection (5). They were therefore not precluded by the
requirement that a party to the action file the affidavit before the hearing of a contested
matter. They could not be prejudiced by not doing an act that they had no right to do.
[Headnote 3]
(2) The other prior asserted hearing of a contested matter relates to the hearing of
plaintiff's motion
4
to set the cause for trial, at which the several parties requested different
dates. Whether or not this was a contest, we are satisfied that the statute expressly excluded
it from the requirement: Every [such] affidavit [of prejudice] must be filed before the
hearing on any contested matter * * *. Subsection (7) of the rule expressly provided: This
section shall not apply to the arrangement of the calendar or the regulation of the order of
business. We are not impressed with respondent's arguments distinguishing a setting on
motion from a simple listing of cases with the trial dates of eachthe latter being
characterized as the true picture of what is meant by a court's calendar. As applied to this
issue subsection (7) requires no construction.
(3) Respondent contends that interveners may not take advantage of the recusation statute,
that they must take the case as they find it. It is true that the Supreme Court of New Mexico
held in Harms v. Coors, 50 N.M. 12, 167 P.2d 353, 354, that considerations controlling upon
the right of intervention clearly reject as a right in the intervenor the benefit of a statutory
disqualification of the judge. In the earlier case of State ex rel. Lebeck v. Chavez, 45 N.M.
161, 113 P.2d 179, the same court rejected the right of recusation in the interveners because
they had not yet become parties at the time they filed the affidavit of disqualification. In a
special concurring opinion Sadler, J., rejected this ground for denying the right to challenge
the judge. However this may be,
5
the theory that interveners must take the case as they find
it, though perhaps true in some respects, has no great force under NRCP Rule 24 under the
circumstances of this case.
____________________

4
Under the provisions of district Court Rule 11(2) this was in reality not a motion but an application.

5
The New Mexico cases may be distinguished by reason of New Mexico's statutory provisions for
intervention in an action or proceeding and because the intervention in the Chavez case was made after long
delay and with a promise of further delay.
the circumstances of this case. It is true that this rule was an outgrowth of the Federal Equity
Rule 37, which provided that intervention shall be in subordination to, and in recognition of,
the propriety of the main proceeding. Our present Rule 24(b) has not (nor has Rule 24(a)
governing Intervention of Right) any such provision, and by implication this omission
negatives the subordination requirement of the old Equity Rule 37. See discussion in 4
Moore's Fed. Prac., 2d Ed., sec. 2405.
This being so, it is not surprising to find numerous expressions by the federal courts that
under Rule 24 an intervener is, for all intents and purposes, an original party and interveners
are treated as if they had been original parties to the suit. In re Raabe, Glissman & Co., Inc.,
D.C., 71 F.Supp. 678; Rice v. Durham Water Co., C.C., 91 F. 433.
[Headnote 4]
The only conclusion that we can draw from these expressions is that an intervener has the
same right of recusation as has any one of the original parties. This was expressly held in City
of San Diego v. Andrews, 195 Cal. 111, 231 P. 726, 728. There the City of San Diego had
commenced an action to quiet title to the waters of the San Diego River. The California
statute required that in any action of that nature the judge of the superior court of the county
shall be disqualified to sit or act unless the parties stipulated to waive the disqualification.
The several original parties did so stipulate but a subsequent intervener refused. Mandamus
was sought to compel the judge to act, in reliance upon the general rule that one who
intervenes in an action is bound by the record of the action at the time of intervention, and
that the intervener could not disqualify the judge. The court held that it would be an
unwarranted application of the general rule to hold that it would require an intervener to try
his case before a disqualified judge. The mere suggestion of such a holding would seem to be
its refutation. Elsewhere the court said: "* * * [A]fter the intervention had taken place,
[interveners] became parties to the action, interested with the defendants 'in resisting
the claims of the plaintiff,' and as such parties 'they are entitled to avail themselves of all
the procedures and remedies to which the defendant would be entitled for the purpose of
defeating the action, or resisting the claim of plaintiff.' {Citing cases.)
the court said: * * * [A]fter the intervention had taken place, [interveners] became parties to
the action, interested with the defendants in resisting the claims of the plaintiff,' and as such
parties they are entitled to avail themselves of all the procedures and remedies to which the
defendant would be entitled for the purpose of defeating the action, or resisting the claim of
plaintiff.' (Citing cases.) [The intervener], when leave to intervene was granted, was therefore
in legal effect a party defendant in said action and as such had the right to interpose the
objection to the respondent sitting or acting in the case.
(4) Respondent next contends that in any event mandamus would afford relators no relief
because the respondent judge has already ordered a separate trial on relators' complaint in
intervention before another judge. However, after the filing of the affidavit of prejudice, the
statute required that the judge shall not act * * * shall proceed no further * * * other than to
assign the case, with the intervener as a party, to another judge. Tarsey v. The Dunes Hotel,
75 Nev. 364, 343 P.2d 910; State ex rel. Kline v. District Court, 70 Nev. 172, 264 P.2d 396;
State ex rel. Stokes v. District Court, 55 Nev. 115, 27 P.2d 534. The order for separate trial
accordingly has no validity.
The alternative writ of mandamus heretofore issued is hereby made permanent, and the
respondent judge is hereby required to call in the district judge of some other district in this
state to preside at the hearing and trial of the pending case wherein A. R. Sartain is plaintiff
and Spring Creek Ranch Co. and another are defendants and C. W. Moore and Jack Utter are
interveners.
McNamee and Thompson, JJ., concur.
____________
77 Nev. 365, 365 (1961) Foster v. Bank of America
WILLIAM F. FOSTER, ETHEL FOSTER, LAURENCE SPEARS, GEORGE EVANS, JR.,
WALTER PARMAN and MARGARET PARMAN, Appellants, v. BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, Executor of the Estate of Silve G.
Arata, Deceased, RITA GIANELLI, Executrix of the Estate of Joseph Gianelli, Deceased,
DOMINIC L. BATTILANA, Individually and as Directors and Trustees of Tahoe Enterprises,
Incorporated, a Corporation, TAHOE ENTERPRISES, INCORPORATED, a Corporation,
THE CORPORATION TRUST COMPANY OF NEVADA, a Corporation, FIRST
NATIONAL BANK OF NEVADA, a Corporation, WASHOE TITLE COMPANY, a
Corporation, Respondents.
No. 4358
October 4, 1961 365 P.2d 313
Appeal from the judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Derivative action by minority stockholders for accounting of remaining assets of
corporation by defendant directors and officers thereof. The trial court rendered judgment for
defendants and plaintiffs appealed. The Supreme Court, Badt, C. J., held that the trial court's
finding that accounting given by the defendants showed no balance was owed by the
defendants to the corporation but that defendants owned a deficiency or unsecured credit
against the corporation was supported by relevant and competent evidence.
Affirmed.
Hutchinson & Quattrin and J. Albert Hutchinson of San Francisco, and John E. Gabrielli,
of Reno, for Appellants.
Guild, Busey & Guild, of Reno, and Mazzera, Snyder and DeMartini, of Stockton,
California, for sundry Respondents.
Leslie B. Gray, of Reno, for Respondent Dominic L. Battilana.
1. Corporations.
Trial court's refusal to make interlocutory decree for an accounting in derivative action by minority
stockholders for accounting of remaining assets of corporation by defendant directors and officers thereof
was not abuse of discretion where court itself considered account and acted upon all objections thereto.
NRCP 53(d)(3).
2. Evidence.
Account compiled by certified public accountant from corporate books as to whose accuracy he had no
personal knowledge was not objectionable where testimony as to accuracy of items was supplied by other
witnesses.
Trial court, on remand of case for accounting of remaining assets of corporation, committed no error in
admitting evidence of receipts and disbursements that may have included items that went into issues of
former trial of case and beyond precise limitation of remind by Supreme Court, where under circumstances
of case there was bound to be some overlapping.
4. Corporations.
Trial court's finding, in derivative action by minority stockholders against directors and officers of
corporation for an accounting of remaining corporate assets, that as result of an accounting between such
parties there existed a balance in favor of defendant directors and officers, meant that action by corporation
against such directors and officers would fail, and derivative suit would likewise fail.
5. Witnesses.
Trial court's refusal of further cross-examination of accountant by minority stockholders seeking
accounting of remaining assets of corporation was not error where it appeared that accountant had no
personal knowledge of amount of actual cash on hand and witness who had such personal knowledge was
subsequently cross-examined as to it.
6. Trial.
Under present procedural rules, ex parte findings are contemplated, subject to the right of the other party
to move to amend the same. NRCP 52(b).
Where evidence furnishes substantial support for trial court's findings, Supreme Court will not make
further inquiry into case.
8. Corporations.
In derivative action by minority stockholders for accounting of remaining assets of corporation taken
over by defendant officers and directors, evidence sustained finding that accounting showed no balance
was owed corporation by defendants, but that defendants owned a deficiency or unsecured credit against
the corporation.
OPINION
This appeal is from a judgment entered upon a second trial by reason of this court's
remand for a limited new trial of one issue. The original action was a derivative one by
minority stockholders of Tahoe Enterprises, Incorporated, which operate a resort and
gambling casino at Lake Tahoe, for an accounting and dissolution and distribution of the
remaining corporate assets. In our disposition of the appeal from the first judgment, we
affirmed the same in all respects except one. Foster v. Arata, 74 Nev. 143, 325 P.2d 759, 766.
In this regard we said: At the close of the 1950 season substantial assets were in the hands of
the defendants which they took over and disposed of arbitrarily. They had no lien upon these
assets. The authorities justifying foreclosure of their mortgages under the conditions
described have no bearing upon their seizure and disposition of these assets. An accounting
must be had of such disposition. Our order in this respect was as follows: [T]he denial of an
accounting for the disposition of assets not included in the mortgages is reversed and the
cause remanded for a limited new trial of this item. On limited new trial the lower court
approved the accounting given by defendants, which showed no balance owed by the
defendants to the corporation. The plaintiffs appealed and have asserted error as follows:
1. That the trial court erred and abused its discretion in refusing to enter an interlocutory
decree requiring the filing of an account.
2. That the court erred in permitting a retrial beyond the limited issue of the remand.
3. That the court erred in permitting trial and finding that defendants owned a
deficiency or unsecured credit against the corporation; that despite the fact that this
court's opinion on the first appeal had closed the ledger on both sides of all prior debits and
credits, except those involved in the remand for limited new trial, the court had permitted a
complete showing of all such prior matters; that by reason thereof the respondents had
been unlawfully permitted to show their complete advances for the benefit of the
corporation; that this included an advance of $150,000 evidenced by respondents' first
mortgage, although such indebtedness had been extinguished by respondents'
foreclosure of their second mortgage securing subsequent advances of $103,000; that it
also included an indebtedness of $30,000 which had become "moribund" because the
same had not been reserved in their first judgment; that even if these claims to credits
had been procedurally reserved, they were not factually justified.
such prior matters; that by reason thereof the respondents had been unlawfully permitted to
show their complete advances for the benefit of the corporation; that this included an advance
of $150,000 evidenced by respondents' first mortgage, although such indebtedness had been
extinguished by respondents' foreclosure of their second mortgage securing subsequent
advances of $103,000; that it also included an indebtedness of $30,000 which had become
moribund because the same had not been reserved in their first judgment; that even if these
claims to credits had been procedurally reserved, they were not factually justified.
4. That the court erred in curtailing appellants' cross-examination of plaintiffs' witnesses.
5. That the findings are not supported by the evidence.
6. That it was error to permit the filing of ex parte findings.
7. That it was error and an abuse of discretion to deny appellants' motion for a new trial.
These assignments of error are not recited in the precise words used by the appellants, but
are a proper description of the assignments as we see them. We deal with the assignments of
error in the order asserted.
[Headnotes 1, 2]
1. Appellants rely on NRCP Rule 53(d)(3)
1
to support their contention that it was error
and an abuse of discretion for the court to refuse to make its interlocutory decree for an
accounting. A reading of this rule indicates on its face that the refusal cannot be deemed an
error, as the manner of permitting the submission of an account is made clearly discretionary.
We see no abuse of discretion in denying the application for an interlocutory order or in
overruling the objections of appellants to the presentation of the account under the
method adopted by respondents, as hereafter described.
____________________

1
NRCP Rule 53(d)(3): Statement of Accounts. When matters of accounting are in issue before the master,
he may prescribe the form in which the accounts shall be submitted and in any proper case may require or
receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a
party to any of the items thus submitted or upon a showing that the form of statement is insufficent, the master
may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved
by oral examination of the accounting parties or upon written interrogatories or in such other manner as he
directs.
abuse of discretion in denying the application for an interlocutory order or in overruling the
objections of appellants to the presentation of the account under the method adopted by
respondents, as hereafter described. The court itself considered the account and acted upon all
objections thereto. Long before the adoption of NRCP (effective January 1, 1953) this court
said in State ex rel. Reinhart v. Callahan, 48 Nev. 265, 271, 229 P. 702, 703: We have no
statutory provision as to the method of procedure when it has been made to appear that an
accounting should be ordered, but it seems that a court of equity has a wide discretion in this
matterit may refer a case to a referee in the first instance, or it may take the account itself,
or it may, before making an order of reference or before taking the account itself, order that
an account be rendered, duly verified. To like effect are Ideal Packing Co. v. Brice, 132
Cal.App.2d 582, 282 P.2d 957; Schefski v. Anker, 216 Cal. 624, 15 P.2d 744; Puim v.
Callahan, 135 Cal. App.2d 70, 286 P.2d 526; Gibbs v. District Court, 86 Utah 314, 44 P.2d
504. Nor is the account objectionable because the accountant, a certified public accountant,
compiled the same from the corporate books and records and as to whose accuracy he had no
personal knowledge. Testimony as to the accuracy of the items was supplied by other
witnesses. The assignment of error is without merit.
[Headnote 3]
2. We find no prejudicial error in the admission of evidence of receipts and disbursements
that may have included items beyond the precise limitation of the remand. Under the
circumstances of the case there was bound to be some overlapping. Indeed, the parties
seemed to contemplate this in both the direct and cross-examination of witnesses. In
considering an exhibit that went into issues of the former trial, appellants stated: We have no
objection to receiving some of the evidence that went into the other trial, upon its being
shown pertinent
* * *. And in objecting to certain interrogatories and their answers, appellants made the
objection, "because they refer only to the items in the Supreme Court opinion and nothing
else whatever.
objection, because they refer only to the items in the Supreme Court opinion and nothing
else whatever.
2
In the briefs on the present appeal we find innumerable references to and
extended discussion of evidence of receipts and disbursements in the operations long before
this court is said to have closed the ledger at the close of the season, September 30, 1950.
[Headnote 4]
3. Appellants' next attack is against the recognition, in any judgment upon the accounting
as a whole, of any indebtednesses of the corporation to the respondents prior to the
foreclosure judgments. This would wipe out the $150,000 note secured by the first real
mortgage from the corporation to the respondents by reason of respondents' foreclosure of the
second mortgage, and would further wipe out an indebtedness of $30,000 from the
corporation to the respondents. There are several reasons which prevent us from recognizing
the validity of this assignment of error. Respondents cite several authorities, including the
annotation at 95 A.L.R. 81 to the effect that the foreclosure of the junior mortgage
extinguishes the personal obligation of the senior mortgage. An annotation at 39 A.L.R. 1486
states that there is a considerable difference of opinion on the subject. The principal case
there annotated, Oklahoma State Bank of Enid v. Dotson, 109 Okla. 190, 235 P. 181, 183, 39
A.L.R. 1482, holds definitely that the foreclosure of the second mortgage did not extinguish
the first mortgage, for the reason that the junior mortgage foreclosed by plaintiff was subject
to the senior mortgage * * *. It is not necessary for us here to resolve these conflicting
authorities. It is recited in our opinion on the first appeal, 74 Nev. at page 156, 325 P.2d at
page 766: "The findings of the district court that the sale by the defendants of the
properties bought in at foreclosure {$125,000, subject to the deed of trust for $150,000,
and $15,000 for the chattel mortgaged property bought in) constituted the full cash value
of said real and personal properties is substantially supported by the evidence."
____________________

2
The trial court in sustaining an objection to appellants' cross-examination of the accountant witness for
appellants said: But you are asking about the operations of May, June, and July [as against the purpose of the
special remand for accounting of the cash and other assets taken over in September], as I understand it, and that
is not the purpose of this hearing. Mr. Hutchinson: Actually my qustion was directed to where, in these books,
can we find the cash outlays for the operation. Such cash outlays were over a considerable period of time within
the 1950 operation.
325 P.2d at page 766: The findings of the district court that the sale by the defendants of the
properties bought in at foreclosure ($125,000, subject to the deed of trust for $150,000, and
$15,000 for the chattel mortgaged property bought in) constituted the full cash value of said
real and personal properties is substantially supported by the evidence. In the first place, if
this was in issue on the first trial, it was there disposed of and is no part of any issues
involved in our remand for a limited new trial. In the second place, a reference to the topical
index to appellants' 90-page opening brief in the first appeal does not indicate that such
contention was there made. The authorities cited in support of this contention were not cited
in the first appeal. If, as appellants contend, the law of the case, except as to the purpose of
the limited remand for further trial, established the law for the second trial and the present
appeal, the question raised by this assignment of error is not now before us. All assignments
of error on the appeal from the judgment in the first trial, all issues involved in appellants'
derivative suit in the first trial were resolved in favor of the respondents, except the one issue
to which the remand was limited. If the contention that the foreclosure of the second
mortgage extinguished the first mortgage and all personal obligation to pay the first mortgage
debt was available at all as a defense, it was available in the first trial. If so, it was adjudicated
in the affirmance of the judgment in favor of defendants. We must also recall that this was a
derivative action brought by appellants to establish an indebtedness of the respondents to the
corporation. In such action all items of debits and credits between respondents and the
corporation were cognizable. If the result of an accounting between such parties showed a
balance in favor of respondents, and an action by the corporation against respondents would
accordingly fail, the derivative suit must likewise fall. Nelson v. Sierra Construction Corp.,
77 Nev. 334, 364 P.2d 402.
The same applies to the indebtedness of the corporation to the defendants in the sum of
$30,000 for moneys advanced for the corporate business and which item appellants claim
has now become "moribund."
appellants claim has now become moribund. Further discussion of this assignment of error
therefore becomes unnecessary. It would likewise be without purpose to discuss appellants'
contention that there has been a procedural estoppel on the ground that respondents suffered
the first judgment and its affirmance in the first appeal without reserving such subject
matter and without themselves taking an appeal from the court's failure to preserve their
rights. Our recital in affirming the first judgment that the total recovery of the defendants in
the sum of $344,500 was exceeded by over $70,000 in their advances to and for the benefit of
the corporation would seem to reinforce the conclusions above reached.
Up to the close of the 1949 season (about September 9, 1949) the books were kept by
appellant Walter Parman. About that date he turned them over to appellants' accountants,
Semenza & Kottinger, for auditing. The 1950 operation by respondents, and the books
reflecting same, were audited by respondents' accountant Schofield. A comparison and
analysis of the two do not show any serious disagreement as to sums owed respondents by the
corporation. We still end up with a substantive balance in favor of respondents. The findings
of the trial court were in agreement. The issue became a question of fact and in our opinion
there was ample support for the trial court's findings. Under such situation this court will not
interfere.
[Headnote 5]
4. Appellants assign error in the trial court's curtailment of cross-examination by
plaintiffs. The cross-examination halted by the court was that of the accountant. The
cross-examination had already been extensive. It was halted after it appeared that the
accountant witness had no personal knowledge of the amount of actual cash on hand on the
close of operations September 4, 1950, and it appeared from statements of counsel that a
witness would be produced who could testify to such facts of his own knowledge.
Respondent Arata did subsequently testify thereto and was cross-examined at length as to
cash on hand and in bank. As noted, the witness being cross-examined had no such
personal knowledge.
witness being cross-examined had no such personal knowledge. He had not participated in
the counting of the cash. Arata had. Under the circumstances, we do not see what could have
been accomplished by further examination of the accountant concerning the matter inquired
into.
[Headnote 6]
5. Throughout their brief appellants complain bitterly of the so-called findings, of the
ex parte findings, self-serving findings, one-sided proposals, of the fact that the
defendants had drawn the findings and they had been signed by the court; that plaintiffs were
denied the opportunity to object or propose counter-findings. Appellants' complaints in this
regard would have been in order under the old practice. Our present Rule 52(b) NRCP quoted
in the margin
3
now contemplates ex parte findings subject to the right of the other party to
move to amend the same and departs radically from the old procedure.
[Headnote 7]
6. Appellants next attack virtually all the pertinent findings on the ground that they are not
supported by the evidence. We have laboriously examined appellants' analysis of the evidence
and their arithmetical calculations which arrive at sundry figures varying greatly from those
produced by respondents. Those same figures and calculations were before the district court.
So were the respondents' books, as well as the testimony of the respondents and their
witnesses. It is to such evidence that we must look. If that evidence furnished substantial
support for the findings, this is as far as we need inquire. We are of the opinion that it did.
____________________

3
Rule 52(b) NRCP: Amendment. Upon motion of a party made not later than 10 days after entry of
judgment the court may amend its findings or make additional findings and may amend the judgment
accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact
are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support
the findings may thereafter be raised whether or not the party raising the question has made in the district court
an objection to such findings or has made a motion to amend them or a motion for judgment.
7. The disposition of the foregoing matters leaves for final and brief consideration the
meat of the remand for a limited new trial and the trial court's determination thereof. In our
partial affirmance of the first judgment, we affirmed the trial court's refusal to grant an
accounting for the 1950 operation in the absence of proof of waste, mismanagement, or other
facts warranting the order for an accounting. We sustained the district court's finding that the
loan transactions between respondents and the corporation were valid, and that advances by
respondents for the corporate purposes exceeded their recoveries by some $70,000, but that
their appropriation of certain specific assets, namely, cash in hand, cash in bank, accounts
receivable, licenses, deposits as security for taxes, utility services, union contracts for
entertainers, prepaid insurance, and inventory of liquors, not included in the mortgages,
required an accounting, and we remanded for such limited purpose. Respondents accounted in
manner satisfactory to the trial court and we have approved that court's acceptance of the
method of accounting. That court found that respondents had fully accounted for the items in
question and that their account was true, correct, and complete and fully disclosed the extent
of said assets and the disposition thereof. This covered the agreed accounting period
commencing September 4, 1950. Their books, check records, and bank statements, supported
by oral testimony, showed deposits in bank made September 5, 6, and 7, 1950 in a sum
aggregating (inclusive of September 5 balance in bank of $1,922.87) $58,459.74. While a
large part of this was comprised of checks payable to the corporation, the deposits included
$22,300 of bankroll, $6,725 in currency, and $387.60 coins from slot machines, bar,
restaurant, and gaming tables, and $9,533 in coins from the slot machines, bar, and hotel,
besides $206.75 from miscellaneous sources. Against these deposits was an itemized list of
every check drawn, showing in detail date, number of check, payee, amount and purpose for
which drawm. These checks were all for the corporate purposes, and left a balance in the
Reno account of $164.67. In like manner deposits in and drafts against the corporation's
account at the Stockton branch of the Bank of America were shown, with a balance left in
said account of $1S4.71.
deposits in and drafts against the corporation's account at the Stockton branch of the Bank of
America were shown, with a balance left in said account of $184.71. The cash items were
supported by the testimony of Arata. The items of checks deposited and the checks drawn
speak for themselves. The trial court found that the above deposits constituted all the cash
moneys of the corporation existing on and after September 4, 1950 and that there were no
other cash moneys on hand, in bank, or otherwise, or at all, of defendant Tahoe Enterprises,
Incorporated, on or after said date; that the deposits included the $3,500 collected from the
Nevada Tax Commission and $4,500 collected from the Actor's Guild, and that the
withdrawals were all for business and corporate purposes. The items of recovery of prepaid
insurance, $5,345.23, and the telephone deposit of $500, and the power company deposit of
$1,000, and the Nevada Industrial Commission deposit of $489.75 were all duly accounted
for. The respondents drew out for their own use the two small balances at the banks. The
court found that all such recoveries of deposits and bank balances were applied upon and in
reduction of the corporation's indebtednesses to the respondents.
In like manner it was shown that the inventory of the liquor stock was appraised at the
purchase price of $2,922.53, which was also offset against the obligations of the corporation
to the respondents. As to the furniture and personal property sold and accounted for, it may be
noted that the inventory and value thereof as fixed by Messrs. Semenza and Kottinger,
certified public accountants, in their balance sheet of the administration of the enterprise
under appellant Parman corresponded in all material respects with that of certified public
accountant Schofield, respondents' accountant. This included all the furniture and fixtures,
gaming equipment, linen and bedding, china and glassware, floor coverings, and machinery
and equipment of a total net value of approximately $100,000. The court found that the items
of personal property accounted for comprised all the personal property of the corporation and
that the same had been sold at its full value, and that the account thereof was full, true,
and correct, and that the application of the various recoveries of bank balances, prepaid
insurance, telephone deposit, power company deposit, insurance commission deposit, and
the liquor inventory, aggregating a total of $6,117.4S, should be deducted from the
balance of $7S,691.70 in favor of the respondents, leaving the sum of $72,574.22 still
owing by the corporation to respondents, irrespective of any computation of interest.
that the same had been sold at its full value, and that the account thereof was full, true, and
correct, and that the application of the various recoveries of bank balances, prepaid insurance,
telephone deposit, power company deposit, insurance commission deposit, and the liquor
inventory, aggregating a total of $6,117.48, should be deducted from the balance of
$78,691.70 in favor of the respondents, leaving the sum of $72,574.22 still owing by the
corporation to respondents, irrespective of any computation of interest. After the September
1950 disbursements no other creditor of the corporation was owed any moneys by the
corporation. Such creditors had been paid in full.
[Headnote 8]
Appellants attack the evidence adduced by respondents as being incredible and assert
that the trial court's acceptance of the favorable balance in favor of respondents in the sum of
$78,691.70, reduced only by their further recoveries of $6,117.48, made this court's remand in
the former appeal an empty gesture. We think that the purpose of the remand has been
accomplished. There had theretofore been no accounting of the cash on hand, cash in bank,
personal property, and other items referred to in the remand. Such accounting has now been
given to the satisfaction of the trial court. But appellants continue to attack the lack of a
permanent method of accounting each time cash was placed into the safe and taken out of the
safe. They discount the evidentiary value of Arata's testimony as to the making of deposit tags
and withdrawal tags for all moneys placed in and taken from the safe and the forwarding of
these tags to the Stockton office for entry, and that all cash was so handled. However, it is not
our function to reject relevant and competent evidence accepted by the trial court.
The judgment and the order denying the motion for new trial are affirmed.
____________
77 Nev. 377, 377 (1961) Commercial Credit Corp. v. Matthews
COMMERCIAL CREDIT CORPORATION, Appellant, v. JAMES J. MATTHEWS and
JAMES J. MATTHEWS, dba MATTHEWS CONSTRUCTION COMPANY, L. V.
REDFIELD, and JACQUES MORVAY, Respondents.
No. 4384
JAMES J. MATTHEWS and JAMES J. MATTHEWS dba MATTHEWS CONSTRUCTION
COMPANY, Appellants, v. COMMERCIAL CREDIT CORPORATION, L. V. REDFIELD
and JACQUES MORVAY, Respondents.
No. 4381
October 5, 1961 365 P.2d 303
Appeals from the Second Judicial District Court, Washoe County, Taylor H. Wines,
Judge.
Action for a declaratory judgment to determine the rights of the parties in a trust fund
arising from the construction and sale of houses in a subdivision. From a judgment of the
lower court that the landowner, who was one of the trustors, and the assignee of the other
trustor were entitled to a substantial part of the fund and that a subsequent creditor of the
other trustor was not entitled to any part thereof, the landowner and the subsequent creditor
appealed. The Supreme Court, McNamee, J., held that the subsequent creditor was not
entitled to any part of the fund where it contracted with the other trustor without any reference
to the trust and on the other trustor's own credit, and that the other trustor's assignee was
entitled to a share as against the landowner, who had extended credit to the other trustor after
the assignment was made but before he learned thereof.
Judgment affirmed as to each appeal.
(Rehearing in each appeal denied November 3, 1961.)
George Folsom and Goldwater, Taber & Hill, of Reno, for Commercial Credit
Corporation.
Belford, Anglim & Brown, of Reno, for James J.
Matthews and James J. Matthews dba Matthews Construction Company.
Peter Echeverria, of Reno, for Respondent L. V. Redfield.
Lohse & Fry, of Reno, for Respondent Jacques Morvay.
1. Liens, Trusts.
Trust agreement, whereunder funds arising from construction and sale of houses in subdivision were to be
disposed of in certain manner, with balance to be paid equally to trustors, and providing that a sufficient
reserve was to be accumulated to cover any remaining obligations contracted for development of
subdivision, did not create equitable lien in favor of laborers or materialmen, and provision for reserve for
remaining obligations referred to obligations specifically enumerated in trust agreement and interim
financing agreement dated same day.
2. Liens.
In order for an equitable lien to arise out of trust agreement the intention to create such a lien must clearly
appear.
3. Trusts.
Creditor which had advanced moneys to one party interested in trust fund arising from construction and
sale of houses in a subdivision, to complete construction after original construction contractor defaulted,
was not entitled to any part of trust fund where it contracted with that party without any reference to the
trust and on that party's own credit.
Under circumstances that court had reviewed entire record in connection with another appeal,
consolidated for argument, Supreme Court would determine merits in appeal even though respondent failed
to file a brief.
5. Assignments.
After a contract is made, rights created by it are assignable, even though enjoyment of those rights is
postponed to a future time; the assignee is entitled to priority over claims of subsequent creditors of
assignor, even those creditors who became such without notice of the assignment.
6. Assignments.
Assignee's claim to rights, under a contract assigned to him, is not defeated by mere fact that assignor
makes second assignment after money has become due or that other creditors have made advances in
ignorance of assignment and in belief they could attach the money to be earned.
7. Trusts.
Rights of assignee of first trustor of fund, which under terms of trust was to be divided between trustors
after payment of certain amounts, were superior to claim of second trustor as creditor
of first trustor on claim which arose subsequent to the assignment, even though
claim arose before second trustor learned of assignment.
ment of certain amounts, were superior to claim of second trustor as creditor of first trustor on claim which
arose subsequent to the assignment, even though claim arose before second trustor learned of assignment.
OPINION
This is an action for a declaratory judgment commenced by Commercial Credit
Corporation for the purpose of determining the rights of certain parties in a trust fund. The
lower court determined that Morvay's assignee, Redfield, and Matthews were entitled to the
substantial part of the fund, and that Commercial Credit Corporation was not entitled to any
part thereof. From this decision the two present appeals result: one by Commercial Credit, the
nature of whose claim is hereinafter set forth in detail; the other by Matthews who claims, in
addition to what was allowed him by the lower court, rights to Morvay's interest in the trust
fund paramount to Redfield.
On February 4, 1954, Morvay and Matthews entered into a contract pertaining to the
development of a housing subdivision which provided that they would divide equally
between them the net profit from the construction and sale of houses in the subdivision. At
that time Morvay was conducting a building supply business.
On February 5, 1954, Matthews, as owner of the land in the subdivision, entered into a
contract with Alland & Co., a building contractor, for the construction of 76 houses in said
subdivision for the sum of $7,350 per home. Globe Indemnity Co. furnished a completion
bond in favor of Matthews. Morvay, without consulting Matthews, agreed in writing to
indemnity Globe for any loss it might suffer under said bond, apparently for the purpose of
obtaining supply orders from Alland for the job.
On July 12, 1954, Morvay and Matthews entered into two contracts with Nevada Bank of
Commerce, one of which pertained to interim financing by the bank, hereinafter called
"interim financing agreement."
two contracts with Nevada Bank of Commerce, one of which pertained to interim financing
by the bank, hereinafter called interim financing agreement. The other consisted of a trust
agreement wherein Matthews and Morvay were trustors and the bank was trustee. The bank
was to hold certain profits resulting from the sale of houses for distribution equally to Morvay
and Matthews. The substance of these agreements of July 12, 1954 was that with respect to
each house constructed, as proof of progress was presented to the bank, the bank was
authorized to advance to Alland & Co. and others not more than $8,000 for the construction
of each house and as each house was sold and the sales price was paid into the bank, any
amount received by the bank on the sale of a house over the sum of $8,000 was the profit
which went into the trust fund.
1

On February 2, 1955, Morvay, for money advanced, assigned to Redfield all moneys then
in the trust fund and any moneys thereafter deposited in such fund to which he would be
entitled. A copy of this assignment was served the same day on the Nevada Bank of
Commerce. Matthews had no knowledge of this assignment until approximately September 8,
1955.
On March 7, 1955, Alland & Co. defaulted. Evidently, the $7,350 per house received from
the bank was insufficient to cover the amount for which Alland & Co. had agreed to build
each house; in other words, it was losing on each house and could no longer continue
operations. At that time Alland & Co. owed several thousand dollars to Morvay Building
Supplies, Inc., (Morvay had incorporated himself on October 1, 1954) for supplies furnished
Alland & Co. in the performance of its building contract and for funds advanced Alland to
meet payroll obligations. Globe and Matthews agreed upon a certain amount as a settlement
under said bond, which amount was insufficient to pay all of the claims against Alland & Co.
and the debt from Alland & Co.
____________________

1
Certain other expenses not connected with construction were, under said interim financing agreement, to be
deducted also from the amount so received before any profit on an individual house would go into the trust fund.
& Co. and the debt from Alland & Co. to the Morvay corporation remained unsatisfied.
2

On March 24, 1955, because of such default of Alland & Co., Morvay, as an individual,
entered into an independent contract with Matthews under which Matthews would act as
general contractor in completing the houses not already sold, and Morvay agreed to pay all
sums then due for labor performed on or materials furnished to said job prior thereto, and
Morvay further agreed to pay all costs necessary for the completion work. Matthews in his
opening brief (No. 4381) admits that the obligations assumed by Morvay under the agreement
of March 24, 1955 were not payable out of the trust fund.
In order to pay such costs of completion assumed by Morvay as aforesaid, Morvay had the
Morvay corporation enter into a financing agreement with Commercial Credit Corporation,
dated April 11, 1955, wherein Commercial Credit agreed to advance the necessary money to
the Morvay corporation for the completion. As security for such advances the Morvay
corporation assigned to Commercial Credit certain of its accounts receivable. The two we are
concerned with are (a) the said account receivable from Alland & Co. which resulted from
materials purchased from the Morvay corporation prior to the default of Alland & Co. (see
Footnote 2), and (b) the account receivable from Matthews, which is the result of purchases
by Matthews from the Morvay corporation after the default of Alland & Co.
3
Matthews first
learned of such assignment on August 30, 1955, and immediately notified Commercial Credit
that he owed Morvay nothing.
Morvay, as an individual, and the Morvay corporation are both insolvent.
____________________

2
Under his indemnity agreement with Globe and the agreement of March 24, 1955 mentioned hereinafter,
Morvay was obligated to satisfy this debt or assume the loss, whether it was owed to Morvay as an individual or
to a corporate entity.

