nevada reports 1928-1929 (51 nev.).pdf

��51 Nev. 1, 1 (1928) Hunt v. Johnston��

HUNT v. JOHNSTON

No. 2779

May 1, 1928. 266 P. 916.

1. Appeal and Error—Judgment Against Corporation's Manager for Services Rendered

Corporation Was Required To Be Affirmed Regardless of Pleadings, where Undisputed

Proof Showed Defendant Guaranteed Debt. In action against president and general manager of corporation for services rendered corporation,

judgment for plaintiff rendered on theory that defendant and corporation were identical would not be

reversed, under Rev. Laws, sec. 5066, where undisputed proof showed that defendant had guaranteed

debt in writing, even though pleadings were defective, since in any event plaintiff was entitled to recover

from defendant on his written guaranty.

2. Appeal and Error—Plaintiff's Pleadings in Suit Against Manager for Services Rendered

Corporation Held Subject to Amendment on Appeal to Conform to Evidence Defendant

Guaranteed Debt. In action to recover from corporation's manager under contract of employment for services actually

rendered corporation, in which recovery was allowed plaintiff on theory of identity of corporation and

defendant, amendment of pleadings could be allowed on appeal in accordance with undisputed proof to

effect that the defendant had, in writing, guaranteed the debt, under Rev. Laws, sec. 5066,

notwithstanding alleged inconsistency of causes of action.

C.J.—CYC. REFERENCES

Appeal and Error—4 C.J. sec. 2640, p. 723, n.89; sec. 3196, p. 1170, n. 33.

Pleading—31 Cyc. p. 151, n. 33.

Appeal from Second Judicial District Court, Washoe County; G.A. Ballard, Judge.

Action by R.G. Hunt against E.W. Johnston. From a judgment in favor of the plaintiff the

defendant appeals. Affirmed.

James D. Finch, for Appellant:

While the defendant Hunt denied that he was employed by the corporation, yet the

documentary evidence, which was admitted without contradiction or objection, shows

conclusively that he was so employed, and is supported by the oral testimony of both

appellant and respondent.

The amendment to the complaint offered by respondent was too late for the reason that the

respondent ��


had the letter alleged to be a guaranty of payment in his possession for a long time prior to the

trial of this action. 16 Cyc. 340; Wright v. Frank, 61 Miss. 32 (cited in 16 Cyc. 340, note 5);

Keller v. Blasdel, 2 Nev. 162; 31 Cyc. 393; 31 Cyc. 391; Hays v. Turner, 23 Iowa, 214 (cited

in 31 Cyc. 409); Cole v. Thompson, 134 Iowa, 685, 112 N.W. 178, 31 Cyc. 410; Saltus v.

Genin, 16 N.Y. Sup. Ct. (3 Bosw.) 639, 17 How. Prac. 390.

The proposed amendment to the complaint was not made in compliance with the provision

of sec. 5084, Revised Laws of Nevada, 1912.

The alleged promise of Johnston to pay the alleged debt of Long Valley Land &

Development Company to Hunt is void under the statute of frauds because the consideration

for the alleged promise is not expressed in the writing. (See sec. 1075, Rev. Laws of Nevada,

1912.)

Appellant was necessarily the agent of said corporation in all his dealings with Hunt, and

Hunt could not charge appellant personally. Johnson v. Armstrong, 83 Tex. 325, 29 Am. St.

Rep. 648; 185 N.W. 594, cited in 4 Fletcher Cyc. Corps., sec. 2522.

Barry & Barry, for Respondent:

It is well settled that where there is a conflict in the testimony the appellate court will not

disturb the finding, and that where there is any testimony to support a finding the appellate

court will leave it to the trial court. See Anderson v. Feutsch, 31 Nev. 501; Tonopah L.

Company v. Riley, 30 Nev. 312; Wiggins v. Pradere, 32 Nev. 183; McNee v. McNee, 49 Nev.

90.

It appears from the decision that the trial court never did allow the offered amendment to the

complaint.

OPINION

By the Court, Coleman, J.:

This is an action to recover under a contract of employment for services rendered. From a

judgment � ��


in favor of the plaintiff the defendant has appealed.

The theory of the defendant is that the plaintiff actually rendered to the Long Valley Land

& Development Company the services for which recovery is sought instead of to him. He was

at all times mentioned in the proceedings the president and general manager of the company

and owned personally some property in the vicinity in which the property owned by the

company was situated.

The trial judge took the view that Johnston was the company. In his opinion the trial judge

said:

“This case is unique in that it exhibits the facility with which individual and corporate

entities and business can be confounded when the corporation is little more than a diaphanous

garment covering the figure of its dominant component.”

It seems that the defendant put up from private funds every dollar that went into the

company during its operations while the plaintiff was employed, and he admitted that he

owned most of the stock of the company.

It is clear that the company owned a large amount of property and that substantially all of

the work done by the plaintiff was upon the property of the company, and we are frank to say

that if the case had been before us for determination in the first instance we are strongly

inclined to think we would have made findings contrary to those made by the trial judge;

however, there is evidence in support of the findings and judgment.

1. But if we were to reverse the judgment it would be at the cost of the appellant and with

an order directing an amendment in accordance with the undisputed proof to the effect that

the defendant had in writing guaranteed the debt. It would be our duty to do this in pursuance

of Rev. Laws, 5066, which provides:

“The court shall, in every stage of an action, disregard any error or defect in the pleadings

or proceedings, which shall not affect the substantial rights of the parties; and no judgment

shall be reversed or affected by reason of such error or defect.”


In view of the written guarantee no substantial injustice was done the defendant by the

rendition of the particular judgment, and it is the spirit of the statute that no judgment shall be

reversed for a mere technical error when substantial justice has been done.

2. There is nothing to appellant's contention that the proposed amendment is inconsistent

and hence could not be properly allowed. The following language of Sanders, J., in Nelson v.

Smith, 42 Nev. 302, 176 P. 261, disposes of the point:

“Some courts hold that inconsistent causes of action and defenses cannot be pleaded, but

that ruling is based upon the theory that one or the other must be false, and that the pleader

ought to know which is true and which is false, and that he should be compelled to choose

between them; and it has been squarely held by this court that a party may plead inconsistent

defenses, provided they are not so incompatible as to render one or the other absolutely false.

Clarke v. Lyon County, 7 Nev. 81. We think the rule is sustained by both reason and

authority, and see no reason for repudiating the rule heretofore adopted. See, also, 31 Cyc. pp.

150-152.”

It is ordered that the judgment be affirmed. Respondent to recover his costs.

On Petition for Rehearing

May 29, 1928.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 5, 5 (1928) Long Valley Land & Dev. Co. v. Hunt��

LONG VALLEY LAND & DEVELOPMENT CO. v. HUNT

No. 2780

May 1, 1928. 266 P. 917.

1. Account—Burden of Proof to Show Correctness of Account Rests on Person Making it, in

Action to Compel Accounting. In action for an accounting, burden of proof to show correctness of account rests upon person making

the accounting, and not on the plaintiff.

2. Appeal and Error—Erroneous and Prejudicial Conclusion Reached by Misapplication of

Rule of Law or Error in Placing Burden of Proof Requires Reversal.


Accounts and Accounting—1 C.J. sec. 129, p. 643, n. 22.

Appeal and Error—4 C.J. sec. 2948, p. 964, n. 80.

Appeal from Second Judicial District Court, Washoe County, G.A. Ballard, Judge.

Action by Long Valley Land & Development Company, a corporation, against R.G. Hunt.

From a judgment in favor of the defendant the plaintiff appeals. Reversed.

James D. Finch, for Appellant:

When the defendant has been ordered to account or voluntarily, as in this case, renders it,

the burden is on him to establish its correctness.

The court's findings and judgment are nothing else but a finding and judgment that the

defendant Hunt rendered an account. This action was not simply for the rendering of an

account, but was for judgment for any balance found due. The court has failed to find any

balance due either party. Surely the accounts are not even. See Polhemus v. Carpenter, 42

Cal. 375; Ladd v. Tully, 51 Cal. 277; Morenhout v. Barron, 42 Cal. 591; Devoe v. Devoe, 51

Cal. 543; Allison v. Darton, 24 Mo. 343; Farrar v. Lyon, 19 Mo. 122; Bosquett v. Crane, 51

Cal. 505; Rice v. Inskeep, 34 Cal. 225; Bradbury v. Cronise, 46 Cal. 287; McDonald v. M.V.

Homestead Assn., 51 Cal. 210; Snodgrass v. Carlson (Kans.) 232 P. 241; Chetwood v. Calif.

Nat. Bank, 45 P. 407; Baird v. Upper Canal Irr. Co., 257 P. 1060.


Barry & Barry, for Respondent:

The court found that the defendant rendered an account to plaintiff and that nothing was

found to be due to plaintiff.

The only point we can make out of this appeal is insufficiency of the evidence to support the

finding of the court. It is an elementary principle of law that where there is a conflict of

testimony, or any testimony to support the findings, the appellate court will not disturb them.

Anderson v. Feutsch, 31 Nev. 501; Tonopah L. Company v. Riley, 30 Nev. 312; Wiggins v.

Pradere, 32 Nev. 183; McNee v. McNee, 49 Nev. 90.

OPINION


This is a companion case to Hunt v. Johnston, No. 2779, this day decided. It is an action

for an accounting. The defendant filed an account.

After the evidence was taken the learned judge filed his written decision and ordered

judgment in favor of the defendant. In his written opinion he said:

“The defendant rendered an account which is attempted to be falsified in certain

particulars. The evidence in this respect is too vague and indefinite to sustain the burden of

proof. While suspicion is cast on a few items the court cannot of course elevate these to the

dignity of facts, or if it did do so determine the incorrectness in dollars and cents.”

1. From this as well as from the findings it clearly appears that the court took the view that

the burden of proof was upon the plaintiff to show the incorrectness of the account. Such is

not the law. The burden rests upon the person accounting. Marvin v. Brooks, 94 N.Y. 71;

Thatcher v. Hayes, 54 Mich. 184, 19 N.W. 946; Fox v. Hall, 164 Cal. 287, 128 P. 749; 1 C.J.

643.

2. When a court reaches an erroneous and prejudicial conclusion by a misapplication of a

rule of law, or by erroneously placing the burden of proof upon the losing party, particularly

where the evidence is about ��


evenly balanced as in instant case, no course is open but to reverse the judgment.

It is ordered that the judgment and order be reversed, with costs.


August 7, 1928.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 7, 7 (1928) Menteberry v. Giacometto��

MENTEBERRY v. GIACOMETTO

No. 2773

May 2, 1928. 267 P. 49.

1. Statutes—Construction of Statute by Courts of Another State Before Its Enactment by

Legislature of this State, though Not Conclusive, Is Very Persuasive. Construction given to a statute of another state by courts of that state before statute was adopted by

legislature of this state, though not conclusive on courts of this state, is very persuasive, especially where

construction is reasonable, fair, and just.

2. Taxation—No Notice of Sale of Realty for Delinquent Taxes Is Necessary, in Absence of

Statute. In absence of statute, no notice of sale of realty for delinquent taxes is necessary.

3. Constitutional Law—Taxation—Statute Prescribing when Property Shall Be Sold for

Delinquent Taxes Held Sufficient Notice of Time of Sale Without Publication of

Notice to Satisfy “Due Process of Law.” Stats. 1919, chap. 229, sec. 3, expressly providing exactly when property shall be sold for delinquent

taxes, gives sufficient notice without further publication of notice of time of sale, as required therein, to

constitute “due process of law.”

4. Courts—United States Supreme Court's Determination of what Constitutes Due Process of

Law Is Binding on State Courts. Determination of United States Supreme Court as to what constitutes due process of law is binding on

state courts.

5. Taxation—Publishing First Notice of Tax Sale Less Than 25 Days Before Sale Held Not to

Invalidate Sale. Publishing first notice of tax sale less than the 25 days before date fixed for such sale required by

Stats. 1919, chap. 229, sec. 3, held not to invalidate sale under Stats. 1923, chap. 203, sec. 3, providing

that no tax assessed on property or sale ��


thereof shall be held invalid because of irregularity, informality, omission, mistake, or want of any matter

of form or substance in any proceeding which legislature might have dispensed with in the first place, and

which does not affect substantial property rights of taxpayer.


Courts—15 C.J. sec. 317, p. 930, n. 74; sec. 318, p. 932, n. 84.

Statutes—36 Cyc. p. 1154, n. 81.

Taxation—37 Cyc. p. 1324, n. 13; p. 1479, n. 88.

Appeal from Sixth Judicial District Court, Humboldt County, L.O. Hawkins, Judge.

Action by John Menteberry against P.L. Giacometto and another. Judgment for plaintiff,

and named defendant appeals. Reversed.

Campbell & Robins and J.T. Dunn, for Appellant:

The omission to publish a proper notice of a tax sale for the full twenty-five days, required

by the act of 1919, page 413, was cured by the act of 1923, page 361. The question is, could

the legislature have fixed a shorter time than a twenty-five days' notice previous to the sale,

and still be within the constitution. Other states, having constitutions similar to ours, have

provided for a notice as short as five days before the sale, and we have been unable to find

any decision which holds that such a short notice is violative of any constitutional provision

or of the “due process” clause of the fourteenth amendment to the federal constitution.

By the act of 1923 the burden of showing the invalidity of a tax deed was shifted to the

shoulders of the taxpayer, or the person who sought to void the deed. In addition, the same act

went farther and sought by its curative provisions to set at rest tax titles, which might be

based upon the nonobservance by the taxing officials of certain technical proceedings. It

sought to accomplish that purpose of repose in tax titles, by denying to possible objectors the

right to set such deeds aside, unless they could show that their “substantial property rights”

had been affected.

The statute, of which Croteau is conclusively presumed to have notice, advised him that on

the third � �� !��


Monday of July, 1924, his property would be sold for taxes if he did not pay them. He failed

to pay the taxes, and at the time designated by law the proper official at the proper place sold

the property as prescribed by law. A whole year went by, the mortgage fell due in December,

1924, and still neither Croteau nor his mortgagee made any effort to redeem the property.

Thos. A. Brandon, for Respondent:

Respondent takes the liberty of adopting all of the discussions and citations of authorities

found in the decision of the trial judge.

It was the clear intention of the legislature of this state that in the event of the overthrow

and destruction of any of the presumptive provisions of the act of 1923, that the tax deed

should thereupon be declared void. It is hardly probable that a court would declare to be

conclusive that which the legislature has declared to be presumptive.

We do not agree with counsel that every one is conclusively presumed to know the law.

But we know of no reason why public officers should not be conclusively presumed to know

the law, from which it would follow that every error made by them would be an intentional

error, would be a fraud and not a mistake. The same principle would also apply to a purchaser

at a tax sale, as the defendant Giacometto was in this case, and it would then follow that he

was in no sense an innocent purchaser, but knew of the defect in his title when he took it. We

do not believe that any one will be deprived of his rights or his property on a mere

presumption of knowledge of the law.

While the publication of the notice of the sale was for the benefit of Croteau and his

mortgagee, it was also for the benefit of the public at large, and the court will conclusively

presume that a defective notice and publication thereof, as was given in the present case,

never fulfilled its legal purpose in these respects.

The legislature has provided the machinery for the assessment and collection of taxes, and

it is the duty ��


of the courts to see that that machinery is not twisted and contorted from its original purpose

in such a manner as to endanger the rights of property owners. We can cite nothing in the act

of 1923 which in any way modifies or repeals the act of 1919, and it is certain that the latter

act is mandatory in all of its provisions. Will an act general in its nature, not specific in its

terms, and containing nothing to show such an intent, be held to repeal or modify an act

which is specific and undoubtedly mandatory in its nature?

We have scanned and studied the act of 1923 very closely, and nowhere do we find that

that act makes the tax deed conclusive evidence of the giving of legal notice of sale for taxes.

California has held, and we believe that any other jurisdiction would hold, that the

language “that at a proper time and place the property was sold as prescribed by law,” as used

in the act of 1923, unquestionably includes the publication of the notice of sale and all other

steps required by the statute directly concerning the sale for taxes. To our mind there is no

escape from the plain meaning of the words “as prescribed by law.”

OPINION


This is an action to foreclose a real estate mortgage executed by defendant Croteau, to

quiet plaintiff's title as against defendant Giacometto, the holder of a tax deed to the property.

The defendant Croteau filed written consent that judgment might be taken against him.

Defendant Giacometto answered, pleading his tax deed. The plaintiff filed a reply alleging

certain facts which, it is stated, show the tax deed to be void. Judgment was rendered for the

plaintiff. Giacometto has appealed. The parties will be referred to as plaintiff and defendant.

It is not necessary that we make a detailed statement of the facts, since the only questions

involved pertain to the sufficiency of the notice of sale given by the county treasurer.


The statute provides that immediately after the second Monday in June of each year the

county treasurer shall advertise for sale all property upon which taxes in amount not to exceed

$300 are delinquent, to be held on the third Monday in July next succeeding. That such notice

of sale shall be advertised in a newspaper, if there be one in the county, at least once a week

from the date thereof until the time of sale; and that such notice shall be published at least 25

days prior to the date of sale—

“and shall specify and give:

“First—The name of the owner, if known.

“Second—The amount of taxes due from him, together with the penalty and costs.

“Third—The description of the property on which such taxes are a lien and which will be

sold for the payment thereof.

“Fourth—And that ten (10%) per cent on such taxes and cost of advertising will be

collected in addition to the original tax, or the property sold for all of said sums. * * *” Stats.

1919, p. 413, sec. 3.

The taxes on the property in question for 1923 became delinquent in the sum of $52.81,

including penalties, and was subject to be advertised for sale after the second Monday in

June, 1924, to be held on the third Monday in July, 1924, which was the 25th day of that

month. The county treasurer caused to be published a notice of the sale of said property, to be

held on July 25, 1924, which appeared in the newspaper on June 28, July 1, and July 8, 1924.

Upon discovery of the error in the date of sale, which, under the law, had to be on the third

Monday in July, which fell on the 21st instead of the 25th, the notice was corrected to read

that the sale would be made on the 21st. The corrected notice was published July 12, 15 and

19, 1924. On July 21 the county treasurer offered the property for sale, at which time the

defendant became the purchaser, and in due time obtained a deed from the treasurer therefor.

It is the contention of the plaintiff that the sale and subsequent proceedings are void

because the law in reference to the giving of notice was not complied with.


It is said by the defendant that it was formerly the law of this state that, when a tax deed

was relied upon, the burden of proving the regularity of every step in the proceedings leading

up to the execution and delivery of the deed was upon the holder thereof (State v. W.U. Tel.

Co., 4 Nev. 347; Ward v. Carson River etc., 13 Nev. 59; State v. Nev. Cent. Ry., 26 Nev. 265,

68 P. 294, 69 P. 1042), but that such is no longer the rule since the enactment of section 41,

Stats. 1923, p. 361, from which we quote:

“All such deeds, whether heretofore or hereafter issued, are primary evidence that the

property was assessed as required by law; that the property was equalized as required by law;

that the taxes were levied in accordance with law; that the taxes were not paid; that at a

proper time and place the property was sold as prescribed by law, and by the proper officer;

that the property was not redeemed; that the person who executed the deed was the proper

officer; that where the real estate was sold to pay taxes on personal property, the real estate

belonged to the person liable to pay the tax; and are (except as against actual fraud)

conclusive evidence of the regularity of all other proceedings, from the assessment by the

assessor, inclusive, up to the execution of the deed. Such deed conveys to the purchaser the

absolute title to the property described therein, free of all encumbrances, except when the

land is owned by the United States, or this state, in which case it is prima-facie evidence of

the right of possession, accrued as of the date of the deed to the purchaser. No tax heretofore

or hereafter assessed upon any property, or sale therefor, shall be held invalid by any court of

this state on account of any irregularity in any assessment, or on account of any assessment or

tax roll not having been made or proceeding had within the time required by law, or on

account of any other irregularity, informality, omission, mistake or want of any matter of

form or substance in any proceeding which the legislature might have dispensed with in the

first place if it had seen fit so to do, and that does not �� "�� #


affect the substantial property rights of persons whose property is taxed; and all such

proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be

presumed by all the courts of this state to be legal until the contrary is affirmatively shown.”

It is clear that no notice advertising the sale for the period of 25 days, as provided by the

statute cited, was given. The sale was held on July 21, and the first publication of the notice

of sale on that date was on July 12, hence it appears that the required 25 days of publication

prior to the sale on July 21 could not have been given.

To overcome the glaring irregularity in the giving of the notice, it is said that the failure to

give the 25 days' notice is not one of the irregularities mentioned in section 41, above quoted,

concerning which the deed is prima-facie evidence of irregularity, and hence it is an

instrument which falls within the provision which provides that such a deed is “conclusive

evidence of the regularity of all other proceedings, from the assessment by the assessor,

inclusive, up to the execution of the deed.”

That portion of section 41 invoked by the defendant in support of this contention is taken

from the California Political Code, and had been construed by the courts of that state on two

occasions, wherein substantially the same question was raised as is here involved. In

Bernhard v. Wall, 184 Cal. 612, 622, 194 P. 1040, 1045, wherein the deed showed on its face

that the notice had not been complied with, in that the first notice of sale was given more than

28 days prior to the sale, contrary to the statute, it was held that the tax deed was void.

In Joslin v. Shaffer et al., 66 Cal. App. 69, 225 P. 307, the district court of appeals quotes

from the case mentioned, in following its holding, as follows:

“‘The publication was not sufficient to authorize the sale and that the deed based thereon

was void. Section 3878, which makes the tax deed “conclusive evidence of the regularity of

all other proceedings,” from the ��


assessment down to the deed, does not apply to or cure this defect. Sections 3786 and 3787

must be read and construed together. The phrase “all other proceedings,” in section 3787,

refers back to section 3786, and, therefore, includes only such proceedings as are not included

in section 3786. The presumption as to the proceeding which fixes the time for the sale is

prescribed by section 3786. It declares that the tax deed is “primary,” meaning prima facie,

evidence of the fact that the property was sold “at a proper time.” * * * The tax deeds here in

question were, therefore, only prima facie evidence that the tax sales on which they were

found were made “at a proper time.” A sale made at a time of which legal notice was not

given cannot be held to have been made at a proper time.'”

The section in question provides that the tax deed is made prima-facie evidence “that the

property was sold as prescribed by law.” The law specifically prescribes the notice of sale

which must be given, and a sale made without such notice is not made “as prescribed by

law,” as said in Joslin v. Shaffer.

1. Our statute was evidently taken from the California Code, and is substantially the same;

the language of our statute being embodied in one section, though the same matter is enacted

in two separate sections in California. Furthermore, the sections of the California Code were

interpreted before they were adopted by our legislature. While the construction given the

sections by the court of that state is not conclusive, it is very persuasive, and especially so

where the construction is reasonable, fair, and just, as in the case mentioned; hence we accept

such construction.

2, 3. What we have said would dispose of the matter before us but for the fact that our

statue contains a further provision which has never been construed. It is that portion of the

section quoted which provides that no tax assessed upon any property, or sale thereof, shall be

held invalid because of any irregularity in any assessment, or on account of any other

irregularity, informality, omission, mistake, or want of any matter ��


of form or substance in any proceeding which the legislature might have dispensed with in the

first place, and which does not affect the substantial property rights of the person whose

property is taxed.

The provision of the statute referred to is not only a most reasonable, but a most fair, and

we think, proper one. The sale under the notice which was given is confirmed by the language

of the statute just mentioned, and does not amount to a taking of property without due process

of law. As a matter of fact, no notice whatever was necessary did not a statute require it. But

our statute expressly provides exactly when property shall be sold for delinquent taxes. Such

a provision is sufficient notice without further publication of notice of the time of sale. The

Supreme Court of the United States, in Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 28

L. Ed. 569, 4 Sup Ct. Rep. 663, in considering substantially the same question, disposed of

the matter in the following language:

“The law, in prescribing the time when such complaints will be heard, gives all the notice

required, and the proceedings by which the valuation is determined, though it may be

followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law.”

4. This expression of the court of last resort on the question involved is the last word, and

is binding upon us whether we like it or not, and while there are other authorities in support

of the view expressed, nothing can be gained by a long review of them. In line with the view

expressed are Maxwell v. Page, 23 N. Mex. 356, 168 P. 492, 5 A.L.R. 155, and authorities

therein cited.

5. However, notice of the sale was actually published. It was published for a length of time

which would have been sufficient did the provision relative to due process require published

notice, and the statute in the first instance had provided for such a notice. This being true, the

curative provision to which we have referred would have remedied the irregularity, had there

actually been one, in the publication of the notice.


For the reasons given, the judgment and order appealed from must be, and are hereby,

reversed.


September 10, 1928.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 16, 16 (1928) Anderson v. McGill Club��

ANDERSON v. McGILL CLUB

No. 2785

May 5, 1928. 266 P. 913.

1. Husband and Wife—Novelty of Case Should Not Be Considered in Determining Whether

Plaintiff Had Cause of Action for Inducing Husband to Play Poker. Novelty of case could not be considered in determining whether plaintiff had a cause of action for

defendant's enticing her husband to habitually play poker, whereby she lost portions of his salary, and

was deprived of his companionship.

2. Husband and Wife—Wife Could Not Recover Against Defendant Enticing Husband to

Play Poker, Depriving Her of His Companionship and Money, where She Did Not

Allege Intentional Invasion of Marital Rights. Wife could not recover damages where defendant tempted, permitted, and procured husband to

frequent defendant's alleged gambling room and play poker, depriving her of companionship of her

husband and of money on which she relied for her support, causing her worry, humiliation, and sickness,

where she did not allege that defendant knew that her husband was a married man, or make other

allegation showing direct and intentional invasion by defendant of marital relation existing between

plaintiff and her husband.


Actions—1 C.J. sec. 67, p. 972, n. 7.

Husband and Wife—30 C.J. sec. 977, p. 1123, n. 56; sec. 1001, p. 1133, n. 79.

Appeal from Ninth Judicial District Court, White Pine County; W.H. Edwards, Judge.

Action by Gladys Anderson and husband against the McGill Club. From a judgment

dismissing the action, plaintiffs appeal. Affirmed.


C.E. Handwright, for Appellant:

A person is responsible for his wrongful act (in the case at bar the unlawful act) and that

which naturally or necessarily flows therefrom. Sec. 5649 Rev. Laws; Bowen v. Hall, 6

Q.B.D. 333; 20 R.C.L. 392 (par. 14); 86 A.S.R. 509; 20 R.C.L. 492; 20 R.C.L. 494, par. 107;

Hollenbeck v. Ristine, 67 A.S.R. 306, p. 308; Cahill v. Eastman, 10 Am. Rep. 184, p. 188;

Isham v. Dow, 67 A.S.R. 691, p. 692; Edgerton v. Burlington Ry., 90 N.W. 95; Kiley v. City

of Kansas, 33 Am. Rep. 491; Hooker v. Miller, 18 Am. Rep. 18; Tinker v. N.Y.O. & W.R.

Co., 24 N.Y. Supp. 977; Sullivan v. Waterman, 39 Atl. 243; Schultzer v. Excelsior Pow. Co.,

160 S.W. 282; McAndrews v. Collerd, 36 Am. Rep. 508, p. 510; Philpot v. Taylor, 20 Am.

Rep. 241; Vandenburgh v. Truax, 47 Am. Dec. 268; Holleman v. Harward, 56 A.S.R. 672;

Humphrey v. Pope, 54 P. 847; Westlake v. Westlake, 32 Am. Rep. 397; Clow v. Chapman,

46 A.S.R. 468; Hart v. Knapp, 100 A.S.R. 989, p. 993.

The diversity of the cases cited above shows conclusively that the courts are in accord with

the general principle “that damages flow from the wrongful act of the defendant, regardless of

the fact that a third party may have contributed to the final catastrophe.” That is also the

contention of Joyce on Damages, in vol 3, p. 2198.

As far as the court is concerned at the present time in the case at bar, the unlawful act of

the defendant has been proven, i.e., by the verified complaint of plaintiff, the same not being

denied by defendant, but admitted by his demurrer.

As this case falls within the operation of clear, well-defined and well-established

principles of law, the action should be maintained, even though it may be a case of first

impression.

Chandler & Quayle, for Respondent:

We believe that ever since the decision of this court in Scott v. Courtney, 7 Nev. 418,

Hawley Edition, 5-6-7, p. 1045, it has remained the law of this state that money � ��


won or lost in gambling cannot be recovered in our courts.

Well may counsel say in his brief that this is a case of first impression. There seems to

have been no prior instance in which it has dawned upon the minds of astute lawyers that

such a right of action exists.

It will be seen that the primary efficient cause of the injuries complained of by the wife in

her complaint is not the maintenance of what is alleged to be a public nuisance, but is the

weakness and susceptibility of her husband, an uncontrolled and independent agent.

Only by legislative enactment creating a new right of action can persons such as plaintiffs

in this action have the cause of action which herein they believe themselves already in

possession of. Bistline v. Ney (Iowa), 13 L.R.A. (N.S.) 1158.

Section 2160 of Rev. Laws of 1912, as amended by the statute of 1917 (Compiled Laws of

1919, p. 2813), provides that the husband shall have the entire management and control of the

community property, with the like absolute power of disposition thereof, except as

thereinafter provided, as of his own separate estate. Which is but affirmatory of the general

law respecting the power of the husband over personal community property in the various

community property states. 5 R.C.L. p. 851, sec. 31, also sec. 32, p. 852.

The citations in the forepart of appellant's brief follow a reference to section 5649 of Rev.

Laws, 1912, a part of chapter 69 of our civil practice act, which has to do with actions for

personal injuries, that is to say injuries to the person, and viewed in this light the remoteness,

if not the utter inapplicability of the section to the circumstances of this case, is at once

apparent.

OPINION

By the Court, Sanders, C.J:

The complaint in this action for damages is entitled Gladys Anderson and her husband,

Chet Anderson, plaintiffs, against McGill Club, a corporation, defendant. Though it is not so

alleged, expressions in the complaint � ��$��% ��


indicate that Chet Anderson joined in bringing the action for conformity. We shall therefore

refer to Mrs. Anderson as plaintiff and to the McGill Club as defendant.

According to the complaint, the Andersons resided with their two minor children at

McGill, Nevada, where the husband was employed as a clerk on a salary, his only income for

the support and maintenance of himself and his dependents. The defendant is a Nevada

corporation, doing business at McGill under the name of McGill Club, and in connection with

its business conducts a gambling room, a public nuisance. The complaint charges that,

between the months of May, 1926, and February, 1927, the defendant did, knowingly,

willfully, maliciously, and unlawfully in a spirit of recklessness and from wanton and

malicious motives, procure, permit, and tempt divers persons, including Chet Anderson, to

frequent said room and habitually engage in playing poker and studhorse poker, from which

games the defendant received a share of the money played; that Chet Anderson was of such

nature the he could not resist the temptation to gamble, and, being thus tempted, did, without

the consent of his wife, spend many hours apart from her in playing poker and in losing

portions of his salary, whereby she was deprived of the companionship of her husband, and of

the money upon which she relied for her support, which caused her many hours of worry,

humiliation, and sickness, and lessened her enjoyment of life, to her great damage in the sum

of $5,000.

The defendant demurred to the complaint, upon the ground that it did not state a cause of

action. The demurrer was sustained, and, plaintiff declining to plead further, a final judgment

was entered dismissing the action, from which the plaintiff appeals.

This court is of the opinion that the general demurrer to the complaint was properly

sustained, but its members are divided as to the reasons why the complaint is defective. My

associates are of the opinion that, with but one exception, the complaint states a cause of

action, but I am unable to concur in this view. It ��


is difficult for me to consider the action seriously. The complaint is a novelty, both in form

and substance. No appeal for redress by a wife for a like grievance has ever found its way into

court, and I am apprehensive that in their just indignation against the nefarious nuisance

maintained by the defendant and in their commendable zeal for the protection of the home

and the innocent members of the family my associates have been led to affirm a proposition

of law which cannot be sustained.

The embarrassment which seems to attend the disposition of the demurrer arises from the

classification of the action. The plaintiff seeks to recover consequential damages for an injury

to her marital rights, occasioned by willful, malicious, unlawful, and wanton motives on the

part of the defendant in maintaining a nuisance to procure, permit, and tempt divers persons,

including plaintiff's husband, to frequent its place of business, and engage habitually in

playing draw poker and studhorse poker. It is made a felony in this state by statute for a

person to conduct, manage, or carry on any gambling game whatever for any share of the

money played, save and except poker, studhorse poker, five hundred, solo and whist, where

the deal alternates, and no percentage taken. It is also made a felony for a any person to play

at any game for money save and except those mentioned. Statutes 1915, p. 462.

Notwithstanding this drastic statute designed for the suppression of gambling as a business,

the evil has not been fully suppressed. The playing of poker and studhorse poker is excepted

from its penalties where the deal alternates and no percentage is taken. The nuisance consists

in the defendant's receipt of a share of the money played. The defendant's act was criminal;

the act of the husband was voluntary and entirely innocent in the eyes of the law. This being

so, it is problematical as to what portion of plaintiff's loss of the society of her husband

should be attributed to the defendant and what portion should be attributed to her husband. To

obviate the difficulty the pleader attributed the plaintiff's loss of the society of her husband

and �� &�� '�� '��


that of the money squandered by him in playing to the defendant and excused the husband,

upon the assumption that he was of such nature that he could not resist the temptation set

before him, by defendant's nuisance, to gamble, which had the effect of withdrawing him

from plaintiff's society and causing him to lose money necessary for her support.

My associates take the view that the complaint is fatally defective, in that it contains no

allegation to the effect that the plaintiff knew Chet Anderson was plaintiff's husband when he

engaged in playing poker in the defendant's place of business. It is proper to state that this

objection to the complaint was not urged in the court below nor in this court by counsel for

the defendant, and under the rule of the statute, before the judgment is affirmed upon this

ground, counsel for plaintiff should be given an opportunity to be heard. Statutes 1923, 163. I

am of opinion that if the injury complained of be actionable, it is immaterial to plaintiff's right

to recover whether or not the defendant knew Chet Anderson was plaintiff's husband on the

occasions he played poker in defendant's place of business. The injury complained of was

caused by the defendant's inherently unlawful act. Treating the action as an ordinary suit for

damages caused by the unlawful act of another, the fact that the defendant had no knowledge

of the marital relations of the Andersons is no defense and, therefore, such knowledge need

not be pleaded. When an unlawful act causes injury to another, the motive, intent or design of

the wrongdoer is, as a general rule, material only in determining the quantum of the damages.

Hussey v. Peebles, 53 Ala. 436. In that case it is said:

“When there is an unlawful injury to the rights of another, it is not essential to civil

liability that the mind should concur in the act. It is upon this principle that even a lunatic is

liable civiliter for an injury to the person or property of another. * * * In civil actions the

intent is immaterial, if the act done be injurious to another.”

I am further of the opinion that the complaint is not ��


defective for the reason assigned by my associates, because the maintenance of a gambling

room by the defendant is a public nuisance. In this state a public nuisance is a crime against

the order and economy of the state, and every place where gambling is conducted is a public

nuisance. Section 6561, Rev. Laws.

The defendant in maintaining the nuisance may reasonably have anticipated the injury

which resulted from its conducting a gambling house. I know of no rule of law, civil or

criminal, which exempts from liability or responsibility the keeper of a common gambling

house for an injury incident to the business, because the keeper did not know the marital

status of a particular person who frequented the place and engaged in gambling. Neither

public policy not the statute designed to suppress gambling extends such favor or protection

to this class of business.

It is contended that this is not an ordinary action to recover damages for injury to the

person or property of another, but is an action brought by a wife to recover damages for loss

of consortium, occasioned by her husband playing poker in a place condemned and prohibited

by law as a public nuisance. I attribute this contention to the pleader's misconception of the

proper status of the case. It is not an ordinary action for alienation of affection, nor is it a case

against one who, from malicious motives against a wife, causes her husband to abandon her.

The gravamen of the complaint is, as above stated, that the defendant willfully, unlawfully

and with wanton and malicious motives induced and enticed plaintiff's husband, with others,

to frequent its place of business and engage in the hazard of gambling, playing draw and

studhorse poker, from which the defendant received a share of the money played. Such an

action is not analogous to an ordinary case for loss of consortium. It would be a strained

construction of the complaint to hold that the nuisance complained of was willfully and

maliciously maintained for the sole purpose of injuring the plaintiff.

Assuming for the purposes of the demurrer that the �� &�� '�� (


action is one for consequential damages to the plaintiff, occasioned by her husband being

enticed to play poker in the defendant's gambling room, a public nuisance, may she recover?

My conclusion is that she cannot recover. A husband is exposed to the temptations,

enticements and allurements of the world, which easily withdraw him from the society of his

wife, and the wife had reason to expect all these things when she entered the marriage

relation, and her right to his society had all these conditions. Duffies v. Duffies, 45 N.W. 525.

In the eyes of the local law plaintiff's husband, in withdrawing himself from her society to

play poker, did nothing more than he had a right to do, however reprehensible his conduct as

a husband may have been. Public policy condemns his act, but the statute law of Nevada

countenances it. If an action by a wife for loss of the society of her husband, occasioned by

his playing poker and losing community money, were sustained, such actions would be

numberless, and this right of action in the wife would be a most fruitful source of litigation.

The loss of the husband's society need not be permanent for a cause of action. For a longer or

shorter time, if cause by improper inducements or enticements, the right would accrue.

Duffies v. Duffies, supra. Public policy forbids that a multitude of suits should be brought for

an act which essentially concerns the public, although in its remote effects it might bear

peculiarly upon a particular person or class.

It is argued on behalf of the plaintiff that this action is analogous to one brought by a wife

to recover for loss of consortium, caused by the wrongful act of another, in selling

habit-forming drugs to a husband weak in mind and body from the excessive use of such

drugs, with knowledge. This conclusion drawn from the allegations of the complaint seems to

be so far-fetched that no attempt will be made to differentiate this case from those cited in

support of the proposition.

Gambling, its prohibition, and private actions of which it is the subject matter have at all

times been matters for the lawmaking body to consider. In several of the �� "��


states, enabling statutes have been enacted conferring upon a wife the right to recover money

lost at gambling by her husband; but, where there is no such statute, it is conceded that she

cannot recover. So, in this case, in the absence of a statute authorizing a wife to maintain an

action for loss of consortium, occasioned by her husband playing poker in a common

gambling house, the plaintiff cannot recover. Plaintiff's action was misconceived, and it was

properly dismissed.

Upon the filing of the transcript on appeal from the judgment, counsel for respondent

moved to strike parts or portions of the record, upon the ground that they did not constitute a

part of the judgment roll as defined by section 5273, Rev. Laws. Upon the authority of several

former decisions of this court, the motion is sustained.

The judgment appealed from is affirmed.

Ducker, J., concurring:

I concur in the order of affirmance. The demurrer admits that the game conducted by the

defendant constituted not only a public nuisance by a crime. It also admits that the defendant

was instrumental, through the operation of that game, in depriving the plaintiff of the

consortium of her husband. The question of law for us to decide is, do the facts thus admitted

constitute a cause of action in favor of the plaintiff.

The novelty of the case is not a consideration which can influence us in reaching a

decision. 18 N.C. 516, 105 S.E. 206; Harris v. Trust Co., 128 Tenn. 573-579; Kujeck v.

Goldman, 150 N.Y. 176; Holleman v. Harward, 119 N.C. 150. The real question for

determination is whether the allegations of the complaint show that defendant has by its

conduct violated any legal right of the plaintiff. While the husband could recover at common

law against one who was guilty of depriving him of the consortium of his wife, the wife could

not recover for a like act, but now it is generally conceded that in a proper case the wife may

also recover for her loss of consortium of her husband. Nolin v. Pearson, ��


191 Mass. 283, 4 L.R.A. (N.S.) 643; Hinnant v. Tidewater Power Co., 189 N.C. 122, 126

S.E. 307; Moberg v. Smith (S.D.), 161 N.W. 998; 30 C.J. 1123.

Notwithstanding the foregoing observations, I am of the opinion that the demurrer was

properly sustained. All of the authorities make the right of recovery in a suit brought by a

wife for damages for loss of consortium turn upon the question of whether there was a direct

and intentional invasion by the defendant of the marital relation, existing between the

plaintiff and her husband. Holleman v. Harward, 119 N.C. 150, 25 S.E. 972, 34 L.R.A. 803,

56 Am. St. Rep. 672; Hinnant v. Tidewater Power Co., supra; Flandermeyer v. Cooper, 85

Ohio St. 327, 98 N.E. 102, 40 L.R.A. (N.S.) 360, Ann. Cas. 1913a, 983.

Since there is no allegation in the complaint to the effect that the defendant knew that the

husband of plaintiff was a married man, nor other allegation covering the point, the demurrer

was properly sustained.

Coleman, J., I concur in the opinion of Justice Ducker.


June 5, 1928.

Per Curiam:

Rehearing denied.

Reporter's Note: Petition for a writ of certiorari directed to this court in the above case denied by the Supreme

Court of the United States, October 8, 1928.

____________

��51 Nev. 26, 26 (1928) American Sodium Co. v. Shelley, Et. Al.��

AMERICAN SODIUM CO. v. SHELLEY, Et. Al.

No. 2810

May 23, 1928. 267 P. 497.

1. Appeal and Error—Order Extending Time Within which Transcript Might Be Filed Held

Proper, where Supreme Court Had Obtained Jurisdiction by Perfection of Appeal. Order extending time for filing transcript on appeal, after the notice of appeal had been given in time,

held proper, where supreme court had acquired jurisdiction by perfection of appeal.

2. Appeal and Error—Appeal to Supreme Court Is Perfected by Notice of Appeal and Giving

of Undertaking. Appeal to the supreme court is perfected by giving notice of appeal and by giving undertaking.

3. Appeal and Error—Supreme Court Acquires Jurisdiction when Appeal is Perfected. While, after filing notice of appeal and giving of undertaking, lower court retains jurisdiction in many

instances, yet as soon as appeal is perfected the supreme court acquires jurisdiction for certain purposes,

such as extending time for filing transcript on appeal.

4. Courts—Legislature Having Conferred power on Supreme Court to Adopt Rules, Rules

Are Binding, Unless in Conflict with Statute. The legislature having expressly conferred power to adopt rules on the supreme court, by Stats. 1869,

chap. 112, sec. 590, rule of court is binding, unless it conflicts with some statute.

5. Appeal and Error—Motion to Dismiss Appeal Taken from Judgment and Order Denying

New Trial, on Ground that Bill of Exceptions Had Not Been Settled in Time, Held

Properly Overruled, since Judgment Roll May Constitute Transcript. Where appeal was taken from judgment and order denying motion for new trial under Rev. Laws, sec.

5329, as amended, motion to dismiss appeal, because time for taking bill of exceptions had expired and

none had been settled, or even prepared, held properly overruled, since appeal having been taken from

judgment, appellant had right to have the court inspect the judgment, to ascertain whether reversible error

appeared by reason of supreme court rule 2, under which judgment roll may constitute transcript.


Appeal and Error—3 C.J. sec. 1366, p. 1252, n. 28; p. 1253, n. 30; 4 C.J. sec. 1811, p. 212, n. 43; sec. 2198,

p. 466, n. 60.

Courts—15 C.J. sec. 288, p. 909, n. 8.

On petition for rehearing. Petition Denied. (For former opinion, see 50 Nev. 416.) )�� *+� ��,�� -


Green & Lunsford, for Respondents:

The court in its decision makes no reference to the motion to vacate the order, and makes

no reference to the statute of 1923, chapter 97, page 163.

The affidavit filed in support of motion makes it clear that no bill of exceptions or record

on appeal was filed in the court below within twenty days after final judgment, or twenty days

after an order denying a motion for a new trial. It also appeared from the affidavit that the

time had expired and had not been extended by the court below. The affidavit was not

controverted, and the facts stated were admitted at the argument.

We do not understand that this court has ever held that it could acquire appellate

jurisdiction merely by extending the time for filing a record on appeal. If this court can

acquire appellate jurisdiction in such a manner there can be no such thing as finality of a

judgment.

OPINION

Per Curiam:

On January 27, 1928, Geo. S. Green, as counsel for respondent, filed in this court two

papers under one cover which is indorsed: “Notice of Motion to Dismiss Appeal and

Affidavit of Geo. S. Green.”

The first paper is designated, “Motion to Dismiss Appeal.” The other paper is designated

“Affidavit of Geo. S. Green.”

It appears from the affidavit of Mr. Green that the judgment in the case was entered on

August 1, 1927; that appellants' notice of appeal from the judgment and from the order

denying a motion for a new trial was served on December 16, 1927, and that it was filed in

the lower court on December 17, 1927, and that an undertaking on appeal was filed on

December 19, 1927.

On the 16th of January, 1928, an order was made by a Justice of this court extending

appellants' time for filing of a transcript of appeal for a period of thirty days. Within the time

thus extended, on, to wit, February 14, 1928, the motion to dismiss was argued, at which time��


the stipulation set out in our former opinion was entered into.

In the motion to dismiss appeal counsel states that he “will move and do hereby move, for

an order vacating an order of this court made in the above-entitled cause on January 16, 1928,

and dismissing the appeal in the above-entitled cause on the grounds and for the reasons

following, to wit:

“(1) That notice of the purported appeal in said cause was served upon counsel for

respondents on December 16, 1927, and was filed in the district court from which such appeal

is purported to be taken on December 17, 1927; that an undertaking on appeal was filed in

said district court on the 19th day of December, 1927; that such appeal was perfected on the

17th day of December, 1927, and that no transcript of a record on appeal, statement on

appeal, bill of exceptions or other record on appeal was filed in this court within thirty days

after such appeal was perfected, in violation of rules 2 and 3 of the Rules of the Supreme

Court of the State of Nevada.

“(2) That there is no transcript on appeal, bill of exceptions, statement on appeal or other

record on appeal either filed, served or settled in said district court within the time limited by

law or at all, as shown by the annexed affidavit.”

These are the sole grounds in support of the motion. No brief was filed in support of the

motion, and the oral argument went entirely to the proposition that no bill of exceptions had

been prepared, served and filed. With this statement we think we may safely proceed to

dispose of the petition for rehearing.

We did not allude in our former opinion to the question of the vacating of the order to

dispose of the order of January 16, 1928, extending the time for filing of the transcript on

appeal. We did not do so for the reason that there was nothing in the motion itself or in the

oral argument in support of that proposition.

The order of January 16 recites that it was made for good cause appearing. If the court had

jurisdiction to ��


make the order it was a valid order and would be vacated only when it was shown that there

was an abuse of discretion.

It was not contended on the original hearing that the order was in excess of jurisdiction,

nor was it contended that it was an abuse of discretion by the court to make it. The entire

argument was based upon the proposition that the time had expired within which a bill of

exceptions might be taken, and that none had been taken, as pointed out in our former

opinion. We thought or former opinion disposed of the real question before us and that it was

unnecessary to go into a consideration of other questions. It seems that we were mistaken. We

will endeavor to elucidate.

1-4. Just here we will consider what seems to be counsel's main contention, which is stated

for the first time in the petition for rehearing, wherein he says:

“We do not understand that this court has ever held that it could acquire appellate

jurisdiction merely by extending the time for filing a record on appeal. If this court can

acquire appellate jurisdiction in such a manner there can be no such thing as finality of a

judgment. If the court extended the time in one case, it would, no doubt, feel constrained to

do the same in other cases, and the indulgence of the court would be the only limitation upon

the time for filing a record on appeal in the supreme court.”

We will first dispose of the assertation that “this court has never held that it could acquire

appellate jurisdiction merely by extending the time for filing a record on appeal.”

We are sure this court has never so held and equally sure it never will. We did not so hold

in our former opinion in this case, nor did we so intimate. We pointed out in that opinion that

an appeal to this court is perfected by giving notice of appeal and by the giving of an

undertaking. Such was held to be the rule in one of the very earliest decisions of this court

(Peran v. Monroe, 1 Nev. 484), and so far as we know this statement of the law has never

been questioned. The Chief Justice, � �� .� ��/��01�/��2


in the recent matter of Dunphy v. McNamara, 50 Nev. 113, 252 P. 943, so held. We think this

is settled law. While such is the law the lower court retains jurisdiction in many instances, for

the purpose of settling a bill of exceptions, and the like (James v. Leport, 19 Nev. 176), but

on the other hand, as soon as the appeal is perfected this court acquires jurisdiction for certain

purposes.

No, the court did not acquire jurisdiction by extending the time for the filing of a

transcript, but it did so extend the time for the filing of a transcript because of the jurisdiction

acquired as a result of the perfecting of the appeal. This is a jurisdiction which it has often

exercised pursuant to the rule referred to in our former opinion. This authority has never been

questioned until now.

But the very right to move to dismiss, which counsel invoked, is given by a rule of this

court, which is of no greater force than the other rules. How can counsel consistently invoke

the rule which he thinks is favorable to him, and in the same breath repudiate some other

rule? But it matters little what counsel may think of it since the legislators expressly

conferred the power to adopt rules upon this court (Stats. 1869, p. 286), which is still in force.

It has been repeatedly held that a rule of the court is binding unless in conflict with some

statute. Haley v. Eureka, 20 Nev. 410.

Without further reference to this phase of the matter we feel confident that an impartial view

of this situation can lead to no other conclusion than that counsel is in error.

The intimation that the court might feel constrained to make a similar order in other cases

can in no way affect the jurisdiction of the court.

5. Though we think we have said enough to show that our former opinion is correct, in

view of the fact that counsel seems to have an erroneous idea as to certain matters, we will

comment further.

Section 5329, Rev. Laws, as amended, provides for the taking of an appeal by a party

when he finds himself in ��


one or more situations. He may appeal from the judgment alone or he may appeal from an

order denying a motion for a new trial. He may appeal from both. He may appeal from still

other orders. In the instant case the appeal was from both the judgment and the order denying

a motion for a new trial. In view of the fact that the original argument was based upon the

proposition that the time for the taking of a bill of exceptions has expired, and that none had

been settled, or even prepared, we call attention to what we said in Segale v. Pagni, 49 Nev.

313, 244 P. 1010, which is in harmony with the long established and generally well-known

practice.

“The first three grounds of the motion are based upon the proposition that there is no bill

of exceptions in the record settled and allowed by the court or judge or by stipulation of the

parties. There is a pretended bill of exceptions in the record, certified and sworn to by the

court stenographer, but, if no effort had been made to embody a bill of exceptions in the

record, the motions should be denied so far as the first three grounds are concerned, for the

reason that we cannot at this stage of the proceedings assume that appellants may not contend

that, for errors appearing upon the face of the judgment roll alone, the judgment should be

reversed.”

An appeal having been taken from the judgment, appellant has the right to have the court

inspect the judgment roll alone to ascertain if reversible error appears. A judgment roll may

constitute the transcript in a case, as is evident from rule 2. It was on this theory we denied

the motion. The only mistake we made was in assuming that it was unnecessary to go into

details.

We think what we have said should make it clear to counsel that our conclusion in the

former opinion was in harmony with the well-established and amply justified practice, and

that he need not fear any radical action by the court in the matter of extension of time for the

filing of transcripts.

The petition is denied.

____________

��51 Nev. 32, 32 (1928) Caldwell v. Wedekind Mines Co., Et. Al.��

CALDWELL v. WEDEKIND MINES CO., Et. Al.

No. 2787

May 29, 1928. 267 P. 827.

1. Evidence—By-Laws of Corporation Are Not Judicially Noticed. By-laws of a corporation are not judicially noticed, but must be proved as facts.

2. Appeal and Error—On Appeal on Judgment Roll Alone, in Absence of Facts, Court Must

Presume that Evidence Supports Findings and Findings the Judgment. On appeal upon the judgment roll alone, the facts not being before the court, it must presume that the

evidence supports the findings, and that the findings support the judgment.



Corporations—14 C.J. sec. 436, p. 349, n. 53.

Evidence—23 C.J. sec. 1980, p. 159, n. 14.

Appeal from Second Judicial District Court, Washoe County; Frank T. Dunn, Judge.

Action by Gladys I. Caldwell, administratrix of the estate of Jonathan B. Dixon, deceased,

against the Wedekind Mines Company and others. From the judgment and from an order

denying her motion for new trial, plaintiff appeals, but, on respondent's motion, the bill of

exceptions was stricken from the record, and the appeal from an order overruling the motion

for a new trial dismissed (50 Nev. 366, 261 P. 652), leaving the case on appeal from

judgment upon the judgment roll alone. Affirmed.

Wayne T. Wilson, for Appellant:

Business transacted at a meeting of stockholders where less than a quorum is present is not

only invalid but is void, and cannot be ratified or rendered valid by the subsequent assent of

the holders of the majority of stock at any time or place other than at a regular meeting of the

stockholders. Fletchers Cyc. of Cor., vol. 3, sec. 1643, p. 2758. Piercy v. New Orleans, 29

Am. Dec. 448.

As alleged in the complaint and admitted in the � ��.�� 3�� $��


answer, the Dixon stock was clearly a majority of all the issued and outstanding stock of the

Wedekind Mines Company. If the Dixon stock was not represented at the stockholders'

meeting held on January 12, 1926, there could have been no quorum present. A quorum at a

stockholders' meeting is a majority of all the issued and outstanding stock. Rev. Laws of Nev.

1912, sec. 1134.

John Sinai, for Respondents:

There being no evidence or testimony before this court it will be assumed that the court's

findings are sustained by sufficient evidence and is conclusive upon appeal. Murray v.

Osborne, 33 Nev. 267.

Where nothing is shown to the contrary this court will presume if the judgment is sustained

by the findings that the findings were justified by the evidence. Nesbitt v. Chisholm, 16 Nev.

376.

There is no law in the State of Nevada which holds that a majority of outstanding stock must

be represented at a stockholders' meeting before business can be transacted. The common-law

rule is sensibly stated in Morrill v. Little Falls Manufacturing Co., 53 Minn. 371, 55 N.W.

547, 21 L.R.A. 174. The statute being silent and the by-laws of the company not being before

this court, the common-law rule prevails.

OPINION

By the Court, Sanders, C.J.:

On January 11, 1927, Gladys I. Caldwell, as administratrix of the estate of J.B. Dixon,

deceased, made application to the court below for an injunction to restrain the holding of the

annual meeting of the stockholders of the defendant corporation, scheduled to be held on

January 11, 1927, and to restrain the defendants or any of the stockholders from voting at said

meeting any of the shares of stock issued from its treasury since �� '�� 4��21�� 0�� 5��.�� $�6��$�� 5��.�� $�6��$�� 7� 82�� /��+�� '�� '��


the death of plaintiff's intestate, which occurred on September 30, 1925, and to restrain the

defendants from voting at said meeting the one share of stock standing on the books of the

company at the time of the death of J.B. Dixon in the name of C.E. Clough, and for a

judgment or decree canceling all shares of stock issued from the treasury of the company

since the death of J.B. Dixon, and that plaintiff be adjudged to be the owner of the share of

stock standing on the books of the company in the name C.E. Clough and of the 6 2/3 shares

of stock standing on the books of the company in the name of Nott Leete, and that defendants

be enjoined from holding any stockholders' meeting until plaintiffs' rights in the premises be

adjudged and determined. Upon consideration of the complaint, a temporary restraining order

issued as prayed. Subsequently the cause came on for hearing, upon issues joined upon the

complaint, answer, amendment to answer and plaintiff's reply. After a full hearing upon the

pleadings and evidence, formal findings of fact and conclusions of law were entered, upon

which it was adjudged, ordered and decreed that the defendant, Amelia Martin, transfer to the

estate of J.B. Dixon, deceased, the one share of stock standing on the books of the company

in her name, transferred to her by C.E. Clough; that the 412 shares of stock issued by the

officers of the company belong to the party or parties in whose name or names said shares

stand on the books of the company; that the defendants, Joseph Martin, Amelia Martin, and

Josephine Birch, directors and officers of the defendant company, continue to carry on the

affairs of the corporation until the election of their successors, and that the restraining order

heretofore issued be canceled and dissolved. Subsequently the plaintiff gave notice of her

intention to move for a new trial, which motion was denied. Thereafter the plaintiff perfected

her appeals from the order denying and overruling her motion for new trial and from the

judgment, as required by law.

The respondents, defendants below, moved to strike �� '��


from the record on appeal the bill of exceptions and to dismiss the appeal from the order

overruling plaintiff's motion for new trial, which motion was sustained. 50 Nev. 366, 216 P.

652.

The case is now before us upon the appeal from the judgment upon the judgment roll

alone. It is questionable whether we would consider the roll, but since no formal objection is

made to its consideration, we shall review it for the purpose of determining whether it shows

upon its face any reversible error.

The complaint alleges in substance that the annual meeting of the stockholders of the

defendant company was held on January 12, 1926; that at said meeting less than a majority of

the issued and outstanding stock of the corporation was represented and voted contrary to the

by-laws of the corporation and the statutes of the State of Nevada, and that all subsequent acts

of the directors and officers of the corporation so illegally elected are null and void.

1. The contention of appellant is that the complaint shows upon its face that plaintiff's

intestate owned a majority of the issued and outstanding shares of the capital stock of the

defendant company and that no valid meeting of the stockholders could have been held on

January 12, 1926, by the holders of a minority of the issued and outstanding stock of the

company and, therefore, the judgment should be reversed, but in support of this proposition

counsel does not call our attention to any statute providing that no stockholders' meeting of a

corporation shall be held unless a majority of the outstanding stock is represented. It may be

that the by-laws of the corporation provide that a quorum at a meeting of the stockholders

shall consist of a majority of the outstanding stock of the company, represented in person or

by proxy. The by-laws of the corporation are not noticed judicially, but must be proved as

facts. 16 Cyc. 882; 14 Corpus Juris, 349.

2. The facts not being before us, we must presume that the evidence supports the findings

and the findings �� 7�


the judgment, with respect to the election of the directors and officers of the defendant

corporation on January 12, 1926.

Finding no error upon the face of the judgment roll, the judgment is affirmed.


July 6, 1928.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 36, 36 (1928) Cawley v. Pershing County��

CAWLEY v. PERSHING COUNTY

No. 2781

June 18, 1928. 268 P. 44.

1. Appeal and Error—Supreme Court Is Not Bound by Admission of Counsel as to

Interpretation of Statute. Supreme court is not bound by admissions or statements of counsel as to interpretation of statute or as

to any phase of law.



On petition for rehearing. Petition denied. (For former opinion, see 50 Nev. 411.)

Thomas E. Powell, for Appellant:

Apparently the court in its decision inadvertently overlooked the oral stipulation of

respective counsel upon the argument that the only question involved in the case is whether

or not the constable lawfully retained the civil fees; that if he retained said fees unlawfully the

office was abolished, but if he had a right to take the fees the office was not abolished. There

was no other question involved.

Campbell & Robins, for Respondent:

We cannot agree with the assertion of counsel for appellant that this court failed to decide

the only question submitted. The only question presented, which is the application of the act

of 1919, uninfluenced by the ��1�� 9��$� ��

��51 Nev. 36, 37 (1928) Cawley v. Pershing County��

act of 1909 relative to the compensation of certain township officers in Humboldt County,

has been decided, and we can advance no reason more cogent than the opinion itself as a

reason why the petition for a rehearing should be denied.

OPINION

Per Curiam:

A petition for a rehearing has been filed in this case.

The sole question in this case is the interpretation of section 1 of the act of 1919, upon

which our former opinion turned. That act authorized boards of county commissioners to fix

the compensation of township officers, which “shall be a salary or the fees as now allowed to

such officers by existing enactments or as shall be fixed by subsequent enactments. * * *”

The legislature empowered the board of county commissioners to fix the salary, in the

alternative. It could either fix a straight salary or it could in the alternative allow simply fees.

It could not fix a compensation partly as salary and partly of fees. Yet this is what it sought to

do, and we held that the statute did not give the board such power.

It is contended, also, that counsel for respondent during the oral argument made a certain

admission as to the correct interpretation of the statute, which the court ignored in its former

opinion, and which justified a different conclusion. Counsel did make a statement during the

argument, but this court is not bound by admissions or statements of counsel as to the

interpretation of statutes or as to any phase of law. To hold otherwise would result in opinions

by stipulation of counsel, something no self-respecting court can look upon with favor.


____________


AMERICAN SODIUM COMPANY v. SHELLEY, Et. Al.

No. 2810.

June 18, 1928. 268 P. 45.

1. Appeal and Error—Appeal on Judgment Roll Alone Could Not Be Dismissed, on Ground

that no Bill of Exceptions Was Filed, Served, Settled, Etc. Appeal from judgment on judgment roll alone cannot be dismissed, on the ground that no bill of

exceptions was filed, served, settled, allowed, and authenticated, as required by Stats. 1923, chap. 97,

sec. 1.

2. Appeal and Error—Appeal Could Not Be Dismissed, where Findings and Judgment on File

Were Signed by Trial Judge, though Copies Served on Respondent Were Not Signed. Appeal could not be dismissed, on ground that respondent's copies of findings of fact and conclusions

of law and judgment predicated thereon were not signed by trial judge, where copies of findings and

judgment on file were signed by trial judge.

3. Appeal and Error—On Appeal on “Judgment Roll” Alone, Papers Not Constituting Part of

Judgment Roll Cannot Be Considered. On appeal on judgment roll alone, papers included in transcript, which did not constitute part of the

judgment roll, cannot be considered, under Stats. 1915, chap. 142, sec. 11; a “judgment roll” consists

only of papers designated by statute.


Appeal and Error—4 C.J. sec. 1811, p. 212, n. 43; sec. 2228, p. 486, n. 9; sec. 2363, p. 554, n. 37.

Judgments—34 C.J. sec. 226, p. 85, n. 65.

Appeal from Eighth Judicial District Court, Lyon County; J. Emmett Walsh, Judge pro

tem.

Action by the American Sodium Company against Jennie Baldwin Shelley and another.

From the judgment, defendants appeal. On motion to dismiss. Motion denied.

Norcross & Cheney, of Reno, and H. Pilkington, of Yerington, for Appellants:

Green & Lunsford, of Reno, for Respondent.

OPINION


This appeal was formerly before us upon respondent's motion to dismiss for appellant's

failure to file a transcript within thirty days after the appeal was perfected ��

��


as provided by rule 2 of this court, which motion was denied and appellants given ten days

from the receipt of a copy of the order within which to file a transcript. 264 P. 980. Being

dissatisfied with the ruling, the respondent filed a petition for rehearing. Pending the

disposition of the petition, a transcript was filed in this court, with the certificate of the clerk

of the court below attached thereto, which shows affirmatively that the transcript consists of

the original papers constituting the judgment roll. The respondent again moved for dismissal

of the appeal and to strike all the papers specified in the motion which do not constitute a part

of the judgment roll proper. The petition for rehearing was denied in a per curiam opinion not

yet reported.

1. The motion to dismiss is based principally upon the ground that no bill of exceptions

was filed, served, settled, allowed and authenticated as required by section 1 of chapter 97 of

the Statutes of 1923, entitled “An act to regulate proceedings on motions for new trials and on

appeal in civil cases.” The appeal being from the judgment upon the judgment roll alone, we

do not perceive the relevancy of the motion to dismiss for failure of appellants to perfect a

bill of exceptions within the time and in the manner provided by the statute. The judgment

roll is not incorporated in a bill of exceptions and no bill of exceptions is attached to the

judgment roll. The motion to dismiss upon the ground stated is denied.

2. The motion contains the statement that the findings of fact and conclusions of law and

the judgment predicated thereon appear not to have been signed by the trial judge and,

therefore, the appeal should be dismissed. Counsel for respondent, upon the hearing of the

motion, offered in evidence the copy of the transcript served upon them in corroboration of

the statement. The copies of the findings and judgment on file herein, and certified by the

clerk to be true and correct copies of the originals, do show that they were signed by the trial

judge. We do not think the discrepancy between the copies served and those filed constitutes

sufficient ground for the dismissal of the appeal.


3. The motion to strike from the transcript the papers specified is well taken. A judgment

roll consists of the papers designated by statute and of no others. A party may appeal upon the

judgment roll alone, in which case only such errors can be considered as appear upon the face

of the judgment roll. Statutes 1915, 164, section 11. There is included in the transcript before

us a number of papers which do not constitute a part of the judgment roll and, therefore,

cannot be considered on this appeal. Instead, however, of making a formal order striking the

papers we shall adhere to the mandate of the statute and not consider them upon the merits of

this appeal.

The motion to dismiss the appeal is denied.

____________

��51 Nev. 40, 40 (1928) Puett v. Harvey��

PUETT v. HARVEY

No. 2764

June 20, 1928. 268 P. 41.

1. Appeal and Error—Where Defendants Did not Apply to Court for Finding on Issue,

Finding Sufficient to Support Judgment Must Be Implied. Where defendants made no application to court for finding on issue of location or discovery work on

mining claim, finding in this regard sufficient to support judgment must be implied under civil practice

act, sec. 403 (Rev. Laws, sec. 5345), as amended by Stats. 1919, chap. 177.