3
Under the March 24, 1955 agreement these purchases should have been charged to the account of Morvay.
Because the Morvay corporation owes Commercial Credit under its financing agreement
of April 11, 1955, Commercial Credit seeks to satisfy such indebtedness by claiming
Morvay's and Matthews' interests in the trust fund to the extent of such assigned accounts.
Matthews claims he is entitled not only to his interest in the trust fund but also to
Morvay's, at least to the extent of Morvay's indebtedness to Matthews resulting from their
said agreement of March 24, 1955.
Redfield claims he is entitled to the entire interest of Morvay in the trust fund by virtue of
the Morvay-Redfield assignment.
As heretofore stated, the lower court denied Commercial Credit any relief and awarded,
subject to certain deductions, all of Morvay's interest in the trust fund to Redfield. In doing
so, the court denied the claim of Matthews to any part of Morvay's interest.
The lower court expressly found that the Morvay corporation was not an entity separate
from Morvay, and it dealt with the Morvay corporation and Morvay, the individual, as one
and the same legal entity. We have determined from the evidence that this finding by the
lower court was correct, whether or not such a determination was necessary in view of our
conclusions herein.
Our main problem on these appeals is to construe the said trust agreement of July 12,
1954. This agreement provides in part:
* * * the TRUSTORS above named do hereby authorize and direct that upon the closing
of each individual sales escrow * * * all monies remaining after payment of the costs and
charges as provided in that certain Agreement dated the 12th day of July, 1954 [the interim
financing agreement]
4
* * * shall be deposited in the Trust Department, Nevada Bank of
Commerce, Reno, Nevada, in trust nevertheless and subject to the uses and purposes
hereinafter provided, to-wit:
____________________

4
The interim financing agreement makes no reference to payments of costs and charges connected with
construction. The only costs and charges specified therein pertain to financing, repayment of loans, insurance
premiums, and escrow fees.
subject to the uses and purposes hereinafter provided, to-wit:
1. To pay Isbell Construction Co. in accordance with that certain contract between James
Matthews and Isbell Construction Co. dated the 13th day of April, 1954, to be paid upon
written approval of Isbell Construction Co. and James J. Matthews, subject to a ten (10%)
percent retention, which retention shall become due and payable thirty-five (35) days after
completion of all work, and upon completion of said work to the satisfaction of the Veterans
Administration, or Federal Housing Administration and the City of Reno.
2. To retain such sums of money as shall be specified by the Veterans Administration or
Federal Housing Administration until such time as the Veterans Administration or the Federal
Housing Administration shall authorize the release of the same.
In the event, for any reason construction is stopped in the development of said
subdivision
5
then and in that event, the TRUSTEE shall proceed as follows, to-wit:
A. Pay to Nevada Title Guaranty Company the sum of SIXTEEN and 10/100 ($16.10)
DOLLARS for each dwelling house constructed in said subdivision for legal fees and
documentary stamps.
B. Pay all taxes due and payable and all outstanding construction costs as approved by
TRUSTEE and TRUSTORS; however, in the event of a disputed claim the TRUSTORS shall
be responsible for the settlement of same by Court action or otherwise, during which time the
TRUSTEE may deposit the sum in dispute with H. K. BROWN, County Clerk, until the
dispute is settled.
C. Pay any balance remaining due to L. V. Redfield on the indebtedness in the total sum
of THIRTY-TWO THOUSAND ($32,000.00) DOLLARS invested by the said L. V.
Redfield, less all sums paid out of down payments.
____________________

5
The lower court found that the default of Alland & Co. did not constitute a stoppage in the development of
said subdivision within the meaning of this paragraph.
D. Pay Henry Hartman any remaining balance due on his investment of EIGHT
THOUSAND ($8,000.00) DOLLARS, less all sums paid out of down payments, and to pay to
Henry Hartman an agreed addition sum of TEN THOUSAND ($10,000.00) DOLLARS, to be
paid upon the termination of this trust in accordance with the provisions of this agreement.
E. Pay George E. Miller any remaining balance due on his contract with James J.
Matthews for work actually completed.
F. Pay Isbell Construction Co. any remaining balance due on its contract with James J.
Matthews for work actually completed.
In the event the monies in said trust are insufficient to pay all of the obligations first
immediately hereinabove provided, then each of the last five items hereinabove named shall
be paid on a pro-rata basis, at which time the TRUSTORS shall then be given sixty (60) days
within which to pay into the hands of the TRUSTEE sufficient funds to enable TRUSTEE to
pay all outstanding liabilities due under the terms of this Trust Agreement, and upon the
payment of said liabilities then said balance of monies or lots shall be delivered or transferred
to the TRUSTORS as may then be jointly directed in writing signed by the TRUSTORS
herein and said trust shall be terminated.
Upon the completion of construction of seventy-six (76) houses * * * the closing of
seventy-six (76) sales escrows, and the payment of all obligations as in this Trust Agreement
provided * * * then any remaining monies or lots shall be delivered or transferred to the
TRUSTORS as may then be jointly directed in writing signed by the TRUSTORS herein and
said trust shall then be terminated.
IT IS AGREED that in the event construction proceeds in an orderly manner, obligations
are paid as same become due and a sufficient reserve is accumulated to cover any remaining
obligations contracted for development of said subdivision, then TRUSTEE may release any
sum or sums over the sum of the obligations, to the TRUSTORS as may be jointly directed in
writing signed by the said James J.
to the TRUSTORS as may be jointly directed in writing signed by the said James J. Matthews
and Jacques Morvay.
Commercial Credit argues that it was the intention of the parties to the trust agreement
(Morvay, Matthews, and the Nevada Bank of Commerce) that said agreement was to
guarantee the payment of all construction costs arising out of the building project, and
therefore Commercial Credit, as assignee of the said Alland and Matthews accounts, should
be paid to the extent of said accounts out of the trust fund before any payments as profits
could be made to the persons entitled thereto. It is conceded that said accounts resulted from
the purchase of materials from or money advanced by the Morvay corporation, all of which
materials and money went into the housing project.
6

[Headnote 1]
Although Commercial Credit Corporation was not a party to the trust agreement and
disclaims any interest in the trust fund as a third-party beneficiary, it does maintain, however,
that the trust agreement gives it an equitable lien against the trust fund to the extent of the
assigned accounts. This claim is based upon the wording of the last paragraph of the trust
agreement above quoted and, particularly, the words and a sufficient reserve is accumulated
to cover any remaining obligations contracted for development of said subdivision. In our
opinion, any remaining obligations contracted for development of said subdivision refers to
the obligations specifically enumerated in the trust agreement and the interim financing
agreement, both dated July 12, 1954.
We are fortified in this conclusion by the admitted facts in the record resulting from the
pre-trial conference wherein the parties admitted the truth of the following:
On July 12th, 1954, the defendants, James J. Matthews and Jacques Morvay, as trustors,
created a trust with the Nevada Bank of Commerce, as trustee, for the payment of costs
and charges in connection with the construction of homes in the Hempstead Gardens
Subdivision, and other obligations therein designated.
____________________

6
But as heretofore noted the payment had been assumed by Morvay for those materials furnished and the
money advanced which these assigned accounts represent.
trust with the Nevada Bank of Commerce, as trustee, for the payment of costs and charges in
connection with the construction of homes in the Hempstead Gardens Subdivision, and other
obligations therein designated. Said trust agreement provided that any moneys remaining in
the trust after the payment of the obligations designated in the trust agreement should be paid
to the trustors, James J. Matthews and Jacques Morvay.
[Headnote 2]
In order for an equitable lien to arise out of the trust agreement the intention to create such
a lien must clearly appear. Union Indemnity Co. v. Drumm, 57 Nev. 242, 62 P.2d 698, 70
P.2d 767.
In stating this rule, the opinion on rehearing in the Drumm case italicizes the word
clearly. There is nothing in the trust agreement which would justify a holding that the
parties thereto clearly intended to create an equitable lien in favor of laborers or materialmen.
In fact, the evidence leads us to conclude that Morvay and Matthews by the two contracts of
July 12, 1954 contemplated that all obligations for labor and materials would be paid by the
general contractor, to wit, Alland & Co., out of the moneys released by the bank under the
July 12, 1954 interim financing agreement or, in the event of a default by the general
contractor in this regard, by the bonding company. After making the payments to Alland &
Co., or as directed by it, in the amount of $7,350 per house as aforesaid, the bank was not
required by the trust agreement to pay or cause to be paid any other amounts to Alland's
laborers, materialmen, or subcontractors. The agreement of March 24, 1955, under which
Matthews became the general contractor in the place of Alland & Co., was executed after the
trust agreement and of course was not within the contemplation of the parties at the time of
the execution of the trust agreement. It did not purport to modify the trust agreement.
[Headnote 3]
There is nothing in the record to indicate that for repayment to it of the sums it was to
advance, Commercial Credit relied on anything other than the corporate credit of Morvay
Building Supplies, Inc., and the accounts assigned to it by the Morvay corporation as
security.
repayment to it of the sums it was to advance, Commercial Credit relied on anything other
than the corporate credit of Morvay Building Supplies, Inc., and the accounts assigned to it by
the Morvay corporation as security. In fact, the record fails to disclose that Commercial
Credit had any knowledge of any of the agreements made by Morvay and Matthews with the
Nevada Bank of Commerce.
The record shows that two representatives of Commercial Credit Corporation during their
investigation of Morvay Building Supplies, Inc., went to the Nevada Bank of Commerce.
Sanders, one of these representatives, testified as follows:
Q. What was the nature of your investigation in the trust department?
A. In the trust department? There was no investigation in the trust department. I was just
talking to someone there who was introduced to me at that time.
Q. Then other than this one visit to the Nevada Bank of Commerce which you spent with
the manager and Mr. Spottiswoode, that's the only time you contacted the Nevada Bank of
Commerce?
A. That is the only time I was in contact with the Nevada Bank of Commerce, correct.
Pritchard, a field operations supervisor for Commercial Credit Corporation, testified as
follows:
Q. Now, working on that close time schedule, when you went to the Nevada Bank of
Commerce did you ask to see any agreements that the Nevada Bank of Commerce had with
respect to this particular subdivision?
A. I did not.
In other words, Commercial Credit, after inquiry as to the financial standing of Morvay
Building Supplies, Inc., was satisfied to contract with it relying solely upon its personal credit
secured only by the assignment of the said accounts receivable. The only remedy of
Commercial Credit Corporation, therefore, is its common law action against the Morvay
corporation or against the credits assigned to it by the Morvay corporation to the extent they
could have been enforced by the assignor, Morvay Building Supplies, Inc.
to the extent they could have been enforced by the assignor, Morvay Building Supplies, Inc.
The situation here is no different from that in James v. Alderton Dock Yards, 256 N.Y. 298,
176 N.E. 401, 403, where the New York court said: Nothing in his [plaintiff's] contract for
services gives him such a lien. Viewing the testimony in the most favorable light, all the
plaintiff had from the corporation was a promise to pay him well for his services in
negotiating a sale of the defendant's property to the dock company. There is no suggestion
that he was to be paid out of any specific property or that the mortgage or any other funds
were to be assigned to him or subjected to a lien for his commissions. His agreement is no
different than that of any other broker or agent for commissions. His work and labor created a
debt due him from the defendant, and to collect this debt his action at law was adequate. No
elements in his arrangements with the defendant bring his claim within the rule which permits
the courts to enforce payment by fixing a lien upon specific property.
No representation was made to Commercial Credit Corporation that for moneys advanced
by it to Morvay Building Supplies, Inc., repayment would be made from any specific fund.
The bank made no such representation and there is nothing in the record to show that Morvay
made such a representation. The evidence does not show that Commercial Credit, prior to the
commencement of this action, looked to the trust fund for repayment of any part of the sums
advanced to the Morvay corporation. As stated in the Drumm case: No circumstance in the
dealings between Drumm and claimants is pointed to as indicating the slightest intention to
create a lien in favor of any of them. [57 Nev. 242, 70 P.2d 771.]
We are of the opinion that the evidence and the trust agreement as we interpret it do not
show an intention on the part of the makers of the trust agreement to create an equitable lien
as contended by Commercial Credit Corporation and that the conclusion of the trial court in
this regard is correct.
court in this regard is correct. The judgment that Commercial Credit Corporation take nothing
by its action must be affirmed.
[Headnote 4]
The separate appeal of Matthews (No. 4381) is from that part of the judgment which
directs the Nevada Bank of Commerce to pay from the trust fund to Redfield, as assignee of
Morvay, $2,000 for financing, $2,000 for costs advanced, and one half of the remainder of the
trust fund; to Matthews the other remaining half of the trust fund less the sum of $562.50,
being Matthews' pro rata share of the special master's fee; and to Lawrence J. Semenza, as
special master, the sum of $1,125.
It is Matthews' contention that inasmuch as Morway under the various agreements herein
mentioned is indebted to Matthews in a sum in excess of one half of the trust fund, the entire
trust fund should go to him less an allowance to the special master.
Because Matthews' opening brief is the only brief filed in this appeal, he has filed a motion
for an order reversing those portions of the judgment which award Redfield as assignee of
Respondent Morvay the sum of $2,000 for financing, the sum of $2,000 for costs advanced
and one half of the amount remaining in the trust fund after the payment of certain charges.
It is his contention that Redfield's failure to file an answering brief is a confession of error.
In Toiyabe Supply Co. v. Arcade Dress Shop, Inc., 74 Nev. 314, 330 P.2d 121, the
respondent filed no answering brief. The opinion therein states: Under these circumstances
this court may, in its discretion, regard the default of the respondent as a confession of error,
and reverse the judgment as to the appellants without consideration of the merits of the
appeal. * * * In our view this is an appropriate case for such method of disposition.
One record on appeal serves as the record for both of the appeals herein, and the two
appeals were consolidated for argument; thus this court has reviewed the entire record.
the entire record. Although a brief on behalf of Redfield undoubtedly would have been
helpful to the court, we believe that under the circumstances here existing it is appropriate for
us to determine on the merits the rights of Matthews and Redfield in the trust fund.
The said motion for reversal is therefore denied.
The trust fund held by the Nevada Bank of Commerce, according to the findings of the
trial court, amounts to $58,797.13. In addition there is accrued interest. All of the
construction work has been completed and all obligations specified in the trust agreement
have been paid. There are no claims or demands against this fund other than those of the
parties hereto. We have already determined that the claim of Commercial Credit is without
merit.
The trust agreement provides that upon completion of the housing project and the payment
of all the specified obligations, the money remaining in the trust fund shall be distributed to
the trustors and the trust terminated.
Morvay divested himself of any interest in the trust fund by his assignment of such interest
to Redfield. The trial court concluded that the claim of Redfield, as assignee of Morvay, to
Morvay's interest in the trust fund is superior to any claim Matthews might have to such
interest, because the assignment was made before the claims of Matthews against Morvay had
arisen. Matthews contends that this conclusion is erroneous.
The legal question presented by such contention is whether rights accruing to a contracting
party (Morvay) under his contract (trust agreement) with another (Matthews) for the payment
of money in the future, which rights he has assigned to a third party (Redfield), are
subordinate to those claims of his (Morvay's) creditors which arise subsequent to the
assignment.
Under the agreement of March 24, 1955, Morvay, as aforesaid, agreed to pay all sums then
due for labor performed and materials furnished plus all costs to be incurred for completion.
Morvay, on or about April 20, 1954, had obligated himself to pay certain construction costs
through his indemnity agreement with Globe.
costs through his indemnity agreement with Globe. It appears that his obligation in this regard
was limited to the extent of Globe's liability on the Alland completion bond and that Globe
had paid Matthews a sum of money in settlement of its liability under the bond. This
obligation insofar as Matthews is concerned has been satisfied. Thus we are concerned only
with the effect if any of the agreement of March 24, 1955 on the Redfield assignment. As
hereinbefore stated, the agreement of March 24, 1955 did not purport to modify the trust
agreement.
Under the agreement of March 24, 1955, Matthews became at a later date a creditor of
Morvay for an amount in excess of one half of the trust fund.
[Headnotes 5, 6]
We recognize the rule that after a contract is made, rights created by it are assignable, even
though enjoyment of those rights is postponed to a future time. Commercial Life Ins. Co. v.
Wright, 64 Ariz. 129, 166 P.2d 943; Baumgarten v. California Pacific T. & T. Co., 127
Cal.App. 649, 16 P.2d 332; Wike v. Board of Trustees, 229 N.C. 370, 49 S.E.2d 740;
Restatement, Contracts, Sec. 154(1). The assignee is entitled to priority over the claims of
subsequent creditors of the assignor, even those creditors who become such without notice of
the assignment. In re Allied Products Co., 6 Cir., 134 F.2d 725. As stated in 4 Corbin,
Contracts, Sec. 874, p. 503: [The assignee] is not defeated by the mere fact that the assignor
makes a second assignment after the money has become due or that other creditors have made
advances to the builder in ignorance of the assignment and in the belief that they could attach
the money to be earned. See 4 Corbin, Contracts, Sec. 903 (1961 Supp.) where the case of
Rockmore v. Lehman, 2 Cir., 129 F.2d 892, and other related cases are analyzed.
[Headnote 7]
We thus conclude as did the trial court that Redfield's rights as the assignee of Morvay to
Morvay's share of the trust fund are superior to the claim of Matthews as Morvay's creditor
which claim arose subsequent to the Redfield assignment.
as Morvay's creditor which claim arose subsequent to the Redfield assignment.
Matthews asserts it was error for the trial court to allow Redfield, as assignee of Morvay,
$2,000 for financing and $2,000 for costs advanced. These were sums which were specified
in the interim financing agreement to be paid Morvay from the trust fund, and thus this
assertion is without merit.
The judgment directs that Lawrence J. Semenza be paid from the trust fund the sum of
$1,125 for his services as special master. The amount for Sememza's services is not disputed.
Although Matthews has appealed from this part of the judgment, his brief makes no mention
of such allowance and does not assign such allowance as error. We therefore deem it
unnecessary to consider this part of the judgment appealed from.
Matthews although making no specification as an error of law in his brief that the special
master's report was in part erroneous, does mention some individual items which he claims
should have been charged against Redfield's share of the trust fund. This claim however is
based on the false premise that his rights under the March 24, 1955 agreement are superior to
the Redfield assignment, which we have herein decided to the contrary. For this reason we are
not inclined to consider the several items in the report of which he complains.
No error appearing in either appeal, the judgment in all respects is affirmed.
Badt, C. J., and Brown, D. J., concur.
Thompson, J., being disqualified, the Governor designated Honorable Merwyn H. Brown,
Judge of the Sixth Judicial District, to sit in his stead.
____________
77 Nev. 393, 393 (1961) Dollar Inv. Corp. v. Modern Market, Inc.
DOLLAR INVESTMENT CORPORATION, Appellant, v.
MODERN MARKET, INC., Respondent.
No. 4394
October 10, 1961 365 P.2d 311
Mowbray, Judge.
Action by seller against buyer on written contract for sale and purchase of a market. The
lower court rendered a judgment for the seller from which the buyer appealed. The Supreme
Court, Thompson, J., held that evidence justified the finding that a paragraph of the
agreement for sale of inventory of groceries, stating that the price would be based on the retail
price less the average percentage of gross profit expressed the true agreement of the buyer and
seller, that it was not result of mutual mistake as to wholesale value of groceries or result of
fraud on part of the seller, and that the seller was properly awarded statutory damages from
the time the agreement specified the sum was due.
Judgment affirmed.
(Rehearing denied November 13, 1961, 77 Nev. 397, 365 P.2d 1117.)
George Rudiak, of Las Vegas, for Appellant.
Samuel S. Lionel, of Las Vegas, for Respondent.
Supreme Court will not disturb findings of court or jury when supported by substantial evidence, whether
case be at law or in equity.
2. Sales.
Evidence justified finding that paragraph of agreement for sale of inventory of groceries stating that price
should be based on retail price less average percentage of gross profit expressed true agreement of buyer
and seller, that it was not result of mutual mistake as to wholesale value of groceries or result of fraud on
part of seller.
3. Interest.
Where contract specifically provided that full purchase price would be due and payable and escrow
would close on stated date, and, by that time, exact amount due seller under contract was known to both
parties, and buyer did not refuse to pay because amount was unknown but because of its claim, which
was overruled in seller's action, that contract did not properly state agreement, seller
was properly allowed statutory 7 percent interest from date contract specified money
was due.
which was overruled in seller's action, that contract did not properly state agreement, seller was properly
allowed statutory 7 percent interest from date contract specified money was due. NRS 99.040.
OPINION
The parties will be referred to as Modern and Dollar. This is an action on a written
contract for the sale and purchase of a market. By stipulation, the sole dispute concerns the
inventory of groceries and liquor and the method used to determine the price to be paid
therefor.
Modern, seller, requests judgment against Dollar, buyer, for the sum of $13,755.43
claimed to be the balance due under the following paragraph of their contract:
The grocery inventory shall be based on the retail price of groceries, less the average
grocery percentage gross profit as disclosed for the period set forth in the financial statement
of the Seller dated January 31, 1958. Dollar denied any obligation to pay the amount claimed
and, by counterclaim, asked that the quoted paragraph be reformed, because of mutual
mistake and fraud, to reflect the true understanding of the parties. The district court found for
Modern, and entered judgment in the amount of $13,755.43, with interest and costs. Dollar
appeals.
The financial statement of seller referred to in the mentioned paragraph reflected the
percentage of gross profit to be 19.12 percent. Soon after consummation of the written
contract, a retail cost inventory was taken disclosing a value of $59,645.99. That value, less
the percentage of gross profit, pegged the purchase price at $48,241.68. It is agreed that
Dollar had paid $34,486.25. The difference between the last two figures, to wit, $13,755.43,
is the amount for which judgment was entered.
Dollar has assigned many errors. With but one exception to be later discussed, each claim
of error attacks the sufficiency of the evidence to sustain the findings of fact and legal
conclusions made by the lower court.
sufficiency of the evidence to sustain the findings of fact and legal conclusions made by the
lower court. In this regard, Dollar's contentions may be summarized as follows: First, that the
evidence clearly shows the true agreement to be that the purchase price of the grocery
inventory was to approximate the wholesale cost thereof, represented by seller to be about
$40,000; that the formula provided by the written contract to take the inventory at retail and
reduce the figure thus obtained by 19.12 percent was intended to approximate the wholesale
cost; that the percentage gross profit figure of 19.12 percent was too low, as established by
expert accounting testimony, resulting in a greater purchase price than intended by the parties.
Second, that the evidence clearly shows that Dollar wanted to take the inventory at wholesale,
but was induced by Modern to agree to the method adopted because of the latter's
representation that the result would be substantially the same.
[Headnote 1]
In its brief and oral argument, Dollar recognizes a conflict in the evidence as to each
contention. Notwithstanding such conflict, it insists that, as equitable relief of reformation is
sought, our duty is to weigh the evidence and direct the entry of a proper judgment. As to this,
it is first noted that the complaint does not seek equitable relief; reformation is sought in
defense and by counterclaim. In any event, we have heretofore held that we will not disturb
the findings of court or jury when supported by substantial evidence, and it makes no
difference whether the case be at law or in equity. Close v. Flanary, 77 Nev. 87, 360 P.2d
259, 263; Agricultural Insurance Co. v. Biltz, 57 Nev. 370, 382, 64 P.2d 1042, 1046.
[Headnote 2]
There is substantial evidence to support the findings and judgment. As indicated, there was
a direct conflict as to the basic contentions heretofore mentioned. Gordon, president of
Modern, testified that he believed the inventory at wholesale cost would run about $55,000
{not $40,000) and so advised Silverman, president of Dollar.
(not $40,000) and so advised Silverman, president of Dollar. Furthermore, Gordon testified
that it was agreeable with him to determine price on a wholesale cost inventory basis, but that
Silverman was anxious to take possession immediately, resulting in their joint decision to the
quicker method of a retail price inventory less percentage of gross profit.
In addition to this testimony creating a direct conflict with Dollar's theory of the case, there
is much evidence, undisputed, to which the lower court apparently gave credit. Without
detailing it all, and by way of example only, such evidence established that Silverman, the
buyer's president, had been in the grocery business for years, knew merchandising and the
customary procedure for buying and selling inventory on hand. The formula set out in the
written contract had been thoroughly discussed before an attorney was selected to reduce their
understanding to written form. The financial statement therein referred to was delivered to
Silverman and, in turn, to his accountant for analysis, before the written contract was
prepared. Silverman expressed to seller his satisfaction with that financial statement.
Silverman reviewed all aspects of the proposed sale and purchase with his attorney before
directing preparation of the necessary documents. The first draft of the sale and purchase
contract was altered in certain respects relating to penalty, but was not found incorrect
regarding the paragraph here in question. With such evidence before it, the lower court could
properly find that the paragraph in controversy correctly stated the parties' intended
agreement.
[Headnote 3]
The remaining assignment of error attacks the allowance of interest at 7 percent per annum
from August 2, 1958. Dollar claims that the amount of money due under the contract was
unliquidated until rendition of final judgment, and that interest was allowable only from date
of judgment, August 26, 1960. Dollar relies upon Agricultural Insurance Co. v. Biltz, supra,
as authority for this contention. That case is not in point. The policy of insurance upon which
suit was based expressly provided that the loss would not become payable until a
satisfactory proof of loss was received by the company, including an award by appraisers.
of insurance upon which suit was based expressly provided that the loss would not become
payable until a satisfactory proof of loss was received by the company, including an award by
appraisers. There was no satisfactory proof of loss, or valid award by appraisers, with the
result that plaintiff's demand was, in fact, unliquidated until rendition of judgment.
However, in the case before us, the contract specifically provided that the full purchase
price would be due and payable, and the escrow would close on August 1, 1958. By that time
the retail cost inventory had been taken and the exact amount due seller under the contract
was known to both parties. Dollar did not refuse to pay because the amount due was
unknown; it refused because of its claim that the contract did not correctly state the parties'
intended agreement, an entirely different matter.
NRS 99.040 provides that, upon an express contract, interest shall be allowed at the rate
of 7 percent per annum upon all money from the time it becomes due. The lower court was
clearly correct in allowing interest from August 2, 1958.
Judgment affirmed.
____________
On Petition for Rehearing
No. 4394
November 13, 1961 365 P.2d 1117
Action by seller against buyer on written contract for sale and purchase of a market. From
an adverse judgment of the Eighth Judicial District Court, Clark County, John C. Mowbray,
J., the buyer appealed. The Supreme Court, Thompson, J., 77 Nev. 393, 365 P.2d 311,
affirmed. On petition for rehearing, the Supreme Court, Thompson, J., held that appellant's
deposit of $11,000 in court to await outcome of trial in consideration of respondent's
releasing an attachment of appellant's funds did not stop running of interest on the
amount found to be due.
$11,000 in court to await outcome of trial in consideration of respondent's releasing an
attachment of appellant's funds did not stop running of interest on the amount found to be
due.
Rehearing denied.
George Rudiak, of Las Vegas, for Appellant.
Samuel S. Lionel, of Las Vegas, for Respondent.
Interest.
Appellant's deposit of $11,000 in court to await outcome of trial, in consideration of
respondent's releasing an attachment of appellant's funds, did not stop running of interest
on amount found to be due.
OPINION
On Petition for Rehearing
Appellant Dollar Investment Corporation has filed a petition for rehearing. Our opinion
affirmed the judgment below which allowed interest from August 1, 1958 on the amount
found to be due. It is urged that the allowance of interest is improper because, by stipulation
made before trial, appellant had deposited $11,000 in court to await the court's determination
of the controversy and that, under such circumstances, at least that sum would not be subject
to interest.
Our opinion did not refer to the deposit in court. Though not mentioned, it was considered.
The record discloses that, in consideration of respondent's releasing an attachment of
appellant's funds, appellant agreed to deposit $11,000 in court to await the outcome of trial.
Under such circumstances, the deposit in court does not stop the running of interest on the
amount found to be due. Tannenbaum v. Seacoast Trust Co., 131 N.J.Eq. 93, 25 A.2d 533; 47
C.J.S., Interest, sec. 54, p. 66; Olivares v. Garcia, 127 Tex. 112, 91 S.W.2d 1059.
Rehearing denied.
____________
77 Nev. 399, 399 (1961) Rainsberger v. Leypoldt
In the Matter of the Application of JACK RAINSBERGER,
for a Writ of Habeas Corpus.
JACK RAINSBERGER, Appellant, v. W. E. LEYPOLDT,
Sheriff of Clark County, Respondent.
No. 4403
October 11, 1961 365 P.2d 489
Habeas corpus case. The lower court denied the writ, and the prisoner appealed. The
Supreme Court, McNamee, J., held that after reversal of a first degree murder conviction and
remand to the district court to redetermine the degree of the crime and give sentence
accordingly, the district court properly ordered the warden of the state prison to release the
defendant to the custody of the sheriff for transfer to the county jail to await rehearing, and,
under statutes making capital offenses not bailable, the defendant was not entitled to relief.
Affirmed.
Samuel S. Lionel and Dwight B. Claar, Jr., of Las Vegas, for Appellant.
Roger D. Foley, Attorney General, John F. Mendoza, District Attorney, and Charles L.
Garner, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
After reversal of first degree murder conviction and remand to district court to redetermine degree of
crime and give sentence accordingly, district court properly ordered warden of state prison to release
defendant to custody of sheriff for transfer to county jail to await rehearing, and, under statutes making
capital offenses not bailable, the defendant was not entitled to habeas corpus. NRS 171.140, 178.025,
178.080; Const. art. 1, sec. 7.
2. Habeas Corpus.
Inquiry under writ of habeas corpus is limited to question whether or not confined person is entitled to
immediate release.
3. Habeas Corpus.
Defendant being held under valid warrant or order of commitment pursuant to statutes making capital
offenses not bailable could not invoke habeas corpus to relieve himself from contemplated
commitment under which restraint had not commenced on mere assertion that such
commitment would result from invalid hearing.
contemplated commitment under which restraint had not commenced on mere assertion that such
commitment would result from invalid hearing. NRS 171.140, 178.080.
OPINION
Appellant, through his attorney, filed a petition in the lower court for a writ of habeas
corpus wherein he alleged that he was unlawfully imprisoned, detained, and restrained of his
liberty by the sheriff of Clark County. The petition recites that an information was filed
against appellant charging him with murder, that he pleaded guilty to such charge, and that
after a hearing before the Honorable Ryland G. Taylor, District Judge, he was found guilty of
murder in the first degree and sentenced to death. He appealed to this court from said
judgment and sentence. The judgment was reversed and sentence vacated because of
prejudicial error, and the cause remanded for a new hearing before a three-judge court to
redetermine the degree of the crime and give sentence accordingly, pursuant to the provisions
of NRS 200.030. Rainsberger v. State, 76 Nev. 158, 350 P.2d 995.
He further alleges that he is unlawfully restrained of his liberty for the reason that
subsection 3 of NRS 200.030 in providing for a hearing before a three-judge court is an ex
post facto law and unconstitutional because such provision became law after the
pronouncement of judgment and sentence by Judge Taylor.
To said petition the sheriff filed a return which shows that the present restraint of appellant
results from an order by the district court of Clark County made after this court had vacated
said sentence directing the warden of the state prison at Carson City, Nevada, where appellant
had been confined after being sentenced as aforesaid, to release said appellant to the custody
of the sheriff of Clark County, Nevada, to await a rehearing upon his plea of guilty to murder.
Under Art. 1, sec. 7, Nevada Constitution, all persons shall be bailable by sufficient
sureties; unless for capital offenses when the proof is evident or the presumption great.
capital offenses when the proof is evident or the presumption great.
NRS 178.025 provides that no person shall be admitted to bail where he is charged with an
offense punishable by death when the proof is evident or the presumption great.
NRS 178.080 provides: If the offense charged is not bailable, or if bail be not given, the
officer arresting the accused shall deliver him into custody according to the command of the
bench warrant or the warrant of arrest.
NRS 171.140 provides that a defendant, when arrested under a warrant for an offense not
bailable, must be held in custody by the sheriff of the county in which the complaint is filed.
[Headnote 1]
Appellant having been charged with murder originally was imprisoned on a warrant of
arrest issued upon said charge. There is no contention that this restraint was unlawful. After
his plea of guilty
1
and after the hearing before Judge Taylor, appellant properly was
delivered to the warden of the state prison, pursuant to NRS 176.420, in whose custody he
remained until termination of his appeal. When the judgment was reversed and the cause
remanded to the district court for a new hearing the order made by said district court directing
the warden of the state prison to release appellant to the custody of the sheriff of Clark
County for transfer to the Clark County jail to await rehearing was proper. State ex rel. Vogel
v. Chapman, 125 Fla. 266, 169 So. 670. The status of appellant thereupon became the same
as if no prior hearing had been held and no sentence had been rendered. In other words, the
order of transfer effected a return of appellant to the restraint resulting from the warrant of
arrest which empowered the Clark County sheriff under NRS 171.140 and 178.080, supra, to
hold appellant until a hearing free of prejudicial error.
____________________

1
The plea of guilty establishes the fact that the proof is evident and removes any doubt with respect to the
guilt of accused.
[Headnote 2]
As stated in Ex parte Sheply, 66 Nev. 33, 202 P.2d 882, the inquiry under a writ of
habeas corpus is limited to the question of whether or not he is entitled to immediate release.
[Headnote 3]
The retention of petitioner, as heretofore shown, is the result of a warrant of arrest validly
issued where he is charged with a not bailable offense. Appellant, being held under a valid
warrant or order of commitment pursuant to NRS 171.140 and 178.080, cannot invoke the
remedy of habeas corpus to relieve him from a contemplated commitment under which
restraint has not commenced on the mere assertion that the contemplated later commitment
would be the result of an invalid hearing. Ex parte Sheply, supra.
The lower court properly determined that the present detention of appellant is not unlawful
and its denial of the writ of habeas corpus was proper.
Affirmed.
____________
77 Nev. 402, 402 (1961) Lukey v. Smith
JOHN LUKEY and EDNA LUKEY, Appellants, v.
RAY P. SMITH, Respondent.
No. 4397
October 23, 1961 365 P.2d 487
Bowen, Judge.
Action by broker to recover real estate commission. The lower court rendered judgment
for broker and vendors appealed. The Supreme Court, Badt, C. J., held that evidence
supported court's finding that broker had a contract of employment with vendors for payment
of real estate commission upon his procuring a purchaser.
Affirmed.
77 Nev. 402, 403 (1961) Lukey v. Smith
Donnell Richards, of Reno, for Appellants.
Ernest S. Brown and Jack I. McAuliffe, of Reno, for Respondent.
1. Brokers.
In action by broker to recover real estate commission, evidence supported court's finding that broker had
a contract of employment with vendors for payment of real estate commission upon his procuring a
purchaser.
Where acceptance of offer to buy real estate was signed by vendor wife, both for herself and for vendor
husband in his presence and at his request and direction, vendor husband as well as vendor wife was bound
by the acceptance of the offer to buy and the promise to pay the real estate commission to broker which
was contained therein.
3. Brokers.
Vendors' assertion that infirmity in execution of acceptance of offer to buy real estate likewise affected
agreement to pay broker his commission because both were found in the same instrument and that such
instrument merged both into one inseparable contract did not lie where it was apparent that contract to pay
broker's commission was an entirely separate contract.
4. Brokers.
In action to recover broker's real estate commission, evidence supported finding that broker had produced
a ready, willing and able buyer on the terms and conditions required by vendors.
OPINION
This is an appeal from a judgment awarding respondent a real estate commission based
upon a written contract. Such contract comprised a written proposal by St. Mary's Hospital,
Inc. to purchase property owned by appellants and a written acceptance of such proposal
which contained the agreement of appellants to pay to respondent the sum of $1,400 for his
services in procuring the purchaser.
In their appeal from the judgment, appellants assert that the lower court erred in holding
(1) that respondent had a contract of employment with [appellants]; (2) that a binding contract
was entered into between appellants and St.
77 Nev. 402, 404 (1961) Lukey v. Smith
appellants and St. Mary's Hospital; and (3) that respondent had procured a purchaser ready,
able, and willing to purchase the property involved. We hold that none of these assignments
has merit.
The written proposal to purchase recited that St. Mary's Hospital, Inc. agreed to purchase,
through respondent as agent, the property described for $28,000, payable $8,000 cash, with
the balance (secured by a first deed of trust) payable in five annual installments of $4,000
each, commencing one year from date of conveyance, without interest. Provisions of the
contract provided for such items as taxes, insurance, the furnishing of a good and sufficient
deed, policy of title insurance showing good merchantable title and other items not material
to this appeal.
A written acceptance of the offer, bearing the names of appellants, appears in the
following language: I/WE as seller/sellers of the property mentioned above hereby
irrevocably accept the above proposal and will comply with the conditions therein, and agree
to pay Ray P. Smith $1,400 for his services in procuring the purchaser. Ray F. Smith is
hereby authorized to give appropriate instructions to the escrow holder for the closing of this
transaction. I/WE further agree that in the event said purchaser fails to complete said
agreement, and I/WE shall not exercise my/our option to specifically enforce said agreement
then Ray P. Smith shall retain from the earnest money deposit the amount of his full
commission on the accepted purchase price, and upon payment of the balance thereof, if any
remain, to the undersigned, the said Ray P. Smith shall thereupon be released from any
further liability hereunder. The foregoing is in turn followed by the following memorandum:
In case title is impossible to convey there shall be no commission charged.
It is admitted that in such acceptance of the offer Edna Lukey signed her own name and
also the name of her husband John Lukey. The trial court found as follows:
2. That on April 20, 1959, defendant Edna Lukey signed and executed a contract to sell
the premises known as 330 Elm Street, Reno, Nevada.
77 Nev. 402, 405 (1961) Lukey v. Smith
known as 330 Elm Street, Reno, Nevada. That said agreement provided for a real estate
commission to be paid to plaintiff in the sum of $1,400.
3. That defendant John Lukey did not sign said agreement but that said agreement was
signed by defendant Edna Lukey in his presence and at his request and direction.
4. That plaintiff had then produced a buyer ready, willing and able to purchase
defendants' property on the terms and conditions required by defendants.
[Headnotes 1-3]
(1) It is unnecessary for us to quote those portions of the transcript describing the
execution of the acceptance of the offer and the circumstances under which Mrs. Lukey
signed her husband's name. It is sufficient to say that the evidence amply supports the court's
finding. This being so, it follows that John Lukey, as well as Edna Lukey, was bound by the
written acceptance of the written offer to buy and the written promise to pay the commission.
1

Commencing with the leading case of Gardner v. Gardner, 1850, 5 Cush., Mass. 483, to
the latest citation in 1961, 80 C.J.S., Signatures, sec. 6, p. 1291, Pocket Supp., sec. 6, n. 37,
citing Barrett v. City of Fayetteville, 248 N.C. 436, 103 S.E.2d 500, we find approval in
virtually every jurisdiction of the United States of the rule stated as follows: Generally, a
signature may be made for a person by the hand of another, acting in the presence of such
person, and at his direction, or request, or with his acquiescence, unless a statute provides
otherwise. A signature so made becomes the signature of the person for whom it is made, and
it has the same validity as though written by him. Mechem, Outlines of Agency, sec. 28 (4th
ed. 1952), adds to the statement of such rule, the following: "In such a case the writer is
sometimes referred to as an 'amanuensis' and the derived rule as the Amanuensis Rule."
____________________

1
In oral argument appellants earnestly insisted that the asserted infirmity in the execution of the acceptance of
the offer to buy likewise affected the agreement to pay the broker's commission because both were found in the
same instrument and that such instrument merged both into one inseparable contract. It is apparent however, that
the contract to pay the commission is an entirely separetate contract. Carter v. McCall, 193 S.C. 456, 8 S.E.2d
844, 151 A.L.R. 641, and annotation id. 648.
77 Nev. 402, 406 (1961) Lukey v. Smith
rule, the following: In such a case the writer is sometimes referred to as an amanuensis' and
the derived rule as the Amanuensis Rule. Distinct from this is the rule arising from delivery
and acts of recognition and adoption of the instrument, sometimes referred to as the adoption
rule. For this we find approval in Picetti v. Orcio, 57 Nev. 52, 58 P.2d 1046, 67 P.2d 315.
The socalled amanuensis rule is so uniformly recognized that we would add nothing to the
law by quoting or even citing the various texts and hundreds of cases. We may refer however
to 37 C.J.S., Statute of Frauds, sec. 202, p. 696; 26 C.J.S., Deeds, sec. 34, p. 663; 27 C.J.,
Statute of Frauds, sec. 356, p. 287; Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215,
and authorities therein cited.
This disposes of appellants' main assignment of error.
[Headnote 4]
(2, 3) Nor is there any support for the contention that there was error in holding that a
binding contract was entered into between appellants and St. Mary's Hospital. The precise
finding in this regard was that respondent had produced a ready, willing, and able buyer on
the terms and conditions required by appellants. Appellants support this assignment by the
testimony of appellant John Lukey to the effect that he told the hospital that he didn't care to
sell and that Sister Seraphine, who was handling the transaction for the hospital and had
signed the offer to purchase, said, that if I didn't want to sell, she didn't want to buy it. This,
as a matter of law, cannot be said to counteract the conclusion that respondent had produced
the hospital as a willing buyer under its written offer. At the time of the conversation just
quoted, the commission had already been earned. The relations of the buyer and seller might
have been changed in many waysby the refusal of the seller to sell or the refusal of the
buyer to buy. Litigation might have ensued, whether for damages for a breach or for specific
performance. Or the parties might by a new contract have canceled the existing one. None of
these things would affect the liability of appellants for the broker's commission.
77 Nev. 402, 407 (1961) Lukey v. Smith
broker's commission. Nor is there any merit in the contention that respondent had not met his
burden of proof, because of his failure to prove at the trial, through proper officers of the
hospital, that it was still ready, able, and willing to purchase under the terms of its written
offer accepted in writing by appellants. The authority for the execution of that offer is not
attacked. The executed written offer was admitted in evidence without objection.
(4) Appellants maintain that respondent may not recover by reason of the clause, In case
title is impossible to convey there shall be no commission charged. In support of this,
appellants recite the derivation of title as follows: Appellants were married in 1919. In 1929
the property was conveyed to Edna. In 1931 John quitclaimed to Edna, and on the same day
Edna filed a declaration of homestead on behalf of herself and John. In 1934 Edna and John
executed a mortgage on the property, which was released some 14 years later. Any asserted
infirmities in the title growing out of such history merely reflect upon the validity of the
acceptance of the hospital's offer without John's actual signature. As we have already
approved the court's finding that his name was signed by Edna in his presence and at his
request and direction, consideration of the point thus raised becomes unnecessary.
The judgment is affirmed.
____________
77 Nev. 408, 408 (1961) Schumacher v. District Court
THE STATE OF NEVADA Upon The Relation of JACK SCHUMACHER, Petitioner,
v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
and the HONORABLE RICHARD L. WATERS, JR., Judge Thereof, and
THOMAS FURLONG, Respondents.
No. 4464
October 23, 1961 365 P.2d 646
Certiorari by Jack Schumacher to review the action of the First Judicial District Court in
entering a judgment removing him from office. On motion to quash and set aside the writ.
The Supreme Court, McNamee, J., after issuing a writ of certiorari, on a motion to quash
and set aside such writ held that where petitioner had been removed from office of county
assessor pursuant to statutory proceeding which provided that an appeal could be taken from
the judgment entered therein, the writ of certiorari would be vacated and set aside since the
statute which provided for the issuance of writs of certiorari specifically authorized such writs
to be issued only in cases where no appeal would lie.
Motion granted.
Springmeyer, Thompson & Dixon, of Reno, for Petitioner.
John Tom Ross, District Attorney, Ormsby County, for Respondents.
1. Certiorari.
Although power exists to issue a writ of certiorari, Supreme Court still has the right to determine under
what circunstances the power should be exercised. NRS 34.020.
2. Certiorari.
Statute relating to issuance of writ of certiorari, although containing words of a mandatory nature with
respect to when the writ shall be issued, does not curtail right of Supreme Court to refuse to exercise its
constitutional power when the necessity therefor does not appear. NRS 34.020.
3. Certiorari.
Supreme Court vacated and set aside writ of certiorari issued on behalf of petitioner who had been
removed from office of county assessor pursuant to court proceeding which gave him
the right to appeal therefrom, where statute providing for issuance of certiorari
specifically authorized such writs to be issued only in cases where no appeal wouid
lie.
office of county assessor pursuant to court proceeding which gave him the right to appeal therefrom, where
statute providing for issuance of certiorari specifically authorized such writs to be issued only in cases
where no appeal wouid lie. NRS 34.020, 283.440.
OPINION
An action was filed in the respondent court pursuant to NRS 283.440 for the removal of
petitioner from the office of county assessor of Ormsby County. After a hearing, respondent
court entered a judgment ordering petitioner's removal from said office. Petitioner thereupon
filed herein original proceedings in certiorari which, after relating the foregoing facts, alleged
among other things that the amended complaint upon which the removal proceedings are
based is insufficient because it states no legal cause for removal of petitioner; that the
judgment of the district court removing petitioner from office was arbitrary, capricious,
unreasonable, and in excess of jurisdiction and authority in that there was no evidence of
malfeasance or nonfeasance; and that there was no evidence that petitioner intentionally
refused or neglected to perform any official duty prescribed by law. The petition further
alleges that the court reached an erroneous conclusion from the evidence and erroneously
refused to admit relevant evidence.
Pursuant to said petition, this court caused to be issued a writ of certiorari directing
respondents to certify and return herein a full, true, and correct transcript of the record and
proceedings in said action for review by this court. We are now concerned with a motion to
quash and set aside the said writ of certiorari.
NRS 34.020 provides that certiorari shall be granted by this court when an inferior tribunal
has [1] exceeded the jurisdiction of such tribunal * * * and [2] there is no appeal, nor, [3] in
the judgment of the court, any plain, speedy and adequate remedy.
In the case of Mack v. District Court, 50 Nev. 318, 25S P.
258 P. 289 290, under an identical statute this court held:
Under our statute (section 5684, Rev. Laws), three concurring requisites are essential to
the issuance of the writ of certiorari: (1) An excess of jurisdiction by the inferior tribunal,
board, or officer exercising judicial functions; (2) the absence of an appeal; and (3) where, in
the judgment of the court, there is no plain, speedy, and adequate remedy. Under like
provisions contained in the code of civil procedure of California it is held that if any one of
the essentials mentioned is missing the writ will not lie. Noble v. Superior Court, 109 Cal.
523, 42 P. 155; Postal Telegraph Cable Co. v. Superior Court, 22 Cal.App. 770, 136 P. 538.
Likewise in Monterey Club v. Superior Court, 44 Cal. App.2d 351, 112 P.2d 321, the
California court held under the statute from which said section 5684, Rev. Laws, was taken
that if any one of these essentials be missing the writ will not lie; and the fact that an appeal
does not afford a plain, speedy, and adequate remedy makes no difference since the
provisions of the statute are explicit and govern; nor does the fact that the order was made in
excess of jurisdiction afford any right to proceed in certiorari if a right of appeal exists.
Inasmuch as subsection 4 of NRS 283.440 contemplates an appeal
1
the Mack case is
controlling and we do not need to consider the question of whether the court acted without
jurisdiction or whether there is a plain, speedy, and adequate remedy.
2

The case of State ex rel. Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515; 70
Nev. 347, 269 P.2d 265, cited by petitioner, has no application. There, it was necessary for
this court to determine from the evidence whether legal cause for removal was shown so as to
give the Board jurisdiction to order removal inasmuch as no remedy by appeal existed.
____________________

1
The record herein contains petitioner's notice of appeal from said judgment of removal.

2
The right of appeal has been held to afford ipso facto a plain, speedy, and adequate remedy. Manoogian v.
Superior Court, 48 Cal. App. 609, 192 P. 168; Monterey Club v. Superior Court, supra. See County of Washoe
v. City of Reno, 77 Nev. 152, 360 P.2d 602.
Other cases of this court, e.g., Buckingham v. District Court, 60 Nev. 129, 102 P.2d 632,
and Bell v. District Court, 28 Nev. 280, 81 P. 875, 1 L.R.A. (N.S.) 843, both pertaining to
prohibition, together with the cases cited by petitioner which pertain to mandamus, are
distinguishable from this case because of the provisions of the certiorari statute. As stated in
Montery Club, supra: It should be noted that, while writs of mandate are governed by the
provisions of section 1086 of the Code of Civil Procedure [NRS 34.170] and must issue, as
therein provided, in all cases where there is not a plain, speedy and adequate remedy, in the
ordinary course of law, and writs of prohibition are governed by the provisions of section
1103 of that code [NRS 34.330] and, as there provided, may issue in like situations, the
issuance of writs of certiorari is governed by the provisions of section 1068, which
specifically authorizes such writs to be issued only in cases where there is no appeal. It may
thus be seen that the specific conditions for the issuance of a writ of review differ from those
provided for writs of mandate and prohibition; and authority for the issuance of the latter
writs is not generally applicable to the issuance of the former.
[Headnote 1]
During the oral argument petitioner suggests for the first time that Nev. Const. Art. 6, Sec.
4, gives the supreme court power to issue writs of certiorari, and that insofar as NRS 34.020
constitutes a curtailment of that power it is unconstitutional. At this time, however, we are not
concerned with this court's constitutional power to issue writs of certiorari,
3
but only with
the question of whether the writ should be issued under the circumstances of this case.
4

[Headnote 2]
Although containing words of a mandatory nature with respect to when the writ shall be
issued, NRS 3+.020 does not curtail the right of this court to refuse to exercise its
constitutional power when the necessity therefor does not appear.
____________________

3
This was conceded by petitioner in oral argument.

4
It was also conceded by petitioner that although power exists to issue the writ, this court still has the right to
determine under what circumstances the power should be exercised.
34.020 does not curtail the right of this court to refuse to exercise its constitutional power
when the necessity therefor does not appear. This court and the California courts, as shown by
Mack, supra, Monterey Club, supra, and cases therein cited, have adopted the view that its
power to issue writs of certiorari would not be exercised if any one of the essentials
mentioned in NRS 34.020 be missing, and we will not now change the rule so established as
aforesaid.
[Headnote 3]
The motion that the writ of certiorari be vacated and set aside is granted.
Justice Thompson did not participate in the consideration or determination of this motion,
and the parties hereto stipulated to the submission of the motion to Chief Justice Badt and
Justice McNamee.
____________
77 Nev. 412, 412 (1961) Ex Parte Groesbeck
In the Matter of the Application of ROBERT
JAMES GROESBECK For a Writ of Habeas Corpus.
No. 4471
October 24, 1961 365 P.2d 491
Original proceeding. Application of Robert James Groesbeck for a writ of habeas corpus.
The Supreme Court, McNamee, J., held that where the defendant did not request a separate
trial when he was jointly charged with two others, but merely objected to vacating of trial
date, granting of continuance on ground of amendment of information changing substance of
the charge against the codefendants, was discretionary with the trial court and the defendant
was not entitled to be discharged because of the delay in prosecution.
Writ denied.
Stewart, Horton & McCune, of Reno, for Petitioner.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Drake DeLanoy,
Chief Deputy District Attorney, and Herbert F. Ahlswede, Deputy District Attorney, Washoe
County, for Respondent.
1. Criminal Law.
In criminal case, request for continuance is discretionary with trial court.
2. Criminal Law.
Where defendant did not request separate trial when he was jointly charged with two others, but merely
objected to vacating of trial date, granting of continuance on ground of amendment of information
changing substance of charge against codefendants, was discretionary with trial court and defendant was
not entitled to discharge because of delay in prosecution. NRS 169.160, 175.205, 178.495.
OPINION
This is an original petition for a writ of habeas corpus.
Petitioner, Sanchez, and Ward were jointly charged with murder. Following a preliminary
hearing, they were bound over to the district court for trial. Upon arraignment each entered a
plea of not guilty and trial was set for September 11, 1961. On August 4, 1961 Sanchez and
Ward were discharged from custody on a writ of habeas corpus. After a second preliminary
hearing, Sanchez and Ward were again bound over for trial.
On September 8, with permission of the district court, an amended information was filed
against petitioner, Sanchez, and Ward which was identical insofar as it pertained to petitioner,
except that additional witnesses were added to the amended information. Petitioner was
arraigned under the amended information, pleaded not guilty thereto, and, over his objection,
the trial court vacated the trial date of September 11, 1961. Trial was then set for October 30,
1961, 49 days from September 11. No objection to this setting appears in the record.
The petition herein alleges that petitioner was ready for trial on September 11 and that the
postponement was for the convenience of petitioner's codefendants. The record shows that
upon the arraignment following the filing of the amended information, the said codefendants
requested further time before entering a plea thereto.
From the foregoing, petitioner requests a writ of habeas corpus for the reason that he was
entitled to a speedy trial under NRS 169.160. Furthermore he contends that under NRS
178.495, as amended by Stats. Nev. 1961, ch. 373, p. 756, he was entitled to be brought to
trial within 60 days after the filing of the information; otherwise, the court shall order the
* * * information to be dismissed, unless good cause to the contrary is shown.
[Headnote 1]
This court has held in Polito v. State, 71 Nev. 135, 282 P.2d 801, that in a criminal case a
request for continuance is addressed to the sound discretion of the trial court.
The petitioner had made a motion in the court below for discharge upon the ground that he
had not been afforded a speedy trial or a trial within 60 days after the filing of the
information. Such motion was denied. The proceeding herein in habeas corpus constitutes a
collateral attack upon that ruling.
In United States ex rel. Mills v. Ragen, D.C., 77 F.Supp. 15, 20, the court said: No one is
more aware than a trial judge of the necessity that a trial judge should have wide discretion in
granting or denying continuances. The exercise of this discretion should not be easily upset
on appeal, and it should be even less easily upset by a collateral attack such as habeas
corpus. Approving these words, we now give consideration to the discretion exercised by the
trial court.
As to petitioner the amended information constituted no change with respect to substance.
It did however effect the reinstatement of the joint charge of murder against petitioner,
Sanchez, and Ward. Also it contained a second count which charged Ward as an accessory
after the fact to murder.
after the fact to murder. Clearly as to Sanchez and Ward, the amended information was a
change in substance from what was left of the original information following the discharge on
habeas corpus of Sanchez and Ward.
The case of In re Newbern, 53 Cal.2d 786, 3 Cal. Rptr. 364, 367, 350 P.2d 116, states: It
is clear that an amendment of substance to a complaint will carry a corresponding obligation
to allow the defense adequate time to prepare an amended defense.
[Headnote 2]
Although petitioner may have prepared his defense and was ready for trial on September
11, 1961, it appears that his codefendants were not. NRS 175.205 provides that when two or
more defendants are jointly charged with a criminal offense, they shall be tried jointly,
unless for good cause shown, the court shall otherwise direct. If a joint trial would in the
opinion of petitioner have prejudiced his substantial rights, it was incumbent upon him to
establish this fact before the trial court and request a separate trial. This he failed to do.
1
He
merely objected to the vacating of the earlier trial date, and as already stated he made no
objection to the October 30, 1961 setting. Under these circumstances we will not say that the
trial court abused its discretion in granting the continuance. Polito v. State, supra.
Petitioner urges that under NRS 178.495, as amended by Stats. Nev. 1961, ch. 373, p. 756,
the amended information should be dismissed because he was not brought to trial within 60
days after the filing of the original information. On the other hand, it is respondent's
contention that the 60-day period was reinstated by the filing of the amended information.
Respondent has substantial authority to sustain its view. People v. Wilkes, 177 Cal.App.2d
691, 2 Cal.Rptr. 594; People v. Pierson, 149 Cal.App.2d 151, 307 P.2d 994; See Annotation,
30 A.L.R.2d 462. We do not feel impelled, however, to pass upon this point in the present
proceeding.
____________________