2. Mines and Minerals—Lode Location within Preexisting Placer Carried with it Both Lode

and Rights to Surface Within 25 Feet on Either Side. Lode location, within a valid and preexisting placer, carried with it both lode and rights to surface

within 25 feet on either side thereof, under Rev. St. U.S. sec. 2333 (30 USCA sec. 37).

3. Appeal and Error—In Absence of Finding or Evidence Regarding Location and Direction

of Lode, Supreme Court Must Assume it Extended through Center of 50-Foot

Limitation Defined by Court. In absence of finding to contrary or evidence as to location and direction of mining lode, supreme

court must assume that it extended through center of 50-foot limitation defined by court.


Appeal and Error—4 C.J. sec. 2666, p. 737, n. 58; sec. 2728, p. 778, n. 75.

Mines and Minerals—40 C.J. sec. 186, p. 789, n. 70.


Appeal from Sixth Judicial District Court, Pershing County; L.O. Hawkins, Judge.

Action to quiet title by A.B. Puett against John P. Harvey and others. From the judgment,

defendants appeal. Affirmed.

Powell & Brown, for Appellants:

It is the contention of the appellants that the judgment is not supported by and is contrary

to the findings and against the law in the following particulars:

That no discovery of mineral in place, as required by law to validate a lode claim located

over a valid and preexisting placer claim, was ever made by the plaintiff within the

boundaries of the Old Grand Placer, or within the boundaries of his purported South

Extension No. 1.

That no discovery work of any kind was ever done or performed on the said purported

South Extension No. 1, as limited by the law relating to the location of lodes over placer

claims, and that no annual labor was ever performed on said claim, so as to be of any

assistance in validating, by relation, an otherwise invalid or unperfected claim.

That the purported South Extension No. 1 lode claimed by the plaintiff never did have and

does not now have any valid or lawful existence.

That the locator of a lode claim over a valid and preexisting placer acquires no placer

rights within the area of the preexisting placer.

That the respondent never did, and does not now, own or possess any placer rights within

the boundaries of the Old Grand Placer.

That defendant Dull is the owner and entitled to the possession of the placer rights within

so much of the area of the Old Grand Placer as is included within the boundaries of his

unnamed mining claim located by him on November 1, 1926, and described in the pleadings.

That the boundaries of plaintiff's purported South Extension No. 1, if it ever did have any

valid and lawful existence, is bounded by lines drawn parallel to, and 25 feet distant from,

and on each side of the vein or ��


lode, wherever that may lead, being limited, in all events, by the end lines of said purported

lode claim, and which said vein or lode is presumed in law to pass through the center of the

end lines of said lode claim, as actually staked upon the ground.

Cooke & Stoddard, for Respondent:

The finding of the trial court is that on November 27, 1915, plaintiff posted his notice of

location of South Extension No. 1 lode mining claim in a monument constructed according to

law, upon a then subsisting placer location, i.e., the Grand Placer, extending 750 feet

northerly and 750 feet southerly with 300 feet on each side of the middle of the vein, and

sunk a discovery shaft 40 feet west of the discovery monument; that no mineral in place was

exposed in such shaft, but that plaintiff did make a discovery of mineral bearing rock in place

prior to November 1, 1926, and for the assessment year ending July 1, 1926, plaintiff caused

to be done more than $100 worth of labor as assessment work on and for said South

Extension No. 1 claim.

The Grand Placer was abandoned by the owner thereof prior to or at the time of respondent

locating his South Extension No. 1 lode claim upon said Grand Placer, and hence

respondent's South Extension No. 1 was and now is a valid lode location to the full width of

600 feet.

Appellants not having specially pleaded forfeiture of South Extension No. 1 for failure of

plaintiff to do assessment work, are in no position to question either fact or sufficiency of

assessment work on respondent's South Extension No. 1. Lindley Mines (3d ed.), sec. 643, p.

1598; Indiana Nevada Co. v. Gold Hills etc. Co., 35 Nev. 158-166; 126 P. 965; Morrison's

Mining Rights (15th ed.), p. 136-137.

Conceding that South Extension No. 1 is limited to 50 feet in width upon the Grand

Placer, that 50 feet including all mineral—both placer and lode—pertains and belongs to the

South Extension No. 1 claim. Mt. Rosa M. & M. Co. v. Palmer (Colo.), 56 P. 176; 77 A.S.R.

245; 50 L.R.A. 289.


What constitutes a “known vein” within limits of a placer claim, when that question is

raised collaterally as here, is a deposit of mineral in place in such quantity and quality as to

justify expenditures for the purpose of further development work. Noyes v. Mantle, 127 U.S.

348; 32 L. Ed. 168-170; McConaghy v. Doyle (Colo.), 75 P. 419; Butte etc. Mng. Co. v.

Sloan (Mont.), 40 P. 217; Thomas v. South Butte etc. Co. (C.C.A. 9th Cir.), 211 F. 105;

Noyes v. Clifford (Mont.), 94 P. 842.

Appellant's unnamed lode claim attempted to be made on November 1, 1926, never was or

became a valid mining location. The Independence claim, being established as a valid

location, it could only be terminated by failure of annual labor or improvement thereon,

followed by a relocation for such failure, thus making potential forfeiture an actuality.

Appellant's attempted location of November 1, 1926, is void because no name was given

to the claim. Rev. Laws, sec.2422, as amended by Stats. 1925, p. 30. The validity of a mining

location must be determined by the law in force at the time the location was made. Wilson v.

Freeman (Mont.), 75 P. 84; Buckeye Mng. Co. v. Powers (Ida.), 257 P. 833-834; Sisson v.

Sommers, 24 Nev. 379, 55 P. 829-830, 77 A.S.R. 815; Upton v. Santa Rita Mng. Co. (N.M.),

89 P. 275; Belk v. Meagher, 104 U.S. 284, 26 L. Ed. 735; Purdum v. Laddin (Mont.), 59 P.

153-154; Thompson v. Barton Gulch Mng. Co. (Mont.), 207 P. 108-113; Butte etc. Co. v.

Baker, U.S. 119; Knutson v. Fredlund (Wash.), 106 P. 200-201.

OPINION

By the Court, Ducker, J.:

This is an action to quiet title to certain mining ground situated in Rochester mining

district in Pershing County, Nevada. The complaint alleges that plaintiff located two lode

mining claims known as and named South Extension No. 1 and South Extension No. 6, the

former on the 27th day of November, 1915, and the latter on the 5th day of July, 1924, and

subsequently ��


fully performed all acts necessary to complete valid locations of said claims.

In their answer defendants deny the validity of the lode mining locations alleged in the

complaint. It is affirmatively alleged in the answer that on or about the 1st day of November,

1926, the defendant George Dull, after ascertaining that there had been no annual assessment

work performed for the year ending July 1, 1926, upon the part of the public domain formerly

embraced within the Independence lode mine, in good faith and with intent to locate the

same, commenced to work and prospect upon that part of the public domain formerly

embraced within the said Independence lode mine, and found valuable mineral in place

thereon; that on or about the said 1st day of November, 1926, the defendant Dull prepared

and posted upon that part of the public domain formerly embraced within the said

Independence lode mine a notice of location thereof as a lode mining claim; that the

defendant Dull, along with the defendants Harvey and Livesly, continued in good faith and

continuously to work and prospect said ground and with reasonable diligence to perfect a

location of the same under the mining laws of the United States and of the State of Nevada, in

the name and for the use and benefit of the defendant Dull, but, before any mining locations

of such ground had been perfected and before the expiration of the time allowed by law

within which to perform the various acts necessary to perfect such location, and while the

defendants were actually and in good faith working upon, prospecting and mining said

ground, the same being then and there a part of the public domain and open for location under

the mining laws of the United States and the State of Nevada, the plaintiff, without notice to

defendants, wrongfully procured from this court, and caused to be served upon said

defendants, an order restraining and preventing them from “entering upon, occupying,

exercising the rights of ownership, perfecting said location, and working and developing the

same, and from mining, producing and hauling valuable mineral bearing gravel and

concentrates therefrom, or from in any manner interfering �� '�� #


with the plaintiff's use, possession and control of the lands occupied by them, to their great

and irreparable damage, and unless said plaintiff is enjoined and restrained by the judgment

and order of this court, said damage will continue indefinitely.”

It appears from Exhibit B, made a part of the answer, that the mining location claimed is

unnamed; that it adjoins the Bonanza claim on the northeast, and embraces the old Mary

McKinney mine.

The reply denies the validity of the mining claims alleged in the answer. The case was

tried before the court and substantially the following judgment was rendered: “It is ordered,

adjudged and decreed that the plaintiff, subject to his future compliance with the mining laws

of the United States and the State of Nevada regarding the performance of annual labor on

and for the benefit of mining claims, is the owner and entitled to the possession of that

portion of the South Extension No. 1 lode mining claim which is outside of any ground

formerly embraced within the surface boundaries of the old Grand Placer placer mining

claim, and, also, to so much of said South Extension No. 1 lode mining claim located over the

surface of said Grand Placer placer claim as is included within the boundaries formed by end

lines of said Grand Placer claim, and parallel lines drawn through said end lines and 25 feet

distant from each side of the discovery monument of plaintiff's South Extension No. 1 lode

mining claim, including both lode and placer rights therein, thereon, or thereto.”

“That defendant, George Dull, subject to his completing and perfecting his location of his

claim located by him within the surface boundaries of the old Mary McKinney mining claim

on the 1st day of November, 1926, and to his further compliance with the mining laws of the

United States and the State of Nevada, is the owner and is entitled to the possession of the

whole of the surface of the ground within the boundaries of the said unnamed mining

location, so made by him, and of the whole of the mining rights therein, or thereto, save and

except as to the surface of said unnamed �� 4��6�� /�


claim which is in conflict with said South Extension No. 1 lode mining claim, as the said last

named claim is defined and determined herein, and the mining rights within or appurtenant to

said area so in conflict, and save and except as to such extralateral rights in said unnamed

mining claim, if any there be, vested in plaintiff by reason of his ownership of said South

Extension No. 1 lode mining claim, the prior claim in time of location and superior title.”

Defendants have appealed from that portion of the judgment favorable to plaintiff. They

insist that it is not supported by the findings. The findings in support of this part of the

judgment are as follows: “That, on or about the 27th day of November, 1915, the plaintiff

posted a notice of location of a lode mining claim in a monument constructed according to

law upon a valid and existing placer mining claim known as and called the Grand Placer,

located in Rochester mining district, Pershing County, Nevada, and bounded on the west by

the Bonanza Placer mining claim and on the east by the Mary McKinney mine, in which

notice of location the plaintiff set out the name of the locator, the name of the claim, the

location of the claim, the number of feet claimed along the course of the lode, to wit, 750 feet

in a northerly direction and 750 feet in a southerly direction from the discovery monument,

together with 300 feet on each side of the middle of the vein, and all matters required by law

to be stated therein, and thereafter, and within twenty days monumented said claim in

accordance with law, and within ninety days after posting said notice of location, performed

location or discovery work for said claim at a point 40 feet west of the discovery monument,

consisting of a shaft four feet wide, six feet long and ten feet deep, but not exposing any lode,

ledge, vein or mineral deposit in place, but did make a discovery of mineral bearing rock or

ledge in place within the surface boundaries of the old Grand Placer, which said discovery

was made by plaintiff prior to July 1, 1926. That said locator did not, within the time

provided by law, or at all, file or record either in �� ,�� 9��$� ��/�� 4��:�� 9��$� �� #


the office of the district mining recorder of Rochester mining district or in the office of the

county recorder of Humboldt County, Nevada, in which said county said mining claim was

then located, any certificate of location thereof, but that said locator did on the 9th day of

September, 1918, cause to be recorded in the office of the county recorder of said Humboldt

County, a notice of location of said claim.”

“That for the assessment year ending July 1, 1926, the plaintiff did, and caused to be done,

more than $100 worth of labor, as assessment work for said South Extension No. 1 lode

mining claim, and that at the time of the attempted location of a portion of the ground within

said claim by defendants on November 1, 1926, that portion of said claim which plaintiff

could legally locate on November 27, 1915, was not subject to relocation by defendants or

any one else.”

1. It is insisted by defendants that the judgment cannot be sustained because there is no

finding of a lode deposit of mineral in place on the South Extension No. 1 lode mining claim,

and further insisted that if it can be said that the court made a finding of a discovery within

the limits of the claim as defined by the court, it is not of such a discovery as is required by

law where a lode claim is located over a placer claim. The answer to these contentions is

found in section 403 of the civil practice act (Rev. Laws, sec. 5345) as amended by Stats.

1919, p. 319. The statute reads:

“In cases tried by the court, without a jury, no judgment shall be reversed for want of a

finding, or for a defective finding of the facts, unless exceptions be made in the court below

to the finding or to the want of a finding after application to the court for additions to or

modification of the findings with notice given to the adverse party as prescribed in section

285 of this act. Upon failure of the court on such application to remedy the alleged error, the

party moving shall be entitled to his exceptions.”

It does not appear from the record that defendants made any application to the court for a

finding on the �� 4��6�� /�


issue of the location or discovery work on the South Extension No. 1, and counsel concedes

that none was made. Consequently a finding in this regard sufficient to support the judgment

must be implied. Dutertre v. Shallenberger, 21 Nev. 507; Edwards v. Jones, 49 Nev. 342, 246

P. 688.

2. Defendants contend also that if the location of South Extension No. 1 was valid, it being

a lode location within a valid and preexisting placer, it does not carry with it both the lode

and placer rights within its boundaries; that plaintiff is entitled only to the lode. We are of the

opinion that the South Extension claim carries both the lode and rights to the surface within

25 feet on either side thereof. As stated by Mr. Lindley in his excellent work on mines: “If we

assume that nothing is reserved out of the placer location but the lode itself, we practically

concede that the reservation is of no substantial benefit to any one, as the right to enjoy it

would be practically denied, * * * but the mining laws contemplate no such conditions. The

only method by which a lode may be located is by defining a surface enclosing it.”

The surface of a lode location without placer is defined by sec. 2333, Rev. St. of the

United States (30 USCA, sec. 37), to be twenty-five feet of surface on each side of a lode.

This section, as pointed out by Mr. Lindley, is somewhat ambiguous and has been the cause

of conflicting decisions by the land department. But the question involved here has been

directly, and we think correctly, decided by the supreme court of Colorado in Mt. Rosa, M.M.

& L. Co. v. Palmer, 26 Colo. 56, 56 P. 176, 50 L.R.A. 289, 77 Am. St. Rep. 245, contrary to

defendant's contention.

In that case the lower court found that the appellee had valid lode locations within a placer

and awarded him the full amount claimed, to wit, 300 by 1,500 feet in each of the claims. It

was insisted by counsel for the appellant that he was entitled to only the mineral lodes, and

not to any of the surface of the placer ground. The supreme court held that the lower court

erred in adjudging to appellee surface ground in excess of 25 feet on �� &��


each side of the lodes in question. We quote the following from the opinion, which shows the

reasoning of the court:

“The question was also involved upon the trial of the case of Campbell v. Iron S.M. Co. in

the United States circuit court for this district, Judge Riner presiding. He entertained the view,

and instructed the jury to the effect that a lode claimant, in case of a recovery, was entitled to

no more than the vein or lode and fifty feet of ground, extending 1,500 feet in length.

“We think this instruction correctly defines the amount of surface ground to which a lode

located within the boundaries of a placer is entitled, under the provisions of section 2333. As

was said in Reynolds v. Iron S.M. Co. supra, ‘this section made provision in three distinct

classes of cases: (1) when the applicant for a placer patent is at the time in possession of a

vein or lode included within the boundaries of his placer claim, he shall state that fact; and on

payment of the sum required for a vein claim and twenty-five feet on each side of it, at $5 per

acre, and $2.50 for the remainder of the placer claim, his patent shall cover both; (2) it

enacted that where no such vein or lode is known to exist at the time the patent is applied for,

the patent for a placer claim shall carry all valuable mineral and other deposits which may be

found within the boundaries thereof; (3) but in case where the applicant for the placer is not

in possession of such lode or vein within the boundaries of his claim, but such vein is known

to exist, and it is not referred to or mentioned in the claim or patent, then the application shall

be construed as a conclusive declaration that the claimant of the placer mine has no right to

the possession of the vein or lode claim.'

“We think it is manifest that the lode or vein referred to in the first and third provisions is

the same thing; and that whatever a placer claimant would acquire by availing himself of the

privilege accorded him by the first provision of the section, is reserved by virtue of the third

provision; in other words, that the same extent of surface ground that is incident to such lode��


or vein, if located and patented by the placer claimant, is reserved from the placer patent in

case of his failure to claim and patent the same. If he elects to patent the lode he is required to

take twenty-five feet on each side of the center of the vein and pay therefor at the rate of $5

per acre. This is a privilege accorded to him, which he may avail himself of or not, as he sees

fit. If he elects to waive this privilege, he may do so in one of two ways; either by expressly

excepting the lode from his placer location and application for patent, or remain silent in

regard to it. If silent, then by implication he declares that he makes no claim to such lode; and

by such silence is bound to the same extent, and in the same manner, but no further than he

would have been by an express declaration. By electing to make no claim to a known lode, or

express declaration in regard to it, he must be understood as claiming, for placer purposes, the

greatest possible area within the boundaries of his placer claim, and should be held to have

relinquished only that which he might have taken, which is the lode, with the amount of

surface ground provided. Why should there be any difference between the rights of claimants

of known lodes within the boundaries of a placer? We know of none. The object of excepting

known lodes from placer locations was to prevent titles to such lodes being obtained under

the guise of a placer, at the same time, in order to protect claimants to each character of

mineral locations to the greatest extent, and preserve to each that which was most valuable

for particular purposes in connection with each class of claims. The lode, for convenient

working, could not be limited to less than twenty-five feet on each side of the center of the

vein; and the placer, which would be valueless without such surface rights, is permitted to

take title to the remaining area accordingly. Those who controvert this view base their

contention upon the provisions of section 2320, which it is said governs the length and width

of all lode claims, whether made within the boundaries of a placer claim or not.

“An act on a particular subject must be construed as ��


a whole. Section 2320 refers to the location of lodes not conflicting with any other class of

mineral locations, while by section 2333 special conditions with reference to conflicts

between the two classes of mineral claims are specially provided for; and to that extent

construing the act as a whole is a limitation or qualification of the provisions of section 2320,

which relates, as stated, to the width of lode claims generally and regulates the width of lode

claims when made upon lodes within the boundaries of a placer, whether such lodes are

located by the owner of the placer, or strangers to that title. By this construction, full force

and effect is given to both of these sections, and the purpose of the statute is carried out. The

government receives for its mineral lands the price fixed for lodes and placers respectively,

and the superior right to the surface area of the placer claimant, acquired by his prior location

or patent, is protected. It is the conclusion of a majority of the court that the limitation of the

width of a lode claim in section 2333 is not only applicable to the placer claimant, but applies

as well to others who locate a lode within the boundaries of his previously located placer.

“Chief Justice Campbell declines to express an opinion upon this question, because, in his

judgment, the stipulation entered into by counsel eliminates it from the case.”

Commenting on this opinion and subsequent ruling of the courts and land department in

accord with it, Mr. Lindley says:

“The principle is recognized by the supreme court of Montana (Noyes v. Clifford, 37

Mont. 138). In the case of Clipper M. Co. v. Eli M. & L. Co. (194 U.S.), the Supreme Court

of the United States says somewhat guardedly that the lode claimants would be entitled to at

least 25 feet on each side of the middle of the vein.

“The views thus entertained by the supreme court of Colorado have recently received the

approval of the secretary of the interior in a communication addressed to the attorney-general.

* * * The secretary calls the attorney-general's attention to the views in the cases �� &�� $�� -�;<�� '�<�� .��


heretofore commented on, and then gives his unqualified sanction to the doctrine announced

by the court of Colorado, in the following language: ‘This decision, coming from the court of

last resort of one of the principal mining states, is entitled to grave weight, and upon careful

consideration of the reasons assigned for the conclusion reached, the department is of the

opinion that the interpretation given the statute in said decision is correct.' This opinion was

referred to and followed by the secretary of the interior in the case of Daphne lode claim.

With this consensus of opinion of the courts and the land department the rule may be

considered as practically settled.” Lindley on Mines (3d ed.), vol. 2, pp. 979-980.

3. It is claimed that the court erred in defining the limits of the South Extension No. 1 over

the Grand Placer as so much thereof as is included within the boundaries formed by the end

lines of the Grand Placer and parallel lines drawn through said end lines and 25 feet distant

from each side of the discovery monument of plaintiff's South Extension No. 1. In the

absence of a finding to the contrary, or evidence as to the location and direction of the lode

we must assume it extended through the center of the 50 foot limitation defined by the court.

The judgment is affirmed.

____________

��51 Nev. 53, 53 (1928) Wheeler & Stoddard v. Portland Cattle Loan Co.��

WHEELER & STODDARD v. PORTLAND CATTLE LOAN CO.

No. 2759

June 21, 1928. 268 P. 46.

1. Chattel Mortgages—Generally, Proceeds from Sale of Mortgaged Property Must Be

Applied on Mortgage, though Not So Directed. Generally, in absence of agreement to contrary, money realized from sale of mortgaged property must

be applied on mortgage even without direction to that effect.

2. Chattel Mortgages—Silence by Mortgagor Knowing Proceeds of Mortgaged Property

Voluntarily Sold were Applied on First Mortgage and Running Account Held

Ratification, Precluding Claim that Second Mortgage Debt Should Have Been

Preferred. Where sale of mortgaged property while made at request of mortgagee was voluntary, and mortgagor

was notified of application of money received from sale to payment of balance due on first mortgage and

to running account, and mortgagor did not protest or demand application of money to extinguish second

mortgage, silence with knowledge of fact that payment was applied on running account amounted to

ratification of such application, and mortgagor could not thereafter insist that second mortgage debt

should have been preferred.

3. Bills and Notes—Chattel Mortgages—Evidence Held to Show Acquiescence by Mortgagor

in Application of Proceeds of Mortgaged Property on Running Account, Rather than

Mortgage Indebtedness. In suit on note and to foreclose second mortgage, evidence that mortgagor was notified of application

of proceeds of mortgaged property to pay first mortgage and on running account, and evidence of

agreement made after notice providing for sale of remaining mortgaged property and full payment of

mortgage, tended to show that mortgagor knew of manner in which proceeds of mortgaged property sold

had been applied and acquiesced therein.

4. Bills and Notes—Chattel Mortgages—Knowledge by Mortgagor that Proceeds of

Mortgaged Property Were Applied on Running Account, Rather than Mortgage, Held

for Jury and Court under Conflicting Evidence. In suit on note and to foreclose second mortgage, question of notice to and knowledge by mortgagor

that proceeds of part of mortgaged property sold had been applied on running account and not mortgage

held for jury and court under conflicting evidence.

5. Bills and Notes—Indorsers on Notes Secured by Mortgage Had No Right to Have Proceeds

of Mortgaged Property Applied to Satisfy Mortgage. Individual indorsers on notes secured by mortgage having no interest in proceeds of mortgaged

property did not have ��


right to have money derived from sale of part of mortgaged property applied to satisfaction of mortgage

debt rather than to running account due mortgagee.

6. Payment—Right of Appropriation of Money to One of Several Debts Due Same Person

Exists Exclusively between Debtor and Creditor. Right of appropriation of money to one of several debts owing to same person is right existing

exclusively between debtor and creditor.


Bills and Notes—8 C.J. Sec. 1389, p. 1068, n. 51.

Chattel Mortgages—11 C.J. sec. 347, p. 633, n. 9; sec. 521, p. 714, n. 28; sec. 548, p. 725, n. 45.

Payment—30 Cyc. p. 1250, n. 88; p. 1251, n. 94.

Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Action by Portland Cattle Loan Company against Wheeler & Stoddard, Inc., and others.

Judgment for plaintiff, and defendants appeal. Affirmed.

M.B. Moore, for Appellants:

It was the duty of the Portland Cattle Loan Company, even if there were no indorsers on

the note, in the absence of any agreement to the contrary, to apply the proceeds from the sale

of the mortgaged stock towards the payment of the mortgaged indebtedness, but when there

are indorsers on the note and other interested parties it becomes obligatory upon them so to

do. 27 Ency. Law and Procedure, page 1394, paragraph E, citing in connection therewith Ellis

v. Mason, 10 S.E. 1069 and other cases; 30th Ency. Law & Procedure, page 1237, paragraph

F; numerous citations of authorities in No. 8 at page 1237, 30th Ency.; 30th Ency. page 1248,

paragraph 8; Hicks v. Bingham, vol. 11, Supreme Court Mass. page 302; Strictland v.

Kendall, 3 So. 41; Frazier v. Lanahan, 71 Maryland, 131; 17th Am. St. Rep. 517; Nixon v.

Culvert, 57 N.W. 285; Winston v. Farrow, 40 Ala. 55; Darden v. Gerson, 91 Ala. 323; Brown

v. Larry, 44 So. 843; Lee v. Manley, 70 S.E. 386; Ogden v. Harrison et al., 56 Miss. 743;

Howard et al. v. Schwartz, 55 S.W. 348.


E.F. Lunsford, for Respondent:

Even assuming under the law and authorities the money from the sale of the mortgaged

property should have been applied to the satisfaction of the mortgage, nevertheless the

respondent having applied it partly to the satisfaction of the open or book account, and having

immediately notified the debtor, Wheeler & Stoddard, Inc., of the manner in which it was

applied, and the appellant not having complained thereof within a reasonable time, the latter

is held to have acquiesced in the method of application, and by its conduct is estopped from

insisting upon a different application after the lapse of a reasonable length of time. The rule

and authorities upon this proposition is found in 21 R.C.L. page 97, under the title

“Payment,” and the subhead “Money Derived from Particular Source or Fund.” In addition,

we cite the following cases: Larkin v. Watt (Civ. App.), 32 S.W. 552 (Texas); 30 Cyc. 1239,

citing numerous cases; Sweeney v. Pratt, 70 Conn. 274, 39 Atl. 182; Snyder v. Stone, 78 Ill.

App. 17; Citizens Bank v. Carey et al., 48 S.W. 1013; DeBusk v. Perkins (Ky.), 269 S.W.

716-717; Cain v. Vogt (Iowa), 128 A.S.R. 217; Coney v. Laird (Mo.), 55 S.W. 96; Louis v.

Bauer, 53 N.Y. Sup. 988; Hawkins v. Bouye (Md.), 88 Atl. 196; Zayas v. Lothrop et al., 58 L.

Ed. 172.

The rule is almost universally laid down that guarantors, sureties, indorsers and other third

parties have no interest in the method of the application of funds by either a debtor or

creditor. Wyandotte Coal Co. v. Wyandotte Pav. etc., 97 Kan. 203, 154 P. 1012; Wilson v.

Allen (Ore.), 2 P. 91; H.S. Gile Grocery Co. v. Lachmund (Ore.), 146 P. 519-520;

Wanamaker v. Powers (N.Y.), 79 N.E. 118; Capron v. Strout, 11 Nev. 304; Steiner v. Jeffries

(Ala.), 24 So. 37; Thacker v. Bullock Lumber Co. (Ky.) 131 S.W. 271.

The findings and verdict of a court or jury will not be disturbed by the appellate court

where there is any evidence on which the court or jury could have reasonably formed their

conclusions. McNee v. McNee, 49 Nev. 90; Johnson v. Harris, 48 Nev. 312; Barnett 5� ��$��!:�/��2��"�5��)��=��!��/��2 7"��)��6��!��/��2 0"�>��3��!7�/��2��"��.��5�� !?�/��22"�4�� ,�� !0/��1"�5��@�� !0�/��?:"�+��)�� !�>��2 �"�9��6�� >��A$��B�


Bank v. Chiatovich, 48 Nev. 319; Barcellos v. Gompertz, 49 Nev. 326; McGuire v. Ehrlich,

49 Nev. 325; Page v. Walser, 46 Nev. 391; Moore v. De Bernardi, 47 Nev. 33; Strattan v.

Raine, 45 Nev. 10; Bralis v. Flanges, 45 Nev. 178; Little v. Gorman, 114 P. 321; Hills v.

Edmund Peycke (Cal.), 110 P. 1088.

OPINION


This action, which resulted in a judgment against appellants, was commenced by

respondent to recover the sum of $15,980.81, with interest thereon, upon a promissory note

executed by the appellant, Wheeler & Stoddard, Inc., and also for a decree foreclosing a

mortgage on live stock given as security for the payment of the note. The appellants, C.S.

Wheeler and Lytton Stoddard, indorsed the note. The mortgage sued on was a second

mortgage. For several years prior to the commencement of the suit the respondent had been

financing the business and operation of Wheeler & Stoddard, Inc. The respondent during this

time advanced all of the moneys with which the former purchased its live stock, sheep and

other personal property, and also all of the moneys which were needed and used to pay the

salaries and all its operating expenses. The respondent took notes and first mortgages on the

property as it was purchased by Wheeler & Stoddard, Inc., and until a late date in 1922 took

notes and second mortgages on the same property for the different amounts advanced for

operating expenses. These notes and mortgages were executed by Wheeler & Stoddard, Inc.,

and indorsed by C.S. Wheeler and Lytton Stoddard. Whenever the Wheeler & Stoddard, Inc.,

sold any portion of its live stock the money would be sent to respondent without directions as

to how the payments should be applied as between the first and second mortgages which

covered the running account. By the spring of 1922 the indebtedness, aside from that

evidenced by the note in question secured by a second �� C21�111�� 3��*�4��D ��C?�0:!��


mortgage, and an open account amounting to something like $30,000, had all been paid by

Wheeler & Stoddard, Inc., except $7,584, the balance on a note secured by a first mortgage.

In the summer of 1922 the respondent prepared a new note covering the amount of the open

or book account and sent it to C.S. Wheeler for the purpose of obtaining his individual

indorsement, together with that of Lytton Stoddard. Wheeler returned the note with a refusal

to sign it. The respondent notified Wheeler & Stoddard, Inc., to sell its live stock and

liquidate its indebtedness, and sent its representative to Reno for that purpose. All of the

sheep belonging to Wheeler & Stoddard, Inc., and which were included in the second

mortgage, were sold and the money sent to respondent. This amounted to the sum of $31,374,

approximately, and was applied by respondent as follows: $7,584 to pay the balance on the

note secured by a first mortgage, and the balance, which was something like $23,717, on the

open book account.

The action was tried before the court with a jury. Special issues were submitted to and

answered by the jury, which were adopted by the court in its findings. Substantially the issues

found by the jury and adopted by the court were as follows: That the note and mortgage sued

upon had not been paid; that there was no understanding between the plaintiff and the

defendant, Wheeler & Stoddard, Inc., and defendant C.S. Wheeler and Lytton Stoddard, or

either of them, that the money received from the sale of the mortgaged stock should be

applied to the payment of the note and mortgage sued upon in reference to any other account

between the parties; that plaintiff notified the defendant, Wheeler & Stoddard, Inc., that the

money received from the sale of the stock was not applied on the note and mortgage, and that

the latter had notice from the plaintiff, or knowledge that the money so received was applied

on the drawing account and other indebtedness between the parties and not upon the note and

mortgage; that the plaintiff on or about the 3d day of November, 1922, informed defendants

Carl Wheeler and +�� 4��C?�011��C2��2?!�� 3��*�4��D ��


Lytton Stoddard that it had applied all except about $7,500 of the $31,374 received from the

sale of the mortgaged sheep to the current or open account of Wheeler & Stoddard, Inc., and

not to the payment of the note and mortgage sued upon in this case.

This case presents the question whether the appellant were entitled to have the proceeds of

the sale of the mortgaged sheep applied to the satisfaction of the mortgage debt.

1. It is a general rule that in the absence of an agreement to the contrary, money realized

from the sale of mortgaged property must be applied on the mortgage even without direction

to that effect. But there is an exception to this general rule, which is sustained by ample

authority. In 21 R.C.L. 97, the author, referring to the general rule which appellants claim is

controlling in this case, states:

However, “a mortgagor, if he sees proper, may consent to adopt or ratify an unauthorized

application of payment made by his mortgagee creditor of the proceeds of mortgaged property

to an unsecured debt. Whether the mortgagor has consented to either is a question of fact to

be determined by the jury, and the burden is upon the mortgagee, in either case, reasonably to

satisfy the jury of such consent or ratification.”

This rule was stated in Boyd v. Jones, 96 Ala. 305; 38 A.S.R. 100.

We are of the opinion that the facts of this case bring it within the exception stated. As

said in Cain v. Vogt, 138 Ia. 636:

“Rules which bind the mortgagee who sells upon foreclosure, or takes possession of and

sells and converts the security have little application to a case where the payment is made

from money obtained by a voluntary sale” of the property.

2. Such is the case here. The sale, while made at the request of the mortgagee, was

voluntary. A representative of the respondent merely assisted in finding a buyer. The jury

found, as we have seen, that appellants Wheeler & Stoddard, Inc., Carl Wheeler and Lytton4��


Stoddard, were notified by respondent of the application of the money received from the sale

of the mortgaged sheep to the payment of the balance due on the first mortgage and to the

running account, and that they had knowledge of such application. They acquired this

knowledge by notice in writing from the respondent in November, 1922. This suit was

instituted on March 31, 1924. During the intervening time appellants made no protest against

the action of respondents, or demand for an application of the money to the extinguishment of

the mortgage debt. Their silence in this respect during this long period, with knowledge of the

fact that respondent had applied the payment to the first mortgage and on the running

account, amounts to a ratification of such application, and they cannot now be heard to insist

that the second mortgage debt should have been preferred.

3. The point is made by appellants that the evidence does not support the finding of the

jury and the court that they received notice from the respondent of the manner in which the

money received from the sale of the sheep was applied.

After carefully reviewing the evidence we are of the opinion that it is sufficient to sustain

these findings.

Mr. E.E. Williams, the credit manager and assistant secretary of respondent, testified that

the money obtained from the sale of sheep covered by the mortgage was received by his

company on November 3, 1922, and applied to the payment of the first mortgage and on the

running account; that on the same day or the following be sent to Wheeler & Stoddard, Inc.,

the company's official receipt for the money, to which was attached a statement showing the

amount applied in payment of the balance on the first mortgage and the amount applied to the

running account; that they never to his knowledge made any objection to the method by

which the money was applied. There is also further evidence on this point furnished by an

agreement between D.C. Wheeler, Inc., and Wheeler & Stoddard, Inc. This agreement was

signed by appellant C.S.


Wheeler for D.C. Wheeler, Inc. C.S. Wheeler was president and general manager of Wheeler

& Stoddard, Inc. The agreement was executed on November 13, 1922. It provided for the sale

to D.C. Wheeler, Inc. of the remnant of the live stock, consisting of cattle, remaining covered

by the second mortgage after the sheep subject to it had been sold, and the proceeds of the

sale remitted to respondent. This agreement reads in part:

“* * * made this thirteenth day of November, 1922, between D.C. Wheeler, Inc., by its

manager, C.S. Wheeler, and Wheeler & Stoddard, Inc., whose action is hereby approved by

the undersigned Parry Black, representative of the Portland Cattle Loan Company, which

latter-mentioned company hold the live stock herein mentioned under a mortgage.”

It also contains the following clause:

“The title of the above cattle is to remain in Wheeler & Stoddard, Inc., and the mortgage

held by the Portland Cattle Loan Company is not to be released until the full amount of

money has been turned over to them, i.e., the sum of seven thousand one hundred and ten

dollars ($7,110.00).”

4. The property described in the agreement is the same property which was the subject of

this action on the foreclosure proceedings in the court below. It was executed something like

ten days after the money for the sheep was remitted to respondent and a statement of its

application rendered Wheeler & Stoddard, Inc., as testified to by Williams. Consequently, it

tended to show by the clauses recognizing that the live stock was still held under a mortgage

that appellants had knowledge of the manner in which the money for the sheep had been

applied and had acquiesced therein. It is true that C.S. Wheeler testified that Wheeler &

Stoddard, Inc., received the receipt for the moneys, but that no statement showing how the

money was applied was received. However, on this evidence the question of notice and

knowledge was for the jury and court.

5, 6. It is urged in behalf of appellants, C.S. Wheeler � ��+�� 4��


and Lytton Stoddard, that they, being individual indorsers on the note secured by the

mortgage, had the right to have the money derived from the sale of the sheep applied in

satisfaction of the mortgage debt. There is no merit in this contention. The law is well

established that the right of appropriation of money to one of several debts owing to the same

person is a right existing exclusively between the debtor and creditor. 30 Cyc. 1251; Gordon

v. Hobart, 2 Story, 243; Wyandotte Coal Co. v. Wyandotte Pav. etc., 97 Kan. 203, 154 P.

1012; H.S. Gile Grocery Co. v. Lachmund (Ore.), 146 P. 519; Wanamaker v. Powers (N.Y.),

79 N.E. 1118; Steiner v. Jeffries (Ala.), 24 So. 37; Thacker v. Bullock Lumber Co. (Ky), 131

So. 271; Pope v. Transparent Ice Co., 91 Va. 79.

The general rule is thus stated in Cyc., supra:

“Third persons, such as guarantors, sureties, indorsers, and the like, secondarily liable on

one of the debts, cannot control the application of a payment by either the debtor or the

creditor, and neither the debtor nor the creditor need apply the payment in the manner most

beneficial to such persons.”

“But this right of appropriation,” said Judge Storey, in Gordon v. Hobart, “is one strictly

existing between the original parties; and no third person has any authority to insist upon an

appropriation of such money * * * where neither the debtor nor the creditor have made or

required any such appropriation.”

In Wyandotte Coal & Mining Co. v. Wyandotte Paving Co., supra, the court said:

“The right of appropriation of payments belongs exclusively to the debtor and creditor, and

a third party cannot be heard to complain of a different appropriation from that agreed upon

by the debtor and creditor.”

The facts of a given case may bring it within an exception to the general rule, such as

where the money paid is the money of the third party. But in such a case it has been held that

“the creditor must know that he is receiving the third person's money or there must be �� #


facts sufficient to put him on notice.” Thacker v. Bullock Lumber Co., supra. The money in

this case belonged to the debtor primarily liable, the Wheeler & Stoddard, Inc., C.S. Wheeler

and Lytton Stoddard as individuals had no interest in it, and consequently, under the rule

applicable, had no right to insist upon an appropriation favorable to them.

Counsel for appellants in his brief makes a number of contentions based on alleged errors

at law occurring at the trial. These are not considered for the reason that on a motion formerly

heard and decided by this court in this case the memorandum of errors in this court involving

errors at law occurring at the trial was struck from the record on appeal.

The judgment should be affirmed, and it is so ordered.

____________

��51 Nev. 62, 62 (1928) Carroll v. Carroll��

CARROLL v. CARROLL

No. 2799

July 2, 1928. 268 P. 771.

1. Divorce—Suit for Separate Maintenance Does Not Abate Counterclaim for Same Matters

in Subsequent Divorce Suit. In suit for divorce, wife's counterclaim was not subject to abatement because same matters had been

pleaded in suit for separate maintenance brought prior to divorce suit.

2. Pleading—Abatement Plea Must Go to Entire Cause of Action. A plea in abatement must go to the entire cause of action.

3. Abatement and Revival—Plea of Prior Action Applies Only where Plaintiff in Both Suits

Is Same Person. A plea of a prior action pending applies only where the plaintiff in both suits is the same person, and

not where cross-suit is brought by one who is defendant in another suit.

4. Pleading—It Was Incumbent on Plaintiff to Prove Pendency of Prior Suit Pleaded in

Abatement of Counterclaim. Where plaintiff in divorce suit pleaded suit for separate maintenance in abatement of wife's

counterclaim, it was incumbent on him to prove pendency of such suit.


5. Divorce—It is Presumed on Appeal from Judgment for Defendant, that Plaintiff Did Not

Establish Plea in Abatement. On appeal from judgment for defendant in divorce suit, in absence of evidence, the presumption is that

plaintiff did not prove pendency of former suit pleaded by him in abatement of counterclaim.

6. Divorce—Allegations of Counterclaim for Separate Maintenance as to Necessity that

Husband Contribute Specified Amount Held Conclusions. Counterclaim in divorce suit for separate maintenance, alleging that defendant had not sufficient income

to support herself in accustomed manner, and that it was necessary that plaintiff contribute specified

amount, alleged only conclusions, and was insufficient.

7. Pleading—Motion to Strike Conclusions Was Not Necessary, when Party Demurred for

Want of Sufficient Facts. Where plaintiff demurred to counterclaim consisting of conclusions for failure to state facts sufficient to

constitute a ground of relief, a motion to strike the allegations was unnecessary.

8. Divorce—Husband and Wife—Divorce Suits Are Equitable, but Right to Separate

Maintenance Is Determinable from Evidence. While divorce suits are purely equitable, propriety of allowance for separate maintenance is one of fact,

to be determined from the evidence.


Abatement and Revival—1 C.J. sec. 38, p. 45, n. 81; sec. 92, p. 70, n. 87; sec. 100, p. 76, n. 19; sec. 107, p.

82, n. 77.

Divorce—19 C.J. sec. 23, p. 22, n. 85; sec. 305, p. 118, n. 55; sec. 475, p. 192, n. 16.

Husband and Wife—30 C.J. sec. 897, p. 1088, n. 63.

Pleading—31 Cyc. p. 64, n. 31; p. 169, n. 7; p. 617, n. 45; p. 674, n. 34.


Suit by George W. Carroll against Emma F. Carroll. Judgment for defendant, and plaintiff

appeals. Reversed.

Cooke & Stoddard, for Appellant:

Plaintiff's defense of another suit pending, in his answer to defendant's cross-complaint,

same being founded upon the written instruments, i.e., pleadings in former case, not being

denied by defendant, stand ��


admitted and constitute a complete defense to this action. Rev. Laws, section 5063; Tonopah

Lumber Co. v. Riley, 30 Nev. 312, 95 P. 1001-1002; Cox v. Schnerr (Cal.), 156 P. 509-511;

Sloan v. Diggins, 49 Cal. 38-40; Rosenthal v. Merced Bank (Cal.), 42 P. 640-641; Knight v.

Whitmore (Cal.), 57 P. 891-892; Moore v. Copp (Cal.), 51 P. 630-631.

A cross-complaint must allege the grounds for divorce or separate maintenance as the case

may be, and the facts constituting the cause of action as fully and completely as a complaint.

3 Bancroft Code Pleadings, p. 2213, sec. 1362; Coulthourst v. Coulthourst, 58 Cal. 239-240;

Hilton v. Dist. Court, 43 Nev. 128, 183 P. 317; Dixon v. Pruett, 42 Nev. 345, 177 P. 11;

Kriechbaum v. Melton, 49 Cal. 55; Haskell v. Haskell, 54 P. 262; Dunham v. McDonald

(Cal.), 168 P. 1063; Bullard v. Bullard (Cal.), 209 P. 361-362; 31 Cyc. 227-228; Rose v.

Treadway, 4 Nev. 455-459; 97 A.D. 546; 1 Bancroft Code Pleadings, 569, sec. 386, n. 9.

Hence this case is squarely within the statute which provides defense of another suit

pending between same parties, for same cause, may be raised by demurrer if the objection

appears upon the face of the answer, or if not so appearing, such defense may be made by the

reply. Rev. Laws, secs. 5054, 5056; see, also, Id. sec. 5040, subdiv. 3, and sec. 5044. See,

also, 1 C.J. 45, sec. 38, 1 C.J. 57, sec. 73; 1 C.J. 61, sec. 80; 1 C.J. 66, sec. 83; 1 C.J. 68, sec.

87; 1 C.J. 70, sec. 92; 1 C.J. 73, sec. 94 and n. 3. Neither does it matter that the parties are

reversed, i.e., defendant here being plaintiff in the former action. 1 C.J. 74, sec. 97.

It affirmatively appearing by defendant's answer that she already possessed in her own

right about $9,000 income per year and owned property worth about $200,000, and no fact

being alleged which might tend to show that same was insufficient for her support, the award

to defendant against plaintiff by the trial court of $200 per month additional for support of

defendant is unsupported by the pleadings, outside of and beyond ��


the issues and contrary to the admitted facts. Hilton v. District Court, 43 Nev. 133, 183 P.

317; Black v. Black (Nev.), 221 P. 239-240; Effinger v. Effinger (Nev.), 228 P. 615-616; 2

Nelson on Divorce and Separation; 19 C.J. 215 and n. 67; Rutledge v. Rutledge, 119 S.W.

489; Stiehn v. Stiehn, 72 N.W. 708; Keezer Marriage and Divorce (2d ed.), sec. 701 and n.

99, sec. 740 and n. 5, sec. 754 and n. 40.

Cantwell & Springmeyer, for Respondent:

In a suit in equity, a well-taken plea in abatement results only in the second suit being

stayed, and does not call for the dismissal of the later suit. 1 C.J. 27, sec. 5. If prior to the

hearing on the plea the prior suit be dismissed, the plea will be overruled. 1 C.J. 93, sec. 130;

1 C.J. 94, sec. 132.

By proceeding with the trial of the suit, without first securing a ruling on his plea in

abatement, the appellant waived that plea. 1 C.J. 104, sec. 152, par. 2.

The plea in abatement was not well taken in the first place, and should have been

overruled. Pleas in abatement are not favored in the law. 1 C.J. 28, sec. 7; 1 C.J. 45, sec. 38; 1

C.J. 48, sec. 42.

The general rule obtains that where there are cross-suits the first may not be pleaded in

abatement in the second. 1 C.J. 82, sec. 107. For such a plea to be well taken, the issues must

be the same in the two suits. 1 C.J. 61, sec. 80; 1 C.J. 70, sec. 92; 1 C.J. 72, sec. 93.

There is essential difference between the right of a divorced woman (an ex-wife) to receive

support (permanent alimony) and the right of a deserted wife, not herself at fault, to receive

separate maintenance from her husband. In the former case the relation of husband and wife

no longer exists, and without statutory authority therefor, no such award may be made. 13

R.C.L. 1188. But in the latter case the relation of the husband and wife still continues, and

likewise, the obligation of the husband to support his wife continues, without regard to her

own property holdings or means.


13 R.C.L. 1188; 1 Schoular on Marriage, Divorce, Separation and Domestic Relations, sec.

45; 2 Id. 1570; Veckers v. Veckers (W. Va.), 109 S.E. 234.

OPINION


This is a suit for divorce instituted by appellant, the cause of action alleged being that of

cruelty. The defendant denied the allegations of cruelty, and by counterclaim pleaded cruelty

and adultery on the part of the plaintiff. To the counterclaim the plaintiff filed a reply wherein

he denied the affirmative matter of the counterclaim, and also pleaded in abatement that,

previous to the institution of the divorce suit, the defendant had instituted an action for

separate maintenance wherein she alleged the identical matter pleaded by her in the

counterclaim. There are no minor children.

Upon the trial the court entered judgment in favor of the defendant, awarding her separate

maintenance in the sum of $200 monthly. The plaintiff appealed from the judgment only.

On his appeal plaintiff makes but three points: (1) That the trial court erred in disallowing

his plea in abatement; (2) that the counterclaim does not state a cause of action; (3) that the

award to the defendant of separate maintenance was improperly made.

1. We think there is no merit in the first contention. The cause of action pleaded by the

plaintiff as a ground for divorce had not accrued at the time of the institution of the separate

maintenance suit by the defendant, and, when she set up in this suit the matter which she had

pleaded in the separate maintenance suit, she was not the originator of the proceeding, but

was brought in against her will. She did not come into court of her own volition. She was

forced in. The theory upon which the rule relied upon is that no one should be harassed by a

multiplicity of suits. 1 C.J. 45. No such situation is here presented.

2. Furthermore, a plea in abatement must go to the � ��


entire cause of action. In the separate maintenance suit the plaintiff therein did not seek nor

wish a divorce. In the present action she is opposing plaintiff's action for a divorce, and

incidentally seeking separate maintenance.

The test generally applied in determining whether the plea in abatement is well founded is

whether there is substantial difference in the relief sought. 1 C.J. 70; Whitman Co. v. Baker et

al., 3 Nev. 387.

3. In the instant case there is a substantial difference in the relief sought by the defendant

from that which she sought in her separate maintenance suit, in that she now seeks to defeat

plaintiff's demand for a divorce. The great weight of authority, and the better reasoning, is to

the effect that the plea of a prior action applies only where the plaintiff in both suits is the

same person, and not in cases in which there are cross-suits by one who is the defendant in

another suit. 1 C.J. 82. The reason for this can be readily seen, especially in the circumstances

in which the defendant finds herself in the instant case. She must necessarily plead a portion

of the matter pleaded in her complaint in the separate maintenance suit or suffer an unjust

cause of action, from her standpoint, to go undenied. If the law were as contended by

plaintiff, the policy of the law not to encourage divorces would be overthrown by the law

itself.

Counsel for plaintiff cites authorities which it is claimed sustains his contention, but on

close analysis they are found to be not in point.

4, 5. But, if the views expressed were unsound, it was incumbent on the plaintiff to prove

at the trial the pendency of the former suit. The presumption is that he did not do this, and, as

there is no evidence before us, we must sustain the ruling. Phillips v. Winona etc. R.C. 37

Minn. 485, 35 N.W. 273, 5 Am. St. Rep. 867.

6. We think the contention that the counterclaim does not state a cause of action is well

founded. This contention is based upon the proposition that there is no allegation of fact

showing defendant's necessity for ��


separate maintenance. The allegation upon which defendant relies to support her claim of

separate maintenance reads:

“That this defendant has not sufficient income to enable her to support herself, and to live

in the manner to which she was accustomed prior to the aforesaid desertion of this defendant

by the plaintiff, and, in order that defendant may continue to live in accordance with her

station in life, and the manner to which she was accustomed, prior to the said desertion of her

by plaintiff, it is necessary that plaintiff contribute to her support and maintenance of the sum

of $500 per month.”

It is said by plaintiff that this matter does not state facts, but conclusions, hence it is

insufficient. We agree with this contention. It would be just as reasonable to hold that, to

plead cruelty, all that would be necessary to allege would be that the defendant had treated the

plaintiff cruelly. But we know that such an allegation would not be one of fact. Kelly v.

Kelly, 18 Nev. 55, 51 Am. Rep. 732; Kapp v. District Court, 31 Nev. 444, 103 P. 235. In the

trial of the instant case it was necessary for the defendant to produce evidence of her

necessity, and that evidence could not have consisted of the mere statement that $500 is

necessary to her support. She would have to give testimony as to various things, such as her

age, her health, her station in life, and the like. These facts should have been pleaded.

In the case of Western Union Tel. Co. v. Henley, 23 Ind. App. 14, 54 N.E. 775, it was held

that the naked allegation that it was necessary to send a telegram was a statement of a mere

conclusion, and that the judgment should be reversed.

In 31 Cyc. 64, it is held that a mere allegation that something is “necessary” or

“unnecessary” is a statement of a mere conclusion.

See, also, 1 Bancroft Code Pl. sec. 51; Slaughter v. Slaughter, 106 Mo. App. 104, 80 S.W.

3.

7. Plaintiff contends that, since the defendant did not move to strike the allegations he

should not now be ��


heard to complain. Plaintiff demurred for the reason that the counterclaim did not state facts

sufficient to constitute a ground of relief. A motion to strike was unnecessary.

8. In support of the last contention it is urged that this case is equitable in character, and

that from a consideration of the principles of equity which control, under the pleadings, we

should hold that it would be inequitable to sustain the award of separate maintenance. While

divorce suits in this state are purely equitable in character (Thompson v. Thompson, 49 Nev.

375, 247 P. 545, 47 A.L.R. 569), we think the question of the propriety of the allowance is

one of fact to be determined from the evidence, which is not before us. Greinstein v.

Greinstein, 44 Nev. 174, 191 P. 1082.

The counterclaim failing to state facts sufficient to constitute a cause of action for separate

maintenance, it is ordered that the judgment be reversed.

____________

��51 Nev. 69, 69 (1928) In Re Dickerson's Estate��

In Re DICKERSON'S ESTATE

No. 2801

July 5, 1928. 268 P. 769.

1. Executors and Administrators—Items for Fees for Services by Deceased as an

Administrator Held Not Property of Deceased's Estate Authorizing Administration of

Deceased's Estate, where Account Showed Fees Had Been Paid. In petition for appointment of administrator of estate, items of fees and compensation for services

rendered by deceased as administrator of another estate appearing in final account and petition for

distribution filed by deceased in such estate held not to constitute property of his estate, so as to authorize

administration thereof, where account showed on its face that claims were paid.

2. Executors and Administrators—That Deceased Received Compensation as an

Administrator Held Not to Show Retention Thereof Six Years Later to Authorize

Administration of His Estate. In petition for appointment of administrator, proof that deceased, as administrator of another estate,

had been paid fees and compensation for services rendered as such administrator out of money belonging

to other estate, held no proof �� &��


that deceased had any part of such compensation at time of his death over six years subsequent to payment.

3. Executors and Administrators—Fees Paid Deceased as an Administrator Held Not Part of

Deceased's Estate, Authorizing Administration Thereof, though Not Confirmed By

Court. Where evidence showed that fees and compensation were paid to deceased as administrator of another

estate over six years before his death, though not allowed by court, action taken after payment of fees could

not alter fact of payment so as to authorize administration of deceased's estate, on ground that such fees

constituted property of his estate, though payment of claims for administration were subject to confirmation

by court.

4. Executors and Administrators—Estate of Some Value Is Necessary for Appointment of

Administrator Thereof. Under Rev. Laws, secs. 5857, 5904, and 5911, as amended by Stats. 1923, c. 179, regulating settlement

of estates of deceased persons, property of some kind and value belonging to estate is essential to

appointment of administrator of estate, and where proof showed that no estate, legal or equitable, belonged

to estate sought to be administered, administration was properly denied.


Executors and Administrators—23 C.J. sec. 31, p. 1008, n. 33; sec. 323; p. 1131, n. 28.

Appeal from First Judicial District Court, Ormsby County; George A. Ballard, Judge.

Petition by E.G. Chamberlain for appointment of administrator of the estate of Denver S.

Dickerson, deceased, opposed by Mrs. June Dickerson. From an order refusing appointment

of administrator, petitioner appeals. Affirmed.

J.C. Hickey and Chandler & Quayle, for Appellant:

It is questionable whether in cases involving the death of a resident of the state a showing

of any assets remaining at the time of the decease is necessary. In the instant case more was

shown than indeed had to be shown under the authorities, inasmuch as it was proven to the

lower court on the hearing of the application for letters not only that there was “a mere claim

or right to enforce some claim,” but that there existed, presumably, a perfectly legitimate

claim for reimbursement for outlays and for the statutory fees allowed � ��/�� )��D ,��5��'�6��A3��B�� :�/�3��0:"��,�$�+��7:"��,�$�+��


under the Nevada law to an administrator, against a fund in his hands as administrator of the

Graham estate. In Re Barlass' Estate (Wis.), 128 N.W. 58; 11 R.C.L. 68; 11 R.C.L. sec. 83, p.

86; McCranie v. Hutchinson (Ga.) 45 L.R.A. (N.S.) 1073, 1075; In Re Daughaday's Estate

(Cal.), 141 P. 929; note in L.R.A. 1915d, p. 856; McCully v. Copper (Cal.), 35 L.R.A. 492,

subdiv. 8; In Re Bailey's Estate, 31 Nev. 377; Woerner's Treatise on the American Law of

Administration, second edition, chapter on “What Constitutes Assets,” star pages 644, 646,

773.

McCarran & Mashburn, for Respondent:

Every authority cited in appellant's brief sustains our theory that it is absolutely essential

and a prerequisite to an administration that there must be property or assets to entitle an

applicant to letters of administration of the estate of a deceased person. It is too patent to

admit of dispute that if there is no estate (property, assets) of the decedent to administer, there

cannot be any administration.

And under the law of the State of Nevada it is essential that there be property or estate of

decedent before letters of administration may be granted. Sec. 5857, Rev. Laws of Nevada,

1912; Stats. of Nevada, 1923, p. 317, c. 179; In Re Bailey's Estate, 31 Nev. 377; Forrester v.

S.P. Co., 36 Nev. 247; 48 L.R.A. (N.S) 1. Also, under the very similar California statutes: 11

Cal. Jur. 276, sec. 56; Estate of Cover, 204 Cal. 583; Hinkel v. Crowson, 206 P. 59 (bottom

of second column); Estate of Crockett, 4 Cal. Pro. Dec. 328; Estate of Murray, Myr. Prob.

Rep. 208; Estate of Haskell, Myr. Prob. Rep. 204; In Re Davis' Estate, 175 Cal. 525.

The decisions generally throughout the United States support the proposition that there

must be some property or assets of the decedent to be administered as a prerequisite to the

granting of letter of administration. 11 R.C.L. 70, sec. 66; Brubaker et al. v. Janes et al., 23

Kan. 412, 30 P. St. Rep. 292 (middle of page); Ewing v. Mallison, 93 Am. St. Rep. 303;

Fletcher v. Sanders, 2 �%��


32 Am. Dec. (Ky.) 96; Woerner on Am. Law of Administration (3d ed.), p. 663, sec. 201,

also, secs. 202 and 235, same work.

We submit, from the showing in the record, there is no estate of decedent Dickerson to be

administered by any court.

OPINION


This is an appeal from an order of the First judicial district court of the State of Nevada, in

and for Ormsby County, refusing to appoint an administrator in the above-entitled matter.

Mrs. June Dickerson filed opposition to the petition of the appellant, E.G. Chamberlain, in

which she alleged that she was the surviving wife of the deceased, and that her right was

superior to that of appellant. In her petition she prayed that upon the hearing, if it should be

determined that letters of administration ought to issue, letters should issue to herself. On the

hearing petitioner testified that he was thirty-eight years of age and a resident of Ely, Nevada.

A certified copy of final account and petition for distribution in the matter of the estate of

Charles H. Graham, deceased, from the Ninth judicial district court of the State of Nevada, in

and for White Pine County, was introduced in evidence by the petitioner. This shows that the

original was filed in said last-named court by said Denver S. Dickerson, as administrator of

the Graham Estate, on August 8, 1919. It shows, among other matters, that all debts of the

estate and expenses of administration thus far incurred had been discharged and the estate in a

condition to be closed, estimating the cost of closing the estate at $50; and that the residue of

the property consisted of $4,587.49 in money and an interest of the estate in certain mining

claims. Among the expenses of administration listed in the account appears the payment to

the attorney for the administrator of the sum of $700, $100 thereof on account of the

attorney's fee being paid on August 28, 1914, $100 thereof on March �1��?�� C011�� 0��


10, 1917, and $500, the balance of said fee, on July 25, 1919. There also appears in the

account the following statement of the administrator (Voucher 5): “Statutory fees of

administrator upon the total amount of the estate accounted for by him, to wit, $10,295.84,

$345.90. Additional reasonable compensation of the administrator for unusual services

rendered in respect to the estate, $1,000.”

The clerk of the Ninth judicial district court, certifying to the copy of the final account and

petition for distribution, further certified as follows: “The records of my office show that

there has not yet been a hearing or settlement of the said final account nor a hearing of the

said petition for distribution in the matter of said estate.”

Mrs. June Dickerson testified that she was the widow of Denver S. Dickerson, deceased,

and that he died at Carson City on the 28th of November, 1925. The court denied the petition

for letters, on the ground that it had not been shown that Denver S. Dickerson had any estate

to administer.

1-3. The ruling of the lower court was right. There was no showing on the hearing of any

assets belonging to the Dickerson estate. It is contended that the items of $345.90 for the fees

of the administrator, $1,000 as reasonable compensation for unusual services rendered the

estate, appearing in the final account and petition for distribution filed by Dickerson in the

Graham estate, constitute claims by him against the money then held by him as administrator

of the latter estate and property of his estate authorizing an administration thereof. The

account shows on its face that the claims were paid before the account was filed. This appears

both by the presentation with the account of a voucher of payment and by the statement sworn

to by Dickerson “that all debts of the estate and expenses of administration thus far incurred

had been discharged and the estate in a condition to be closed.” A showing of the fact that

Dickerson as administrator had prior to August 8, 1919, paid himself $1,345.90 for fees and

compensation out of �� )��


the moneys belonging to the Graham estate is no proof that he had that or any part thereof at

the time of his death over six years later. It is insisted that the several amounts had not been

allowed by the court, and until so allowed and paid, after the court had acted on them, they

remain claims against the Graham estate and as such property belonging to the Dickerson

estate. It may be conceded that the payment of the claims for administration fees and

compensation was subject to confirmation by the court, but the proof is that they were paid

over six years before Dickerson's death. Whatever action the court might subsequently take

could not alter the fact.

4. Petitioner says that it is questionable whether in cases involving the death of a resident

of the state a showing of any assets remaining at the time of the decease is necessary. We

cannot agree with this position. It is manifest from a reading of our probate act that property

of some kind and value belonging to the estate of the deceased person is essential to the

appointment of an administrator of his estate. Section 48 of an act entitled “An act to regulate

the settlement of estates of deceased persons, being section 5904 of the Rev. Laws of 1912, as

amended Stats. 1923, p. 317,” provides:

“Before letters of administration shall be granted on the estate of any person who is

represented to have died intestate, the fact of his having died intestate shall be proved by the

testimony of the applicant or any other sufficient testimony that may be produced. Proof must

also be made concerning the time, place and manner of death, the place of residence at the

time of death, the location, character and value of his property, and whether the deceased left

a will. Any person may be compelled to attend as a witness for such purpose.”

This section alone authorizes a court to refuse letters of administration.

Section 1 of said act provides:

“Wills may be proved and letter testamentary or of administration granted in the county of

which deceased �� E��F��


was a resident at the time of [his] death, whether death occurred in such county or elsewhere,

and the district court of such county shall have exclusive jurisdiction of the settlement of such

estates, whether such estate is in one or more counties. The estate of a nonresident decedent

may be settled by the district court of any county wherein any part of such estate may be. The

district court to which application shall first be made shall have exclusive jurisdiction of the

settlement of such estates.”

This section certainly contemplates the existence of an estate as a prerequisite to the

granting of letters.

Section 55 of the same act requires a bond to be given by every person to whom letters

testamentary or of administration have been directed to issue, unless the will shall have

dispensed with the same, and the sum of the penal bond is fixed by the value of the personal

property and rents and profits belonging to the estate.

In In Re Bailey's Estate, 31 Nev. 377, 103 P. 232, Ann. Cas. 1912a, 743, an order issuing

letters on the estate of an intestate was declared void because no bond was required or given.

In fact, the entire statutory scheme of procedure concerning estates of deceased persons

relates to estates to be administered. An administrator appointed without an estate to

administer would be an act entirely at variance with the purpose of the law of administration.

“The object of administration,” the court said in Estate of F.X. Murray, Myr. Prob. Rep.

208 (Cal.), “is to pay debts and distribute the surplus to the heirs. In order to have

administration there must be property to be administered upon.”

The real object of the application in the above case was to clothe some one with the legal

status of administrator merely to make him defendant in a suit to quiet title. The application

was denied.

In California under probate provisions similar to ours it is well settled that the ownership

of property by the decedent is essential to the granting of letters of administration of his

estate. 11 Cal. Jur. p. 276, sec. 56; 6��$��::�$��


Estate of Cover, 188 Cal. 133, 204 P. 583; Hinkel v. Crowson, 188 Cal. 378, 206 P. 58-61;

Estate of Crockett, 4 Cal. Pro. Dec. 328; Estate of Haskell, Myr. Prob. Rep. 204; Packard v.

Arellanes, 17 Cal. 525; Estate of Davis, 175 Cal. 198, 165 P. 525. Such also is the weight of

authority generally.

But the citation of authority from other jurisdictions is without any useful purpose.

It is clearly within the expression of our statutes that an estate is essential to a grant of

letters. The proofs adduced at the hearing showed no estate, legal or equitable, belonging to

the estate sought to be administered. Consequently there was nothing for the court to act

upon.

The order of the lower court is affirmed.

____________

��51 Nev. 76, 76 (1928) D'Errico v. D'Errico��

D'ERRICO v. D'ERRICO

No. 2824

July 17, 1928. 269 P. 26.

1. New Trial—Statute Providing for Notice of Motion for New Trial after Written Notice of

Decision Must Be Strictly Complied With, unless Waiver Was Intended. Statutes 1921, c. 86, providing that notice of motion for new trial might be given after written notice

of decision as respects time for filing same, must be strictly complied with, unless party shows clear

intention to waive it.

2. New Trial—Service of Unsigned Proposed Findings Held not Equivalent to Written Notice

of Decision as Respects Time for Filing Motion for New Trial. Service of proposed findings of fact and conclusions of law held not equivalent to written notice of

decision as respects filing of notice of motion for new trial, especially where proposed findings were

unsigned and no notices signed by any one were attached to and served with them.