1
In oral argument counsel for petitioner stated that petitioner didn't care if he was tried jointly or notall he
wanted was a speedy trial.
impelled, however, to pass upon this point in the present proceeding.
Although there was a period of 118 days between the date of petitioner's arrest and
September 11 when the case was first to be tried, he made no complaint of this lapse of time.
This delay in part was a result of his own request and he agreed to the September 11, 1961
setting. It is the subsequent delay of 49 days from September 11 to October 30 which forms
the basis of his present complaint. Under the circumstances of this case we feel that good
cause was shown to justify the action of the trial court in granting the continuance and in
denying the motion to dismiss and for discharge. While it is undesirable that one charged
with crime should be held in prison, after pleading not guilty and demanding a speedy trial,
for a period of time longer than is reasonably necessary, as stated in State v. Squier, 56 Nev.
386, 403, 54 P.2d 227, 234, [o]n the other hand a defendant cannot require of the trial court
that it disregard the condition of its calendar, the pendency of other cases, public expense, and
the convenience or health of judge, court officers, and jurors. To this we now add that a
defendant cannot require a trial court to disregard the rights of his codefendants.
It is ordered that the writ be denied and these proceedings dismissed.
____________
77 Nev. 416, 416 (1961) Young Electric Sign Co. v. Lynch
YOUNG ELECTRIC SIGN COMPANY, a Corporation,
Appellant, v. CECIL LYNCH, Respondent.
No. 4398
October 25, 1961 345 P.2d 648
Appeal from judgment of the Eighth Judicial District Court, Clark County, David Zenoff,
Judge.
Sign company's action to recover rent claimed due under terms of sign contract from renter
who affirmatively pleaded that failure to pay rent was excused by sign company's breach of
duty to repair. The lower court rendered a judgment for the defendant and the plaintiff
appealed. The Supreme Court, Thompson, J., held that under sign rental contract
providing that, if sign company failed to repair sign within 72 hours after notice of need
for repair, party renting sign was entitled to receive stated credit on monthly rental for
every hour thereafter during which sign was not in proper working condition, failure to
repair continuing for approximately one year relieved obligation to pay rent, and
payments made after failure to repair could not be considered rent but voluntary
payments, and party renting sign could be held neither to have waived his right to rescind
nor to have elected to proceed under contract.
court rendered a judgment for the defendant and the plaintiff appealed. The Supreme Court,
Thompson, J., held that under sign rental contract providing that, if sign company failed to
repair sign within 72 hours after notice of need for repair, party renting sign was entitled to
receive stated credit on monthly rental for every hour thereafter during which sign was not in
proper working condition, failure to repair continuing for approximately one year relieved
obligation to pay rent, and payments made after failure to repair could not be considered rent
but voluntary payments, and party renting sign could be held neither to have waived his right
to rescind nor to have elected to proceed under contract.
Judgment affirmed.
Samuel S. Lionel and Dwight B. Claar, Jr., of Las Vegas, for Appellant.
1. Evidence.
Parol evidence that, though moving arm was installed on sign in shape of slot machine, it should not be
considered as part of sign, was inadimssible as attempt to modify written rental contract forming basis of
action.
2. Bailment.
Under sign rental contract providing that, if sign company failed to repair sign within 72 hours after
notice of need for repair, party renting sign was entitled to receive stated credit on monthly rental for every
hour thereafter during which sign was not in proper working condition, failure to repair continuing for
approximately one year relieved obligition to pay rent, and payments made after failure to repair could not
be considered rent but voluntary payments, and party renting sign could be held neither to have waived his
right to rescind nor to have elected to proceed under contract.
3. Bailment.
Evidence sustained finding that moving slot machine arm was integral and important part of sign covered
by rental agreement between sign company, suing to recover rent, and defendant pleading that failure to
pay rent was excused by sign company's breach of contract in refusing to make required repairs to moving
arm, and that accordingly sign company had not substantially performed.
4. Damages.
Rule imposing duty to minimize damages has no application to defendant from whom damages are
sought.
OPINION
The parties will be referred to as Young and Lynch. Young commenced action against
Lynch to recover $15,525 rent claimed to be due under the terms of a sign rental contract.
Lynch, by responsive pleading, denied the material averments of the complaint and
affirmatively pleaded that his failure to pay rent was excused by reason of Young's breach of
the sign rental contract in refusing to make required repairs. The lower court entered
judgment for Lynch, from which Young has appealed.
The evidence discloses that Young leased to Lynch an electric sign having the appearance
of a slot machine, and advertising Cecil Lynch's Fortune Club. The term was January 1,
1958 to December 31, 1962, with rent at $200 a month for five months, and thereafter $500 a
month. The sign was large, comprising the entire front of Lynch's gaming establishment. Part
of the sign was a slot machine arm which was supposed to move up and down throughout the
day and night. That arm was in working order, though noisy, when Lynch opened for business
January 1, 1958. It ceased functioning in March 1958, or perhaps July. Lynch requested
Young to repair it. Young refused, advising that it was not obligated to repair that portion of
the sign. It estimated the cost of repair to be $600 or $700. Repair to the slot machine arm
was never made. After making such request, Lynch did not pay the rent required by the rental
contract. However, he did make payments to Young totaling $1,000 before discontinuing his
gaming business in June 1959.
Paragraph (j) of the rental contract provides that should Lynch default in the payment of
rent, the liquidated damages shall be three-fourths of the rental balance, payable, whether due
or not. The amount sought by Young is based upon that paragraph.
In deciding for Lynch, the trial court found, inter alia, that the rental contract was
onerous; that the moving slot machine arm was an integral part of the sign; that Young
was obliged to repair it, but failed to do so; that the payments made by Lynch after the
slot machine arm failed to function was not a waiver of his right to rely upon Young's
breach of the covenant to repair.
alia, that the rental contract was onerous; that the moving slot machine arm was an integral
part of the sign; that Young was obliged to repair it, but failed to do so; that the payments
made by Lynch after the slot machine arm failed to function was not a waiver of his right to
rely upon Young's breach of the covenant to repair.
[Headnote 1]
Eight errors are assigned. We shall first consider the assignment of error relating to parol
evidence. During trial it was disputed whether the slot machine arm was a part of the sign
and, therefore, subject to the rental contract. The contract referred to one single face sign
installed on front of building in a slot machine shape as is now installed. Lynch was
permitted to testify, over objection, that Mr. Cannon, manager of Young, before execution of
the rental contract, said, The handle was operating, it might be a little noisy, * * * and that
everything would be in operating order. They were going to get the whole sign in order.
Appellant Young does not now complain about the admission of such testimony. However,
complaint is made as to the trial court's exclusion of evidence offered by Young to establish
that the slot machine arm (handle) was not intended to be included as a part of the sign
rented. Young argues that if Lynch's testimony was admissible, so was the evidence offered
by him on the same issue. We find no merit in such contention. As stated above, the rental
contract specified that the leased object consisted of a sign in a slot machine shape as is now
installed. The testimony of Lynch was offered to establish the component parts of the sign as
then installed, i.e., the fact that the arm was functioning and in place before the contract was
made. However, the evidence offered by Young and excluded by the court did not tend to
establish that the arm was not then installed; rather, it was offered to show that, though the
arm was installed, it should not be considered a part of the sign. Such evidence clearly was an
attempt to modify the written contract, and was properly excluded. Tallman v. First National
Bank, 66 Nev. 248, 256, 208 P.2d 302, 306.
[Headnote 2]
Three of the errors assigned may be considered together and are (a) an error in failing to
hold that Young's failure to repair did not relieve Lynch of the obligation to pay rent; (b) an
error in failing to hold that Lynch waived his right to rescind the contract when he induced
Young to continue performance; (c) an error in failing to hold that Lynch was bound by the
contract when he elected to proceed thereunder. In our view, each claim of error above
mentioned is answered by a provision of the sign rental contract. That provision required
Young to maintain and keep the sign in good repair without expense to Lynch. If Young
failed to repair within 72 hours after notice of the need for repair, Lynch was entitled to
receive credit of 1/720th of the monthly rental for every hour over and above the 72-hour
period until the sign was in proper working condition. Because of such provision, a failure to
repair continuing for one month would establish a credit against the rent obligation in an
amount almost equal to the rent charged, for there are approximately 720 hours in a month.
In the present case, Young's failure and refusal to repair the slot machine arm is admitted.
Such failure continued from the date Lynch requested that repairs be made until he
discontinued business approximately one year later. Under such circumstances, the trial court
properly concluded that Lynch was relieved of the obligation to pay rent. The payment
totaling $1,000 made by Lynch to Young after the latter's refusal to repair, may not be
considered rent, for no rent was due. Under the facts here present, we view such payments as
having been voluntarily made without a contractual duty to make them.
Further, we believe it clear that the contract provision mentioned contemplated continued
possession and use of the sign by Lynch during the period of Young's refusal to repair. The
consequence of such refusal was merely the application of the credit allowed against the rent
charged. It was not expected that Lynch, under such circumstances, was to decide whether to
rescind the contract {claim of error {b) above mentioned) or elect to proceed under it
{claim of error {c) above mentioned).
the contract (claim of error (b) above mentioned) or elect to proceed under it (claim of error
(c) above mentioned). By reason of that provision, he could continue in possession and use of
the sign without being obliged to pay therefor. The trial court was right in failing to find that
Lynch had waived his right to rescind, and in failing to find that he had elected to
proceed. Those claims of error are without merit.
[Headnote 3]
Young next asserts that the trial court erred in failing to find that Young was entitled to
recover for its substantial performance of the contract, with recoupment in Lynch for his
damages. This claim assumes substantial performance by Young. The lower court, in effect,
found otherwise, for it determined that a moving slot machine arm was an integral and
important part of the sign. This determination is supported by substantial evidence. It is clear
from a reading of the contract that Young was to be paid as provided for therein, and not
otherwise. Whether Young was entitled to any compensation for partial performance is not a
matter for consideration on this appeal. No evidence was presented to the lower court relating
to the value of any services rendered by Young to Lynch. Cf. Force v. Peccole, 77 Nev. 143,
360 P.2d 362. With regard to the contention that the relief available to Lynch was
recoupment for damages, the contract provided otherwise. It provided for the credit against
rent hereinabove mentioned and then stated that lessee shall be entitled to no other claim for
damages. Accordingly, we find this claimed error to be without validity.
[Headnote 4]
The sixth error contended for is that the trial court should have found that Lynch was
obligated to minimize damages. The rule relating to the duty to minimize damages is not
involved in this case. Lynch is not suing for damages herein. That rule is applied, in proper
circumstances, against the party seeking damages. It has no application to a defendant from
whom damages are sought. 15 Am.Jur., Damages, sec.
sought. 15 Am.Jur., Damages, sec. 192, p. 610. Consequently, this assignment of error is
without foundation.
The two remaining claims of error are not material to the determination of this appeal. The
trial court characterized the rental contract as onerous. Young complains of this. As we
view this case, there is substantial evidence to support the judgment entered, for the reasons
heretofore mentioned. Accordingly, we need not pass upon this particular finding. The same
is true as to the claimed error in receiving evidence of prior leases of the sign.
In Nix v. Art Neon Co., 105 Colo. 562, 100 P.2d 165, the Colorado Supreme Court held,
among other things, that a lessor of a sign may not neglect it for a substantial period of time
and expect to collect rent for the balance of the term. In the light of the material findings of
the trial court which are supported by substantial evidence, we believe the holding in Nix,
supra, to have application here.
____________
77 Nev. 422, 422 (1961) Mack v. Dep't of Highways
JEROME D. MACK and JOYCE MACK, Husband and Wife; MILTON J. SIEGEL and
EVELYN R. SIEGEL, Husband and Wife; SIDNEY TAMKIN and SHIRLEE TAMKIN,
Husband and Wife; PIONEER TITLE INSURANCE COMPANY OF NEVADA;
FIRST NATIONAL BANK OF NEVADA, Trustee for Estate of Luther B. Scherer,
Appellants, v. THE STATE OF NEVADA, on Relation of Its
Department of Highways, Respondent.
No. 4401
November 10, 1961 365 P.2d 1117
Appeal from the Eighth Judicial District Court, Clark County, A. S. Henderson, Judge.
Condemnation proceeding. Condemnees appealed from a judgment of the lower court,
denying severance damages. The Supreme Court, McNamee, J., held that evidence of
expert witnesses that there was no damage to condemnees' remaining land resulting
from severance was in itself sufficient to sustain refusal to allow severance damages.
a judgment of the lower court, denying severance damages. The Supreme Court, McNamee,
J., held that evidence of expert witnesses that there was no damage to condemnees' remaining
land resulting from severance was in itself sufficient to sustain refusal to allow severance
damages.
Affirmed.
Magleby & Posin, of Las Vegas, for Appellants.
Roger D. Foley, Attorney General, and Earl Monsey, Deputy Attorney General, for
Respondent.
1. Eminent Domain.
Burden is on landowner to prove damages resulting to his other land by reason of severance and, in
absence of evidence thereon, award of severance damages is improper.
2. Evidence.
Evidence of expert witnesses that there was no damage to condemnees' remaining land resulting from
severance was in itself sufficient to sustain refusal to allow severance damages.
OPINION
Respondent, on behalf of its Department of Highways, brought this action to condemn a
portion of appellants' land which constitutes a part of a large parcel situated at the northwest
corner of the intersection of Paradise Valley Road and Bond Road in Clark County, Nevada,
for the construction and improvement of a public highway. The portion of land taken
bordered Bond Road and averaged 50 feet in width but increased to approximately 203 feet
along Paradise Valley Road at the intersection, because the corner of appellants' tract was cut
off in order to allow a rounded turn into Bond Road for traffic coming from the north to the
south on Paradise Valley Road.
Although appellants contended below that their damages were in excess of $10,300
allowed by the court, they do not dispute the fact that there was evidence to support the
court's conclusion that this sum is the fair market value of the land taken.
to support the court's conclusion that this sum is the fair market value of the land taken. Their
sole complaint on appeal is that they are entitled to severance damages because the proposed
improvement will limit access to their remaining land.
The case was tried by the court without a jury. In its written opinion the court stated that
there was no severance damage, even though there was evidence that the corner could be best
used as a service station and this use would be materially impaired by the proposed
construction. The court further stated that the construction would improve the corner rather
than being a deterrent and specified the particular testimony in support of its determination
that there was no compensable severance damage. The court's formal findings state (a) that
the value of the property condemned is the sum of $10,300; (b) that no damages will accrue
to the remaining property of appellants by reason of the severance and the construction and
improvement of the highway as proposed.
Respondent strenuously insists that an award of severance damages would find no support
in the evidence, while appellants with equal force maintain that the record contains evidence
to show the monetary extent of such damage. In support of their contention appellants have
cited that part of the record which contains testimony of the witnesses Mack and Thomas. We
have diligently examined the testimony of these two witnesses and find that their valuations
relate solely to the property condemned. Mr. Mack expressly stated that he was not testifying
as to severance damages. Mr. Thomas, after computing the acreage of the two parcels of the
area condemned, gave his valuation thereof and at no time testified as to the amount of the
damages for the injuries accruing to the residue from the taking.
[Headnote 1]
In a condemnation proceeding the burden is upon the landowner to prove the damage
resulting to his other lands by reason of the severance. State ex rel. Department of Highways
v. Pinson, 66 Nev. 227, 207 P.2d 1105. In the absence of any evidence of damage to the
residue an award for severance damage would be improper.
to the residue an award for severance damage would be improper.
[Headnote 2]
In the present case the court was fortified in its conclusion by positive evidence of expert
witnesses that there was no damage to appellants' remaining land resulting from the
severance. This in itself is sufficient to sustain the trial court's refusal to allow severance
damages. City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853.
Affirmed.
____________
77 Nev. 425, 425 (1961) Wells Cargo v. Dodge Construction
WELLS CARGO, INC., a Nevada Corporation, Appellant, v. DODGE CONSTRUCTION,
INC., a Nevada Corporation, Respondent.
No. 4411
November 10, 1961 366 P.2d 90
Appeal from judgment of the First Judicial District Court, Churchill County; Richard R.
Hanna, Judge.
Action to recover balance allegedly due for construction of portion of the state highway
under a contract awarded to defendant and sold to the plaintiff. From an adverse judgment of
the lower court, the defendant appealed. The Supreme Court, Thompson, J., held that where
defendant was entitled to withhold $10,000 if no drilling or blasting was required with regard
to an 88,000 cubic yard rock cut but if entire cut required drilling and blasting, defendant was
to pay over the $10,000, and drilling and blasting of 3 percent of rock cut was required at a
substantial cost and it was agreed that if actual cost exceeded $10,000 plaintiff would have
had to stand the loss, plaintiff was entitled to recover the entire $10,000.
Judgment affirmed.
Goldwater and Singleton, of Las Vegas, for Appellant.
Diehl & Recanzone, of Fallon, for Respondent.
Assignments.
Where defendant, which sold highway construction contract to plaintiff, was entitled to withhold $10,000
if no drilling or blasting was required with regard to an 88,000 cubic yard rock cut but if entire cut required
drilling and blasting, defendant was to pay over $10,000, and drilling and blasting of 3 percent of rock cut
was required at a substantial cost and it was agreed that if actual cost exceeded $10,000 plaintiff would
have had to stand the loss, plaintiff was entitled to recover the entire $10,000.
OPINION
The parties will be referred to as Wells and Dodge. Dodge commenced an action against
Wells in the district court to recover the sum of $8,750 alleged to be the balance due for the
construction of a portion of the state highway in Elko County.
The State Highway Department had awarded Wells a contract for the construction of a
12-mile highway. Wells sold the job to Dodge. Dodge fully performed the contract to the
satisfaction of the State Highway Department, and all of the provisions of the sale of the
contract had been performed by both Wells and Dodge, except for a dispute between them
over the amount of money due Dodge for a certain 88,000 cubic yard rock cut which was a
part of the project. Their agreement as to this matter was oral, and when the time came for
distribution of money received by Wells from the state, the representatives of the two
companies who had made the agreement differed as to its terms.
Dodge's version of the agreement is contained in a letter to Wells, and is to the effect that
Wells could withhold an additional $10,000 upon completion of the work if the 88,000
cubic yard rock cut on the job rips out. The term rips out refers to the movement of earth
and rock by earth-moving equipment alone, as distinguished from drilling, blasting, and
then the use of such equipment, the latter being more expensive.
and rock by earth-moving equipment alone, as distinguished from drilling, blasting, and then
the use of such equipment, the latter being more expensive.
Witnesses for Dodge testified that the quoted language meant that Wells could withhold
the $10,000 only if the entire 88,000 cubic yard cut ripped out; that if any drilling and
blasting were required, Wells must disburse that sum to Dodge. On the other hand, witnesses
for Wells testified that the oral understanding was that it could withhold $10,000 unless there
were substantial drilling and blasting required. Both sides agree that (a) if no drilling and
blasting were required Wells could withhold the $10,000; (b) if the entire cut required drilling
and blasting Wells would have to pay over the $10,000 to Dodge; and (c) that no
understanding was reached as to apportionment of the $10,000 in the event part of the cut was
rippable and part required drilling and blasting.
There is no conflict as to what actually occurred97 percent of the cut was rippable and 3
percent thereof required drilling and blasting before the earth-moving equipment could be
used. The true cost of the 3 percent which required drilling and blasting is not clearly shown,
though one witness thought that $2,500 might be a fair figure. In any event, Wells voluntarily
paid over to Dodge $1,250 for that work, apparently believing that amount to be fair
compensation.
The lower court entered judgment for Dodge in the amount of $8,750, representing the
balance of the $10,000 which Wells had withheld. Though the findings of fact do not set out
the terms of the oral agreement, the trial judge in deciding the case orally expressed his
views. He said that Dodge's contentions were supported by the evidence; that the cut was not
rippable; that drilling and blasting was required; and that the amount of drilling and blasting
done was substantial.
On appeal, Wells assigns three errors: 1. Error of the trial court in predicating its decision
on the wording of the said letter because that writing was not assented to by Wells. Though it
is true that the trial court indicated the crux of the case to be the phrasing of the letter as
hereinbefore quoted, it is apparent that all evidence was considered in arriving at its
decision.
court indicated the crux of the case to be the phrasing of the letter as hereinbefore quoted, it is
apparent that all evidence was considered in arriving at its decision. We have already pointed
out that the court believed the evidence to show that the cut was not rippable, and that the
blasting done was substantial rather than minimal. Those determinations were not made
because of the phrasing of the letter but were, instead, made as the result of other evidence
introduced during trial. Therefore, the assumption that the decision was based upon the letter
alone is incorrect, and we find no merit in this assignment of error.
2. Error of the trial court in finding the cut not rippable because the parties contracted
on the basis of the cut being substantially rippable. Again, appellant Wells has made an
unwarranted assumption. The only reason for making the agreement was the probability that
some drilling and blasting would be required to complete this portion of the job, and the
parties wanted to provide compensation for the increased cost to be incurred in such event.
Had they believed the cut to be rippable, there would have been no need for the agreement
that was made. It is clear, therefore, that the agreement concerned the drilling and blasting
requirements of the job rather than the rippable portion thereof. Accordingly, we find this
assignment of error to be without foundation.
3. Error of the trial court in finding that the drilling and blasting done was substantial.
Regarding this claimed error, it should first be noted that there is evidence to establish that
the cost of drilling and blasting 3 percent of the 88,000 cubic yard rock cut was substantial in
relation to the $10,000 agreed compensation. As before stated, a witness testified that the sum
of $2,500 would approximate the actual cost. Therefore, the lower court's view in this regard
is supported by substantial evidence. Accordingly, in the light of this finding, even had the
court below accepted the meaning of the oral agreement contended for by Wells, we would
have to affirm the judgment entered.
It is evident from the entire record that the amount of drilling and blasting to be required,
if any, was not known to either Dodge or Wells when the oral agreement was made.
of drilling and blasting to be required, if any, was not known to either Dodge or Wells when
the oral agreement was made. Each had an opinion, the accuracy of which could not be
known until the work was completed. They agreed upon the sum of $10,000 as a fair price to
be paid for the additional cost of drilling and blasting, realizing that the actual cost thereof
might either exceed or be less than that amount. Indeed, counsel agree that, had the actual
cost exceeded $10,000, Dodge would have to stand the loss. By the same reasoning, if the
actual cost were less than that sum, Dodge should be entitled to the profit. Having bargained
on that basis, and having assumed the results of the gamble, each party must be bound
thereby.
Judgment affirmed.
____________
77 Nev. 429, 429 (1961) Bennett v. Leypoldt
In the Matter of the Application of FRED ELLSWORTH BENNETT,
For Writ of Habeas Corpus.
FRED ELLSWORTH BENNETT, Appellant, v. W. E. LEYPOLDT,
Sheriff of Clark County, Respondent.
No. 4366
November 16, 1961 366 P.2d 343
Habeas corpus proceeding, wherein it was alleged that probable cause for binding
petitioner over for trial for rape was not shown during preliminary hearing. The lower court
denied writ and petitioner appealed. The Supreme Court, McNamee, J., held that birth
certificates showing that one of victims of alleged rape committed in 1960 had been born in
1943 and the other in 1944, that one victim's identification of accused as her father and
showing that victims were sisters were sufficient to show that accused at time of alleged
intercourse was over age of 16 years and was not spouse of either of his victims, and
there was probable cause.
father and showing that victims were sisters were sufficient to show that accused at time of
alleged intercourse was over age of 16 years and was not spouse of either of his victims, and
there was probable cause.
Affirmed.
Morse & Graves, of Las Vegas, for Appellant.
1. Criminal Law.
Birth certificates showing that one victim of alleged rape committed in 1960 had been born in 1943 and
the other in 1944, one victim's identification of accused as her father and showing that victims were sisters
were sufficient to show that accused at time of alleged intercourse had been over age of 16 years and had
not been spouse of either of his victims, and there was probable cause for binding defendant over for trial
for rape.
2. Rape.
Testimony of prosecutrix in rape case need not be corroborated.
OPINION
Petitioner was charged in two separate complaints with rape committed on Catherine and
Georgia Ann Bennett, both under the age of 18 years, on or about March 5, 1960. After a
preliminary hearing in the Justice Court of Las Vegas Township he was bound over to the
district court for trial. Thereafter, an information was filed in the district court below. Before
trial on the information he petitioned the lower court for a writ of habeas corpus alleging that
probable cause for binding him over for trial was not shown during the preliminary hearing in
that the record at said hearing fails to disclose: (1) that petitioner was not the husband of
either of the victims; (2) that petitioner was over the age of 16 years at the time of the alleged
offenses; and (3) that the act of intercourse, as related by each victim, was not
corroborated.
the act of intercourse, as related by each victim, was not corroborated.
Appeal is from the order denying the writ.
Appellant, said petitioner, in his designation of the contents of the record on appeal,
requested the record to contain the two complaints filed in the justice court, the reporter's
transcript of the proceedings at the preliminary hearing, the reporter's transcript of the hearing
on the petition in the lower court, and the other papers on file therein. The exhibits introduced
as evidence at the preliminary hearing were not designated by appellant to be contained in the
record on appeal and are not before this court.
[Headnote 1]
The transcript of the evidence at the preliminary hearing discloses that petitioner is the
father of the two girls, and that the birth certificate of each girl was introduced in evidence as
exhibits without objection showing that Catherine May Bennett was born January 26, 1943
and that Georgia Ann Bennett was born June 6, 1944.
With respect to the relationship of the parties and the age of the accused, Georgia Ann
Bennett in her testimony identified him as her father, and the record shows that Catherine
Bennett was her sister. This evidence, together with the appearance of the accused in court
and the birth certificates,
1
was sufficient to show that the accused at the time of the alleged
intercourse was over the age of 16 years and was not the spouse of either of the victims, his
daughters. Such evidence, with proof of the other elements of the crimes, is legally sufficient
for the justice of the peace to conclude that the public offenses had been committed and that
the accused was the perpetrator. See Goldblatt v. Harris, 74 Nev. 74, 322 P.2d 902.
Appellant's final claim that the act of intercourse in each case was not corroborated is
without merit.
____________________

1
We assume that each birth certificate contains the name of the child's father; otherwise appellant would have
included them as a portion of the record on appeal.
[Headnote 2]
We find in the record evidence corroborating the testimony of each minor relating to the
act of intercourse. Furthermore in this state the testimony of a prosecutrix in a rape case need
not be corroborated. Martinez v. State, 77 Nev. 184, 360 P.2d 836, citing State v. Diamond,
50 Nev. 433, 264 P. 697.
As stated in Raggio v. Bryan, 76 Nev. 1, 348 P.2d 156, 157:
Respondent, having been bound over to the district court for trial as a result of a
preliminary hearing at which sufficient legal evidence was presented to make it appear that a
public offense had been committed as charged and there was sufficient cause to believe him
guilty thereof, was under such circumstances not unlawfully restrained of his liberty.
Affirmed.
____________
77 Nev. 432, 432 (1961) Hemphill v. Hanson
CALVIN D. HEMPHILL, and RALPH B. REYNOLDS, Co-partners, Doing Business as
PEERLESS MEAT CO., Appellants, v. FRANK E. HANSON, Respondent.
No. 4399
November 16, 1961 366 P.2d 92
Appeal from judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge.
Action against restaurant operator for recovery of amount due for meat furnished, and
against landlord on his written agreement to pay such bill. The trial court entered judgment
against operator, but denied relief against landlord, and plaintiff appealed from denial of
relief against landlord. The Supreme Court, Badt, C. J., held that landlord's agreement to pay
bills of restaurant operator who took possession under oral lease for term of five years,
pending negotiation of a written five-year lease, was sufficient consideration for
operator's agreement to give up possession, and such consideration was not insufficient
on theory that under terms of undelivered written five-year lease operator, because of
certain defaults, was required to give up possession.
lease for term of five years, pending negotiation of a written five-year lease, was sufficient
consideration for operator's agreement to give up possession, and such consideration was not
insufficient on theory that under terms of undelivered written five-year lease operator,
because of certain defaults, was required to give up possession.
Leslie E. Riggins, of Reno, for Appellants.
Ernest S. Brown and Jack I. McAuliffe, of Reno, for Respondent.
1. Contracts.
A third-party beneficiary, not a party to a contract, may maintain an action against the promissor.
2. Landlord and Tenant.
Landlord's agreement to pay bills of restaurant operator who took possession under oral lease for term of
five years, pending negotiation of a written five-year lease, was sufficient consideration for operator's
agreement to give up possession and such consideration was not insufficient on theory that under terms of
undelivered written five-year lease operator, because of certain defaults, was required to give up
possession.
OPINION
Frank E. Hanson and members of his family are the owners of what is known as the
Village Shopping Center in Reno, comprising a number of shops and stores, including the
restaurant premises involved in this appeal. In April 1958 one Donald R. Conway went into
possession of the restaurant premises pursuant to negotiations between him and Hanson for a
5-year lease thereon, and Conway commenced the operation of a restaurant business under
the name of Conway's Village Restaurant and as Conway's Fine Foods. Bills for supplies
accrued against Conway, one of which was appellants' bill for meat, and this action was
commenced by appellants for a judgment against Conway for the accrued meat bill of
$556.10 and against Hanson on his written agreement to pay same.
his written agreement to pay same. Judgment went against Conway for this sum and for costs
and an attorney fee of $350. Such judgment remained unsatisfied. Relief against Hanson was
denied. Appellants appeal from that part of the judgment denying them any relief against
Hanson. Conway is not a party to this appeal.
The parties have stipulated that the only issues involved in the appeal are (1) whether there
was sufficient consideration for Hanson's written agreement to pay the account of appellants,
and (2) whether a certain sale of the business by Conway to Hanson was within the
operation of the bulk sales law, resulting in a good cause of action by appellants against
Hanson. Under the stipulation if we find affirmatively on either of these issues, a reversal of
the judgment denying relief to appellants must follow. As we have concluded that there was
sufficient consideration for Conway's agreement to pay appellants' bill, we do not consider
the second issue.
The facts are established by an agreed statement of the case and by Hanson's written
agreement. It becomes necessary to quote at length from these two instruments. The parties
are referred to by their abbreviated names. The instrument on which the present action is
based reads in material part as follows:
Agreement of Consideration (Personal Damage).
August 30, 1959
I, Frank E. Hanson, do as of this date (August 30, 1959) take possession of the business
known as Conway's Village Restaurant or Conway's Fine Foods, (they both being the same)
located at 1113 California Ave. Reno, in the Village Shopping Center.
In accordance with the notice sent to Mr. Donald R. Conway by regestered mail August
18, 1959. Mr. Conway is surrendering the business and location of said restaurant, for this
consideration, (which I have agreed), that I, Frank E. Hanson do accept and assume all debts
and liens against the Business known as Conway's Fine Foods, it being the same as above, so
far as the same, was used for the business (to which there is no doubt) But They being made
on or before this date August 30, 1959.
August 30, 1959. But shall exclude such debts as Federal Old Age, Income Tax,
Unemployment, N.I.C. and Sales Tax.
Personal property such as machinery, and it's contracts shall be transferred to Mr. John
Ami, and the balance thereof paid in full, with agreed consideration paid to Mr. Conway by
Mr. Ami, and the machinery then being the personal property of Mr. John Ami.
The agreed total dollars, of the existing debts or liens shall not exceed the amount of
$5,325.00 which will enclude the closeing bill of Sierra Power Co. and the total of debts
($5,185.70) as shown on a list of creditors, which has been attached to, and made a part of
this agreement.
This agreement is being made with Mr. Conway in lieu of approximately $6,325.00 he
would have received from Mr. John Ami, or any other buyer, should I have delivered the 5
year lease to Mr. Conway as promised 4/28/58, and of My own free will and accord have
accepted this agreement, and will assume the debts or liens and pay in full.
For this consideration and agreement, I Have this day August 30, 1959 recieved from
Donald R. Conway, Two sets of keys belonging to the restaurant for which I have in hand
paid Mr. Conway $1.00 (one dollar). This is followed by a list of some 14 keys to different
parts of the premises, and attached is a list of the accounts referred to, which list includes the
item of the appellants' account of $556.10 and an item of $1,600 rental, payable from Conway
to Hanson.
[Headnote 1]
It is the consideration for this agreement that is in question on this appeal.
The agreed statement of facts recites, first, the two issues involved as above noted and
proceeds as follows:
During the period from July 28, 1959 to August 14, 1959 Plaintiffs [appellants] sold and
delivered to the Defendant Donald R. Conway, doing business as Conway's Village
Restaurant certain meat products for the sum of $556.00, and said Defendant is now indebted
to Plaintiffs for said sum of $556.00.
Plaintiffs are third party beneficiaries
1
in that certain Agreement dated August 30, 1959,
signed by the Defendant Frank E. Hanson, and are entitled to recover from the Defendant
Frank E. Hanson, if there was consideration for said Agreement * * *.
Sometime prior to June 1, 1958, [Hanson] and [Conway] negotiated for a lease under the
terms of which Conway leased from Hanson the restaurant premises at 1113 California
Avenue, in Reno, Nevada, for a term of five years, for a rental of $200.00 per month, or a
percentage of 5% on the gross sales, whichever amount was greater. Pursuant to said
negotiations, Conway took possession of the premises and commenced the operation of a
restaurant business under the name of Conway's Village Restaurant, and later as Conway's
Fine Foods, and Hanson instructed his attorney Ernest S. Brown, Esq., to prepare a written
lease. A lease dated the ___ day of July, 19[58], was prepared by said attorney, and was
executed by * * * Hanson * * * but it was not delivered to Conway and the first time it was
seen by Conway, was on May 26, 1960, the first day of the trial of this case, when Hanson
produced it, in response to a subpoena duces tecum * * *. Hanson admitted signing said lease
in May or June, 1959.
The rent of $200.00 per month provided for in the aforesaid lease, was paid by Conway to
March 1, 1959 and thereafter Conway did not pay the monthly rent. Jack Hanson, the son of
the Defendant Frank E. Hanson, refunded to Conway the rent paid by Conway for the months
of January and February, 1959, because of slow business during the winter months and the
delay of Hanson in delivering the lease promised to Conway. * * * Furthermore, Hanson said
he agreed to waive any accrued rent. * * *
Conway negotiated with the Defendant John Amicucci for the sale of his restaurant
business during the latter part of July or early part of August, 1959, and a sale of the
business for the sum of $S,000.00, including the unexpired term of said five-year lease,
was agreed upon.
____________________

1
In any event, the right of a third party beneficiary, not a party to the contract, to maintain an action against
the promissor is established law in this state. Acoustics, Inc. v. American Surety Co., 74 Nev. 6, 320 P.2d 626.
a sale of the business for the sum of $8,000.00, including the unexpired term of said five-year
lease, was agreed upon. Conway informed Hanson of the sale he was making to John
Amicucci and demanded delivery of the lease which has been agreed upon and also asked
Hanson to approve an assignment of the lease to John Amicucci. Conway stated that he
couldn't sell the business without a lease, and he lost approximately $6,480.00 as a result of
not getting the lease and the loss of his sale of the business to John Amicucci.
During the month of August, 1959, and the negotiations between Conway and John
Amicucci for sale of the restaurant business, and the negotiations between Hanson and
Conway for delivery of the lease and the approval of an assignment of the lease to John
Amicucci, Conway conferred with Edwin C. Mulcahy, an attorney at law, in Reno, to
determine what could be done to obtain the lease, and following the conference Conway told
Hanson he had no alternative but to sue for the lease * * *.
Hanson mailed to Conway on August 17, 1959, a purported Notice to terminate Conway's
tenancy and Conway admitted receiving the Notice on August 19, 19[59]. * * * Upon receipt
of said [notice] Conway said he again conferred with his attorney and that he contemplated
taking action to stay in the restaurant premises and sue Hanson for the lease on the premises,
and that he also talked with Hanson on August 20, 19[59], and informed him of the action he
intended to take against him.
Hanson, prior to mailing to Conway, the purported notice to terminate Conway's tenancy,
* * * and during Conway's negotiations with John Amicucci for the sale of said restaurant
business, entered into a lease with John Ami, who is one and the same person as John
Amicucci, and received from him a deposit in the sum of $500.00, under the terms of which,
the said restaurant premises were leased by Hanson, and others to John Ami for a term of five
years commencing September 1, 1959, and ending September 1, 1964, for a rental of $250.00
per month, or 5% of gross sales, whichever is greater.
is greater. * * * Hanson believed the lease he gave to John Amicucci would produce more
than the minimum rental of $250.00 per month because of the 5% clause. He also thought
John Amicucci could produce more business than Conway had produced.
Conway operated said restaurant until the end of the business hours on Saturday, August
29, 1959 and Hanson and Conway met in said restaurant on Sunday morning August 30, 1959
and took inventory of the restaurant equipment leased by Hanson to Conway * * *. After
taking the inventory Hanson signed the agreement dated August 30, 1959 * * * and at that
time Conway gave to Hanson the keys and possession of the restaurant premises.
On August 31, 1959 as a result of prior negotiations, Conway concluded a sale of the
food inventory and some restaurant equipment to John Amicucci, for the sum of $1,542.00.
Thereafter on September 2, 1959, he caused to be mailed to all his creditors the letter dated
September 2, 1959, informing the creditors of the agreement between Hanson and himself
* * *.
Hanson has not offered to return to Conway any consideration which may have inured to
him as a result of the aforesaid Agreement dated August 30, 1959 * * *.
Hanson was not pleased with the way Conway conducted the restaurant business.
* * *
Dated this 5th day of January, 1961.
The foregoing agreed statement of the case was signed by counsel for the respective parties
and approved by the trial judge.
Under such situation the trial court found that Hanson signed the agreement of August 30,
1959 whereby he purportedly assumed and agreed to pay in full certain debts as shown on a
list of [Conway's] creditors * * * attached to and made a part of said agreement * * *. The
court found however that such document is not enforceable in this action and against the
said Frank E. Hanson as being without any consideration * * *. That said Donald R. Conway
had surrendered possession of said premises by reason of his default in the payment of rent
from January to August, [1959] and there was no surrender of possession or of the
business in consideration of Frank E.
default in the payment of rent from January to August, [1959] and there was no surrender of
possession or of the business in consideration of Frank E. Hanson assuming any debts of the
said Conway's business. Accordingly the court concluded that plaintiffs take nothing as
against Hanson.
In our opinion the agreed statement of facts and the facts as admitted in Hanson's written
agreement to pay the bill in question, and as supported by the court's finding that he actually
executed such contract, are in direct variance with and in contradiction of the court's finding
that the contract was not supported by any consideration. The only support for the court's
determination that there was no consideration lies in sundry paragraphs of the 14-page
typewritten lease from Hanson to Conway strictly defining and limiting Conway's rights. But
such lease signed, it is true, by Hanson and his co-owners, was retained by him and never
delivered to Conway, who never saw the instrument until the trial was in progress. The minds
of the parties had never met on the terms of the written lease relied upon by the trial court and
relied upon by the respondent on this appeal. The only lease agreed upon by the parties was
the oral lease and it was for the term of 5 years, for a rental of $200.00 per month, or a
percentage of 5% on the gross sales, whichever amount was greater.
2

Possession was taken pursuant to this oral lease. Conway paid the rental from April 1958
to March 1959. Hanson refunded the January and February rents because of slow business
during the winter and the delay of Hanson in delivering the lease promised to Conway.
Hanson agreed to waive any accrued rent. One of Conway's specified indebtednesses assumed
by Hanson was accrued rent in the sum of $1,600. Under these circumstances the court's
holding that the consideration of Hanson's agreement to pay the bills was Conway's surrender
of the premises because of his default in payment of rent, something that he was already
obligated by law to do, is without support in the record.
____________________

2
No question is raised in this appeal as to the applicability of the statute of frauds.
the record. The record in fact is directly to the contrary. Hanson said over his signature: This
agreement is being made with Mr. Conway in lieu of approximately $6,325.00 he would have
received from Mr. John Ami, or any other buyer, should I have delivered the 5 year lease to
Mr. Conway as promised 4/28/58, and of my own free will and accord have accepted this
agreement, and will assume the debts or liens and pay in full. Conway was in possession
under his oral lease. He had been contemplating legal action to enforce that possession. He
surrendered it in consideration of Hanson's promise to pay his bills. Under the agreement
Conway transferred the machinery and equipment to Ami. The surrender having been
consummated August 30, 1959, Hanson was enabled to deliver possession to Ami on
September 1, 1959 in accordance with his agreement with Ami. Under the Hanson-Ami lease
Hanson received a deposit of $500 and a 5-year lease at $250 a month rental as against the
$200 monthly rental under the Conway lease$3,000 increase for the 5-year term. Hanson
was relieved of possible extensive and costly litigation with Conway or Ami, or both of them.
The detriment to Conway was admitted by Hanson to be a loss of Conway's $6,325 sale to
Ami. The benefits to Hanson were manifest. It is clear that such benefits to him from
Conway's surrender of possession were most evident to him when he signed his contract. The
surrender of possession that seemed to him an ample consideration at the time is now asserted
to be no consideration at all, because forsooth Conway was said to be legally bound to deliver
such possession by reason of the terms of the written lease that Conway had never seen.
[Headnote 2]
Surrender of possession under the circumstances recited formed ample consideration for
the contract. Childress v. Lucky Jew Lead & Zinc Co., 134 Kan. 743, 8 P.2d 376, 378. There
the court referred to a set of facts less complicated and less conclusive than those in the
present case. The court remarked: Of such stuff are lawsuits made. We pass on problems
like that every month.
month. * * * Considerations like this have been held to support contracts in this state. [Citing
cases.] In Rogers Development Co. v. Southern California R. E. Inv. Co., 159 Cal. 735, 115
P. 934, 935, 35 L.R.A. (N.S.) 543, the court said, citing numerous California authorities:
There is no merit in the claim that the contract was without consideration. The defendant
was in possession of the greater part of the land, holding under the agreements aforesaid. In
consequence of this contract of plaintiff to repurchase, defendant gave the possession to
plaintiff, and it has ever since retained possession of all the lands. The yielding of possession
constituted a sufficient consideration for the contract. See also Hewitt v. Novak, 117 Mont.
365, 158 P.2d 627.
We are entirely satisfied that there was consideration for Hanson's agreement to pay
Conway's indebtedness to the appellants. The judgment denying relief to appellants must
accordingly be reversed with costs in this court, and the case remanded to the district court
with instructions to enter judgment in favor of appellants and against respondent in the sum
of $556.10, together with interest and costs in the district court and together with a reasonable
attorney fee to appellants.
____________
77 Nev. 441, 441 (1961) Zalk-Josephs v. Wells Cargo
ZALK-JOSEPHS COMPANY, Doing Business as TRIANGLE STEEL & SUPPLY CO.,
Appellant, v. WELLS CARGO, INC., and TRAVELERS INDEMNITY COMPANY,
Respondents.
No. 4400
November 17, 1961 366 P.2d 339
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Action against highway general contractor and its surety brought by one which had
supplied materials and services to a defaulting subcontractor.
and services to a defaulting subcontractor. The lower court dismissed the action and the
plaintiff appealed. The Supreme Court, Badt, C. J., held, inter alia, that criminal statute
providing that person receiving money for purpose of paying for materials or labor shall be
deemed to receive such as agent for party with whom contract was made was not available in
a civil action.
Affirmed.
(Rehearing denied December 26, 1961.)
Berkson & Phillips, of Las Vegas, for Appellant.
Goldwater & Singleton, of Las Vegas for Respondents.
1. Pleading.
Allegations that a defendant's subcontractor was its agent were subject to determination on motion to
dismiss where grounded on criminal statute which was accordingly inapplicable.
2. Embezzlement.
Criminal statute providing that person receiving money for purpose of paying for materials or labor shall
be deemed to receive such as agent for party with whom contract was made was not available in civil
action. NRS 205.010-205.460, 205.310.
3. Highways.
Statutory provision expressly barring any rights of action against sureties on highway contractors'
performance bonds by claimants failing timely to file claims and commence actions barred any action by
materialman which supplied subcontractor, against prime contractor's surety, grounded upon equitable
estoppel against defense of failure to file timely claim and predicated on theory that materialman had been
misled into letting its rights lapse. NRS 408.010-408.999, 408.900, 408.925.
4. Work and Labor.
Materialman which supplied subcontractor could not maintain common count against prime contractor
based on materials and services rendered subcontractor who had been paid therefor by prime contractor but
who defaulted, where there had been no dealings between prime contractor and materialman and prime
contractor had not been unjustly enriched.
5. Highways.
Highway and Roads Law provisions requiring claimants against contractors' sureties to file claims and
maintain actions within stated time impose conditions precedent to right to sue on contractor's bond and do
not constitute statute of limitations which must be affirmatively pleaded as defense. NRS 408.900,
408.925; NRCP 8(c).
6. Liens.
Performance of services and furnishing of materials to defaulting state highway subcontractor could not
give rise to equitable lien against fund, securing payment for services rendered.
equitable lien against fund, securing payment for services rendered.
7. Constitutional Law; Highways.
Highways and Roads Law provisions fixing time within which claims against contractors must be filed by
reference to notice of final acceptance of contracts are not unconstitutional for failure to provide notice
reasonably calculated to inform interested parties and do not violate constitutional right to due process of
law. NRS 408.900, 408.925; Const. art. 1, sec. 8; U.S.C.A.Const. Amend. 14.
OPINION
The parties will be referred to by their abbreviated names. Appellant Zalk-Josephs sued
Wells Cargo and Travelers by complaint containing three causes of action. The first cause of
action is against Wells Cargo. It alleges that Wells Cargo was the general contractor on a
certain Nevada state highway contract; that one Kaufield, as a subcontractor of Wells Cargo,
ordered materials and services from appellant Zalk-Josephs of the value of $21,866.46 to be
used on said state highway project; that Zalk-Josephs sold such materials and services to
Kaufield of the reasonable value of said sum, no part of which has been paid; that such sum
was paid to Wells Cargo by the state and was in turn paid by Wells Cargo to Kaufield, who
converted all of the same to his own use and thereafter filed a petition in bankruptcy and that
a general stay order of the bankruptcy court has prevented Zalk-Josephs from suing Kaufield.
The meat of such first cause of action against Wells Cargo is the assertion that pursuant to the
provisions of NRS 205.310 Kaufield was the agent of Wells Cargo and that the latter, as
Kaufield's principal, is liable to Zalk-Josephs for the value of labor and materials.
Zalk-Josephs' second cause of action is directed against respondent Travelers alone. It
realleges by reference all the allegations of the first cause of action and asserts further that
Travelers was the surety on the bond furnished by Wells Cargo, under the terms of which
Travelers was liable for the payment of the labor and material costs if Wells Cargo failed to
pay therefor; that on or about September 9, 1959 the state highway department accepted
said highway project as completed, but that Zalk-Josephs had no knowledge of such
acceptance; that it had the right within 30 days after September 9, 1959 to file a claim for
the unpaid balance under such project by filing a claim with the state highway
department but that it failed to file such notice and perfect its claim because {1) it had no
actual notice of the acceptance, {2) believed that work was still in progress, {3) was
informed on several occasions from September 9, 1959 through March 1960 by Wells
Cargo and by Kaufield that work was still in progress, {4) neither Wells Cargo nor Kaufield
informed Zalk-Josephs that the project had been accepted as completed and in fact
misled Zalk-Josephs into letting its rights lapse, and because Kaufield, after September 9,
continued to make partial payments on its account to Zalk-Josephs.
that on or about September 9, 1959 the state highway department accepted said highway
project as completed, but that Zalk-Josephs had no knowledge of such acceptance; that it had
the right within 30 days after September 9, 1959 to file a claim for the unpaid balance under
such project by filing a claim with the state highway department but that it failed to file such
notice and perfect its claim because (1) it had no actual notice of the acceptance, (2) believed
that work was still in progress, (3) was informed on several occasions from September 9,
1959 through March 1960 by Wells Cargo and by Kaufield that work was still in progress, (4)
neither Wells Cargo nor Kaufield informed Zalk-Josephs that the project had been accepted
as completed and in fact misled Zalk-Josephs into letting its rights lapse, and because
Kaufield, after September 9, continued to make partial payments on its account to
Zalk-Josephs. The second cause of action finally alleged that it was by reason of such
circumstances that Zalk-Josephs failed to file its notice within 30 days after September 9,
1959, and that by reason thereof Travelers owes Zalk-Josephs, under the provisions of the
bond, the full sum of $21,866.46.
The third cause of action, like the first, is against Wells Cargo. It alleges the state contract
with Wells Cargo as the general contractor, and recites that Zalk-Josephs' work was
performed without any express request from the defendant, Wells Cargo, Inc., or agreement
between plaintiff and defendant, Wells Cargo, Inc., but that defendant, Wells Cargo, Inc., at
all times, knew that the said work, labor and services were being performed and knew that
plaintiff expected to be paid therefor, and accepted the said work and received the benefits
thereof and that the work was reasonably worth $21,866.46, no part of which has been paid.
Wells Cargo and Travelers severally moved for a dismissal upon the grounds that the
complaint failed to state claims upon which relief could be granted. This appeal is from an
order granting the motions to dismiss.
[Headnote 1]
1. The first assignment of error is a procedural one. Appellant asserts that it alleged that
Kaufield, the subcontractor, was the agent of Wells Cargo, the principal contractor; that such
allegation raised an issue of fact not subject to determination on a motion to dismiss. In
support, it cites McColl v. Scherer, 73 Nev. 226, 315 P.2d 807, and Parman v. Petricciani, 70
Nev. 427, 272 P.2d 492. It is however clear from the allegations contained in the first cause
of action that reliance upon such agency is made upon the provisions of NRS 205.310,
reading as follows: Contractor failing to pay for labor or material. Every person having
entered into a contract to supply any labor or materials for the value or price of which any lien
might lawfully be filed upon the property of another, who shall receive the full price or
consideration thereof, or the amount of any account stated thereon, or part payment thereon,
shall be deemed to receive the same as the agent of the party with whom such contract was
made, his successor or assign, for the purpose of paying all claims for labor and materials
supplied, insofar as the money so received will pay such claims.
[Headnote 2]
This section is part of NRS, Chapter 205, entitled Crimes Against Property, embracing
secs. 205.010 to 205.460, inclusive. The particular section relied on, namely, sec. 205.310 is
the last of three sections concerning embezzlement. Appellant's chief reliance upon sec.
205.310 is upon the clause that the person receiving money for the purpose of paying for
materials or labor shall be deemed to receive the same as the agent of the party with whom
such contract was made. He asserts that, such agency having been defined by the statute,
Kaufield's principal, Wells Cargo, was liable to Zalk-Josephs for the payment of the latter's
bill for materials and labor. It is unnecessary to discuss this contention at length. Appellant
misinterprets the purpose, meaning, and intent of the section quoted. This criminal statute has
patently no application to the situation described.
has patently no application to the situation described. It totally fails to create a liability, under
the theory of agency, of Wells Cargo to Zalk-Josephs. There are other reasons why the statute
does not apply but it is unnecessary to discuss them. The first cause of action was accordingly
properly dismissed.
[Headnote 3]
2. The second cause of action, as noted, is against Travelers on its bond, and claims that
the circumstances above recited with reference to its second cause of action raised an
equitable estoppel against the defense that Zalk-Josephs had failed to file a claim with the
state highway department as required by statute. It relies upon its assertions that Wells Cargo
and Kaufield had on various occasions stated that the project was not completed, that the
work was still in progress and never informed appellant that the project had been accepted as
completed by the highway department, and misled appellant into letting its rights lapse and
that Kaufield continued to make partial payments on appellant's account. But no act,
statement, omission, or representation of any kind by Travelers is alleged. The contention
falls far short of establishing a liability on the surety even assuming the correctness of the
assertions against Kaufield and Wells Cargo. The meat of the matter lies in the provisions of
NRS 408.900 and 408.925 (set forth in full in the margin
1
), comprising two sections of the
"Highway and Roads Law" covered by NRS 40S.010 to 40S.999.
____________________

1
408.900 Contractors' claims. 1. Any person who has furnished labor, materials, provisions, implements,
machinery, means of transportation or supplies used or consumed by such contractor or his or its subcontractors
in or about the performance of the work contracted to be done, and whose claim therefor has not been paid by
such contractor or subcontractors, and who desires to be protected under the bond, shall file with the department
a claim in triplicate within 30 days from the date of final acceptance of the contract as provided by NRS
408.925, and such claim shall be executed and verified before a notary public and contain a statement that the
same has not been paid. One copy shall be filed in the office of the department and the remaining copies shall be
forwarded to the contractor and surety.
2. Any such person so filing a claim may at any time within 6 months thereafter commence an action
against the surety or sureties on the bond for the recovery of the amount of the claim and the filing of such claim
shall not constitute a claim against the department. Failure to commence such action upon the bond and the
Highway and Roads Law covered by NRS 408.010 to 408.999. It appears from the definite
allegations of appellant's complaint that it did not file a claim with the department and it
appears from the record that it did not commence the present action within six months after
date of the department's final acceptance. Under the express terms of the statute such failure
bar[red] any right of action against such surety or sureties * * *. The second cause of action
was properly dismissed.
[Headnote 4]
3. The nature of the third cause of action, asserted against Wells Cargo, was stated at the
beginning of this opinion. It is asserted as a common count, although it is specifically alleged
by plaintiff that said work, labor, and services were performed without any express request
from the defendant, Wells Cargo, Inc., or agreement between the plaintiff and defendant,
Wells Cargo, Inc. * * * In appellant's brief and oral argument appellant supported this cause
of action on the theory of unjust enrichment, and has cited a number of cases to support this
contention. It is unnecessary to discuss these cases. Each case cited had to do with the
performance of services under an invalid or unenforceable contract. Each one of such cases
properly held that the value of such services could be recovered on a quantum meruit as a
benefit to the person receiving them where the services were not gratuitously made and
involved nothing wrongful in themselves or prohibited by statute.
____________________
sureties within 6 months after date of the department's final acceptance will bar any right of action against such
surety or sureties and against the State of Nevada and the department.
408.925 Contracts: Final payments; notice of final acceptance; publication.
1. Before making final payment on any contract as provided in this chapter the engineer shall cause the
publication of a notice of the date of final acceptance of the contract for a period of at least 2 weeks in every
issue of a newspaper of general circulation in the county wherein the major portion of the contract work was
performed, and such notice may also be published each day for a period of at least 10 days in one or more daily
newspapers of general circulation throughout the state.
2. No final settlement of the contract shall be made with the contractor until 30 days after the date of such
final acceptance of the contract.
The third cause of action does not involve any dealings of any nature whatsoever between
Zalk-Josephs and Wells Cargo. Nor was Wells Cargo unjustly enriched to any extent
whatsoever by reason of the labor and services provided by Zalk-Josephs. Wells Cargo paid
over to its subcontractor, Kaufield, the precise amount paid by the state for the services
rendered by appellant to Kaufield.
[Headnote 5]
4. Appellant contends that NRS 408.900 is a statute of limitations and that by reason of
the provisions of NRCP Rule 8(c) the statute of limitations must be affirmatively pleaded as a
defense. On the contrary, it is virtually unanimously held, under statutes such as ours, that the
filing of notice or statement of claim against the contractor is a condition precedent to his
right to sue on the contractor's bond. Anno. 96 A.L.R. 1185. As an example, it was held in
Republic Iron & Steel Co. v. Patillo, 19 Cal.App. 316, 125 P. 923, 924, concerning the
statutory requirement for filing of a verified statement of claim with the proper department
within 30 days from the time the improvement was completed: It was necessary, in order
that a cause of action might be stated, for the plaintiff to allege this fact * * *.
[Headnote 6]
5. Appellant concedes that no lien against the property of the state (that is against the
completed highway) could result from the performance of his services to Kaufield. It insists
however that the performance of such services constituted an equitable lien against the fund
securing the payment for such services. Appellant cites a number of California cases to such
effect. These cases involved an equitable garnishment served on public officials to withhold
moneys payable under public contracts, which remedy was specifically provided by
California statutes. We have no such situation here.
[Headnote 7]
6. It is finally contended by appellant that NRS 408.925 providing for notice of final
acceptance of the contract as fixing the time within which claims must be filed with the
highway department is unconstitutional because it is in violation of the due process
clause of the federal constitution and section S of article 1 of the state constitution,
because it does not provide for notice reasonably calculated to inform the interested
parties.
contract as fixing the time within which claims must be filed with the highway department is
unconstitutional because it is in violation of the due process clause of the federal constitution
and section 8 of article 1 of the state constitution, because it does not provide for notice
reasonably calculated to inform the interested parties. For support of this contention appellant
relies on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.
865, and Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178. We do
not consider the cases in point. The former involved judicial proceedings involving the rights
of persons interested as beneficiaries in sundry trust funds. The names and addresses of such
persons were known to the bank seeking to settle the accounts. The court held published
notice to be insufficient. In the latter case published notice was held inadequate as a
prerequisite to judicial proceedings to fix compensation for condemnation of the property of
the defendants. The court noted that there was no reason why personal notice to the owner
could not be given where his name is known to the condemnor and is on the official records.
The proceedings involved in state road contracts and payments made thereunder are not
judicial proceedings, nor are the names of the individual persons furnishing labor and
material known to the disbursing officers or parties. Appellant cites no case in which notice
under similar statutes has been held to violate due process. In any event, it is our conclusion
that no constitutional right to due process is involved. No property rights or rights of any kind
possessed by appellant were taken from appellant by the statute in question. Appellant's right
to look to the bond for payment of its claim for the labor and materials furnished by it to
Kaufield was created by the very statute it attacks. The provisions of the statute and of the
bond filed pursuant thereto fixed the manner, the times, and the conditions under which it
could seek protection under the bond. Absent appellant's compliance with such statutory
requirements, it has not placed itself in position to obtain relief thereunder. Appellant
presents further points.
further points. These have been considered but we find the same without merit.
The judgment of dismissal is affirmed.
____________
77 Nev. 450, 450 (1961) Goicovic v. Knezevich
MIKE GOICOVIC and VERA GOICOVIC, Appellants, v.
BOB KNEZEVICH, Respondent.
No 4402
November 17, 1961 366 P.2d 97
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Taylor H.
Wines, Judge.
Action against lessor of restaurant to recover the balance between sum allegedly owed
lessees for food, goods, wares, and services, and sum representing unpaid rent, admittedly
owed by lessees, and counterclaim by lessor for such rent, to which lessees pleaded four-year
statute of limitations. The trial court gave judgment for the lessor on theory that lessees had
waived the statute of limitations defense to the counterclaim, and the lessees appealed. The
Supreme Court, Thompson, J., held that the lessees had not waived the defense either by
acknowledging in their complaint that the lessor was entitled to a credit for unpaid rent, or by
entering into a stipulation through which certain of their claims, barred by the statute of
limitations, had been allowed by the lessor as a credit if lessor should recover on
counterclaim.
Judgment reversed.
Stewart, Horton & McCune, of Reno, for Appellants.
James A. Callahan, of Winnemucca, for Respondent.
1. Limitation of Actions.
By acknowledging in complaint that defendant was entitled to credit for unpaid rent, plaintiffs did not
waive defense of statute of limitations against defendant's counterclaim for such rent.
Stipulation that certain of plaintiffs' claims, which were found to be time-barred, should be allowed as
credit against any recovery on counterclaim which arose from same transaction, was not an attempt by
plaintiffs to prove barred claims and did not effect waiver of their right to claim that counterclaim was
time-barred.
Sum allegedly owed to lessees of restaurant by lessor for goods and services, against which sum lessor
was admittedly entitled to a $2,800 credit for unpaid rent, and lessor's claim to such unpaid rent, did not
constitute mutual open accounts for purposes of computation of limitations period. NRS 11.210.
OPINION
Appellants Mike and Vera Goicovic, plaintiffs below, will be referred to collectively as
Goicovic, and respondent Bob Knezevich, defendant below, will be referred to as Knezevich.
Goicovic, who leased a cafe from Knezevich, commenced suit against him, alleging that
within four years last past Knezevich became indebted to him in the sum of $7,505 for food,
goods, wares, services and utilities furnished by Goicovic to Knezevich at the latter's request.
Goicovic also alleged that Knezevich was entitled to a credit for rent due in the sum of
$2,800. Judgment was sought for the sum of $4,715, representing the difference between the
debt alleged and the credit against it. By answer, Knezevich denied indebtedness to Goicovic,
pleaded the four-year statute of limitations as an affirmative defense, and counterclaimed for
$2,800 rent due. By reply to the counterclaim, Goicovic denied any indebtedness for rent,
pleaded the four-year statute of limitations as an affirmative defense thereto, and averred that
Knezevich was entitled to an offset of $2,880 for rent against his indebtedness to Goicovic.
During trial the parties entered into the following stipulation:
Mr. Horton: Thank you, Your Honor. Preliminarily I would like to propose a stipulation,
in accordance with a discussion we had in chambers before coming into court, and that is
that I would request counsel for the Defendant to stipulate that the Plaintiffs are entitled
to a credit in whatever accounting we may eventually end up with here, the Plaintiffs
being entitled to a credit for the following items, and in the following amounts:
court, and that is that I would request counsel for the Defendant to stipulate that the Plaintiffs
are entitled to a credit in whatever accounting we may eventually end up with here, the
Plaintiffs being entitled to a credit for the following items, and in the following amounts:
For utilities furnished by Plaintiffs to
Defendant, $20.00 a month for 8 months of
the year, $25.00 a month for 4 months of the
year, over a four year period for a total of
$1,040.00
A credit of painting of 40.00
A credit in relation to cash transactions of
300.00
A credit for a gas heater of
165.00
And a credit for propane gas furnished by
Plaintiffs to Defendant 210.14

__________

For a total of $1,755.14
1

With the further understanding that the Defendant does not now admit being indebted to
Plaintiffs in this amount by reason of claims that the Defendant asserts, but that these are
credits from the bookkeeping sense only.
Mr. Callahan: That is the understanding.
The Court: You so stipulate?
Mr. Callahan: So stipulated.
The Court: The record will so show.
The trial court denied Goicovic relief upon his complaint. Of this he does not complain.
However, that court gave Knezevich judgment upon his counterclaim in the sum of
$1,124.86. That amount represents $2,880 rent found to be due, less the $1,755.14 stipulated
credit. This appeal is from the judgment for Knezevich.
The lower court believed that Goicovic had waived the defense of the statute of limitations
to the counterclaim for rent. It is admitted that such defense is valid unless a waiver thereof
occurred. This is the main issue to be determined.
____________________

1
It is conceded that said claims would be barred by the four-year statute of limitations.
Appellant Goicovic contends that the statute of limitations was, and is, a complete defense
to the counterclaim for rent and that such defense was not waived by either the pleadings filed
or the proof offered. We agree.
[Headnote 1]
1. The pleadings. It is argued that Goicovic, by acknowledging in his complaint that
Knezevich was entitled to a credit for rent, may not thereafter by reply assert the defense of
the statute of limitations to the counterclaim for rent. It is urged that, by pleading in such
manner, an irreconcilable inconsistency is apparent, resulting in a waiver of such defense. We
do not find the complaint of Goicovic and his reply to the counterclaim inconsistent. By such
pleadings he stated, in effect, that should that court find in his favor upon the complaint, he
would be willing to reduce his recovery by the rent which was due but outlawed; however,
should the court deny him relief upon his complaint, he would rely upon the statute of
limitations as a defense to the counterclaim for rent. It is apparent that Goicovic did not, by
such pleadings, waive a defense; he only waived his right, if any, to recover an amount equal
to the credit for rent. We see, therefore, that the pleadings of Goicovic are not inconsistent.
However, we do not intend to intimate that, if they were inconsistent, a waiver of the defense
of the statute of limitations would thereby result. That question is not presented for
determination.
[Headnote 2]
2. The proof. Knezevich next contends that by offering to prove claims which were found
to be barred by the statute of limitations, Goicovic thereby waived his defense of such a
statute to Knezevich's counterclaim for rent. The proof alluded to is the stipulation
hereinbefore quoted. The stipulation is reasonably clear as to its meaning. The amount therein
referred to was not offered nor accepted as proof of Goicovic's claim for affirmative relief. To
the contrary, it was obviously intended to be a credit against the counterclaim of Knezevich
should he be successful in recovering thereon. It is evident that the stipution may not be
construed as a waiver of the defense of the statute of limitations to the asserted
counterclaim.
as a waiver of the defense of the statute of limitations to the asserted counterclaim. Rather, its
only effect was to reduce the recovery upon such counterclaim, if a recovery thereon were
otherwise lawfully permitted. As above indicated, the parties have agreed that the statute of
limitations was a complete defense, unless a waiver of such defense is found to exist. We find
none. We do not decide whether a waiver of such defense would result if the party asserting it
offered proof of outlawed claims arising out of the same transaction in support of his claim
for affirmative relief. That was the issue confronting the Arizona court in Connor Livestock
Co. v. Fisher, 32 Ariz. 80, 255 P. 996, 57 A.L.R. 196, upon which the court below and
respondent Knezevich each rely. As we view the case at bar, that issue is not here involved.
It is evident from the pleadings and the stipulation that either party, if successful in
proving his claim for affirmative relief, was willing that the other receive the credits
mentioned to reduce the amount to be paid in satisfaction. It is equally clear that neither
intended to waive any defense to the other's claim for affirmative relief.
[Headnote 3]
3. It is suggested that the judgment below may be supported on a different basis, that of a
mutual open account. NRS 11.210 reads: Mutual open accounts; accrual of cause of action.
In an action brought to recover a balance due upon a mutual, open and current account, where
there have been reciprocal demands between the parties, the cause of action shall be deemed
to have accrued from the time of the last item proved in the account on either side.
Knezevich asserts that, though his counterclaim for rent did not accrue within four years from
the commencement of suit, nevertheless Goicovic paid a utility bill for Knezevich within the
four-year period and same was credited against the rent due; that such payment was the last
item proved in the account on either side, with the result that the statute of limitations is not
a bar to his counterclaim for rent.
The utility bill was paid on February 29, 1956. Whether such payment was made within the
four-year limitation period is disputed, for though Goicovic filed suit February 29, 1960, the
counter-claim for rent by Knezevich was not filed until sometime later. However, we do not
decide this dispute. In our view, NRS 11.210 does not apply to this case. The meaning of the
quoted statute was determined by this court in Warren v. Sweeney, 4 Nev. 101, 102, where it
was said: To bring an account within this section of the statute, there must be mutual
demands between the partiesdemands upon which each might maintain an action. Where
payments on account are made by one party, for which credit is given by the other, it is an
account without reciprocity, and only upon one side; at least, it cannot be said to be a mutual
account consisting of reciprocal demands. The items on either side must be such as to
authorize the bringing of an action upon them. If all items on one side were intended by the
parties as a payment or credit upon an existing account, there would be no such demand in
favor of the person making the payments as to entitle him to maintain an action, because the
simple showing of the fact that the items upon which he brings his action were intended as
payment of a claim against himself, would defeat his action. In Warren v. Sweeney, supra,
plaintiff sought to recover $2,309 for work done by him at defendant's request. The work was
not performed within the limitation period. Plaintiff sought to avoid the defense of the statute
of limitations by proof of the delivery by defendant to plaintiff of a wagon within the
limitation period, for which defendant was given a credit of $100. The court held that such
transaction was not within the mutual open account statute. We believe the same reasoning
applicable to the instant case.
That part of the judgment entered below in favor of Knezevich and against Goicovic for
$1,124.86 and costs of suit, is reversed.
____________
77 Nev. 456, 456 (1961) Ex Parte Byington
In the Matter of the Application of ROBERT C.
BYINGTON, JR., For a Writ of Habeas Corpus.
No. 4477
November 22, 1961 366 P.2d 518
Original proceeding. Application of Robert C. Byington, Jr., for a writ of habeas corpus.
The Supreme Court, McNamee, J., held that refusal of father to produce children to enable
county court to make such disposition of children during pendency of divorce action as would
be most advantageous to each child was contempt, where father, an Ohio resident, was
personally served in Nevada with summons in divorce action, and that 30-day period of
confinement was five days in excess of period authorized by statute but that father was not
entitled to immediate release where 25-day period had not yet expired.
Writ denied.
John G. Spann, of Las Vegas, for Petitioner.
1. Contempt.
Refusal of father to produce children to enable county court to make such disposition of children during
pendency of divorce action as would be most advantageous to each child was contempt where father, an
Ohio resident, was personally served in Nevada with summons in divorce action. NRS 125.060.
2. Habeas Corpus.
Thirty-day period of confinement of father for contempt in refusing to produce children to enable county
court to make dispositon of children during pendency of divorce action was five days in excess of period
authorized by statute, but father was not entitled to habeas courpus for immediate release where 25-day
period had not expired. NRS 22.100.
OPINION
This is an original petition for a writ of habeas corpus.
On May 5, 1961, Patricia Byington commenced an action for divorce against petitioner
in Clark County asking custody of the three minor children of the parties.
action for divorce against petitioner in Clark County asking custody of the three minor
children of the parties. Petitioner at that time was a resident of Ohio. Thereafter and before
summons was served upon him he came to Nevada and took possession of Robin Byington,
aged 8 years, and Holly Byington, aged 6 years, the two older children, and returned with
them to Ohio where he obtained a court order restraining his wife from taking custody of said
two older children.
[Headnote 1]
On November 9, 1961, he returned to Nevada and attempted to take Tracy, the youngest
child, aged 4 years, and was arrested as a result of this action. On November 10, 1961, he was
personally served with summons in the Nevada divorce action and with an order restraining
him from removing Tracy from the jurisdiction of the Clark County court. He was at the same
time directed to appear before the court on that day for a hearing to determine certain matters
relating to the custody of the three minor children during the pendency of the divorce action.
At the hearing on November 10, 1961, the court ordered petitioner to produce Robin and
Holly before the court on November 14, 1961 to enable the court to make such disposition of
the children during the pendency of the divorce action as would be most advantageous to each
child. The court further ordered that petitioner remain in custody of the sheriff of Clark
County until a further hearing on November 14.
The record shows that at the hearing on November 14, petitioner had not produced said
children in court as directed and that through his counsel he stated his intention not to comply
with the order to produce. He does not contend that he was unable to produce them. The court
found that the two older children were then concealed by petitioner, adjudged petitioner in
contempt of court for his failure and refusal to comply with the order to produce, and ordered
him imprisoned in the Clark County jail for 30 days. It is under this November 14 order for
imprisonment that petitioner is now restrained of his liberty.
It is petitioner's contention that the Clark County court lacked jurisdiction to order
petitioner to produce before it Robin and Holly Byington; that under the decision of Ex parte
Gardner, 22 Nev. 280, 39 P. 570, it is not a contempt of court to fail to comply with an order
which the court had no jurisdiction to make; and that a party imprisoned for a contempt
committed under such circumstances should be discharged upon habeas corpus. This
contention is entirely premised upon the assumption that the Clark County court had no
jurisdiction to make the November 10 order which was violated.
At the time the divorce action was commenced in Clark County, the district court there
had divorce jurisdiction and jurisdiction of the plaintiff and of the three minor children who
were then present in that county. It is unnecessary to determine whether it lost jurisdiction of
Robin and Holly when they were forcibly removed by petitioner from Nevada, because the
court acquired jurisdiction of petitioner on November 10 when he was served with summons
issued in the Nevada divorce action.
1
By such service of the summons in Nevada the court
likewise acquired jurisdiction to make orders pertaining to Robin and Holly although they
were not within the State of Nevada. Wilson v. Wilson, 66 Nev. 405, 212 P.2d 1066.
NRS 125.060 authorizes a court in a divorce action to order a child to be produced before
it to enable it to make such disposition of the same during the pendency of the suit as appears
most advantageous to such child, and it further provides that all such orders may be enforced
and made effectual by attachment, commitment and requiring security for obedience thereto,
or by other means, according to the usages of courts, and to the circumstances of the case.
____________________