3. New Trial—Waiver of Notice of Decision Will Not Be Presumed unless Clearly Intended. Waiver of notice of decision will not be presumed unless an intention to waive is clearly intended.


4. New Trial—Losing Party Could Insist on Statutory Notice of Decision as Respects Time

for Filing New Trial, and Could Not Be Said to Intend Waiving Notice until Moving for

New Trial. Where prevailing party served proposed findings of fact and conclusions of law on losing party also

presenting proposed findings, and both parties were heard thereon, losing party could stand on statutory

right requiring written notice of decision as respects time for filing notice of motion for new trial, and, until

such notice of intention to move for new trial, it could not be said that losing party intended to waive

written notice of decision.

C.J—CYC. REFERENCES

New Trial—29 Cyc. p. 939, n. 61; p. 940, n. 62.

Waiver—40 Cyc. p. 261, n. 13.

Appeal from Second Judicial Court, Washoe County; Geo. A. Bartlett, Judge.

Action by Joseph D'Errico against Maria T. D'Errico. Judgment for plaintiff, and, from an

order denying defendant's motion for new trial, defendant appeals. On plaintiff's motion to

dismiss the appeal. Motion denied.

Platt & Sandford, for Respondent:

The purpose of the law providing for a written notice of a decision is very forcibly stated

in Kelleher et al. v. Creciat, 26 P. 619, particularly page 620, second column thereof.

In this case there was service of proposed findings in writing and acceptance thereof in

writing, which under our practice could only mean that a decision had been rendered and that

the prevailing party was completing the statutory procedure required in order to secure the

approval of the findings and the signing of a decree. The effect of the service of these

proposed findings was to advise opposing counsel in writing that a decision had been

rendered, and their tacit and written acceptance thereof was in effect a written

acknowledgement of knowledge of this fact. Waddingham v. Tubbs, 30 P. 527-528.

It seems equally clear that defendant by the record ��


has waived written notice of decision. This rule has been effectually established in Nevada.

Syllabus in Corbett v. Swift, 6 Nev. 194; Hunter v. Truckee Lodge, 14 Nev. 25-28; Forni v.

Yoell, 33 P. 887; Burlock v. Shupe et al., 17 P. 19; Gardner v. Stare, 135 Cal. 118, 67 P. 5,

and cited in Peterson v. Superior Court in and for Butte County et al., 158 P. 547, and

particularly page 548, column 2; Syllabus of Jansson v. National S.W. Co., 168 P. 151;

Walberg v. Underwood, 180 P. 55, particularly columns 1-2, page 57; Barron v. Deleval, 58

Cal. 95-98; Gardner v. Stare et al., 67 P. 5; Smith v. Questa, 207 P. 1036-1038; Hughes v.

Demund, 233 P. 94-95; Nay v. Superior Court of Napa County et al., 237 P. 566; Lewis v.

Fowler, 252 P. 786-788; Prothere v. Superior Court, 238 P. 357-358; Jenkins v. Stevens, 231

P. 112-118; Studebaker Bros. Co. v. Witcher, 195 P. 334-342; California Imp. Co. v.

Varoteau, 47 P. 1018; Thorn et al. v. Finn, 10 P. 414.

Brown & Belford, for Appellant:

When the legislature provided for “written notice” it did not mean something in writing

from which it might be deduced or inferred that a judgment had at some time been entered.

Waddingham v. Tubbs (Cal.), 30 P. 527. To hold that the service of an unsigned copy of

proposed findings can operate as a signed notice of the decision is to hold that although a

written notice required by law is vitally defective in certain respects, nevertheless if actual

notice is obtained from some other paper defective in the same details, that paper will operate

as a valid and legal notice. The absurdity of this is so apparent as to require no argument.

Since the defendant did not expressly waive the service of notice, the question is whether

or not there was an implied waiver, which must be considered, to begin with, in the light that

the law does not favor implied waivers. Keane v. Murphy, 19 Nev. 89; State v. Murphy, 29

Nev. 247; 40 Cyc. 261; Burlock v. Shupe (Utah), 17 P. 10; Jenkins v. Stephens (Utah), 231 P.

112; Everett v. Jones (Utah), 91 P. 360.


Any discussion of this question in the light of the authorities cited by both appellant and

respondent is, however, largely academic in view of the fact that this court settled the law

little more than a year ago in the case of Kondas v. Washoe County Bank, 50 Nev. 181, 254

P. 1080.

OPINION

Per Curiam:

This case is before the court on respondent's motion to dismiss the appeal from the order

denying appellant's motion for a new trial.

The situation out of which this motion grows in this: The trial of the case having been

conducted and submitted to the court for decision, on October 15, 1927, judgment was

entered in favor of the plaintiff as prayed. Four days later plaintiff served upon counsel for

defendant proposed findings of fact and conclusions of law. On October 22, 1927, counsel for

the defendant served on counsel for the plaintiff objections to plaintiff's proposed findings,

and proposed findings of their own. On November 12, 1927, counsel for both parties having

been heard, the court made its formal findings and conclusions of law in favor of the plaintiff.

On November 17, 1927, counsel for the defendant served and filed their exceptions to the

findings of fact and conclusions of law as made by the court. On the 12th of November, 1927,

counsel for defendant filed and served a notice of motion for a new trial.

Counsel for respondent make two propositions in support of their motion, (1) that the

service of the proposed findings by respondent was written notice of the decision; and (2) that

the various acts of counsel for appellant constitute a waiver of such written notice.

1. We cannot agree with either of the contentions made in support of the motion. The

legislature of this state in 1921 (Stats. 1921, c. 86), as the result of the holding of a majority

of this court in Studebaker Co. v. Witcher, 44 Nev. 442-465, 195 P. 334, to the effect that

actual notice of a decision, and not written notice, was all that was necessary to start the time

to run in which ��


a notice of motion for a new trial must be served, enacted that a notice of a motion for a new

trial might be given after written notice of a decision.

In considering the effect of the statute of 1921, relative to notice of a decision, we said, in

Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080:

“* * * Under the law, plaintiff had ten days from the service of written notice of the

rendition of the judgment in which to file and serve notice of his intention to move for a new

trial. Of course he had actual notice thereof because he was in court when it was rendered, but

when the statute provides for written notice, as in this case, such notice must be given unless

waived. Maurin v. Carnes, 80 Minn. 524, 83 N.W. 415. Surely no court will say that such a

statutory requirement can be deemed waived unless an intention to do so is clearly and

unequivocally manifested. 27 R.C.L. 908; 40 Cyc. 261.”

This expression on the part of the court shows a clear intention to require a strict

compliance with the requirement of the statute unless a party shows a clear intention to waive

it.

2. Counsel for respondent cite two cases in support of the contention that the service of

proposed findings is equivalent to written notice. Neither of the cases are in point. In the

instant case, proposed findings and conclusions of law were served, but in Kelleher v.

Creciat, 89 Cal. 38, 26 P. 619, a copy of the findings of the court and judgment as entered

were served, which is a very different thing.

The other case cited, Waddingham v. Tubbs, 95 Cal. 249, 30 P. 527, was one in which the

court held that a certain written notice should be construed as being the notice required by

statute. The case is dissimilar in its facts from the instant case and not in point.

The case which we think is more in accord with the spirit of our statute is that of First Nat.

Bank. of Rapid City v. McCarthy, 13 S.D. 356, 83 N.W. 423. The court in that case, after

reviewing the sections of the statute involved, which is substantially the same as ours, says:GD��


“It is therefore clear from these sections that the notice of the decision which is to set

running the time within which the notice of intention is to be served must be in writing. It is

not sufficient, therefore, to serve upon the adverse party a copy of the findings and judgment,

and secure his admission of service upon the original, but a regular, formal, written notice

must be given of the fact and the time of the making of the decision. * * * This is much the

best rule. It is more certain and definite, prevents controversies which under any other

construction would be likely to arise, and, above all, accords, in our opinion, with the

intention of those enacting the statute.”

Numerous authorities are cited in support of the conclusion reached.

Furthermore the proposed findings that were served on counsel for appellant were

unsigned, and, so far as appears, no notices signed by any one were attached to and served

with them. This was no such notice as contemplated. Jansson v. National S.S. Co., 34 Cal.

App. 483, 168 P. 151. Hence from no standpoint can it be said that appellant had written

notice of the decision in the case.

3. Was there a waiver of notice? We think not. Waiver, as we said in Kondas v. Washoe

County Bank, supra, will not be presumed unless an intention to waive is clearly and

unequivocally manifested. Such is the well-recognized rule in Nevada. State ex. rel. Keane v.

Murphy, 19 Nev. 89, 6 P. 840; State ex rel. Equitable Gold Min. Co. v. Murphy, 29 Nev. 247,

88 P. 335. There was no clear intention to waive such written notice until appellant filed and

served its notice of motion for a new trial.

4. It is the usual practice in this state for the prevailing party to prepare and serve on

opposing counsel his proposed findings of fact and conclusions of law. When these are

served, and a showing of such service is made to the court, unless objections and exceptions

are taken to them, the court will naturally assume that there are no objection and will sign

them, usually, as a ��"��


matter of course; hence losing counsel could be forced in every case to sit by and make no

objections to proposed findings and conclusions or else waive his right, expressly conferred

by statute, to a written notice of the decision, if the contention of respondent is sound. We

think we would be doing great violence to the spirit of the statute to adopt any such view.

Counsel had a right to stand upon the statute requiring written notice, and, until they gave

notice of their intention to move for a new trial, we cannot say that they intended to waive

that statutory right.

For the reasons given, the motion to dismiss is denied.


September 13, 1929.

Per Curiam:

Rehearing granted.

____________

��51 Nev. 82, 82 (1928) State v. Ramage��

STATE v. RAMAGE

No. 2817

August 6, 1928. 269 P. 489.

1. Criminal Law—Admission of Evidence as to which there Was No ObjectAion Held Not

Error. In prosecution for forgery, admission of certain exhibits as to which there was no objection held not

to constitute error.

2. Forgery—Admission of Check Passed by Defendant and Admitted To Be Bad Held

Admissible on Question of Intent. In prosecution for forgery, admission of check which defendant had passed about time other checks

were cashed and which was admitted to be a bad check held admissible on question of intent.

3. Criminal Law—Erroneous Admission of Checks Found on Defendant's Person without

Evidence as to their Being Forgeries Held Not to Require Reversal Under

Circumstances. In prosecution for forgery, error in admission of certain checks found in defendant's possession at

time of arrest, without evidence as to their being forgeries, held not to require a reversal under Rev.

Laws, sec. 7469, in view of circumstances establishing defendant's guilt.

4. Forgery—Accused's Unexplained Possession of Forged Paper Raises Conclusive

Presumption that He Forged It. The possession of forged paper by accused with a claim of ��


title thereto, unexplained, raises a conclusive presumption that he forged it.


Criminal Law—16 C.J. sec. 2218, p. 885, n. 63; 17 C.J. sec. 3751, P. 368, n. 5.

Forgery—26 C.J. sec. 119, p. 961, n. 56; sec. 135, p. 969, n. 18.


Thomas Ramage was convicted of forgery, and he appeals. Affirmed.

J.E. McNamara, for Appellant:

The state having alleged forgery, with intent to defraud, the appellant contends that the

trial court should have required the state to prove that the check passed upon the Golden

Hotel was in fact a forgery. Forgery is defined by section 6633, Revised Laws of Nevada,

1912, and it was under this section that the State of Nevada proceeded to prosecute the

defendant. And there was no evidence of any kind introduced to show that the appellant had

forged the check in question (Exhibit A), or that he uttered or passed it knowing it to have

been a forgery, and with intent to defraud.

The appellant contends that the introduction of state Exhibits B, C, D, E, F and G in

evidence was error prejudicial to appellant, in that no proof was offered or tendered that any

of said exhibits were forgeries or that they had been passed or used in anyway with intent to

defraud. The rule that where similar transactions are relied upon to prove intent or motive,

that each similar transaction must be proved as fully as the main transaction which is the

gravamen of the offense, is universal and without dissent. Corpus Juris, Cyc., Ruling Case

Law, Wharton's Criminal Evidence, Underhill on Criminal Evidence, Wigmore and Jones in

their works, all lay down this rule. See, also, People v. Altman, 42 N.E. 180, People v.

Whiteman, 46 P. 99; California Jurisprudence under “Forgery”; State v. Prins, 84 N.W. 890;

State v. Mills, 73 N.W. 177; State v. Lowry, 24 S.E. 561.


Taking the entire evidence of the state as true, the only crime that could be charged against

appellant is that of uttering a fictitious check, which is a separate and distinct offense from

forgery. Stats. 1927, p. 233.

The general rule is that if the person who accepts the alleged forgery did not rely upon the

maker of the check, but did extend the credit or advance money upon the credit of the person

presenting the check, then there cannot be a forgery with intent to defraud. The testimony

clearly shows that the Golden Hotel cashed the check solely upon credit extended to appellant

and upon his indorsement, and for no other reason.

M.A. Diskin, Wm. J. Forman, L.D. Summerfield and Harlan L. Heward, for Respondent:

The record discloses that Exhibits A, B, E and F were all admitted without any objection

on the part of appellant. Exhibits C, D and G were the only ones to which appellant made

objection. Exhibits C and D were simply checks which appellant had in his possession, and

did not involve other offenses. Exhibit G, alone, was the only other check which appellant

passed to which objection was made. Appellant, through the cross-examination of Mr.

Heward, brought out all of these matters before any of them were introduced by the state over

the objection of appellant. There can be no question that other bad check transactions are

similar to passing a forged check.

It is sufficient to prove these other offenses by the confession of the accused. 16 C.J. 592;

Com. v. Russell, 156 Mass. 196, 30 N.E. 763; State v. Jones, 171 Mo. 401, 71 S.W. 680, 94

A.S.R. 786. In the instant case they were established by appellant's voluntary statements to

Mr. Heward. The cases cited by appellant in this connection are not in point. State's Exhibits

B to G, inclusive, served to unfold and explain the offense with which appellant was charged,

and were admissible for that purpose. 16 C.J. 618.

The fact that the accused gave guaranties to the person to whom he passed the instrument

is not a ��


defense. 26 C.J. 958; Rex v. James, 7 C. & P. 553, 32 E.C.L. 755. The statute, Revised Laws,

1912, sec. 6663, does not make reliance on the forged instrument any element of the offense.

It is not essential to proving forgery that the paper be accepted as genuine by the party upon

whom the fraud is attempted to be practiced. 26 C.J. 926.

If there are any errors it is submitted that, in view of the record, they are not reversible, and

are within the provisions of sec. 7469, Rev. Laws, 1912.

OPINION


The defendant was convicted of forgery and has appealed. He contends that the check

alleged to have been forged was not proven such, and in this connection asserts that the court

erred in admitting in evidence Exhibits B, C, D, E, F, and G.

Section 6663 of the Revised Laws defines forgery, so far as here material, as follows:

“Every person who shall falsely make * * * any * * * check * * * or shall utter, * * * pass

* * * as true and genuine, any of the above-named false * * * knowing the same to be false,

* * * with intent * * * to defraud * * * shall be deemed guilty of forgery. * * *”

Leo Hogan, the person whose name purported to have been signed to the check in

question, had known the defendant slightly in Salt Lake City some years ago and had met him

on several occasions in Reno shortly before the check was passed. He appeared as a witness

for the state and testified that he did not sign the check and that he had never seen it prior to

its passage, and had never had an account in the bank on which it was drawn. An officer of

the bank testified that the purported maker of the check had never had an account with the

bank.

The defendant went upon the stand and gave testimony in his own behalf, but he did not

testify that he �� &�� 9� ��9� �� =��


received the check in question from Hogan, or that Hogan signed it or had authorized him or

any one else to sign his name thereto, though it was made payable to him. While in jail he

sent for Mr. Heward, the deputy district attorney, and this officer testified that the defendant

told him that the signature was actually that of Hogan.

Exhibit B, a forged check, which was refused payment by the bank upon which it was

drawn, was admitted in evidence without objection. Exhibit E was a sheet of paper upon

which the witness Hogan wrote his name several times in the presence of the court and jury,

during the trial, and was admitted without objection. Exhibit F, according to the testimony of

witness Heward, was admitted by the defendant to be a bad check. No objection was made to

its admission in evidence. Exhibit G was a check which the defendant passed in Lovelock

about the time the other checks were cashed. The witness Heward testified that the defendant

admitted to him that it was a “bad check.” Exhibits C and D were checks which were found in

the possession of the defendant at the time of his arrest. There was no proof that the two

last-named checks were forged instruments, or that they could have been or were used

fraudulently in any way. When offered, these exhibits were objected to.

1, 2. As to all of the exhibits except the last two no error was committed. No error could

have been committed as to those concerning which no objection was made, and had there

been an objection as to Exhibit E it would not have been good. 26 C.J. 969. As to Exhibit G,

there being the undisputed testimony of defendant's admission that it was a “bad check,” it

was admissible on the question of intent.

3. The objection should have been sustained as to Exhibits C and D, as no evidence

whatever was introduced as to their being forgeries, and it was held in People v. Altman, 147

N.Y. 473, 42 N.E. 180, that the admission of checks under such circumstances was reversible

error.


But while the court erred in admitting these exhibits, we cannot say that the judgment

should be reversed for that reason. We do not think the New York case is any aid to us in

determining whether the judgment should be reversed. From a reading of that opinion it

appears that the rule in that jurisdiction is that the appellate court must be able to say when an

error has been committed that no prejudice resulted. This is evident from the following

sentence: “It is impossible to say that the defendant was not prejudiced by these papers

admitted against his objection.” With us the contrary is the rule.

Section 7469, Revised Laws, provides inter alia that a judgment should not be set aside or

a new trial granted on the ground of improper admission of evidence, unless in the opinion of

this court it shall appear that such error has resulted in a miscarriage of justice, or has actually

prejudiced the defendant in respect to a substantial right. From a consideration of this section

it will be seen that in Nevada it must affirmatively appear that there has been a miscarriage of

justice or that a defendant has been actually prejudiced.

4. Exhibits A, B, and F were bad checks proven beyond dispute to have been used by the

defendant in obtaining money. He does not contend that they were good. His defense, so far

as his evidence is concerned, goes solely to the proposition that he did not intent to defraud

any one. Of course intent is a mental state, and, so far as the State is concerned, must be

shown from the facts and circumstances, but there are certain presumptions which arise from

a given state of facts. It is laid down as a rule of law that the possession of forged paper by the

accused with a claim of title thereto, unexplained, raises a conclusive presumption that he

forged it. 26 C.J. 961.

Pursuant to this rule, the check being payable to the defendant, he must show to the

satisfaction of the jury that there was no intent on his part to defraud. He sought to do this by

a long rambling statement of his own good intentions, that he could have gotten � �� 4��+��$��


money without resort to forgery, and the like, had he appealed to his friends in Salt Lake City,

and that the checks were issued while drinking. He did testify that shortly after his arrest he or

his attorney wrote to two friends in Salt Lake City and that they had no replied because they

were out of the city. So far as it appears from the testimony, they had not at the time of the

trial written offering assistance, nor had he made good the different amounts received on the

three bad checks, as it seems he would have done had his intentions been good and his

testimony been well founded. In the circumstances we do not think the record affirmatively

shows that the defendant was prejudiced by the erroneous ruling of the court.

It is claimed that the hotel which cashed the check did not rely on the purported maker of

the check for protection, but upon the defendant, and hence no crime was committed. The

statute defines the elements of the crime of forgery, and no such exception is embraced

therein. The violation of the terms of the statute made the crime complete.

Perceiving no prejudicial error in the record, it is ordered that the judgment be affirmed.

____________

��51 Nev. 89, 89 (1928) Nevada Motor Co. v. Bream��

NEVADA MOTOR CO. v. BREAM (NEVADA FINANCE

CORPORATION, Intervener)

No. 2790

August 6, 1928. 269 P. 602.

1. Sales—Conditional Vendee Is Equitable Owner of Articles Specified in Contract. Vendee under contract of conditional sale is equitable owner of articles specified in contract.

2. Attachment—Interest of Vendee Under Conditional Sales Contract Is Attachable. Interest of vendee under conditional sales contract is attachable interest, under Rev. Laws, sec. 5151,

making all property not exempt from execution attachable, and section 5287 subjecting all nonexempt

real and personal property of judgment debtor to execution.

3. Sales—On Attachment of Interest in Automobile of Buyer under Conditional Sales

Contract and Seller's Intervention, Permitting Attaching Creditor to Discharge Balance

of Price Was Not Error, where Buyer Was Not in Default. Where interest of conditional vendee in automobile was attached, under Rev. Laws, sec. 5151, 5287,

permitting attachment on nonexempt property, and where at the time of the attachment vendee was not in

default under the contract of sale, court did not err in permitting attachment creditor to pay portion of

price remaining due to seller, who intervened, and in ordering car sold to satisfy attaching creditor's

judgment; interest of buyer under conditional sales contract being subject to attachment.

4. Sales—Conditional Vendor of Automobile Had No Right to Possession Thereof as against

Sheriff, Holding it under Attachment in Action against Buyer Commenced Before Due

Date of First Deferred Payment. Where attaching creditor began action against buyer of automobile under conditional sales contract

before first deferred payment under contract became due, seller had no right to possession of automobile

as against sheriff, holding car under attachment.


Sales—35 Cyc. p. 668, n. 22; p. 678, n. 98.

Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.

Action by the Nevada Motor Company against J.H. Bream, in which attachment

proceedings were instituted, and in which the Nevada Finance Corporation intervened. From

an adverse judgment, and an order ��


denying a motion for a new trial, intervener appeals. Affirmed. (Coleman, J., dissenting.)

Sardis Summerfield, for Appellant:

The covenants, terms, conditions, obligations and consequents contained in the conditional

sale contract executed by appellant and defendant Bream are authorized by and are within the

permissive scope of the provisions of the Nevada uniform sales act, Stats. of 1915, p. 194, et

seq., and particularly of certain sections thereof.

Not only did defendant Bream at no time have any title to the automobile, but, further, at

no time did he have an attachable interest therein. Studebaker Co. v. Witcher (Nev.), 195 P.

338; Cardinal v. Edwards, 5 Nev. 36; Dillon and West v. Grutt (Nev.), 144 P. 743; Estrich on

Installment Sales, par. 480, p. 902, citing, among other precedents, Cooley v. Gillian, 54

Conn. 80; Sanders v. Wilson, 8 Mackey, 555; Cole v. Berry, 42 N.J.L. 308; Smith v. Foster,

18 Vt. 182. Additional precedents supporting the same text are: Ellis v. Holland (Ga.), 26

S.E. 735; Plymouth Co. v. Fee (Mass.), 64 N.E. 419; Marquette Co. v. Jeffery (Mich.), 13

N.W. 592; National Co. v. Solomon (N.Y.), 85 Hun. 125; Reed v. Starkey (Vt.), 37 Atl. 297.

The lower court's finding “that at no time was the defendant J.H. Bream's interest in

default under his contract with intervener,” is not merely unsupported by the evidence but is

directly contrary to all of the evidence in the case having any bearing upon the subject of

Bream's failure to comply with the conditions of his contract with appellant. Bream's

admission of his default stands of record.

Thatcher & Woodburn and John Donovan, for Respondents:

The interest of the defendant, the conditional purchaser, is a property interest and may be

reached by an attaching creditor. Moresi v. Swift, 15 Nev. 215; Packard Motor Car Co. v.

Mazer, 77 Pa. Sup. Ct. 348; ,��+�� 0�0�"�$�$�>��$�� 02?��0!�"4��3��7�/�H�4�� 72�9� ��7 ?"�,��4��>� �


Rev. Laws, 1912, sec. 5151; C.C.P. Cal., sections 537 to 541; Savall v. Wauful, 16 N.Y.S.

219, affirmed in 63 Hun. 627; Rose v. Story, 1 Penn. State, 190, 44 Am. Dec. 121; Estrich on

Conditional Sales, 907; Commentaries on Conditional Sales, Bogert, 35; Ringham v.

Vandegrift (Ala.), 9 So. 280; Ivey v. Coston (Ala.), 32 So. 664; Adler v. Weis etc. Co., 218

N.Y. 295, 112 N.E. 1049.

The intervener in this case by his conduct waived tender of the balance of the purchase

price. It is fundamental that a tender need not be made when, in view of all the circumstances,

it will be unavailing and will be refused. 24 Cal. Jur. 514, and cases cited therein; 38 Cyc.

135, and cases cited therein.

An undisputed and concededly valid tender was made of the balance and full amount due

to the intervener before forfeiture was declared by the intervener. As to tender generally see

Christenson v. Nelson, 63 P. 650, 24 Cal. Jur. 512.

The buyer is not in default if he had offered the amount due even though the seller has

refused to accept the payment, hence the right to possession continues after such tender.

Kindelberger v. Kunow, 106 N.Y.S. 597, 88 N.E. 1122; H.G. Vogel Co. v. Wolff, 141 N.Y.S.

756.

To hold that the interest of the buyer vanished when he permitted the automobile to be

attached is, in effect, sanctioning a forfeiture, and equity does not favor forfeitures. Donoghue

v. Tonopah Oriental Mining Co., 45 Nev. 110 (pages 118-119); Defanti v. Allen Clark Co.,

45 Nev. 120-125; Jones v. G.I. Company, 101 U.S. 622, 25 L. Ed. 1030; Barton v. W.O.

Broyles Store etc. Company (Ala.), 103 So. 854; Golden v. McKim, 37 Nev. 205; 12 Cal. Jur.

623 and 634.

OPINION


On the 15th day of December, 1926, the Nevada Finance Corporation and one J.H. Bream

entered into a conditional contract of sale whereby Bream agreed to �� 5�� 3��IJ ��C��02?��-�C��101�� C: � ��0�� ?�� C:� ��0�� C!:?��


purchase from the corporation and the corporation agreed to sell, transfer and deliver to

Bream, upon the terms and conditions specified in the contract, a certain Willy-Knight

automobile for the sum of $1,537, payable as follows: $1,050 in cash, upon the signing of the

contract, the receipt of which was acknowledged, and $82 on the 15th day of January, 1927,

and $81 on the 15th day of each succeeding month until the entire balance of $487 should be

paid, with interest at twelve per cent annum after date of maturity. The contract, among other

things, provided that if default were made in the payments, the seller could without process of

law retake possession of the automobile and sell it, and credit the buyer with any excess of

the amount due on the purchase price, or that the seller might elect to declare the contract

forfeited and at an end, and in that event take possession of the automobile wherever found,

and treat all payments previously made as compensation for depreciation, damage, and use of

the automobile. Another of the provisions of the contract was that:

“The title to the said property shall remain in the first party or its assigns until all of the

said payments are made and all of the conditions herein contained fully complied with.”

On the execution of the contract the automobile was transferred and delivered to Bream,

who retained possession and control thereof as owner until the 13th day of January, 1927, on

which date the Nevada Motor Company began an action against him, the buyer, in the court

below to recover a money judgment for the sum of $541.71, and caused said automobile to be

attached and taken into possession by the sheriff of Washoe County to satisfy any judgment

that might be rendered against the defendant Bream in the action. On the 13th of January,

1927, the Nevada Finance Corporation notified Bream orally to release the attachment or it

would have to repossess the automobile under the contract, and notified him again to the

same effect on the 16th of January, 1927. On the 13th and �!�� ?��/��@� � ��$��


14th of January, 1927, the Nevada Finance Corporation had, in writing, also demanded of the

sheriff the possession of the automobile. The attachment was not released and the sheriff

refused to deliver possession because of the indemnifying bond given to him by the plaintiff,

Nevada Motor Company. On January 21, 1927, the Nevada Finance Corporation was

permitted to intervene in the action, and it filed its amended complaint in intervention praying

that it be adjudged and decreed that the Nevada Motor Company had no right, title or interest

in the attached automobile; that the automobile was not subject to attachment in the action,

and that the Finance Corporation be adjudged the owner thereof and entitled to its immediate

possession, and that the sheriff be ordered to release said attachment and deliver the

automobile to the plaintiff, Nevada Finance Corporation. J.H. Bream did not answer the

complaint in intervention and his default for failure to answer was duly entered. The Nevada

Motor Company answered, and the issues joined upon the complaint in intervention and

answer thereto were tried to the court without a jury. A trial was first had upon the issues

between the plaintiff and the defendant in which judgment was rendered for the plaintiff and

against the defendant Bream. The issues between the Finance Corporation and the Motor

Company respecting the attached automobile were tried, which resulted in a judgment in

favor of the Motor Company and against the Finance Corporation. Thereupon the corporation

moved for a new trial, which motion was denied. The corporation appeals from the judgment

and from the order denying it a new trial.

The record discloses that both parties prepared proposed findings of fact and conclusions

of law, but upon consideration thereof the trial court made and caused to be entered the

following findings of fact and conclusions of law:

“I. That under date of December 15, 1926, the defendant, J.H. Bream, entered into a

contract with the Nevada Finance Corporation for the purchase and sale �� 3��IJ �� 7��/�


of a certain Willys-Knight coupe, 1926 model, serial No. 16242, the purchase price of which

was the sum of $1,537, said Bream paying thereon $1,050, a true copy of said contract being

attached to intervener's complaint, marked Exhibit A.

“II. That on the 13th day of January, 1927, and at all times thereafter the said automobile

had a value of seven hundred ($700) dollars, or upwards, in excess of the claim of the Nevada

Finance Corporation.

“III. That at all times on and after the 13th day of January, 1927, the plaintiff was ready

and willing and able to pay the Nevada Finance Corporation the entire balance with interest

due under the said contract, and the plaintiff on the 13th day of January, 1927, duly offered to

pay the same to the Nevada Finance Corporation, which offer the Nevada Finance

Corporation refused.

“IV. That at no time was the defendant, J.H. Bream's interest in default under his contract

with the said intervener.

“V. That the said intervener, the Nevada Finance Corporation, did not at any time declare a

forfeiture of the rights of the said J.H. Bream given him under said contract.

“VI. That on the 13th day of January, 1927, at the commencement of this action, plaintiff

caused the sheriff of Washoe County, Nevada, to attach and seize said Willys-Knight

automobile under a writ of attachment which plaintiff caused to be issued and delivered to

said sheriff, and that said writ of attachment was by this court dissolved on January 18, 1927,

and that upon said last-named day plaintiff again caused the said sheriff to seize, attach, and

hold possession of said Willys-Knight automobile.

“VII. That plaintiff, Nevada Motor Company, on the 15th day of June, 1927, deposited in

open court the sum of $520 in gold coin of the United States of America, to cover the

difference between the amount that the said defendant, J.H. Bream, had paid to the Nevada

Finance Corporation, under the terms of the said � �� "�� /��@� � ��$�� C0�7� ��


contract, and the amount due thereunder, together with interest thereon; that there is due and

owing to the Nevada Finance Corporation the sum of $516.22, which includes the balance

due it, with interest.

“VII. That on the 14th day of January, 1927, and again on the 26th day of January, 1927,

intervener, Nevada Finance Company, demanded repossession of said automobile from the

sheriff of Washoe County, Nevada, who declined to comply with intervener's demands,

giving us a reason for such declinations that he had been indemnified by plaintiff herein.

“Conclusions of Law

“I. That the interest of the said defendant, J.H. Bream, in said automobile, was and is an

attachable interest.

“II. That the attachment of the plaintiff, Nevada Motor Company, lies against the property

heretofore attached, namely, one Willys-Knight coupe, 1926 model, serial No. 16242, and

that said automobile by virtue thereof is subject to attachment.

“III. That the clerk of the court be and he hereby is directed to pay to the intervener,

Nevada Finance Corporation, upon its demand, the sum of $516.22, out of the sum deposited

by the plaintiff in court, and to pay the remainder of said fund to the plaintiff.

“IV. That the intervener, Nevada Finance Corporation, has no further right, title, or interest

in and to said automobile.

“V. That plaintiff have judgment for its costs herein.”

In accordance with these findings and conclusions judgment was entered.

1-3. Counsel for the intervener and appellant insists that the court erred in its conclusion of

law No. I, and in rejecting intervener and appellant's proposed counter conclusions. The

conclusion of law No. I reads:

“That the interest of the said defendant, J.H. Bream, in said automobile, was and is an

attachable interest.”

This is the question of law presented for our determination. All property not exempt from

execution may be ��


attached. Section 5151, Rev. Laws. All property, real and personal, of the judgment debtor,

not exempt by law, and all property and rights of property seized and held under attachment

in the action, shall be liable to execution. Section 5287, Rev. Laws.

The vendee, under a contract of conditional sale, is the equitable owner of the article

specified in the contract. The person in possession of an automobile under a contract of

conditional sale is for all practical purposes the owner thereof. Welch v. Harnett, 127 Misc.

Rep. 221, 215, N.Y.S. 540. At common law a conditional vendee acquired no title until the

condition was performed, and his attaching or execution creditors stood no higher. See

Harkness v. Russell, 118 U.S. 663, 7 S. Ct. 51, 30 L. Ed. 285; Williston on Sales (2d ed.),

sec. 326. This rule is subject to modification and an attaching creditor may be placed in the

shoes of the vendee upon tendering performance of all obligations existing against the

vendee. King v. Cline, 49 Cal. App. 699, 194 P. 290.

“As the buyer's right is in its nature analagous to that of a mortgagor, the rights of his

creditors should be defined in the same way as the rights of a mortgagor's creditors; that is,

the creditors should be given the right to discharge the mortgage; namely, pay the portion of

the price remaining due upon the conditional sale and by so doing acquire the right to treat the

full ownership as belonging to the mortgagor or buyer.” Williston on Sales, sec. 326.

This is the method allowed by the trial court in this case.

In Coffin v. Northwestern Mutual Fire Ass'n 249 P. (Ida.) 89, 48 A.L.R. 1225, it was held

that:

“The buyer acquires more than a contract right, namely, a property right. A creditor of the

conditional vendee may attach the interest of the buyer, pay the portion of the price remaining

due, and by doing so acquire the right to treat the full ownership as belonging to the buyer. Of

course, the buyer must not be in default. The creditor succeeds only to the buyer's rights.”


We recapitulate the authorities cites in support of the foregoing statements:

1 Williston on Sales (2d ed.), p. 754, sec. 326; Leaf v. Reynolds, 34 Idaho, 643, 203 P.

458; Pease v. Teller Corporation, Limited, 22 Idaho, 807, 128 P. 981; Jones on Chattel

Mortgages, sec. 11, et seq.; Dame v. C.H. Hanson & Co., 212 Mass. 124, 98 N.E. 589, 40

L.R.A. (N.S.) 873, Ann. Cas. 1913c, 329; Hollenberg Music Co. v. Barron, 100 Ark. 403, 140

S.W. 582, 36 L.R.A. (N.S.) 594, Ann. Cas. 1913c, 659; Chicago Equipment Co. v.

Merchants' Bank, 136 U.S. 268, 283, 10 S. Ct. 999, 34 L. Ed. 349; Harley & Willis v.

Stanley, 25 Okl. 89, 105 P. 188, 138 Am. St. Rep. 900; Hervey v. Dimond, 67 N.H. 342, 39

A. 331, 68 Am. St. Rep. 673; Arthur McArthur Co. v. Beals, 243 Mass. 449, 137 N.E. 697.

In Chicago Railway Equipment Co. v. Merchants' National Bank, supra, the court said:

“But as pointed out in Arkansas Valley L. & C. Co. v. Mann, 130 U.S. 69 (32 L. Ed. 854,

857, 858), the agreement in Harkness v. Russell was upon the express condition that neither

the title, ownership nor possession of the engine and sawmill which was the subject of the

transaction should pass from the vendor until the note given by the vendee for the stipulated

price was paid. Turning to the notes here in suit, we find every element of a sale and

transmission of ownership, despite the provision that the title to the cars should remain in the

payee, until all the notes of the series were fully paid. * * * The agreement that the title

should remain in the payee until the notes were paid—it being expressly stated that they were

given for the price of the cars sold by the payee to the maker, and were secured equally and

ratably on the property—is a short form of chattel mortgage.”

This case is followed in a number of cases. In Atkinson v. Japink, 186 Mich. 338, 152

N.W. 1080, it is held that, where an automobile is sold for cash the two notes, reserving title

to car until notes were paid, title is retained as security only.

In Williston on Sales, section 330, it is said: G%��'�� #


“As the purpose of the seller's right, whether a legal title or whether a right to resume the

title on breach of condition, is merely to give him security for payment of the price, the

transaction is in its essence a mortgage, though futile distinctions are often made.”

That this is true has been frequently recognized. See note 80, Williston on Sales, section

330.

We find no error in the action of the trial court in permitting the Nevada Motor Company

to pay the portion of the price remaining due upon the conditional sale of the automobile and

in ordering it sold to satisfy the judgment of the company, the creditor of the buyer.

4. It is contended that the evidence does not support the finding of the trial court that at no

time was the defendant Bream's interest in the automobile in default under the contract of

sale. We find no error in this finding. The Motor Company began its action against Bream

two days before the date upon which the first deferred payment specified in the contract

became due, and the Nevada Finance Corporation had no right of possession of the

automobile as against the sheriff of Washoe County. Newhall v. Kingsbury, 131 Mass. 445.


Ducker, J.: I concur.

Coleman, J.: dissenting:

In England, and in every state in the United States except Pennsylvania, where the point

has been decided, it has been consistently held that a vendee under a conditional sale contract

has no interest in the property sold that could be levied upon under execution or attachment.

Some of the authorities so holding are: Barrett v. Pritchard, 2 Pick. (Mass.) 512, 13 Am. Dec.

449; Strong v. Taylor, 2 Hill (N.Y.), 326; Keck et al. v. Natl. Cash Register Co., 12 Ind. App.

119, 39 N.E. 899; Sanders v. Wilson, 8 Mackey (19 D.C.), 555; Owen v. Hastings, 18 Kans.

446; Cole v. Berry, 42 N.J.L. 308, 36 Am. Rep. 511; Herring v. Hoppock, 15 N.Y. 409;

Hasbrouck v. Lannsbary, 26 N.Y. 598; Hanway v. Wallace, 18 Ind. 377; Woodruff v.

McDonald Fur. Co., 96 Ga. 86, 23 S.E.


195; Bradshaw v. Thomas, 7 Yerg. (Tenn.) 497; Smith v. Foster, 18 Vt. 182; Natl. Cash

Register Co. v. Coleman, 85 Hun. 125, 32 N.Y.S. 593; Morris v. Allen, 17 Cal. App. 684,

121 Pac. 690; Drake on Attachment, sec. 246; McIver v. Williamson etc. Co., 19 Okl. 454, 92

P. 170, 13 L.R.A. (N.S.) 696; Marston v. Baldwin, 17 Mass. 606; Blanchard v. Child, 7 Gray

(Mass.), 155; Porter v. Pettengill, 12 N.H. 299; Marquette Mfg. Co. v. Jeffrey, 49 Mich. 283,

13 N.W. 592; Hughes v. Kelly, 40 Conn. 148; 35 Cyc. 678, note 98; Installment Sales

(Estrich), sec. 480.

Nor am I in accord with the view that the conditional sale contract was in effect a chattel

mortgage. Johnson v. Kaeser et al., 196 Cal. 686, 239 P. 324; Fed. Com. Bank v. Int. Clay M.

Co. 230 Mich. 33, 203 N.W. 166, 43 A.L.R. 1245, and notes.

Chief Justice Holt in Thorpe v. Thorpe, 1 Salk, 171, laid down a very wholesome rule

when he said “every man's bargain ought to be performed as he intended it,” which, so far as I

am advised, has always been the principle which has been followed by this court.


October 1, 1928.

Rehearing denied.

Coleman, J.: I dissent.

____________

��51 Nev. 100, 100 (1928) Bream v. Nevada Motor Co.��

BREAM v. NEVADA MOTOR COMPANY

No. 2789

August 7, 1928. 269 P. 606.

1. Principal and Agent—In Action by State Agent against Local Distributing Agent on Notes

and on Account Stated, Receipt in Evidence of Book Account Was Not Error. In action on notes given by local agent for automobiles to state agent to secure assistance in financing

sales, receipt in evidence of book account was not error, where plaintiff also asserted cause of action on

account stated.

2. Principal and Agent—Judgment for Plaintiff Held Supported by Evidence in Action by

State Agent against Local Distributing Agent on Notes and Account Stated. In action by state agent against local distributing agent on notes given for plaintiff's assistance in

financing sales and on account stated, evidence held sufficient to support judgment for plaintiff's

recovery.

3. Pleading—Amendments to Pleadings During Trial to Conform to Proof Should Be

Liberally Allowed. Court should be liberal in permitting amendments to pleadings to conform to proof during trial.

4. Costs—Mileage of Witnesses from Another State, Traveling within State Distance in

Excess of Thirty Miles, Was Not Taxable as Costs. Where witnesses resided in Utah and traveled within the State of Nevada a distance in excess of 30

miles, no allowance could be taxed as costs for mileage.


Accounts and Accounting—1 C.J. sec. 249, p. 678, n. 71.

Agency—2 C.J. sec. 721, p. 949, n. 32; sec. 726, p. 952, n. 63.

Cost—15 C.J. sec. 298, p. 133, n. 78.


Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.

Suit by J.H. Bream against the Nevada Motor Company, in which defendant pleaded a

counterclaim. Judgment for plaintiff, and from the judgment and an order denying defendant's

motion for a new trial and to retax costs, defendant appeals. Affirmed in part, and

remanded, with instructions to modify ruling on motion to retax costs.

Harry Swanson, for Appellant:

The notes being given for a stated purpose, and no liability being proven or attempted to

be proven as set forth in the “Deposits” clauses in the agreements, we ��


maintain that the said notes, and each of them, are in fact null, void and of no effect, and

should have been so declared by the lower court.

The plaintiff laid a foundation for the purpose of, and made efforts to go into the items of

the account stated, which was improper. 1 C.J. 729, par. 402; 1 C.J. 726, par. 397.

Though the plaintiff alleged the account stated to have taken place on the 13th day of

January, 1927, the testimony of Howard Brown, president of the Nevada Motor Company, is

that the only time there could have been any “account stated” would of necessity been in

February of 1926, if at all, which was not sufficient. 1 C.J. 723, par. 381; 1 C.J. 728.

Defendant's assent to the settlement must be averred. 1 C.J. 723, par. 382. The time when

the account was stated must be alleged. 1 C.J. 724, par. 386; Loventhal v. Morris, 103 Ala.

332, 15 So. 672.

The judgment must of course conform to the pleadings in an action on an account stated. 1

C.J. 730, sec. 406; Davis v. Boswell, 77 Mo. A. 294.

In an action strictly upon an account stated, the plaintiff must recover upon the account

stated or not at all, and he cannot recover upon the original items of account nor upon

quantum meruit. Duerr v. Sloan, 181 P. 407; Foster v. Dwire, 199 N.W. 1017.

A complaint on an account stated cannot be amended at the trial so as to change the action

to one upon an account. Bailey v. Wilson, 55 P. 973.

It is submitted that the witnesses A.A. Anderson and Howard Brown were not entitled to

mileage beyond a distance of 30 miles from the county in which the trial occurred. Rev. Laws

1912, sec. 5431; Naylor v. Adams, 114 P. 997; Zelavin v. Tonopah Belmont Dev. Co., 39

Nev. 1.

Thatcher & Woodburn and John Donovan, for Respondent:

It is a well-settled principle of law that where there is a substantial conflict in the

testimony the judgment will be affirmed. Stratton v. Raine, 45 Nev. 24; Dixon v.��!2/�� :1I ::


Miller, 43 Nev. 280-288; Thompson v. Tonopah Lumber Company, 37 Nev. 183, and cases

cited at page 188; Gardner v. Gardner, 23 Nev. 214; Page v. Walser, 46 Nev. 390-409; Moore

v. DeBernardi, 47 Nev. 33-40; Bawden v. Kuklinski, 48 Nev. 181-188; McNee v. McNee, 49

Nev. 90-93; Dunphy v. Dunphy, 119 P. 512.

Pleadings may be amended at the trial to conform to the proof. Rev. Laws 1912, sec. 5081;

Finnegan v. Ulmer, 31 Nev. 523-527; Miller v. Thompson, 40 Nev. 35-41; Ramezzano v.

Avansino, 44 Nev. 72-80; Gartlan v. C.A. Hooper & Company (Cal.), 170 P. 1115; Koeberle

v. Friganza (Cal.), 226 P. 35-38.

It is sufficient to allege that an account was stated between the parties, that a certain sum

was thereby found due from one to the other, and that no part of such sum has been paid.

Chittenden Company v. Leader Furniture Co., 201 P. 843; United States Health etc. Co. v.

Batt, 17 N.E. 195-197.

Where defendant denies the statement of an account, the plaintiff may show the particular

transactions between the parties as a basis for the statement of the account. Steinmetz v.

Grennon (Ore.), 212 P. 532-536; Miller v. Carnes (Minn.), 103 N.Y. 877; 1 C.J. 728.

The allegation of the time when the account was stated need not be proved strictly as laid.

Loventhal v. Morris (Ala.), 15 So. 672.

The statement of the account need not be in writing. Quinn v. White, 26 Nev. 42, 62 P.

995; 1 C.J. 682, sec. 256; 1 Cal. Jur. 197; Bennett v. Porter (Cal.), 183 P. 156; Converse v.

Scott (Cal.), 70 P. 13.

Courts of appeal will not disturb the findings or decree of the trial court for any errors in

the admission of testimony that did not work substantial injury to the party claiming to have

been aggrieved. E.W. McClellan Company v. East San Mateo Land Company, 137 P.

1145-1147.

OPINION


Respondent, as plaintiff, brought suit to recover a money judgment. The amended

complaint upon which ��


the trial was had contains four causes of action. The first three causes of action were upon

promissory notes and the fourth was upon an account stated.

An answer was filed admitting the execution of the notes sued upon, but alleged that the

notes sued upon in the first and second causes of action were deposited as security to secure

certain contingent indebtedness that never accrued. The answer alleged full payment of the

note described in the third cause of action, and denies that there had been an accounting as

alleged in the fourth cause of action. The defendant also pleaded a counterclaim.

Judgment was rendered in favor of the plaintiff, from which an appeal has been taken. The

defendant also appealed from the order denying his motion for a new trial, and from an order

denying his motion to retax costs.

The plaintiff is the state agent for the Packard and Hupmobile cars. The defendant was

desirous to become the agent of the plaintiff within certain territory in the state, and entered

into what appears to be the usual agreement in such cases. The plaintiff was to help the

defendant finance his sales and to that end, as a protection, demanded a cash deposit.

Defendant being unable to make the cash deposit gave the notes sued upon and deposited

certain stock. It was upon these notes and an alleged account stated that the suit was brought.

It is contended that the trial court erred in receiving evidence of a book account, in view of

the cause of action upon an account stated. It is also asserted that the evidence shows no

indebtedness due the plaintiff.

1. Taking up the first contention, we do not think, in view of the nature of the dealings

between the parties, that the court committed error in going into the book account between

the parties. The question of the payment of the notes involved credits given the defendant, as

commission on sales, charges for parts sent him, in pursuance of the agreement, advances

made, and the like.

2. We think there is nothing in the contention that the evidence does not support the

judgment. We have read the entire evidence with care, and the record shows ��


that the trial judge was cautious and considerate, and we cannot say that a correct conclusion

was not reached. Three witnesses testified as to certain vital matters in support of the

plaintiff's case, and certain letters and telegrams tend to confirm portions of plaintiff's case.

The defendant kept no account of his transactions, and though he testified that in October,

1924, the accounts between the parties were fully settled, there is a letter in the record, written

by him after that date, in which he admits his inability to pay. We do not deem it necessary to

review the evidence at length.

3. During the trial the court permitted an amendment to conform to the proof. This was

perfectly proper and courts should be liberal in allowing such amendments. Miller v.

Thompson, 40 Nev. 35; 160 P. 775; Ramezzano v. Avansino, 44 Nev. 72, 189 P. 681.

The plea of an account stated was properly averred. 1 C.J. 678.

4. It has been stipulated that we may dispose on this appeal of the ruling of the trial court

on the question of costs. We think the motion to retax costs should have been granted as to

the two items of $44.52 mileage of two witnesses from the Utah-Nevada state line to Reno.

We held in Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 P. 188, that a party

could not recover mileage for witnesses coming from another county in which he resides, if

over thirty miles distant, and since the witnesses in question resided in Utah and traveled

within this state a distance greatly in excess of thirty miles, no allowance can be made. We

said in the case mentioned:

“* * * Since it was not shown on the hearing of the motion to retax costs that they were

not served at the state line, we will not disturb these items.”

That case was tried in Reno, Washoe County, less than thirty miles distant from the

California state line, which is a very different state of facts from those in the instant case.

It is ordered that the case be remanded to the trial court with instructions to modify its

ruling on the motion ��


to retax costs as herein indicated, and that the judgment be affirmed in all other respects.

Appellant to recover his costs incident to the appeal as to costs only.

____________

��51 Nev. 105, 105 (1928) Ex Parte Guisti��

Ex Parte GUISTI

No. 2827

August 8, 1928. 269 P. 600.

1. Infants—To Give Court Jurisdiction to Commit Child as Delinquent, Petition Held

Required to Allege in Conjunctive Matters Enumerated. To give the court jurisdiction to make an order committing a child as a delinquent, the matters

required by Rev. Laws, sec. 731, to be alleged in the petition, that the named child is a delinquent, that it

is for the best interest of it and the state that it be taken from its parents and placed under guardianship of

some person to be appointed by the court, and that its parents are unfit guardians, or consent that it be

taken from them, must be alleged in the conjunctive.

2. Infants—Petition, though Insufficient to Give Jurisdiction to Order Minor Committed as

Delinquent, Held to Authorize that Child Report. Petition charging a minor with being a delinquent, though not alleging all the facts as required by

Rev. Laws, sec. 731, to give the court jurisdiction to order commitment of the child as delinquent, held to

authorize the court to proceed and, on proper showing, to make findings and orders requiring the minor

to report as provided in section 736.

3. Infants—Proceeding under Juvenile Court Act against Child as Delinquent Is Not

Criminal, Relative to Procedure, so Statute Only Need Be Complied With. Proceeding under juvenile court act (Rev. Laws, 1912, secs. 728-756), against one charged only with

being a delinquent child is not criminal nor one according to the courts of common law, so the

constitutional and statutory provisions relative to criminal procedure are not applicable, but the court

need only comply with the requirement of the act under which the petition is filed.

4. Infants—Jury, if Desired in Delinquent Child Proceeding, Must Be Demanded under

Juvenile Court Act. Even if there be an issue to be tried, under juvenile court act (Rev. Laws, 1912, secs. 728-756),

providing that “any person interested may demand a jury,” due process would not be �� &��


denied by the court proceeding to hear and dispose of the matter, in a delinquent child proceeding, without

a jury, unless one was demanded.


Infants—31 C.J. sec. 231, p. 1105, n. 8, 19; sec. 234, p. 1107, n. 69; sec. 237, p. 1109, n. 7.

Juries—35 C.J. sec. 110, p. 201, n. 99; sec. 123, p. 210, n. 4.

Original proceeding. Application of N. Guisti for a writ of habeas corpus, for discharge of

a minor from custody. Discharge ordered.

C.E. Robins, for Petitioner:

Section 728 of Rev. Laws defines a dependent and delinquent child. Section 731 provides

for the filing of a petition in writing which shall set forth four allegations. Section 736

provides: “If the court find a child delinquent, the court may allow it to remain in its own

home, make reports,” etc.; but before committing to any other place, the statute provides that

the court shall find all of the three facts therein stated. Hence the trial court was without

jurisdiction to make the commitment. Ex Parte Webb, 24 Nev. 239, 242; Paul v. Armstrong,

1 Nev. 82; 14 Cal. Jur., title “Infants,” sec. 32, and In Re Lewis, 86 P. 996; Ex Parte Mundell,

86 P. 833; 14 Cal. Jur. sec. 34; In Re Guiterriz (Cal.), 188 P. 1004; People v. Guiterriz, 190 P.

200; Ex Parte Burner, 139 P. 90.

In California the juvenile court law, Stats. 1915, 1225, provides that a ward may be taken

from the custody of his parents if any one of the four named facts appear. But in In Re Devore

(Cal.), 221 P. 706, it is contended that more than one of the four facts, if not all, should be

found before a commitment could issue; but the court held that a “finding that his welfare

demanded that he be removed from the custody of his natural guardians” was enough, and

that “evidence was not necessary as to the circumstances covered by the other branches of the

section.” To the same effect is Ex Parte Daedler (Cal.), 228 P. 471. In other words, the �� $�� /��


facts are set out in the California statute in the disjunctive, while the law of Nevada sets out

three facts which must be found, and the statute lists those facts in the conjunctive.

See, also, Henley v. Superior Court (Cal.), 121 P. 921; 45 A.L.R. 1530; Mill v. Brown

(Utah), 88 P. 609; Ex Parte Satterthwaite (Mont.), 160 P. 346.

M.A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; and J.A.

Jurgenson, District Attorney, for Respondent:

In view of this statutory provisions and in view of the cases cited by petitioner, it is the

contention of the state in this proceeding, not that the lower court did not err in rendering the

judgment which it did, but that habeas corpus in this court is an improper remedy, for the

following reasons:

1. This court should not take jurisdiction by way of habeas corpus for the matter is still

pending undetermined in the district court of Pershing County, as the return shows that a

notice of intention to move for a new trial has been filed therein. In this connection the case

of In Re Doyle, 55 P. 1080, is a parallel case to the case at bar. See, also, State ex rel.

Bressman v. Theisen, 142 S.W. 1088; In Re Farrell, 45 P. 428; Ex Parte Barnett, 167 S.W.

845; People v. District Court, 46 P. 844; State v. Gunter, 66 So. 844; 12 R.C.L. 1218.

Proceedings to declare a child delinquent being in no sense criminal proceedings, but civil

(State v. Superior Court, 245 P. 409; 7 R.C.L. 981), the district court of Pershing County still

has before it the matter of the motion for a new trial.

2. Proceedings by way of habeas corpus to determine the proper guardian of an infant do

not involve any question of personal freedom. New York Foundling Hospital v. Gatti, 51

Law. Ed. 254.

3. The lower court had jurisdiction of the parties to the action and the subject matter of the

action, and, therefore, its judgment is not void but merely erroneous. It is provided by section

736, Rev. Laws of Nevada, 1912, �� &�� "��


that if the court finds a child delinquent, the court may allow it to remain in its own home or

be placed upon probation; make reports to the judge, etc.

OPINION


This is an original proceeding in habeas corpus to have Guilio Guisti, a minor under the

age of eighteen years, released form the custody of Frederick Davis, as superintendent of the

Nevada School of Industry.

On the 10th of April, 1928, a petition was filed in the juvenile department of the Sixth

judicial district court, in and for Pershing County, charging Guilio Guisti with being a

delinquent child. This petition was verified on information and belief as authorized by statute.

Thereupon a summons was issued directing the defendants to appear at two o'clock p.m. of

the day mentioned. The parents acknowledged in writing upon the summons service of the

petition, waived service of the summons, and agreed to be present in person at the hour

mentioned. At the time set all of the defendants appeared in court in person, without counsel.

Upon being informed of the nature of the charge, Guilio Guisti admitted having been caught

in possession of a bottle of wine. A hearing was had to the court, in which considerable

evidence was given, at the conclusion of which the court found all of the allegations of the

petition to be true, and ordered that the said Guilio Guisti be committed to the Nevada School

of Industry.

After the said minor had been committed, a petition for a writ of habeas corpus was

presented to this court and a show cause order made. The petition herein alleges the

proceedings in the district court, as stated; that an application for a writ of habeas corpus had

been presented to the Fourth judicial district court of the State of Nevada, in and for Elko

County, the district and county in which the said minor is confined, and that the same had

been denied; it alleges that the court was without jurisdiction to make the order of

commitment � �� &�� ?2��,��+�� "�� "�� G��#��

�� "��


under which custody of the said minor is maintained, in that the necessary facts required by

section 731 of Rev. Laws are not averred; that no notice of the pendency of said petition was

properly given to the parents of the said minor; that the defendants were denied “due process

of law,” in that they were in effect denied a jury trial, denied the right to answer said petition,

and never had an opportunity to seek and obtain the advise of counsel; that no evidence was

given showing or tending to show that the parents of said minor were unfit or improper

guardians of said minor, or unable to care for, protect, train, educate, correct, control or

discipline said child, or that said parents or either of them consented that said child be taken

from their custody.

1, 2. We will consider first the contention that the petition filed in the district court did not

aver sufficient facts to give that court jurisdiction to make the order of commitment

complained of. Section 731, Rev. Laws, which is the section authorizing the filing of such a

petition, so far as is here material, reads:

“Any reputable person, being a resident of the county, may file with the clerk of the court

having jurisdiction of the matter, a petition in writing setting forth that a certain child, naming

it, within his county, is either dependent, neglected or delinquent as defined in section 1

hereof; and that it is for the interest of the child and this state that the child be taken from its

parent, parents, custodian or guardian and placed under the guardianship of some suitable

person to be appointed by the court; and that the parent, parents, custodian or guardian of

such child are unfit or improper guardians, or are unable or unwilling to care for, protect,

train, educate, correct, control or discipline such child, or that the parent, parents, guardian or

custodian consent that such child shall be taken from them.”

It is said that a petition, to confer jurisdiction, must contain the following allegations: (1)

The name of the child; (2) that it is either dependent, neglected or delinquent; (3) that it is for

the interest of the child and this state that the child be taken from its parents and placed � �� "�A!B��


under the guardianship of some person to be appointed by the court; (4) that the parents of

such child are unfit or improper guardians, or are unable or unwilling to care for, protect,

train, educate, correct, control or discipline such child, or consent that said child be taken

from them, and that the matters stated under the four heads must be alleged in the

conjunctive.

The portion of section 731, Rev. Laws, quoted, is not in the disjunctive, but is in the

conjunctive as to the matters required to be alleged in the petition when it is sought to take a

child from the custody of its parents, or other person legally entitled to its custody, and the

petition in question not containing allegations in the conjunctive of all of said matters did not

confer jurisdiction to make the order in question, though it did confer jurisdiction authorizing

the court to proceed, and, upon proper showing, to make findings and orders requiring the

minor to report as provided in section 736.

That the point made is well taken is not debatable. In fact, the Attorney-General concedes

the correctness of the contention. Such was the holding in Ex Parte Satterthwaite, 52 Mont.

550, 160 P. 346, and in Mill v. Brown, 31 Utah, 473, 88 P. 609. There is no dissent on this

point among the authorities.

However, it must be kept in mind that under designation 4 any one of several matters may

be alleged, but it must be alleged together with the other matters required.

It is clear that the minor must be discharged from custody, but it does not necessarily

follow that he was not properly found to be a delinquent child and that an order may not be

made requiring him to report as above intimated. In fact, we think there is no merit in the

other contentions made.

3. The procedure against one who is charged merely with being a delinquent child, under

statutes such as ours, is almost universally held to be purely statutory in nature, and is not

criminal nor quasicriminal, nor a proceeding according to the course of the common law.


The juvenile court law is based upon the inherent right of the State to assume the care,

custody and control of a child when conditions make it necessary for the welfare of the child

and the state that it be done. In England, long before statutes such as ours were thought of,

Lord Redesdale said in Wellesley v. Wellesley, 2 Blight (N.S.) 124, that the right of a

chancellor to exercise powers such as are conferred by our statute had not been questioned for

150 years.

The Supreme Court of Michigan, having under consideration a similar statute, in the case

of Robison v. Wayne Circuit Judges, 151 Mich. 315, 115 N.W. 682, said:

“* * * In a large number of cases considered by the courts of last resort in various states

similar legislation has been under consideration. The beneficient character of legislation

making provision for the care of unfortunate, delinquent or neglected children has been

generally recognized. But a single case has fallen under our notice in which the court has

looked with jealousy upon legislation of this character, and that is the case of People ex rel.

O'Connell v. Turner, 55 Ill. 280, a case which, in its essential features, has been discredited

by a later decision of the supreme court of Illinois in Petition of Ferrier, 103 Ill. 367, and

which is now chiefly notable as an example of the vigor with which that which is not the law

may be stated. But in the following cases, Ex Parte Crouse, 4 Whart. (Pa.) 11;

Commonwealth v. Fisher, 213 Pa. 48; State v. Brown, 50 Minn. 353 (16 L.R.A. 691);

Milwaukee Industrial School v. Milwaukee County Sup'rs., 40 Wis. 328; Mill v. Brown, 88

P. (Utah) 609, the distinction is noted between cases of this character in which the

investigation is into the status or needs of the child, and a case where his offenses are being

considered for the purpose of administering punishment. See, also, Hunt v. Wayne Circuit

Judges, 142 Mich. 93.

“As we said in State v. Brown: ‘A person committed to the care and custody of a person in

charge of an � �� 4��,��4�� G�� #� ��G�� #�� '


institution of the character of the Minnesota State Reform School is not “punished” nor is he

“imprisoned” in the ordinary meaning of those words.'

“So in the Petition of Ferrier, it was said: ‘This is not a proceeding according to the course

of the common law, in which the right of a trial by jury is guaranteed, but the proceeding is a

statutory one, and the statute, too, enacted since the adoption of the constitution. There was

not, at the time of such adoption, the enjoyment of a jury trial in such a case.'

“Quoting Cooley on Constitutional Limitations (7th ed.), where, at p. 459 it is said: ‘In

those cases which formerly were not triable by jury, if the legislature provide for such a trial

now, they may doubtless create for the purpose a statutory tribunal, composed of any number

of persons, and no question of constitutional power or right could arise.'

“Such legislation as that under consideration is but a transfer of the jurisdiction which

formerly reposed in the court of chancery, in the exercise of the right of the king as parens

patriae to the guardianship of children, to the juvenile courts which perform the duty of

seeing that the child is properly cared for.

“We are satisfied that, so far as the law authorizes the determination of the status of the

child, and authorizes the commitment of the child to the custody of a probation officer or to

the custody of the keeper of one of the industrial schools for the purpose of education and

reformation, the proceeding may be said not to be a criminal proceeding.”

We might quote from a multitude of authorities to the same effect, but since the rule stated

is now generally accepted, we content ourselves with citing 31 C.J. p. 1105, and note to

Lindsay v. Lindsay, Ann. Cas. 1914a, p. 1227.

From what has been said it follows that the constitutional and statutory provisions relative

to criminal procedure are not applicable, but that the court need only comply with the

requirements of the provisions of the act under which the petition was filed. 31 C.J. p. 1105.


4. Section 731 provides for the issuance of summons, and the following section states

what it shall contain. Summons was issued in compliance with the above, and the parents

indorsed upon the summons an acknowledgement of a receipt of a copy of the petition and

waived the service of summons and agreed to be present in court at the time ordered. They

thereafter appeared and produced the minor in court. Upon their appearance the court called

upon the matter by title, stating that it had been instituted by the filing of petition, and that

summons had issued thereon, and that in answer to the summons all of the defendants were in

court. It then stated the nature of the charge, ordered the minor to stand up, and addressing the

minor said: “What have you to say with regard to the charge?” In response the minor said:

“Your honor. I was caught in possession of one of the bottles of wine.” He was then asked

numerous questions, to which he gave answers. While it is held that, when the proceedings

are not criminal in nature, an arraignment is not necessary (31 C.J. 1109), the proceeding in

the instant case was substantially an arraignment and the entry of a plea of guilty. This being

done, there was no occasion for the calling of a jury, as there was no issue to try, but merely

the making of findings by the court, and the determination of the question of the proper order

to be made.

But we are clearly of the opinion that under no circumstances would due process have

been denied had the court, without any statement from the minor or his parents, proceed to

hear and dispose of the matter without a jury, unless one was demanded. It was not the duty

of the court to call a jury of its own motion. May of the earlier juvenile court acts make no

provision for a jury, and they have been held valid. Our act, which was adopted after many

others had been upheld, provides that “any person interested may demand a jury.” This places

a positive duty on the interested person to make the demand if a jury is desired. They cannot

sit by and gamble on the outcome, and after an adverse finding assert their neglect as a

ground for ��


relief. If the statute provided that a jury should be called unless waived, it would then have

been safer for the court to have called a jury, unless an actual waiver was made, though the

great weight of authority holds that going to trial without making a demand for a jury

constitutes a waiver. See 35 C.J. 201 and 211.

What we have said disposes of the jurisdictional matters urged during the argument.

It is ordered that Guilio Guisti be discharged from custody, but, in view of the findings of

the court, we think it has jurisdiction to require that he report as provided by section 736.

____________

��51 Nev. 114, 114 (1928) Hoyt v. Paysee��

HOYT v. PAYSEE (LANDER COUNTY, Garnishee)

No. 2777

August 10, 1928. 269 P. 607.

1. Garnishment—Garnishment Is Purely Statutory, and County Is Not Liable as Garnishee, in

Absence of Clear Expression of Legislative Intent. Garnishment is purely statutory proceeding, and county will not be subjected to inconvenience and

liability of garnishment, unless legislative intent so to subject it is clearly expressed.