1
In this connection, respondent maintains that the Clark County court obtained personal jurisdiction of
petitioner on June 26, 1961 when a general appearance was made in the divorce action through a motion filed
therein by petitioner to quash the complaint. The question of whether a general appearance was then entered is
now pending for determination in a separate appeal.
[Headnote 2]
The court having had jurisdiction to make the order to produce, it was empowered to
adjudge petitioner guilty of contempt for his willful disobedience of such order. The 30-day
period of confinement, however, was 5 days in excess of the period authorized by statute.
NRS 22.100. In Steeves v. District Court, 59 Nev. 405, 94 P.2d 1093, it was held that such
error would not require an annulment of the trial court's order. Any confinement under said
order beyond a period of 25 days would, however, be an unlawful restraint of petitioner's
liberty. Such 25-day period has not yet expired and, consequently, petitioner is not entitled to
immediate release because his present restraint is not unlawful. Rainsberger v. Leypoldt, 77
Nev. 399, 365 P.2d 489.
In the absence of action by the Clark County district court modifying its order of
commitment by reducing the term of confinement from 30 to 25 days any confinement of
petitioner after a period of 25 days would be an unlawful restraint and then entitle petitioner
to immediate release on habeas corpus.
It is ordered that the writ be denied and these proceedings dismissed.
____________
77 Nev. 460, 460 (1961) Bird v. Mason
In the Matter of the Estate of HARRY W.
PARKER, Deceased.
BESSIE BIRD, FRANK J. PARKER, LILLIAN DuNESME, HAROLD PARKER and EARL
CHERRINGTON, Appellants, v. MARY JEAN MASON, Respondent.
No. 4418
November 27, 1961 366 P.2d 338
Appeal from order of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge, admitting will to probate.
The trial court admitted will to probate. The Supreme Court, Badt, C. J., held that the
evidence supported the finding that the will was not a forgery.
Affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellants.
Edward G. Marshall, of Las Vegas, for Respondent.
Wills.
Adequate substantial evidence supported trial court's findings that will was not forgery.
OPINION
This is an appeal from an order admitting to probate a document dated January 11, 1960,
as the last will of the above-named decedent. Although the written opposition to the probate
of such will alleged that it was a forgery, that it was not executed as required by statute, that
the decedent was not of sound mind, that his signature was procured by fraud and undue
influence and that he acted under duress, appellants assert that the sole theory advanced by
their opposition was that the will was a forgerythat it was typewritten by the proponent,
respondent herein, who was the sole beneficiary, above the authentic signature of the testator.
We deal then with this sole ground of contest.
77 Nev. 460, 461 (1961) Bird v. Mason
then with this sole ground of contest. The issue is further limited by appellants' opening brief,
which restricts it to the question whether the order admitting the will to probate was
supported by the preponderant weight of evidence that it was the last testamentary disposition
of the testator. The assignment of error is that the admission of the will to probate is
contrary to the weight of the evidence which disclosed said document to be a forgery. This
is even more sharply pinpointed by appellants' opening statement that the appeal concerns
itself primarily with the question of the weight and sufficiency of the evidence to sustain the
lower court's ruling. Translated into terms which we must recognize as firmly established by
this court, the issue is whether there is sufficient evidence to support the probate court's
finding that the will is not a forgery but that it was duly executed by the testator in the manner
required by law and was duly made, published, and declared by him to be his last will and
testament.
Appellants' brief and oral argument urge that this court weigh the evidence and reject the
trial court's findings. This was likewise urged in In re Estate of Peterson, 77 Nev. 87, 360
P.2d 259, 263, under the contention that will contests are purely of equitable cognizance and
that it is the duty of this court to weigh the evidence and direct the entry of such judgment as
we might consider proper. We there said: Such is not the rule in Nevada. Agricultural
Insurance Co. of Watertown, N. Y. v. Biltz, 57 Nev. 370, 64 P. 2d 1042. As in cases at law,
we do not disturb the findings of the court or the jury when supported by substantial
evidence. We said further in that case: Since our duty begins and ends with a determination
of whether there is adequate substantial evidence to support this finding, it would be idle to
attempt to analyze the evidence submitted by appellant in conflict with that offered by the
respondents.
Respondent, the two subscribing witnesses, and a fourth witness at the trial all testified
that they saw the testator sign the will in question. The trial court heard them so testify and
observed their demeanor while testifying on direct and cross-examination.
77 Nev. 460, 462 (1961) Bird v. Mason
them so testify and observed their demeanor while testifying on direct and cross-examination.
It accepted their testimony as true. It cannot be denied that this was adequate substantial
evidence in support of the finding that the will was not a forgery.
We must frankly concede that the evidence presented by the contestants threw grave
suspicions and doubts upon the authenticity of the will, but these were resolved against the
contestants by the trier of the facts.
The order admitting the will to probate is affirmed.
____________
77 Nev. 462, 462 (1961) Lee v. Baker
MILTON EARL LEE, Appellant, v. ALMA L. BAKER, as the Administratrix of the Estate of
Robert E. Baker, Deceased, and ALMA L. BAKER and MARVA L. MCKENNA,
Respondents.
No. 4396
November 29, 1961 366 P.2d 513
Appeal from the Fifth Judicial District Court, Mineral County; Peter Breen, Judge.
The trial court rendered judgments for the plaintiff on some causes of action and for the
defendant on another, and the defendant appealed. The Supreme Court, McNamee, J., held
that admission of exhibit, which was made by person who did not witness accident, contained
conclusions of maker as to route of two automobiles prior to impact, point of impact, and
course taken by automobiles after impact, was supplemented in part by unintelligible and
estimated distances, and could substantially have been impeached if maker had been
subjected to cross-examination was not harmless error within rule but was so prejudicial to
defendant as to necessitate new trial.
(Rehearing denied January 4, 1962.)
77 Nev. 462, 463 (1961) Lee v. Baker
Vargas, Dillon & Bartlett, of Reno, for Appellant.
Harry A. Busscher and Richard C. Minor, of Reno, and Goldstein, Barceloux & Goldstein,
of Chico, California, for Respondents.
1. Damages.
Denial of damages to administratrix for decedent's personal injuries suffered in automobile accident, and
award to her of damages for loss of use of such automobile was not consistent, disregarded instructions,
and was erroneous.
2. Negligence.
Negligence, if any, of deceased driver involved in automobile collision in which he, and his wife and
daughter who were riding with him, were injured was not imputable to wife or daughter.
Admission of exhibit, which was made by person who did not witness accident, contained conclusions of
maker as to route of two automobiles prior to impact, point of impact, and course taken by automobiles
after impact, was supplemented in part by unintelligible and estimated distances, and could substantially
have been impeached if maker had been subjected to cross-examination was not harmless error within
rule but was so prejudicial to losing driver as to necessitate new trial. NRCP 61.
OPINION
The complaint in this case contains five causes of action resulting from an automobile
accident involving two cars, one driven by Robert E. Baker and the other by Milton Earl Lee.
As a result of the accident, Robert E. Baker, his wife Alma L. Baker, and their daughter
Marva L. McKenna sustained personal injuries, and Robert E. Baker sustained property
damage to his automobile. Before suit was commenced, Robert E. Baker died from a cause
unconnected with the accident. As administratrix of his estate Alma L. Baker sues in the first
cause of action for her husband's personal injuries, his loss of earnings, and his medical
expenses. In the second cause of action, as said administratrix, she sues for damage to the
automobile and for loss of use thereof. The third cause of action is by Alma L.
77 Nev. 462, 464 (1961) Lee v. Baker
action is by Alma L. Baker on her own behalf for her own personal injuries in the sum of
$10,000, plus certain special damages. The fourth cause of action is by Alma L. Baker on her
own behalf for loss of consortium. The fifth cause of action is by Marva L. McKenna for her
own personal injuries and medical expenses.
The answer denies defendant's negligence and as affirmative defenses alleges that the
negligence of Robert E. Baker was the sole cause of the accident and as a separate affirmative
defense alleges contributory negligence on the part of Robert E. Baker which is imputable to
Alma L. Baker and Marva L. McKenna, and further alleges that all plaintiffs were guilty of
contributory negligence. The answer, in addition, contains a counterclaim for damage to
defendant's automobile.
After a trial by jury, verdict was rendered awarding Alma L. Baker as administratrix the
sum of $1,075 for damages to the automobile and for loss of use thereof; to Alma L. Baker
individually $15,000 for her personal injuries; and to Marva L. McKenna $2,500 for her
personal injuries. A separate verdict found in favor of the defendant against Alma L. Baker as
administratrix with respect to the claim for the personal injuries of Robert E. Baker.
Judgment was entered accordingly. A motion was made by defendant to set aside the
judgment and for a new trial, which was denied.
We are now concerned only with the appeal from the verdict and judgment and from the
order denying said motion.
There is substantial evidence in the record to justify the jury in finding the appellant was
negligent in driving at an excessive rate of speed at the time of the collision. Also there was
evidence which would warrant a conclusion that Robert E. Baker was negligent in failing to
yield the right of way when he entered the highway from a side road into the path of the
oncoming vehicle. If appellant was negligent and his negligence was the proximate cause of
the accident and no negligence of Robert E. Baker contributed thereto, respondent Alma L.
77 Nev. 462, 465 (1961) Lee v. Baker
L. Baker as administratrix was entitled to recover on both the first and second causes of
action. The jury was so instructed.
On the other hand, if appellant was not negligent, or if he was negligent but such
negligence was not a proximate cause of the accident, or even if such negligence was a cause
of the accident, and if Robert E. Baker was contributorially negligent and his negligence was
also a proximate cause of the accident, Alma L. Baker as administratrix was not entitled to
recover on either the first or second cause of action. The jury was instructed in this respect
also.
One of appellant's grounds on his motion for new trial was: that there was manifest
disregard by the jury of the instructions of the court.
[Headnote 1]
The action of the jury in denying damages to Alma L. Baker as administratrix for her
husband's personal injuries, which concededly were severe, and awarding her $1,075 as
administratrix for the damages to and loss of use of his property, is in disregard of the court's
instructions, clearly inconsistent, and erroneous.
[Headnote 2]
The jury properly was instructed that any negligence of Robert E. Baker was not imputable
to his wife or daughter.
1
Therefore, a verdict in their favor for their own personal injuries
could be upheld, in the absence of prejudicial error which would require a reversal of the
judgments in their favor, regardless of any negligence on the part of Robert E. Baker, if
defendant's negligence was a proximate cause of the accident.
As heretofore noted, the third cause of action alleges damages in the sum of $10,000 for
personal injuries to Alma L. Baker. The jury in its verdict awarded her $15,000 individually
for her own personal injuries which is $5,000 more than the damages for personal injuries
she is alleged to have suffered. Appellant contends this constitutes error, and one of the
grounds upon which his motion for new trial is based is "excessive damages appearing to
have been given under the influence of passion or prejudice."
____________________

1
See F. & W. Construction Co. v. Boyd, 60 Nev. 117, 102 P.2d 627.
77 Nev. 462, 466 (1961) Lee v. Baker
which his motion for new trial is based is excessive damages appearing to have been given
under the influence of passion or prejudice. Because of the prejudicial error hereinafter
discussed, it is unnecessary for us to consider this assertion further.
The evidence of negligence, lack of negligence, and proximate cause, with respect to both
Robert E. Baker and Milton Earl Lee, was conflicting in several of its aspects and, as
heretofore stated, there was evidence for and against a finding on each of these issues. Under
such circumstances a careful perusal of the record becomes necessary to ascertain if any
evidence relative to these issues was improperly admitted over objection.
Exhibit Z, a diagram of the accident prepared by one Cook, a police officer, who was
unavailable to testify at the trial, was received in evidence over the objection of appellant.
Objection was on the grounds that it was hearsay and that it was subject to different
interpretations which would require the testimony of the person who made it to properly
explain it.
This exhibit tended to show that the Lee car, not only after Lee applied his brakes but also
after impact, traveled a great deal farther in distance than other evidence would indicate.
Cook had arrived at the scene some time after the accident. One Garrison who arrived
about three to five minutes after the accident testified that the Lee vehicle could have been
moved before he arrived. Exhibit Z shows Cook's conclusion of the location of the point of
contact and delineates a distance therefrom of 11 19 to where the Baker car came to rest
after impact, which was interpreted by another witness to mean 11 feet 19 inches.
Respondents contend that Exhibit Z was properly admissible as a public record under NRS
49.050.
2
In the final arguments to the jury respondents' counsel in referring to Exhibit Z
stated: "Elaine Sarnowski was the next witness and she presented the official record from
the Sheriff's Department of Mineral County; read certain parts of that record, and that
record is in evidence.
____________________

2
NRS 49.050 Public records of this state and United States; original or copies received in evidence. The
original, or a microfilm or photostatic copy, or a copy of any record, other than a judicial record, document or
paper in the custody of a public officer of this state, or of the United States, certified under the official
77 Nev. 462, 467 (1961) Lee v. Baker
In the final arguments to the jury respondents' counsel in referring to Exhibit Z stated:
Elaine Sarnowski was the next witness and she presented the official record from the
Sheriff's Department of Mineral County; read certain parts of that record, and that record is in
evidence. It is the official record of the County, and has been accepted as the record of the
accident and what happened.
Exhibit Z was an original accident report. It was not certified as such under seal as
required by the statute, but such failure to comply with the statute was not specified as a
ground of objection.
Although there is substantial authority that such records and particularly the conclusions
contained therein are not admissible in evidence as the public records contemplated by such
a statute,
3
it is unnecessary to determine at this time the admissibility of police reports as
such.
[Headnote 3]
This exhibit made by a person who did not witness the accident, containing conclusions of
the maker as to the route of the two cars prior to impact, the point of impact, and the course
taken by the cars after impact, supplemented in part by unintelligible and estimated distances,
could have been substantially impeached if the maker had been subject to cross-examination.
The conclusions therein are in contradiction to the appellant's contention that he was not
negligent, and because of the sharp conflict in the evidence relating to negligence and
proximate cause its admission is not the harmless error referred to in Rule 61 NRCP4 but is
so prejudicial to appellant as to be inconsistent with substantial justice and to necessitate
a new trial.5
____________________
seal of such officer to be the original or to be a photostat or microfilm, or to be a true, full and correct copy, of
the original in his custody, may be received in evidence in any action or proceeding in the courts of this state, in
like manner and with the like effect as the original could be if produced. A public record or document in the
custody of a public officer of this state, in a public office, may be proved and admitted in evidence in any court
by the certificate of the legal keeper or custodian thereof that it is genuine and authentic, and by his seal, if there
be one annexed.

3
30 Texas Law Review 112-113 (1951); Annot. 69 A.L.R.2d 1148, 1151 (1960).
77 Nev. 462, 468 (1961) Lee v. Baker
harmless error referred to in Rule 61 NRCP
4
but is so prejudicial to appellant as to be
inconsistent with substantial justice and to necessitate a new trial.
5

The record discloses instructions which are inconsistent (pertaining to the effect of a
violation of a statute, and relating to imputable negligence), contrary to fact (advising the jury
that there are only two plaintiffs when in fact there are three), and erroneous (stating that even
if Robert E. Baker was negligent, you must fix the amount of each plaintiff's damages and
return a verdict in their favor), but no objection was made to these instructions. We mention
them merely to point out such instructions could have contributed substantially to the jury's
obvious inconsistency and confusion.
In view of our disposition of this appeal further consideration of assigned errors is
unnecessary.
Reversed and remanded for a new trial.
Thompson, J., concurring:
I agree with the result. However, I would limit discussion to appellant's assignment of
error regarding the inadmissibility of Exhibit Z, and the prejudice resulting from its
admission into evidence. In my judgment, had the record on appeal been otherwise without
error, the admission of Exhibit "Z" would, of itself, require a reversal and new trial.
____________________

4
Rule 61. No error in either the admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.

5
Specific determinations as to errors in the admission of evidence in a jury case which have been regarded
as harmless are seldom of value as precedents. This is obvious. There are a few general principles, such as that
the error will be treated as harmless where the evidence was not objected to, or where the error was invited by
the party now complaining of it, or where the testimony merely supported a proposition true as a matter of law.
But beyond such generalities, the harm that may result from a particular error is dependent upon the facts of the
particular case. In another setting the same error might have an entirely different influence on the decision. 3
Barron and Holtzoff, sec. 1353, pp. 444-445.
77 Nev. 462, 469 (1961) Lee v. Baker
the admission of Exhibit Z would, of itself, require a reversal and new trial.
As heretofore indicated, Exhibit Z is a diagram of the T-intersection where the collision
occurred. It purports to show the direction of the two cars before collision, the point of
impact, the length and direction of tire marks on the highway, and the place where the cars
came to rest following collision. The exhibit was at variance with another diagram of the
area, properly received in evidence, and also at variance with some of the oral testimony
given. The exhibit was prepared by a deputy sheriff who did not observe the accident, but
investigated soon after it occurred. At the time of trial, that deputy was no longer employed. It
was represented that he was then living in Arizona and not available to testify. His deposition
had not been obtained.
The exhibit was offered for introduction through another deputy, who declared only that
she kept the records of the sheriff's office. No foundation was established in an attempt to
admit the exhibit as either a business record, NRS 51.030, or as a public record, NRS 49.050.
Whether the exhibit would have been properly admitted under either statute, had a proper
foundation been established, is not before us for determination. When offered, objection was
interposed upon the ground of hearsay. Clearly the diagram is hearsay. It was offered for the
purpose of proving, or at least tending to prove, the truth and accuracy of the matters depicted
thereon. It was, therefore, not admissible in the absence of an exception to the hearsay rule
permitting its introduction. I find no such exception in this case.
Accordingly, the question is squarely presented whether the error committed by receiving
said exhibit in evidence is harmless within the meaning of NRCP 61, or of such importance
as to require reversal and new trial.
I find no substantial difference between NRCP 61, effective January 1, 1953, and the prior
law, NCL 8622. In each instance it appears that the court, on review, is granted an
opportunity to search the record as a whole, and exercise a judicial discretion in deciding
whether the error assigned is harmless or reversible in nature.
77 Nev. 462, 470 (1961) Lee v. Baker
the error assigned is harmless or reversible in nature. Though this be so, the discretion thus
granted may not be arbitrarily or capriciously exercised and should be guided by such
applicable legal principles as may have become recognized as proper in determining the
course of justice. Goodman v. Goodman, 68 Nev. 484, 489, 236 P.2d 305, 307.
It is my belief that this court has announced, from time to time, certain guides for the
exercise of judicial discretion on review, insofar as the admission or exclusion of evidence in
civil cases is concerned. I shall mention some of them:
1. In a trial before a court it will probably be held that the reception of incompetent
evidence was not considered in arriving at a decision, if there is competent evidence to
support such decision. Duplantis v. Duplantis, 50 Nev. 234, 255 P. 1014; Rehling v. Brainard,
38 Nev. 16, 22, 144 P. 167, 169.
2. In a trial before a court, if the evidence offered and received, though perhaps
erroneously, is cumulative in nature, so that it could not be said that the trial judge based his
decision upon it, it will probably be considered harmless error. Backer v. Gowen, 73 Nev. 34,
50, 307 P.2d 765, 773; cf. Florey v. Sinkey, 77 Nev. 275, 362 P.2d 271.
3. In a trial before a jury, if the evidence offered and received erroneously relates to an
issue in the case, it will probably be considered prejudicial. McLeod v. Miller & Lux, 40 Nev.
447, 473, 153 P. 566, 569, 167 P. 27; Mikulich v. Carner, 69 Nev. 50, 65, 240 P.2d 873, 880,
38 A.L.R.2d 1; Las Vegas Sun v. Franklin, 74 Nev. 282, 294, 329 P.2d 867, 873.
4. In a trial before a jury, if the evidence offered and improperly excluded, relates to an
issue in the case, the court's error will probably be considered prejudicial. Peterson v. Silver
Peak, 37 Nev. 117, 138, 140 P. 519, 527; Henry v. Baber, 75 Nev. 59, 65, 334 P.2d 839, 842.
Undoubtedly, other guides have been announced from time to time. Absent NRCP 61, and
before it NCL 8622, stare decisis might compel the reviewing court to decide according to
case precedent. Because of the mentioned rule and statute, such compulsion does not exist.
77 Nev. 462, 471 (1961) Lee v. Baker
rule and statute, such compulsion does not exist. However, the persuasive effect of case
precedent as a guide cannot be denied.
In the case at bar, Exhibit Z cannot be labeled cumulative and therefore harmless. Cf.
Backer v. Gowen, supra. To the contrary, it was in conflict with another diagram received in
evidence and also with some oral testimony. It directly related to ultimate issues in the case,
negligence and proximate cause. Of necessity, it contained the conclusions of its author, who
was not subject to cross or any examination. It was referred to in jury argument as the official
record of Mineral County and has been accepted as the record of the accident and what
happened. The guides heretofore mentioned indicate such error to be prejudicial in nature.
McLeod v. Miller & Lux, supra; Mikulich v. Carner, supra; Las Vegas Sun v. Franklin, supra.
In searching the entire record I find no circumstances to suggest a different result in this case.
A trial free from error is more likely to produce a just result than one in which error has
occurred. To that end, this case should be tried anew.
____________
77 Nev. 471, 471 (1961) I. H. Kent Co. v. Miller
I. H. KENT COMPANY and FIRST NATIONAL BANK OF NEVADA, Appellants,
v. HELEN K. MILLER, Respondent.
No. 4414
November 29, 1961 366 P.2d 520
Appeal from judgment of the First Judicial District Court, Churchill County; Frank B.
Gregory, Judge.
Action to compel wife of bankrupt to join her husband in filing in bankruptcy court a
claim for homestead exemption of home which she and her husband had conveyed together
with all right, title, and homestead rights to plaintiffs in trust as security for a pre-existing
debt prior to husband's filing of petition in bankruptcy.
debt prior to husband's filing of petition in bankruptcy. The lower court dismissed the
complaint for failure to state a claim upon which relief could be granted, and the plaintiffs
appealed. The Supreme Court, Badt, C. J., held that the homestead right was personal and
could neither be exercised for debtor by creditor nor could debtor be compelled to exercise it
on debtor's behalf.
Affirmed.
Vargas, Dillon & Bartlett and Alexander A. Garroway, of Reno, for Appellants.
Diehl & Recanzone, of Fallon, for Respondent.
1. Homestead.
Constitutional and statutory provisions exempting homestead from execution are not based upon
principles of equity, nor do they in any way yield thereto, in view of their purpose to secure home of family
even at sacrifice of just demands and in view of public policy favoring preservation of home.
2. Homestead.
Exercise and preservation of homestead exemption from demands of creditors is a personal right which
can be exercised or waived by debtor alone.
3. Bankruptcy.
Wife of bankrupt could not be compelled to join her husband in filing in bankruptcy court a claim for
homestead exemption of home which she and her husband had conveyed together with all right, title, and
homestead rights in trust as security for a pre-existing debt prior to husband's filing of petition in
bankruptcy.
OPINION
This is an appeal from the judgment of the court below, dismissing under NRCP Rule
12(b) (5) the complaint of appellants wherein appellants sought a judgment compelling
respondent to file in the bankruptcy court a claim for homestead exemption of property
conveyed to appellant First National Bank, as trustee, for appellant I. H. Kent Company, as
beneficiary, to secure a debt to said beneficiary.
On January 30, 1956 Boyce and Helen Miller, his wife, executed a trust deed on certain of
their community property in Churchill County, Nevada, in favor of First National Bank of
Nevada, as trustee, and I. H. Kent Company, as beneficiary. The property involved was
occupied by them as their home. The trust deed, after describing the property, included in the
conveyance all of the estate, right, title and interest, homestead or other claim or demand, as
well in law as in equity, which the Trustor now has or may hereafter acquire, of, in or to the
said premises * * *. Said trust deed was given to secure a preexisting debt to I. H. Kent
Company. Thereafter, on May 8, 1956, and within four months of the execution of the trust
deed Boyce Miller filed a petition in bankruptcy and was thereafter adjudged a bankrupt. On
February 5, 1957 Boyce and Helen Miller filed a declaration of homestead on the property
and Boyce Miller thereafter petitioned the bankruptcy court for leave to amend his schedules
by claiming his homestead exemption on the property. Helen Miller did not join in such
petition and has not sought to claim the homestead exemption.
1

The United States District Court, pursuant to petition of the trustee to set aside the trust
deed as a preferential transfer under the provisions of the bankruptcy act, held that the
conveyance was void. The court of appeals ordered the judgment redrawn as not to indicate
on its face that the trust deed was void as between the parties to it. In otherwise affirming the
judgment, the court of appeals held: * * * the effect of the homestead provision [in the trust
deed], whether it be referred to as an assignment, abandonment or a waiver, simply acts to
protect Kent against the contingency of having his security reduced materially by a homestead
exemption on the property. It said further: We agree with the trial court that the right of
homestead is a personal one created to protect the home and is completely inactive until
activated by a husband and wife or by either or by the head of a family.
____________________

1
Pursuant to judgment of the United States Circuit Court of Appeals (I. H. Kent Company et al. v. Busscher,
Trustee in Bankruptcy, Etc. 277 F.2d 901), modifying the judgment entered by the United States District Court
for Nevada, such district court entered a further order that Helen Miller within a specified time file in that court
either her claim for exemption of said homestead property or her relinquishment of such claim. Within the time
specified Helen Miller filed an instrument relinquishing any claim to the property.
trial court that the right of homestead is a personal one created to protect the home and is
completely inactive until activated by a husband and wife or by either or by the head of a
family. It is nothing but an inchoate right that springs into effectiveness only by the
application or declaration of those named and in no other manner. Therefore, the action of the
bank-trustee and Kent in their attempt to establish a homestead for the Millers, and through
this method remove the Miller property from the bankruptcy estate as exempt property, must
fail. The property therefore remains in the estate, and since the conveyance was made less
than four months before bankruptcy adjudication for an existing antecedent debt the
conveyance cannot be effective to constitute a secured debt with preference over other debts.
I. H. Kent Company v. Busscher, supra.
It rejected the claim of appellants here that they were properly acting as agents of the
Millers in attempting to declare and fix upon the property a homestead exemption.
Appellants attack the holding of the circuit court as not sound in law, and assert in any
event that it is not binding upon this court. However that may be, appellants commenced this
action to obtain a judgment compelling Helen Miller to join with her husband in filing a
claim for the homestead exemption. This they seek by reason of the language contained in the
trust deed, which they assert places upon Helen Miller an equitable duty to claim the
exemption, and because her refusal so to do jeopardizes the security interest in the property of
Kent because the property will otherwise remain in the bankrupt's estate and be disposed of in
the bankruptcy proceedings. The present appeal is from the lower court's order dismissing the
complaint for failure to state a claim upon which relief could be granted.
The nature of appellants' contention is expressed by them as follows: By the deed of trust,
Helen K. Miller and her husband conveyed the property and their right of homestead therein
to the trustee and beneficiary and, in equity, each of them should be compelled to do
everything necessary to make that conveyance effective. In support, they cite Gylling v.
Kjergaard, S Cir.,
support, they cite Gylling v. Kjergaard, 8 Cir., 293 F. 676, holding that mortgagees have the
same right to enforce for their benefit every right the mortgagor had in the property which, by
his selection he had the lawful power to render exempt by selecting and claiming such
exemption, and that in the event of the mortgagor's refusal to claim such exemption it would
be the duty of a court of equity to make the same on the application of the mortgagee.
Appellants relate the present proceeding to a bill for specific performance and assert that it
should be governed by the same rules.
[Headnotes 1, 2]
We are compelled to reject this contention. It is uniformly held that constitutional and
statutory provisions exempting the homestead from execution are intended to secure for the
householder a home for himself and his family regardless of his financial condition; that laws
exempting the homestead are not based upon principles of equity, nor do they in any way
yield thereto, their purpose being to secure the home of the family even at the sacrifice of just
demands, the preservation of the home being deemed of paramount importance as a matter of
public policy. Clark v. Davis, 37 Wash.2d 850, 226 P.2d 904; Kleinert v. Lefkowitz, 271
Mich. 79, 259 N.W. 871; Volker-Scowcroft Lumber Co. v. Vance, 32 Utah 74, 88 P. 896,
125 Am.St.Rep. 828. The exercise and preservation of the homestead exemption is held to be
a purely personal right which can be exercised or waived by the debtor. In re Mattingly, 42
F.Supp. 83; Branchfield v. McCulley, 192 Ore. 270, 231 P.2d 771, 235 P.2d 334; Mitchell v.
Mitchell, D.C., 147 F. 280. It is our opinion that the authorities cited by appellant dealing
with the doctrine of specific performance are not relevant to this issue. Here the appellant
trustee and belieficiary under the deed of trust, in seeking to compel respondent to claim the
exemption to preserve the security interests of appellants, are seeking such exemption
exclusively for their own interest and not to implement the purely personal right of the
mortgagors to preserve their property for themselves.
[Headnote 3]
It must be conceded that the determination of the issue is not without difficulty, and that
the decisions are not harmonious. Appellants place their reliance on Gylling v. Kjergaard, 8
Cir., 293 F. 676, and Baumbaugh v. Los Angeles Morris Plan Co., 9 Cir., 30 F.2d 816, and
assert that they are controlling on this appeal. However the later case of In re Mattingly,
D.C.W.D. Ky., 42 F.Supp. 83, 84, discusses these two cases but holds that the weight of
authority is contra. The following language is there used:
The petitioners contend that the Trustee is required by Sections 6 and 7 of the Bankruptcy
Act, 24 and 25, Title 11 U.S.C.A., to set aside for the bankrupt the property which is
exempt under the state law which would include the refrigerator in question. They admit the
generally accepted rule that a bankrupt may waive his exemptions in favor of general
creditors. See In re Roark, D.C.E.D. Ky., 28 F.Supp. 515. But they contend that this rule does
not exist where it would operate to the prejudice of a mortgagee who has obtained his lien
against the exempt property for value and in good faith. There is authority to support this
contention. In re French, D.C.N.D.N.Y., 231 F. 255, 265; Gylling v. Kjergaard, 8 Cir., 293 F.
676; Baumbaugh v. Los Angeles Morris Plan Co., 9 Cir., 30 F.2d 816. On the other hand, the
weight of authority seems to support the general rule that the right of exemption is personal to
the debtor and can not be asserted by a creditor holding a lien against the property which may
be set aside as preferential or fraudulent. Feilbach Co. v. Russell, 6 Cir., 233 F. 412; Mitchell
v. Mitchell, D.C.E.D.N.C., 147 F. 280; In re Cross, D.C.M.D. Pa., 281 F. 217; Belknap & Co.
v. Carpenter, 8 Ky. Law Rep. 358; 8 Corpus Juris Secundum, Bankruptcy, 497. This
prevailing view appears to be in harmony with the real purpose and intent of the exemption
laws which are to save for the debtor from his financial wreck a certain amount of necessary
property which will enable him to keep himself and family from actual want while attempting
a new start in life. Exemption laws are essentially for the benefit of the debtor and not for
the purpose of enabling some creditor to secure for himself a larger percentage of the
debtor's estate than is secured by other general creditors."2
It is interesting to note the language of the District Court N.D. Ga., In re Martin Bros., 294
F.
benefit of the debtor and not for the purpose of enabling some creditor to secure for himself a
larger percentage of the debtor's estate than is secured by other general creditors.
2

It is interesting to note the language of the District Court N.D. Ga., In re Martin Bros., 294
F. 368, 370, as follows: No one in the state court could prosecute or compel the prosecution
of a homestead application, save the head of the family or the statutory beneficiaries. A
creditor holding a homestead waiver, or a transfer of a homestead right, could not. No more
can he in a court of bankruptcy. Furthermore, to permit this creditor to force an exemption for
his own benefit would not only ignore the beneficial purposes declared in the state laws, but
would be for this court actively to prefer him to other creditors, contrary to the policy of the
Bankruptcy Act. His paper does not purport to transfer any specified property as security; but,
if it did, and although antedating the bankruptcy more than four months, for want of record
and sufficient description of the property conveyed, it would fail. It seeks to appropriate a
sufficiency of a possible future exemption.
Conceding that the language used is to a large extent dictum, that no case is cited in
support, and apparently the opinion has not been cited in later cases, we think that it is good
law in view of the principles recited in the cases herein referred to.
The judgment of dismissal is affirmed with costs.
____________________

2
But see Kronstadt v. Citizens & Southern Nat. Bank of Savannah, 5 Cir., 80 F.2d 260, not mentioned in the
Mattingly case. Kronstadt, however, was definitely influenced by three elements not existing in the Mattingly
case and not existing in the present appeal. (1) The selection of the homestead by the mortgage creditor was
permissible under the state law involved. (2) The bankrupt had appointed the creditor as the bankrupt agent to
clain the exemption. (3) The security was given to secure a contemporaneous loan made by the creditor and
accepted in good faith by the borrower.
____________
77 Nev. 478, 478 (1961) Sisson v. Sisson
JONATHAN A. SISSON, Appellant, v.
SHIRLEE VAUGHN SISSON, Respondent.
No. 4407
December 13, 1961 367 P.2d 98
Georgetta, Judge.
The lower court rendered a judgment from which the husband appealed. The Supreme
Court, Thompson, J., held that evidence supported finding that husband's alleged cruelty was
graver wrong than wife's admitted adultery, but that under circumstances, trial court abused
its discretion in awarding custody of children to divorced wife, who had, after separation,
taken paramour into household with children.
Affirmed in part; reversed in part.
Sinai & Sinai, of Reno, for Appellant.
Breen, McDonald & Young, of Reno, for Respondent.
1. Divorce.
Supreme Court in divorce action must approve findings supported by substantial evidence, even though
trial court's findings were based solely upon written record. NRS 125.140.
2. Divorce.
Substantial evidence would support finding that husband's alleged cruelty had adversely affected wife's
health.
3. Divorce.
Adultery, per se, need not be graver matrimonial delict than cruelty, and degree of fault in each party
must be determined under facts of particular case. NRS 125.120.
4. Divorce.
Substantial evidence supported filing that husband's alleged cruelty was graver matrimonial delict than
wife's admitted to adultery, which was committed after parties had agreed to separation and divorce. NRS
125.120.
5. Divorce.
Under circumstances, court abused its discretion in awarding custody of children to divorced wife, who
had, after separation, taken paramour into household with children. NRS 125.140, subd. 1.
OPINION
This is a divorce case. We shall refer to the parties as wife and husband, and to the three
minor children, collectively, as the children.
The wife commenced suit, charging extreme cruelty, requesting a divorce and custody of
the children, ages 9, 6 and 4, who were residing with her in Nevada. The husband, by answer
and counterclaim, sought to deny the wife any relief and requested a divorce because of the
unforgiven adultery of the wife.
He also asked for custody of the children. In reply, the wife admitted the husband's charge
of adultery. After a pre-trial conference, by consent of the parties and order of the court, the
action was referred to a Special Master to diligently hear and determine all proper matters
now pending, or hereafter arising, in said action to the final conclusion thereof by the Court.
After a lengthy hearing, the Master prepared and filed a report wherein he recommended that
the wife be granted a divorce and custody of the children, with the right of visitation in the
husband; that the husband pay $50 a month for each child as support and, in addition, set
aside $6,246.90 in trust with the First National Bank of Nevada to be later disbursed for the
benefit of the children at the rate of $50 per month each, from and after the fifteenth (15th)
anniversary of their respective births. The exhibits received in evidence, the transcript of
testimony, and proposed forms of findings of fact, conclusions of law, and judgment, were
submitted with the report for consideration by the court.
Objections to the Master's report and proposed findings, conclusions and judgment were
interposed by the husband, and argument thereon heard by the court. Thereafter the court
signed the findings, conclusions and judgment as submitted by the Master and without
change. Such documents conform to the recommendations contained in the Master's report
above related.
The husband appeals from the judgment thus entered, assigning many errors. Only two
need be considered: First, the claimed error in awarding the wife a divorce as the party least
in fault. NRS 125.120. Second, the claimed error in awarding custody of the children to the
wife. NRS 125.140.
Before discussing these matters, however, we desire first to resolve a dispute between the
parties as to the function and power of this court upon review. The appellant husband
contends that, as the findings, conclusions and judgment by the lower court were based solely
upon a written record and without the benefit of demeanor evidence, this court, on review,
may exercise its independent discretion without regard to the findings made below and the
conclusions drawn therefrom; that the appellate court is in the same position as the lower
court and, therefore, may independently weigh and evaluate the written record presented. On
the other hand, the respondent wife insists that this court may not weigh and evaluate such
written record. To the contrary, it must approve the findings of fact made, if supported by
substantial evidence.
In Garaventa v. Gardella, 63 Nev. 304, 309-313, 169 P.2d 540, 543-545, the same question
was presented for determination, and was resolved. The court said: One of appellant's
contentions is that the trial court's decisions, findings, and judgments are not supported by,
and are contrary to, the evidence. In the consideration of this assignment the court is
confronted with an important preliminary question arising out of the fact that the evidence in
the two consolidated cases tried before Judge Salter consists entirely of the transcript of
testimony taken orally in the case tried before Judge Maestretti, and the documentary exhibits
in that case. Appellant maintains that as the trial judge had no opportunity of observing the
witnesses while testifying, and their demeanor on the witness stand, this court is as capable of
examining the evidence and drawing conculsions from it as was the court below, and that for
this reason we should reexamine the entire case, determine for ourselves the weight of the
evidence and credibility of the witnesses, and draw our own conclusions.
of the witnesses, and draw our own conclusions. Respondent's position on this question is
that under the constitution and statutes of Nevada this court has no power, in the exercise of
its appellate jurisdiction, to try an appealed case on the facts de novo; that where, as here,
there is a substantial conflict of evidence, the action of the trial court in determining the
credibility of witnesses is not to be disturbed on appeal if that court's findings have any
substantial support in the evidence. * * *
After careful consideration of sec. 4 of art. VI of our state constitution and the conflicting
decisions of the courts, we do not feel that this court can ignore the jurisdictional question. In
our opinion the correct rule is that even where the evidence was all in writing, the trial court's
findings will not be set aside unless clearly or manifestly against the weight of the evidence,
or without any reasonable support therein. Of the numerous authorities sustaining this rule,
we cite but a few which give the reasons for their holdings. * * *
The conclusion we have reached in the foregoing discussion is based squarely upon the
ground that in cases like the present this court has no power or jurisdiction to weigh the
evidence without regard to the findings of the trial court, but can only consider the evidence
for the purpose of determining whether there was any substantial evidence to support such
findings, and whether the conclusions reached by the lower court were clearly wrong.
[Headnote 1]
We must, therefore, be governed by Garaventa v. Gardella, supra, in reviewing the record
now before us.
1. Was error committed in granting the wife a divorce? The husband initially asserts that
there is no substantial evidence upon which a court could find that his conduct adversely
affected the health of the wife; that, absent such evidence, the ground for divorce of extreme
cruelty is not established. In this connection the wife was asked: Q. Will you state whether
or not the defendant's conduct toward you has adversely affected your health? A. Most
definitely.
affected your health? A. Most definitely. I have had large medical bills. I still owe for my
own personal bill $20, and I most definitely have.
Without setting forth all of the evidence, the following additional statement is significant.
Q. Was the defendant ever critical of you? A. He is very critical. He believes in running his
life by what he reads, by what other people do, and what they write about. And now when I
say this, I mean particularly in sex life. He read the Kinsey Report and told me that I was not
normal because I did not come up to the specifications on page so and so that was recorded in
this book. And he runs his life as the Navy runs him, by certain rules that are set down; and to
me, to continually be nagged at about your sex life, and to be continually told that you are not
normal because you are not doing this or that according to what he has read, I think is very
nerve-wracking, and after while it becomes a complex with you. I know it certainly did with
me.
[Headnote 2]
We consider such evidence to be substantial in the light of prior opinions of this court.
Marshburn v. Marshburn, 77 Nev. 206, 361 P.2d 112; Coolman v. Coolman, 76 Nev. 43, 348
P.2d 471; Leland v. Leland, 71 Nev. 346, 291 P.2d 905; Ormachea v. Ormachea, 67 Nev.
273, 217 P.2d 355; Olszowy v. Olszowy, 65 Nev. 386, 197 P.2d 701. The cases of Nielsen v.
Nielsen, 55 Nev. 425, 38 P.2d 663, and Miller v. Miller, 54 Nev. 44, 3 P.2d 1069, 6 P.2d
1117, 11 P.2d 1088, upon which the husband relies, do not contain the quantum of proof here
presented.
The important problem presented by this claim of error is the application of the
comparative rectitude statute, NRS 125.120, to the circumstances of this case. It reads: 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, if both parties seek a divorce, otherwise to the party seeking the divorce, even if
such party be the party most at fault."
party least in fault, if both parties seek a divorce, otherwise to the party seeking the divorce,
even if such party be the party most at fault.
The relevant facts regarding comparative rectitude are well defined. During May 1959, in
anticipation of divorce, the parties entered into a written separation agreement settling their
property rights and providing for the custody and support of the children. They also agreed
that neither should annoy, molest or interfere with the other, nor shall either of them at any
time hereafter require or by any means endeavor to compel the other to cohabit with him or
her or seek to enforce any restitution of conjugal rights. Following execution of that
agreement, the parties separated and have not since lived together as husband and wife. The
course of conduct by the husband toward the wife, which the lower court concluded to be
extreme cruelty, occurred before the separation agreement was made. The husband did not
attempt to prove conduct by the wife, occurring before their separation, which would afford
him cause for divorce. The deliberate adultery of the wife, which she admitted by her
pleading and testimony, occurred after the separation agreement was made and when their
separation was a fact, and is the conduct upon which the husband based his counterclaim for
relief.
[Headnote 3]
We have heretofore indicated that adultery, per se, need not 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. Gabler v. Gabler, 72 Nev. 325, 304 P.2d 404.
1
The lower court, in
exercising the discretion granted by statute, may well have believed the circumstances
heretofore related, controlling.

____________________

1
In Gabler v. Gabler, supra, the wife sought a divorce claiming crulty. The Husband charged adultery and
asked that divorce be denied. The Supreme Court reversed a decree to the wife because the facts indicated the
proof of cruelty to be scanty, whercas the wife's adultery was shown to approach a deliberate course of conduct.
Therefore, the wife could not be least in fault. The comparative rectitude statute has, since Gabler v. Gabler,
supra, been amended to permit one who is most at fault to obtain a divorce if that person is the only one seeking
a divorce.
The lower court, in exercising the discretion granted by statute, may well have believed the
circumstances heretofore related, controlling. Perhaps it considered the term fault, as used
in the statute, to refer primarily to that fault which caused the disintegration of the marriage.
If so, clearly the adultery of which the husband complained was of no significance. Their
marriage was finished when the separation agreement was made. There remained only
necessary judicial action to terminate the marriage contract.
[Headnote 4]
Though another court might have exercised its discretion differently because of other
considerations, primarily moral, we do not believe that an abuse of discretion occurred in
deciding for the wife upon this issue. We conclude that, under the circumstances here present,
there is substantial evidence upon which the lower court could find and conclude that the wife
was the party least in fault.
2. Was error committed in granting the wife custody of the children? NRS 125.140 (1)
reads: The court, in granting a divorce, shall make such disposition of, and provision for, the
children, as shall appear most expedient under all the circumstances, and most for the present
comfort and future well-being of such children.
Again, in determining whether the discretion of the lower court was properly exercised or
abused, we must consider the circumstances of the case before us, and appropriate judicial
guides. We are deeply aware of the grave responsibility placed upon a court in deciding
which parent shall have the privilege of custody. Frequently, the injury visited upon children
by estranged parents cannot be corrected by the judicial process. A court can only do what
appears to be for their best interests under the circumstances related.
The record before the lower court dealt with the background of the parents, their
relationship with the children before and after separation, their financial circumstances, the
educational training of the children, the physical accommodations available for them, and the
moral environment.
moral environment. We shall briefly discuss the relevant facts bearing upon those matters.
The husband-father graduated from the United States Naval Academy, Annapolis, in 1947.
In 1948 he married the plaintiff. At that time he held the rank of ensign. In 1950 he was
promoted to lieutenant, junior grade; in 1953, to lieutenant; and in 1956, to
lieutenant-commander. He is a naval architect, engaged in ship design, construction and
maintenance, with the Engineering Duty Corps of the Navy. At the time of trial, he was 34
years old and had not been previously married.
The wife-mother, at that time, was 33 years old and had been previously married and
divorced. She had no children by her first husband. Her second marriage was blessed with the
three children who are the subject of this case.
Their marriage was not a particularly stormy one. The basic incompatibility appears to
have involved their sexual relationship. Each enjoyed a happy, warm companionship with
each child. Each parent was completely devoted to the children. The record is barren of
evidence tending to establish that any of the children did not return a full measure of love and
affection to each parent alike. The parents were active in church work and other community
functions. Their neighbors did not discern anything amiss. To all appearances, the family was
a normal happy unit.
In 1958 the wife met another man, 9 years her junior, later her paramour, and now her
third husband. This person was also active in church work, and their mutual interests in that
activity caused them frequently to be in each other's company. Following the separation in
May 1959, the relationship between wife and paramour fully blossomed. In June 1959 the
wife and the children (who were with her because of the provisions of the separation
agreement) traveled with her new love, in his station wagon, from Maryland to Las Vegas,
Nevada. During this trip, when it became necessary to stop overnight, the youngest child, a
girl, would sleep with her mother in a motel. The two older children, boys, would bed down
in the station wagon with their stepfather to be.
bed down in the station wagon with their stepfather to be. In Las Vegas a 32-foot
one-bedroom trailer was purchased. They could thereafter all sleep under one roof. Upon
arriving in Washoe County, housekeeping was first instituted at the Palomino Trailer Park,
later at the Eastwood Trailer Court, then at the Dancing D Trailer Court, and finally at the
Cedar Lodge Trailer Park. These moves covered about one year. At the time of trial, they
were living in a house.
According to the record, the wife first committed adultery several weeks after arrival in
Washoe County. Once initiated, that conduct continued thereafter up to and including the
time of trial. She freely admitted this to be true, stating that she thought it best for the moral
standings of the children. She and her paramour held themselves out as man and wife, and
were so known to many persons in the community. Each of them engaged in church work at
Sparks, Nevada. Each devoted time and attention to the activities of the children, taking them
on family picnics, to auto races, swimming and the like.
During this period of time, the husband-father hired private investigators to determine
what was happening. His wife had not encouraged the children to write him. He received but
one note from the oldest boy, acknowledging Christmas presents, and a Christmas card.
Letters written by him and the paternal grandparents to the children didn't get into their hands,
for one reason or another. It is clear that the mother attempted in every way to substitute her
paramour for her husband in the daily family activities.
During the first four months that the wife was in Washoe County the husband did not send
child support as required by their separation agreement. His explanation for such conduct was
that an eastern attorney advised this action, believing that the wife might be compelled to
invoke the Uniform Reciprocal Non-support Act, and thus submit herself to the jurisdiction
of the marital domicile. In any event, commencing in October 1959, support payments were
resumed and thereafter regularly made.
While in Nevada the paramour first obtained employment selling encyclopedias; thereafter
with the Reno Newspapers. His exact income is not disclosed. On the other hand, the husband
at the time of trial enjoyed a gross income of $8,600 a year.
Following separation, the former family home was sold. The husband moved, and lived
with his parents whose home is a three-story house, which has a living room, dining room,
kitchenette and family room on the first floor, three bedrooms, bath, and sitting room on the
second floor, and two bedrooms and a half bath on the third floor. It is located in a
middle-class suburban residential community, near churches and schools. The paternal
grandmother is 61 years old, and in good health. She expressed her love for the
grandchildren. The paternal grandfather is employed as a sales manager for a jewelry
manufacturing company. All wished to have the children live with them.
In our view, the foregoing recital discloses the essential facts upon which the custody
determination was to be made. The evidence is not in conflict regarding them. What legal
conclusions, within the area of discretion, are to be drawn therefrom?
Before marital separation, each parent was devoted to the children and they, in turn, to
them. The children were provided love, stability, securityboth emotional and financial, and
a good, wholesome moral environment. Though the tragedy of marital separation inevitably
casts injury upon the children, a strenuous effort must be made to maintain, if at all possible,
that love, stability, security, and moral environment which they formerly enjoyed. It is evident
and without dispute that the father, under the circumstances of this case, could have provided
the children with as much love, with more security and stability, and with a more wholesome
moral environment than did the mother. The wife's conduct following separation is
despicable. The children were not babies; they were intelligent, curious, and interested. They
undoubtedly knew right from wrong, good from bad. The oldest son was then 9, the next 6,
and the daughter 4 years old. Though the mother professed great love and affection for them,
it became incidental to her passion for another man.
love and affection for them, it became incidental to her passion for another man. Adult
passions, apparently, sometimes provoke illicit togetherness. However, we cannot approve
such conduct, especially its exhibition before beloved children. This is not a case where
adultery is but an isolated occurrence. To the contrary, the wife-mother deliberately subjected
her children to a shameful, immoral, unwholesome environment of more than a year's
duration. That a more satisfactory solution was available for the children's welfare, pending
divorce, is without question. We note that the father was not found unfit. Indeed, such a
finding was not possible under the facts here present.
We have not found authority from any court which would support a custody award to the
mother, under circumstances like these. The adultery with which we are here concerned
probably did not affect the husband-wife relationship, for reasons heretofore related, but it
must have caused terrible harm to the children. Authorities cited by the respondent wife to
support the custody award here made, are not in point factually. One involves a single act of
infidelity. Kruczek v. Kruczek, 29 N.Y.S. 2d 385. Another involves a motion to change
custody following divorce, and based upon a change of circumstances. Kelien v. Kelien, 273
S.W.2d 360 (Ky. 1954). In Westlake v. Westlake, 52 Wash.2d 77, 323 P.2d 8, there was
conflicting evidence on the charge that the wife committed adultery, and the trial court found
for the wife on that dispute. Nor was a finding of adultery made in Pick v. Pick, 197 Ore. 74,
251 P.2d 472.
In Norman v. Norman, 27 Wash.2d 25, 176 P.2d 349, a mother who had committed
adultery was given custody. However, her illicit relationship was not carried out in such
manner as to subject the children to its unfortunate consequences. The same is true of
Grimditch v. Grimditch, 71 Ariz. 198, 207, 225 P.2d 489, 495, where the court noted, They
[children] had not reached the age of discernment and were totally unaware of the
indiscretions of the mother that had been committed more than a year and a half before the
trial. In Oliver v. Oliver, 217 Md.
v. Oliver, 217 Md. 222, 140 A.2d 908, the charge of adultery was denied, and the trial court
found the proof thereof to be inadequate.
On the other hand, there are many cases in which the wife was found guilty of adultery,
and given custody, only to be reversed on appeal. We shall cite some of them. Warnecke v.
Warnecke, 28 Wash.2d 259, 182 P.2d 699; Vogel v. Vogel, 259 Wis. 373, 48 N.W.2d 501;
Magarell v. Magarell, 327 Mich. 372, 41 N.W.2d 898; Christian v. Christian, 45 Wash.2d
387, 275 P.2d 422. In Maryland there appears to exist a presumption that the mother is unfit
to have custody, if guilty of adultery. However, such presumption may be overcome if it
appears that the best interests of the children will be served by awarding custody to the
mother. Parker v. Parker, 220 Md. 69, 158 A.2d 607; Hild v. Hild, 221 Md. 349, 157 A.2d
442.
[Headnote 5]
We acknowledge that one may be a bad wife, but a good mother; that adultery is many
times considered, because of the particular facts involved, a most serious offense against the
spouse and not as serious an offense against the children. However, such is not the case
before us. Though wide discretion is given the trial court, the circumstances here present and
every judicial guide we have found involving similar circumstances establish, in our view,
that the court below abused its discretion in concluding that the interests of the children
would best be served by awarding their custody to the mother.
Accordingly, the judgment granting plaintiff below a divorce, is affirmed. The judgment
granting her custody of the children, and the support provisions incident thereto, is reversed.
The defendant is granted sole custody of the three minor children, with the right to the
plaintiff to visit said children at reasonable times and places. The cause is remanded for entry
of judgment in accordance herewith.
____________
77 Nev. 490, 490 (1961) Wyatt v. State
THOMAS D. WYATT, Appellant v.
No. 4417
December 18, 1961 367 P.2d 104
Appeal from the Second Judicial District Court, Washoe County, Clel Georgetta, Judge.
Defendant was convicted in the trial court of attempted abortion, and he appealed. The
Supreme Court, McNamee, J., held that proof of pregnancy was not necessary to conviction,
and that medical instruments and other articles seized by officer who entered defendant's
room were not product of illegal search and seizure where officer had been notified, by means
of radio message transmitted from defendant's home, that defendant was in act of committing
felony.
Affirmed.
Samuel B. Frankcovich and Brian L. Hall, of Reno, and Harry E. Claiborne, of Las Vegas,
for Appellant.
Roger D. Foley, Attorney General, William J. Raggio, District Attorney, Drake DeLanoy,
and Eric L. Richards, Deputy District Attorneys, Washoe County, for Respondent.
1. Criminal Law.
Generally, on trial of accused, proof of distinct independent offense is inadmissible, but evidence of other
crimes is competent when it tends to establish intent.
2. Criminal Law.
Preferably, trial judge should hear evidence of crimes other than that charged, or ascertain nature of such
crimes, outside jury's presence, but failure to take such intermediate step is immaterial on review of
question of admissibility.
3. Criminal Law.
Entrapment is affirmative defense that defendant must prove.
4. Criminal Law.
Evidence did not entitle defendant, who was charged with attempted abortion and had repudiated defense
of entrapment, to entrapment instruction.
77 Nev. 490, 491 (1961) Wyatt v. State
5. Criminal Law.
Although district attorney directs persons to go to defendant to request him to place himself in position
which would be in violation of criminal statute, this does not constitute entrapment but is merely
furnishing of opportunity for commission of crime.
6. Criminal Law.
Although defendant is entitled to instruction on his theory of case as disclosed by evidence, court is not
required to instruct on some matter of defense not supported by evidence, particularly when defense is
expressly repudiated.
7. Criminal Law.
Testimony that investigator for California Board of Medical Examiners had had conversation with third
party was testimony to fact within investigator's knowledge and was not objectionable as hearsay, but was
relevant during his preliminary examination to show his reason for being associated with district attorney's
office.
8. Criminal Law.
Testimony of investigator for California Board of Medical Examiners that his assistance to Washoe
County district attorney's office in investigating defendant charged with attempted abortion came about
because of investigator's conversation with third persons was not prejudicial where defendant admitted on
cross-examination that his license as physician and surgeon had been temporarly revoked in California for
abortion.
9. Arrest.
Where arresting officer has reasonable cause to believe that felony is being committed, entry of person's
premises without warrant for purpose of arresting such person as perpetrator of crime is not unlawful.
NRS 171.235, subd. 1(c); U.S.C.A.Const. Amends. 4, 14.
10. Arrest.
Evidence obtained during search without warrant is not obtained by illegal search and seizure if search is
incident to legal arrest and is conducted in close proximity to place of arrest. NRS 171.235, subd. 1(c);
U.S.C.A.Const. Amends. 4, 14.
11. Searches and Seizures.
Medical instruments and other articles seized by officer who entered room of defendant charged with
attempted abortion were not product of illegal search and seizure where officer had been notified, by means
of radio message transmitted from defendant's home, that defendant was in act of committing felony. NRS
171.235, subd. 1(c), 201.120; U.S.C.A.Const. Amends. 4, 14.
12. Abortion.
Proof of pregnancy was not necessary for conviction of attempted abortion. NRS 201.120.
77 Nev. 490, 492 (1961) Wyatt v. State
OPINION
Appellant, a licensed physician, was found guilty by jury verdict of attempted abortion.
Appeal is from the order denying a new trial.
Five errors are assigned and each is considered separately.
1. Admission of evidence of other abortions performed by appellant.
While appellant concedes that in an attempted abortion trial prior criminal acts of abortion
by appellant are properly admissible for the purpose of showing criminal intent,
1
he
maintains that the method by which such evidence can be introduced must be the same as that
employed in Nester v. State, 75 Nev. 41, 334 P.2d 524, 527, where the trial judge heard the
substance of another crime outside the presence of a jury prior to its admission in evidence.
This assertion is without merit.
[Headnote 1]
In Nester we stated the general rule that on the trial of a person accused of a crime, proof
of a distinct independent offense is inadmissible. We noted, however, certain exceptions to
this rule, one of which is that evidence of other crimes is competent to prove the specific
crime charged, when it tends to establish intent. Because such evidence manifestly creates a
prejudice which may cause injustice to be made to a defendant the relevance of evidence
which tends to prove a crime other than that charged must be examined with care, even if it
fits properly, within one or more of the exceptions. * * * In all such cases as this, then, an
intermediate step must be taken between the determination of relevancy by the court and the
weighing of the evidence by the jury * * * [to enable the trial judge] to balance the prejudicial
and distracting impact of the evidence against its probative weight and persuasiveness.
____________________