2. Garnishment—County Held Not Subject to Garnishment under Statute Making “Municipal

Corporations” Liable as Garnishees. County held not subject to process of garnishment under Rev. Laws, sec. 5154, which makes “all

persons, including municipal corporations,” liable as garnishees; county not being municipal corporation

within meaning of statute, notwithstanding construction of Const. art. 8, sec. 10.

3. Statutes-Legislature, on Enacting Law, Is Presumed to Have Been Familiar with

Applicable Court Decisions. Legislature must be presumed to have been cognizant of applicable court decisions at time of

enactment law.


Counties—15 C.J. sec. 2, p. 392, n. 33.

Garnishment—28 C.J. sec, 2, p. 17, n. 35; sec. 70, p. 58, n. 14.


��51 Nev. 114, 115 (1928) Hoyt v. Paysee��

Action by John D. Hoyd against Robert Paysee, defendant, and Lander County, garnishee.

From a judgment dismissing the action against the garnishee, plaintiff appeals. Affirmed.

Norcross & Cheney and John D. Hoyt, for Appellant:

There can be no doubt that it was not only within the power of the county commissioners

to make answer to the writ of garnishment, but that it was their statutory duty, imposed by

law, so to do. When in the performance of such statutory duty said commissioners made what

turned out afterward to be a misstatement of fact, such act was not an act in excess of their

power, but a mistake in the exercise of a power possessed by them. 21 C.J. 1195.

In such circumstances, by a vast weight of authority, it has been settled that in the

performance of such duties a municipal corporation is subject to the principle of estoppel just

as a private person or a private corporation. 21 C.J. 1189; Seward v. Fisken, 122 Wash. 225,

210 P. 378; Curnen v. N.Y., 79 N.Y. 511; Hubbel v. City of South Hutchinson, 68 P. 52; City

of Oakland v. Oakland Water Front Co., 124 P. 251; City of Seattle v. Stirrat, 104 P. 834;

Washington Water Power Company v. City of Spokane, 154 P. 329; City of Colorado Springs

v. Colorado City, 94 P. 316; City of Portland v. Inman Poulsen Lbr. Co., 133 P. 829; Seely v.

Board of Education, 146 N.E. 187; State v. Pohle, 202 N.W. 148; Webster v. Toulon High

School District, 145 N.E. 118; Grimes County v. Slayton, 262 S.W. 209; Murphy v. Duffy,

124 Atl. 103; Quarles v. City of Appleton, 299 Fed. 508, 515.

If Lander County and its commissioners may now be heard to say that they were mistaken

and that they did not make truthful answer in the garnishment proceeding, then it will result

that this plaintiff, without fault, will have been substantially injured, and there will have been

a miscarriage of justice.

It is well settled that the extent and limit of process of garnishment depends entirely upon

the statute, and ��&��

��51 Nev. 114, 116 (1928) Hoyt v. Paysee��

that the question as to whom may be made garnishee is therefore purely a matter of statutory

construction. 28 C.J. 55. Therefore, we think there can be little doubt in view of the wording

of the Nevada statutes that it was the intention to include the State of Nevada and its

agencies, including counties, cities, townships and school districts. We refer the court first to

section 5151, Rev. Laws, which seems to indicate a legislative intent that all property of a

defendant in the state, not exempt from execution, might be reached by attachment. This

would certainly include property which might be temporarily in the custody of a city or

county or of the state. Section 5154, upon whose construction this question directly revolves,

provides that “all persons, including municipal and other corporations” may be made

garnishees, from which all inclusive language there seems to be a clear legislative intent that

the process of garnishment shall extend to either public or private entities capable of owing a

debt or having in its possession a credit of the defendant. Turning to section 5169 we find that

the writ of garnishment may be issued for the purpose of reaching “the credits, effects, debts,

choses in action, and other personal property of the defendant in the possession or under the

control of any third person.” Again, in section 5172 the act provides: “The names of as many

individuals, corporations, or other persons as are sought to be charged as garnishees may be

inserted in the same or different writs of garnishment.” Since the term “individuals” includes

at least all natural persons, and the term “corporations” includes at least all private

corporations, the only legal entities to which the words “other persons” can refer are public

agencies, including the State of Nevada, with its counties, cities, towns and school districts.

Haddock v. McDonald (Kans.), 159 P. 402. “It may be suggested, for the sake of clearness,

that the municipalities here referred to include counties, townships, cities and towns.”

Thompson on Corporation (3d ed.), sec. 750. In the case of County of Lincoln v. Luning, 133

U.S. 529, 33 L. Ed. 766, the supreme �� =��KDDD�� /�� 1�� -�G<�� #

��51 Nev. 114, 117 (1928) Hoyt v. Paysee��

court carefully analyzed article VIII of the constitution of Nevada, particularly section 10, and

held: “The liability of counties as municipal corporations to suit is declared by the

constitution itself.” In section 1361, Rev. Laws, as amended in 1915, there is a clear

recognition by the legislature of the right of an individual to attach funds of a third person on

deposit with the state treasurer. See, also, Mitchell v. Miller (Minn.), 103 N.W. 716;

Waterbury v. Deer Lodge County (Mont.), 26 P. 1002.

Howard E. Browne, District Attorney of Lander County, for Respondent:

Section 5174, Rev. Laws, 1912, provides that the garnishee shall answer the

interrogatories in writing upon oath or affirmation. Hence it is not sufficient that the

document or paper be signed, but it is a necessary prerequisite that it likewise be sworn to

before a person duly authorized to administer oaths according to law. Tacoma Grocery

Company v. Draham, 36 P. 31; 2 C.J. 338, footnote 83, par. h; Carlisle v. Gunn, 68 Miss.

243, 8 So. 743; State of Nevada v. Board of County Commissioners, Washoe County, 5 Nev.

317; Morgan v. Board of County Commissioners of Eureka County, 9 Nev. 360. Further, the

interrogatories are indefinite, they are not explicitly answered, and their meaning is

ambiguous and confusing.

Where there is an admission in a pleading that the merits of the cause of action therein

have been fully determined in another action, that pleading certainly does not allege sufficient

facts to constitute a defense. Gulling v. Washoe County Bank, 29 Nev. 257; Sherman v.

Dilley, 3 Nev. 21; McLeod v. Lee, 17 Nev. 103; Vickers v. Vickers, 45 Nev. 274; Edwards v.

Jones (Nev.), 246 P. 688; Ahlers v. Thomas, 24 Nev. 407; Bermond v. Metropolis Land Co.,

40 Nev. 89; 34 C.J. 442, et seq. (res judicata).

A county is exempt from being made a garnishee for reasons of public policy. 28 C.J. 58,

par. 70, “Counties.” A county is not a corporation within the meaning of the ��

��51 Nev. 114, 118 (1928) Hoyt v. Paysee��

terms of our statute, sec. 5172, Rev. Laws, 1912. It is a subdivision of the state, and unless

the wording of the statute is specific in providing that the garnishee process apply to the state,

counties or municipal corporations, such governmental agencies under the general principles

of law are exempt from the garnishee process. Duval County v. Charleston Lumber and Mfg.

Co., 60 L.R.A. 549 (Fla.); State v. Tyler, 45 P. 31 (Wash.); Flood v. Libby, 80 P. 533 (Wash.)

Appellant's argument that Lander County is now estopped from denying the truth of the

answers to the interrogatories, as so construed by appellant, is ably answered in the decision

of the trial court, wherein is cited State v. Boerlin, 30 Nev. 473. See, also, Gilbert v. Pier

(Wis.), 78 N.W. 566; Philadelphia Mort. & Tr. Co. v. City of Omaha (Neb.), 88 N.W. 523;

People v. Brown, 67 Ill. 435.

In sec. 5013, Rev. Laws, 1912, the legislature has seen fit to provide for suits by or against

counties as it did in Statutes 1864, p. 45, but it is submitted that they obtained such authority

not under the provisions of article VIII of the constitution of Nevada, but rather under the

provision of section 6 of the territorial enabling act (sec. 197 Rev. Laws), and that the

exercise of these powers are reconciled with sections 20, 21, 22 and 25 of article IV of the

constitution. Merely because “county, city, town or other municipal corporation are

mentioned in section 10 does not mean that a county is a municipal corporation.” Stermer v.

La Plata County, 5 Colo. App. 380-91. Our own supreme court does not classify a county as a

municipal corporation, and in fact it emphatically states that a county is not a municipal

corporation. Schweiss v. District Court, 23 Nev. 226, 230.

OPINION


This appeal is from a judgment in favor of Lander County, garnishee, and against the

appellant. The action was commenced by the appellant as assignee of �� ,��>�� +� �� C!��:!�0 �

��51 Nev. 114, 119 (1928) Hoyt v. Paysee��

a materialman who had furnished materials to Robert Paysee, defendant, for use in the

construction of a high school building in said county of Lander, in the value of $4,184.52.

Appellant caused to be issued and served upon the respondent, the county of Lander, a writ of

garnishment with written interrogatories attached which the garnishee was requested to

answer.

The interrogatories were as follows:

“What moneys, if any, are owing to Robert Paysee as contractor, or otherwise, for the

construction of the Lander County high school building at Battle Mountain, Nevada, and if

so, in what amount?

“Is Lander County, or the county commissioners of Lander County, acting as a board of

education under the provisions of chapter 35 of the session laws of the State of Nevada for

1921, indebted to Robert Paysee as contractor, or otherwise, for the construction of the

Lander County high school building at Battle Mountain, Nevada, and if so, in what amount?”

To each of the interrogatories the answer was $10,150. The interrogatories and answers

were signed as follows: “A. Altenburg, Geo. M. Southward, H.C. Meyer, Commissioners.”

The answers were not made on oath or affirmation as required by section 5174, Rev. Laws.

Thereafter judgment by default was entered against Paysee for the amount of $4,184.52,

the amount of appellant's demand, and for costs, and later, upon said judgment and answers to

the interrogatories, judgment was entered in the action that:

“Said defendant, Robert Paysee, do have and recover judgment for the use of the plaintiff

herein, against the said county of Lander, garnishee, in the sum of $4,184.52, with interest

thereon at the rate of 7 per cent per annum from said date until paid, together with plaintiff's

costs and disbursements, which were duly taxed and allowed in the sum of $29.75.”

Thereafter respondent caused the judgment against it to be set aside and was permitted to

file an answer to the garnishment proceedings. Later respondent filed at different times what

were entitled: “Amendment to % ��)�� >�� )�� #G%�� % �� )�� #�� G4�� % ��$� ��+� ��#

��51 Nev. 114, 120 (1928) Hoyt v. Paysee��

Answer to Garnishment Proceedings by Garnishee,” “Amended Answer in Garnishment,”

and “Supplemental Answer by County of Lander.” The substance of the pleadings of

respondent prior to the supplemental answer may be stated to be that the county

commissioners made a mistake in stating in their answers to the interrogatories that the sum

of $10,150 was due from the county to Paysee, for the reason that on October 14, 1922, and

prior to the garnishment proceedings, said Paysee assigned all moneys due to him to the

Battle Mountain Bank as security for the payment of certain loans made by the bank to him

on which assignment a judgment was obtained, etc.

The supplemental answer alleges, among other matters not necessary to be stated, that an

action was instituted by Lander County and certain of its officers against Robert Paysee,

United States Fidelity and Guaranty Company, a corporation, Battle Mountain State Bank, a

corporation, Johns-Manville, Incorporated, of California, a corporation, Peerless Pacific

Company, a corporation, and John D. Hoyt, for the purposes of determining which of said

defendants were entitled to share in that certain fund retained by Lander County at the date of

the completion and acceptance of the Battle Mountain high school building, known as the

Battle Mountain high school fund, in which there was a balance of $10,150. In that suit a

judgment and decree was entered on January 2, 1926, in which it was adjudged and decreed

that the defendant bank was entitled to $8,922.32, which amount was duly paid to said bank

on January 5, 1926; that there was due and payable to John D. Hoyt the sum of $1,227.68,

which amount was duly paid on or about January 20, 1926. It was found in said action that

said bank was entitled to the amount awarded by reason of its being the assignee of the

defendant Robert Paysee of so much of the Battle Mountain high school fund, which

assignment had been made and served upon the county of Lander prior to the garnishment

proceedings; and that said John D. Hoyt was entitled to the balance of said fund as the

assignee of certain materialmen. It �� &�� &�� +� ��$� ��

��51 Nev. 114, 121 (1928) Hoyt v. Paysee��

is also alleged in the supplemental answer that said judgment remains in full force and effect

and has not been appealed from, and that the questions presented in the present action are

identical to the questions presented in the Lander County action.

In his reply to the supplemental answer, appellant admits the judgment in the Lander

County case and admits that the claim of the Battle Mountain State Bank adjudicated therein

was superior and prior to the claim and interest of the plaintiff in said fund, but denies that

the validity and extent of plaintiff's claim was determined therein, and that the questions

presented in said action were identical to the questions presented herein.

The reply also admits that the judgment in the Lander County case remains in full force

and effect, and that the same has not been appealed from nor reversed.

Further, in avoidance of the matters pleaded by respondent in the answers, appellant in his

reply alleges facts from which it is concluded and alleged that Lander County is estopped to

deny that it was indebted to Robert Paysee for the balance unsatisfied in the judgment against

him at the time of the service of said writ of garnishment upon it.

Respondent demurred to the reply upon the ground that it did not state facts sufficient to

constitute a defense. The demurrer was sustained by the court, and, upon appellant refusing to

plead further and electing to stand upon his reply, judgment was rendered that the action

against Lander County, garnishee, be dismissed. The appeal is taken from this judgment.

It will be unnecessary to state the facts alleged in the reply upon which appellant bases his

claim of estoppel or to determine that question, for we are of the opinion that Lander County

is not subject to the process of garnishment.

Appellant claims that the legislature has extended this process to counties. The section

relied on is section 5154, Rev. Laws of Nevada. It reads:

“All persons, including municipal and other corporations, having in their possession, or

under their control, � �� #

��51 Nev. 114, 122 (1928) Hoyt v. Paysee��

any credits or other personal property belonging to the defendant, or owing any debts to the

defendant at the time of service upon them of a copy of the writ and notice as provided in the

last two sections, shall be, unless such property is delivered up or transferred, or such debts

be paid to the sheriff, liable to the plaintiff for the amount of such credits, property, or debts,

until the attachment be discharged or any judgment recovered by him be satisfied.”

It is urged that the term “municipal and other corporations” includes counties. We are

aware that the Supreme Court of the United States in Lincoln County v. Luning, vol. 133 U.S.

p. 529, 33 L. Ed. 766, has held that the constitution of Nevada, article 8, section 10, expressly

recognizes the county as a municipal corporation. But since that decision our supreme court

has clearly declared the distinction between a county and a municipal corporation. Schweiss

v. District Court, 23 Nev. 226, 45 P. 289, 34 L.R.A. 602. The court said:

“Clearly, a county is not a municipal corporation. If it were, there would have been no

occasion for this act, changing Storey County into a municipality. It is, at the most, only a

quasi corporation, and possesses only such powers and is subjected to only such liabilities as

are especially provided for by law. Mr. Beach, in his work on Public Corporations, states the

distinction between them as follows: ‘Municipal corporations embrace incorporated cities,

villages and towns, which are full-fledged corporations, with all the powers, duties and

liabilities incident to such a status; while public quasi corporations possess only a portion of

the powers, duties and liabilities of corporations. As instances of the latter class may be

mentioned counties, hundreds, townships, overseers of the poor, town supervisors, school

districts and road districts.'”

The distinction is also drawn by Mr. Dillon in section 23 of his work on Municipal

Corporations. While some decisions have construed the term “municipal corporations” to

include counties, the great weight of authority is in accord with the view expressed by this

court in Schweiss v. District Court, supra. Askew v. Hale $� ��0!�%��

��51 Nev. 114, 123 (1928) Hoyt v. Paysee��

County, 54 Ala. 639, 25 Am. Rep. 730; Hamilton County v. Mighels, 7 Ohio St. 109;

Granger v. Pulaski County, 26 Ark. 37; Woods v. Colfax County, 10 Neb. 552, 7 N.W. 269;

Lawrence County v. Railroad Co., 81 Ky. 225; Pulaski County v. Reeve, 42 Ark. 55; Board

of Park Commissioners v. Common Council of Detroit, 28 Mich. 237, 15 Am. Rep. 202;

Finch v. Board etc., 30 Ohio State St. 37, 27 Am. Rep. 414; Manuel v. Commissioners, 98

N.C. 9, 3 S.E. 829; Cathcart v. Comstock, 56 Wis. 590, 14 N.W. 833; Stermer v. La Plata

County, 5 Colo. App. 379, 38 P. 839; Hanson v. City of Cresco, 132 Iowa, 533, 109 N.W.

1109, Andrews, American Law, 505, 506; Thompson, Corporations, sec. 20; Tiedeman,

Municipal Corporations, sec. 3; 15 C.J. p. 392; 7 R.C.L. p. 924.

The case of Schweiss v. District Court is cited in Hanson v. Cresco, 132 Iowa 533, 109

N.W. 1109, in support of the distinction so generally recognized that such local subdivisions

of the state as counties are quasi corporations as distinguished from municipal corporations

proper.

Before the opinion in Schweiss v. District Court, the clause, “including municipal and

other corporations,” was not contained in the statute. When the laws were revised in 1912,

section 130 of the civil practice act, as it then stood, was reenacted verbatim with the added

clause, “including municipal and other corporations.”

1-3. The questions presented therefore is, was it intended by the term, “municipal and

other corporations,” to subject counties to the process of garnishment? We are not prepared to

say that such was the intention of the legislature. There can be no dissent from the fact that

garnishment in the United States is purely a statutory proceeding. Drake on Attachment, sec.

451; Ency. Pl. & Prac. vol. 9, p. 108; 2 R.C.L. p. 776; Clarke v. Osage County, 62 Okl. 7, 161

P. 791, L.R.A. 1917b, 1269; State ex rel. Summerfield v. Tyler, 14 Wash. 495, 45 P. 31; 37

L.R.A. 207.

In a number of states the use of the process of garnishment has not been granted against

counties, and their exemption in this respect is put upon the ground of ��

��51 Nev. 114, 124 (1928) Hoyt v. Paysee��

public policy. As said in Duval County v. Charleston Lumber Co., 45 Fla. 256, 33 So. 531, 60

L.R.A. 549, 3 Ann. Cas. 174:

“Public corporations such as counties are created for the care and promotion of public

interests, and should not from motives of public policy be subjected to the liability of

becoming involved in the disputes of private persons, or be made the instrumentalities for

collecting private debts.”

The following are a few of the many authorities to the same effect: Boone County v. Keck,

31 Ark. 387; Stermer v. La Plata County, 5 Colo. App. 379, 38 P. 839; Morgan v. Rust, 100

Ga. 346, 28 S.E. 419; Wallace v. Lawyer et al., 54 Ind. 501, 23 Am. Rep. 661; Clarke v.

Osage County, 62 Okl. 7, 161 P. 791, L.R.A. 1917b, 1269; 28 C.J. p. 58; 12 R.C.L. 842.

By reason of the recognized impolicy of subjecting a county to the inconveniences and

liability of garnishment, the rule has been established that the legislative intent to do so must

be clearly expressed. The rule is thus expressed in 12 R.C.L. p. 842:

“In the absence of express statutory provision clearly evincing the intention to grant the

use of the process of garnishment against counties, public policy forbids that they should be

subjected to the process.”

“Throughout the United States the remedy by garnishment is purely statutory. The

proceeding cannot therefore be extended to cases not clearly provided for in the statute.” 9

Ency. Pl. & Prac. 809.

Applying this rule, and in view of the distinction stated in Schweiss v. District Court, of

which the legislature must be presumed to have been cognizant, we hold that a county is not

subject to the process of garnishment.

The judgment of the lower court is affirmed.

____________

��51 Nev. 125, 125 (1928) Ward v. Daniels��

WARD v. DANIELS

No. 2812

September 5, 1928. 269 P. 913.

1. Executors and Administrators—Statute Authorizing Proceeding for Discovery of

Decedent's Personalty Held Not To Empower Court to Determine Title. Rev. Laws, secs. 5953, 5954, authorizing proceeding for discovery of personal property belonging to

decedent and claimed to be concealed or withheld by another, and authorizing district court to order

delivery of such property to executor or administrator, confers no power on the court to determine the

question of title to personalty between decedent's estate and one in possession claiming ownership

thereof.

2. Executors and Administrators—Respondent's Testimony that She Held Decedent's

Personalty as Gift Held Properly in Record for Consideration, where No Ruling Was

Obtained on Objection Thereto. In proceeding by administrator under Rev. Laws, secs. 5953, 5954, to compel delivery to him of

personalty belonging to decedent claimed to be withheld by respondent, respondent's testimony that she

held such property as gift from decedent was properly in record for consideration of trial court, where

administrator's attorney, though objecting thereto on the ground that it was incompetent, as involving

transaction with a deceased person, did not obtain a ruling on his objections.

3. Trial—Trial Court Held Not Bound to Strike Testimony, where Objection Was Made

Solely to Answers, and No Motion to Strike Testimony Was Made. Trial court held not bound to strike out testimony where objection was made to the answers, and not

to the questions which elicited them, and no motion was made to strike the testimony.


Executors and Administrators—23 C.J. sec. 409, p. 1184, n. 30; p. 1185, n. 35.

Trial—38 Cyc. p. 1347, n. 65; p. 1392, n. 15; p. 1401, n. 16.

Appeal from Seventh Judicial Court, Mineral County; J. Emmett Walsh, Judge.

Proceeding by C.C. Ward, administrator of the estate of Sven August Peterson, against

Mrs. M.L. Daniels. From an order denying his motion for an order directing respondent to

deliver to him certain moneys in her possession, alleged to belong to the estate, the

administrator appeals. Affirmed.


C.C. Ward, Appellant and Attorney, pro se:

The court erred in permitting Mrs. M.L. Daniels, respondent herein, to testify, over

administrator's objection, concerning an alleged transaction between herself and the deceased,

out of which testimony concerning the alleged transaction the said witness was endeavoring

to establish a benefit to herself. Rev. Laws, sec. 5419; Burgess v. Kelon, 24 Nev. 242, at 250,

cited in Su Lee v. Peck, 49 Nev. 124, at 130; Maitia v. Allied L. & L. Co., 49 Nev. 451, at

467; Kroh v. Heins, 48 Nebr. 691.

The court erred in overruling the administrator's motion for an order of court directing

Mrs. M.L. Daniels, respondent herein, to deliver to administrator the money admitted by the

said Mrs. Daniels to have been received and retained by her, and which had, prior to his

death, belonged to and been in the possession of the deceased. There being no proof of any

relinquishment by deceased of his ownership thereof, it must be conclusively presumed that it

still belongs to said deceased. Jones, Commentaries on Evidence, sec. 58a, and authorities

cited. And upon the occasion of the death of deceased, the right of immediate possession of

said money is in the administrator of the estate. Rev. Laws, sec. 5950; Morris v. Vyse

(Mich.), 253 N.W. 639. Therefore it was the duty of the court to order and compel delivery

thereof by respondent to the administrator of the estate of the deceased. Stats. of Nevada,

1925, c. 191, p. 335. The provisions of the statute are clear and positive, and should have

been applied by the court. Odd Fellows Bank v. Quilton, 11 Nev. 109, at 118; Ex Parte

Rickey, 31 Nev. 82; Ex Parte Moran, 83 Kans. 615, 112 P. 94; Humbarger v. Humbarger, 72

Kans. 412; Meixell v. Kirkpatrick, 33 Kans. 282, 6 P. 241.

Surely the circumstances wherein respondent admits that the money was Peterson's prior to

his death, followed by the unsupported statement of respondent that she now claims it as a

gift, does not show that the money is respondent's or that she has any bona fide claim thereto.

If such a conclusion is to be entertained by the courts, then the statute, section 5954 Rev.

Laws, is a nullity.


Green & Lunsford, for Respondents:

A very superficial examination of the authorities disclosed that the probate court, under

such a statute as ours, has no power to judicate or determine the ownership or right of

possession of property in the hands of a third person who makes a bona fide claim of

ownership or right of possession thereof. Ex Parte Casey, 71 Cal. 269, 12 P. 118, Kerr's

Annotated Code of California, sec. 1459, part three, p. 2947; Koerber v. Superior Court et al.,

206 P. 496, at 497, par. 2; Baker v. Hanson (Mont.), 231 P. 902, at 904, par. 7.

Respondent cannot be compelled to turn over and deliver her property, or property to

which she has a bona fide claim, without due process of law. She is entitled to have her claim

heard in an ordinary civil proceeding in which she would have the opportunity to answer to

the formal allegations of the complaint and call witnesses and introduce documentary

evidence in the defense of her claim. She was afforded no such opportunity on the citation in

this case. She was entitled to demand a jury trial of the issues involved, and an order made in

compliance with the motion made in the trial court by the appellant would have deprived her

of her right to due process of law and trial by jury, guaranteed by the federal and state

constitutions.

OPINION


This is an appeal from an order of the above-entitled court denying appellant's motion for

an order directing respondent to deliver to the administrator of said estate certain moneys in

possession of respondent alleged to belong to said estate. The administrator filed in said court

a complaint for conversion and nondelivery of property of said estate, wherein it was alleged

that Mrs. M.L. Daniels of Hawthorne, Mineral County, Nevada, had money and other

property belonging to said estate which she had withheld and concealed and converted to her

own use, and had refused after demand by the administrator to deliver the property to him.

Citation was ��


issued thereon directing respondent to appear before said court and show cause why she

should not answer, under oath, concerning said property.

On the 15th day of October, 1927, respondent appeared with her counsel in response to the

citation, and was examined upon her oath concerning the matters set out in the complaint. Her

testimony is substantially as follows: At all times during the year 1927 she was matron in

charge of the Mineral County hospital, at Hawthorne, Nevada. On the 7th day of June, 1927,

Sven August Peterson was brought to said hospital for medical and hospital attention. On the

arrival of Peterson at the hospital she took possession of his personal effects, among which

were twenty-eight dollars in cash, a deposit book of the Inyo County Bank, at Bishop,

California, showing a balance on deposit in that bank in the name of Peterson in the sum of

$4,000, and four cashier's checks, issued by the cashier of the Lone Pine Branch of said Inyo

County Bank, for the sum of $100 each, or a total of $400. On the 8th day of June Peterson

drew a check for $4,000 upon said bank in favor of respondent and gave it to her as a present.

Thereupon the administrator objected to the answer of the witness, on the ground that it was

incompetent for the reason that it attempted to state facts concerning a transaction between

the witness and a person since dead, out of which transaction the witness was then attempting

to establish a benefit to herself. The objection was sustained and the answer stricken out.

The respondent further testified that, at some time between the 7th and the 11th days of

June, 1927, the said Peterson indorsed the four cashier's checks and gave them to respondent,

stating that he desired her to keep said checks for the purpose of paying his funeral expenses,

and if there was any left over, that respondent was to keep the surplus as a gift. An objection

was also made to this answer. It was sustained and the answer stricken out. The respondent

testified further substantially as follows:

On the 10th day of June, 1927, Peterson assigned to �� 4�<��J�� 4��/��


respondent a passbook for said savings account in said bank, which assignment was

acknowledged before S.T. Kelso, county clerk of the county of Mineral, State of Nevada. The

check for $4,000, passbook and assignment were presented to said bank on June 11, 1927,

and the amount of $4,000 was transferred to the account of respondent, together with an

additional sum of $80 as interest on said deposit. Peterson died in the said Mineral County

hospital on the 11th day of June, 1927.

After his death respondents cashed the four cashier's checks and out of the proceeds paid

the sum of $328.28 on account of the funeral expenses, and on June 15, 1927, delivered to

said county treasurer all of the personal property of deceased which she had received

belonging to said Peterson, except the checks, the money in bank, and $28 which Peterson

had upon his person when he arrived at the hospital. On or about the 15th of June respondent

caused the sum of $4,080, which prior to the death of Peterson had been on deposit in his

name in said bank, to be withdrawn therefrom and to be transferred to her own account in

another bank.

In response to examination by her counsel respondent again stated that, prior to the time of

Peterson's death and during the time he was in said hospital, he gave to her his check and

passbook on the Inyo County Bank as a gift to herself, and indorsed and gave to her four

cashier's checks on the Lone Pine Branch of the Inyo County Bank, for $100 each, with the

request that she was to use the proceeds thereof to pay his funeral expenses and accept as a

gift to herself all that might be left over after paying said expenses; and that she did accept the

above-mentioned gifts and claimed the money as realized from said checks as her own,

except so much as was paid out by her on account of funeral expenses as aforesaid. To these

answers, so far as they related to facts concerning a transaction between the witness and the

deceased, administrator entered his objections, but there was no further ruling upon the point

raised.

The proceedings were taken under and in pursuance �� 0�02�� 0�0!��,��+��/��


of sections 5953 and 5954 of the Revised Laws of Nevada. The former section reads in part:

“If any executor or administrator, heir, devisee, legatee, creditor, or other person interested

in the estate of any deceased person shall complain, on oath, to the district judge that any

person has, or is suspected to have concealed, converted to his or her own use, conveyed

away or otherwise disposed of any moneys, goods, chattels, or effects of the deceased, or that

he has in his possession or knowledge any deeds, conveyances, bonds, contracts or other

writings, which contain evidence of, or tend to disclose the right, title or interest of the

deceased in or to any real or personal estate, or any claim or demand, or any last will of the

deceased, the said judge may cause such person to be cited to appear before the district court

to answer upon oath upon the matter of such complaint. * * *”

The latter section, as amended by Stats. 1925, p. 335, provides in part:

“If upon such examination it shall appear that such person has concealed, converted to his

or her own use * * * any moneys, goods or chattels of the deceased, * * * the district court

may make an order requiring such person to deliver any such property or effects to the

executor or administrator. * * *”

It is insisted by appellant that the showing made on the hearing was sufficient to require

the district court to make an order requiring respondent to deliver the moneys in question to

appellant by virtue of the provision last quoted. The position taken is that title to the moneys

in question was shown on the hearing to have been in Peterson shortly before his death, and

that no competent evidence was adduced at the hearing showing a transfer of title to

respondent.

1. It must be conceded that title to disputed property cannot be adjudicated under these

provisions. Similar probate provisions are found in the statutes of other state. While in some

of these states the object is the discovery, and in others to compel the production and delivery

of property, it is well established in these jurisdictions that such provisions confer no power

upon the �� &��


court to determine a question of title between an estate and a person in possession of personal

property claiming ownership thereof. Koerber v. Superior Court, 57 Cal. App. 31, 206 P. 496;

Barto v. Harrison et al., 138 Iowa 413, 116 N.W. 317; In Re Manser's Estate, 60 Ore. 240,

118 P. 1024; Humbarger, v. Humbarger, 72 Kan. 412, 83 P. 1095; State ex rel. Cohen v.

District Court, 53 Mont. 210, 162 P. 1053; Hoehn v. Struttmann, 71 Mo. App. 399;

Richardson v. Daggett (D.C.), 24 App. 440; 23 C.J. pp. 1184, 1185, par. 409; Schouler Ex'rs

and Adm'rs. sec. 270; 2 Woerner's American Law of Administration (2d ed.), sec. 325. In the

section last quoted Judge Woerner, in his discussion of such summary provisions and

decisions bearing thereon, states his conclusion as follows:

“Hence it is not the proper remedy to enforce the payment of a debt or liability for the

conversion of property of the estate, or to try contested rights and title to property between the

executors and others.”

In Koerber v. Superior Court et al., supra, the court said:

“The main question presented by this proceeding, is whether or not the court, sitting in

probate, in the exercise of its jurisdiction, pursuant to sections 1459, 1460, and 1461 of Code

of Civil Procedure, may try and determine questions of title to personal property. The trial

court expressed grave doubts about it, and, in view of the decisions of the supreme court of

this state, there can be no question that such power does not exist, and that any attempt to

exercise such authority is in excess of the probate jurisdiction. Ex Parte Casey, 71 Cal. 269;

12 P. 118; Ex Parte Hollis, 59 Cal. 406; Levy v. Superior Court, 105 Cal. 600, 38 P. 965, 29

L.R.A. 811; Estate of Klumpke, 167 Cal. 415, 139 P. 1062. It has also been held in other

jurisdictions, in construing statutes similar to ours, that the power of the probate court ends

with the discovery of the property and the enforcement of the remedial provisions of the

statute, and does not extend beyond that, so as to allow the court to adjudicate the title to the

disputed property. In Re Robert's Estate, 48 Mont. 40, 135 P. 909; Barto v. Harrison et al.,�2:�D��!�2��7�/�3��2�?"�D �,�� '��6��71�L��


138 Iowa 413, 116 N.W. 317; In Re Manser's Estate, 60 Or. 240, 118 P. 1024; Humbarger v.

Humbarger, 72 Kan. 412, 83 P. 1095, 115 Am. St. Rep. 204.”

In Humbarger v. Humbarger, supra, the court said:

“The purpose of the proceeding is to make discovery and compel production of the

property of an estate suspected of having been concealed, embezzled, or conveyed away, but

it cannot be employed to enforce the payment of a debt or liability for the conversion of

property of an estate, or to try controverted questions of the right to property as between the

representative of the estate and others.”

Speaking of a similar statute, the court in Richardson v. Daggett said:

“The general purpose of section 122 was to furnish a prompt remedy in the probate court

for the discovery of the assets of estates in administration therein that may have been

concealed, and their reduction to possession when so discovered. But we are unable to find a

further intention to confer upon the probate court the jurisdiction to determine the question of

the actual ownership of such property when the title thereto is claimed by the representatives

of the estate on one hand and the party in actual possession on the other. The practical effect

of a contrary construction would be to remit to the probate court, sitting as a court of equity,

the final determination of the title to all personal property claimed by the representatives of

the estate as against adverse holders thereof; for the extension of the jurisdiction would be

accomplished by the allegation that they had been concealed. There would seem to be no

doubt that the allegation in this case was made in good faith, and had foundation in the

surrounding circumstances set forth; but its legitimate object was attained by the discovery

sought and elicited. Had there been no adverse title claimed by the respondent an order of

delivery would have followed as a matter of course. But, when the respondent gave a

description of the articles in controversy, and at the same time claimed the title adversely, the

provisions of section 122 were fully satisfied. All �� &�� #


that remained for the probate court to do was to terminate the proceeding and leave the parties

to their remedies in courts of general jurisdiction, either at law or in equity as the conditions

might determine.”

We will not further review decisions interpreting statutes similar to ours. They are uniform

in holding that the power to determine title is not conferred, and we reach the same

conclusion in regard to the provisions of our probate law.

2. It is claimed by appellant that respondent's testimony asserting ownership to the moneys

in question adduced by the questioning of her counsel should have been stricken out by order

of the court, as it was during her examination by counsel for appellant, and that, with such

testimony out of the record or disregarded, there is no evidence of title adverse to the estate.

We think that the evidence was properly in the record for the consideration of the trial court.

It was counsel's business to insist upon a ruling on his objection, which was not done.

3. Again, the trial court was not bound to strike the testimony upon the objection made,

even if objectionable upon the ground stated, for the reason that the objection was made to

the answers and not to the questions which elicited them. No motion was made to strike the

testimony. There is nothing to indicate that the questions were of such a nature as not to

apprise opposing counsel of the answers sought to be elicited, nor is there anything to indicate

that counsel was otherwise deprived of an opportunity to properly place his objections. State

v. Clarke, 48 Nev. 134, 228 P. 582.

The testimony of the respondent as to the circumstances under which she claims to have

become the owner of the money was, therefore, properly in the record for the consideration of

the trial court. It constitutes substantial evidence tending to show title and right of possession

in respondent. Consequently the trial court was bound to deny the motion. It is only where it

clearly appears that title is in the estate, and that the possession is wrongfully withheld, that

the probate court can, under �� 0�0!��


section 5954, decree that the possession be delivered to the executor or administrator.

The order of the probate court should be affirmed.

It is so ordered.

____________

��51 Nev. 134, 134 (1928) Kondas v. Washoe County Bank��

KONDAS v. WASHOE COUNTY BANK

No. 2735

November 8, 1928. 271 P. 465.

1. Banks and Banking—Bank Preventing Payment of Foreign Draft, after Issuing it for Larger

Amount than Proper, Must Bear Resulting Loss Incident to Declining Exchange. Where bank issuing foreign draft for drachmas pursuant to request of depositor issued draft in amount

larger than that for which it should have been issued, and thereafter prevented its payment on

presentation, the resulting loss incident to declining drachmas must be borne by the bank, rather than the

depositor who was in no way at fault.

2. Action—Action for Money Had and Received Held to Lie for Recovery by Depositor of

Amount Paid to Bank for Drafts. Action for money had and received held to lie for recovery by depositor of amount paid to bank for

issuance of foreign drafts on which he was unable to secure payment by reason of bank's negligence in

improperly issuing drafts.


Money Received—41 C.J. sec. 11, p. 35, n. 37.

See, also, 50 Nev. 181.


Suit by John Kondas against the Washoe County Bank. From the judgment, plaintiff

appeals. Reversed, with directions.

Clyde D. Souter, for Appellant:

All cases dealing with a transfer of a credit by letter or by cable or by wireless involves an

executory contract, while a transaction in which a foreign bill of exchange has been issued

upon the payment of American money involves an executed contract.

One who secures a draft obtains a written order by the drawer upon the drawee, which by

commercial usage, and even by statutory enactment in some jurisdictions, �� =�� &��


has come to be recognized as the symbol and equivalent of money, and which enables the one

who has obtained it, without further action by the drawer, to secure from the drawee the

moneys which it represents. In consideration of the money paid by him he has actually

obtained an instrument for the payment of money, and which is regarded as its equivalent,

and it is perfectly natural to speak of such a transaction as resulting in the executed purchase

of a draft. A person who makes a contract for a credit in foreign exchange accomplishes no

such result. He has secured nothing which will pass for money or which will enable him,

except through the action of the banker, to obtain the exchange which he desires. Richard et

al. v. American Union Bank, 205 N.Y. Supp. 622.

It is plaintiff's theory, therefore, that in the case at bar the contract for the purchase of the

two bills of exchange in question was not an executory contract, but, on the other hand, was

an executed contract, which was finished and completed when Mr. Muller, the agent of the

defendant bank, handed over to plaintiff, Kondas, the two bills of exchange in question. It is

also the theory of the plaintiff's case that because of this it must naturally and inevitably

follow that the case is to be determined according to the rules and principles of law applicable

to executed contracts, and that the rules and principles of law applicable to executory

contracts can have here no application.

When the defendant failed to perform, the plaintiff was entitled to his money back. Safian

v. Irving National Bank, 202 App. Div. 459, 196 N.Y. Supp. 141, 143. The theory of damages

is compensation to the party who has been wronged, and not profit to the wrongdoer. Dermer

v. Adams Express Company, 202 App. Div. (N.Y.) 828; Stern v. Adams Express Company,

202 App. Div. 830; Temer v. Zimmerman, 202 App. Div. 832; Atlantic Communication

Company v. Zimmerman, 182 App. Div. 862, 170 N.Y. Supp. 275, 280; Beecher v.

Cosmopolitan Trust Co. et al., 131 N.E. 338.


Price & Hawkins, for Respondent:

The action is one for “money had and received”; it is not for damages, accruing either for

breach or upon rescision of contract; neither is it one concerning any bills of exchange, or the

purchase of credit, or duty to transmit money—but it is only to recover the sum of $2,100

alleged to have been received by defendant for the use of the plaintiff, and which in equity

and good conscience the defendant should pay over to the plaintiff. Firpo v. Pacific Mutual

Life Ins. Co. (Cal. App.), 251 P. 657, 658. Is it not manifest, under the admitted facts in this

case, that the defendant bank did not at the time of the trial, or at any time, have “money

which in equity and good conscience it ought to pay to the plaintiff?”

Is not the situation in the instant case correctly portrayed by the court in Strohmeyer &

Arpe Co. v. Guaranty Trust Co. of New York, 157 N.Y. Supp. 955, 958? Also, Richard et al.

v. American Union Bank, 205 N.Y. Supp. 622; Carmen v. Higgins (Mass.), 140 N.E. 246;

American Express Co. v. Cosmopolitan Trust Co. (Mass.), 132 N.E. 26; Richard et al. v.

American Union Bank, 204 N.Y. Supp. 719, 722.

OPINION


The plaintiff brought suit to recover $2,100 and interest. The court entered judgment for

the defendant. On motion a new trial was granted as to a $600 item and denied as to a $1,500

item. The respective parties took separate appeals. The appeal of the plaintiff is now under

consideration, and we will refer to the parties as plaintiff and defendant.

The plaintiff, who is a Greek and unable to read and write English, on September 6, 1919,

went into the defendant bank, with which he had theretofore had business, and told a clerk

that he wanted to buy drafts on the National Bank of Greece, Athens, Greece, for $2,100,

payable on said Athens bank in drachmas.


After figuring for a time, the clerk determined the amount in drachmas which the $2,100

would purchase, the charges and commissions, and, after being informed as to this, the

plaintiff instructed the bank clerk to issue him two, drafts one for drachmas costing $600 and

the other for drachmas costing $1,500. The clerk prepared and had properly signed two drafts,

in duplicate, one No. 3503 and the other No. 3504, which were delivered to the plaintiff, and

thereupon charged plaintiff's account with the $2,100.

The original of draft No. 3503 was originially prepared was written in for 3250 lires, the

word “Lires” appearing both in the body of the draft and after the figures”3250.” But before

delivery pen and ink was run through the word “Lires” and the word “Drachmas” written

thereafter. In the duplicate of this draft, as appears from the photostatic copy in the record,

pen and ink was run through the word “Lires” after the figures “3250,” and the word

“Drachmas” written above it, but in the body following the words “Thirty-two Hundred Fifty”

appears “L” with indications that the word “Lires” was once written there and all thereof

erased except a portion of the stem of the letter “L.” The word “Drachmas” nowhere appears

in the body of the duplicate. The other draft, No. 3504, in both original and duplicate, is

regular on its face, but instead of being issued in the sum of 8,125 drachmas, which is the

sum for which it should have been issued, was issued for 81,255 drachmas—practically ten

times what it should have been issued for.

It was the purpose of the plaintiff to take a trip to Greece when he purchased the drafts,

and three days later he went to the bank and drew out, in cash, the balance of his deposit, and

left for Salt Lake City, where he expected to meet a countryman and make the journey to

Greece with him. Upon meeting his friend they called upon the Greek consul, who told them

of the war existing between Greece and Turkey, and advised them not to undertake the trip.

They obtained work and returned in January with a view of making inquiries of ��


the consul, and learned the conditions were unchanged. He then decided to send the drafts to

the bank in Athens for deposit to his credit, at interest. On the 21st of January, 1920, he wrote

to that bank enclosing the drafts with instructions. The bank, due to disturbed conditons, did

not receive the letter until late in February. The defendant learned of its mistake in the

amount of the second draft a few days after issuance and cabled the bank in Athens to pay it

in the amount of 8,125 drachmas, only.

Upon receipt of plaintiff's letter containing the drafts the Athens bank refused flatly to pay

the altered draft and wrote to the plaintiff stating that it had received the cablegram directing

it to pay the other draft in the sum of 8,125 drachmas instead of the amount stated therein,

and asked if they should pay it in that amount.

On June 23, 1920, the plaintiff wrote to the Athens Bank, saying:

“* * * and I beg you warmly to send back to me my draft (the one for 81,255 drachmas)

because there is a great difference between me and the bank here, and the which difference I

cannot settle without the above draft.”

This letter was written in Greek, and the above quotation is from the translation in

evidence. After the two drafts were reurned to the plaintiff he demanded his money back from

the defendant. It refused to pay back the money but offered to issue new drafts. The plaintiff

refused to accept new drafts and brought this suit. Though the complaint as drawn contained

seven counts, the case was tried upon the count to recover $2,100, for money had and

received. This appeal involves only the draft issued for 81,255 drachmas.

Our attention has been directed to several New York cases, which, it is claimed, throw

some light upon the main question in the case. We do not deem it necessary to review these

cases, as the facts in none are identical to those in the instant case.

1. In the instant case the parties entered into a verbal contract to the effect that the

defendant would issue to �� /�� 5� ��)��%�� :�� 0��


the plaintiff a draft upon the National Bank of Greece, at Athens, payable in the sum of 8,125

drachmas, on presentation. The plaintiff paid his money for the draft and in return received a

draft upon which he could receive nothing when it was presented for payment. It is true that

the bank was instructed by cable to pay in the sum of 8,125 drachmas, but it did not do it on

presentation, nor could it have been expected to do so in the circumstances. The inability of

plaintiff to collect his 8,125 drachmas was due soley to the fault of the defendant. In this

situation who should suffer? Should it be the ignorant Greek who paid his hard-earned cash

and is no way at fault, or the one through whose negligence the loss, incident to declining

drachmas, was caused? The situation seems too clear to call for even a doubt. In the case of

Safian v. Irving Natl. Bank, 190 N.Y.S. 532, the court in passing upon a contract to transfer

money by cable, said:

“It is clear that the defendant's ‘engagement' was not met by it. On ordinary principles

governing the law of contract it seems clear that the plaintiff thereupon has the right to

recover back the consideration paid by him.”

On appeal, the court, speaking through Page, J., said:

“In my opinion this case is simply a breach of the express contract on the part of the

defendant by failure to perform, and the plaintiff was entitled to recover back the money that

he had paid to the defendant.” 196 N.Y.S. 142.

Though the facts in the case mentioned are dissimilar from those in this case, the principle

stated applies.

The defendant contends that the plaintiff could have authorized the Greek bank, in

response to its inquiry, to pay the draft for 8,125 drachmas. There are two or more answers to

this, but one suffices: He was entitled to a draft payable on presentation. He did not get it.

2. But it is claimed that the action for money had and received will not lie. In this we

disagree with counsel. In Smart v. Valencia et al., 50 Nev. 359, 261 P. 665, we quoted

approvingly the following: G% �� &��


“An action for money had and received can be maintained whenever one man has received

or obtained the possession of the money of another, which he ought in equity and good

conscience to pay over. This proposition is elementary. There need be no privity between the

parties, or any promise to pay, other than that which results or is implied from one man's

having another's money, which he has no right conscientiously to retain. In such case the

equitable principle upon which the action is founded implies the contract and the promise.

When the fact is proved that he has the money, if he cannot show a legal or equitable ground

for retaining it the law creates the privity and the promise. 2 Chitty, Cont. 899 (11th Am.

Ed.); Mason v. Waite, 17 Mass. 560; Hall v. Marston (17 Mass. 575) Id. 574; Knapp v.

Hobbs, 50 N.H. 476; Eagle Bank v. Smith, 5 Conn. 71 (13 Am.Dec.37). It is not necessary

that the defendant should have accepted the money under an agreement to hold it for the

benefit of the plaintiff, or that the party from whom he received it intended it for the plaintiff's

benefit. Neither is it necessary that the money received by the defendant should have been an

exact and specific sum, belonging exclusively to plaintiff, and entirely separate and distinct

from any other moneys. We have found no case which lays down any such narrow rule.

Allanson v. Atkinson, 1 M. & S. 583; Heartt v. Chipman, 2 Aiken [Vt.], 162.”

We think the facts of this case bring it within the rule quoted.

For the reason given the judgment and order are reversed, and it is ordered that the trial

court enter judgement in favor of the plaintiff for $1,500, with legal interest from September

6, 1919. Plaintiff to recover costs in both courts.


January 4, 1929.

Per Curiam:

Rehearing denied.

____________


KONDAS v. WASHOE COUNTY BANK

No. 2738

November 8, 1928. 271 P. 466.


Price & Hawkins, for Appellant.

Clyde D. Souter, for Respondent.

(It was stipulated by and between respective counsel that the same briefs be considered, as

far as applicable, in this and the companion case of the same title, No. 2735.)

OPINION


This is a companion case to that of the same title, No. 2735, 271 P. 465, in which an

opinion has been this day delivered. This appeal is by the defendant and is from the order

granting a new trial as to the $600 item. We will not restate the facts stated in case No. 2735,

as they may be gathered from the opinion rendered in that appeal. It will be necessary,

however, to briefly supplement the statement of the facts in that opinion.

This appeal involves the draft No. 3503, in which certain alterations were made. The trial

court in granting the motion for a new trial as to the item in question said:

“* * * This latter draft had been altered by the issuing bank, the word “Lires” having been

first written and scratched and the word “Drachmas” then written, which, under the testimony

of banking experts, gave the instrument but a discretionary value at best, under banking

practice; the drawee bank, the National Bank of Greece, at Athens, refusing to pay in this

instance, and having returned the said draft to Kondas, the payee, and in its letter discharging

itself of responsibility.


“Plaintiff, payee, paid $600 for this 3,250 drachma draft, and was entitled to an instrument

free from such error as would leave payment thereof to the discretion of the drawee bank on

presentment.”

A review of the evidence convinces us that the court was clearly right in its conclusion as

to the evidence. This being true, there was nothing for the court to do but to grant the new

trial. The law as declared in the companion case controls, and upon authority of that

decision—

It is ordered that the matter be remanded to the trial court, with instructions to enter

judgment for $600, with interest at the legal rate from September 6, 1919, with costs.

On Petition For Rehearing

January 4, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 142, 142 (1928) Markwell v. Gray Et Al.��

MARKWELL v. GRAY Et Al.

No. 2795

November 8, 1928. 271 P. 337.

1. Appeal and Error—Transcript of Testimony Having Been Stricken from Record, and No

Bill of Exceptions Settled, There Is No. Reviewable Evidence. It appearing the transcript of testimony in proceedings was stricken from record on former hearing,

and no bill of exceptions was ever settled, held that there is no evidence to review.


Appeal and Error—40 C.J. sec. 1752, p. 133, n. 45

Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.

On rehearing. Rehearing denied and former judgment affirmed. (For former opinion,

see 50 Nev. 427, 265 P. 705.)

G. Gunzendorfer, for Appellant:

It is to the proofs that the court must look in every event to determine the sufficiency of the

findings and ��


judgment. Barnes v. Saborn, 10 Nev. 217, 248. On an appeal from the judgment only, the

court may examine the record to determine whether there is any evidence to support the

findings. Sheldon v. Powell, 31 Mont. 249, 78 P. 491, 107 Am. St. Rep. 429. The transcript

of the proceedings, certified by the court reporter, was filed herein in lieu of a bill of

exceptions, pursuant to the terms of section 1 of the act of March 8, 1923, Statutes 1923, p.

164. The court reporter's transcript of the proceedings, as provided by this act, may be filed in

place of a bill of exceptions. An appeal may be taken from a judgment (section 5329 Rev.

Laws) without moving for a new trial (section 5328 Rev. Laws). The limitation of time

prescribed for the serving and filing of a bill of exceptions does not appear to be required for

the court reporter's transcript. Nothing appears in this or any other section that limits

consideration of evidence only to any appeal from an order denying a motion for new trial.

That the court under the circumstances may examine the evidence to determine whether it

sustains the findings and judgment is not only logical and right, but has been so determined

by this court in Sweet v. Sweet, 49 Nev. 254, 258.

A. L. Haight and Price & Hawkins, for Respondents:

The above-entitled case is before this court on an appeal from the judgment—upon the

judgment roll alone. This court in this case, in 50 Nev. 427, 265 P. 705, held “that the

transcript as a bill of exceptions, not having been served and filed within the time required by

the statute, cannot be considered by this court * * * and should be stricken.” It is, therefore,

manifest that there is no bill of exceptions, even considering the transcript of proceedings as

and in lieu of the bill of exceptions, in the case at bar; and appellant is not authorized or

justified in arguing or expecting the court to consider, upon the record now before the court,

the evidence or any matter except that which appears upon the face of the judgment roll; and

Appellant does not even claim that there is error �� "��


upon the face of the judgment roll; therefore, upon and in accordance with all the decisions of

this court, the judgment should be affirmed. Water Co. of Tonopah v. Tonopah Belmont

Development Co., 50 Nev. 24, 249 P. 565, 566; State v. Boyle, 49 Nev. 386, 248, P. 48;

Bowers v. Charleston Hill Nat. Mines, Inc., 50 Nev. 104, 256 P. 1058, 1059; Giannotti v.

DeBock, 47 Nev. 332, 221 P. 520.

OPINION

Per Curiam:

In this case we formerly ordered that the appeal from the order denying plaintiff's motion

for a new trial be dismissed, and that defendant's motion to strike be granted. 50 Nev. 427,

265 P. 705.

In the argument on this phase of the case it is not contended on the part of the plaintiff that

it appears from the judgment roll alone that the judgment should be reversed. Counsel argued

at length, however, that, upon authority of Sweet v. Sweet, 49 Nev. 254, 243 P. 817, we can

consider the evidence in the case.

We can find no merit in the contention made. The “Transcript of the Testimony and

Proceedings” was stricken from the record on the former hearing, and, as no bill of

exceptions was ever settled, there is no evidence before us to consider.

For the reason given, the judgment is affirmed.

____________

��51 Nev. 145, 145 (1928) Klepper v. Klepper��

KLEPPER v. KLEPPER

No. 2804

November 8, 1928. 271 P. 336.

1. Appeal and Error—No Appeal Lies from Order Denying Motion to Quash Summons and

Service Thereof. Under Rev. Laws, sec. 5329, as amended by Stats. 1913, chap. 91, defendant could not appeal from

order denying motion to quash summons and service thereof on jurisdictional grounds.

2. Divorce—Defendant Could Appeal from Default Judgment In Divorce Suit, where Court

Had Denied Motion to Quash Summons and Service. Under Rev. Laws, sec 5329, as amended by Stats. 1913, chap. 91, defendant could appeal from

default judgment in divorce suit, where court had denied motion to quash summons and service thereof.

3. Appeal And Error—Supreme Court May Consider Correctness of Ruling on Motion to

Quash Summons and Service on Appeal from Judgment. On appeal from judgment, supreme court, under Rev. Laws, sec. 4833, may consider correctness of

ruling of lower court on motion to quash summons and service thereof.


Appeal and Error—3 C.J. sec. 305, p. 479, n. 84; 4 C. J. sec. 2582, p. 680, n. 53.

Divorce—19 C.J. sec. 464, p. 188, n. 57.


Suit for divorce by Bessie Lovell Klepper against Frank Klepper. From a decree for

plaintiff, defendant appeals. On motion to dismiss the appeal. Motion denied.

Painter & Withers, for Respondent:

The appellant had a right to appeal from the order denying his motion to quash summons,

had he elected so to do. This point has been settled by the Supreme Court of Nevada in the

cases of State v. Moore, 46 Nev. 65, 207 P. 75, and Tiedemann v. Tiedemann, 35 Nev. 259.

However, appellant's notice of appeal from judgment states that the appellant is appealing

from a “a judgment and the whole thereof,” and appellant does not appeal from the order

denying his motion.


Every direction of the court or judge made or entered in writing and not included in a

judgment, is denominated an order. An application for an order is a “motion.” Rev. Laws,

sec. 5362.

A judgment is a final determination of the rights of the parties in the action or proceeding.

Rev. Laws, sec. 5238.

The case of Nesbitt v. Chisholm, 16 Nev. 41, holds that the notice of appeal limits the

scope of appeal, hence the only question involved is whether or not appellant has a right to

appeal from the judgment entered by the court upon the trial of the case.

The general weight of authority does not support appellant's appeal from a default

judgment. 3 C.J. 604; 2 Enc. of Pleading and Practice; 6 Enc. of Pleading and Practice, 223;

Paul v. Armstrong, 1 Nev. 96; Martin v. District Court, 13 Nev. 90; Wiggins v. Henderson,

12 Nev. 510; State v. Breem, 41 Nev. 519. This general rule has been qualified only to the

extent of holding that an appeal will lie from a default judgment erroneously taken in Kidd v.

The Four-Twenty Mining Co., 3 Nev. 381.

The Supreme Court of Nevada has repeatedly expressed itself in accordance with the general

ruling adopted elsewhere, that the upper court will not set aside the decision of the lower

court upon a question where there are substantial facts to support the judgment. State v. C. &

C. Railroad, 29 Nev. 504; Burch v. Southern Pacific Company, 32 Nev. 75. In the case at bar

the lower court twice held the affidavit for publication of summons sufficient. The case of

Little v. Currie, 5 Nev. 90, is absolutely in point on this question.

W.M. Kearney and Sidney W. Robinson, for Appellants:

An examination of the authorities upon the subject will readily disclose the law to be

contrary to respondent's contention that no appeal will lie from a default judgment, at least in

states whose statutory provisions on appeal resemble or are identical to that in force in ��


our own jurisdiction, wherein no attempt is made to distinguish a default judgment from any

other final judgment. (Rev. Laws, 1912, section 5329). One of the best statements of the rule,

and the leading case, is that of Hallock v. Jaudin, 34 Cal. 167, at 172. In particular is the

statement in Rhode Island Mortgage and Trust Co. v. City of Spokane, 53 P. 1104, in point,

as is Oregon R. and Nav. Co. v. McCormick (Wn.), 89 P. 187.

OPINION


Plaintiff instituted her suit for a divorce. An affidavit of nonresidence of the defendant

having been made, a copy of the summons was served upon him personally in a sister state.

Before the time within which to plead had expired the defendant appeared specially and

moved to quash the summons and the service thereof, on jurisdictional grounds. The motion

to quash having been heard and denied, and no request having been made by the defendant

for time within which to plead, the court ordered that defendant's default be entered. The

court then immediately proceeded to take the testimony in behalf of the plaintiff, at the

conclusion of which judgment and decree were entered in her favor. In due time the

defendant took an appeal to this court. The matter is now before us on plaintiff's motion to

dimiss the appeal.

1. In support of the motion to dismiss two points are made. It is first contended that since

the appeal is from the judgment and not from the order denying the motion to quash, the

appeal must be dismissed for the reason that the order was an appealable order, and, no

appeal having been taken therefrom, error in denying the motion, if any, cannot be

considered.

In support of the contention that the order might have been appeal from, our attention is

directed to Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313, and to State v. Moore, 46

Nev. 65, 207 P. 75, 22 A. L. R. 1101.


Section 5329, Rev. Laws, as amended (Stats. 1913, p. 113), provides when an appeal may

be taken, and no appeal can be taken except when authorized by statute. Nowhere does our

statute provide that an appeal may be taken from an order denying a motion to quash a

summons, or the service thereof; hence it is clear that the defendant had no right of appeal

from the order in question.

The two cases are not in point. Those were cases in which the motion to quash was

sustained, and hence the order was appealable since it put a finality to the proceeding, as

pointed out in the respective opinions. No such result followed the order complained of in

this case.

2. We come now to the contention that the motion must be granted since there is no appeal

from a default judgment.

In support of the contention made, reliance is had upon the case of Paul et al. v.

Armstrong, 1 Nev. 82, Kidd v. Four-Twenty Mining Co., 3 Nev. 381, and Martin v. District

Court, 13 Nev. 90.

We do not think the opinion in either of the cases mentioned is authority for the contention

made. In the first case the opinion states:

“In this cause there was no answer, no issue, either of law or fact—of course there could

be no trial in the probate court. The statute says that, upon an appeal, the case shall be tried de

novo in the appellate court. That is, as I understand it, in the same manner, with the same

effect, and upon the issues tried in the” lower court.

It is thus seen that that opinion can be no authority in the instant case, where an issue of

law is made by the motion to quash, which was heard and determined.

But if the facts in that case were such as to make it controlling, its force and effect is

greatly weakened by the opinion in the second case mentioned, wherein, after pointing out the

reason why the first-named case is of little weight, the court, in considering the weight to be

given to certain New York cases relied upon, observed that in those cases no question of the

regularity ��


of the default was raised. The court then goes on to say:

“This is a very different case from that. Here the default was irregularly taken, and

judgment is entered without proper authority. In such case it has repeatedly been held in

California that an appeal is the proper remedy. * * *”

The court held the appeal proper and reversed the default judgment.

Nor is the case of Martin v. District Court in point. As appears from the opinion in that

case, “there was no issue of law or fact to be tried.”

3. This court may consider the correctness of a ruling of the lower court on the motion to

quash, on appeal from the judgment. Potter v. L.A. & S.L.R. Co., 42 Nev. 370, 177 P. 933;

Rev. Laws, sec. 4833.

For the reasons given, the motion is denied.

____________

��51 Nev. 150, 150 (1928) Marks v. Roberti��

MARKS v. ROBERTI

No. 2821

November 10, 1928. 271 P. 467.

1. Appeal and Error—It Is Policy of Courts to Ignore Technical Errors in Pleading, where No

Injury Results. It is the policy of courts, so far as possible, where no injury results, to ignore technical errors in

pleading; purpose of pleading being to apprise opposite party of nature of case against him.

2. Pleading—That Complaint Stated Cause of Action on Quantum Meruit and Quantum

Valebat, while Evidence Showed Property Was Left under Lease, Held Not to Justify

Nonsuit. That complaint stated cause of action on quantum meruit and on quantum valebat for reasonable value

of hay and grain furnished which defendant promised to pay, while proof showed that hay and grain were

left on ranch under lease reciting that they should be left thereon, and showed value of hay when

defendant took possession of ranch but not its value at expiration of lease, held not such a variance as

justified nonsuit, since defendant could not have been misled to his detriment.


Appeal and Error—4 C.J. sec 2901, p. 927, n. 42

Contracts—13 C.J. sec. 10, p. 224, n. 65; p. 245, n. 73

Pleading—31 Cyc. p. 703, n. 38; p. 713, n. 47


Action by Frank Marks against F. Roberti. Judgment for defendant, and plaintiff appeals.

Reversed.

J.M. Frame and F. Raffetto, for Appellant:

Plaintiff had the right to elect his remedy. An examination of the contract contained in the

lease shows that the contract is upon its face unenforceable for uncertainty and indefiniteness,

and therefore the plaintiff did elect the only remedy available to him to recover for the value

of the hay and wheat furnished to the defendant. He could not sue for specific performance of

such a contract, neither could he sue for breach thereof and for damages. R.C.L. sec. 348

(Contracts), vol. 6; Price v. Weisner (Kan.), 111 P. 439; 6 R.C.L., p. 59-62; Seibert v. Smith,

49 Nev. 120; Clarke on Contracts, p. 777, sec. 318; Harwood v.�$��!?�/��22!


Carter, 47 Nev. 334; Lapham v. Osborne, 20 Nev. 168; Burgees v. Helm, 24 Nev. 242;

Livingston v. Wagner, 23 Nev. 57; 15 Cyc. p. 253, and cases cited; 6 R.C.L. Election of

Remedies.

Chapter 17 of the civil practice act, sec 5080, provides that where the adverse party is not

mislead by a variance between the allegations in a pleading and the proof offered at the trial,

the variance is to be deemed immaterial, and, where it appears that the defendant has been

mislead, the court may order an amendment on such terms as may be just. Having failed to

attack the complaint on the seventh statutory ground of demurrer in order that the complaint

might have been made more definite and certain before interposing his answer, the defendant

cannot claim that he was mislead. Burgess v. Helm, 24 Nev. 242; Harwood v. Carter, 47 Nev.

334.

Frank B. Scott, for Respondent:

The plaintiff adopted the wrong remedy. We say that plaintiff should have sued on his

contract, and that the damages would be the reasonable value of the goods on the ranch in

1927, and not in 1924. In 36 C.J. 103, that under an agreement to leave certain produce on the

premises, it is held that the landlord's remedy is not by action of trover, but by action for

breach of agreement. The rule is also laid down in 4 Encyclopedia of Pleading and Practice,

at page 925.

Section 5083, Rev. Laws, expressly states: “That where the allegation to which the proof is

directed * * * is unproved in its scope and meaning, it is not a case of variance but failure of

proof.” In the case at bar the plaintiff falsely claims in his complaint that he had sold us hay

in 1924 for which we agreed to pay him $25 a ton, then he comes into court and proves an

entirely different contract.

Not one of the cases cited by counsel for appellant is in point. Most of them refer to an

executory contract, where there was something yet to be done by the plaintiff which he was

prevented from doing by the defendant, or where the defendant had violated the contract ��


so as to absolve the plaintiff from performing the rest of his. But it is well-settled law that

where there is an express contract you must sue on the express contract.

An amendment which changes the cause of action is not allowable. Sutherland C.P.&P.,

sec. 788a (1917); Alt Peter v. Postal, 2 Nev. 15.

Plaintiff must recover upon the cause of action set out in the complaint, and not upon some

other which may be developed by the proofs. Mondran v. Goux, 51 Cal. 151; Lindley v. Fay,

119 Cal 239, 51 P. 333.

A party cannot be presumed to be apprised of any facts by the pleading of his adversary

except those stated therein. Ester v. Simpson, 13 Nev. 472.

The pleading and the proof must correspond. 4 Cyc. 356; Lafferty v. Day, 3 Ark. 258;

Wilkenson v. Mosdy, 18 Ala. 288; Menifee v. Higgens, 57 Ill. 50; Foerster v. Foerster, 38

N.E. 426; Colburn v. Pomeroy, 44 N. H. 19; Little Klamath v. Ream, 39 P. 998; Davidson v.

Ford, 23 W. Va. 617.

OPINION


This action was brought to recover judgment in the sum of $712. Omitting the formal

portions, the complaint alleges:

“That on ___ day of February, 1924, the plaintiff furnished to the defendant twenty-six ton

of hay of the reasonable value of $25 a ton and of the total value of $650 and nineteen (19)

sacks of wheat, weighting about one (1) ton, of the reasonable value of $62 at the total value

of the hay and grain so furnished by the plaintiff to defendant as aforesaid the sum of seven

hundred and twelve dollars (712) which defendant promises and agreed to pay to plaintiff, the

sum being the reasonable value of the hay and grain aforesaid.”

The complaint also alleges that the defendant had failed and refused to pay for said hay

and grain, or any part thereof, and that defendant is indebted to the plaintiff in the sum of

$712, which sum plaintiff had often demanded of the defendant.


The answer was, in substance, a general denial.

Upon the trial of the case the plaintiff was called as a witness in his own behalf, and after

some preliminary questions his attorney said:

“Just go on and tell the court what occurred with reference to this hay, if anything.”

The witness stated:

“I leased it and I left the hay on the place. It was there ever since I leased it in 1916.”

There was an objection on the ground that there was no allegation as to a lease in the

complaint—no suit on a lease—and hence the evidence was outside of the issues. After a

statement had been made by counsel for plaintiff, and some argument, the court admitted in

evidence, over objection and subject to a motion to strike, the lease.

The lease contains the following condition:

“And it is further understood and agreed that the party of the first part shall and will leave

upon the premises above described for the use and benefit of the party of the second part,

twenty (20) sacks of wheat (18 seed and 2 chicken) and thirty (30) tons of hay.

“And it is further agreed that the party of the second part, at the expiration of this lease,

will leave upon the premises leased herein twenty (20) sacks of wheat (18 seed and 2

chicken) and thirty (30) tons of hay, for the use and benefit of the party of the first part

herein.”

The plaintiff gave evidence of the value of the hay and grain as of the time defendant took

possession of the ranch in March, 1924, but none as to its value at the expiration of the lease

three years later when the place was turned back to the plaintiff. When the plaintiff rested his

case, counsel for the defendant moved for a nonsuit, on the ground that plaintiff had failed to

prove his case as alleged, which motion was sustained, and judgment was entered for the

defendant. Plaintiff has appealed.

1. We think the judgment should be reversed. It is the policy of the courts, so far as

possible, where no injury results to ignore technicalities in pleading. Such �� 5��9�� !�/�� !


has long been the policy of this court, as was manifested in Burgess v. Helm, 24 Nev. 242, 51

P. 1025, which has been consistantly adhered to.

2. In the instant case plaintiff sued both on quantum meruit and on quantum valebat.

Plaintiff might have alleged a breach of contract and sued for damages, but the measure of his

damages would be the value of the hay and grain which defendant should have returned at the

time he surrendered the ranch to the plaintiff under the terms of the lease. The measure of his

recovery on the quantum valebat was the same. The purpose of all pleading is to apprise the

opposite party of the nature of the case against him. In view of the situation we do not think

there was such a variance as justified the nonsuit, since the defendant could not have been

misled to his detriment. Though there was no proof of what the value of the hay and grain

was when the ranch was returned to the plaintiff, it as least had a nominal value.

As said in 13 C.J. 244, 245, dealing with the subject of implied contracts:

“They rest solely on a legal fiction, and are not contract obligations at all in the true sense,

for there is no agreement; but they are clothed with the semblance of contract for the purpose

of the remedy, and the obligation arises not from consent, as in the case of true contracts, but

from the law or natural equity. * * * Among the instances of quasi or constructive contracts

may be mentioned cases in which one person has received money which another person ought

to have received, * * *; cases in which a person fails to deliver specific property and becomes

liable for the money value thereof. * * *”

The instant case falls squarely within the last-mentioned class.

For reasons given, the judgment is reversed.


January 17, 1929.

Per Curuam:

Rehearing denied.

____________

��51 Nev. 155, 155 (1928) Scheinwald v. Bartlett, Judge��

SCHEINWALD v. BARTLETT, Judge

No. 2834

November 13, 1928. 271 P. 468.

1. Pleading—Filing Answer after Statutory Time Is Largely Within Court's Discretion,

Especially Before Default Is Entered. The matter of allowing the filing of an answer after the time fixed by statute is largely within the

discretion of the judge of the lower court, especially before default has been entered.

2. Pleading—Court May Deal with Verified Answer on File Before Entry of Default,

Whether or Not Unverified Answer, Filed After Statutory Time, Raised Any Issue. Where defendant's default has not been entered, and there is a verified answer on file, court has

discretion to deal with it as justice requires, whether or not unverified answer, permitted to be filed after

statutory time, raised any issue on day set for hearing.



Original proceeding in mandamus by Rueben Scheinwald against George A. Bartlett, as

Judge of the Second Judicial District Court in and for the County of Washoe, Department No.

2. Writ denied.

Clyde D. Souter and John S. Field, for Petitioner:

Section 5060 of the civil practice act, vol. 2, Rev. Laws of Nevada, 1912, provides:

“Every pleading shall be subscribed by the party or his attorney, and when the complaint is

verified by affidavit the answer and reply shall be verified also, except as provided in the next

section.” The next section does not touch upon the situation in the instant case.

From sec. 5084 of the civil practice act, in vol. 2, Rev. Laws of Nevada, 1912, it is at once

apparent that the legislature has made provision whereby the court may, upon order, enlarge

the time for filing an answer where the time has not yet expired. It is equally apparent that

where the time has expired the legislative provision definitely fixes the method according to

which the defendant may secure permission to file an answer after the time limited by law has

expired.


The defendant in the instant case not only absolutely failed to follow the statutory

requirement, but from all that appeared at the time would have been entirely unable to present

any affidavit showing any good cause for the court to grant permission to file the answer out

of time.

It is also clear, from the first statutory citation hereinabove, that the answer, being

unverified, contrary to the mandatory requirement of the statute, is therefore no answer at all.

In view of the above circumstances, it is submitted that the plaintiff is entitled to have the

default of the defendant forthwith entered and to have an immediate trial and disposition of

his cause of action. He has no plain, speedy and adequate remedy at law. In addition, the

failure of the respondent to enter the default of the defendant on plaintiff's motion and

proceed with the trial of the case is a refusal on the part of the respondent to perform an act

which the law especially enjoins as a duty upon the respondent, resulting from his office as

district judge. California Pine Box and Lumber Co. v. Mogan, Judge, 108 P. (Cal. App. 1919)

882; Newell v. Superior Court of Los Angeles County, 149 P. 998; State v. Taylor, 138 N.W.

(S.D.) 372; Dey v. McAlister, 169 P. (Ariz. 1918) 458; Colthurst v. Fitzgerald, 207 P. 471

(Cal. D.C.A. 1922); Crocker v. Conrey, 140 Cal. 213, 73 P. 1006; De Forrest v. Coffey, 154

Cal. 444, 98 P. 27; Sakurai v. Superior Court, 65 Cal. App. 280, 223 P. 575; People v.

Graham (Colo. 1891), 26 P. 936. The rule in Nevada is perhaps best stated in the case of The

State of Nevada, ex rel. N.C. Keane, Relator, v. M.A. Murphy, District Judge, etc.,

Respondent, 19 Nev. 89.

E. W. Cheney, for Respondent:

At the time the case was called for trial an answer had been filed and no formal default had

been entered therein.

Plaintiff did have a plain, speedy and adequate remedy in the ordinary course of law, in

that said plaintiff could ��


have moved to have the verified answer stricken, and no regular motion to strike the said

answer of the defendant from the files had been made by plaintiff.

OPINION


This is an original proceeding in mandamus. Petitioner is plaintiff in a divorce action in

the above-entitled court, and seeks the writ to compel the court to enter the default of

defendant and proceed with the trial of the case. The salient facts are as follows: The time for

defendant to answer or otherwise plead to petitioner's verified complaint for divorce had been

extended by stipulation to and including June 4, 1928. On June 5, 1928, defendant was in

default, and the case set for hearing at 9 a.m. of that day. At that time petitioner moved the

court to enter the default of the defendant and proceed with the trial of the case. Defendant's

attorney was present and resisted the motion. He also asked permission to file an unverified

answer. The court denied petitioner's motion, and permitted defendant to file an unverified

answer. Since the filing of the same, a verified answer has been filed by defendant, and a

motion made for allowances.

1. The matter of allowing the filing of an answer after the time fixed by statute is largely

within the discretion of the judge of the lower court. This is especially so before default has

been entered. Conley v. Chedic, 7 Nev. 336; Bowers v. Dickerson, 18 Cal. 420.

In the former case the court said:

“If the defendant was in default, it was a matter much in the discretion of the judge below

to allow the filing of an answer after the time prescribed by statute, especially as no default

had been entered, and there was no showing that the failure to plead had occasioned any delay

or injury to the opposite party.”

2. It is contended that the unverified answer raised.


no issue, and the court was therefore without authority to permit it to be filed. Be that as it

may, it could have no bearing on the matter. The court may have erred in this respect, but the

case, nevertheless, falls within the rule stated. The default of respondent has not been entered.

There is a verified answer on file. The court, in our opinion, has discretion to deal with it as

the justice of the case may require.

The writ should therefore be denied.

It is so ordered.

____________

��51 Nev. 158, 158 (1928) Nevada First National Bank v. Lamb��

NEVADA FIRST NATIONAL BANK OF

TONOPAH v. LAMB

No. 2816

November 15, 1928. 271 P. 693.

1. Appeal and Error—Record on Appeal, Containing Copy of Complaint, Summons, and

Other Proceedings, Without Bill of Exceptions, Is Not Proper Record. Rev. Laws, sec. 5356, relative to appeal from final judgment having been repealed, record on appeal,

containing copy of complaint, summons affidavit for publication, order of publication, and other

proceedings, including notice of motion to set side judgment and order denying the same, without a bill

of exceptions, is not a proper record which can be considered on appeal from order denying motion to set

aside judgment.


Appeal and Error—4 C.J. sec. 1786, p. 180, n. 34

Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.

Suit by the Nevada First National Bank of Tonopah against W.C. Lamb. From an order

denying a motion to set aside a judgment theretofore rendered, defendant appeals. On motion

to strike the so-called record on appeal. Motion sustained.

Cooke, Stoddard & Hatton, for Movants:

The document offered by appellant as a “Record on Appeal” admittedly has never been

settled or allowed �� 4�� 2��


by the judge or court or by stipulation of the parties or their counsel, as provided by Stats,

1923, p. 164-165, sec. 1; see, also, Stats, 1919, p. 440. Therefore we submit our motion to

strike is well-founded and should be allowed; in support of which we cite: Shirk v. Palmer,

48 Nev. 451, 236 P. 678; Caldwell v. Wedekind Mines Co., 50 Nev. 366, 261 P. 652;

Capurro v. Christensen, 46 Nev. 249.

James T. Boyd and John F. Kunz, for Appellant:

Under section 12 of the Statutes of 1915, p. 166, if the matter complained of was embodied in

affidavits and counter-affidavits, the affidavits and counter-affidavits shall be annexed to the

order in place of the bill of exceptions mentioned in the preceding section. In the present case

the order was made upon the judgment rolls and not upon affidavits, and in the opinion of the

writer of this brief the judgment rolls should be annexed to the order. Section 5356, Rev.

Laws of Nev. See, also, Thompson v. Lake, 19 Nev. 103.

OPINION

Per Curiam:

This case is now before the court on respondent's motion to strike the so-called record on

appeal. The motion is based upon the ground that there is no bill of exceptions in the

so-called record embracing the matters presented to the court below, and its ruling; hence

there is nothing that this court can consider.

The facts, so far as material, are these: In 1919 the plaintiff brought suit against the

defendant upon two certain promissory notes to recover the sum of $2,993.63, interest,

attorney's fees, and costs, in the district court of Nye County. An order of service by

publication of summons was made upon affidavit duly filed. Thereafter personal service was

had upon the defendant in New York City, and certain money on deposit was attached. The

defendant having failed to appear within �� -


the time designated, judgment was rendered against him in the amount attached, wherein the

court ordered:

“And it is further ordered and adjudged that this judgment be entered without prejudice,

and expressly saving and reserving any and all rights of plaintiff to further proceed against

said defendant for the enforcement of payment of any balance claimed to be due by plaintiff

from said defendant.”

Thereafter, and on November 21, 1921, a stipulation between the parties, signed by the

defendant personally, was filed in the case, wherein it was agreed that certain money had been

attached in said action and stipulating that the money so attached be applied to the payment of

certain claims against the money so attached by various persons. It was further stipulated that

plaintiff should defer further proceedings in the action for the period of three months.

On August 3, 1922, the court, after reciting the stipulation above mentioned as an

appearance by the defendant and other matters, entered judgment in favor of the plaintiff and

against the defendant for the balance alleged to be due the plaintiff.

On December 6, 1927, the defendant appeared by counsel, after due notice to the plaintiff,

and moved to set aside said last-named judgment, on the ground that the court was without

jurisdiction to make it. Thereafter, and on December 19, 1927, the court entered an order

denying the motion. It is from this order that the appeal is taken.

The so-called “Record on Appeal” contains a copy of the complaint, summons, affidavit

for publication of summons, order of publication, and other proceedings, including the notice

of motion to set aside the judgment of August 3, 1922, and the order denying the same,

stipulated to by counsel as being “true and correct copies of the said papers on file now in the

office of the clerk” of the court in which the proceedings were had. It is further agreed that

the stipulation is without prejudice to any objection plaintiff may make as to the sufficiency

of said record to entitle this court to consider ��

��


it, and is made in lieu of having the clerk of the court certify that the documents therein

contained are true and correct copies of the originals on file in his office.

It is respondent's contention that the only way the order complained of, and which it is

sought to reverse, can be brought to the attention of this court, is by way of a bill of

exceptions, since it is not part of a judgment roll or of the record in the proceedings, and,

since there is no bill of exceptions, the appeal must be dismissed. On the other hand,

appellant contends that, pursuant to section 5356, Rev. Laws, he can have the order

complained of considered upon the so-called record before us. The section mentioned reads:

“On an appeal from a final judgment, the appellant shall furnish the court with a transcript

of the notice of appeal, and the statement, if there be one, certified by the respective attorneys

of the parties to the appeal, or by the clerk of the court. On an appeal from an order, the

appellant shall furnish the court with a copy of the notice of appeal, the order appealed from,

and a copy of the papers used on the hearing in the court below, and a statement if there be

one, such copies to be certified in like manner to be correct. If any written opinion be placed

on file in rendering judgment or making the order in the court below, a copy shall be

furnished, certified in like manner. If the appellant fails to furnish the requisite papers, the

appeal may be dismissed.”

It is clear that no effort was made to obtain a bill of exceptions in this case. Counsel for

appellant freely so concedes. In this situation we need only determine if the provision which

we have quoted from, section 5356, Revised Laws, is in force. If it is, there is before us a

proper record, and, if it is not, there is no record which we can consider, and hence the motion

to strike must be sustained.

In Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079, we held that the section

mentioned was repealed, and again in Bowers v. Charleston Hill Nat. Mines Co., 50 Nev. 99,

251 P. 721, we again held that documents ��


such as here relied upon could not be considered as a part of a record.

In the circumstances, nothing is left to be done but to sustain the motion.

It is so ordered.

____________


NEVADA FIRST NATIONAL BANK OF

TONOPAH v. LAMB

No. 2825

November 15, 1928. 271 P. 691.

1. Judgment—There Can Generally Be but One Final Judgment. Generally there can be but one final judgment in a case.

2. Judgment—Judgment Reserving Right in Plaintiff to Proceed for Enforcement of Payment

of Balance Held Not “Final Judgment.” Judgment for amount attached, and expressly reserving any and all rights of plaintiff to further

proceed against defendant for the enforcement of payment of any balance, held merely interlocutory and

not a “final judgment” within Rev. Laws, sec. 5236 (Stats. 1913, chap. 87), and section 5238, sufficient

to preclude a further judgment.

3. Attachment—Attachment Proceeding is a Mere Ancillary Remedy. “Attachment” proceeding is a mere ancillary remedy, having no bearing whatever on the merits of a

suit.

4. Appearance—Stipulation for Application of Moneys Attached and Deferring Proceedings

Held Appearance, Giving Court Jurisdiction to Enter Subsequent Judgment. Appearance of nonresident defendant by stipulation, agreeing to application of certain claims against

moneys attached and to defer further proceedings for a period of three months, held sufficient to give

court jurisdiction to enter subsequent judgment for balance alleged to be due.


Attachment—C.J. sec. 4, p. 31, n. 14.

Judgments—33 C.J. sec. 18, p. 1061, n. 30; sec. 123, p. 1193, n. 37.

Original proceeding in certiorari by W. C. Lamb against the Nevada First National Bank of

Tonopah. Proceedings dismissed.

James T. Boyd, for Appellant:

It is the contention of the petitioner herein that there cannot be two final judgments in one

action; that when ��


the first judgment was rendered and the attached property sold or its value recovered and

applied on the first judgment, the entire judgment was satisfied and the action itself was dead.

Under subdivision 1 of section 5236, Rev. Laws, upon the application of the plaintiff the

clerk was required to enter the default of Lamb, and to immediately enter judgment for the

amount specified in the complaint. The court had nothing whatever to do with either the

default or the entry of the judgment, the law having imposed that duty upon the clerk of the

court, and the law contemplating that when such judgment is entered by the clerk it shall be

the final judgment.

It is evidently under subdivision 3 of the same section 5236, Rev. Laws, that the court

proceeded in rendering the judgment of October, 1919, and the sole authority and the sole

power the court had under that provision was to render a judgment for the amount that the

plaintiff was entitled to recover. The court having done so, and the judgment so rendered

never having been appealed from, reversed or modified, it is the final judgment in the action.

A judgment is the final determination of the rights of the parties in the action or

proceeding. Section 5238, Rev. Laws. There cannot be two final judgments in this state.

Lowe v. Crown Point Mfg. Co., 2, Nev. 75; 22 Cyc. 772; Black on Judgments, vol. 1, secs. 21

and 107; Perkins v. Sierra S.M. Co., 10 Nev. 405.

Ever since the celebrated case of Pennoyer v. Neff, 95 U.S. p. 565, it has been almost

universally held that no judgment in personam can be rendered in an action where the service

of the complaint and summons was either by publication or by personal service upon the

defendant outside of the state; that to give the court jurisdiction to render a judgment at all, it

would be necessary for the defendant to have property within the state and to have that

property brought under the control of the court by an attachment proceeding or some

equivalent act. Such proceeding then becomes � ��


an action in rem and is a proceeding against the property attached. No judgment in personam

can be rendered against the defendant, nor can any rights be given the plaintiff in such action

against the defendant personally. See, also, Keenan v. Keenan, 40 Nev. 355; 33 C. J. 1089;

First Nat. Bank v. Rantman, 77 P. 1043; Black on Judgments, secs. 229, 230, 231.

The attempt to claim that Lamb appeared in the action, or gave such an appearance as to give

the court jurisdiction to render the judgment of August, 1922, cannot be sustained. Lamb

could not appear in that action at that time because there was no action pending in which he

could have appeared. The action died with the return of the sheriff showing the execution

issued under the judgment of October, 1919, had been fully paid. State v. Justice Court, 44

Nev. 140.


Conceding, for argument only, that rendition of the in rem judgment of October 17, 1919,

for only a part of the bank's demand was in effect a splitting of a cause of action, and

conceding similarly that the reservation of right of the bank to further proceed to collect the

unpaid balance was of itself ineffective, still the objection of splitting demand is not

jurisdictional, but merely affords a defendant the right to object, which objection he can

waive, “and such waiver will be implied from a failure to make any objection on this ground

in the trial court.” 1 C.J. 1109, sec. 280, and cases cited. See, also, 34 C.J. 829 and n. 39;

National Union etc. Co. v. Denver etc. Co. (Utah), 137 P. 653, 656, 657; Grain v. Aldrich, 38

Cal. 514, 99 A.D. 423.

Admittedly there remained unpaid $1,764.34 on the claim set up in the complaint, after the

$1,369.77 was paid and credited. Said complaint as to that unpaid balance, as the respondent

views it, is the full equivalent of a new complaint filed for the same amount. Also, the

collection and crediting of the $1,369.77 by the in rem proceedings may be fairly accepted as

neither more nor less than a voluntary payment and credit, leaving ��


action to proceed for unpaid balance. The in rem judgment of October 16, 1919, did not

purport to be and was not a final judgment. Rev. Laws Nevada, sec. 5238; Perkins v. Sierra

Co., 10 Nev. 411. It could not have been appealed from as a final judgment. It expressly

reserved unto plaintiff the right to further proceed for recovery of some $1,734.34 unpaid

balance of claim originally sued for, hence could not be a final judgment. 10 Nev. 411. It was

a mere interlocutory judgment. 33 C.J. 106. Being only in rem, it did not and could not

exhaust the power of the court to later proceed in personam in the same action. 2 Black,

Judgment, p. 1025, sec. 674. The complaint being regularly on file, an alias summons could

be issued thereon (Rev. Laws of Nevada, sec. 5017, as amended Stats. 1921, p. 88) any time

within a year, or defendant Lamb could, with or without any summons, enter his appearance

(Rev. Laws of Nevada, sec. 5034) just as he did do by the stipulation made and filed by him

prior to the August 3, 1922, judgment now under attack, and by which stipulation the

respondent contends he waived any objection to the court proceeding, and submitted himself

to the jurisdiction of the court for the purpose of proceeding with respect to such unpaid

balance, and that by such stipulation Lamb expressly recognized and admitted that the action

was then pending and undetermined with respect to said unpaid balance. Such voluntary

appearance undoubtedly waived issue and service of summons. Rev. Laws of Nevada. sec.

5034.

Lamb had a plain, speedy and adequate remedy by appeal, also by motion. Admittedly,

respondent court had the jurisdiction and power to hear and determine the bank's motion to be

substituted for Lamb as party plaintiff in the Lamb v. Kirchen case. Rev. Laws of Nevada,

sec. 5684; Chapman v. Justice Court, 29 Nev. 154-158, 86 P. 552-554; Nevada Central etc.

Co. v. Dist. Court, 21 Nev. 409, 32 P. 673; 11 C. J. 117, and cases cited; Rev. Laws of

Nevada, sec. 5325.

Lamb had a plain, speedy and adequate remedy by motion to vacate the judgment of

August 3, 1922, within ��


six months after rendition thereof. Rule 45 of the Rules of Practice of the District Court. The

revised Laws of Nevada, sec. 5684, providing that the writ may issue where there is no

appeal, nor any plain, speedy or adequate remedy, does not mean that a party who has the

right of appeal, or who has a plain, speedy and adequate remedy by motion, can deliberately

allow the time for invoking those remedies to elapse and then come to this court by certiorari

and say that he has no plain, speedy or adequate remedy by motion or by appeal.

OPINION

Per Curiam:

This is an original proceeding in certiorari. We do not deem it necessary to detail other

facts than those necessary to determine the jurisdictional question raised.

The facts, so far as material, are these: In 1919, the plaintiff brought suit against the

defendant upon two certain promissory notes to recover the sum of $2,993.63, interest,

attorney's fees, and costs, in the district court of Nye County. An order of service by

publication of summons was made upon affidavit duly filed. Thereafter personal service was

had upon the defendant in New York City, and certain money on deposit was attached. The

defendant having failed to appear within the time designated, judgment was rendered against

him in the amount attached, wherein the court ordered:

“And it is further ordered and adjudged that this judgment be entered without prejudice,

and expressly saving and reserving any and all rights of plaintiff to further proceed against

said defendant for the enforcement of payment of any balance claimed to be due by plaintiff

from said defendant.”

Thereafter, and on November 21, 1921, a stipulation between the parties signed by the

defendant personally, was filed in the case, wherein it was agreed that certain money had been

attached in said action, and stipulating that the money so attached be applied to the payment

of ��


certain claims against the money so attached by various persons. It was further stipulated that

plaintiff should defer further proceedings in the action for the period of three months.

On August 3, 1922, the court, after reciting the stipulation above mentioned as an

appearance by the defendant, and other matters, entered judgment in favor of the plaintiff and

against the defendant for the balance alleged to be due the plaintiff.

On December 6, 1927, the defendant appeared by counsel, after due notice to the plaintiff,

and moved to set aside said last-named judgment, on the ground that the court was without

jurisdiction to make it. Thereafter, and on December 19, 1927, the court entered an order

denying the motion.

It is the contention of counsel for petitioner that the first judgment rendered in the case

was a final judgment, and, being such, the court had no jurisdiction to render a further

judgment.

In support of the contention made, our attention is called to section 5236, Rev. Laws,

(Stats. 1913, p. 110), and section 5238, Rev. Laws, pertaining to final judgment.

1. It is a well-known general rule that there can be but one final judgment in a case; hence

it is necessary that we determine if the judgment of 1919 was a final judgment. We do not

think it was. As we have pointed out, the action was instituted to recover judgment in the sum

of $2,993.63, costs, etc. The issue tendered by the complaint was whether or not the

defendant was indebted to the plaintiff as alleged in the complaint and the plaintiff was

entitled to have that allegation determined if he could acquire jurisdiction over the defendant

by personal service upon him within the state or by his appearance in the case.

It is clear that the main purpose of the action was to recover a personal judgment for the

full amount demanded in the prayer of the complaint and in the summons.

This court, in Perkins v. Sierra Nev. S.M. Co., 10 /��!�� -

G%��


Nev. 411, very clearly set forth what constitutes a final judgment, wherein it says:

“A judgment or decree is final that disposes of the issues presented in the case, determines

the cost, and leaves nothing for the future consideration of the court. When no further action

of the court is required in order to determine the rights of the parties in the action, it is final;

when the cause is retained for further action it is interlocutory”—citing cases.

2. The instant case comes squarely within that statement. The so-called judgment did not

purport to dispose of the issue tendered by the complaint as to the full amount alleged to be

due, and in the so-called judgment the court retained the cause for further consideration;

hence the judgment rendered is merely interlocutory.

3. The attachment proceeding was a mere ancillary remedy. Levy v. Elliott, 14 Nev. 435.

In Atkins v. Swope, 38 Ark. 528-536, it is said:

“An attachment has no bearing whatever upon the merits of a suit. It is only ancillary to

secure the fruits of any judgment to be obtained.”

“Attachment proceedings are incidental and provisional” and “form no part of the

pleadings.” Jordan v. Frank, 1 N.D. 206, 46 N.W. 171.

In Allender v. Fritts, 24 Cal. 447, it is said:

“The attachment is merely a proceeding ancillary to the action, by which a party is enabled

to acquire a lien for the security of his demand. * * *”

In Miller v. Dixon, 2 Kan. App. 445, 42 P. 1014, it is held:

“The attachment proceeding being ancillary to main action, any order made with reference

to the attached property does not affect the progress of the case upon merits.”

See, also, 6 C.J. 31.

Pursuant to statute, alias summons may be issued toties quoties, until due service shall be

made. Had the defendant come into the state after the attachment proceedings had been had,

if the original summons were ��

�� &��


still in the hands of the officer, he might have made service thereof, and, if it were not, alias

summons might have been issued and served, and jurisdiction would have been thereby

acquired over the defendant such as would give the court jurisdiction to enter a personal

judgment against him. This being done, the only question for the court to determine is

whether the stipulation signed by the defendant was such as to constitute an appearance in the

case by the defendant.

The stipulation in question, after reciting the attachment of certain money “and that said

action is still pending and undetermined,” provides how the money so attached shall be

applied, and concludes with the following sentence:

“In consideration of which the plaintiff herein agrees to defer further proceedings in this

action against the said defendant, W.C. Lamb, for the period of three months from date.”

4. There can be but one conclusion as to the intention of the defendant in the case. He

stipulates the present pendency of the action, the disposition of the money, and in

consideration of this he is given three months' stay in the action. So far as appears, he was at

the time within the jurisdiction of the court. If the court did not have nor could not acquire

jurisdiction over him, no advantage could accrue in obtaining the three months' stay. It was a

provision evidently sought by him and granted as a favor.

In the circumstances of the case, we think it clear that his appearance by stipulation served

to give the court jurisdiction to enter the judgment thereafter entered; hence it must follow

that these proceedings must be dismissed, and it is so ordered.


April 2, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 170, 170 (1928) Wainwright v. Bartlett, Judge��

WAINWRIGHT v. BARTLETT, Judge

No. 2809

November 17, 1928. 271 P. 689.

1. Wills—Will Contestant Is Not Entitled to Jury Trial Regarding Validity, where Right Is

Not Conferred by Statute. Party to will contest is not entitled to have issues raised by validity of will tried by jury, where right is

not conferred by statute.

2. Wills—Statute Regarding Trial of Issues in Will Contest as in Common-Law Action Must

Be Harmonized, if Possible, with Other Provisions Bearing on Matter. Rev. Laws, sec. 6109, providing for trial of issues of fact in will contest as in common-law actions

must be harmonized, if possible, with other provisions of act bearing on the matter.

3. Statutes—General Provision Relating to Trial of Issues in Will Contest as in Common-Law

Actions Must Be Controlled by Specific Provisions of Act Touchng Same Matter. Rev. Laws, sec. 6109, providing for trial of issues of fact in will contest as in common-law actions,

being general in nature, must be controlled by specific provisions; probate act, secs. 29, 45, 51, 63, 141,

142, 219, 231, 232, 243 (Rev. Laws, secs. 5885, 5901, 5907, 5919, 5998, 5999, 6076, 6088, 6089,

6100), providing for trial of issue of fact by court in certain instances.

4. Wills—Statute Providing for Trial of Issue of Fact in Will Contest as They Are Tried in

Other Cases in District Court Does Not Give Jury Trial as Matter of Right. Rev. Laws, sec. 5874, dealing with will contests and providing that any and all issues of fact shall be

tried as issues of fact are tried in other cases in district court, does not entitle contestant to jury trial as

matter of right, since all issues of fact are not so triable.

5. Wills—Will Contestant Held Not Entitled to Jury Trial as Matter of Right Under Statutes. Under Rev. Laws, sec. 5876, providing that if court shall be satisfied upon proof taken when heard by

court, or by verdict of jury in case jury trial is had, that will was duly executed, etc., court shall admit will

to probate, and sections 5874, 6109, 6138, relating to will cases, will contestant held not entitled as

matter of right to trial by jury, since sections 5874, 6109, and 6138 must be considered in connection

with section 5876 under which advisory jury is meant.


Juries—35 C.J. sec. 18, p. 151, n. 45; sec. 69, p. 181, n. 13.

Statutes—36 Cyc. p. 1129, n. 59; p. 1151, n. 57.

Wills—40 Cyc. p. 1320, n. 57.


Original proceeding in mandamus by Jacob W. Wainwright against Hon. George A.

Bartlett, as Judge of the Second Judicial District Court of the State of Nevada in and for the

County of Washoe, Department No. 2 thereof, to compel respondent to reset a will contest

before a second jury. Petition dismissed.

E. W. Cheney, Talmage L. Smith, and Sardis Summerfield, for Petitioner:

The position of your petitioner in this case is that this is not a proceeding in equity, and

that your petitioner has a right at law to have the issues in this case settled and determined by

a jury. Lucich v. Medin, 3 Nev. 93, 93 Am. Dec. 376. Since the jury failed to agree, the law

makes it mandatory on the lower court to reset the case upon application made by your

petitioner for him to do so.

“All issues of fact in matters of an estate shall be disposed of in the same manner as is by

law provided upon the trial of issues of fact in a common-law action. * * *” Sec. 6109, Civil

Practice Act.

“On a judgment upon an issue of law, if the taking of an account be necessary to enable

the court to complete the judgment, a reference may be ordered. Chancery cases may be tried

by the court with or without the finding of a jury upon issues formed by the court.” Sec. 5229,

Civil Practice Act.

Considering these two sections together, is it possible by any stretch of the imagination to

believe that the legislature of this state intended that probate matters were to be considered as

matters coming within the peculiar jurisdiction of a court in chancery and not within the

jurisdiction of a common-law court?

The attention of the court is called to sec. 5874, where it is provided that in a will contest

any and all issues of fact shall be tried as issues of fact are tried in other cases in the district

court.

A constitutional provision guaranteeing a right to a trial by jury guarantees the right to trial

as it existed ��


at common law. Ferrell v. City of Ontario, 178 P. 740; State v. McClear, 11 Nev. 39, 44, 52.

The legal remedy for setting aside a will for undue influence in procuring it being

complete under the code, the chancery has no jurisdiction of a proceeding for that purpose.

Gray v. Parkes, 94 Ark. 39, 125 S.W. 1023.

Your petitioner contends that taking sections 327, 4846, 4945, 5199, 5229, 5420, 5874, 5876

and 6109 of the Revised Laws of Nevada, this court will be justified in finding that the

distinction of probate courts from both courts of chancery and common-law courts has been

recognized and maintained by the Nevada courts, as expressed and set forth in the case of

Lucich v. Medin, 3 Nev. 93.

Thatcher & Woodburn, and John D. Hoyt, for Respondent:

A jury trial in a will contest is not a matter of constitutional right in the absence of a

statutory provision to that effect. Bancroft's Probate Practice, vol. 1, sec. 198, and cases cited.

In accordance with this rule it has been uniformly held that, where a jury disagrees, the judge

may make findings and enter judgment without resubmitting the case to a new jury. Shaw v.

Shaw, 28 S.D. 221, Ann. Cas. 1914b, 554, 133 N.W. 292; In Re Price's Estate, 194 N.Y.S.

842.

Do the statutes of Nevada make a trial by jury a matter of right in a will contest? It seems

hardly probable that the legislature intended by the words “common-law action,” in sec. 6109

of Rev. Laws, to mean an action at law as distinguished from a suit in equity, because

common-law actions have been abolished under our procedure, and the statute, sec. 4943,

Rev. Laws, provides that there shall be in this state but one form of civil action for the

enforcement or protection of private rights, and the redress or prevention of private wrongs,

which action is to be maintained in conformity with the provisions of the civil practice act.

Moreover, the words “common law,” as commonly used, refer to the entire system of

jurisprudence which the several states ��&��)��5�� &�� =��


acquired from Great Britain, and this includes actions at law, suits in equity, and matters

cognizable before the ecclesiastical courts. An action maintained under the civil practice act

does not mean a jury trial as a matter of right, excepting only strict actions at law. Sec. 4945,

Rev. Laws.

But if we take sec. 6109, Rev. Laws, to mean that a jury trial is a matter of right whenever

any issue arises in an estate matter, then this general provision, under a well-established rule

of statutory construction, must yield where the legislature has made a special provision as to

the procedure to be followed in the trial of some particular issue which may arise in such a

proceeding. Sec. 29 of the act to regulate the settlement of the estates of deceased persons,

being sec. 5885 of the Rev. Laws, provides for making up an issue as to the granting of letters

testamentary, and then provides that “such objections shall be heard and determined by the

court.” Again, sec. 45 of the same act, being sec. 5901, Rev. Laws, provides that on the

hearing of a contest as to letters of administration “the court will proceed to hear the

allegations and proof of the parties and to order the issuance of letters of administration, as

the case may require.” In the same way, a special procedure is prescribed as to the trial of

numerous other issues which may arise in the course of the settlement of an estate, and the

court's attention is invited to sections 51, 61-63, 133, 141-142, 188, 219, 231, 232, 243 and

275, in each of which cases “the court” is required to hear and determine the issue. We think

it is plain from a reading of sec. 20 of the act, being sec. 5876, Rev. Laws, that the word

“court” refers to the trial judge as distinguished from the jury. Sec. 20 is the only section of

the entire act in which the word “jury” occurs. Moreover, there is no doubt but that the

district judge is intended in section 63 (sec. 5919, Rev. Laws). In that portion of the act which

applies to will contests, even more than in the other cases, a special procedure has been

prescribed by the statute, which must control over a general provision toward the end of the

act. Secs.


5874, 5876, Rev. Laws. In this connection, attention is called to the following New York

cases: In Re Eno's Will, 157 N.Y.S. 553 (affirmed in 158 N.Y.S. 234); In Re Plate's Will, 156

N.Y.S. 999; In Re Vetter's Will, 157 N.Y.S. 450.

Judge Sweeney, writing the opinion of the court in the case of Abel v. Hitt, 30 Nev. 93,

105, said: “In other jurisdictions where the verdict of a jury is merely advisory in a will

contest, as it is in the present case under consideration, the rule prevails, as in this state, that

the verdicts of juries are merely advisory, and can be totally disregarded or accepted as a trial

court decides.” Citing cases. While Chief Justice Talbot and Justice Norcross did not concur

in the opinion in so far as it held that the verdict of the jury was advisory, on the ground that

the question was not, in their opinion, necessarily involved, nevertheless Judge Sweeney's

opinion must be accorded very great weight, and a consideration of this subject must be

approached with the thought that, in the only expression of this court on the subject, one

learned justice believed a jury in a will contest to be merely advisory.

OPINION

Per Curiam:

This is an original proceeding in mandamus, brought to compel the Second judicial district

court of the State of Nevada to reset a will contest for a second trial before a second jury.

After filing the contest, the petitioner, contestant in the court below, requested a jury trial,

which was granted, and the cause thereafter regularly tried and submitted. Two forms of

general verdict were given to the jury, when it retired, together with three forms of special

verdict. The special verdicts requested were as follows: (1) Was J.B. Wainwright of sound

mind and disposing memory at the time the proposed will of May 5, 1926, was signed? (2)

Did J.B. Wainwright, at the time of signing said proposed will, �� (


have sufficient mental capacity to recollect those who were the natural objects of his bounty?

(3) Was J.B. Wainwright acting under undue influence at the time the said proposed will of

date May 5, 1926, was made? The jury returned in favor of respondent on the first and second

questions and reported disagreement on the third. No general verdict was found. Thereafter,

on motion of counsel for proponent of the will, the court made findings of fact and

conclusions of law declaring Joseph B. Wainwright, deceased, to have been of sound and

disposing mind at the time of the execution of the will, that he was then and at all times free

from undue influence, and admitted the same to probate.

The return shows, and when the matter first came on for hearing in this court counsel for

respondent contended, that counsel for petitioner made no motion for a resetting of the case

before another jury until after the court had admitted the will for probate. It was then argued

that by reason thereof petitioner had waived the right to a second jury trial. On a subsequent

hearing for which the case was continued for the production of evidence as to this fact, the

point was waived by counsel for respondent.

1. Petitioner contends that on his motion the court had no alternative than to set the case

down for trial before another jury. While there are some cases to the contrary, it is well

established by the great weight of better-reasoned authority that a party to a will contest is not

entitled to have issues raised concerning its validity tried by a jury unless the right is

conferred by statute. The rule is stated in Bancroft's Probate Practice, vol. 1, sec. 198, as

follows:

“A contest of a will and proceedings to revoke its probate are ‘special proceedings.' In the

absence of a statute providing for trial by jury, probate proceedings have always been heard

by the court without the intervention of a jury. Only in those probate proceedings where the

statute expressly confers a right to a trial by jury does the right exist. Proceedings to contest a�� &��


will are, moreover, in their nature equitable, and trial by jury of issues of fact therein is not a

matter of right. The constitutional right to trial by jury safeguards only the right to trial

according to the common law as it existed at the time the particular constitution was adopted.

There is accordingly no constitutional right to jury trial in a will contest and only such right as

statute may provide.”

The following leading cases may be selected from the many affirming this generally

recognized doctrine: In Re Dolbeer's Estate, 153 Cal. 652, 96 P. 266, 15 Ann. Cas. 207; Shaw

v. Shaw, 28 S. D. 221, 133 N.W. 292, Ann. Cas. 1914b, 554, Stratton v. Rice, 66 Colo. 407,

181 P. 529; Matter of Clyne, 72 Misc. Rep. 593, 131 N.Y.S. 1090; Stevens v. Myers, 62 Or.

372, 121 P. 434, 126 P. 29; Parker v. Hamilton, 49 Okl. 693, 154 P. 65; Moody v. Found, 208

Ill. 78, 69 N.E. 831. See, also, 35 C. J. sec. 18, p. 151, and cases cited.

As said in Moody v. Found, supra:

“The jurisdiction to admit wills to probate has never been exercised by the common-law

courts as a part of their common-law jurisdiction, but prior to the establishment of probate

courts the eccesiastical courts of England and the analogous courts of this country exercised

that jurisdiction, and that jurisdiction, as now exercised by the county court of this state, is

purely statutory, so that the constitutional provision that ‘the right of trial by jury as

heretofore enjoyed, shall remain inviolate,' did not confer upon the appellant the right to

demand a jury upon the trial of said appeal in the circuit court, as it has been uniformly held

that such constitutional provision was designed only to secure the right of trial by jury as it

had theretofore been enjoyed in those tribunals which exercised common-law jurisdiction,

and was not intended to confer such right in any class of cases where it had not formerly

existed. Nor was it intended to introduce the jury system into those special summary

jurisdictions which were unknown to common law.”


Counsel for petitioner insist that the right to a jury trial is conferred in our probate act, and

cite the following provisions in support of their contention:

Section 5874 (Rev. Laws):

“If any person appears to contest the probate of a will, such person shall file a statement in

writing, setting out the grounds of contest, and file the same with the clerk, which shall

constitute a joinder of such issues of fact as may be alleged in opposition to the will, such as

respects the competency of the deceased to make a last will and testament, or respecting the

execution by the deceased of such last will and testament, under restraint, or undue influence,

or fraudulent representations, or for any other cause affecting the validity of such will. And

any and all issues of fact shall be tried as issues of facts are tried in other cases in the district

court.”

Section 6109 provides:

“All issues of fact in matters of an estate shall be disposed of in the same manner as is by

law provided upon the trial of issues of fact in a common-law action. All questions of costs

may be determined by the court, and execution may issue therefor in accordance with the

order of the court.”

Section 6138 provides:

“When not otherwise specially provided in this act all the provisions of law regulating

proceedings in civil cases shall apply in matters of estate, when appropriate, or the same may

be applied as auxiliary to the provisions of this act.”

2, 3. Stress is placed upon the provision in section 6109 for the trial of issues of fact as in a

common-law action, and it is argued that this term must be taken to be meant in the sense of

an action at common law in which a jury has always been allowed as a matter of right.

This provision must be harmonized, if possible, with other provisions of the act bearing

upon the matter. If it cannot be harmonized, the provision, being general in nature, must,

under a well-established canon of � ��


construction, be controlled by specific provisions of the probate act touching the same subject

matter. In other words, the construction which petitioner seeks to give it must be considered

as designed where not otherwise specially provided. As pointed out by respondent, there are a

number of instances in the probate act where special provision is clearly made for the trial of

an issue of fact by the court, such as appear in sections 29, 45, 51, 63, 141, 142, 219, 231,

232, and 243. These control general provisions. We also think that the proposed construction

of section 6109 must yield before the special provisions of the act providing for will contests.

4. Section 5874, above quoted, which deals with will contests, provides in part as we have

seen:

“Any and all issues of fact shall be tried as issues of facts are tried in other cases in the

district court.”

This does not necessarily mean a jury trial as a matter of right, for all issues of fact are not

so triable.

This section and all others relied on by petitioner must be considered in connection with

section 5876. To our minds this section makes it clear that the legislature intended no

departure from the time-honored practice of making the court the final arbiter in will contests.

It reads:

“If the court shall be satisfied upon the proof taken when heard by the court, or by the

verdict of a jury, in case a jury trial is had, that the will was duly executed by a person at the

time of sound and disposing mind, and not under restraint, undue influence or fraudulent

representation, the court, by decree in writing, shall admit the will to probate, whereupon the

will and the decree admitting it to probate shall be recorded together by the clerk in a book to

be provided for that purpose.”

5. This special provision is the only place in the probate act where a jury is mentioned. “Or

by the verdict of a jury, in case a jury trial is had,” is certainly not a luminous expression of

an intention to grant a jury trial as a matter of right. “In case a jury trial is �� #��


demanded” would have been more appropriate to express such an intention. And the failure

of the legislature to use this or other apt language denoting its purpose to effect a change so

radical, considered in connection with the requirement that the court must in any event be

satisfied that the will is entitled to be admitted to probate before it shall decree it to be so

admitted, makes it quite certain that an advisory jury is meant. If it was intended to

revolutionize the practice of centuries in regard to the trial of will contests, it is reasonable to

suppose that the legislature would have used definite language to express such purpose. See

Abel v. Hitt, 30 Nev. 93, 93 P. 227, in which Justice Sweeney, after considering all of the

statutes set out above, reached the same conclusion.

The petition is dismissed.

____________

��51 Nev. 179, 179 (1928) Lovelock Mercantile Co. v. Lovelock Irrigation Dist.��

LOVELOCK MERCANTILE CO. Et. Al. v. LOVE-

LOCK IRRIGATION DISTRICT Et Al.

No. 2831

December 5, 1928. 272 P.1.

1. Appeal and Error—Supersedeas Will Not Issue to Restrain Irrigation District Directors

from Annexing Certain Land Pending Appeal from Order Refusing to Enjoin Such

Action. Supersedeas would not issue to prevent directors of irrigation district from including certain land

within boundaries of district pending appeal from order refusing injunction restraining such action, since

supersedeas will issue only when necessary to complete exercise of appellate jurisidiction of supreme

court under Const. art. 6, sec. 4, Rev. Laws, sec. 4834, and petitioner must clearly show that

irremediable injury can be reasonably apprehended in case of reversal.


Appeal And Error—30 C.J. sec. 1405, p. 1282, n. 18

Application for a writ of supersedeas by the Lovelock Mercantile Company and others

against the Lovelock Irrigation District and others. Writ denied.


Powell & Brown and Price & Hawkins, for Petitioners:

As the matter stands in the district court, the injunction sought having been refused,

defendants below may act upon the petition for the inclusion within the boundaries of the

irrigation district, lands of plaintiffs which are included within the city limits of the city of

Lovelock, but which are not now and never have been included within the boundaries of said

Lovelock irrigation district. It is therefore manifest that the refusal to grant the stay in the

present instance would defeat the appeal from the “Order Refusing to Grant an Injunction,”

and would make the injunction proceedings pending in the trial court, and also the appellate

proceedings now pending in this court from said “Order Refusing to Grant an Injunction,”

moot. So the refusal to grant a stay as sought in the petition would injuriously affect

appellants and militate against the full and complete exercise by this court of its appellate

jurisdiction, while “It is likewise apparent that granting such a stay will not in any way be

injurious to respondents, provided they are adequately protected by a bond. Under these

circumstances, this court has the power to act, and the showing is sufficient to authorize a

stay.” Kiefer v. City of Idaho Falls (Ida.), 265 P. 701-703.

An appeal having been perfected from the “Order Refusing to Grant an Injunction,” the

application by appellants as petitioners for an order enjoining and restraining respondents,

defendants below, from making any order, pending the hearing upon such appeal, whereby

the lands of petitioners would be included within the boundaries of the Lovelock irrigation

district, is justified and authorized by the Nevada constitution and the Nevada statutes and the

authorities generally considering such matters and such a situation. Sec. 4, art. IV, Nev.

Const.; sec. 4834, Rev. Laws, vol. 2; sec. 5329, vol. 3, Rev. Laws; Halsted v. First Savings

Bank (Cal.), 160 P. 1075; Hill v. Finnegan, 54 Cal. 493; Chicago R. I. & P. Co. v. Woods

(Iowa), 195 N. W. 957; West Side Irrigating Co. v. Chase etc. (Wash), 192 P. 892; Segarini v.

Bargagliotti (Cal.), 226 P. 2; Farmers 4��5� ��,�� 9�� A3��B�


State Bank of Riverton v. Haun (Wyo.), 213 P. 361; Omaha & Council Bluffs Street Railway

Co. v. Interstate Commerce Commission, 222 U.S. 582, 56 L. Ed. 324.

H. J. Murrish and Cooke & Stoddard, for Respondents:

The trial court was without jurisdiction to entertain the application for an injunction

pendente lite, and this court is likewise without jurisdiction. Section 38 of the Nevada

irrigation district act (1919 Stats. 102) provides, in substance, that a petition, and all

objections thereto, for annexation of lands to an irrigation district shall be heard by the board

of directors of the district. This rule is stated in sec. 1868, Pomeroy's Eq. Jur. vol. 4 (4th ed.);

Glide v. Superior Court (Cal.), 81 P. 225; Hoole v. Kinkead, 16 Nev. 217-222; Board of

Directors of Modesto Irrigation District v. Tregea (Cal.), 26 P. 237-242; Forsythe et al. v.

City of Hammond, 37 N.E., 537; Graham et al. v. City of Grand Rapids (Mich.), 146 N.W.

248; Ann. Cas. 1915d, 380; McChord v. Louisville & N.R.R. Co., 46 L. Ed., 295; High on

Injunctions (4th ed.), secs. 1311-1326; 32 C.J. 242, sec. 384, n. 70; 32 C.J. 250, sec. 391, n.

70-81; 32 C.J. 252, sec. 396 and notes; 32 C.J. 262, sec. 412, n. 45-46; Alfers v. City and

County of San Francisco, 32 F. 503; Rice v. Snider et al., 134 F. 953; Pomeroy's Eq. Juris.,

vol. 1, secs. 17, 50, 1751 (4th ed.); State ex rel. Raylor v. Lord (Ore.), 31 L. R. A. 476-480.

The petitioners and plaintiffs have a plain, speedy and adequate remedy at law. In support

of which we cite the following sections of the Nevada irrigation district act providing for

annexation of lands: Sec. 36, as amended, 1928 Stats. 7; secs. 37 and 38 (1919 Stats. 102);

sec. 39 (1923 Stats. 295); secs 40 and 41 (1923 Stats. 296); secs. 42 and 43 (1919 Stats. 103);

sec. 43 1/2 (1923 Stats. 296); sec. 18 (1919 Stats. 95); sec. 19 (1919 Stats 96); sec. 20 (1921

Stats. 128).

Assuming, for the purposes of argument, that the board of directors would act unlawfully

upon the petition for annexation (the presumption of law is directly contrary), by exceeding

its jurisdiction, and the �� &��


petitioner had no plain, speedy and adequate remedy at law, then certiorari would be the

proper procedure, because the proceedings before the board upon either annexation or

exclusion are semijudicial in character. Degiovanni v. Public Service Commission (Nev.),

197 P. 582; Mojave River Irr. Dist. v. Supr. Court (Cal.), 256 P. 469-473; Imperial Water Co.

No. 1 v. Board of Supervisors of Imperial County (Cal.), 120 P. 780; Hoole v. Kinkead, 16

Nev. 217-222. And on the other hand, if the board arbitrarily refused to grant the petition for

exclusion, then the aggrieved party may within thirty days petition the district court to set

aside such order, as specifically provided in section 44 of the act, supra.

This court has passed upon the constitutionality of the Nevada irrigation district act in the

following cases, to wit: In Re Walker River Irr. Dist. (Nev.), 195 P. 327; McLean v.

Truckee-Carson Irrigation Dist. (Nev.), 245 P. 285.

The right of an irrigation district to include city lands or town lands within its boundaries

has been long established and upheld by the great weight of authority. Nampa & Mer. Irr.

Dist. v. Brose (Ida.), 83 P. 499; Board of Directors of Modesto Irr. Dist. v. Tregea (Cal.), 26

P. 237-242; Fallbrook Irr. Dist. v. Bradley (U.S.), 41 L. Ed. 369-390; J. & W. C. Shull v.

Merced Irr. Dist. (Cal.), 365 P. 965; vol. 26 Calif. Jurisprudence, sec. 584, p. 369; O.S.L. Ry.

Co. v. Pioreen Irr. Dist. (Ore.), 102 P. 904.

Both the petition and the amended complaint fail to state or allege that plaintiffs and

petitioners presented objections to the board of directors in the form and manner and within

the time required by the notice published, as provided in section 37 of the act. The

allegations, therefore, are insufficient to authorize either a temporary injunction in the court

below or to authorize the issuance of the writ sought here. Harbough v. Enlarged Baxter

Creek Irr. Dist. (Cal.), 207 P. 1018.

The writ of supersedeas is “an auxiliary process designed to supersede the enforcement of

the judgment ��#


of the court below, brought up by writ of error for review.” Dulin v. Pacific Wood & Coal

Co. (Cal.), 33 P. 123-124; Cal Jur. vol 23, sec. 3 p. 983; Wood v. Board of Fire

Commissioners of Los Angeles (Cal.), 195 P. 739-740.

A writ of supersedeas cannot operate as an injunction against any of the parties to an

action restraining them from any act in assertion of their rights, other than to prevent them

from using the process of the court below to enforce the judgment. It follows, therefore, that

the writ cannot be issued to prevent parties from enforcing their rights under a judgment

independently of the court and without the aid of its process. 23 Cal Jur. p. 986; Southern

Pacific Co. v. Smith et al. (Cal.), 151 P. 426; Wollenschlager v. Riegel (Cal.), 200 P. 726;

Rose v. Mesmer (Cal.), 63 P. 1010; Tyler v. Superior Court of Sonoma County, 13 P. 856;

Napa Valley Elec. Co. v. Calistoga Elec. Co. (Cal.), 163 P. 497; State ex rel. Martin v.

Poindexter, 86 P. 176; State ex rel. Holsom v. Kakey (Wash.), 93 P. 128; Cooper v. Hindley

(Wash.), 126 P. 916.

OPINION


This is an application by the appellants for a writ of supersedeas to restrain the respondents

from including within the boundaries of the Lovelock irrigation district any lands, blocks, or

lots of appellants included within the city limits of the city of Lovelock.

Appellants commenced an action against respondents in the Second judicial district court

and obtained a restraining order and order to show cause why an injunction pendente lite

should not issue. The action was by stipulation transferred to the Sixth judicial district court.

After the case was transferred appellants filed an amended complaint in which it is alleged,

inter alia, that it is sought by petition to annex certain lots and blocks of the city of Lovelock

to the Lovelock �� "�� "�� +�� "�� +�� "�� :�� "�� "��

� �� C�� :?�111�� 7�� &�� "�� &�� /�� A2�,��+��


irrigation district; that upon said lots and blocks are erected buildings for business and

residential purposes, and in many instances such buildings cover the entire block or lot of

ground upon which the same are erected; that said lots or blocks of land are in no sense

farming or agricultural lands, or susceptible of irrigation by the system of works contemplated

by the Lovelock irrigation district, and would not be benefited thereby or by any

improvements it might make; that said lots and blocks now are and at all times have been

outside the boundaries of said Lovelock irrigation district; that said defendants intend to and

will at a meeting to be held by them on Monday, March 19, 1928, make and enter an order

denying, overruling, and rejecting any and all objections thereto and annex said lots unless

restrained therefrom; that no benefits have been apportioned to any of the said lands

embraced within the city limits, and the city has its own sufficient, efficient, and independent

water supply for all the lands embraced within the city limits, and that same have no need for

any additional water supply; that said lots and blocks will not be benefited by inclusion in the

district, but on the contrary, will be greatly and substantially injured thereby, in that each lot

will become obligated and bound for taxation for the payment of a contemplated bond issue

in the sum of $1,287,000, with interest at 6 per cent per annum, and remain liable for the

payment of such tax notwithstanding delinquencies in other lands within the district; that the

petition for annexation does not conform to the required provisions of the Nevada irrigation

district act, as amended (3 Rev. Laws 1919, p. 3269, as amended by Laws 1923, c. 171), and

by reason thereof is inoperative, null, and void; that said petition as signed by the parties does

not describe the lands, nor does it describe the several parcels owned by the persons signing

said petition; that a large number of persons who did in fact sign said petition did so by

reason of fraud, duress, and misrepresentation; that several persons who were induced to sign

are now objecting to such, and object to any of the lands within the city ��+�� +�� "�� 27�2?��2:��2��!1��!��! ��!2�� !2��8 ��/�� "�� +�� +�� "��C�� :?�111�� +�� +�� '�� '��


limits of Lovelock being included within the boundaries of said Lovelock irrigation district;

that sections 36, 37, 38, 39, 40, 41, 42, 43, and 43 1/2 of the Nevada irrigation act, as

amended, are unconstitutional; that petitioners here are the owners and in possession of large

portions of the lots, blocks, and land embracing much of the most substantially improved

portions or sections of the city of Lovelock sought to be included within the boundaries of the

said Lovelock irrigation district; that $1,287,000 in bonds have been voted by said Lovelock

irrigation district, and, unless restrained, defendants will include said lands of plaintiffs

within the boundaries of the Lovelock irrigation district and sell said bonds covering all of

plaintiffs' lands, thereby casting a cloud upon plaintiffs' title to all of their said lands and

causing a multiplicity of suits to clear title, and irreparable injury to plaintiffs.

A hearing was had on said order to show cause, at the conclusion of which the court

dismissed the restraining order and denied the application for the injunction.

Appellants perfected their appeal from the order refusing the injunction prior to their

application for the writ of supersedeas. It is alleged in the petition for the writ that, since the

order refusing to grant an injunction was made, respondents, on May 8, 1928, at Lovelock,

Nevada, held a hearing upon the petition for annexation and objections thereto, and will, if

not restrained from so doing, enter an order including within the boundaries of said Lovelock

irrigation district, lands, blocks, and lots, with valuable improvements thereon, being the

property of appellants, as in said amended complaint alleged, all in violation of the rights of

plaintiffs and contrary to the provisions of the said Nevada irrigation district act; that by such

inclusion petitioner's lots, blocks, and tracts of land, together with the valuable improvements

thereof, will become subject to a lien of $1,287,000 principal bond issue, with interest

thereon, and other indetedness; that said action will create a lien and cloud upon the title to

said lands, even though said lands should be later excluded from the ��"�� =�� +�� /�� "��


district; that if improvements have been commenced or authorized, or if there are bonds or

other contracts or certificates of indebtedness outstanding while said lands are so included in

the boundaries of said Lovelock irrigation district, then no lands upon which benefits have

been apportioned shall be excluded, as is provided by said Nevada irrigation act; that there is

in existence a real controversy as to the injunction feature of the action, and if the action of

the board of directors as alleged is not stayed, petitioners will be injuriously affected if this

court should on appeal reverse the order of the lower court denying the injunction.

A hearing was had in this court upon demurrer to the petition for the writ. At the

conclusion thereof counsel stipulated that when this court reached its decision it might enter

an order dismissing the petition or granting the writ, as the case might be, and file its written

opinion later. An order dismissing the petition has heretofore been made by this court.

We are of the opinion that a supersedeas order staying the action of the directors as prayed

for is unnecessary. Process of this character will issue only when necessary to the complete

exercise of the appellate jurisdiction of the supreme court. Section 4, art. 6, Nev. Const.;

section 4834, Rev. Laws, vol. 2.

Concerning the writ of supersedeas it is stated in 3 C.J. sec. 1411:

“As a rule a supersedeas or stay should be granted, if the court has the power to grant it,

whenever it appears that without it the objects of the appeal or writ of error may be defeated,

or that it is reasonable necessary to protect appellant or plaintiff in error from irreparable or

serious injury in the case of a reversal, and it does not appear that appellee or defendant in

error will sustain irreparable or disproportionate injury in case of affirmance. * * * On the

other hand as a rule, a supersedeas, or stay will not be granted * * * unless it appears to be

necessary to prevent irreparable injury or a miscarriage of justice.”

The rule stated above is fairly deducible from the ��


cases. A mere claim of serious or irremediable injury in case of a reversal will not prompt this

court to suspend the operation of an order or judgment of a lower court pending an appeal.

Petitioner must clearly show that such an injury can be reasonably apprehended.

It was claimed by appellants that if the petition for the inclusion of their lands was granted,

irreparable injury would result from liens attaching thereto for assessments thereafter levied

for the purpose of raising money to be applied to any of the purposes of the act. It was

insisted that such liens would not be removed notwithstanding said lands were subsequently

excluded from the district, and a cloud would thereby be cast upon the title to the lands; that

they were therefore entitled to a supersedeas to maintain the status quo until the question of

their right to an injunction could be determined on appeal. We do not perceive how any injury

can result from the refusal of this court to make an order staying the action of the directors.

The appellants questioned the power of the directors to proceed with the hearing of the

petition for the inclusion of their lands within the boundaries of the Lovelock irrigation

district upon two grounds: (1) That the sections of the irrigation statute under which the

directors were undertaking to proceed were unconstitutional; and (2) assuming that said

sections were valid, the petition for the inclusion of appellants' lands in the irrigation district

was insufficient and by reason thereof inoperative, null, and void. If either of these

contentions is determined in appellants' favor on appeal the board of directors will have been

without jurisdiction to make appellants' property subject to the provisions of the act.

Consequently no valid liens against their property could result from the action of the board.

It cannot therefore be fairly assumed that it is reasonably necessary to grant a stay to

protect appellants from serious injury in case of a reversal.

For these reasons the writ was denied.

____________


CARROLL v. CARROLL

No. 2799

December 5, 1928. 272 P. 3.

1. Appeal and Error—Party Cannot Change Position in Supreme Court. A party cannot change his position or theory of case in supreme court on appeal.

2. Appeal and Error—Rehearing Will Not Be Granted to Consider Point Not made on

Original Hearing. Supreme court will not grant rehearing in order to consider point not made when case was presented

on original hearing.



On motion for rehearing. Rehearing denied. (For former opinion, see page 62 of this

Report.)

Cantwell & Springmeyer, for Petitioners:

Under the common law, the husband owed an absolute duty to support his wife, without

regard to her property or income. 1 Schouler on Marriage etc. 1570; 13 R.C.L. 1188; Vickers

v. Vickers (W. Va.), 109 S.E. 234, 122 S.E. 279; Norman v. Norman (W. Va.), 197 S.E. 407;

Kittle v. Kittle (W. Va.), 102 S.E. 799. Without statutory aid, a wife, without suing for

divorce, could bring her suit in equity to compel her husband to provide her separate

maintenance. 13 R.C.L. 1188, and cases cited; 30 C.J. 1079, and cases cited. The essential

allegations of her bill in equity do not include “necessity.” 30 C.J. 1086, and cases cited. The

Nevada statute providing for suit for separate maintenance is properly held to be remedial,

and to be liberally construed. Hilton v. District Court, 43 Nev. 128, 183 P. 317.

Where a cause is tried in the court below on the theory that the pleadings raise a certain

issue, the objection that the pleadings do not raise that issue cannot be made for the first time

in the appellate court. 3 C.J. 727; Furlong v. White (Cal.), 196 P. 903; 31 Cyc. p. 723.


If the common law is to govern the subject, then appellant is entitled to the personal

property and income �� '��


now held and enjoyed by respondent wife, and is also entitled to the rents and profits of the

wife's realty. 13 R.C.L. 1046, sec. 67, item 1053, sec. 76.

A party asking for a rehearing will not be permitted to set up new grounds in support of his

petition different from those urged by him at the original hearing. 4 C. J. 629, sec. 2495 and

n. 88; Beck v. Thompson, 22 Nev. 419, 41 P. 1; Gamble v. Hanchett, 35 Nev. 315, 133 P.

936-937; Kirman v. Johnson, 30 Nev. 146, 96 P. 1057; Rhodes Mining Co. v. Belleville etc.

Mining Co., 32 Nev. 230, 118 P. 813. Instead of seeking for the first time to make the point in

this court, and that too on petition for rehearing, respondent should have availed herself of the

benefit of rule 8, subsection 3, rules of the district court.

The statute, Rev. Laws, sec. 5055, provides that a demurrer shall distinctly specify the

grounds upon which any of the objections are taken, otherwise it may be stricken. But it is

further provided (Rev. Laws, sec. 5045) that objection for insufficiency of facts is never

waived. Nielsen v. Rebard, 43 Nev. 274, 183 P. 984.

It may be taken from the opinion in this case that it is settled law that respondent's plea as

to necessity was a mere conclusion. We say the rule is that pleading conclusions of law do not

aid pleadings; that a pleading is tested by the facts set forth, and if the facts are insufficient,

no plea of legal conclusions will supply the deficiency. 1 Bancroft Code Pl. 90, sec. 43 and n.

3; Callahan v. Broderick, Auditor (Cal.), 56 P. 782-783; Ohm v. San Francisco (Cal.), 28 P.

580-583; 1 Bancroft C.P. 91, 92 and 93, sec. 43; Branham v. Meyer, 24 Cal. 585-602;

Metropolis etc. Bank v. Mounier (Cal.), 147 P. 265.

A pleading which states a conclusion of law, instead of setting out the facts, cannot be

attacked for the first time on appeal upon that ground; and this is true even though the

appellant has interposed a general demurrer which does not point out that specific defect in

the pleading. Russ Lumber Co. v. Garretson (Cal.), 25 P. 747; Scott v. Howell (Colo.), 132 P.