1
See State v. Elges, 69 Nev. 330, 251 P.2d 590.
77 Nev. 490, 493 (1961) Wyatt v. State
[Headnote 2]
Such an intermediate step was taken in the instant case. Outside the presence of the jury
the trial judge ascertained the type of evidence to be offered, heard arguments of counsel, and
determined that it would be admissible. Even though the trial judge should permit the jury to
hear such evidence without first taking the intermediate step, it would be immaterial on
review. If he permitted the evidence to remain in the record, it would be presumed that the
probative weight of the proffered evidence, in his balanced judgment, outweighed its mere
prejudice. The preferable method, however, is for the trial judge to hear this evidence, or
ascertain its nature, outside the presence of the jury in order to prevent the loss of time and
expense which could be caused by a mistrial or new trial resulting from a later determination
that the evidence should not have been received.
2. Failure of the trial court to instruct the jury relative to entrapment.
Appellant contends it was error for the lower court to refuse to give the following
proposed instruction:
You are instructed that if you should find that the defendant attempted to perform the
operation as charged in the indictment, nevertheless, if you further find that the intent to
commit such act did not originate with the defendant and he was not carrying out his own
criminal purpose, but that the act was suggested by another person acting with the purpose of
entrapping and causing the arrest of the defendant, then the defendant is not criminally liable
for the act so committed, and your verdict should be for the defendant.
In the case of In re Davidson, 64 Nev. 514, 520, 186 P.2d 354, 357, this court quoted with
approval the text from 22 C.J.S., Criminal Law, sec. 45, which states that the defense of
entrapment is not available where the officer or other person acted in good faith for the
purpose of discovering or detecting a crime and merely furnished the opportunity for the
commission thereof by one who had the requisite criminal intent.
In re Wright, 69 Nev. 258, 263, 248 P.2d 1080, 1082, the principal defense was one of
entrapment.
77 Nev. 490, 494 (1961) Wyatt v. State
the principal defense was one of entrapment. There we said:
It is first contended that the record does not show any foundation or basis for such resort
to a decoy. This contention we must reject. It is clear from the record that Carpenter's
employers believed and had reasonable cause to believe not only that petitioner was a person
disposed to commit the offense, but that he had already committed a similar offense on at
least one occasion. * * *
Next it is contended that the offense was committed at the instigation and subject to the
persuasion and inducement of Carpenter; that the criminal design originated not with
petitioner but with Carpenter himself; * * * We are satisfied from the record, however, that
such was not the case. The record discloses that Carpenter merely presented to petitioner the
opportunity to commit the offense which opportunity was freely accepted by petitioner.
Carpenter's course was simply to state his problem: his need for divorce; his need for
urgency; then, in effect: That's my problem. You tell me what I've got to do and what it will
cost.'
See also People v. Raffington, 98 Cal.App.2d 455, 460, 220 P.2d 967, 971, where it is
stated: Entrapment is available as a defense when the criminal design originates with the
officer who, by persuasion or deceit, entices a law-abiding citizen to commit a crime which
he would not have committed in the absence of such inducement. * * * There is no evidence
that defendant was lured into the attempt to commit a criminal offense by persuasion or
inducement. The conversation was between persons who professed to desire the abortion to
be performed and defendant, willing to perform upon the payment of his requested fee. In
such case enticement or entrapment is not available as a defense * * *.
These cases, however, were not concerned with the question whether a requested
instruction on entrapment must be given in a jury trial.
The attempted abortion of which appellant was convicted occurred on August 11, 1960.
The evidence shows that appellant had in his office all the instrumentalities with which
abortions are produced.
77 Nev. 490, 495 (1961) Wyatt v. State
that appellant had in his office all the instrumentalities with which abortions are produced.
Testimony of witnesses was to the effect that he had performed the following acts of criminal
abortion: Three on one Schauwecker, the last being as late as June 1960; three on one Wells,
the last in March 1960; and one on a young girl in December 1959. It was disclosed at the
trial that appellant had tissue of human placental matter from two separate female individuals
wrapped in newspaper in his desk drawer at the time of his arrest on August 11, 1960.
With reference to the present charge, the record shows that Wilma Askew consulted the
appellant at his home and clinic on or about August 8, 1960 regarding the pregnancy of her
sister, Grace Jose. After a brief discussion appellant said: Poor kid, how far along is she?
* * * If it is more than two months I won't touch her. Appellant then made the preliminary
arrangements for the operation and set the time therefor. When Wilma Askew commented:
Well, I thought an abortion was like an operation, appellant replied: No, not the way I do
it.
At the time of the arrest by officer Manin appellant was in his office or treatment room,
standing and facing Grace Jose who was lying back down on a table with her legs up in
stirrups.
Appellant testified that he had not attempted to commit an abortion on Grace Jose, and
denied that he ever committed an abortion on any of the three persons above mentioned, and
yet he asserts the defense of entrapment on appeal.
[Headnotes 3-5]
Entrapment is an affirmative defense and one that a defendant must prove. State v. Good,
110 Ohio App. 415, 165 N.E.2d 28. Appellant offered no evidence, whatsoever, which could
sustain such a defense. In fact his counsel stated to the court during the trial that appellant
was not relying on the defense of entrapment. His only evidence pertaining to the alleged
commission of the offense with which he was charged consisted of his own testimony of
denial as aforesaid.
77 Nev. 490, 496 (1961) Wyatt v. State
consisted of his own testimony of denial as aforesaid. Although the evidence discloses that
the district attorney directed certain persons to go to the appellant for the purpose of
requesting him to place himself in a position which would be in violation of a criminal
statute, and he does so, this alone does not constitute entrapment. People v. Conrad, 102
App.Div. 566, 92 N.Y.S. 606. It is merely the furnishing of an opportunity for the
commission of the crime, as mentioned in the Nevada cases of In re Davidson and In re
Wright, supra. Further evidence must be produced to show that the criminal intent resulted
from persuasion or inducement. People v. Raffington, supra.
[Headnote 6]
Although it is true that a defendant is entitled to an instruction on his theory of the case as
disclosed by the evidence, the court is not required to instruct the jury on some matter of
defense which is not supported by any evidence, and particularly with respect to a defense
expressly repudiated. State v. Moore, 48 Nev. 405, 233 P. 523; State v. Alsup, 69 Nev. 121,
243 P.2d 256.
In People v. Cummings, 141 Cal.App.2d 193, 201, 296 P.2d 610, 615, where the
defendant was convicted of abortion and contended that the trial court committed prejudicial
error in refusing to instruct the jury on the subject of entrapment, the court said:
While it is well settled that a defendant is entitled to instructions based on the theory of
his defense, the court may refuse proffered instructions on a theory that is not supported by
substantial evidence. * * * Was there substantial evidence of entrapment in this case? A few
legal guideposts will assist in answering this question. * * * [Citing People v. Lindsey, 91
Cal.App.2d 914, 205 P.2d 1114] Where the doing of an act is a crime, regardless of the
consent of anyone, the courts are agreed that if the criminal intent originates in the mind of
the accused and the offense is completed, the fact that an opportunity was furnished, or that
the accused is aided in the commission of the crime in order to secure the evidence necessary
to prosecute him therefor, constitutes no defense.
77 Nev. 490, 497 (1961) Wyatt v. State
to prosecute him therefor, constitutes no defense. [Citations.] If the officer uses no more
persuasion than is necessary to an ordinary sale, and the accused is ready and willing to make
the sale, there is no entrapment.' * * * More recently it was held: It is not the entrapment of a
criminal upon which the law frowns, but the seduction of innocent people into a criminal
career by its officers is what is condemned and will not be tolerated. Where an accused has a
preexisting criminal intent, the fact that when solicited by a decoy he committed a crime
raises no inference of unlawful entrapment.' In People v. Bowlby * * * the court pointed out:
It is essential to such a defense that the criminal intent originate with the one who is alleged
to have entrapped defendant and that the crime be induced by him through persuasion or the
like. His merely furnishing the occasion for one engaged in illegal activities to ply his trade
does not amount to entrapment.' * * * Since there was no substantial evidence of entrapment
it was not error to refuse to instruct the jury on that subject.
The cases of People v. Reed, 128 Cal.App.2d 499, 275 P.2d 633, and People v. Ballard,
167 Cal.App.2d 803, 335 P.2d 204, cited by appellant, appear to require a jury instruction
relative to entrapment. We disapprove them, and note that each case cited an earlier decision
of the same court, People v. Alamillo, 113 Cal.App.2d 617, 248 P.2d 421, as authority.
Alamillo affirmed the trial court's refusal to instruct on entrapment. We believe the principle
announced in Alamillo correctly states the law.
Under the circumstances of this case and the authorities cited, we conclude that the trial
court's refusal to grant the requested instruction was not error.
3. Admission of testimony claimed to be hearsay.
The first witness at the trial was one Rouse, an investigator for the California Board of
Medical Examiners. He testified that he assisted the Washoe County District Attorney's office
in investigating appellant. When asked to relate how that came about, he answered: About
the end of 1959, in making this investigation in Shasta County and in talking with the
district attorney up there, the name of Dr.
77 Nev. 490, 498 (1961) Wyatt v. State
in Shasta County and in talking with the district attorney up there, the name of Dr. Wyatt
came up, and in connection with that reference was made or some mention was made of
abortion activity that Dr. Wyatt might be in. Subsequent to that, Dr. Wyatt's name was again
mentioned, this time in the San Francisco Bay Area in this regard.
Appellant's counsel then asked the witness: You indicated that you received some
conversation, or had some conversation with someone in the Bay Area? To which the
witness answered: That's correct.
The following objection was then made: Your honor, undoubtedly this is all hearsay. He
did testify to the fact that he spoke to the Washoe County District Attorney's office, and I
believe that is hearsay. But be that as it may, as to his comment as to some conversation he
had in the Bay Area with a party unknown, it is clearly hearsay.
The objection was overruled on the ground that the witness had not related any
conversation which would be hearsay.
[Headnotes 7, 8]
It is to be noted that no objection was made to the fact that the answer to the first question
mentioned above contained matter which might be prejudicial because of the words abortion
activity. The objection went merely to the fact that the witness had received some
conversation with someone in the Bay Area. A witness in testifying that a conversation had
taken place with a third party testifies to a fact within his knowledge. Such testimony is not
hearsay. The question was meant only to show the reason why the witness had become
associated in an investigation with the Washoe County District Attorney's office, and his
answer gave as a reason that some mention was made of abortion activities that Dr. Wyatt
might be in. The witness was not concerned with the truth or falsity of what was mentioned
but merely the fact that mention of such activity had taken place. This fact was wholly within
his own knowledge and was relevant during his preliminary examination to show his reason
for being associated with the district attorney's office of Washoe County.
77 Nev. 490, 499 (1961) Wyatt v. State
being associated with the district attorney's office of Washoe County. Such evidence is
admitted for such purpose not as hearsay but as original evidence. People v. Henry, 86
Cal.App.2d 785, 195 P.2d 478. In any event, the statement cannot be considered prejudicial in
view of appellant's own admission on cross-examination that his license as a physician and
surgeon had been temporarily revoked in California for abortion.
4. Admission in evidence of Exhibits 1 through 46 obtained on entry without a search
warrant.
In entering appellant's office for the purpose of making the arrest, the arresting officer
Manin had no search warrant. Manin took appellant into his custody and at that time collected
certain medical instruments and other articles that were in the room. When these were about
to be marked for identification, prior to their introduction into evidence through a witness
subsequently to be called, appellant's counsel at that time stated that he wished to interrogate
Manin under a voir dire examination to determine in what manner Manin obtained possession
of the articles. When this examination disclosed that Manin had no search warrant at the time
of entry, appellant's counsel stated: We will interpose an objection on the basis that no
proper warrant of arrest was held by the arresting officers, and, therefore, any introduction of
evidence through this officer relative to evidence he sequestered in the home of Dr. Wyatt is
improper. The objection was overruled because the examination further disclosed that by
means of a radio message transmitted from the home, Manin was notified that appellant was
in the act of committing a felony. The court then stated that the articles would be marked for
identification reserving to counsel the right to object to each one as proposed. The proposed
exhibits were thereupon numbered 1 through 46 and each was identified by Manin. A doctor
then identified each article and its use. Thereupon, the district attorney offered items 1
through 46 in evidence. The following then appears in the record:
Mr. Francovich: Your Honor, we will object to the offer on the basis that all of these
items are not germane to the issue and they are immaterial to the offense that is alleged in
this matter.
77 Nev. 490, 500 (1961) Wyatt v. State
germane to the issue and they are immaterial to the offense that is alleged in this matter. Now,
there are instruments of various kinds here, and I am sure the District Attorney doesn't wish
to indicate by their introduction that all of these instruments and medicines and other matters
were used with regard to the offense alleged that this defendant committed, and on that basis
and on the basis that they lack any materiality to the alleged offense, we will object to the
introduction.
The Court: You may be heard.
Mr. DeLanoy: The State takes the position, your Honor, that each instrument involved
would itself have multiple purposes. However, I think it is only fair to the jury to allow them
to see the instruments, the set-up that the defendant had in this matter, and we have had the
testimony of Dr. Stewart. He said that they are used generally in medical offices, and
particularly some of them in gynecological and obstetrics offices, and he has been specific as
to the use of some of the instruments, and I feel that they are material.
The Court: Some of these offered exhibits are a bit remote, but they do form the entire
picture of the surroundings, the general facts and circumstances and place and locale, so the
objection to the introduction is overruled and they may be admitted in evidence as State's
Exhibits 1 through 46, inclusive.
Mr. Francovich: Your Honor, for the purposes of the record and without attempting to be
argumentative to your Honor's ruling, may I also include this in the objection: That the
matters pertaining to the instruments and medicines and other things that were obtained by
Officer Manin at Crystal Bay, Nevada, in the defendant's home on August 11th, are
objectionable to introduction on the basis that they highly prejudice the doctor in this manner
and they are of a nature that well may be inflammatory to the jury and unduly prejuduced
against this defendant, my purpose merely being I realize your Honor's ruling and I wanted
the record to show that as part of my objection, also.
The Court: You may have the record so show.
77 Nev. 490, 501 (1961) Wyatt v. State
It is to be noted that appellant did not renew his claim that the exhibits were inadmissible
upon the ground of illegal search and seizure. In Kelly v. State, 76 Nev. 65, 348 P.2d 966, we
held that an objection to evidence on a ground not specified in the lower court would not be
considered on appeal. Without intending to modify that holding in any way we deem it
necessary to consider the present assertion that these exhibits should not have been received
in evidence, in view of the decision of the United States Supreme Court in Mapp v. Ohio, 367
U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided on June 19, 1961, and after the judgment of
conviction in the instant case.
Evidence unlawfully obtained through unreasonable searches and seizures is excluded in
the federal courts under U.S. Const. Amend. IV. Before the Mapp case, evidence thus
unlawfully obtained was nevertheless admissible in most state jurisdictions. The Mapp case
holds that all the states are required by reason of the due process clause of the Fourteenth
Amendment, to exclude such evidence from criminal trials in state courts. This case
specifically overrules Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
[Headnote 9]
California overturned its long-established law and adopted the exclusionary rule in People
v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513 (1955). In applying the exclusionary
rule after its adoption the California Supreme Court has greatly broadened the power of the
police to search and make arrests. See 4 U.C.L.A. L.Rev. 252; 9 Stan. L.Rev. 515; 45 Calif.
L.Rev. 50. Even under the exclusionary rule where the search in question is conducted
without a warrant and without requesting permission to enter, the criterion of whether the
search is lawful is its reasonableness. If an arresting officer has reasonable cause
2
to believe
that a felony is being committed, the entry of a person's premises without a warrant for the
purpose of arresting such person as the perpetrator of the crime is not unlawful.
____________________

2
For a definition of reasonable cause see People v. Yet Ning Yee, 145 Cal.App.2d 513, 302 P.2d 616.
77 Nev. 490, 502 (1961) Wyatt v. State
unlawful. People v. Boyles, 45 Cal.2d 652, 290 P.2d 535, 537. There the court stated: It is
settled, however, that reasonable cause to justify an arrest may consist of information
obtained from others and is not limited to evidence that would be admissible at the trial of the
issue of guilt.
[Headnotes 10, 11]
The California Supreme Court held in the Boyles case under a statute identical to the
Nevada statute
3
that when an officer's belief of defendant's guilt is based on reasonable
cause, and a felony has in fact been committed, not only are the requirements of the statute
satisfied, but a search incident to an arrest made before or after the arrest is reasonable. See
People v. Sayles, 140 Cal.App.2d 657, 295 P.2d 579. Articles, which otherwise would be
admissible as evidence, seized as a result of such a search are not to be rejected as evidence
on the ground of an unreasonable search and seizure. People v. Hammond, 54 Cal.2d 846,
357 P.2d 289, 9 Cal.Rptr. 233; DiBella v. United States, 2 Cir., 284 Fed.2d 897. In other
words, evidence obtained during a search without a warrant if the search is incident to a legal
arrest, and so long as the search is in close proximity to the place of defendant's arrest, is not
evidence obtained by an illegal search and seizure. United States v. Rabinowitz, 339 U.S. 56,
70 S.Ct. 430, 94 L.Ed. 653; People v. Gorg, 45 Cal.2d 776, 291 P.2d 469. The Mapp case in
no manner purports to change this rule.
For the reasons hereinabove stated the admission in evidence of Exhibits 1 through 46 was
not error.
5. Convition of attempted abortion without proof of pregnancy.
[Headnote 12]
NRS 201.120 provides in part as follows: Every person who, with intent thereby to
produce the miscarriage of a woman, unless the same is necessary to preserve her life or that
of the child whereof she is pregnant, shall: 1.
____________________

3
NRS 171.235. 1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may,
without a warrant, arrest a person: * * * (c) When a felony has in fact been committed, and he has reasonable
cause for believing the person arrested to have committed it.
77 Nev. 490, 503 (1961) Wyatt v. State
preserve her life or that of the child whereof she is pregnant, shall: 1. Prescribe, supply or
administer to a woman, whether pregnant or not, or advise or cause her to take any medicine,
drug or substance; or 2. Use, or cause to be used, any instrument or other means; shall be
guilty of abortion, * * *.
The indictment charges that appellant did willfully, unlawfully and feloniously and with
the intent to produce the miscarriage of one Grace D. Jose, attempt to use or cause to be used,
certain instruments in and upon the body of said Grace D. Jose, the same not being necessary
to preserve her life.
It is appellant's contention that the word whether pregnant or not appearing in subsection
1 of the statute have no application to subsection 2. With this we do not agree.
Under an identical statute the New York courts have held that a person can be convicted of
attempting to commit the crime of abortion under subsection 2 of the statute, when the
indictment and proof affirmatively show that the subject was not a pregnant woman. People
v. Axelsen, 223 N.Y. 650, 119 N.E. 708; People v. Kellner, 52 N.Y.S.2d 355. See also People
v. Cummings, 141 Cal.App.2d 193, 296 P.2d 610.
There being no error, the order denying a new trial is affirmed.
____________
A SPECIAL SESSION
of the
SUPREME COURT
of the
STATE OF NEVADA
Tuesday, June 6, 1961
77 Nev. 507, 507 (1961) Special Session
SPECIAL SESSION OF SUPREME COURT
Tuesday, June 6, 1961
A special session of the Supreme Court of the State of Nevada, commencing at nine a.m.,
Tuesday, June 6, 1961.
Present: Chief Justice Badt (presiding), Justices McNamee and Thompson; Officers of the
Court; Relatives and Friends
____________
Badt, C. J.:
The Court has convened this morning for the purpose of engaging in a very simple but
very important ceremony, the administering of the Oath of office to a new Justice of this
Court. I use the word important advisedly. I think I can safely say there are very few, if any,
laymen, unless they have made a study of the matter, who have any conception of the
functions of an appellate court of last resort. I think it is true many attorneys do not entirely
appreciate the appellate function of a court of this nature, particularly at a time when public
criticism is rife throughout the nation concerning the decisions of the United States Supreme
Court, in which it is said they are determining matters of policy and that they are judicially
legislating. This Court, throughout all its history, has religiously stayed away from anything
like that. We have recognized the complete supremacy of the Legislature in its field. We have
never investigated the necessity, the advisability, the propriety of legislation in any line,
particularly wherein the Legislature has, under the exercise of its just power, passed
legislation looking toward the protection, the safety and general welfare of the people of the
State of Nevada. We have recognized supremacy in that line, only paying attention to the
possibility of the convincing showing at times where the Legislature may have enacted
legislation beyond the constitutional limitations of the powers of the Legislature. In the same
way, with the great growth of our administrative agencies, we have had the rulings of
those administrative agencies in many cases coming to this Court, and just as we accord
to the courts the absolute right to pass upon questions of fact involved, so when the
rulings of those administrative agencies come to our Court, or through the District Courts,
unless we feel their acts have been the result of capriciousness or whim, we have
consistently sustained those acts.
growth of our administrative agencies, we have had the rulings of those administrative
agencies in many cases coming to this Court, and just as we accord to the courts the absolute
right to pass upon questions of fact involved, so when the rulings of those administrative
agencies come to our Court, or through the District Courts, unless we feel their acts have been
the result of capriciousness or whim, we have consistently sustained those acts. We have not
been hesitant to decide, in come cases, that the findings of administrative bodies have been
capricious, and have set them aside. At the same time, the function of this Court is part of the
great system of the administration of justice throughout the country. This court must decide
cases in accordance with the law of the State, the statutory provisions adopted by the
Legislature, or rules of law enunciated by this Court, where we decide cases in which we
were not convinced compete justice has been had. That is the recognized, the proper function
of a court of this kind in its appellate capacity; and we now welcome to the Court a man
whose mental ability, training and disposition are those such as we find in Judge
ThompsonMr. Thompsonsoon to be Judge, as soon as the Oath is administered.
We have present in Court eminent members of the Bench and Bar of this State. The
President of the Nevada State Bar is out of the State in matters connected with the Sate Bar.
Vice President John C. Bartlett is presently, however, and we would like to hear from him.
Mr. John C. Bartlett (Vice President, State Bar of Nevada):
May it please this Honorable Court, ladies and gentlemen:
At the time the news became public that Miles Pike had resigned and Gordon Thompson
had been appointed to this Court, I was on what we might say circuit, trying cases first in
Tonopah and then in Las Vegas and, in the course of being on circuit I had occasion to talk
with my fellow members of the State Bar and Court attachs regarding the matter of
Judge Pike's resignation and I found a unanimity of regret at the fact the Supreme Court
was losing him.
with my fellow members of the State Bar and Court attachs regarding the matter of Judge
Pike's resignation and I found a unanimity of regret at the fact the Supreme Court was losing
him. I also discussed the appointment of Gordon and found a unanimity of opinion of
approval at this appointment.
Now, most of you here are either lawyers or you know quite a bit about lawyers, and you
know that unanimity of opinion is not one of our characteristics. We generally find something
to disagree about, no matter what the subject may be. So even though I have known Gordon
for many years and have a deep and abiding affection for him, I was compelled to ponder
briefly what would bring about this unanimous approval among his fellow attorneys.
In order to analyze that question, I tried to think What qualities do we normally seek in a
man who is going to be appointed a Supreme Court Justice?
I thought first and foremost he must be a man who is dedicated to principle. He must be
dedicated to principle for many reasons. In the first place his personal life must be at a high
principle level because, although our courts are criticized as Mr. Justice Badt has pointed out,
generally the criticism is by those who do not fully understand the workings of the Court and
the problems it faces. But most people, I think, look up to the members of this Court with a
great deal of respect, almost amounting to reverence.
Second, and from a lawyer's standpoint, he must follow principle, because that is perhaps
most important to those who are not really litigants in this Court. It is important, of course,
for the litigants to have this Court follow principle, because they have been defended here
based upon what some lawyers thought were principles of law and there is a disagreement
and this Court has to decide it. But a more important reason for this Court establishing a
principle in these decisions is the guidance they give to future litigants and lawyers who can
advise people who, for one reason or another, do not desire to become litigants. It is only if
we can find an established principle and be assured as to what is going to follow that we can
properly advise our clients and properly prepare our cases if we have to litigate.
going to follow that we can properly advise our clients and properly prepare our cases if we
have to litigate.
I thought about Gordon in this light and the thought occurred to me what better
qualification could any man have for being dedicated to principle than to be born into the
family of Dean and Mrs. Thompson. I think in that home from an early age he not only was
taught to live by principle but he was given an example of a life dedicated to principle. I think
when you add to that fine beginning his excellent legal training in a small Peninsula law
school (here Mr. Bartlett smilingly refers to Stanford Law School), and his training both in
the practice of law in public office and privately, you will find this quality in Gordon
developed to the highest possible degree.
Next, I thought a Judge of the Supreme Court should be a man of considerable experience,
not in just one field of law but in many fields of law. So I thought back over Gordon's career
as a lawyer and as a public servant. He was in the Legislature. He was a School Board
Trustee. I believe he started his private practice being associated with Douglas Busey and
Tom Craven. When he started with them, these two men were relatively young men with a
great deal of experience, and I am sure Gordon benefited from his association with them.
He was next appointed to be Assistant District Attorney of Washoe County. I might
mention that the entire staff he started with in that office in 1947 is present here this morning,
with the exception of one Secretary who is having stork trouble in her home, and she would
like to be here and she wishes him well. In the District Attorney's office, I am sure, because I
was there with him, Gordon learned the importance of treating the problems of small people
with full attention. Even though their problems may, in the abstract, seem to be small, to
those involved they may be just as big as though they concerned a suit by a large corporation
involving a lot of money or other things of substantial material value. It was a sort of a public
service office for people who have problems which, to them, are of great magnitude.
Furthermore, I think in the District Attorney's office you learn to have a feeling of solemn
responsibility when dealing with people's lives and liberties; that is an experience you can
only learn in that particular office and it should be of immeasurable value to Gordon in
this office which he is now about to undertake.
Attorney's office you learn to have a feeling of solemn responsibility when dealing with
people's lives and liberties; that is an experience you can only learn in that particular office
and it should be of immeasurable value to Gordon in this office which he is now about to
undertake.
From the District Attorney's office he then went to the former firm of Woodburn, Forman,
and Woodburn, which is now the firm of Woodburn, Forman, Wedge, Blakey and Thompson.
I suppose they will have to eliminate that last name now. There he received a vast amount of
experience in the field of torts, a very active field of law at the present time, and a very varied
experience in dealing with problems of corporations, large and small, and people, large and
small.
So I think you can honestly say that, for a man of his relatively brief professional lifetime,
Gordon has had as much experience as any member of the State Bar of Nevada.
The next trait I thought such a man must possess is the trait of courage. It takes a little
different kind of courage to be a Supreme Court Justice than it takes to be a boxer or a
soldier. I think it goes more to your moral fiber, because it is the type of courage you have to
have to make a decision in which you believe as a matter of principle, knowing full well
when you make this decision it is going to be very unpopular with the public, and
nevertheless without fear or favor you go ahead and so decide. All of us that have known
Gordon and his stands on matters coming before the Board of Governors of the State Bar, and
matters that came before him when he was on the School Board, have no fear that he does not
posses that kind of courage.
I thought next of the quality of humility, which I took the trouble to look up. It is defined
as a modest estimate of one's own worth. Those of us that have had the misfortune to tangle
with Gordon in the courtroom, and lose, certainly know that he possesses that quality at this
time. I think that quality is particularly important in a Judge of this Court because of the
tremendous power this Court possesses. I think, as the years go by, some Justices, present
company excepted, become rather dictatorial in their beliefs; in other words, they feel
they are more right than anybody at the Bar because they have been at the Bench longer.
by, some Justices, present company excepted, become rather dictatorial in their beliefs; in
other words, they feel they are more right than anybody at the Bar because they have been at
the Bench longer. I don't have any fear Gordon will ever lose his humility. I think if he had
any thoughts of changing he could well remember the time he resigned from the District
Attorney's office to go with the Woodburn firm, at which time we replaced him with a very
capable, young, efficient Secretary, rather than a new District Attorney. (Laughter from the
audience.)
There are many other qualities, judicial qualities, that Gordon possesses, and I am sure that
you all know of them. So I won't labor the point further.
Gordon, on behalf of the Board of Governors of the State Bar of Nevada, I want to
welcome you to your new high office, with enthusiasm and with confidence; with enthusiasm
in the fact we all know you have the high qualities necessary to make a good Justice, and
confidence in the fact we know you are going to use these qualities well, and when your
record on the Supreme Court is read by future generations they are going to say, There was a
fine Justice.
(Mr. Bartlett concludes.)
Badt, C. J.:
Thank you, Mr. Bartlett.
We have with us today the President of the Washoe County Bar Association, an
organization of which the Bar of this State and the Bench of this State has always been very
proud, by reason of its high character. Mr. Robert Taylor Adams, President of the Washoe
County Bar Association.
Mr. Robert Taylor Adams (President, Washoe County Bar Association):
Chief Justice Badt, Justice McNamee, Gordon Thompson, Esq., and Ladies and
Gentlemen:
First may I say that the Washoe County Bar Association is very much pleased to see you
back sitting on the Bench, Judge Badt; and on this particular occasion when we are
celebrating the elevation of Gordon Thompson as a member of this Court.
the Bench, Judge Badt; and on this particular occasion when we are celebrating the elevation
of Gordon Thompson as a member of this Court.
I was asked to say a few things. I first thought in terms of contrast, of transition, and I
talked with Gordon and Gordon's friends, his associates, and the rest, thinking of the
transition from Gordon Thompson, Esquire to Judge Gordon Thompson. There were, I found,
some things, some incidents, perhaps, which might illustrate that transition, that contrast. One
which Gordon himself was telling me about was greatly exaggerated in the newspapers, when
he was in the District Attorney's office. According to the newspapers, a lady wrestler was
demonstrating a hold and threw him into the jury box. Actually that didn't happen. The lady
wrestler simply demonstrated the hold. But there would have been a contrast in the aspect of
dignity from then to now. The more I thought of this matter of Gordon's becoming a Judge,
the more I realized that, although there is a transition in the assumption of office and the
undertaking of new duties, from the viewpoint of personality, of character, there really is no
transition at all. By that I mean the things that are expected of a Judge, the things that John
Bartlett spoke of, we have in a very large measure in Gordon and have had them for a long
time.
I asked Gordon when he thought of becoming a Judge and he said, well, he didn't
remember exactly, probably in law school. Those things that go to make up the character, the
abilities of a Judge, this particular audience here knows very well. Also, as I look around, I
see that all of us know Gordon personally quite well. There are one or two things about him
which are of great interest in the light of his becoming a Judge. They are not things we did
not know. We knew these things, but they are so relevant, so important, as Judge Badt said,
that I will mention them very briefly.
We are fortunate in the simple fact that Gordon knows the State of Nevada. I mean he was
raised here; his family was raised here. He married Betty Ricker and has two lovely children;
he has lived his life here. I think that is going to be helpful to him as a Judge in this
particular State of Nevada.
think that is going to be helpful to him as a Judge in this particular State of Nevada. The
background of his family, of which we are indirectly proud, contributed, I think, a certain
amount to his being well qualified. It gave approval to intellectual activity. There was not
only the fine character of the family, but the approval of intellectual activity and this, we
assume, (Mr. Adams now speaks smilingly) was developed further in a small Peninsula
college. At least we know that a sound understanding of the theories which he will have to
use and apply here as a Judge was certainly gained.
John (referring to the previous speaker, Mr. Bartlett) mentioned the matter of courage and
he has expressed it better than I can. I was thinking of the idea that every lawyer's experience
contributes to his future practice. I never saw Gordon play basketball at the University of
Nevada, but I know he was on the team for three years and I think perhaps the experience of
competitive sport has been carried over to Gordon the lawyer, and each of us who has
practiced against him knows very well his competitive aggressive spirit.
The legal experience was also covered by Mr. Bartlett. I would like to emphasize one point
on the experience, that it has been broad. It has been on both sides of the fence, not only in
criminal cases, Gordon having been in the District Attorney's office, but in all types of civil
cases. I know Gordon has represented both plaintiff and defendant, and his variety of
experience is such as will give a broad understanding as a Judge. His extensive activity as a
trial lawyer will certainly provide a very necessary background for his decisions on this
bench.
One very interesting thing to lawyers about Gordon is the quality which he has of relevant
thinking. All of us, I am afraid, depart from that kind of thinking from time to time, and the
one time it should not be departed from is in the practice of law and, above all, when sitting
as a Judge. We know Gordon has a good mind. We know how likable he is. We know he has
experience. But those of you who have not known him as a lawyer will perhaps not realize
the really keen sense of relevance which he has.
has. It is said that lawyers should be experts in relevance; Gordon is such an expert. The
complete integrity of this man has been mentioned, his charm, his good judgment, his
inclination to see both sides of a problem, and the quiet passion, shall we say, to see that
justice is done. These things are in Gordon who is about to become one of the members of
our Supreme Court.
Yes, Gordon has faults, but I found it difficult to think what they were; I don't say they
don't exist. I would say, simply, that in reviewing the character, the abilities, of this man as a
Judge and as a lawyer, the faults did not appear, and they didn't come to the mind of anyone
with whom I talked. Of course, it has been a matter of great interest to the members of the
Washoe County Bar Association that one of us has been elevated to the Supreme Court. None
of them seemed to find a fault in Gordon. There was not a single exception.
So, Gordon Thompson, Esquire, in behalf of the Washoe County Bar Association, we
congratulate you, and we congratulate ourselves. We are happy that you are sitting where you
are today.
(Mr. Robert Taylor Adams concludes.)
Badt, C. J.:
Thank you, Mr. Adams.
We have a little association for the First District here, comprising five counties. On the
occasions that it has been before us, it has been affectionately referred to as the Disorganized
Bar of the First District. It has no dues, no officers, no board of directors, no constitution, no
bylaws; they are the Disorganized Bar of the First District Representing the Disorganized
Bar of the First District today we have present Mr. Homer Angelo.
Mr. Homer Angelo:
Mr. Chief Justice, Justice McNamee, Mr. soon-to-be Justice Thompson, Members of the
Bar, and Friends:
One of the great traditions of the West is to honor the independence of the legal profession
and we of our small group of lawyers in the First Judicial District think we are one of the
last outposts of the embattled tradition of independence and democracy in an
over-bureaucratized world.
group of lawyers in the First Judicial District think we are one of the last outposts of the
embattled tradition of independence and democracy in an over-bureaucratized world. As
Judge Badt has said, we have no organization, no dues, no bylaws, no officers, no system
whatsoever, and I think that is epitomized by the fact that to speak today on behalf of our
group the Court chose the one person who is here the least often. We have other elements of
democracy, I think Mr. justice Thompson will soon learn. He has been among us often in this
district, usually giving us lessons in courtroom practice and procedure. He is now welcome as
an associate member of our Disorganized Bar Association to attend our occasional
meetings; and the epitome of our democracy, Mr. Justice Thompson, is that you will be
permitted to pay for your own dinner. (Laughter from the audience.)
I think all of us in this room will agree one of the key elements of our American life and
the law profession is the integrity and independence we have. The world is becoming
over-organized and complex and there are very few of us who still can stand on our own feet.
We of our First Judicial District Bar believe we, as individuals, are doing this, and we are
proud that, over decades, the Supreme Court of the State of Nevada has stood for that same
principle. We have had customarily as members of our Court lawyers who have been in
practice on their own a great deal, and who through the trials of life as individuals and their
conduct on the Bench, reflect that understanding and dedication to principle. We were happy
when Mr. Justice Pike came to join Justice Badt and Justice McNamee on the Bench and,
although we are sorry to see Jack Pike leave us, we join in the enthusiasm expressed by Mr.
Bartlett and Mr. Adams for the elevation of Gordon Thompson to that position. Gordon's
record and his attainments have been well recounted by those speaking before me, so I will do
no more than come to the point and welcome you on behalf of the First Judicial District
Disorganized Bar, and the community of Carson City and Ormsby County.
(Mr. Angelo concludes.)
Badt, C. J.:
Thank you, Mr. Angelo.
We are honored in having present here today the Attorney General of the State of Nevada,
who comes from Las Vegas, so he will also speak for the Clark County Bar
AssociationAttorney General Foley.
Attorney General Roger D. Foley:
May it please the Court, Ladies and Gentlemen:
Nearly 25 years ago I first became acquainted with Gordon Thompson, while a student at
the University of Nevada, and during those years I, like many students before and after me,
had the rich and rewarding experience of having known and having been educated by the late
Dean Thompson. Dean Thompson was a brilliant scholar, a dedicated educator and, I think, a
humble and kindly man. It is easy to see, from this point of view, that had Dean Thompson
gone into commercial pursuits, with his great ability, he would have amassed a fortune.
It is not surprising, then, that this morning we witness his son, Gordon, who, after an
excellent career as a prosecuting attorney and as a private practitioner, willingly gives up a
lucrative partnership in one of Nevada's largest law firms to assume the black robes of the
Supreme Court. He joins on the Bench two men who, like himself, are dedicated to public
service. When we look back over the years that Justice Badt and Justice McNamee have
served on the Judiciary, realizing the income they have received over that period of time
compared to what they might have earned as practicing attorneys, knowing their abilities, all
of us as members of the Bar can indeed be proud of this dedication to public service.
As Attorney General, on behalf of my staff, and as a representative of the Clark County
Bar Association, and as a personal friend, Gordon, we salute you; may God bless you, and I
know you will enjoy a long and wonderful career on this Court.
Thank you.
(Attorney General Foley concludes.)
Badt, C. J.:
Thank you, General Foley.
There are many other eminent members of the Bench and Bar in the Courtroom today. By
my not calling particularly on any one of them, I don't want to foreclose their comments; they
are welcome to address the Court on this occasion and they are now invited to do so
(smilingly), having in mind, of course, the fact that we do have a session of Court at ten
o'clock this morning. (Laughter from the audience, but no one comes forward in response to
the invitation of the Chief Justice.)
Badt, C. J.:
Mr. Justice McNamee, with me, has had the opportunity over these past years of reading
the briefs written by Mr. Thompson and of hearing arguments in this Court on many, many
occasions by Mr. Thompson. We both have had an immediate opportunity to gauge his value
and his worth.
I am sure we would like to hear from Mr. Justice McNamee.
McNamee, J.:
Mr. Chief Justice Badt, Members of the Bench and Bar, Ladies and Gentlemen:
My association with Gordon, over the past years, has been most pleasant. In Reno during
the times I held Court there as a District Judge I always found him a very competent advocate
and that is an attribute of a lawyer because the work of a Judge is made easy if he has a
person before him who knows the law and gets quickly to the point in question.
On the Supreme Court we have had a different approach. First we have read his scholarly
briefs and then we heard his able arguments before us, presented with calm dignity. It was
always a pleasure to have him in this Court as an advocate. The same courtesy he rendered to
the Court during those times, I am sure the advocates before him in the future will
receive.
rendered to the Court during those times, I am sure the advocates before him in the future will
receive.
Now the Chief Justice and I are most happy to have Gordon Thompson as our associate on
this Court and we welcome you today, Gordon, as a member of the Supreme Court of the
State of Nevada.
(Mr. Justice McNamee concludes.)
Badt, C. J.:
Thank you, Judge McNamee.
For me to add anything further at this time would simply be surplusage and I refrain from
doing so.
At this time I shall administer the Oath of Office to you as an incoming officer.
Mr. Bailiff
(The Bailiff raps his gavel, all present in the Courtroom arise, and the Oath of Office of
Justice of the Supreme Court of Nevada is administered to Mr. Justice Thompson by Chief
Justice Badt.)
Badt, C. J.:
You (addressing Mr. Justice Thompson, after administering the Oath of Office) will also
sign that Oath of Office, on the back of your Commission, for filing with the Clerk of this
Court.
It Is Ordered that these proceedings be spread upon the minutes of the Court and published
in the next volume of the Nevada Reports, and a copy of the proceedings to be furnished to
Mr. Justice Thompson.
If there is nothing further, then, Court will be in recess until ten o'clock this morning.
(Whereupon Court recessed at 9:40 a.m.)
Anna Rebol, Official Reporter.
____________

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