1144; 3 C.J. 781-784; 3 C.J. 746; 3 C.J. 728-729.


An appellate court will not reverse a judgment for an error or defect which might have

been cured by amendment, but will either consider that amendment as having been made or

will permit such amendment. 4 C.J. 3191. The rule obtains even where a general demurrer

has been interposed, if that did not point out the specific defect. The defect here found by the

appellate court to exist is certainly an amendable defect; had appellant's demurrer been

sustained, respondent would have had a right to amend if that could be done; the findings

show that the facts did in fact exist. Gallagher v. Dunlap, 2 Nev. 326; Cal. St. Co. v.

Patterson, 1 Nev. 151; Rule VIII of the District Court of Nevada; Heflinger v. Heflinger

(Ga.), 132 S.E. 85.

An error which does not affect the substantial rights of the appellant will not be sufficient

to warrant reversal of a judgment. 4 C.J. 908; Lorden v. Stapp (Ariz.), 192 P. 246; Furlong v.

White (Cal.), 196 P. 903; State v. Lorenz et al. (in equity) (Wash.), 60 P. 645; Mitchell v.

Bromberger, 2 Nev. 345; Murphy v. S.P. Co., 31 Nev. 120, 101 P. 322. We find statutory

recognition of the principle involved by secs. 5320 and 5358, Rev. Laws. Further, we find the

principle established by statute in criminal appeals, has been by the decisions of this court

applied to civil appeals. See the Nevada decisions cited above, and, also, S.N.M. Co. v.

Holmes M. Co., 27 Nev. 108, 73 P. 759. And it is an inherent power of an appellate court to

decide that an error was harmless and to refuse to disturb a judgment because of it. 4 C.J.

908.

OPINION


Several grounds are urged as reasons why a rehearing should be granted in this case.

It is insisted first that, in view of the fact that it was the duty of the husband, at common

law, to support his wife, it was not necessary that the defendant plead the facts showing the

necessity of contribution by the plaintiff.


1. This contention is now made for the first time. In fact, the defendant seems to have

proceeded in the trial court upon the theory that it was necessary to plead such necessity. On

no other theory can we account for the allegation wherein it was attempted to plead it. We

have held that a party cannot change his position in this court. Wheeler v. Hurley, 49 Nev. 70,

236 P. 559.

2. Pursuant to a long line of authorities, this court will not grant a rehearing in order to

consider a point not made when the case was presented on the original hearing. A few of the

cases so holding are: Beck v. Thompson, 22 Nev. 419, 41 P. 1; Gamble v. Hanchett, 35 Nev.

319, 133 P. 936; Kirman v. Johnson, 30 Nev. 146, 93 P. 500, 96 P. 1057; Rhodes M. Co. v.

Belleville Co., 32 Nev. 230, 240, 106 P. 561, 118 P. 813; Nelson v. Smith, 42 Nev. 302, 176

P. 261, 178 P. 625; Pedroli v. Scott, 47 Nev. 313-321, 221 P. 241, 224 P. 807, 31 A.L.R. 841.

However, without deciding the point, we think that under the law the contention is not

well founded. Some of the authorities in point are: 13 R.C.L. p 1201, par. 234; note IX to

Hubbard v. Hubbard, 6 A.L.R. at page 70; 30 C.J. p. 1090, sec. 901; Hunt v. Hayes, 64 Vt.

89, 23 A. 920, 15 L.R.A. 661, 33 Am. St. Rep. 917; Prescott v. Webster, 175 Mass. 316, 56

N.E. 577.

Such seems to be the rule even in England. In Liddow v. Wilmot, 2 Starkie, 86, Revised

Reports, 684, Lord Ellenborough said:

“* * * The first question for consideration is whether the defendant turned his wife out of

doors, or by the indecency of his conduct precluded her from living with him, for then he was

bound by law to afford her means of support adequate to her situation, but if either from her

husband, or from other sources, she was possessed of such means, the law gives no remedy

against the husband. He is liable only in case of the insufficiency of her funds.”

Other points are urged in the petition, but, not having been suggested heretofore, cannot be

considered.

____________

��51 Nev. 192, 192 (1928) State v. Beemer��

STATE Ex Rel. PITTSON v. BEEMER, County Clerk

No. 2847

December 13, 1928. 272 P. 656.

1. Statutes—Legislative Intent Being Clear, and Unambiguously Shown by Statute, Court

Could Not Search for Its Meaning Elsewhere. Legislature's intent being clear, and unambiguously shown by the language used in primary election

law, sec. 22, as amended by Stats. 1926-27, c. 184, relating to declaring of nominees as candidates for

public offices, court could not search for its meaning beyond the statute itself.

2. Elections—Nominee, as One of Two Candidates of Same Political Party for Same Office,

Held Entitled To Have Name Placed on Election Ballot; No Other Political Party

Participating. Nominee for election to office of county commissioner, who was one of two nominees of same

political party, held entitled, under primary election law, sec. 22, as amended by Stats. 1926-27, c. 184,

to have his name placed on general election ballot, where no other party participated in the nomination of

candidates.

3. Statutes—Statute Proviso Need Not Be Read with Sentence of which it Is Part; it

Appearing that it Was Intended for Another Matter. Proviso in primary election law, sec. 22, as amended by Stats. 1926-27, c. 184, relating to the

declaration of nominees as candidates for election to offices, need not be read with sentence of which it is

part; it appearing that such proviso was intended for another matter.



Application by the State, on the relation of L.P. Pittson, for a writ of mandamus to direct

E. H. Beemer, as the County Clerk of Washoe County, to print relator's name as nominee for

certain office on the general election ballot. Writ ordered.

Edward F. Lunsford, Arthur F. Lasher, and Green & Lunsford, for Relator:

“Where the language of a statute is plain and unambiguous and its meaning clear and

unmistakable, there is no room for construction, and the courts are not permitted to search for

its meaning beyond the statute itself.” State v. Jepson, 46 Nev. 196. G<��


“The intention of the legislature is to be collected from the words they employ. Where

there is no ambiguity in the words, there is no room for construction.” U.S. v. Wiltberger, 5

Wheat. 76, 5 L. Ed. 37.

As we read the language of the proviso in section 22 of the primary election laws of

Nevada, as amended in 1927 Statutes, p. 325, it simply means that, as stated, where there is

only one party that has candidates for an office and where there is no independent candidate

for that office, then the candidates, regardless of the number, who receive the highest number

of votes at the primary, not to exceed, however, the two highest in the case of an office to

which only one can be elected, shall be the nominees for that office.

Respondent's construction would render the act unconstitutional. Article XV, section 14,

Nevada constitution, provides: “A plurality of votes given at an election by the people shall

constitute a choice, where not otherwise provided by this constitution.” If but one name goes

on the general election ballot there is no opportunity for the general electorate at the general

election, regardless of party, to choose between alternatives or to determine by choice. It

therefore would not be an election in the sense that that word is used in the constitution of

this state, and it would result in the election of the candidate by a plurality of votes at the

primary, and not at “an election by the people.” This point is clearly illustrated by the

supreme court of this state in the case of Riter v. Douglas, 32 Nev. 400. See, also, Dooley v.

Jackson, 78 S.W. 331; Woodruff v. State (N.J.), 52 Atl. 294; Hodge v. Bryan (Ky.App.), 148

S.W. 21.

Also, to construe the proviso in question as contended for by the respondent would be to

so read the section, when applied to the instant case, as making the nomination of Mr.

Peckham at the primary equivalent or tantamount to his election for the said office. Such a

result would violate section 1, article II of our constitution, for the reason that it would mean

that many persons possessing the qualifications and entitled to the right �� G� ��#��I�� 3��$� �� 4�� 1I��


of suffrage as set forth in the language of the constitution would not be “entitled to vote” for

the office of short-term county commissioner of Washoe County, permitting only those

persons to vote who had taken the partisan oath set forth in the registration act of this state, as

the same is found in the Statutes of 1920-1921, p. 371. It would also be in violation of section

1 of article XI of the constitution and section 17, article IV thereof, for the reason that the title

to the primary law does not express, or in any way embrace, the subject of an election, as that

word is used in the constitution.

It is hardly necessary for us to cite any authorities to the effect that courts will avoid placing

the construction upon a statute which would render the same unconstitutional (Virginia &

Truckee R. R. Co. v. Henry, 8 Nev. 174; 12 C.J. 787); or which would result in a manifest

injustice (State v. Kruttschnitt, 4 Nev. 178).

L. D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney,

for Respondent:

It is respondent's position that this entire matter is governed and controlled by the first

sentence in the enactment: “The party candidate who receives the highest vote at the primary

shall be declared to be the nominee of his party for the November election.” This is a clear

and complete declaration. Its meaning is plain and unqualified. It leaves nothing for

construction. The law in this state is well settled that where the language of a statute is plain,

its intention must be deduced from such language, and the courts have no authority to go

beyond it, or behind it, or to look to the proceedings of the legislature to ascertain it. Brown v.

Davis, 1 Nev. 409; Maynard v. Johnson, 2 Nev. 25; Fitch v. Elko Co., 8 Nev. 271; V. & T.

Ry. Co. v. Lyon Co., 6 Nev. 68; State v. Blasdel, 4 Nev. 241; State v. Washoe Co., 6 Nev.

104; Odd Fellows Bank v. Quillen, 11 Nev. 109; Kirman v. Powning, 25 Nev. 378, 60 P. 834,

61 P. 1090; Ex Parte Pittman, 31 Nev. 43, 99 P. 700; Ex Parte Rickey, 31 Nev. 82, 100 P.

134; Eddy ��5��6��!1�/��2 �


v. Board of Embalmers, 40 Nev. 329, 163 P. 245; Heywood v. Nye Co., 36 Nev. 568, 137

P. 515; Clover Valley Co. v. Lamb, 43 Nev. 375; State v. Jepson, 46 Nev. 193; Ex Parte

Todd, 46 Nev. 214.

The clause relied upon by petitioner has only a limited application according to its own terms.

It deals only with the case of an office to which “two or more” candidates are to be elected.

This court has repeatedly held that it has nothing to do with the wisdom or expediency of an

act which is clear in its terminology. State v. Parkinson, 5 Nev. 15; State v. McClear, 11 Nev.

39; Worthington v. District Court, 37 Nev. 214, 142 P. 230; State v. Dickerson, 33 Nev. 540,

113 P. 105; Vineyard L. & S. Co. v. District Court, 42 Nev. 1, 171 P. 166; State v. Park, 42

Nev. 386, 178 P. 389; City of Reno v. Stoddard, 40 Nev. 537, 167 P. 317.

As a general rule, a proviso is deemed to apply only to the immediately preceding clause

or provision. 2 Lewis' Sutherland Statutory Construction, sec. 352; 25 R. C. L. 985-986; 36

Cyc. 1162, 1163. The first sentence in this section being so clear as to meaning, there is no

reason or ground to depart from the general rule. We cite, as of interest in this connection, the

case of Honig v. Riley (N.Y.), 155 N.E. 65. In the case at bar, we say that if the legislature

intended a contest of this kind to be decided at the general election, it should have said so.

The possible desirability of such a course of procedure does not relieve this court from the

duty to enforce the “law as it is written.” Respondent contends that the case at bar is

controlled by the decision of this court, in accord with the authorities heretofore cited, in

Thompson v. Hancock, 49 Nev. 336.

It is elementary that the law does not require the doing of a useless or futile thing, nor will the

legislature be deemed to intend such a result. Had the legislature intended that in a case where

there were only two party candidates at a primary, and no independent candidates, that the

selection should be made at the general election, it is only fair to presume that it would ��

��


have provided that the names of those two candidates be omitted from the primary ballot and

appear only on the general election ballot, just as it provided in the latter part of the section in

case of candidates for a nonpartisan office.

OPINION

By the Court, Carville, District Judge:

The matter involved in this proceeding comes before the court upon a petition for writ of

mandamus by L. P. (Paddy) Pittson, as relator, to direct E. H. Beemer, county clerk of

Washoe County, Nevada, as respondent, to cause to be printed upon the general election

ballot, to be used at the general election on November 6, 1928, the name of relator as a

candidate for the office of short-term county commissioner of said Washoe County.

Relator bases his petition upon the facts: That he possesses the necessary qualifications,

statutory and constitutional; that he filed his nomination papers with respondent as required

by law; that his name appeared upon the primary ballot at the primary election held in Reno,

Washoe County, Nevada, as a candidate for nomination by the Republican party for said

office of short-term county commissioner; that the name of James G. Peckham, seeking the

nomination for the same office, at the hands of the same party, was also upon the ballot; that

the Republican party was the only party that had candidates for said office, and there was no

independent candidate for the office; that at said primary election James G. Peckham received

2,041 votes and relator received 741 votes, and that these were all the votes cast for said

office at said primary election; that relator has done everything required of him by law in

order to qualify for the office in the event of his election at the general election in November;

that respondent, as such county clerk, has refused to issue a certificate of nomination, and

states that he does not � �� '��


intended to have relator's name printed on the official ballot for said general election as one of

the candidates at said election for the office sought.

Respondent filed a demurrer to the petition, in which he admits the facts as set forth in

said petition, but maintains that the same fails to state facts sufficient to constitute a cause of

action, or to warrant the issuance of the writ prayed for.

Relator bases his right to the relief sought in his petition upon section 22 of the primary

election law of the State of Nevada, as amended in the 1927 Session Laws of said state, pages

325 and 326, which reads as follows:

“Section 22. The party candidate who receives the highest vote at the primary shall be

declared to be the nominee of his party for the November election. In the case of an office to

which two or more candidates are to be elected at the November election, those party

candidates equal in number to positions to be filled who receive the highest number of votes

at the primary shall be declared the nominees of their party; provided, that if only one party

shall have candidates for an office or offices for which there is no independent candidate,

then the candidates of such party who received the highest number of votes at such primary

(not to exceed in number twice the number to be elected to such office or offices at the

general election) shall be declared the nominees for said office or offices.

“In the case of a nonpartisan office to which only one person can be elected at the

November election, the two candidates receiving the highest number of votes shall be

declared to be the nonpartisan nominees; provided, however, that where but two candidates

have filed for a nonpartisan office, to which only one person can be elected, the names of

such candidates will be omitted from all the primary election ballots, and such candidates

shall be declared to be the nonpartisan nominees for such office.

“In the case of a nonpartisan office to which two or more persons may be elected at the

November election, �� &�� #


those candidates equal in number to twice the number of positions to be filled who receive

the highest number of votes shall be declared to be the nonpartisan nominees for such office.”

The question to be decided deals exclusively with the construction of the statute involved,

and the intent of the legislature to be derived therefrom.

1. Respondent contends that the entire matter in controversy is governed and controlled by

the first sentence in the enactment, which reads: “The party candidate who receives the

highest vote at the primary shall be declared to be the nominee of his party for the November

election.”

With this contention the court cannot agree. The first sentence of the enactment, as viewed

by the court, governs a situation where two or more political parties each has a nominee at the

primary election for an office to be voted upon at the general election. Particularly is this true

in view of the next sentence of the enactment, which provides that: “In the case of an office to

which two or more candidates are to be elected at the November election, those party

candidates equal in number to positions to be filled who receive the highest number of votes

at the primary [election] shall be declared the nominees of their party.”

The first sentence of the section under consideration is not a limitation upon the provisions

of the second sentence in any sense of the word. Contained in and a part of the second

sentence is the following provisio: “Provided, that if only one party shall have candidates for

an office or offices for which there is no independent candidate, then the candidates of such

party who received the highest number of votes at such primary (not to exceed in number

twice the number to be elected to such office or offices at the general election) shall be

declared the nominees for said office or offices.” This proviso contained in the act governs a

situation which is not covered by either the first sentence or that portion of the second

sentence immediately preceding the proviso itself.


1. Where the language of a statute is plain, the intention of the legislature must be deduced

from such language, and the court has no authority to look beyond it, or behind it, or to the

proceedings of the legislative body to ascertain its meaning. Ex Parte Todd, 46 Nev. 214, 210

P. 131; Clover Valley Co. v. Lamb, 43 Nev. 375, 187 P. 723; Heywood v. Nye County, 36

Nev. 568, 137 P. 515; Ex Parte Rickey, 31 Nev. 82, 100 P. 134, 135 Am. St. Rep. 651; Ex

Parte Pittman, 31 Nev. 43, 99 P. 700, 22 L.R.A. (N.S.) 266, 20 Ann. Cas. 1319.

Clearly to the court's mind, the legislature intended, as expressed in the act itself, that if

there are nominees in each party for an office or offices to which one candidate is to be

elected at a general election, or nominees in each party in which two or more candidates are

to be elected at a general election, those party candidates in which one candidate is to be

elected, or those party candidates equal in number to the positions to be filled who receive the

highest number of votes at the primary election, shall be the party nominees.

Then follows the proviso to the effect that, if only one party shall have candidates for an

office, and there shall be no independent candidate for that office, then the candidates

receiving the highest number of votes at the primary (not to exceed in number twice the

number to be elected to such office or offices at the general election) shall be declared to be

the nominees for said office or offices. The act does not state that the candidates shall be the

nominees of their party, but “shall be declared the nominees for said office or offices,” which

clearly indicates to the court's mind that, when a situation arises as set forth in the proviso, the

offices to be filled are considered rather than the parties.

If we would disregard the first sentence of the act, we are still confronted with the other

situation set forth in the second sentence, providing a mode of procedure for placing

candidates' names upon the ballot, when there are two or more candidates to be elected for an

office or offices at the general election.

2. The legislative intent is clear and unambiguous, �� &�� &��


as collected from the words employed in the statute in question, and when this occurs the

court is not permitted to serch for its meaning beyond the statute itself, and the statute in

question leaves no room for construction, other than the conclusion at which the court has

arrived. There could be no substantial reason why the legislature should intend to limit is

proviso to the nominees for an office or offices, where more than one candidate is to be

elected, in preference to the office or offices where one candidate is to be elected.

3. 2. It is further contended by respondent that the proviso should be limited to the

sentence in the act of which it is a part. The inquiry is: Does the proviso limit the sentence to

which it is attached, or has it a wider application?

The rule in this regard is laid down in Sutherland, Statutory Construction, 296, as follows:

“The natural and appropriate office of the priviso being to restrain or qualify some preceding

matter, it should be confined to what precedes it, unless it clearly appears to be have been

intended for some other matter. It is to be construed in connection with the section of which it

forms a part, and is substantially an exception. If it is a proviso to a particular section, it does

not apply to others unless plainly intended. It should be construed with reference to the

immediately preceding parts of the clause to which it is attached.”

In the case of In Re McKay's Estate, 43 Nev. 114, 184 P. 305, this court had occasion to

discuss this proposition of law, and the situation as disclosed from the construction of the

statute in question in that case brought the proviso within the exception in the rule above

stated.

In this case we are of the opinion that the clear legislative intent, as gained from the

statute, confirms the theory that the proviso is an exception to, rather than in accordance with,

the general rule, for it appears that the proviso was intended to cover a situation as might arise

under the first sentence of the act in question, as well as a situation that might arise under the

second ��


sentence, to which it is attached and of which it is a part.

In considering this question, we are not concerned with the last portion of the statute in

question, applying to nonpartisan offices and candidates for such offices, which has no

application to the question involved here.

We therefore conclude that the demurrer should be overruled, and a peremptory writ of

mandamus issue as prayed for in the petition.

It is so ordered.

Note—Sanders, C.J., being unable to participate in this decision, the Governor designated

Hon. E.P. Carville, District Judge, to sit in his stead.

____________

��51 Nev. 201, 201 (1929) Nevada Northern Ry. Co. v. District Court��

NEVADA NORTHERN RAILWAY CO. v. NINTH

JUDICIAL DISTRICT COURT

No. 2826

January 3, 1929. 273 P. 177.

1. Costs—Where, on Appeal of Defendant Filing Counterclaim from Justice Court, Jury

Found No Cause of Action in Favor of Either Party, Defendant Was “Prevailing Party”

within Costs Statute. Where plaintiff recovered judgment in justice court and on defendant's appeal to the district court

case was tried de novo, defendant having filed counterclaim, jury returned verdict finding no cause of

action in favor of either party, defendant was “prevailing party,” within mean of Rev. Laws, sec. 5814, as

amended by Stats. 1925, c. 186, relating to costs on appeal to district courts from justice courts.

2. Costs—Existence of Counterclaim Was Immaterial in Determining Whether Defendant

Was Prevailing Party Within Costs Statute. Existence of counterclaim was of no consequence in determining question whether defendant was

prevailing party within meaning of Rev. Laws, sec. 5814, as amended by Stats. 1925, c. 186, relating to

costs on appeal to district courts from justice courts, since costs are allowed a defendant on theory that he

was sued without cause.


Costs—15 C.J. sec. 597, p. 240, n. 97.


Original proceeding in certiorari by the Nevada Northern Railway Company against the

Ninth Judicial District Court of the State of Nevada, in and for the County of White Pine, to

annul a judgment. Writ dismissed.

Chandler & Quayle, for Petitioner:

That the right to costs is purely statutory is too well established to require extensive

citation of authorities. It was expressly so held by this court in State v. Baker and Josephs, 35

Nev. 301, approving McKenzie v. Coslett, 28 Nev. 220, and in Dixon v. District Court, 44

Nev. 98, 101, citing 20 Cyc. 24, 5 Enc. Pl. & Pr. 110, and 7 R. C. L. 792.

The only question, then, is whether the district court had jurisdiction to award that portion

of the cost bill of defendant which was allowed in that court, or any costs whatever of

defendant on his appeal to that court, in view of the verdict rendered. The controlling statute

is chap. 186, Stats. 1925, amending sec. 5814, Rev. Laws.

We contended below, and now contend here, that there was no prevailing party in the case,

within the meaning of the statute. We might well now contend, however, in view of a recent

New York decision which has come to our attention since the trial, that plaintiff was the

prevailing party. In that decision it is said: “Verdict against plaintiff on complaint and against

defendant on counterclaim demanding larger sum than complaint made plaintiff prevailing

party, entitled to costs.” Arrow Piece Dyeing and Finishing Co. v. Theodore J. Gallagher Co.

(N.Y. Mun. Ct. 1927), 224 N.Y.S. 361, 130 Misc. Rep. 610.

In a case more favorable as to defendant by verdict than that below, it was held, in the year

1881, that in an action in contract where the defendant answered by a general denial, and also

filed a set-off against the plaintiff, and a general judgment was given for defendant, neither

party was entitled to costs. Hartford v. Cooperative Mut. Homestead Co., 130 Mass. 447,

448, citing Caverly v. Bushee, 1 Allen 292, and Lapham v.�/��1�$��


Norris, 10 Cush. 312. In this connection, we also cite: Lemke v. Poulin et al. (N.J.), 107 A.

856; Lykins v. Hamrick (Ky.), 137 S. W. 852.

Billings & Collins, for Respondent:

The great weight of authority, as well as the better reasoned cases, sustain the ruling of the

court below. Dows v. Glaspel (N.D.), 60 N. W. 60; Lykens v. Hamrick (Ky.), 137 S.W. 852;

Ballard Transfer and Storage Co. v. St. Paul City Ry. Co. (Minn. 1915), 152 N.W. 868;

Benson v. Braun (Cal), 66 P. 1; Davis v. Hurgren (Cal.), 57 P. 684; Davis v. Jackson (Tenn.),

39 S. W. 1067; Fisher Flouring Mills Co. v. McClinton (Wash. 1925), 234 P. 20.

Chap. 186, Stats. 1925, does use the words “the prevailing party,” but is says nothing

about a judgment in his favor. However, the language of this special statute is not any

different from the general language of the statutes of the State of Nevada with reference to

costs. We call attention to secs. 434, 435, 437 and 438 of the practice act, being sections

5376, 5377, 5379 and 5380, Rev. Laws. All of the last-mentioned sections are practically the

same as sections 1022, 1024 and 1025 of the Code of Civil Procedure of the State of

California and are no doubt based thereon. The fundamental principle in all of these statutes

respecting the allowance of costs is that they shall go to the prevailing party, and we submit

that under the decisions of the supreme court of this state the question of who is the

prevailing party is a question to be determined by the court deciding the case, is within the

jurisdiction of that court, and cannot be attacked on certiorari.

OPINION


This is an original proceeding in certiorari. The record certified up discloses that petitioner

brought an action in the justice court of Ely Township No. 1, of 3��>� ��$� ��

�� $�


White Pine County, claiming damages of the defendant, one C. Franks, in the sum of $9.20,

and also alleging that the sum of $100 is a reasonable sum to be allowed as attorney's fees in

the action. Defendant answered and set up a counterclaim for damages in the sum of $299.99.

He alleged that $150 was a reasonable sum to be allowed him as attorney's fees. Petitioner

obtained judgment for damages in the sum of $1, and its costs were taxed at $129.15. Of this

amount of the costs $100 was the sum allowed by the court as an attorney fee. The defendant

appealed to the district court, and the case was tried de novo before a jury. The jury returned a

verdict finding no cause of action in favor of either party. The defendant filed a cost bill in the

sum of $341. A motion to retax was made, and the court allowed defendant costs in the sum

of $205. The writ is sought to annul this judgment.

1. It is insisted that there was no prevailing party within the meaning of the statute

involved, and that the court was therefore without jurisdiction to allow defendant any costs

whatever. Section 5814 of the Revised Laws of Nevada, as amended by Statutes of 1925, p.

331, c. 186, provides:

“The prevailing party in any civil action at law in the justice courts of this state shall

received, in addition to the costs of court as now allowed by law, a reasonable attorney fee,

said fee to be fixed by the justice of the peace, and taxed as costs against the losing party, and

on appeal the district court is hereby authorized to allow said costs, if judgment is given for

the same party; if the appealing party shall prevail on such appeal, the district court is hereby

authorized to allow him, as costs, the amount allowed by the justice of the peace as a

reasonable attorney fee to the prevailing party in such justice court, and his other costs in the

district court as in cases originating in such court.”

This statute governs in the matter of the allowance of costs on appeal in the district court.

In our judgment defendant was clearly the prevailing party. Petitioner's contention that there

was no prevailing party is based �� '��


upon the fact of defendant's counterclaim and the finding of the jury of no cause of action in

favor of either party. It is argued that it would have been necessary for defendant to have

established his counterclaim or some part thereof over any amount that may have been

established by petitioner on his claim, to be a prevailing party. This is substantially the

reasoning in the case of Hartford v. Cooperative Mut. Homestead Co., 130 Mass. 447, cited

by petitioner, and which sustains his position. The ruling of the Massachusetts court was

accepted in Lemke v. Poulin et al. (N.J. Sup.), 107 A. 856; but we are unable to follow it.

2. We regard the existence of a counterclaim of no consequence in determining the

question. It is the end attained, namely, a successful defense, that is important. Costs are

allowed a defendant on the theory that he was sued without cause. 15 C.J. 19. The verdict of

the jury in this case established that defendant was wrongfully sued. In his defense he resorted

to a counterclaim. He did not recover on trial, it is true, but a recovery on his counterclaim

would merely have increased the extent to which he prevailed in the action. Ballard Transfer

and Storage Co. v. St. Paul City Railway Co., 129 Minn. 494, 152 N.W. 868, and Lykins v.

Hamrick, 144 Ky. 80, 137 S.W. 852, are in accord with the views we have expressed. See,

also, Dows & Co. v. Glaspel, 4 N.D. 251, 60 N.W. 60; Eastman v. Holderness, 44 N. H. 18;

Benson v. Braun, 134 Cal. 41, 66 P. 1.

As the trial court was authorized to allow costs to the defendant, the writ should be

dismissed.

It is so ordered.

____________

��51 Nev. 206, 206 (1929) State v. District Court��

STATE OF NEVADA Ex Rel, NEVADA DOUGLASS GOLD MINES, Incorporated v. THE

DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, In and for Mineral

County, Et. Al.

No. 2856

January 18, 1929. 273 P. 659.

1. Certiorari—That Application for Writ of Certiorari Was Designated Petition and Entitled

the State, on Relation of Petitioner Named, Where State Had No Interest in Matter, Did

Not Justify Dismissal. That application under Rev. Laws, secs. 5684 and 5685, for writ of certiorari, was designated a

petition and entitled “State of Nevada, on the Relation of” petitioner named, where state had no interest

in the matter, did not justify dismissal of proceeding.

2. Certiorari—Application for Writ of Certiorari to Inquire Into Jurisdiction Alleging

Judgment Was Rendered Against Corporation Without Service on Proper Officer,

Stated Facts Sufficient to Justify Issuance of Writ. Application for writ of certiorari to inquire into jurisdiction, alleging that on filing of complaint in

action for labor performed summons and complaint were delivered to director of defendant, a domestic

corporation, instead of to one of persons named in Stats. 1913, c. 76, and that court entered judgment in

favor of plaintiff, and that thereafter execution issued thereon, and that sheriff was proceeding to sell

defendant's property, and that defendant had never appeared, held to state facts sufficient to justify

issuance of writ.

3. Judgment—Where Summons and Complaint Were Delivered to Director of Corporation

Instead of to Person Named in Statute, and Corporation Did Not Appear, Judgment

Was Void Ab Initio. Where summons and complaint were delivered to director of defendant, a domestic corporation,

instead of to person named in Stats. 1913, c. 76, and defendant corporation did not appear, judgment for

plaintiff was void ab initio.

4. Appearance—Appearance by Defendant Corporation's Officer After Rendition of Void

Judgment Could Not Validate It. Appearance by officer of defendant corporation after judgment which was void because improper

service was rendered could not relate back to date of rendition of so-called judgment so as to validate it.

5. Certiorari—Where Judgment Was Rendered Without Service on Defendant, it Was

Unnecessary, in Application for Certiorari, to Show Defendant Had No Right of

Appeal. In application for writ of certiorari to inquire into jurisdiction of court to render judgment, where

defendant was not served with summons and did not appear, it was unnecessary to show that defendant

had no right of appeal, since one against whom judgment has been rendered without his day in court is

��&��


not required to appeal from void judgment thereby giving court jurisdiction over his person.

6. Certiorari—Writ of Certiorari Should Issue Where Judgment Was Absolutely Void and

Certiorari Proceeding Was Instituted a Few Days After Sale Under Void Judgment. Defendant held entitled to have writ of certiorari issued as prayed, where judgment was absolutely void

because defendant was not served with summons and certiorari proceeding was instituted within a few days

after sheriff's sale under void judgment.

7. Certiorari—Application for Writ of Certiorari Need Not Be Signed by Attorney. Application for writ of certiorari under Rev. Laws, secs. 5684 and 5685, need not be signed by an

attorney.

8. Certiorari—Where Judgment Was Void for Want of Jurisdiction, Defendant Was Entitled

to Have Proceedings Thereunder, Including Pretended Sale, Set Aside on Certiorari. Where judgment was void for want of jurisdiction, defendant was entitled to have proceedings had

pursuant thereto, including pretended sale by sheriff, set aside and held for naught in certiorari proceeding.

C.J.—CYC. RERERENCES

Appearances—4 C.J. sec. 65, p. 1365, n. 78.

Certiorari—11 C.J. sec. 33, p. 105, n. 49; sec. 42, p. 108, n. 91; sec. 146, p. 151, n. 38; sec. 147, p. 151, n.

42; sec. 155, p. 153, n. 65; sec. 317, p. 187, n. 17.


Original proceeding in certiorari by the State of Nevada, on the relation of the Nevada

Douglass Gold Mines, Incorporated, against the District Court of the Seventh Judicial District

of the State of Nevada, in and for the County of Mineral, and J. Emmett Walsh, Judge of said

court, to inquire into the jurisdiction of the respondent court to render the judgement

complained of. Judgment in accordance with opinion.

Cyrus A. Hovey and Green & Lunsford, for Petitioner:

Petitioner is a domestic corporation organized under the laws of the State of Nevada. In

the action in which the judgment was rendered here sought to be reviewed, service was made

upon A. W. Curtis, a director of the corporation. The only question involved is the validity of

such service, and whether the court acquired jurisdiction of the person of the defendant or the

subject matter of the action by service upon the director. There �� &��


was no attachment or sequestration of the property, and no other service was attempted to be

made save that upon the director. The defendant did not appear.

The only provisions relating to service of process upon corporations which we are able to

find are: Section 5023, subdivision 1, Rev. Laws; section 81 of the general corporation law of

1925 (Stats. 1925, 318), under which this corporation was organized; and section 87 of the

general corporation law of 1903, as amended by the Statutes of 1913, at page 65. Service

upon a director, who was also a stockholder, does not comply with any of the mandatory

provisions of the statute. Fletcher on Corporations, vol. 4, sec. 2992, p. 4420; sec. 3001, p.

4440; 32 Cyc. 549.

It is only when the judgment has been voluntarily paid that it will not be reviewed by

certiorari. If the judgment has been paid under what may be regarded as “legal compulsion”

the judgment will be reviewed. Calif. Juris. 1065, sec. 34; Nall v. Superior Court, 4 Cal. App.

207.

There is no case here to move the exercise of this court's discretion to remit this matter to a

court of equity, as in the case of Nevada Lincoln Mining Co. v. District Court (Nev.), 187 P.

1006. This is simply a case where judgment was obtained without jurisdiction, the property

sold on execution and without any complicated interests or features requiring the intervention

of equity. In such a case this court is already vested by law with plenary power under the

constitution and statutes of this state and under prior decisions of this court to inquire into the

jurisdiction of the court below, set its judgment aside, and place all parties in statu quo. It is

provided in 2 Rev. Laws of Nevada, 5691, sec. 749, that: “When a full return has been made

the court shall proceed to hear the parties, * * * and may thereupon give judgment, either

affirming or annulling or modifying the proceedings below.”

Accordingly, it is generally held that in reversing the judgment of the court below the court

may, in case other rights have intervened by purchase under execution, or ��


otherwise, order restitution to the execution purchaser of the money paid on the sale. 1 C.J.

213, sec. 384; Paul v. Armstrong, 1 Nev. 82, 104; Leonard v. Peacock, 8 Nev. 157; Kennedy

v. Hamer, 19 Cal. 374, 386; People v. Chapin (N.Y.), 42 Hun. 24.

There is nothing that a court of equity could do in the matter that cannot be done by this

court here and now, thereby avoiding unnecessary expense, further delay and repetitious

litigation. The best definition of an adequate remedy we have found is contained in 11 C.J.

112, secs. 55-56.

C.C. Ward, District Attorney, and M.A. Diskin, Attorney-General, for Respondents:

The acknowledgment of service of summons by the defendant in the action sought to be

reviewed, which appears in the record herein, cures any defect in the service of summons

which may have existed prior thereto. Cheney v. Harding, 21 Neb. 65, 31 N. W. 255; Allured

v. Vollier, 107 Mich. 476, 65 N.W. 285; McClellan v. Gaston, 18 Wash. 472, 51 P. 1062;

Woolsey v. Abbett, 65 N.J.L. 253, 48 Atl. 949.

The judgment herein sought to be reviewed having gone to execution and satisfaction, a

review thereof by this court would be a useless ceremony. State of Nevada v. Washoe

County, 14 Nev. 66, 69; Visalia City Water Co. v. Superior Court for Tulare County, 120 Cal.

219, 52 P. 485; Burr v. Sacramento County Supervisors, 96 Cal. 210, 31 P. 38.

The order for the writ and the writ are based upon affidavit and petition of a corporation

not petitioner herein, hence the writ is without foundation. Overseers v. Bishop, 2 How. Pr.

(N.Y.) 195; Holmes v. Cole, 51 Ore. 483, 94 P. 964.

The writ was improperly issued for the reason that it was issued upon an order signed by

two of the justices, acting as such, in chambers, and not by the court. Constitution of Nevada,

art. VI sec. 4; Rev. Laws, 5684; Smith v. City of Oakland, 40 Cal. 481, adopted as the text of

California Jurisprudence, vol. 4, p. 1083.


There is no party petitioner herein. The petition and affidavit herein is entitled “The State

of Nevada, petitioner, on the relation,” etc. Upon presentation of this matter to this court, we

raised the point that the State of Nevada was not a proper party petitioner to this action, on

the grounds that the state has no interest in the matters involved, and cited authorities so

holding. Counsel for petitioner conceded the point, so we submit that the State of Nevada, as

petitioner herein, is eliminated. There was and is no other person named as petitioner. We

submit that a petition without a petitioner, on the relation of any person, is no petition.

Therefore, there is no petition or application before the court.

The affidavit in support of the application for writ does not state facts sufficient to justify

the issuance of the writ, in that there is no allegation that applicant has any beneficial interest

in the matter sought to be reviewed. Ref. Laws, 5685; Hildebrand v. Superior Court, 173 Cal.

86, 159 P. 147; Morse v. Williams, 92 Mich. 250, 52 N. W. 629; Garrison v. County Court,

54 Ore. 269, 101 P. 900; Collins v. Keokuk, 108 Iowa 28, 78 N.W. 799; State ex rel. Allen v.

Napton, Judge, 24 Mont. 450, 62 P. 686.

There is no allegation in the said application that the applicant has no other plain, speedy

and adequate remedy. The record here shows that execution has been duly issued and

returned satisfied. If there be any parties who consider themselves injured by that action, we

submit that their proper remedy is by a suit to set aside the sale. Rev. Laws, 5080;

Stanton-Thompson Co. v. Crane, 24 Nev. 171, at p. 181; State ex rel. Kerr v. District Court,

32 Nev. 189; Bank of Topeka v. Huntson, 35 Kans. 577, 11 P. 369.

OPINION


This is an original proceeding in certiorari to inquire into the jurisdiction of the respondent

court to render the judgment complained of.


The application for the writ alleges that on June 19, 1928, William Royle, as labor

commissioner of Nevada, instituted an action in the Seventh judicial district court of Nevada

in and for Mineral County against Nevada Douglass Gold Mines, Inc., a Nevada corporation,

to recover judgment upon several claims assigned to him for labor alleged to have been

performed; that upon filing of the complaint in said action, summons was issued and placed

in the hands of the sheriff for service, and that he made purported service thereof by

delivering a copy thereof, together with a copy of the complaint, to A. W. Curtis, a director of

said defendant company, on June 25, 1928; that on October 1, 1928, the respondent court

entered judgment in said action in favor of the plaintiff and against the defendant; and that

thereafter execution issued thereon and that the sheriff was proceeding to sell the property of

the defendant. The application states that said company had never appeared in said action by

demurrer or otherwise; it is verified by one Stephenson, who states on oath that he is the

agent of said company and verified the same on its behalf.

The respondent demurred and also moved to quash. We will consider them together.

It is contended that the application for the writ does not state facts sufficient to warrant its

issuance; that it is not entitled in the name of any one interested in the proceeding; that it is

not signed by an attorney who is a member of the bar of this state; and that it does not show

that applicant has no plain, speedy, and adequate remedy by appeal.

1. The application for the writ is designated a petition and is entitled “State of Nevada, on

the Relation of Nevada Douglass Gold Mines, Incorporated, Petitioner, v. The District Court,

etc., Respondent.” The title is not a very appropriate one, since the State of Nevada has no

interest in the matter; but we think that will not justify a dismissal of the proceeding. Section

5684, Rev. Laws, provides the writ of certiorari may be granted “on application,” and section

5685 provides that “the �� #��


application” shall be made on affidavit. The application in this matter, though entitled as

above stated, is in the form of an affidavit, and is in substantial compliance with the

requirements of the statute. We can perceive no merit in the objection made, since the

affidavit states that the affiant is an agent of the company beneficially interested, and against

which the alleged judgment was rendered.

2-4. We think the application states facts sufficient to justify the issuance of the writ. The

applicant is a Nevada corporation. Statutes of 1913, p. 65, names the persons upon whom a

summons must be served. None of the persons named in the statute was served in the action

sought to be reviewed. It is true that service was made upon a person not designated in the

statute, but there is no contention by counsel that service was made on any one designated by

statute. In this situation the judgment is void ab initio. But it is said in this connection that

after the judgment was rendered the company appeared in the action. There is in the record

what purports to be an appearance on November 3, 1928, by one who designates himself as

vice-president and general manager. There is no showing that the individual named was such

officer, nor that he had authority to make such appearance, but, whatever his authority, it is

self-evident that such an appearance could not relate back to date of the rendition of the

so-called judgment so as to vitalize that which never had life.

5. There is nothing in the contention that there is no showing in the application that the

applicant has no right of appeal. It appears that the applicant was not served with summons.

We think this showing enough. We have never understood that one against whom a judgment

has been rendered without his day in court is driven to the necessity of appealing from a void

judgment, thereby giving the court jurisdiction over his person. A defendant must be brought

into court by due process, and until he is so brought in no ��


judgment can be rendered against him necessitating a voluntary appearance to rid himself of

what is a judgment in form only.

It was held in Jones v. Justice Court, 97 Cal. 523, 32 P. 575, in a suit before a justice of the

peace where the defendant had been served with summons and thereafter appeared, that the

judgment rendered therein without notice to the defendant of the date of the trial of the case,

as required by the state, was excess of jurisdiction and void and should be set aside in

certiorari. It was so held, also, in Elder v. Justice Court, 136 Cal. 364, 68 P. 1022.

6. It is said that, pursuant to authority of the opinion of this court in the matter of Nevada

Lincoln M. Co. v. District Court, 43 Nev. 396, 187 P. 1006, we should refuse to order that the

writ issue as prayed. The facts in that case are very dissimilar to those in this case. In the first

place, it appears on the face of the judgment roll in the matter here under consideration that

the judgment is absolutely void. Such was not the fact in the case cited. Furthermore, in that

case over two years had elapsed after the sale before relief was sought, during which time

large sums of money had been spent by the purchaser and a valuable mine developed. There

the company stood by while others gambled on the prospects. Not so in the instant case. This

proceeding was instituted within a few days after the sale under the void judgment.

7. There is no merit in the contention that the application is not signed by a member of the

bar of this state. The statute does not require that such an application be signed by an

attorney.

8. The judgment complained of being void for want of jurisdiction, it is ordered that the

same be and is hereby set aside and held for naught, together with all of the proceedings had

pursuant thereto, including the pretended sale, and that applicant have judgment for its costs

herein.

____________


STATE OF NEVADA Ex Rel. NEVADA DOUGLASS GOLD MINES, Incorporated, v.

THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, In and For

Mineral County, Et. Al.

No. 2855

January 18, 1929. 273 P. 661.

Cyrus A. Hovey, of Los Angeles, Calif., and Green & Lunsford, of Reno, for Petitioner.

C.C. Ward, of Mina, and M.A. Diskin, Attorney-General, for Respondents.

OPINION


The facts in this matter are substantially the same as in the proceeding No. 2856, 273 P.

659, of the same title, this day decided, except that there has been no sale under the judgment

rendered. Upon authority of the opinion in the matter mentioned, it is ordered that the

so-called judgment complained of in this proceeding be and the same is hereby declared null

and void and held for naught. Applicant to have judgment for its costs herein expended.

____________

��51 Nev. 215, 215 (1929) In Re Lovelock Irrigation District��

In Re LOVELOCK IRRIGATION DISTRICT

Appeal of WESTFALL

No. 2861

January 21, 1929. 273 P. 983.

1. Constitutional Law—Statutes—Waters and Water Courses—Irrigation District Act Held

Not Invalid, as “Special Act,” nor Violative of United States Constitution, Fourteen

Amendment. Irrigation district act (Stats. Nev. 1919, c. 64, as amended) held not invalid as a “special act,” within

Const. Nev. art. IV, secs. 20, 21, nor violative of Const. U.S. Amend. 14.

2. Waters and Water Courses—Irrigation District Act Held Not Invalid, as Authorizing Taxes

without Limitation and in Excess of Benefits. Irrigation district act (1919, c. 64), held not valid, as authorizing levying of taxes without limitation

and in excess of benefits conferred, since section 17 thereof provides that assessments and levies shall be

distributed over land within district in proportion to benefits.

3. Waters and Water Courses—Irrigation District Act Held Not Invalid, as Illegally

Authorizing Assessment of One Owner's Property to Cover Delinquent Assessments on

other Property. Irrigation district act (Stats. 1919, c. 64) held not invalid, as illegally authorizing assessing of

property of one landowner to cover a deficiency, which may be incurred by reason of nonpayment of

assessments due on other property because of provision of section 27, as amended by Stats. 1925, c. 127,

sec. 4, authorizing assessment of lands on same pro rata basis as benefits may have been apportioned to

secure funds necessary to replace any deficit for repayment of district obligation caused by tax

delinquencies.

4. Courts—State Supreme Court's Decision on Statutes of Its Own State Is Conclusive.

State supreme court, in passing on statutes of its own state on other than federal questions, is the final

authority.

5. Constitutional Law—What State Can do Directly, Respecting Public Improvements and

Taxation Therefor, it May Delegate to Local Organization. What the state can do directly in the matter of public improvements and levying of taxes therefor, it

may delegate to a local organization.

6. Constitutional Law—If Statute Providing for Public Improvement and Assessment of

Benefits Is Legal, only that Done in Violation of Its Terms Is Void. If statute providing for public improvement and for assessment of cost thereof against property

benefited is legal, everything done in compliance with its terms is legal, and only that which is done in

violation of its terms is void.


7. Waters and Water Courses—Irrigation District Act Held Not Unconstitutional, Because it

Gives Priority to Assessments Therefor Over Prior Mortgages and Other Liens. Irrigation district act (Stats. 1919, c. 64, as amended) held not unconstitutional, because it gives priority

to assessments which may be levied by district to pay its obligations over prior mortgages and other

contractual liens, in view of general rule that it is within legislature's constitutional power to make tax lien

superior to any other security, incumbrance, or lien arising either before or after assessment of tax.

8. Waters and Water Courses—That Contract for Sale of Irrigation District Bonds Provided

that They Might Be Made Payable in New York Held Not to Invalidate Contract. That contract for sale of bonds of irrigation district created under irrigation district act (Stats. 1919, c. 64)

provided that bonds may be made payable in New York, as authorized by section 16, held not to render

contract invalid or unconstitutional.


Constitutional Law—12 C.J. sec. 356, p. 857, n. 93.

Courts—15 C.J. sec. 315, p. 925, n. 46.


Waters—40 Cyc. p. 817, n. 85; p. 822, n. 32.

Appeal from Sixth Judicial District Court, Pershing County; Wm. E. Orr, Special Judge.

Proceeding by the Lovelock Irrigation District for the confirmation of all of its acts and

proceedings respecting the issuance of bonds, contract for the sale of bonds, construction of

improvement, and assessment of benefits. From a judgment for petitioner, V. A. Westfall

appeals. Affirmed.

John A. Jurgenson, for Appellant:

The Nevada irrigation district act is unconstitutional and void and in violation of secs. 20 and

21 of art. 4 of the Nevada constitution. The act is special in that it relates to particular

assessments and taxes only. Its provisions affect individuals and not a class, and imposes

special burdens. Collection and assessment of taxes, and the regulation of election for county

and township officers must be governed by general laws. State of Nevada v. Consolidated

Virginia Mining Company, 16 Nev. 432; State of Nevada v. California Mining Company, 15

Nev. 234. <��/�� @�� %�� $ �� M ��4��=� ��


The Nevada irrigation district act is in conflict with the Fourteenth Amendment to the

Constitution of the United States by authorizing the levy of taxes without limitation and in

excess of benefits conferred. Each tract of land must be assessed in proportion to the actual

enhancement of its value by reason of the improvements, and it is universally conceded that a

statute which does not direct the use of this method is invalid. In addition, no statute can

legally assess the property of one landowner to cover deficiency incurred by reason of the

nonpayment of taxes on other property. Interstate Trust Company v. Montezuma Valley

Irrigation District, 181 P. 123; Nelson v. Board of Commissioners of Davis County, 218 P.

952; Sullivan v. Blakesly, 246 P. 919; In Re Walker River Irrigation District (Nev.), 195 P.

327.

The Nevada irrigation district act is also unconstitutional and void and in conflict with the

Fourteenth Amendment to the Constitution of the United States in that it purports to make the

lien upon the land in the district prior to other mortgages which already exist upon such

property. Such is a deprivation of the contract and property rights of the prior lien holders. 37

Cyc. 1145.

The judgment and decree of the lower court holding that the contract for the construction

of the proposed Oreana dam and control works between the irrigation district and

Jasper-Stacey Company is erroneous and against the law, for the reason that it constitutes an

attempt on the part of the district to sell its bonds in a manner not authorized by law. The

Nevada irrigation district act provides that the bonds must be sold at public sale, after notice

duly given, and to the highest responsible bidder. Roberts v. Taft, 116 Fed. 228;

Guckenberger v. Dexter, 17 Ohio Cir. Ct. 115; State v. Columbia, 12 South Carolina, 370.

The judgment and decree of the lower court declaring the contract for the sale of a portion

of the authorized issue of bonds legal and valid is erroneous and against the law for the

reason that the contract provides that �� 4��/��H��


the bonds may be made payable in the State of New York. The legislature is not competent to

authorize any office to perform any part of the duties without the state. Obviously payment of

the principal and interest on the bonds in the State of New York requires the performance of a

duty by one of the district officials outside of the State of Nevada. City of Los Angeles v.

Teed, 112 Cal. 319, 44 P. 580.

Cooke & Stoddard and H. J. Murrish, for Respondent:

The constitutionality of the irrigation district acts adopted by all of the arid and semiarid

western states have been so repeatedly attacked that courts of last resort now frequently

dispose of the question by saying: “We hold the act constitutional.” In Re Auxiliary Eastern

Canal Irrigation District (Ariz.), 207 P. 615-616; McLean v. Truckee-Carson Irrigation

District (Nev.), 245 P. 287, column 2. The constitutional objections raised by the appellant

here were passed upon and held constitutional by this court in the McLean v. Truckee-Carson

Irrigation District case, supra, and also in the case of In Re Walker River Irrigation District,

44 Nev. 321, 195 P. 327. The leading case on the constitutionality of irrigation district acts is

the case of Fallbrook Irrigation District v. Bradley, 41 L. Ed. 369, decided by the United

States Supreme Court in 1896. This decision has been consistently followed in principle, not

only by the United States Supreme Court, but by the state courts as well. We cite a few to

indicate the unanimous attitude taken by courts generally upon this question: Lundberg v.

Green River Irrigation District (Utah), 119 P. 1041; Board of Directors v. Collin (Neb), 64

N.W. 1086; People v. Cardiff Irrigation District (Cal.), 197 P. 388; Nampa and Meridian

Irrigation District v. Brose (Idaho), 83 P. 499.

In all the courts in which the question has been raised, with the exception of Colorado, it

has been held that a bond issue is a general obligation against all of the lands of the irrigation

district, and that additional taxes �� &�� M�� &��


may be levied to meet a deficit caused by tax delinquencies unless, as in the case of Utah, the

legislature has fixed a limit of an additional fifteen per cent of the amount of the tax

necessary to pay the bonds to meet delinquencies. State v. Columbia Irrigation District

(Wash.), 208 P. 27; Cosman v. Chestnut Valley Irrigation District (Mont.), 40 A. L. R. 1344;

Noble v. Yancy (Ore.), 42 A. L. R. 1178; Rialto Irrigation District v. Stowell (Cal.), 246 Fed.

294-305; Norris v. Montezuma Valley Irrigation District (Colo.), 248 Fed. 369-373;

American Falls Reservoir District v. Thrall (Ida.), 228 P. 236-243, column 2.

The provision of sec. 41 of the state tax law (1923 Stats. 362) that a tax deed shall convey

“absolute title” to the delinquent tax purchaser “free of all encumbrances” is a direct

expression of the legislature that state and county taxes and irrigation district assessments

constitute a prior lien against mortgages or other then existing liens. Carstens & Earles v. City

of Seattle (Wash.), 146 P. 381, 385, 386. That the legislature has the constitutional right to so

provide is admitted in the rule quoted by appellant (37 Cyc. 1145), and is so well established

that we will not burden the court with additional citations upon the question.

The construction contract with Jasper-Stacey Company, dated December 23, 1927,

provides for the payment of the work in bonds, as provided by the act. The board of directors,

by resolution on May 2, 1927, declared its intention to sell all of its authorized issue of bonds,

amounting to $1, 287,000. The bonds were advertised for sale, but no bids were received. The

board also advertised for bids for construction of the dam, but no satisfactory bids were

received. The bonds remaining unsold, the contract with Jasper-Stacey Company was entered

into for the construction of the dam and control works, payable in bonds. The approval of the

contract by the state irrigation district bond commission was given on July 6, 1928. Therefore

the board of directors followed each step and provision in the manner required by the ��


act, and particularly sec. 21 thereof, for the entering into of the contract for the construction

of the proposed dam and control works, such construction to be paid for in bonds in lieu of

cash.

Inasmuch as our state constitution does not inhibit the payment of irrigation district bonds

outside of the state, and the legislature has expressly authorized the payment of bonds at any

point designated in the bonds (sec. 16, Nevada irrigation district act), the right of the district

to so contract cannot, we think, be seriously questioned. The identical point raised by

appellant here was decided by the supreme court of New Mexico in the case of Davy v. Day

et al., 247 P. 842, column 2, p. 843.

OPINION


The Lovelock irrigation district was organized March 1, 1926, pursuant to the Nevada

irrigation district act (Stats. 1919, p. 84, as amended). At a special election held on December

18, 1926, bonds in the sum of $1,287,000 were authorized by a vote of 59 in favor to 1

against. On July 12, 1928, the irrigation district filed in the district court its petition, praying

for the confirmation of its proceedings authorizing the issuance of bonds in the sum

mentioned, for confirmation of its contract for a sale of a portion of its bonds, for

confirmation of its contract for a construction of a dam and control works, for a confirmation

of its acts and proceedings in denying certain petitions for exclusion of land from said district,

for confirmation of the benefits as apportioned by said irrigation district, and for confirmation

of all of its acts and proceedings had and taken in connection with the foregoing matters.

1. It is first contended that the irrigation act is special in its nature and violates sections 20

and 21 of article 4 of our state constitution. This question was decided adversely to the

contention here made, in In Re 3��,��D�� .��!!�/��2 �


Walker River Irrigation District, 44 Nev. 321, 195 P. 327, and on authority of that decision

we hold that the contention is without merit. In Re Sutter-Butte By-Pass Assessment No. 6,

191 Cal. 650, 218 P. 27. Upon authority of the Walker River Case we hold that the contention

that the act is in violation of the Fourteenth Amendment to the Constitution of the United

States is groundless. In the case cited, and in McLean v. Truckee-Carson Irrigation District,

49 Nev. 278, 245 P. 285, various authorities were cited, sustaining the constitutionality of

similar statutes, in addition to which we call attention to Lundberg v. Green River Irr. Dist.

(Utah), 119 P. 1039; In Re Auxiliary Eastern Canal Irr. Dist., 24 Ariz. 163, 207 P. 614; Board

of Directors v. Collin, 46 Neb. 411, 64 N. W. 1086; People v. Cardiff Irr. Dist., 51 Cal. App.

307, 197 P. 388.

Counsel for appellant urges the unconstitutionality of the act in question, upon grounds not

heretofore considered. He says: “The Nevada irrigation district act is in conflict with the

Fourteen Amendment to the Constitution of the United States, by authorizing the levy of

taxes without limitation and in excess of benefits conferred. Each tract of land must be

assessed in proportion to the actual enhancement of its value by reason of the improvements,

and it is universally conceded that a statute which does not direct the use of this method is

invalid. In addition, no statute can legally assess the property of one landowner to cover

deficiency incurred by reason of the nonpayment of taxes on other property”—citing

Interstate Trust Co. v. Montezuma Valley Irrigation District, 66 Colo. 219, 181 P. 123;

Nelson v. Board of Commissioners of Davis County, 62 Utah, 218, 218 P. 952; Sullivan v.

Blakesly, 35 Wyo. 73, 246 P. 919; In Re Walker River Irrigation District, 44 Nev. 321, 195 P.

327. In view of the fact that this is all the counsel says in this connection, we would be

justified in assuming that he has but little faith in the position taken; however, we must

dispose of his contentions.


2. As we understand from the language quoted, counsel raised two points, namely: (1)

That the statute authorizes the levying of taxes without limitation and in excess of benefits

conferred; and (2) that the statute illegally authorizes the assessing of the property of one

landowner to cover a deficiency which may be incurred by reason of the nonpayment of taxes

due on other property. The provision of the act (Stats. 1919, p. 84, c. 64) authorizing the

levying of assessments provides as follows:

“Sec. 17. Whenever the electors shall have authorized an issue of bonds, as hereinbefore

provided, the board of directors shall examine each tract or legal subdivision of land in the

district, and shall determine the benefits which will accrue to each of such tracts or

subdivisions from the construction or purchase of the works proposed for the district; and the

costs of such works shall be apportioned or distributed over such tracts or subdivisions of

land in proportion to such benefits. * * * Whenever thereafter an assessment is made, either

in lieu of bonds, or an annual assessment for raising the interest on bonds, or any portion of

the principal, or the expenses of maintaining the property of the district, or any special

assessment voted by the electors, it shall be spread upon the lands in the same proportion as

the assessments of benefits, and the whole amount of the assessments of benefits shall equal

the amount of bonds or other obligations authorized at the election last above mentioned. * *

*”

Since it is not pointed out by counsel wherein the irrigation law authorizes the levying of

taxes without limitation and in excess of benefits conferred, it can hardly be expected that we

will find it necessary to devote much time to answering this contention. We may observe,

however, that section 17 of the act provides that assessments and levies shall be distributed

over the land within a district in proportion to benefits to be received. This fixes the basis of

taxation and limits it to benefits. Every court in the land which has been called upon to decide

the question upholds such ��


a legislative act. The lower court found that the assessments levied would not exceed the

benefits which would be received. There is no merit in the point made.

3. We come now to the other contention, embraced in the quotation from appellants' brief

— that the statute illegally authorizes the assessing of the property of one landowner to cover

a deficiency which may be incurred by reason of the nonpayment of assessments due on other

property. The section of the law applicable to this situation is section 27, as amended by

Stats. 1925, p. 207, c. 127, sec. 4, which reads:

“* * * Said board may levy a tax upon the lands in the district either upon the same pro

rata basis as benefits may have been apportioned, or otherwise, as the case may be, in order to

secure such funds as may be deemed necessary to replace any deficit that may occur in a fund

created for the repayment of a district obligation by reason of tax delinquencies. * * *”

4. Every other court in the Union which has had this question before it under a similar

statute has taken a contrary view to that taken by the Colorado court, and even the circuit

court of appeals in Norris v. Montezuma Valley Irr. Dist., 248 F. 369, 160 C. C. A. 379, in

construing the Colorado statute, took a view contrary to that taken by the Colorado court. Of

course, the supreme court of Colorado, in passing upon the statutes of its state, on other than

federal questions, is the final authority.

5, 6. The Lovelock irrigation district, pursuant to the irrigation district act, was created for

a public purpose, and it was an exercise of legislative discretion which authorized its creation,

and this act must be held constitutional and valid, unless it is in conflict with some

constitutional provision, state or federal. The levying of taxes for public

improvements—state, municipal, and otherwise—has been encouraged and held legal for so

long a time that the public mind is now thoroughly wedded to the idea. Even as far back as

the time of Henry VIII, Parliament adopted a broad, comprehensive act authorizing the

drainage of swamp land and kindred �� A4��


progressive and constructive public work (St. 23 Henry VIII, c. 5, par. 1 [1531]), and some of

the states have authorized such public works at their own expense and under their direction,

and all such acts, unless clearly in conflict with constitutional inhibition, have been upheld.

What the state can do directly in such matters it may delegate to a local organization. If the

act is constitutional, then all that is done in compliance with its terms is legal, and only that

which is done in violation of its terms is void. As we have pointed out, our attention is not

directed to any section of either the state or federal Constitution of which it is violative.

We do not think it incumbent upon us or proper that we should go into a critical analysis

of the Colorado case to show that it is wrong in principle. There is ample authority to rest our

conclusion upon to the effect that the proceedings had in this matter are legal. We think the

opinion in State ex rel. Clancy et al. v. Columbia Irr. Dist., 121 Wash. 79, 208 P. 27,

conclusively answers the contention made on this appeal. But that court does not stand alone

in its view. The supreme court of Montana, in Cosman v. Chestnut Valley Irr. Dist., 74 Mont.

111, 238 P. 879, 40 A.L.R. 1344, took the same position. See, also, Noble v. Yancey, 116 Or.

356, 241 P. 335, 42 A.L.R. 1178; Rialto Irr. Dist. v. Stowell (C.C.A.), 246 F. 294.

7. The next point urged is that the act is unconstitutional, in that it gives priority to

assessments which may be levied by the district to pay its obligations over prior mortgages

and other contractual liens. There is no merit in this contention. The well-recognized rule is

stated in 27 Ency. Law (2d ed.), p. 741: “It is within the constitutional power of the

legislature to make the tax a lien superior to any of the other security, incumbrance, or lien

arising either before or after the assessment of the tax.” A long list of cases is cited in support

of the text. See, also, 37 Cyc. 1143.

It is next contended that the judgment and decree of the lower court, holding that the

contract between the irrigation district and Jasper-Stacy Company is illegal, �� =��


for the reason that it constitutes an attempt to sell the bonds of the district in a manner not

authorized by law. We think there is no foundation for this contention. Section 21 of the

irrigation district act provides the manner in which the sale may be made. The findings of the

court show that the bonds were sold in compliance with the terms of the act, and the evidence

supports the findings.

8. It is next contended that the judgment and decree appealed from is erroneous, for the

reason that the contract provides that the bonds may be made payable in New Work. There is

nothing to this contention. Section 16 of the irrigation district act provides that the principal

and interest on the bonds shall be payable “at the place designated therein.” This is not in

conflict with any constitutional provision, and the contract, being in accord with the terms of

the statute, is valid.

For the reasons given, it is ordered that the judgment and decree be affirmed.

____________

��51 Nev. 226, 226 (1929) Phillips v. Homestake Mines Co.��

PHILLIPS v. HOMESTAKE CONSOLIDATED

PLACER MINES CO.

No. 2575

January 22, 1929. 273 P. 657.

1. Fraud—If Either Party to Transaction Conceals Material Fact within His Knowledge which

it Is His Duty to Disclose, He Is Guilty of Fraud. If either party to a transaction conceals some fact which is material which is within his own

knowledge, and which it is his duty to disclose, he is guilty of actual fraud.

2. Mines and Minerals—Tenancy in Common—Two or More Persons Owning Undivided

Interest in Mining Ground Are “Tenants in Common,” but, Unless Working it

Together, Are Not “Partners.” Two or more persons owning undivided interests in mining ground are “tenants in common,” but,

unless working it together, are not “partners,” since a mine partnership does not arise from a mere

cotenancy.

3. Mines and Minerals—If Purchaser of Interest in Mining Ground Fails to Avail Himself of

Ordinary Means of Information, Law Gives Him No Redress. Purchaser of interest in mining ground must exercise common prudence, and, if he fails to avail

himself of ordinary means of information, law will give him no redress.

4. Tenancy in Common—On sale of Plaintiff's Interest in Mining Lease to Cotenant,

Nondisclosure of True Physical Condition of Property Was Not Fraud. On sale by plaintiff of its interest in mining lease to owner of the remaining interest, plaintiff's

nondisclosure of true physical condition of property, in that gold had been extracted from leased

premises, was not a fraud on defendant purchaser, since parties, being tenants in common not engaged in

working property, did not stand in relation of mutual trust and confidence towards each other.


Fraud—26 C.J. Sec. 13, p. 1071, n. 12.

Mines and Minerals—40 C.J. sec. 549, p. 964, n. 4; sec. 796, p. 1144, n. 81.

Tenancy in Common—38 Cyc. p. 72, n. 91.


Action by R.L. Phillips against the Homestake Consolidated Placer Mines Company. From

a judgment entered upon an order sustaining plaintiff's demurrer to the defendant's amended

answer, defendant appeals. Affirmed.


Hoyt, Norcross, Thatcher & Woodburn, for Appellant:

The rule is established by weight of authority that want or failure of consideration, totally

or partially, is a defense either in toto or pro tanto, as the case may be, to an action on a note

given for the purchase price of property, where the action is between the original parties, or

by a subsequent holder charged with knowledge or notice of equities of the buyer. American

National Bank v. Watkins, 119 Fed. 545; Williams v. Neeley, 69 L.R.A. 232; Wheat v.

Dotson, 12 Ark. 699; City Deposit Bank v. Green, 115 N. W. (Iowa) 893; Thompson v.

Wheeler, 29 Kans. 476; Staab v. Ortiz, 1 P. 857; Sawyer v. James, 43 Barb. 622; Hagan v.

Bigler, 49 P. 1011 (Okla.); Davis v. Wait, 8 P. 356 (Ore.).

Failure of consideration may be used as a defense to mitigate the amount of the recovery in

an action on a note given for property for which some benefit admittedly has been received.

Hansford v. Mills, 9 Port. (Ala.) 509; Beall v. Pearre, 12 Md. 550; Harrington v. Stratton, 22

Pick. 510.

“Wherever a defendant can maintain a cross action for damages on account of a defect in

personal property purchased by him * * * he may in defense to an action upon his note, made

in consequence of such purchase or contract, claim a deduction corresponding with the injury

he has sustained.” Peden v. Moore, 21 Am. Dec. 649. See, also, Wadsworth v. Smith, 23 Me.

562; Hathorn v. Wheelwright, 59 Alt. 517, 2 Ann. Cas. 428; Brewer v. Harris, 41 Am. Dec.

587; Byrd v. Campbell etc. Co., 20 S. E. 253.

The same rule applies, also, even though the amount is unliquidated. Pike v. Taylor, 49

N.H. 124; Butler v. Northumberland, 59 N.H. 33; Foulks v. Rhodes, 12 Nev. 225.

In Massachusetts it is well settled that where there is a partial want of consideration, as in

case of a note given on two distinct considerations, one of them invalid, it is no objection to

the reduction of the damages that the amount to be deducted is unliquidated.


Paris v. Stone, 25 Am. Dec. 378; Harrington v. Stratton, 22 Pick. 510; Schaffner v. Kober, 28

N.E. 871.

We submit that the defense is well pleaded. Benton v. Benton, 27 L.R.A. (N.S.) 300, 97 P.

378; Zebold v. Hurst, 166 P. 99.

Brown & Belford, and Campbell & Robins, for Respondent:

Where there is a defense of either want or failure of consideration, the facts showing such

want or failure of consideration should be affirmatively pleaded. 8 C.J. 916.

There is not here even a general averment which, in some states, might be held sufficient

for a defense of this character, although the weight of authority is that a general averment of

want or failure of consideration is insufficient because merely a conclusion of law. The facts

must be stated. Gushee v. Leavitt, 5 Cal. 160; Wells v. Col. Nat. Life Assur. Co. (Colo.), 113

P. 524; County v. Hobbs (Ia.), 33 N. W. 368; and the cases cited in 8 C. J. 917, n. 13.

So we have, in the case at bar, a pleading which states what the consideration of the note

was, namely, the transfer to the defendant of a one-third interest in the lease, no allegation

showing that the defendant bargained for anything else but that, no warranty or guarantee of

the value of the leased premises, and no allegation showing that the defendant did not get all

that it bargained for.

Where fraud is relied upon, either for a cause of action or a defense, the facts stating the

essential elements of fraud must be specifically alleged. 27 C.J. 30.

The essential elements of fraud which will constitute a defense to a cause of action upon a

contract, or which will constitute an affirmative cause of action, are:

(1) A material misrepresentation of a past or existing fact, or something equivalent thereto.

This misrepresentation may be by positive misstatement or by an act implying the existence

or nonexistence of a fact. 26 C.J. 1065, 1067, 1069. Mere silence is not a ��


misrepresentation, unless there is a duty to speak. 26 C.J. 1069, 1071.

(2) The representation made must be false.

(3) It must be material; that is, must be related to the material of the transaction involved.

False representation or a wrongful concealment must be the efficient, inducing, approximate

cause, or the determining ground of action. 26 C.J. 1102.

(4) The misrepresentation must be made either with a knowledge of its falsity or in

culpable ignorance of its truth.

(5) There must be an intent to deceive or defraud. 26 C.J. 1115.

(6) The party to whom the misrepresentation is made must believe it to be true. If he knew

that the contrary was true he was neither deceived nor defrauded. 26 C.J. 1137.

None of these elements of fraud are alleged in the affirmative defense and counterclaim.

So far as any misrepresentation being made upon the part of plaintiff is concerned, all we

have is an allegation of silence. The parties were tenants in common, and defendant had full

right and, presumably, full opportunity to investigate for himself. No reason is shown why

defendant could not have discovered the facts had they been deemed material. Under such

circumstances silence or concealment is not fraud. 26 C.J. 1142.

Ordinarily, when one cotenant purchases from another they deal like ordinary vendor and

vendee—at arm's length. The rule of caveat emptor applies. Matthews v. Bliss, 22 Pick. 48.

And as to the general rule that tenants in common, in dealing with their separate interests,

hold no relation of confidence with their cotenants. See Blissell v. Foss, 114 U.S. 252; Harris

v. Lloyd (Mont.), 28 P. 736; Goldberg v. Getz (Cal. Dist. Court App.), 163 P. 221.

To entitle a cotenant to an accounting there must be a showing in the pleading that one

cotenant has received something, some benefit out of the common property in which the other

cotenant is entitled to share. There is �� &��


no allegation here from which such a situation can be even inferred, much less any positive

allegation which the rules of pleading require. Moreover, before a cotenant is entitled to sue

his fellow tenant for an accounting there must be a reasonable demand made therefor. 38 Cyc.

77; Ela v. Ela, 70 N. H. 163; Wetzstein v. Boston & M. Consol. Co. (Mont.), 72 P. 685;

Ayotte v. Nadeau (Mont.), 81 P. 145. In the case at bar there is no allegation of a demand for

an accounting, hence, for this reason alone, if for no other, no statement of a cause of action

for an accounting.

The alleged counterclaim is not pleadable as a counterclaim in this action. Unless the

counterclaim can be said to be based on fraud in procuring the execution and delivery of the

notes, the cause of action does not arise out of the transaction set forth in the complaint as the

foundation of plaintiff's claim. It appears from the affirmative matter alleged that the

transaction involved was the purchase by defendants of plaintiff's interest in the lease, and the

giving of the notes for said purchase. Nor is the alleged counterclaim a cause of action arising

on contract and existing at the commencement of the action.

OPINION

By the Court, Sanders, J.:

This appeal was taken from a judgment entered upon an order sustaining the plaintiff's

demurrer to the defendant's amended answer. Therefore a question of pleading only is

involved.

The action was begun in 1921 on four promissory notes, each dated on July 24, 1920, and

each for the sum of $500, payable to the plaintiff and signed by the defendant. The complaint

avers four separate causes of action in short form of a complaint on each note. The amended

answer admits the execution and delivery of the notes, and alleges as follows:

“As a further defense to the first, second, third and �� '�� :��4��2�� 9�� 5�� +� ��4��/��"�� L��2�� +��,��,�� %��9��$�� A 11B��9�� "�� ,�� $�� "�� NNN��NNN��0�� I�� "�� !�� 1�� '�� &�� I�� "�� I�� I�� A21�111B��"�� "�� I�� "��


fourth causes of action set forth in said plaintiff's complaint, and to each of them, and by way

of counterclaim, the defendant alleges that ever since on or about the 8th day of September,

1913, the defendant and its predecessors in interest, have been and now are the owners in

possession and entitled to the possession of the Homestake placer mining claim, situate in the

Battle Mountain mining district, county of Lander, State of Nevada; that on or about the first

day of October, 1913, the predecessors in interest of the defendant leased and demised to the

plaintiff and one L. R. Ray and one A. H. Crampton a lease on the southerly two hundred

(200) feet of said Homestake placer mining claim; that thereupon said plaintiff and said Ray

and said Crampton entered in and upon said leased and demised premises and worked, mined

and extracted therefrom placer gravel containing placer gold; that thereafter and on or about

the ___ day of ___, 1915, the defendant and certain of its predecessors in interest became

owners of the two-thirds interest in said lease; that on or about the 24th day of July, 1920, the

defendant gave the promissory notes, set forth and contained in the plaintiff's complaint, for

the purpose of acquiring and in payment of a one-third interest in said lease held by said

plaintiff; that during the period of said lease and prior to the purchase of the one-third interest

of the plaintiff, and after the defendant and its immediate predecessors in interest had become

the owner of the two-thirds interest in said lease, large amounts of placer gold were extracted

from said leased premises in excess of the sum of thirty thousand (30,000) dollars; that said

gold was extracted from said premises without the knowledge or consent of the defendant;

that no accounting was ever made to the defendant for their two-thirds interest therein by the

plaintiff; that plaintiff well knew and was advised of the fact that said gold had been extracted

from said leased premises and was so advised at the time of the execution of the promissory

notes aforesaid, and that being so advised �� A21�111B�� "��


said plaintiff failed and neglected to inform the defendant thereof and said plaintiff willfully

and knowingly concealed from the defendant the knowledge of the fact that said large

amounts of placer gold in excess of the sum of thirty thousand (30,000) dollars had been so

extracted from said demised premises; that at the time of the execution of the promissory

notes mentioned in said complaint, all pay ore and gravel of commercial value had been

extracted from said leased premises all of which was well known to the plaintiff and which

said plaintiff failed and neglected to apprise the defendant and which said facts said plaintiff

concealed from the defendant.

“Wherefore, the defendant demands an accounting be had between the plaintiff and the

defendant and that the plaintiff be required to pay the defendant and account to the defendant

for the value of all placer gold so extracted from said premises; that plaintiff take nothing by

said complaint, that said notes be canceled and held for nought; that defendant have judgment

for its costs herein incurred.”

To this pleading the plaintiff demurred upon the grounds (1) that it did not state facts

sufficient to constitute a defense; (2) that the counterclaim did not state facts sufficient to

constitute a cause of action; and (3) because the cause of action stated was not pleadable as a

counterclaim to the action. The demurrer was sustained upon the grounds, first, that the

pleading did not state facts sufficient to constitute a defense; second, that the counterclaim

did not state facts sufficient to constitute a cause of action.

Aside from serious objections which might otherwise be urged against the pleading in

question, we shall treat it as a counterclaim, for the reason that the pleader designates it as a

defense by way of counterclaim. The cause of action attempted to be stated in favor of the

defendant and against the plaintiff is for the cancellation of the notes set out in the plaintiff's

complaint, on the ground of nondisclosure. The gravamen of the defendant's cause of action is

the concealment by the �� '��


plaintiff of the fact, within his own knowledge, that all ore and gravel of commercial value

had been extracted from the leased premises at the time of the defendant's purchase from the

plaintiff of his interest in the lease. The question presented for decision is whether, under the

circumstances, the plaintiff's nondisclosure of the true physical condition of the property

amounted to a fraud upon the defendant.

1. The general doctrine, with respect to concealment as a form of actual fraud, and as

distinguished from those analogous violations of fiduciary duty which do not constitute actual

fraud, but may be included within the term “constructive fraud,” is stated by Pomeroy as

follows: “If either party to a transaction conceals some fact which is material, which is within

his own knowledge, and which it is his duty to disclose, he is guilty of actual fraud.” 2

Pomeroy's Equity Jurisprudence (4th ed.), sec. 901.

In the extended discussion of the subject, the author states “that it has never been

contended, in our system of jurisprudence, that a vendor in a contract of sale is bound to

disclose all facts which, if known by the buyer, would prevent or tend to prevent him from

making the purchase.”

The same subject is discussed in Story's Equity, Jurisprudence (14th ed.), secs. 292, 294,

300, and 303, and elsewhere in the same chapter. The general rule of equity, as laid down in

both of the texts referred to, is that a failure to disclose amounts to an undue concealment,

and, therefore, to a fraud, where there is a nondisclosure of those facts and circumstances

which one party is under some legal or equitable obligation to communicate to the other.

Pomeroy, in section 904, states that “in ordinary contracts of sale, where no previous

fiduciary relation exists, and where no confidence, expressed or implied, growing out of or

connected with the very transaction itself, is reposed on the vendor, and the parties are

dealing with each other at arm's length, and the purchaser is presumed to have as many

reasonable opportunities for ascertaining all the facts as any other �� "� �� "�� #


person in his place would have had, then the general doctrine already stated applies; no duty

to disclose material facts known to himself rests upon the vendor; his failure to disclose is not

a fraudulent concealment.” Applying this doctrine to the pleading in question, we are of

opinion that the plaintiff was under no legal or equitable obligation to communicate the fact

that the leased premises had been worked (mined out) during the cotenancy and at the time of

the execution of the notes given in payment of plaintiff's interest in the common property.

2. Counsel for the defendant intimate in argument that the plaintiff and the defendant were

partners in the lease, and, under the well-recognized exception to the general rule, it became

and was the duty of the plaintiff to make a full disclosure of all important information as to

value. We do not understand that the relation of plaintiff and the defendant was that of

partners. They were tenants in common, but not partners. Two or more persons owning

undivided interests in mining ground are tenants in common, but, unless working it together,

are not partners. Morrison's Mining Rights (14th ed.), 415. A mining partnership does not

arise from mere cotenancy. 3 Lindley on Mines (3d ed.), 797. The parties being tenants in

common, not engaged in working the common property, they did not stand in such a relation

of mutual trust and confidence towards each other, in respect of the sale of plaintiff's interest,

that each was bound, in his dealings with the other, to communicate all the information of

facts within his knowledge, which affected the price or value.

3, 4. The rule of law, as to concealment of defects in the property sold, is laid down by Sir

Edward Sugden (1 Sugden's Vendors and Purchasers [1st Amr. Ed. 1]): “Even if the

purchaser was, at the time of the contract, ignorant of the defects, and the vendor was

acquainted with them, and did not disclose them to the purchaser, yet, if they were patent, and

could have been discovered by a vigilant man, no relief will be granted against the vendor.”


The rule stated is peculiarly applicable to a purchaser of mining ground or an interest

therein, which is always of a doubtful or speculative character. The defendant had the same

sources of information open to him as the plaintiff in respect to the physical condition of the

property, it cannot, therefore, complain. A purchaser of such property must exercise common

prudence, and, if he fails to avail himself of the ordinary means of information, the law gives

him no redress. Andrus v. St. Louis Smelting & Refining Co., 130 U.S. 643, 9 S. Ct. 645, 32

L. Ed. 1054. No fiduciary relation existed between the parties, and no special confidence was

reposed in the plaintiff by the defendant. They were independent of each other in the matter

of purchase and sale of plaintiff's interest, and dealt with each other as with strangers as to

their respective interests in the common property. Bissell v. Foss, 114 U.S. 252, 5 S. Ct. 851,

29 L. Ed. 126. Consequently no duty to disclose rested upon plaintiff, and his failure to do so

was not a fraud upon the defendant. The demurrer to the answer was properly sustained.

Therefore, the judgment is affirmed.

____________

��51 Nev. 236, 236 (1929) O'Neill v. Vasiliou��

O'NEILL v. VASILIOU

No. 2814

February 5, 1929. 274 P. 1.

1. Exceptions, Bill of—Extension of Time for Serving and Filing Bill of Exceptions Without

Notice to Adverse Party's Counsel Held Invalid. Order extending time in which to serve and file bill of exceptions without notice of motion therefor in

writing to counsel for adverse party, as required by district court rules, rule 36, Rev. Laws, sec. 4942, is

invalid.



Appeal from Ninth Judicial District Court, White Pine County; H. W. Edwards, Judge.

Action by Thomas H. O'Neill, doing business as the Ely Garage, against Nick Vasiliou.

Judgment for plaintiff, and from orders striking his bill of exceptions, overruling motion for

new trial, and denying relief from neglect and inadvertence in failing to serve plaintiff's

attorney with copies of orders extending time in which to file bill of exceptions, defendant

appeals. Plaintiff's motion to strike bill of exceptions sustained, order denying new trial

dismissed, and judgment affirmed.

W.E. Billings, for Appellant:

The court should have granted the defendant's motion for relief under section 5084 of the

Revised Laws of Nevada, 1912. Sherman v. Southern Pacific Co., 31 Nev. 285; Stonesifer v.

Kilburn, 94 Cal. 42, 29 P. 332; Scott v. Glenn, 97 Cal. 513, 32 P. 573; Cole v. Wilcox, 99

Cal. 549, 34 P. 114; Banta v. Siller, 121 Cal. 414, 53 P. 935; Bailey v. Krutzmann, 141 Cal.

520, 75 P. 104; Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911; Morgan v. Oregon S. L. R.

R. Co., 27 Utah, 92, 74 P. 523; Hoehman v. New York Dry Goods Co., 8 Idaho, 66, 67 P.

796. We deem the Nevada case of Sherman v. Southern Pacific Company, supra, to be

conclusive upon this point.

No more emphasis can be placed upon the provisions of rules of court than can be placed

upon express �� G,�� #�5��5�� L��$��A$��B�� 02�>�


statutory regulations. “Rules of court are but a means to facilitate justice and should not be

permitted to obstruct it.” Baxter v. Boston etc. Oil Co. (Cal.), 253 P. 185, 186.

C. A. Eddy, for Respondent:

Court rules after adoption have same force and effect as statutes. Haley v. Eureka Bank, 20

Nev. 410, 22 P. 1098.

To give the court jurisdiction to extend time in which to file and serve papers when the

motion is made on ex parte application, notice of such order must be immediately given to the

opposing attorney as required by rule 36 of the district court. Portland Cattle Loan Co. v.

Wheeler & Stoddard, 50 Nev. 205, 255 P. 999. Even had the court authority to make the first

extension, certainly, as appellant had not given respondent notice of the first extension, the

district judge could not grant another ex parte extension without notice of the first extension

having been given to respondent. See, also, Beco v. Tonopah Ext. M. Co., 37 Nev. 199, 141

P. 453.

The case of Sherman v. Southern Pacific Co., 31 Nev. 285, cited by appellant in support of

his contention, was decided in April, 1909, and at a time before rule 36 had been adopted as it

now reads. When rule 36 was so adopted and became a rule of procedure on April 1, 1912, all

statutes and decisions previously passed or decided and contrary thereto died and became

obsolete and of no force or effect; so section 5084 does not apply to the case now before this

court. The Portland Cattle Loan case above cited was not decided until May 4, 1927. Also, I

know of no court rule in California to be mentioned in the Stonesifer v. Kilborn case, and

have not been able to find any similar rule in the California practice.

As the district court was without authority to make the orders extending time, or either of

them, it had jurisdiction to set aside and vacate an order which was void ab initio.

Even if said rule did not exist, appellant would not ��


be in a position to complain of the court overruling his motion to be relieved from his neglect

unless the district court had abused its discretion, and a long and undisputed line of

authorities so hold.

OPINION


The transcript of the record herein is entitled as follows:

“Defendant's bill of exceptions to be used on appeal from the order of the above-entitled

court striking his bill of exceptions to be used on his appeal from the judgment and from the

order of said court overruling his motion for a new trial and also from the order of said court

denying defendant's relief from his excusable neglect and inadvertence in failing to serve the

attorney for the said plaintiff with copies of the orders of the said court extending defendant's

time to file his said bill of exceptions.”

Upon the service and filing of the bill of exceptions in this court, counsel for the plaintiff

filed a motion to strike the entire bill of exceptions, accompanied by the affidavit of plaintiff's

attorney in support of the motion. In view of the confused condition of the record, no

intelligent disposition can be made of the motion without giving a statment of material facts.

We shall refer to the parties as “plaintiff” and “defendant.” Judgment was entered in favor

of the plaintiff and against the defendant upon the verdict of a jury on July 25, 1927, for the

sum of $696.13, with interest. On September 3, 1927, the defendant's motion for new trial

was denied. On September 22, 1927, upon the ex parte application of counsel for the

defendant, the court made an order extending time for the preparation, service, and filing of

the defendant's proposed bill of exceptions. On October 3, 1927, upon the ex parte

application of defendant's counsel, an order was entered granting the defendant to and

including the 12th day ��L�� ?��


of October, 1927, in which to serve and file his bill of exceptions. On October 13, 1927, the

bill of exceptions was filed in the case. On said 13th day of October, 1927, the plaintiff filed

and served upon counsel for the defendant notice of its motion to strike from the files the

defendant's bill of exceptions and orders theretofore made extending time beyond that fixed

by statute in which to serve and file a bill of exceptions. Said motion to strike came on for

hearing on October 27, 1927, based upon the records and files in cause and the affidavits of

the attorney for the plaintiff. The motion to strike was based upon the ground that the

defendant failed to give written notice of the several orders extending time, as required by the

provisions contained in rule 36 of district court rules, section 4942, Rev. Laws. In opposition

to the motion, counsel for the defendant filed a counter affidavit, and asked permission of the

court to be relieved from his failure to comply with rule 36 of the district court in giving

written notice of the orders extending time under section 5084 of the Revised Laws of

Nevada, 1912. The court thereupon granted defendant until the 1st day of November, 1927, in

which to make his showing under said section. On the 29th day of October, 1927, the

defendant served upon plaintiff's attorney a copy of notice of motion to be relieved from his

excusable neglect in not giving the written notice required by said rule 36, which notice of

motion was supported by the affidavit of counsel for the defendant. The two motions seem to

have been argued together. The court took the motions under advisement until the 4th day of

November, 1927, on which date the court made an order refusing to grant the defendant's

motion for relief under section 5084 of the Revised Laws, and thereupon made an order

striking from the files the defendant's bill of exceptions to be used by the defendant upon his

perfected appeal from the judgment and from an order of the court denying and overruling his

motion for a new trial, to which rulings the defendant duly excepted.

On November 1, 1927, the defendant gave notice of �� '��


appeal from the judgment and from the order overruling the defendant's motion for a new

trial. On January 3, 1928, the defendant gave notice of appeal from the order striking

defendant's bill of exceptions and also from the order denying and overruling the defendant's

motion for relief from his excusable neglect and inadvertence in failing to serve the attorney

for the plaintiff with copies of the orders of the court extending defendant's time to file his

bill of exceptions.

It is our understanding that there is but one question presented for determination, and that

is, Did the court below err in striking from the record in the case the defendant's proposed bill

of exceptions? The answer to the question involves the construction or interpretation of rule

36 of district court rules, as applied to orders extending time beyond that allowed by statute in

which to serve and file a bill of exceptions. Rule 36 reads as follows:

“No order, made on ex parte application and in the absence of the opposing party,

provided he has appeared, granting or extending the time to file any paper or do any act, shall

be valid for any purpose, in case of objection, unless written notice thereof is promptly given

to such opposing party. Such notice shall be given as other notices are given, or may be given

by registered mail sent to the last known address of the attorney for such party, or, if he has

no attorney, to such party himself. If the address of such attorney or party be not known then

the notice may be addressed to such attorney or party in care of the clerk. (As amended,

October 25, 1911.)”

It will be observed that the power and authority of the trial court to enlarge the time

prescribed by statute in which to serve and file a bill of exceptions was not questioned either

in this court or in the court below. Counsel for the plaintiff, however, takes the position that

under rule 36 the orders granting or extending time to file defendant's proposed bill of

exceptions were not valid for any purpose without written notice thereof �� &��27�� !�! ��,��+��

D �5��< ��6�� $��


to the opposing party as required by district court rule 36, section 4942, Rev. Laws.

In Beco v. Tonopah Extension Mining Co., 37 Nev. 199, 141 P. 453, followed in Portland

Cattle Loan Co. v. Wheeler & Stoddard, 50 Nev. 205, 255 P. 999, it was held that an ex parte

order, extending the time within which the mover for a new trial shall serve on the adverse

party a memorandum of exceptions and errors, though properly granted, is without effect until

notice thereof has been given the adverse party, as required by district court rule 36. Upon

these authorities we conclude that the orders extending the defendant's time in which to serve

and file his bill of exceptions were invalid, and therefore the plaintiff's motion to strike the

defendant's bill of exceptions must be sustained.

If we assume that district courts may, upon good cause shown, relieve a party from default

in not giving written notice of an order extending time, as required by district court rule 36,

we are of the opinion that, upon the showing made in this case, the court did not abuse its

discretion in refusing to relieve the defendant from his default.

With the bill of exceptions out of the case, the defendant's appeal from the order denying

and overruling his motion for a new trial is dismissed, and the judgment appealed from is

affirmed.

____________

��51 Nev. 242, 242 (1929) Hill Et Ux. v. Du Pratt��

HILL Et Ux. v. DU PRATT

No. 2805

February 5, 1929. 274 P. 2.

1. Husband and Wife—Money Borrowed Belonging to Community or Property Purchased

Could Not Be Held Transmuted into Wife's Separate Property without Convincing

Proof. Where money borrowed from defendant belonged to community, it could not be held that such money

or property purchased with it was transmuted into separate property of wife without convincing proof.

2. Husband and Wife—Evidence Not Showing Husband's Gift of Purchase Money to Wife

and Mere Assertion that House and Deed Were Hers Was Insufficient to Show Gift

Making House Wife's Separate Property. In suit to foreclose mortage deed executed by married woman claiming land as gift from husband,

evidence not showing gift of purchase money used in purchasing property, and that husband made gift

merely by saying house was wife's and passing deed to her, held insufficient to show gift so as to make

property separate property of wife.

3. Husband and Wife—Evidence that Money Borrowed by Husband Was Deposited in Wife's

Name to Purchase House Did Not Show Gift of Purchase Money to Wife. In action to foreclose mortgage deed executed by wife claiming land as gift from husband, evidence

that husband deposited such money with telegraph company in name of wife for transmission in purchase

of property did not of itself show intent to make gift of purchase money, as against presumption that

money became part of community, especially where other evidence disproved intent to make gift of such

money and showed no intention of making gift of realty at time.

4. Frauds, Statute of—Evidence of Husband's Gift of Realty to Wife Showed Attempted

Illegal Transfer by Parol. Evidence that husband intended to give realty to wife, and after receiving deed to property stated he

passed deed to wife and said house was hers, disclosed attempt to transfer real property to wife by parol,

in violation of Rev. Laws, sec. 1069.

5. Husband and Wife—Title to Property Vested in Community Could Not Be Divested by

Husband's Passing Deed to Wife with Intent to Make Gift of Realty. Where husband passed deed to property to wife at time when property had already passed into

community by delivery of deed to depository named by vendor in offer of sale and accepted by husband,

intention of husband to make gift of realty to wife when passing deed to wife could not divest community

of title.


Frauds, Statute of—27 C.J. sec. 479, p. 385, n. 25.

Husband and Wife—30 C.J. sec. 301, p. 704, n. 74; p. 705, n. 80; 31 C.J. sec. 1147, p. 57, n. 5; sec. 1191, p.

101, n. 18.


Appeal from Fifth Judicial District Court, Nye County; L.O. Hawkins, Judge.

Action by James H. Hill and wife against John Du Pratt and others. Judgment for

plaintiffs, and defendant named appeals. Reversed, and cause remanded, with instructions

to enter judgment for defendant named.

Wm. Forman, Wm. Forman, Jr., and Ryland G. Taylor, for Appellant:

Under the laws of this state it has been settled by statute and decision law that the husband

has the entire disposition of community property. The presumption is that all property

acquired after marriage by either husband or wife belongs to the community, and the burden

is upon the party maintaining a different contention to show otherwise. See Jones v. Edwards,

49 Nev. 299; Laws v. Ross, 44 Nev. 405; Barrett v. Franke, 46 Nev. 171; Milsch v.

Hillhouse, 48 Nev. 167; Malmstrom v. People's Ditch Company, 23 Nev. 260. In Jones v.

Edwards, supra, this court held that a loan obtained after marriage by the husband is a loan to

the community. The property was, therefore, acquired with community funds. In Laws v.

Ross, supra, this court has held that property or money once a part of the community will be

presumed to remain such until shown by clear, certain and convincing proof to have been

transmuted into separate property. We contend on behalf of appellant that the evidence

furnished by plaintiff was neither clear, certain nor convincing upon this point. A similar case

arose in the State of Washington in the case of Abbott v. Weatherly. Another case bearing

upon this point is In Re Deschamps' Estate, 137 P. 1009. The supreme court of Washington,

in the case of In Re Parker's Estate, 196 P. 632, has held that a husband cannot make a gift of

real property to his wife by means of a deed made direct by the third party to the wife where

the property is purchased with community funds, and even where the deed is delivered

directly by the third party to the wife.


From the holdings made by this court in the cases of Barrett v. Franke and Milsch v.

Hillhouse, above cited, it is apparent it had in mind the very rule laid down by the

Washington court in the case of In Re Parker's Estate. Especially should the doctrine

announced in these cases be applied in a case where real property is involved, because the

statutes of this state prohibit its transfer by parol. Further, from the testimony it nowhere

appears that Monahan had any intention of making a gift of the property to his wife at the

time he had the deed made out in her name. It is the contention of appellant here that the title

to the property, having once vested in the community (and there can be no doubt but that it

had), then no gift could be made by J. E. Monahan to his wife without a written conveyance.

Rev. Laws of Nevada, 1912, sec. 1069; Carpenter v. Brackett, 107 P. 359; Union Savings and

Trust Company v. Manney, 172 P. 251.

Statute of frauds may be proven under general denial. Dixon v. Pruett, 42 Nev. 345. It

appears, therefore, that, under the pleadings, fraud as a defense to the so-alleged gift of the

husband to the wife can be raised by the defendant. The plaintiffs, however, by the evidence

introduced in their behalf, bring out the facts by which such fraud is shown, and by so doing

have failed to make a case entitling them to the relief prayed for or any other relief. Under the

civil law rule, from which springs the law of community property of Nevada, dealings

between husband and wife were not contemplated. But gradually, by statute and by the

decisions of courts, there has been recognized certain dealings between husband and wife.

However, the courts in some states have placed a limitation upon that privilege. That

limitation is that, in the case of a gift or a voluntary conveyance made by one spouse to the

other, the grantor must be free from debt at the time of such conveyance. Lanigan v. Miles,

172 P. 894; Union Trust Company v. Manney, 172 P. 251; Fisher v. Marsh, 125 P. 951. It

would further appear, then, that the purported gift from Monahan to Mrs. Monahan was� �� O��


ineffective also for the reason that the evidence showed that Monahan was insolvent at the

time of the purported gift—therefore such gift was absolutely void. There are authorities

holding, in effect, that a voluntary conveyance, as per se, was conclusively fraudulent as to

existing creditors, irrespective of intention or financial condition. Notes, 119 Am. St. Rep.

556, 27 C.J. 247; 27 C.J. 645; Davis v. Young, 85 S.W. 90. The great majority of courts,

however, take a less extreme view and hold that it is but prima facie presumably fraudulent as

against existing creditors, and that the burden is on those who seek to maintain it as a valid

transfer to prove that the grantor has other property or means sufficient to pay his debts and

discharge his obligations. Note, 119 Am. St. Rep. 556; 12 R.C.L., sec. 108, p. 593; note, 56

L.R.A. 825, and cases cited therein. The above is also the common law rule. Minneapolis

Stockyards Co. v. Halonen, 57 N. W. 1135. Almost all the authorities hold, with very few

exceptions, that one who receives security for an antecedent debt is not in the position of a

bona fide purchaser for value, but stands in the same position as his grantor. Wood v.

Robison, 22 N.Y. 564; Foster v. Winstanley, 102 P. 574; Perkins v. McCullough, 49 P. 861;

Miller v. Verney, 22 S. W. 64; Victoria Paper Mills v. New York & Penn. Co., 58 N.Y.S.

1070. There is not a scintilla of evidence that Monahan ever told the Hills, or that the Hills

prior to the beginning of this action ever thought, that the property was other than community

property. In such case, the Hills purchased with knowledge of all of the facts, and therefore

stood in no better position than their grantor. See the cases of New England Loan & Trust Co.

v. Avery, 41 S. W. 673; Milholland v. Tiffany, 2 Atl. 831; Thompson v. Fuwr, 57 Miss. 478.

We believe the lower court erred in holding that the statute governing the conveyance of

homesteads did not apply to separate property. National Bank of Ely v. Meyers, 39 Nev. 235.

The statute provides that “no deed of conveyance, or mortgage, of a homestead as �� P�P�P�� P�P�P�� #


now defined by law * * * shall be valid for any purpose whatever * * * unless both the

husband and wife execute and acknowledge the same.”

Unsworn statements of a third party are, as a general rule, never admissible against the

defendant where he was not personally present at the time the conversation took place. It is

true that statements or admissions of one's grantor may be admissible where a question of title

is involved. However, this rule is qualified to the extent that only such declarations and

admissions are admissible as were made while the grantor owned the property involved.

Jones' Commentaries on Evidence, vol. 2, p. 1673. Practically all the conversations which the

court admitted in the lower court were had previous to any acquisition by the Monahans of

the title to the property involved. The admission into evidence of these statements and

declarations of the Monahans was, therefore, error.

Cooke, Stoddard & Hatton, for Respondents:

The elements necessary to the making of a gift by delivery to a third person (in this case

the Western Union Telegraph Company) for the benefit of the donee, are set forth in 28 C.J.

p. 639, sec. 30. Among the authorities cited in support of the text are the following: Boyle v.

Dinsdale, 45 Utah, 112, 143 P. 136, Ann. Cas. 1917e 363; Goelz v. Peoples Sav. Bank, 31

Ind. A. 67, 67 N.E. 232; Barnhouse v. Dewey, 83 Kan. 12, 109 P. 1081, 29 L.R.A. (N.S.)

166; and additional cases cited in note 42, 28 C.J. 639. The Western Union Company became

the agent or trustee for the use of Mrs. Monahan, the donee. 28 C.J. 640, sec. 32. The delivery

of a letter with a check to the United States post office has been held to be delivery to the

donee's agent within the rule. 28 C.J. 641, n. 54a. In the case of Gardner v. Merritt, 32 Md.

78, 3 Am. Rep. 115, it was held that the declaration of an intention to give, followed by

delivery of the subject matter of the intended gift to a bailee, for the benefit of the donee,

constitutes a perfect gift. See, also, Minor v. Rodgers, 40 Conn.


512, 16 Am. Rep. 69; Martin v. McCullough (Ind.), 34 N.E. 819. With regard to the

acceptance on the part of Mrs. Monahan of the gift of the money, the authorities hold that the

acceptance of a beneficial gift will as a general rule be presumed. 28 C.J. 672, sec. 75; 28 C.J.

673, n. 74. If this court, however, should take the view that such gift of money was not

affected, then we contend that the said money was sufficiently marked and set apart to give it

a separate character and to fully answer to the requirements of proof to bring into play and

application the doctrine on the subject which is set forth in chapter 56 of the work of Mr.

McKay on Community Property (2d ed.) sec. 962, et seq.

In answer to appellant's contention to the effect that a voluntary conveyance or gift is a

fraud upon a grantor's creditors, and as such is not merely voidable but is absolutely void and

of no effect whatever, we quote 12 R. C. L., Fraudlent Conveyances, sec. 111. It is also a fact

that a debtor may prefer one of his creditors. An honest preference being valid, where there is

an actual debt to be secured, the preference is not fraudulent on the ground that it may tend to

hinder, delay or defraud other creditors. 27 C.J., secs. 363, 385, and cases cited; 12 R.C.L.,

Fraudulent Conveyances, sec. 91. A conveyance by a fraudulent grantee to a creditor of his

grantor conveys good title, and the same rule applies to a mortgage given by the fraudulent

grantee to secure a debt of the fraudulent grantor. 27 C.J., Fraudulent Conveyances, sec. 525,

and the cases cited in note 20.

We contend that both legislative policy and judicial decision in this state support the

proposition that a married woman may dispose of or mortgage her separate property, even

though it may at the time be occupied and used as a home. Sec. 2160, Rev. Laws; National

Bank of Ely v. Meyers, 39 Nev. 235; Cartan v. David, 18 Nev. 312-329.

As to whether or not the court erred in admitting certain evidence during the trial, it was

necessary and proper to show that the money was advanced by the 9�� &��


Hills to the Monahans at the request of Mr. Monahan. 13 C.J., Contracts, sec. 169. To

distinguish the transaction from an outright sale, it was necessary to show the circumstances

which gave the transaction the character of a loan.

OPINION

By the Court, Ducker, C.J.:

In this action the respondents, the plaintiffs in the court below, prayed for a money

judgment in the sum of $1,700 against the defendants, Monahans, that the deed and bill of

sale mentioned in the complaint be decreed to be mortgages upon the real and personal

property therein described, and for a foreclosure thereof and a deficiency judgment. The

appellant, Du Pratt, was a party defendant, it being alleged in the second amended complaint,

among other matters in the same connection, that he has some interest in the property

involved, accrued since the lien of the said deed and bill of sale made to plaintiffs. Most of

the evidence was introduced by respondents, and the facts are, in the main, undisputed.

It appears from the evidence that the house and lot involved, which are situated in the city

of Tonopah, were formerly owned by one Irving MacDonald, a resident of Porterville, Calif.,

and for a number of years prior to the transactions hereinafter mentioned had been rented and

occupied by the defendant J. E. Monahan and his wife, L. M. Monahan. On or about the date

thereof MacDonald sent to Monahan the following letter:

Porterville, Cal., May 4, 1925.

“Mr. J.E. Monahan, Tonopah, Nevada.

“Dear Mr. Monahan: I have decided to sell the place you are occupying for the sum of one

thousand dollars net to me. Cash. This offer subject immediate acceptance. Should you care

to take advantage of it you may wire me at my expense. The money to be sent to the First

National Bank here, where deed will be delivered.


I am making the same offer to S. R. Moore & Co. with their commission to be added to the

net price.

“Yours very truly,

“Irving MacDonald.”

On or about May 14, 1925, Monahan received a telegram from MacDonald reading as

follows:

“Porterville, California.

“151 P May 14, 1925.

“Mr. J. E. Monahan, Tonopah, Nev.

“Bank here reports no money received yet. Is deal off. Irving MacDonald, 2.31 P”

In response to the foregoing telegram, Monahan on the 15th of May, 1925, wired

MacDonald as follows:

“5/15/25.

“Irving MacDonald, Rt. 1, Box 58, Porterville Cal.

“Mailing check thousand dollars. Have deed made name L.M. Monahan. I assume this

included rear house lot one. L. M. Monahan.”

Monahan signed his wife's name to the telegram. The bank at MacDonald's request

returned the check to Monahan, and he was notified by them by letter of date May 20, 1925,

that MacDonald required a draft sent to the bank in his wife's name before the deed would be

delivered. On the 15th day of May, 1925, J.E. Monahan borrowed $1,750 from respondents,

promising to give them a deed for the house and lot, and bill of sale for the furniture as

security for the loan. He told the respondents he would use the money to buy the property

from MacDonald. The Monahans executed and delivered to respondents a promissory note

for the amount borrowed.

Monahan's account was overdrawn with the First National Bank of Tonopah, and the

money borrowed from the respondents was used to pay overdrafts. On May 28th Monahan

borrowed $2,500 from appellant, and the next day sent $1,000 of this money by telegraph to

the First National Bank of Porterville, Calif., to be paid to Mrs. MacDonald for the property.

On the 1st day �� D�� . ��


of June, Irving MacDonald and his wife executed a deed for the property in favor of Mrs.

Monahan. The deed was sent to the First National Bank of Tonopah, and by the bank passed

to Monahan. He had it recorded on the 11th day of June. A deed of the real propery was

executed by Mrs. Monahan to respondents and delivered to them by Monahan on the 27th day

of June. It was recorded on the same day. At the same time a bill of sale of the personal

property signed by the Monahans was delivered to the respondents. This deed and bill of sale

were intended as mortgages to secure the $1,750 borrowed by Monahan from respondents.

On the 18th day of July, 1925, Mrs. Monahan executed a deed of the real property and

conveyance of the personal property to appellant in consideration of the cancellation of the

debt of $2,500 from them to him.

The court, upon the trial of the cause, held, among other things, that the deed and bill of

sale given to the respondents were intended to operate as mortgages to secure the money

loaned by them; that the latter was void as a chattle mortgage because it did not comply with

statutory requirements, and that appellant was entitled to the personal property sought to be

mortgaged; that the real property involved was a gift from Monahan to Mrs. Monahan, and

consequently her separate property; and that the intended mortgage was a valid mortgage.

Foreclosure of the mortgage deed was decreed.

Several questions are raised by appellant. The principal one is that the evidence is

insufficient to establish a gift of the real property from Monahan to his wife.

1. Respondents recite respectable authority to the effect that a husband may make a valid

gift of real property to his wife by procuring a third person to make a conveyance direct to

her, and contends that the facts of this case show a valid gift of this character. The

respondents argue that the acts and expressions of Monahan show a gift of the purchase

money to Mrs. Monahan, or are sufficient to impress the consideration, namely, the money,

with a separate character. It is � ��


conceded that the money borrowed from the appellant belonged to the community.

Consequently it cannot be held that such money or property purchased with it was transmuted

into separate property without convincing proof. Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P.

74; Laws v. Ross, 44 Nev. 405, 194 P. 465; Jones v. Edwards, 49 Nev. 299, 245 P. 292.

2. We think the evidence of a gift, either of the purchase money or of its conversion into a

consideration of a separate character as claimed by respondents is too slight to satisfy the

foregoing rule.

Monahan nowhere asserts in his testimony that he made his wife a gift of the purchase

money, and his testimony on the whole negatives any purpose to do so. On this phase of the

case he testified as follows:

“A. As I gave the house to Mrs. Monahan that is why she signed the deed.

“Q. You mean, signed the mortgage. A. Yes, the mortgage.

“Q. When did you give your interest in the property to her? A. When I borrowed the

money from Du Pratt.

“Q. That was May 28, 1925? A. Yes.

“Q. How did you give it to her? A. Just to say the house was hers. I passed the deed to her

and said it was hers.

“Q. What deed? A. The MacDonald deed.

“Q. Did the deed come to you? A. It came to the Nevada First National Bank and passed to

me by Mr. Raycraft.

“Q. You intended to pass all your right in the property to her? A. Yes, I made her a present

of the home.”

He stated, as appears above, that he gave his interest in the property to her at the time he

borrowed the money from appellant. He did not mean by this statement, however, that he

gave the purchase money to her, for when asked how he gave his interest to her, he said: “Just

to say the house was hers. I passed the deed to her and said it was hers.”

3. Stress is placed on the fact that the day after he borrowed the money from appellant he

deposited �� @��/�� 5� ��>��


the purchase money with the telegraph company in her name for transmission to the First

National Bank of Porterville. This, at the most, is only slight evidence of an intent to make a

gift of the purchase money, and falls far short of that convincing proof required by the rule of

community presumption. On the other hand, it is entirely outweighed by the following

testimony given by Monahan: “I will say this, if it will clear up matters for you, while the

$1,750 was borrowed from Mrs. Hill and placed in the bank, no part of this money was ever

paid for the house. My object in borrowing the $2,500 from Du Pratt was to pay Mrs. Hill the

$1,750 and allow the house and all to remain in the hands of Du Pratt.” This testimony,

besides tending strongly to disprove any intent to make his wife a gift of the purchase money,

indicates that he had not at that time formed any purpose of giving the real property to his

wife, for he said he intended to allow the house and all to remain in the hands of Du Pratt.

The evidence fails also to show a valid gift of the real estate.

4, 5. The utmost effect we can give to the evidence on this point is that Monahan formed

the purpose of giving the real property to his wife, but did not do so until the MacDonald

deed came into his hands from the bank in Tonopah. It was then he said he passed the deed to

her and said the house was hers. The evidence discloses only an intent and attempt by

Monahan to give the house and lot to her in that way at that time. The effect of this, however,

was merely to attempt a transfer of real property by parol. Such transfers are forbidden by our

statute. Section 1069, Rev. Laws of Nevada. When Monahan passed her the deed, the title to

the property had already passed to the community. The title vested in the community when

the deed was delivered to the First National Bank of Porterville, the depository named by

MacDonald in his offer of sale, and accepted by Monahan. By reason of the provision cited,

the intention manifested by � ��


Monahan, when he passed the deed to Mrs. Monahan, to give her the real estate, could not

operate to divest the community of the title. Carpenter v. Brackett, 57 Wash. 460, 107 P. 359.

See, also, Union Savings & Trust Co. v. Manney, 101 Wash. 274, 172 P. 251.

The mortgage deed executed by Mrs. Monahan was consequently void.

It is ordered that the judgment be and the same is hereby reversed, and the cause is

remanded, with instructions to the lower court to enter judgment in favor of appellant in

accordance with this opinion. The appellant to recover his costs.

____________

��51 Nev. 253, 253 (1929) Metcalfe v. District Court��

METCALFE v. SECOND JUDICIAL DISTRICT

COURT

No. 2854

February 5, 1929. 274 P. 5.

1. Courts—Jurisdiction of State Court of Competent Jurisdiction Will Not Be Interfered with

by Any Other Court of Same State. When one state court of competent jurisdiction assumes jurisdiction of subject matter, no other court

of same state will interfere in case the first court affords adequate opportunity for adjudication of rights.

2. Courts—After Denial of Suit Money and Alimony Pendente Lite Because of Agreement

Waiving Right Thereto, Another Judge of Same District Had Jurisdiction of Action to

Cancel Agreement. Where trial judge in divorce action denied wife's application for suit money and alimony pendente

lite, on ground that agreement settling property rights and waiving right to alimony pendente lite and suit

money was binding until abrogated by court of competent jurisdiction, a judge of same district had

jurisdiction thereafter of an action for the cancellation of the agreement on the ground that it was induced

by fraud and duress, since the purpose of Rev. Laws, sec. 5843, of providing allowance for wife to carry

on or defend divorce suite, would be defeated in case wife was compelled to present issue in regard to

agreement by means of cross-complaint in divorce action.


3. Prohibition—Writ of Prohibition Issues Only in Exercise of Sound Judicial Discretion and

for Furtherance of Justice. Writ of prohibition issues only in the exercise of the sound judicial discretion of the court and for the

furtherance of justice.

4. Prohibition—Writ of Prohibition Only Arrests Proceedings in Excess of Jurisdiction. Writ of prohibition only arrests proceedings in excess of the jurisdiction of the tribunal pretending to

exercise it.


Courts—15 C.J. sec. 583, p. 1135, n. 59.

Prohibition—32 Cyc. p. 600, n. 5; p. 604, n. 32.

Original proceeding in prohibition by Robert F. Metcalf against the District Court of the

Second Judicial District in and for the County of Washoe, Thomas F. Moran, Judge.

Proceeding dismissed.

Roberts, Scanlan & Ingram, for Petitioner:

We have searched diligently but fail to find any authority wherein one department of the

same court has interfered with the litigation in another department. In applying the rule of

reason to such a contingency, it must occur to our minds that such result would lead to

confusion in court actions which would be disastrous to the courts and litigants alike. There

are a number of authorities, however, to the effect that courts of concurrent jurisdiction will

not interfere with actions pending in courts of similar jurisdiction. 7 R.C.L. 1067; 32 C.J.

112; 32 C.J. 114; Lee et al. v. Sup. Ct., 214 P. 972; Wright et al. v. Sup. Ct., 73 P. 145; State

ex rel. Vesley v. Carr, 244 P. 436, 438; Sewell v. Christison, 245 P. 632. Under our practice

and pleading the wife could set up her cause of action for separate maintenance in a

cross-complaint; and as the property settlement agreement was brought in issue by the

husband's complaint, the validity of said agreement could have been and was made an issue in

the action first commenced.

The court should have dissolved the temporary restraining order, and exceeded its

jurisdiction in making said restraining order permanent. Section 5137, ,��+��/��


Rev. Laws of Nevada, provides in what cases an injunction may be granted, and we do not

believe that the instant case is within the provisions of that section of our practice act. We

realize that the course have inherent power to grant injunctive relief, such as, for instance, in

preventing a multiplicity of suits, but such principle should not be invoked in a second suit

started by the wife, for the reason that the second suit was creating a multiplicity of suits

instead of preventing the same. 32 C.J. 404, sec. 685; 14 Cal. Jur. 192; 14 R.C.L. 405-406.

The record of the first proceeding was brought to the attention of the district judge issuing

the restraining order, and we believe it would have been the proper remedy to have

transferred the second action to the department first acquiring jurisdiction, in order that the

issues involved might be determined in one proceeding. We believe that that procedure would

have been in conformity with the practice of the district court of Washoe County, and

particularly rule 41 of district court rules. “A mandatory rule of court not unreasonable or in

conflict with the statue has the same force and effect as a statute.” State ex rel. Williams v.

Second Judicial District Court, 233 P. 843.

We believe that the same reason as above stated, applying to rule 41 would also apply to

rule 43.

We believe that an appeal would be inadequate for the reason that the petitioner would be

prevented from carrying on his divorce action in department No. 2 until the wife had

terminated her action in department No. 1, and therefore petitioner might not have any good

grounds for an appeal other than the refusal of the trial judge to dissolve the restraining order,

and even assuming that the supreme court might hold that the trial court erred in refusing to

dissolve the injunction, petitioner would not then have any redress for the reason that the

judgment rendered in department No. 1 would be a bar to the prosecution of the action in

department No. 2. From our understanding of the �� A��


statute, an appeal from an order refusing to dissolve an injunction does not stay the

proceedings (sec. 5352, Rev. Laws). Walser v. Moran, 42 Nev. 111, 128; Gordon v. Dist. Ct.,

36 Nev. 1, 15; 21 Cal. Jur. 582; Glide v. Sup. Ct., 147 Cal. 21, 27; Rec. Dist. v. Sup. Ct., 171

Cal. 672, 683; Gloyd v. Su. Ct., 185 P. 995, 997; Hammons v. Su. Ct., 219 P. 1037, 1039,

citing Con. Adjustment Co. v. Sup. Ct., 207 P. 552; Dungan v. Sup. Ct., 84 P. 767; State ex

rel. Thibodean v. Dist. Ct. (Mont.), 224 P. 866; Chaplin v. Su. Ct., 253 P. 954, 959; Northcutt

v. Su. Ct., 226 P. 25. We believe from the foregoing authorities that the petitioner in the

instant case does not have a plain, speedy and adequate remedy at law, and that he is entitled

to have the writ of prohibition made permanent, or such other relief as he may be entitled to.

Edw. F. Lunsford and Short & Ames, for Respondent:

Respondent contends that the Second judicial district court was acting within its

jurisdiction in restraining a litigant from prosecuting an action at law or equity in another

department of the same court. 22 Cyc. 813; 14 R. C. L. 408; Acme Harvester Co. v. Beekman

Lumber Co., 222 U.S. 300, 32 S. Ct. 96, 56 L. Ed. 208; Larue v. Friedman, 49 Cal 278; Stone

v. King-Hodgson Co., 140 Ga. 487, 79 S. E. 122; Chapman v. American Surety Co., 261 Ill.

594, 104 N.E. 247; Moors v. Ladenburg, 178 Mass. 272, 59 N. E. 676; Geddis v. Wayne Cir.

Judge, 151 Mich. 122, 114 N. W. 874; Kansas City R. Co. v. McCardle, 222 S. W. 464; State

v. First Judicial Dist. Ct., 24 Mont. 539, 63 P. 395; Erie R. Co. v. Ramsey, 45 N. Y. 637;

Farewell v. Great Western Tel Co., 161 Ill. 522, 44 N. E. 891.

We do not agree with the contention of counsel for petitioner that the three causes of

action involved in the proceedings in the Second judicial district court in any manner involve

the same subject matter, although they are between the same parties. Suit No. 27301 is a suit

for divorce only, and in which there is a bare allegation that there had been a property

settlement ��


out of court. Suit No. 27861 involved first a suit for cancellation of a contract and for an

accounting, and second a suit for separate maintenance without divorce. Hilton v. Hilton, 43

Nev. 128-140.

If the relief sought by petitioner is to prohibit the Second judicial district court from

hearing suit No. 27861 on its merits, we assert that there is no precedent for a superior court

to prohibit an inferior court from proceeding with the trial of a case in which it has

unquestionable jurisdiction of both the parties and of the subject matter. If he seeks relief

from the injunction heretofore granted, he is not entitled thereto, first, because the injunction

has already been granted and there is nothing more remaining to be done by the respondents

and nothing is threatened (32 Cyc. 603b; High's Ext. Legal Rem. 552, and note citing U.S. v.

Hoffman, 4 Wall 158); and the order of this court does not prohibit Thomas F. Moran, judge

of said district court, from doing any act except that he desist and refrain from taking any

further proceedings in case No. 27861 until the further order of this court. If it is sought to

have Judge Moran recall or dissolve the injunction, then the petitioner's remedy would be

mandamus, and if mandamus would lie, the writ of prohibition must fail. If it is maintained

that Judge Moran erred in granting the injunction, a matter clearly within his jurisdiction, then

the remedy would be by certiorari; and finally by section 5329 of the Revised Laws of

Nevada an order refusing to grant or dissolve an injunction is made appealable, and if

appealable, then neither certiorari, mandamus nor prohibition will lie.

Petitioner's contention that the order of the district court denying the motion to dissolve

said restraining order and the order making said restraining order permanent was inequitable

or in excess of the jurisdiction of said district court for the reason that it is alleged that it

creates a multiplicity of suits is not well taken, because, as stated, they are not of the same

subject matter; but if it be true that there is a multiplicity of suits, then he had his remedy in

section 5778 of the ,��+��/��


Revised Laws of Nevada. The record does not show that petitioner sought to avail himself of

this remedy. That the petitioner cannot avail himself of the extraordinary writ of prohibition

where the right of appeal or other adequate remedy at law exists, is universally sustained by

the courts. See Works on Courts and their Jurisdiction, pp. 632, 633. The appeal in the instant

case would have involved the single question of whether the judge erred in refusing to

dissolve the injunction, or in making the injunction permanent.

The injunction involves no injury to petitioner, as it only requires him to submit to a court

of equity the contract by which he sought to bar her from obtaining suit money with which to

defend her marriage status and her property interests, and thereby deprive her of her day in

court; while to dissolve the injunction, assuming that a writ of prohibition will lie to dissolve

the injunction, would cause the wife irreparable damage. 32 Cyc. 301; People v. McCue, 74

N.Y. Supp. 151; State v. District Court, 38 Nev. 323-326; Low v. Crown Point Mining Co.,

1-2 Nev. 599; Walcott v. Thomas H. Wells, Acting Judge of District Court, 21 Nev. 45;

Knight v. District Court, 32 Nev. 346; Silver Peak Gold Mining Co. v. Second Judicial

District Court, 33 Nev. 97; Arascada v. District Court, 44 Nev. 37; Irving National Bank v.

District Court, 47 Nev. 92.

The United States Supreme Court has repeatedly refused to grant a writ of prohibition where

the remedy by appeal is available, and we direct this court's attention to the case entitled Ex

Parte Warmouth, 21 L.Ed. 543.

A case directly in point on the general principle that the writ of prohibition will not lie to

review the jurisdiction of the trial court in issuing an injunction is the case of State ex rel. v.

Jones (Wash.), 27 P. 452.

Our section 387 of the civil practice act as amended at page 113, Stats. 1913, provides that

an appeal may be taken: 1. * * * 2. From an order granting or refusing a new trial, or granting

or refusing to grant �� P�P�P�� A71B��


or dissolving or refusing to dissolve an injunction, * * * within sixty (60) days after the order

is made and entered in the minutes of the court.

OPINION


This is an original proceeding in prohibition. The affidavit states that:

On August 1, 1928, Robert F. Metcalfe commenced an action for divorce in the Second

judicial district court in and for Washoe County, Nevada, against his wife, Gertrude C.

Metcalfe; that thereafter the defendant in that suit made application to the court for an order

allowing suit money and alimony pendente lite; that on September 18, 1928, a hearing was

had on said application; that upon said hearing it was made to appear that the parties to said

suit had on February 25, 1927, entered into a written agreement wherein they settled and

divided their property interests and the said wife waived and relinquished any and all property

rights in and to any property held by the plaintiff, and in case of the institution of a suit for a

divorce waived any all right to alimony pendente lite and suit money; that Hon. George A.

Bartlett, one of the judges of said court, after full hearing denied said application for suit

money and alimony.

The affidavit herein further states that after the making of said order and on October 10,

1928, Gertrude C. Metcalfe, the defendant in said divorce suit, filed an action in the Second

judicial district court in and for Washoe County, Nevada, for the cancellation of said

agreement upon the ground that it was induced by fraud and duress, and that on the 11th day

of October, 1928, Hon. Thomas F. Moran, one of the judges of said court, issued a restraining

order restraining the said Robert F. Metcalfe and his attorneys from further prosecuting said

divorce suit, during the pendency of ��


said proceeding for the cancellation of said agreement, and until the further order of the court.

The affidavit further states that on the 16th of October, 1928, Robert F. Metcalfe file in

said suit last mentioned an application for an order to dissolve said restraining order, and that

thereafter and on the 19th of October, 1928, after a hearing in the matter, the said Hon.

Thomas F. Moran, district judge as aforesaid, denied said application; that the said Moran in

so ordering acted in excess of his jurisdiction and authority; that applicant is without a plain,

speedy, and adequate remedy, and hence asks the issuance of a writ of prohibition.

The respondent appeared by both demurrer and answer. From the uncontradicted answer of

the respondent it appears that when the question of the allowance of suit money and alimony

was passed upon in the divorce suit by Judge Bartlett he stated that, until the agreement of

Mrs. Metcalfe, waiving suit money and alimony, had been annulled by some court of

competent jurisdiction, he would have to give it full force and effect, and that such agreement

was not before him for adjudication.

1. In support of the application, the well-established general rule that when one state court

of competent jurisdiction assumes jurisdiction of a subject matter no other court of the same

state will interfere, is invoked.

To maintain the contention, reliance is had upon the text stated in section 105, R.C.L. at p.

1067, reading as follows:

“It is a familiar principle that when a court of competent jurisdiction acquires jurisdiction

of the subject matter of a case its authority continues subject only to the appellate authority

until the matter is finally and completely disposed of; and no court of coordinate authority is

at liberty to interfere with its action.”

With this general rule there can be no complaint. It is essential to the avoidance of

confusion and chaos � �� &�� &�� &��


in litigation, but the section from which petitioner quotes to sustain his position contains a

qualification which he does not quote, and which is very material in this connection. It reads:

“* * * An essential condition of the application of the rule as to priority of jurisdiction is

that the first suit shall afford the plaintiff in the second an adequate and complete opportunity

for the adjudication of his rights, for the rule that the court first acquiring jurisdiction retains

it to the end must yield to the higher principle which accords to every citizen the right to have

a hearing before a court of competent authority. * * *”

This qualification to the rule relied upon by the petitioner, taken from the very section of

the work upon which he relies, in our opinion compels a decision in favor of the respondent.

2. Judge Bartlett took the position that the agreement between the parties was binding

upon him until abrogated by a court of competent jurisdiction. By his very ruling he

recognized that a suit to abrogate the agreement would be proper. We take it that petitioner

concedes the correctness of Judge Bartlett's position, but contends that the proper procedure,

indeed the only procedure available to him is in the divorce action, wherein it is claimed she

can by cross-complaint obtain all of the relief she can possibly obtain in the suit she instituted

to have the agreement settling property rights and waiving alimony and suit money canceled.

If the respondent herein has a plain, speedy, and adequate remedy in the divorce suit, she

should be compelled to adjudicate all questions therein. Let us see if she has.

It is provided by statute (Rev. Laws, sec. 5843) that in any suit for divorce the court may,

in its discretion, upon application, at any time after the filing of the complaint, require the

husband to pay such sums as may be necessary to enable the wife to carry on or defend such

suit and for her and the children's support during the pendency of such suit.


In view of the statute and the interest which the public has in divorce proceedings and the

support and maintenance of a wife and children, it is very questionable if a wife can contract

away such right in such a manner as to enable the husband to escape the obligation of paying

suit money in a divorce suit, but since we are not called upon to decide that question we will

proceed at once to a consideration of the one before us. The question, then, is, Has the

respondent an adequate and complete remedy in the divorce suit?

Under the statutes such as the one above referred to whereby the court is authorized to

make an allowance to the wife to enable her to “carry on or defend such suit,” it is generally

held that such allowance can only be made as to the future and not as to expenses already

incurred. Loveren v. Loveren, 100 Cal. 493, 35 P. 87.

Whatever else may be said, it is certainly the spirit of the law to afford an impecunious

wife the funds wherewith to carry on her defense and not to leave her in a position which

might result in great injustice being done her, as would often be the case if the policy of the

law were to make an allowance only after the trial and determination of a divorce suit. Such is

the rule in Nevada, for, as said in Lake v. Lake, 16 Nev. 363: “The object of the law is to

afford a wife without means the funds necessary to prosecute or defend suits of this nature. *

* * She is entitled to proper allowance so long as the cause is pending and until it is finally

determined.”

The respondent herein appeared in the divorce action and made a showing to the effect that

she was without funds necessary to enable her to carry on and defend her suit. By her

application she brought herself squarely within the terms of the statute and the law as

enunciated by this court. If the contention of the petitioner that the respondent can only ask

for the nullification of the agreement mentioned in the divorce suit, then the policy of the law

is set at naught, and though it is doubtful if this can be done even by an agreement between

the parties, yet if it can be done, and the �� I��


respondent herein, in seeking to have it abrogated, must proceed by way of cross-complaint,

rather than by an independent action, the petitioner is given every advantage, and the policy

of the law is, in effect, nullified. It is clear that if the position of the petitioner is sound, the

merits of the divorce suit will be tried before a court order can be made in the case, and after

the trial is completed there will be no defense or suit to “carry on,” hence there could be no

allowance of attorneys' fees to the respondent. A mere statement of the situation shows how

illogical, unjust, and unwise it would be to sustain this application.

3. The writ of prohibition issues only in the exercise of the sound judicial discretion of the

court and for the furtherance of justice. Hatch v. District Court, 50 Nev. 282, 257 P. 831. In

the circumstances of the case we think the justice is with the respondent, hence the writ

should be denied.

4. Furthermore, the writ sought only arrests proceedings in excess of the jurisdiction of the

tribunal pretending to exercise it. Clearly the district court has jurisdiction in the matter

complained of.

These proceedings should be dismissed at cost of petitioner.

It is so ordered.

____________

��51 Nev. 264, 264 (1929) Boyd v. Second Judicial District Court��

BOYD v. SECOND JUDICIAL DISTRICT COURT

No. 2832

February 5, 1929. 274 P. 7.

1. Attorney and Client—Court, to Prevent Injustice, Has Inherent Power to Enjoin Attorney

from Appearing in Particular Case. A court in proper case has power, not dependent on statute, but inherent in it, exercise of which is

designed to prevent injustice, to enjoin an attorney from appearing in a particular case.

2. Attorney and Client—Evidence Warranted Court in Excluding Attorney from Appearing

against Former Client in Case Arising Out of One in which He Was Its Attorney. Evidence held sufficient to warrant the court in excluding an attorney from appearing against his

former client and in behalf of a former officer of it, in a suit by it against such officer arising out of the

suit of another against his former client, in which he appeared for it; the former suit, in which the plaintiff

prevailed, having been based on a claim that defendant therein fraudulently converted to its own use

certain shares of its stock belonging to the plaintiff therein, and the second suit being based on claim that

it was due to false representations by defendant officer to plaintiff's board of directors that the board

cancelled said shares of stock, by reason of which plaintiff in the former action prevailed, and the

attorney in the conduct of the former action having received much information of a confidential character

concerning the affairs of its former client from its officers.

3. Attorney and Client—Ascertaining Certain Matters in Detail Held Unnecessary for Court

to Exclude Attorney from Appearing against Former Client. For the court to exclude an attorney from appearing against his former client in a suit arising out of a

prior one in which he was its attorney, it is unnecessary for the court to ascertain in detail the extent to

which the former client's affairs might have a bearing on the matters involved in the the second suit, or of

the attorney's knowledge in that regard.

4. Attorney and Client—Excluding Attorney from Appearing against Former Client in Suit

Arising from that in which He was Its Attorney Held in Court's Sound Discretion. The courts must necessarily be left to exercise a sound discretion in excluding attorney from

appearing against former client in suit arising out of one in which he was its attorney.


Attorney and Client—6 C.J. sec. 105, p. 619, n. 45.

Original mandamus proceeding by James T. Boyd against the Second Judicial District

Court in and for Washoe County, Department No. 1, Hon. E. P. Carville, presiding.

Dismissed.


James T. Boyd, for Petitioner:

A perusal of the two complaints and the answers will convince this court that your

petitioner has been unjustly deprived of a right that he has by virture of his admission to

practice as an attorney at law in the courts of this state, and to appear and defend Mr.Lamb in

the action brought against him by Gilbert Mammoth Last Hope Mines Company. That is an

office that he is entitled to exercise by virtue of his license to practice law, and he has been

deprived of his right in this respect. See State v. Crosby, 24 Nev. 115.

“The court will assume that an attorney will observe all the obligations of honorable members

of the bar.” Lalance v. Grosjean etc., 93 Fed. 197.

“An attorney cannot take an adverse position to client in same case; cannot assume a

position hostile to his client and one inimical to the very interest he was engaged to protect.”

In Re Boone, 83 Fed. 952, et seq.

“The mere fact that a communication is made to a lawyer, a doctor, or a priest does not of

itself make such communication privileged. To have that effect, it must have been made in

confidence of the relation, and under such circumstances as to imply that it should forever

remain a secret in the breast of the confidential advisor.” Hill v. State, 85 N. W. 836; Elliott

v. Elliott, 92 N. W. 1008.

The true test of whether your petitioner would be disqualified or not would be an answer

to the question as to whether, if called as a witness in this proceeding, he would be permitted

to testify regarding the statements made to him by the officers of the corporation and by Mr.

Lamb in reference to the Curler suit when all of the parties, including Mr. Lamb, were

present, and when the files and records of the company were delivered to him by Mr. Lamb.

The action against Mr. Lamb and the Curler action are not the same, the Curler action being

for the conversion of stock, and the action against Lamb being for fraudulent representations

by which the plaintiff in that action suffered loss.



The respondent court had inherent power to enjoin the attorney from changing sides in the

same suit or respective same subject matter. Weidekind v. Tuolomne etc. Co. (Cal.), 19 P.

173-174; 5 A.S.R. 445; Brown v. Miller (Cir. App. D. C. ), 286 F. 994; State v. Lewis (Ia.),

65 N. W. 295; Messenger v. Murphy (Wash.), 74 P. 480; Mussleman v. Barker (Nebr.), 42 N.

W. 759; Flynn v. Neosha (Mo.), 21 S. W. 903; Gaulden v. State, 11 Ga. 47; Nichels v.

Griffin, 1 Wash. Ter. 374; Bowman v. Bowman (Ind.), 55 N. E. 422; Wilson v. State, 16 Ind.

392; State v. Halstead (Ia.), 35 N. W. 457; Com. v. Gibbs (Mass.), 4 Gray, 146; 2 R.C.L. 975,

sec. 53 and n. 17 and cases cited; 2 R.C.L., 939, sec. 4 and cases cited.

It is submitted that forbidding an attorney from changing sides in the same case or on the

same subject matter, to the manifest detriment of his former client is not a “suspension” or

“removal” of such attorney from his office as an attorney at law (6 C.J. 614, sec. 96), but is

merely the exercise of the inherent power which must be possessed by the district court over

its own officers. State v. County Commissioners, 19 Nev. 332, 10 P. 902-910; Diggs v. State,

49 Ala. 311-317; 40 C. J. 1208-1209; 6 C.J. 568, sec. 10.

But if the power to prevent an officer of the court, i.e., an attorney, from perverting justice

by representing conflicting interests before the district court is not, as respondent contends,

inherent in the court irrespective of statutory authority, then it is respectfully submitted by

respondent that the statute fully confers such power. It reads: “Every court shall have power

* * * to control, in furtherance of justice, the conduct of its ministerial officers.” Rev. Laws,

sec. 4864.

OPINION

By the Court, Ducker, C. J.:

This is an original proceeding in mandamus. Petitioner is an attorney at law, and seeks the

writ to �� 4�� 4��/�� 3�� )��+��9�� $�� $�� >�� 3��$��+��.��


compel respondent to admit him to appear as an attorney for the defendant in that certain

action pending in the Second judicial district court of the State of Nevada in and for the

county of Washoe, entitled Gilbert Mammoth Last Hope Mines Company, a Corporation,

Plaintiff, v. W. C. Lamb, Defendant.

A brief statement of the other allegations of the petition follows:

In December, 1925, petitioner was employed as an attorney by said Gilbert Mammoth Last

Hope Mines Company to defend it in an action brought against it in the Fifth judicial district

court of Nye County by one B. F. Curler, wherein the latter charged the said company with

having fraudulently converted to its own use 35,000 shares of stock of said company, alleged

to be his property, to his injury and damage in the sum of $35,000.

Petitioner held various interviews and conferences with the said W. C. Lamb and the

officers and directors of the said company, and from the information secured from them

prepared and filed its answer. He also appeared at the trial of said cause as attorney for the

company and examined and cross-examined witnesses and argued said cause to the court.

Curler prevailed in said action, and on the 30th day of November, 1926, was awarded a

judgment in the sum of $28,210. In the month of December, 1926, petitioner ceased to be the

attorney for the company in said action, and ceased to advise the company in any manner

whatsoever.

At all times from the date of the incorporation of said company said W. C. Lamb was a

stockholder and the principal promoter in the sale of the stock of said company. On or about

the 1st of March, 1926, he was elected a director and vice president and general manager of

the corporation, and at all times from the date of its incorporation had access to its records

and files.

On the 16th day of January, 1927, the company commenced the said action against said W.

C. Lamb � ��4�� +��


in the Second judicial district court, and Lamb employed the petitioner to aid in preparation

of an answer, and otherwise to aid and assist in the defense during the trial of said cause. The

company objected to petitioner acting as an attorney for Lamb, and, on motion duly noticed

and heard, the trial court rendered a decision enjoining petitioner from appearing as an

attorney for Lamb in the action brought against him, and from in any manner proceeding in

said action as his attorney.

1. The doctrine that a court has power in a proper case to enjoin an attorney from

appearing for a party is well established. People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann.

Cas. 1916a, 636; State v. Halstead, 73 Iowa, 376, 35 N. W. 457; Brown v. Miller, 52 App. D.

C. 330, 286 F. 994, and cases cited; Weeks on Attorneys at Law, secs. 120-271; 2 R. C. L.

sec. 53, p. 975.

This authority is not dependent upon any positive provisions of law. It is a power inherent

in a court, and its exercise is designed to prevent injustice in a particular case.

“It is a well-settled general rule,” says Mr. Thornton in his work on Attorneys at Law,

“that an attorney cannot represent conflicting interests, or undertake the discharge of

inconsistent duties. When he has once been retained and received the confidence of a client,

he cannot accept a retainer from, or enter the services of, those whose interests are adverse to

his client in the same controversy, or in matters so closely allied thereto as to be, in effect, a

part thereof.” 1 Thornton on Attorneys at Law, sec. 174.

This formulation of the general rule is fairly deducible from the authorities. 6 C.J. p. 619,

and cases cited in note 45. The reason for the rule is well stated in Strong v. International

Building Loan & Investment Union et al., 183 Ill. 97, 55 N. E. 675, 47 L. R. A. 792:

“The rule is a rigid one, and designed not alone to prevent the dishonest practitioner from

fraudulent conduct, but as well to preclude the honest practitioner �� &�� #


from putting himself in a position where he may be required to choose between conflicting

duties, or be led to an attempt to reconcile conflicting interests rather than to enforce to their

full extent the rights of the interests which he should alone represent.”

2. While we believe that the petitioner in this case is entirely sincere in his belief and claim

of his right to represent Lamb in the company's suit against him, we cannot say that the

evidence was not sufficient to warrant the court in excluding him. The petitioner does not

appear against his former client in the same controversy, it is true, but the present suit rises

out of the Curler case. It is based on the claim that it was due to certain false representations

made by Lamb to the board of directors of the company that the board canceled 35,000 shares

of the stock of the company theretofore issued and delivered to said Curler as compensation

for his services as attorney for the company, and by reason of which Curler prevailed in the

action. Such a close connection is shown between the cases that we are not prepared to say

that a situation may not arise in which petitioner would be disqualified to represent Lamb

against the company. He acted as attorney for the company in the Curler case, and during his

employment had received much information concerning its affairs from Lamb and other

officers of the company. This appears from the affidavit made by the two directors used on

the motion to exclude petitioner. The court below, on commenting on the extent of

petitioner's information, said:

“In the Curler case the defendant (Lamb) and the members of the board of directors of

plaintiff evidently worked in harmony in the defense of that action, and before it was tried

defendant became vice president and general manager of plaintiff company. In the defense of

that action the officers of the company must necessarily have discussed matters involved in

the litigation very thoroughly; in fact, Mr. Lamb appeared to be the ‘moving spirit.' All

records, books and files of the ��


company were available to counsel, and were gone into thoroughly, and naturally their

method of doing business and all business transactions were known to Mr. Boyd, especially

with reference to the matters of which this case is the outgrowth.”

Certainly the information was of a confidential nature, and petitioner could neither

disclose nor use his knowledge of it in opposition to the interests of the company without its

consent. There is no merit in the contention that the information gained by petitioner does not

come within the class of privileged communications because acquired from Lamb or the

officers of the company in his presence. The company only could release petitioner from his

obligation of secrecy.

3, 4. It was unnecessary for the court to ascertain in detail the extent to which the

company's affairs might have a bearing upon the matters involved in the present case, or of

petitioner's knowledge in that regard. Brown v. Miller, supra. The courts must necessarily be

left to exercise a sound discretion in cases of this character, and we find no abuse of

discretion in this case.

The alternative writ and proceedings should therefore be dismissed.

____________

��51 Nev. 271, 271 (1929) Smith v. Smith��

SMITH v. SMITH

No. 2829

February 5, 1929. 274 P. 9.

1. Divorce—Wife Cannot Obtain Divorce for Nonsupport After She Told Husband To Go

and that They Could Not Live Together. Wife cannot obtain divorce for nonsupport for husband's failure to support her after she told him to go

and that they could not live together any more, since person cannot obtain divorce on grounds occasioned

by his own misconduct.


Divorce—19 C.J. sec. 144, p. 72, n. 24.


Suit by Blanche B. Smith against Charles H. Smith. Judgment for plaintiff, and defendant

appeals. Reversed, with directions.

Talmage L. Smith, for Appellant:

Section 2177 of Rev. Laws of Nevada reads as follows: “A husband abandoned by his wife

is not liable for her support until she offers to return, unless she was justified by his

misconduct in abandoning him.” The attention of this court is called to the fact that the

appellant in this case left their home at the request of the respondent, and that the decision of

the Indiana court was that he was not guilty of extreme cruelty towards her and therefore

there was no grounds upon which she was justified in inviting him to leave, and at the same

time hold him liable for her support. See the following authorities: Barnett v. Barnett, 61 N.E.

737; Crinson v. Heritage, 15 A. R. 258; 53 N. Y. S. 346; 119 A. S. R. 634; 19 C. J. 72;

Volkmar v. Volkmar, 81 P. 413, 414; Fowler v. Fowler, 127 S. W. 1014; 19 C. J. 72; 33 S. E.

865 et 866; 61 N. E. 737; Washburn v. Washburn, 9 Cal. 475; Berry v. Berry, 145 Cal. 784,

19 P. 521; 30 Hun. 461; 15 A. R. 258; 119 P. 403 et 404; Mayr v. Mayr, 118 P. 546 et 549;

353 N.Y. S. 346; 141 /��H��4�

��51 Nev. 271, 272 (1929) Smith v. Smith��

N. Y. S. 61; 166 N. Y. S. 898; 209 N.Y. S. 117; 143 P. 607 et 608; Johnson v. Johnson, 119

P. 403; Richfield v. Richfield, 100 Misc. 561; 166 N.Y.S. 898, and cases cited there;

Douglass v. Maehr, 30 Hun. 461; Fuller v. Fuller, 33 S. E. 865 et 466; Freiman v. Freiman,

68 S. W. 389; Hansen v. Hansen, 150 P. 70; Powers v. Powers, 53 N.Y. S. 346; Baker v.

Baker, 168 Cal. 346, 143 P. 607; Rycraft v. Rycraft, 42 Cal. 444; Reischfield v. Reischfield,

166 N. Y. S. 898; Sturm v. Sturm, 141 N. Y. S. 61.

The above cases show that in order for a wife to maintain a charge against the husband for

failure to provide the common necessaries of life it is necessary that the wife establish and

show that the husband either deserted her and failed to provide for her or that she caused him

to leave because of extreme cruelty towards her.

A. J. Maestretti, for Respondent:

There was sufficient evidence in this case to satisfy the trial court in rendering its decree,

and under the decisions of this court the decree should not be disturbed. Gault v. Grose, 39

Nev. 274; De Remer v. Anderson, 41 Nev. 288; McCone V. Eccles, 42 Nev. 451; Clark

Company v. Francovich, 42 Nev. 321; Sweet v. Sweet, 49 Nev. 254.

The record in this case shows that it was appellant's persistent violation of respondent's

admonition relative to her business affairs that caused respondent's failure to longer live with

appellant. That was certainly sufficient justification under the statute, sec. 2177, cited by

counsel, inasmuch as it caused her trouble and financial loss. And the record in this case

showing without question that appellant failed for more than one year prior to the

commencement of this action to provide respondent and her daughter with the common

necessaries of life, and further disclosing that respondent's income from all sources was

inadequate to support herself and minor daughter, we submit that the court ��

��

��51 Nev. 271, 273 (1929) Smith v. Smith��

below is supported by the evidence and the law in all respects in the findings and decree in

this case.

OPINION


This is a suit for a divorce on the ground of nonsupport. The parties were intermarried in

Indiana in 1898 and lived together happily, so far as appears, until March of 1926. In the year

1911 the plaintiff inherited money and property, and thereafter she purchased a farm, paying

therefor $14,900, which she still owns. She owns also a furnished home in the town of

Brookeville, Ind., which is worth $8,000 unfurnished. The defendant is a cigar maker by

trade, and, so far as appears, supported his family solely by his earnings until the wife

received an inheritance. After that the family lived upon the rentals of the farm and what the

defendant earned. The defendant followed his trade in Brookeville, but about six years before

this suit was filed the cigar making business in Brookeville entered upon a decline, and the

man who had given employment to sixteen or more men, the defendant among them, was at

the time of this suit employing only one and then but part time. About December, 1923, the

defendant was taken sick and was unable to do anything for several months. After that he was

employed as a state highway policeman for some time and was then let out on account of

shortage of funds. While working in the cigar factory, defendant put in part time, for a while,

as state oil inspector. Following his sickness the defendant was unable to obtain steady

employment, which was due, however, to no lack of effort on his part.

In the early part of March, 1926, the plaintiff told her husband that they could not live

together longer and that he must go. In this connection counsel for the plaintiff asked her this

question: “Was the cause of your refusal to live with the defendant and to cause him to live

apart from you, as you have just stated, with �� (#

��51 Nev. 271, 274 (1929) Smith v. Smith��

reference to the trouble he brought about with the lawsuits?” To which she replied: “Yes, sir.”

The defendant in his affirmative defense pleaded a judgment in his favor against the

plaintiff in the circuit court of Franklin County, Ind., upon a cause of action for divorce

instituted in that court by the plaintiff in April, 1926, on the ground of nonsupport which was

admitted by the plaintiff's reply, but as that was apparently not urged in the lower court we

will ignore it.

This suit was instituted on September 16, 1927, after the suit had been instituted and tried

in Indiana, and months after the plaintiff had told the defendant to go; that they could not live

together longer. The cause of action for nonsupport is based upon defendant's failure to

support the plaintiff subsequent to the time he was told to go by the plaintiff.

While we do not deem it material, it may not be out of place to observe that several men

and women of Brookeville, of apparently a representative type, testified as to the defendant's

character and habits, and every one of them spoke of him in the highest terms. In fact,

nowhere does the plaintiff question his integrity, respectability, or industry. If we can fairly

estimate the man from the tone of his testimony, he is an excellent citizen and the victim of

misfortune. His 15 year old daughter, who had been living with her mother, testified that her

father was good to her and had always given her all the money she wanted.

Whatever else might be said about this case, it is clear that the plaintiff cannot recover.

She cannot complain of the defendant's failure to support her after she had notified him to go

and that they could not live together longer. The defendant had no option in the matter.

It is a well-settled rule of law that a person cannot obtain a divorce on grounds occasioned

by his own misconduct. Reed v. Reed, 4 Nev. 395.

It is ordered that the judgment be reversed, and the lower court is ordered to enter a judgment

and decree in favor of the defendant, at plaintiff's costs.

____________

��51 Nev. 275, 275 (1929) Hough Et Ux. v. Reserve Gold Mining Co.��

HOUGH Et Ux. v. RESERVE GOLD

MINING COMPANY

No. 2808

February 5, 1929. 274 P. 192.

1. Dismissal and Nonsuit—Telegram Instructing Clerk of Court to “Discontinue” Case

Entitled Plaintiff to Dismissal Before Trial. Telegram from plaintiff's counsel, instructing the clerk of the court to “enter discontinuance” of the

case sent before trial, entitled plaintiff to dismissal under Rev. Laws, sec. 5237, providing for dismissal

by plaintiff himself at any time before trial; the word “discontinue” being synonymous with the word

“dismiss.”

2. Dismissal and Nonsuit—Accrued Costs Need Not Be Paid Before Order of Dismissal by

Plaintiff Is Entered. Under Rev. Laws, sec. 5237, providing for dismissal by plaintiff at any time before trial upon

payment of costs, the accrued costs need not be paid before the order of dismissal is entered.


Dismissal and Nonsuit—18 C. J. sec. 25, p. 1157, n. 10; sec. 57, p. 1169, n. 92.

Appeal from Third Judicial District Court, Eureka County; W. R. Reynolds, Judge.

Action by M.J. Hough and wife against the Reserve Gold Mining Company. From an

order vacating judgment of dismissal, defendant appeals. Affirmed.

Norcross & Cheney, for Appellant:

It will be noted that the telegram made no suggestion in respect to the provisions of the

statute for “the payment of costs.” This being a necessary prerequisite to a dismissal upon the

plaintiff's own motion, the clerk could take no action in the premises. In this case also it

appears that a provisional remedy had been allowed by issuance of an attachment, which in

the case of dismissal the clerk was required to deliver the undertaking to the defendant.

When we come to consider the motion to vacate upon the ground of surprise, under the

provisions of Rev. Laws, sec. 5084, we find that the application for relief fails also to comply

with the provisions of the statute in that it is not based “upon affidavit showing good ��#


cause therefor.” The application for relief was based upon a mere notice setting forth certain

grounds and not accompanied by any affidavit whatsoever. Respondent in this case, however,

would be in little better position had the notice of motion been accompanied by the required

affidavit. The statements contained in the notice, even if sworn to, could not by any

possibility state a case of surprise. It is not anywhere contended that counsel for the plaintiffs

were unacquainted with the provisions of the statute. They could not, therefore, have

expected that either the clerk or Mr. Eather could have taken any action when the telegrams

made no suggestion for compliance with certain prerequisite requirements of the statute

before a voluntary dismissal on the part of the plaintiffs could be had. Even if we assume that

the clerk and Mr. Eather would know that counsel for plaintiffs meant “dismissal” under the

statute when they used the expression “discontinuance” in the telegram, they, of course, could

not act, because no provision was made for the payment of defendant's costs or the surrender

of the undertaking on attachment. What they may well have assumed in view of the reading

of the telegram is that counsel desired a further continuance, which the attorneys for the

defendant would not agree to. Otherwise there was no reason for the use of the expression

“Mrs. Hough is sick.”

Clyde D. Souter, for Respondents:

Respondents properly discontinued the action and dismissed same by the telegram sent to

the clerk of the court. There was no necessity to mention costs; the statute was full protection

in that regard to the appellant. The liability of the respondents for the costs was fixed by

statute, was a duty and obligation which could not be avoided, and which, therefore, the clerk,

respondents and appellant had a right to assume, and should have assumed, would be paid.

If it should be found that a proper discontinuance of the action, or judgment of dismissal,

was not required by the telegram to the clerk, then the respondents were � �� ,��+��


entitled to be relieved of the judgment of dismissal entered by the court on motion of

appellant in pursuance of the provisions of Revised Laws, sec. 5084. It is respectfully

submitted that the respondents had taken every reasonable step that might be required of them

to secure a dismissal of the action, and that the judgment of dismissal entered by the court on

motion of appellant was a surprise to the respondents and that they were without fault in the

premises.

It is submitted that no modification should be entered to make any allowance for whatever

the costs might be, in view of the fact that such costs were needlessly incurred, and incurred

in the face of explicit information two days before the date of trial that the trial could not

possibly proceed.

In conclusion it is submitted that in matters such as are raised by the appeal in this case,

this court will depend largely upon the discretion exercised by the trial court. The trial court

was in full possession of the facts, had the entire situation intimately before it, and in the

exercise of a wise judicial discretion set aside the judgment of dismissal. In addition to this, it

is a fundamental rule of law that courts do not favor denying to a litigant his day in court, and

that only in those cases where the court is bound by law to do so will matters of mere

technique be permitted to interfere with the due course of justice.

OPINION


This is an appeal from an order vacating a judgment of dismissal.

The case was set for trial on June 7, 1927, at Eureka, Nevada, about 200 miles distant from

Reno, where the attorneys for both parties resided.

On the 5th day of June, counsel for the plaintiff applied to counsel for the defendant at

Reno for a stipulation continuing the setting of the case for trial, which ��


was refused. On the morning of the 6th counsel for defendant started for Eureka to try the

case on the 7th. On the same morning counsel for the plaintiff telegraphed the clerk of the

court at Eureka as follows:

“Please enter discontinuance of the case of M. J. Hough versus Reserve Gold Mining

Company. Mrs. Hough is sick and attorneys for defendant will not grant a continuance.”

Simultaneously he sent a telegram to an attorney in Eureka requesting him to see to it that

the dismissal of the case was entered. Both telegrams were delivered on the morning of the

6th about 11:45.

The clerk failed to make the order of dismissal, and, on the following morning when court

convened, counsel for the plaintiff failing to appear, counsel for the defendant moved for

judgment of dismissal of the suit, the dissolving of the attachment, and for costs, which was

granted.

1. On the 16th of the same month, the plaintiff served and filed its notice of motion to

vacate the judgment so entered, upon two grounds: (1) Because the dismissal should have

been made by the clerk on plaintiff's request on June 6, hence the court was without

jurisdiction to make the order of June 7. We need not state the second ground given. The

motion should have been sustained on the first ground.

It is provided by section 5237, Rev. Laws, that an action may be dismissed, or a judgment

of nonsuit entered in the following cases: “1. By the plaintiff himself at any time before trial,

upon the payment of costs, if a counterclaim has not been made. * * *”

No counterclaim was filed in this case. The word “discontinue” is synonymous with

“dismiss” (Farmers' Oil & Mfg. Co. v. Melton & Stuart, 159 Ala. 469, 49 So. 225), and the

telegram was an authorization to dismiss, and it was the plain duty of the clerk upon its

receipt to enter up the order of dismissal on plaintiff's motion, and at his costs.

2. There is nothing to the contention that the accrued costs must have been paid before the

order ��


of dismissal could have been properly entered. As said in Hancock Ditch Co. v. Bradford, 13

Cal. 637: “* * * We do not undertand that the plaintiff is bound to tender the costs before

being entitled to be nonsuited; for the costs cannot be at the moment known or computed. But

this proviso was only meant to declare that the effect of the nonsuit is to subject him to costs.

At common law, the right of the plaintiff was to take a nonsuit at any time before the jury

retired, and we do not construe the statute as altering the rule. (3 Ch. Genl. Pr. 910.)”

The order appealed from was based on the second ground of the motion, but, being right,

should be, and is, affirmed.

____________

��51 Nev. 279, 279 (1929) Giannopulos v. Chachas��

GIANNOPULOS v. CHACHAS

No. 2751

February 5, 1929. 274 P. 193.

1. Money Lent—Judgment for Plaintiff, Based on Conclusion that Defendant Admitted

Owing Money Sued for, Held Erroneous; No Scintilla of Evidence Showing

Admission. Judgment for plaintiff, in action to recover sum of money alleged to have been loaned to defendant,

held erroneous, where based on conclusion that defendant admitted owning the money sued for, and there

was not a scintilla of evidence on part of defendant wherein he admitted owing plaintiff any money;

entire theory of defense as shown by evidence being that money he received was that of partnership of

which he was partner and not of the plaintiff.


Money Lent—41 C. J. sec. 21, p. 8, n. 68.

See, also, 50 Nev. 269, 257 P. 618.

Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.

Action by Jim Giannopulos against Angelo Chachas. Judgment for plaintiff, and defendant

appeals. Reversed.

Chandler & Quayle, for Appellant:

There is insufficient evidence to justify the decision of the court, and the decision is

against the law. Summing up the testimony on behalf of plaintiff, what have ��(


we? Aside from the payments of certain sums, canceled checks for which were introduced in

evidence and the receipt or authorization of which were admitted by defendant, we have the

witness Kippos, admittedly ignorant of the principles of bookkeeping, apparently posing as an

authority on copartnership accounting, and arbitrarily tagging this sum as into or out of

personal funds of one of the partners, although not carried in the name of that partner but in

the name of the witness and mixed with his own private funds, if any; while another sum is

just as arbitrarily tagged as a deposit to or withdrawal from copartnership funds. Where, we

ask, was there any copartnership fund? Kippos testified that he could draw on the funds in his

own name, which belonged to Jim Giannopulos, and from the funds of the Steptoe Meat

Company, which presumably belonged to the copartnership.

It appears to have been the theory of the witness Kippos that inasmuch as plaintiff had

advanced the original money for the partnership affairs, all money, including the amount

originally advanced and all accruals and substitutions of the partnership funds belonged to

plaintiff individually. We cannot perceive how the lower court could have arrived at the

conclusion it did except upon the theory that it fell into the same error of fact and

copartnership law as that incurred by the witness Kippos. After money is put up by one of the

copartners for the copartnership interest and use, it no longer belongs to that individual

copartner nor to any one of the others, but all are interested in common therein. 20 R. C. L.,

sec. 84, p. 873, also sec. 81, p. 870; 30 Cyc., subhead 10, p. 444; 20 R. C. L., sec. 82, p. 871;

30 Cyc., subheads D-1, p. 424. And so far from the original partner contributor of capital

having a personal claim against any of the partners subsequently withdrawing a portion of the

funds, the only remedy available is by an accounting between the partners, either with or

without resort to a court of equity therefor. 20 R. C. L., sec. 254, pp. 1012-13; Id. sec. 256, p.

1014.


To the proposition that one copartner cannot embezzle or steal money belonging to the

copartnership, no reference to specific cases need be made, as we take it. That doctrine is

fundamental to the law of partnership. 20 R. C. L. 870. If not the property of plaintiff, then

certainly the money underlying these items was the property of the copartnership, and hence

the right of plaintiff to sue on the account fails.

V. H. Vargas, for Respondent:

The preponderance of the evidence shows that the appellant did receive the amount sued

for, and that that amount was the personal money of the respondent and was loaned to him at

his request and for his personal use and benefit, and had nothing to do with the copartnership

funds; this evidence sustains the decision of the trial court.

This honorable court has consistently held by a long line of decisions that the judgment in

a civil case where there is substantial evidence to support it, will not be disturbed where there

is a substantial conflict in the evidence, upon the ground that the verdict is against the weight

of evidence. Bryant v. Carson R. L. Co., 3 Nev. 313, 93 Am. Dec. 403; Carlyon v. Lannan, 4

Nev. 650; Ophir Min. Co. v. Carpenter, 4 Nev. 534; 97 Am. Dec. 550; State v. Yellow Jacket

S. M. Co., 5 Nev. 415; Clark v. Nev. Min. Co., 6 Nev. 203; Lewis v. Wilcox, 6 Nev. 215;

McCoy v. Bateman, 8 Nev. 126; Blackee v. Cooney, 8 Nev. 41; Menzies v. Kennedy, 9 Nev.

152; State v. C. P. R. Co., 10 Nev. 47; Barnes v. Sabron, 10 Nev. 219; Leport v. Sweeney, 11

Nev. 387; Buckley v. Buckley, 12 Nev. 423; Boskowitz v. Davis, 12 Nev. 446; Solen v. U. S.

T. R. Co., 13 Nev. 106; Smith v. Mayberry, 13 Nev. 427; Duquette v. Ouilmette, 13 Nev.

499; Gammans v. Roussell, 14 Nev. 171; Taft v. Kyle, 15 Nev. 416; Allen v. Reilly, 15 Nev.

453; Tognini v. Kyle, 15 Nev. 464; Hixon v. Pixley, 15 Nev. 475; Sacalaris v. E. & P. R. Co.,

18 Nev. 155; 1 P. 835; Simpson v. Williams, 18 Nev. 432, 4 P. 1213; Langworthy v.

Coleman, 18 Nev. 440, 5 P.


65; Winter v. Fulstone, 20 Nev. 260, 21 P. 201, 687.

The appellate court will not weigh and will not determine which of the parties adduced a

preponderance of the evidence, and where the record discloses a material conflict thereof, it

will not disturb the verdict of the jury or judgment of the court. McGurn v. McInnis, 24 Nev.

370, 55 P. 304, 56 P. 94.

OPINION


This action was brought to recover $835.40 alleged to have been loaned to the defendant

by the plaintiff. The answer of the defendant denies the alleged loan.

In 1919 a partnership consisting of the plaintiff, Gust Kippos, Jim Giannopulos, and

Emanuel Giannopolus were engaged in the meat business at McGill, Nevada. During that

year the partnership consisting of the above was dissolved, and a new partnership was

organized, consisting of the plaintiff, Gust Kippos, the defendant, and Gust Chachas, to carry

on the meat business at McGill. Later the new firm took a lease on the Campbell ranch, and

engaged in the livestock business, buying and selling, in connection with the operation of the

ranch and the meat business.

Gust Kippos was the bookkeeper for the partnership until the latter part of its existence. He

testified that upon the dissolution of the first partnership above mentioned there was about

$1,800 in his hands, presumably belonging to the plaintiff, though he did not so directly

testify. He did testify, however, that the plaintiff told him to “keep that money—you hold that

money. I am going to leave. You hold that money so you have some money there * * * for

expenses—for personal money for the new partnership.”

The witness testified at great length. He testified that the plaintiff told him to loan to and

pay out for the defendant money from said fund, and, pursuant to such instructions, he did

loan to him, and pay out �� '��&��


at the defendant's request, sums aggregating the amount sued for.

The plaintiff corroborated the testimony of the witness Kippos.

The theory of the defendant is that, while he received the money, he drew it from the funds

of the company, and not from the plaintiff in the case. He testified that often he took money

from the company cash register and put in a tag therefor, and that on some occasions Kippos

would hand him money from the cash register and put in a slip therefor. In this connection

Kippos testified that the money so obtained was repaid from, and charged up to, the $1,800

fund.

Gust Chachas, the brother of the defendant, and one of the partners, testified that it was the

custom of each of the members of the firm to get money from the company cash register and

put in a tag.

There is also undisputed testimony to the effect that the defendant owned the building in

which the meat shop was kept, for which he was to receive a rental of $50 per month.

The witness Kippos had destroyed or lost two books of the accounts of the firm—at least

he was unable to produce them, and the defendant introduced in evidence a statement of bank

accounts which it is claimed by defendant tends to establish his defense.

It was the theory of the defendant that he borrowed no money from the plaintiff, and,

though he received the amount sued for, that it was all partnership money, and that upon an

accounting it would be found that the partnership was indebted to him.

The trial court decided the case from the bench immediately upon the conclusion of the

oral argument. In rendering his decision, the court said:

“I have my mind made up in this case. I think it is a separate transaction, because Mr.

Chachas admits—admits that he owed the money. I think this is a separate and distinct

transaction and Kippos himself testified to the same thing, and I don't see where the

partnership is concerned at all. So judgment will be �� I�� #


for the plaintiff in this action in the sum of eight hundred and thirty-five dollars and forty

cents, and costs of this suit.”

In the second sentence the court stated that it reached its conclusion “because” the

defendant admitted owing the money. There is not a scintilla of evidence on the part of the

defendant wherein he admits owing the plaintiff a cent, and the entire theory of his defense,

as shown by his evidence, is that the money he received was the money of the partnership,

and not the money of the plaintiff.

In view of the clear misunderstanding of the evidence of the defendant, it seems that the

judgment and order must be reversed. The third sentence of the pronouncement of the court,

though couched in different language, is to the same effect as the previous one.

The complaint in this action was filed December 6, 1922, about three years after the

partnership was formed, and the rentals from the partnership to the defendant during that time

amounted to over $1,500.

If the statements from the bank had been considered, together with the other evidence, it

may be that it would have been found that the defendant had a large sum of money coming to

him from the company. However, in view of the fact that the court misinterpreted the

evidence of the defendant, we need not consider the effect to be given to this evidence.

It is ordered that the judgment be reversed.

____________

��51 Nev. 285, 285 (1929) Latterner v. Latterner��

LATTERNER v. LATTERNER

No. 2836

February 5, 1929. 274 P. 194.

1. Divorce—Residence Required under Divorce Statute Is of Character Denoting Present

Intention to Make County of Suit Plaintiff's Home for Indefinite Period. Residence required by divorce statute, Rev. Laws, sec. 5838, as amended by Stats. 1927, c. 96, is

residence of character denoting present intention on part of one claiming it to make county in which suit

is instituted such person's home, at least for an indefinite period.

2. Divorce—In Absence of Language in Amendment to Divorce Statute Indicating Contrary

Intention, it Must Be Presumed Word “Resided” Was Used with Meaning Ascribed to

it by Court.

In absence of any language in amendment of 1927 (Stats. 1927, c. 96) to divorce statute (Rev. Laws,

sec. 5838) indicating a contrary intention, it must be presumed that word “resided” was used by

legislature with meaning ascribed to it by court.

3. Statutes—Where Legislature Uses Words which Have Received Judicial Interpretation,

they Are Presumed To Be Used in that Sense. Where legislature uses words which have received judicial interpretation, they are presumed to be

used in that sense, unless the contrary intent can be gathered from the statute.

4. Statutes—Where Language of Statute Is Susceptible of Sensible Interpretation, it Cannot

Be Controlled by Extraneous Considerations. Where language of statute is susceptible of sensible interpretation, it is not to be controlled by any

extraneous considerations.

5. Divorce—Supreme Court Cannot Pass on Good Faith of Plaintiff in Divorce Suit

Regarding Matter of Residence in First Instance. Supreme court cannot pass on question of good faith of plaintiff in divorce action as regards matter of

residence in first instance.

6. Appeal and Error—Where Court Applies Wrong Principle of Law to Prejudice of Party,

Judgment Must Be Reversed. Where court applies wrong principle of law to prejudice of party, judgment must be reversed on

appeal.

7. Divorce—Court, Having Failed to Find Plaintiff To Be Bona Fide Resident, Was Without

Jurisdiction to Grant Decree of Divorce. Court, having failed to find plaintiff to be bona fide resident, as required by Rev. Laws, sec. 5838, as

amended by Stats. 1927, c. 96, was without jurisdiction to grant him a decree of divorce.



Divorce—19 C.J. sec. 41, p. 29, n. 73; sec. 42-43, p. 30, n. 82; sec. 382, p. 150, n. 58; sec. 472, p. 191, n.

99.



Appeal from First Judicial District Court, Douglas County; G. A. Ballard, Judge.

Divorce action by Frederick H. Latterner against Adelia F. Latterner. From a decree for

plaintiff, defendant appeals. Reversed.

Grover L. Krick, for Appellant:

In order to give the First judicial district court of Nevada, in and for Douglas County,

jurisdiction of the action, respondent's residence in Douglas County must be bona fide and

not transient. His own testimony and actions show that respondent did not consider Douglas

County his domicile or bona fide residence, and appellant maintains that his residence in

Douglas County was not bona fide and that his domicile and residence was not in Douglas

County, Nevada. To bring this action within the jurisdiction of the district court of Douglas

County, respondent's residence in the county of Douglas must be must be substantial and

permanent. Fleming v. Fleming, 36 Nev. 140; Presson v. Presson, 38 Nev. 207; Dedrick v.

Dedrick, 257 P. 837; Pope v. Pope, 243 P. 962; Anthony v. Tarpley, 187 P. 779; Walker v.

Walker, 45 Nev. 108; Aspinwall v. Aspinwall, 40 Nev. 64; Barber v. Barber, 47 Nev. 377, 39

A. L. R. 706, and note 711 et seq.; Beach v. Beach, 46 P. 514; 9 R. C. L. 403, sec. 200, p.

542; Holmes v. Holmes, 8 A. L. R. 1540.

The trial court in its decision on the motion for a new trial in this case did not find that

respondent's residence was in good faith, but only that he had been actually present in

Douglas County for three months immediately before the action was begun.

A jurisdictional question is never waived. Sec. 5045, Rev. Laws of Nevada, 1912. It is a

well-settled principle of law that the question of jurisdiction can be raised at any time during

the trial, and if not at that time it can be raised for the first time on appeal, when the want of

jurisdiction appears affirmatively from the record. Aram v. Edwards (Idaho), 74 P. 961;

Oppenheimer v. Regan (Mont.), 79 P. 695; Empire ,� ��*�$��$��


Ranch & Cattle Co. v. Millet, 135 P. 127; First Nat. Bank of Pateau v. School Dist. No. 4 of

Hughes Co. (Okla.), 160 P. 68; Stephens v. Weyl-Zuckerman & Co. (Cal.), 167 P. 171;

Maguire v. Cunningham (Cal.), 222 P. 838; Dant & Russell v. Pierce (Ore.), 255 P. 603;

Gamble v. Silver Peak, 35 Nev. 319, 133 P. 936.

Jurisdiction of subject matter of character incapable of being waived must be considered

when raised for first time on appeal. Bosher v. Bellas (Ariz.), 264 P. 468; Twin Falls Realty

Co. v. Brune (Ida.), 264 P. 382; Boarman v. Home State Bank of Tecumseh (Okla.), 239 P.

579; Labbitt v. Bunston (Mont.), 260 P. 727.

Wayne T. Wilson, for Respondent:

This state has prescribed by statutory enactment, the prerequisites by which the courts may

or shall acquire jurisdiction of divorce cases. Stats. 1926-27, p. 126. If jurisdiction is acquired

in the manner prescribed by statute it cannot be questioned within the state. 15 C. J., p. 797,

sec. 92; Campbell v. Wilson, 6 Texas, 379. “Jurisdiction depends on the statute.” Thompson

v. Thompson, 49 Nev. 383.

The bona fides of plaintiff's residence in Douglas County, Nevada, is a question of fact to be

determined by the jury, or court, and there being substantial evidence to support the verdict or

decree, this court is bound thereby. Thompson v. Thompson, supra, p. 384.

If the respondent came to the State of Nevada and the county of Douglas with the intention of

abandoning his home in California, and with a bona fide intention of remaining in Douglas

County, Nevada, for an indefinite length of time, and did remain, physically, in Douglas

County three full calendar months, he acquired a residence and domicile sufficient to give the

court jurisdiction of the divorce case which was filed in that county by him. Presson v.

Presson, 38 Nev. 203.

“The decisions do not hold that this residence must be for any particular length of time,

unless required by legislative enactment.” Tiedemann v. Tiedemann, 36 Nev. 503. <��

�� .��$� ��/��


The trial court having found by implication that the plaintiff below, respondent here, was a

bona fide resident of Douglas County, Nevada, this court is bound by that finding. Thompson

v. Thompson, 49 Nev. 384; Confer v. District Court, 49 Nev. 31. The finding of the court in

favor of plaintiff imports that the plaintiff's residence was in good faith, and if supported by

substantial evidence cannot be disturbed on appeal. Walker v. Walker, 45 Nev. 109; Miller v.

Miller, 37 Nev. 257; Gildersleeve v. Gildersleeve (Conn.), Ann. Cas. 1916b, 920.

Jurisdiction of a divorce action is determined by plaintiff's residence at the time of filing

the petition, and it is immaterial where he afterwards establishes his residence. Duxstad v.

Duxstad, 100 P. 112; Whise v. Whise, 36 Nev. 23; Confer v. District Court, 49 Nev. 33; 19

C. J., p. 28, sec. 39. A change of residence by plaintiff after the commencement of the suit

and before its trial does not deprive the court of jurisdiction. 19 C.J. 28, sec. 39.

The defendant voluntarily appeared in this case and presented, or had the opportunity to

present, her claim to the court, and is therefore estopped to deny the jurisdiction of the court

over the subject matter of the suit. 4 C.J. 1350, sec. 40, and cases cited under notes 24 and 25;

Curtis v. McCullough, 3 Nev. 210. Where the court has jurisdiction of the subject matter, a

general or voluntary appearance by the defendant confers jurisdiction of the person, and

estopped the defendant to object to the jurisdiction of the court. 4 C.J. 1350, sec. 41; Golden

v. Fifth Judicial Dist., 31 Nev. 250-259; Frankel & Co. v. Creditors, 20 Nev. 49.

OPINION


This is an action for divorce. Respondent, who was plaintiff in the court below, obtained a

decree of divorce. In his amended complaint appears the following allegation: G<�� .��4��/�� ?�#


“That plaintiff resides in and for more than three months immediately preceding the

commencement of this action has resided continuously in the county of Douglas, State of

Nevada, since the 19th day of July, 1927.”

This allegation was denied in the answer. Appellant contends that the evidence did not

establish the bona fides of respondent's residence in Douglas County for the period of three

months prior to the commencement of the action. This is the only question she presents.

We are of the opinion that the trial court misapplied the law to the facts bearing upon this

issue. This appears from the following statement of the trial court found in the bill of

exceptions:

“The court did not find that plaintiff's residence was in good faith, but only that he had

been actually and corporeally present in Douglas County for three months immediately before

the action was begun. Is more required? If it is, the plaintiff should not have his decree.”

The plaintiff, however, was given a decree, and as the bona fides of his residence was a

material issue, which the court did not pass upon, the resulting prejudice to appellant from

this omission is apparent.

Section 5838 of the Revised Laws was amended by the legislature of 1927 (Stats. 1927, c.

96), and the part involved reads:

“Divorce from the bonds of matrimony may be obtained, by complainant, under oath, to

the district court of the county in which the cause therefor shall have accrued, or in which the

defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either

the county in which the parties last cohabitated, or in which the plaintiff shall have resided

three months before suit be brought. * * *”

1-3. The foregoing provision, prior to the amendment at that session of the legislature,

provided that a suit for divorce could be brought in the county in which plaintiff had resided

for six months before the commencement of the action. The only change wrought �� &��


by the amendment in the phraseology of the part of the section quoted was in making the time

of residence three months, where it had formerly been six. Prior to the amendment the six

months' residence clause had been definitely construed by this court. The residence required

was determined to be of a character denoting a present intention on the part of the one

claiming it to make the county in which the suit was instituted the person's home, at least for

an indefinite period. It was held, also, that the residence meant by said section 5838, and by

the Session Acts of 1911, c. 158, was one characterized by the physical presence of the

person, as well as by his or her intent to make the place a home. Fleming v. Fleming, 36 Nev.

135, 134 P. 445; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Walker v. Walker, 45 Nev.

105, 198 P. 433.

The legislature must be presumed to have been cognizant of these constructions. In the

absence of any language in the amendment indicating a contrary intention, it must also be

presumed that the word “resided” was used by the legislature with the meaning ascribed to it

by the court. If the legislature uses words which have received a judicial interpretation, they

are presumed to be used in that sense, unless the contrary intent can be gathered from the

statute. 2 Lewis' Sutherland, Statutory Construction (2d ed.), 758, 759.

4. There is nothing in the language of the amendment denoting an intention to make mere

physical corporeal presence in the county the sole element of the residence required of a

plaintiff in a divorce action. The same language formerly used in the provision amended was

employed, except in designating the number of months required. What motive the legislature

may have had in shortening the time of residence has no bearing on the meaning of the words

used. Where the language of a statute is susceptible of a sensible interpretation, it is not to be

controlled by any extraneous considerations.

5, 7. The trial court should have considered the evidence bearing upon the good faith of

respondent's ��


residence. The supreme court cannot pass upon the question in the first instance. When a

court applies a wrong principle of law to the prejudice of a party, the judgment must be

reversed. Long Valley Land & Development Co. v. Hunt, 51 Nev. 5, 266 P. 917.

Furthermore, the court, having failed to find plaintiff to be a bona fide resident, was without

jurisdiction to grant him a decree of divorce.

The judgment is reversed.


May 16, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 291, 291 (1929) Reno Electrical Works v. Ward��

RENO ELECTRICAL WORKS, INC. v. WARD Et Al.

No. 2778

February 5, 1929. 274 P. 196

1. Fixtures—Whether Article Brought Upon Freehold Becomes Part Thereof Depends

Largely on Intention, Use to which To Be Applied, and Fitness Therefor. The intention of person bringing article on freehold, the use to which it is to be applied, and its fitness

for that purpose, governs to a large extent whether such article, actually fastened to freehold or not,

becomes a part thereof.

2. Mechanics' Liens—That Fans Attached to Walls Were Necessity for Tenant in Restaurant

Business Held Insufficient to Subject Building to Lien for Price. The mere fact that electric fans were a necessity for tenant to carry on restaurant business in building,

to walls of which they were attached, held not sufficient to subject the lessor's property to the lien of firm

selling the fans to the tenant, under Rev. Laws, sec. 2213.

3. Mechanics' Liens—Electric Fans, Fastened to Walls of Restaurant with Screws and Nails,

Removable Without Injury, Held Not Part of Realty so as to Subject Realty to Lien. Electric fans, installed by tenant in building he was occupying for restaurant purposes by fastening

them to walls with screws and nails, fans being removable therefrom without �� ,��+��


noticeable injury to the building, and in fact so removed, held not to be fixtures and part of the realty so as

to make realty subject to lien for the sale price of the fans, as provided by Rev. Laws, sec. 2213.


Fixtures—26 C.J. sec. 2, p. 654, n. 31; sec. 21, p. 666, n. 27.

Mechanics' Liens—40 C.J. sec. 45, p. 71, n. 22, 24.

Appeal from Second Judicial District Court, Washoe County; J. N. McNamara, Judge.

Action by the Reno Electrical Works, Inc., against T. O. Ward and another. From a

judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.


Plaintiff's whole case is based on its claim for furnishing and installing certain electrical

fans. These fans were not furnished or installed specially for occupancy of premises as a

restaurant. The building was an old one, occupied at different times for different purposes,

and the fans were stock fans usable anywhere where fans were needed; they were not made

specially for this building. Plaintiff's president admits that none of the fans were attached to

the building. Restaurants are not the only line of business where cooling fans, etc., may be

desirable or even useful, and the same is true of the suction fans to draw the impure air out of

the room. Hence, no point can be made that these fans were furnished to fit a room for a

special and particular purpose. Furthermore it is an admitted fact that the fans are of a

standard pattern and are equally workable and useful in any other room or building occupied

for purposes other than a restaurant. Some of the fans are not even screwed to the building or

attached in any way except by a cord, which cord is carried along the wall of the building.

They are identical in this respect with a telephone receiver. Counsel correctly contended in

trial court that one of the controlling questions is: Were the fans furnished and received with

the intention of same forming an integral �� (


part of the building? Because the Kyne Investment Company is not before the court, no

finding, of course, can be made as to what its “intentions” were with reference to the

installation of the fans. If, then, it is a question of “intention” between the parties actually

before the court, i. e., plaintiff and the defendant Ward, then plaintiff's case on “intention”

must fall, because the evidence is conclusive that the defendant Ward strenuously objected to

plaintiff putting in the fans and notified plaintiff that neither he (Ward) or the property would

be responsible therefor, and the evidence further shows that plaintiff went on during the

absence of Ward from Reno and put in the fans. The mode of annexation is more or less

immaterial, as it is the intent of the parties that controls. 23 C.J. 660, sec. 9 and n. 79. Neither

is the consideration of extent of injury to freehold accepted as a reliable test. Such injury in

any event must be of such character as would leave the premises in a maimed or unfinished

condition. 23 C.J. 700, sec. 86 and n. 75; see, also, Id. 663, sec. 14.

We say that in cases of alleged annexations where the relation of landlord and tenant

existed, the presumption is strongly against annexation, and in favor of the right of tenant to

remove the articles as trade fixtures. Brown v. Reno Electric L. & P. Co. (C. C. Nev.), 55 F.

229-233; 26 C. J. 695, sec. 81 and n. 81, and cases cited; Treadway v. Sharon, 7 Nev. 37-44;

Spalding v. Columbia Theater Co. (Mo.), 175 S. W. 269; 11 R. C. L. 1069, sec. 13; Id. 1075,

sec. 19; Id. 1077, sec. 20 and n. 10; Fratt v. Whittier, 58 Cal. 126-130; 12 Cal. Jur. 569, sec. 8

and n. 17.

Electric fixtures when installed by tenant are domestic fixtures and not a part of realty. 26

C.J. 725 and n. 76; Brown v. Reno Electric L. & P. Co. (C.C. Nev.), 55 F. 229-234; Raymond

v. Strickland (Ga.), 52 S. E. 619, 3 L. R. A. (N.S.) 69-71; General Electric Co. v. Transit Co.

(N.J.Eq.), 42 A. 101; Excelsior Brewing Co. v. Smith, 110 N.Y.S. 8; In Re West (D.C.Pa.),

253 F. 963; Ballard v. Alaska Theatre Co. (Wash.), 161 P. 478-480; Leibe v. Nicoloi (Ore.),

48 P. 172-173; +� ��5��$��,��$��A>��B��:!�%�


Lindsay Bros. v. Carter Rubber Co. (Pa.), 84 A. 783; 42 L. R. A. (N.S.) 546; Vaughen v.

Holdeman, 33 Pa. St. 523; N. Y. Co. v. Allison (C.C.A.,N.Y.), 107 F. 179; Lyons v. Jarnberg

(Minn.), 150 N. W. 1083; 39 A. L. R. 1044; Canning v. Owen (R.I.), 48 A. 1033, 84 A. S. R.

858; 11 R. C. L. 1078 and n. 12, and cases cited.

LeRoy F. Pike, for Respondent:

For the court to hold that the electrical wiring and fixtures in the Kyne Cafe are not such as

to be lienable, would deprive all electricians and electrical contractors and works of the

benefit of the Nevada lien law, and, further, for the court to so hold it would be necessary for

the court to hold adversely to the great weight of the authorities on this subject. They were

installed for the purpose of equipping that portion of the building for a certain purpose, to wit,

a restaurant, or cafe. Such electrical fixtures are considered a necessity in almost all

restaurants and cafes. The fixtures alone cannot be considered as a separate entity. They are a

part of the whole system of wiring, installed for a particular purpose, in a building to be used

for a particular purpose, to wit, a restaurant. “The object for which the fixtures are to be used

is a controlling feature.” Words & Phrases, vol. 3, 2838; Buchanan v. Cole, 57 Mo. App. 11;

Gass v. Rebling (Cal.), 19 P. 277; Donohue v. Cromartie, 21 Cal. 80; Mitchell v. Reeves

(Colo.), 60 P. 577. Wires and insulators are considered lienable fixtures. 27 Cyc. 37, 38; 26

C.J. 668, sec. 23, p. 24. Electrical fixtures are a part of the realty, and lien may be had for the

same. Riverside Fixture Co. v. Quigley, 35 Nev. 18, 126 P. 543; Gaston v. Avansino, 39 Nev.

128; Canning v. Owin, 48 Atl. 1033; Fratt v. Whittier, 58 Cal. 126; Merritt v. Judy, 14 Cal.

59; Stone v. Suckle (Ark.), 224 S. W. 735. Machinery, easily removable, a fixture for lien

purposes. McRea v. Central Nat'l. Bank, 66 N. Y. 489; Arnold v. Goldfield Chance Min. Co.,

32 Nev. 447, 109 P. 718; Badger Lumber Co. v. Morion Water Supply Co. (Kan.), ��>�


29 P. 476; McGeary v. Osborne, 9 Cal. 119; Fehr Construction Co. v. Potts System Building

(Ill.), 124 N.E. 315; Scanevin & Potter v. Construction Mineral Water Co. (R.I.), 55 Atl. 754.

In the foregoing cases, the machinery, electrical wiring and fixtures for which a lien was

sought were all easily removable from the freehold, yet they were held to be material subject

to the lien law. In the instant case the fans objected to are only a part of the entire design.

Without the fans the special wires and sockets were useless for the purpose for which they

were installed. Crane Co. v. Epworth Hotel Co. (Mo.), 98 S. W. 795.

In determining whether machinery placed in a plant by a lessee became a fixture, the

question is whether the machinery was attached to the building with an intention that it

should become a part of the plant as a whole, in which case it become a part of the leasehold

interest, if essential to the successful operation of the plant. 17 Cal. Jur. 19, p. 35; Stevenson

v. Woodward, 3 Cal. App. 754, 86 P. 990; Schaper v. Bibb, 17 Atl. 935.

The fact that certain materials used in the construction of a building and within its

architectural scheme were detachable and portable, such as an electric light sign, telephone

equipment for communication within the building, gas furnaces and gas connections, and

portions of mill work within the building would not impair the right to a lien. 17 Cal. Jur. 19,

p. 36; Evans v. Judson (Cal.), 52 P. 585.

We do not have to consider the relation of landlord and tenant at all, and it is not involved

in the instant case. Under the Nevada statute and Nevada decisions, Ward is held to be the

purchaser of the fixtures and they are held to have been installed at his instance (Gould v.

Wise, 18 Nev. 253, 3 P. 30; Rosina v. Trowbridge, 20 Nev. 105), as he did not post a notice

of nonliability. Therefore we can consider only the question of vendor and vendee, or owner

and materialman or lien claimant. Further, the rule as applied between landlord and tenant is

much more liberal in its application in behalf of the tenant than in behalf of the owner ��


when applied in cases between owner and lien claimant. Compare: 26 C.J. 688, sec. 58, and

26 C.J. 695, sec. 81.

OPINION

Per Curiam:

This is an appeal from a judgment and also from an order denying and overruling a motion

for new trial. The parties will herein be designated as in the trial court.

The facts, in brief, are these: Prior to the commencement of the action, the defendant T. O.

Ward, as owner in fee, leased to the defendant Kyne Investment Company of Nevada, a

corporation, that certain building erected many years ago on lots 4 and 5, in block Q of the

city of Reno, situate on Center Street. The lease contract is not made a part of the record. On

taking possession of the building in April, 1923, the lessee opened and conducted a restaurant

therein, known as “Kyne's Cafe,” until the latter part of August or the first of September of

that year, when it failed, went out of business, and its property was taken over by its creditors

and the lease abandoned and forfeited.

During the tenancy, and in the month of July, 1923, the plaintiff, Reno Electrical Works,

Inc., a corporation, at the special instance and request of the lessee, furnished and installed in

said restaurant fifteen electrical fans of different sizes, but nothing distinctive or peculiar

about their construction. Two of the fans were placed in an inclosure above the ranges in the

restaurant, one in the front, and the other in the rear of the building, which fans are designated

as “exhaust fans,” and used for the purpose of expelling smoke and odors arising from

cooking. The other fans are designated “oscillating fans,” set at different places in the

restaurant, and used for purposes of ventilation. The insulating material for the exhaust fans

was secured to the walls of the building by screws and nails and the oscillating fans by nails.

The aggregate charge made for the fans, insulating material, and labor was $1,005.70, which

the lessee agreed to pay, and did pay on said amount the ��C20?�01�� C7!:� 1�


sum of $357.50 which left a balance due for the fans, material and labor so furnished the sum

of $648.20. Having failed to receive payment of said sum, the plaintiff on September 13,

1923, filed its claim of lien against lots 4 and 5 and the building thereon owned by defendant

lessor, T. O. Ward.

This action was commenced to recover judgment of $648.20 and for the foreclosure of the

plaintiff's claim of lien. The case was tried to the court without the assistance of a jury, which

resulted in a decision in favor of the plaintiff and against the defendant T. O. Ward. Upon the

rendition of its decision, the court made and caused to be entered, over the objections of the

defendant, its findings of fact and conclusions of law, and, upon its findings and conclusions,

rendered the judgment from which the defendant appeals.

The defendant incorporated in its answer to the plaintiff's amended complaint several pleas

in bar in the nature of pleas in abatement. In view of the conclusions we have reached, it is

not deemed necessary to state and discuss the pleas.

The primary and basic question presented for decision is whether the plaintiff acquired a

valid lien as against the lessor and owner of the lots and building thereon, for the whole or

any part of its claim of $648.20.

Section 1 of an act approved March 2, 1875 (section 2213, Rev. Laws of Nevada),

provides that “Every person performing labor upon, or furnishing material of the value of five

($5) dollars or more, to be used in the construction, alteration or repair of any building or

other superstructure, railroad, tramway, toll road, canal, water ditch, flume, aqueduct or

reservoir, building, bridge, fence, or any other structure, has a lien upon the same for the work

or labor done or material furnished by each, respectively, whether done or furnished at the

instance of the owner of the building or other improvement, or his agent. * * *”

The plaintiff alleged in its complaint that the material and labor supplied was actually used

in the alteration, repair, and construction of the defendant's building.


The finding of fact made by the court does not support the allegation. The court's finding

reads as follows: “That the electrical fixtures, wiring and fans installed in the said premises

by the said plaintiff became fixtures to the building and realty and were subject to lien.”

1, 2. It will be observed that the statute quoted does not specifically, or otherwise, mention

fixtures, but it does use the expression “or other improvement.” It is held, in many cases cited

from other jurisdictions, that a mechanics' lien may be acquired for labor performed or

material furnished in connection with the furnishing and installation of fixtures; that is,

articles which were at one time personal property, but which are so attached to the realty as to

become a part thereof. 40 C.J. 70. It is not now considered as absolutely necessary that an

article be actually fastened to the freehold in order to make it a part thereof. The all-important

questions are the intention of the person who brings it upon the land, the use to which it is to

be applied, and its fitness for that purpose. Dawson v. Scruggs-Vandervoort-Barney Realty

Co., 268 P. (Colo.) 584. The mere fact that the fans were a necessity for the tenant to carry on

its business is not sufficient to subject the defendant lessor's property to the lien. The material

and labor furnished related solely to the defendant's business. There is nothing in the evidence

to show that it was the intention of the lessee or the lessor that the fans and insulating

material were intended to be or become a part of the realty. It is true the insulating material

was secured to the walls of the building by screws and nails, but not so secured as that the

fans and materials could not be removed without injury to the insulation, and also the

building. The proof shows that they were actually removed from the walls and the building

subsequently rented to a Chinese physician.

3. The material furnished had no relation to the permanent improvement of the property of

the lessor or the enhancement of its value. But if we assume that they were improvements,

they were merely trade ��


fixtures, which did not constitute an integral part of the realty. Consequently plaintiff's claim

of lien was not established. Mechanic's lien statutes do not allow a lien for trade fixtures or

chattels, fixtures, improvements, or additions which a tenant will be permitted to remove at

the expiration of his term. 40 C.J. 71. Entertaining this view, we are of opinion that the trial

court erred in finding and in concluding from its findings that as a matter of law the material

and labor furnished by plaintiff constituted a part of the defendant realty and subject to lien.

The judgment is reversed.

____________

��51 Nev. 299, 299 (1929) Sagardia v. Bank��

SAGARDIA v. STOCKGROWERS' & RANCHERS'

BANK

No. 2811

March 1, 1929. 274 P. 811.

1. Evidence—Book Materially Altered Cannot Go to Jury Unless Party Offering it Explains

Alterations, Unless Alterations are Immaterial. A book materially erased or altered cannot go to the jury unless the party who offers it explains the

erasures or alterations, except, however, where the erasures are immaterial.

2. Appeal and Error—Supreme Court Must Infer that Trial Court Sitting as Jury, Admitting in

Evidence Bank Book which Contained Erasure, Determined its Competency; Findings

Not Explaining Erasure. Where depositor sued bank for alleged balance of savings account, and bank book, not in same

condition it was when issued by bank to plaintiff, in that there appeared an erasure on line immediately

following last entry, was admitted in evidence over bank's objection, and the findings of trial court were

silent as to the explanation given of the erasure, supreme court must infer that trial court determined that

book was not only competent evidence, but that court sitting as jury passed on credit to be given the book

in its erased condition.

3. Appeal and Error—Weight of Evidence Held for Court Sitting as Jury. Trial court sitting as jury was proper judge of weight to be given bank book containing erasure which

was admitted in evidence in suit against bank for deposit.



Evidence—22 C.J. sec. 1203, p. 967, n. 73.



Action by John Sagardia against the Stockgrowers' & Ranchers' Bank of Reno and another.

From judgment for plaintiff and order denying a new trial, the named defendant appeals.

Affirmed.

James T. Boyd, for Appellant:

That the book of the depositor in this case was evidence against the bank as to its

indebtedness to the depositor is well-settled law, but the book must appear to be regular on its

face and the entries in the book must be made by the bank or its officials. If the book is

altered in any manner and particularly by erasures, the book is of no value as evidence unless

the erasures or the alterations are explained. Morse on Banks and Banking, vol. 1, sec. 295,

and notes; McLennan v. Bank of California, 89 Cal. 575; Pauly v. Pauly, 107 Cal. 24; Blinn

Lumber Co. v. McArthur, 150 Cal. 614; Culner v. Marks, 7 L. R. A. 489 and note page 495;

Faxon v. Hollis, 13 Mass. 427; Jones on Evidence, sec. 569; Rev. Laws of Nevada, sec. 5418;

State of Nevada v. Manhattan S. M. Co., 4 Nev. 326.

If the decision of the court in this matter is the law of the land in these classes of cases, then

there is no evidentiary value to be placed upon a bank's books. When we find, as in this case,

the depositor's book altered and erasures on it, the bank's books which are kept in the ordinary

course of business showing the payment, and a judgment can be given upon an altered and

erased depositor's books, it leaves the bank completely at the mercy of any person who would

present an altered bank book and explain the alterations by saying, “I don't know anything

about it.” The conflict between the two books should certainly have been in favor of the

books kept in the regular course of business, rather than the book upon whose very face

suspicious circumstances appear to such an extent that it would require the clearest testimony

to explain.


Ayres & Gardiner, for Respondent:

Since the bank books, plus the evidence of the bank officers in extension thereof, were

freely admitted, we fail to see what bearing authorities to the effect that the books were

admissible can have upon this case. What we contend is that the payment alleged by

appellant's answer was an affirmative defense which it had the burden of proving, and which

its books alone were not sufficient to prove. We contend further that books of a bank which

do not show how or to whom payment was made, and particularly do not show that payment

was made to the depositor or his authorized agent, are not competent evidence of money paid

to any particular person. We contend that the books of appellant fail absolutely to show that

the sum in question was ever paid to plaintiff or his authorized agent, or to any other

particular person. If they show payment at all, which we doubt, they merely show that fact

only, and fail to show what is required of a bank to be shown when it sets up payment. The

case of Goddard v. Citizens National Bank (Kan.), 224 P. 59, is exactly in point with the

instant case. The complaint, answer, denials and evidence are similar to this case. We might

rest our case upon that case alone. But we cite the following other authorities, mostly for the

purpose of showing that the above-cited case is not only in line with the authorities to which

it refers, but is in line with all of the authorities. 21 R. C. L. 119 (Payment, sec. 131), and

note 11; in 17, 2d Decennial Digest (1907 to 1916), under the heading of “Payment,” subtitle

“Burden of Proof,” Key No. 65 (6), are numerous comparatively late cases digested as

follows: “Payment is an affirmative defense, and the burden of proving it is upon him who

alleges it.” See, also, Scott v. Austin, 152 P. 1178, 47 Utah, 248; Baldwin v. Porter, 104 N. E.

492, 217 Mass. 15; Barrett-Hicks Company v. Glas, 111 P. 760, 14 Cal. App. 289; Essex etc.

v. Danforth, 88 A. 561, 111 Me. 212; 39 Century Digest, “Payment,” secs 19, 197, 199. There

are so many cases cited that ��


we have selected only one from each heading. Payment must be established by

preponderance of evidence. 21 R. C. L. 120, sec. 132, and cases cited in n. 15; see notes 42 A.

S. R. 317; 55 A. S. R. 960; Shulman v. Brantly, 50 Ala. 81; Perot v. Cooper, 28 P. 391, 31 A.

S. R. 258; Ford v. Lawrence, 51 S. W. 1023. While there do not seem to be any Nevada cases

absolutely in point, we believe that the following cases indicate the same ruling in this State.

Isola v. Sorani, 47 Nev. 365 (see especially p. 368); Devencenzi v. Cassinelli, 28 Nev. 232,

273, 81 P. 441, 449; Roberts etc. v. McKim, 34 Nev. 191.

The same rule applies to banks. 7 C. J. 876, sec. 943, “Evidence,” and n. 89; Rimkus v.

Tananecivz, 207 Ill. App. 96; Noah v. Bank, 122 N. E. 235; Goddard v. Bank (Kan.), 224 P.

59.

Bank must show not only that payment was made, but that it was made either to the

depositor or some one authorized by him, the burden being on the bank to prove each of these

elements. 7 C. J. 672, and cases cited in notes 63 and 64; 7 C. J. 675, sec. 393, and cases cited

in note 11; 7 C. J. 756, sec. 568, note 44; 7 C. J. 868, sec. 916, and cases cited in note 6.

These facts must be proved by evidence in addition to a mere credit entry upon the books

of the bank. Boyd v. Wilson, Federal Case No. 1751, 2 Cranch C. C. 525; Clark v. Wells, 71

Mass. 69; Schwartz v. Allen, 7 N. Y. S. 5.

The pass book was admissible in evidence, and even if it had not been no harm was done

to appellant. The only facts that the pass book could prove were the rules of the bank and the

deposits made by respondent. The pass book contained a complete set of rules, which, under

the law, constitute the contract between appellant and respondent. 6 C. J. 864, note 53, etc.; 1

Ann. Cas. 98; 14 Ann. Cas. 479.

OPINION


The plaintiff, John Sagardia, sued the Stockgrowers' & Ranchers' Bank of Reno, herein

called Stockgrowers' 5� �� 4�� 5� �� *�<��$��


Bank, and made the Scheeline Banking & Trust Company a party. The action was brought on

March 8, 1927, for an alleged balance of savings account with the Stockgrowers' Bank,

amounting to $4,428.51. The Scheeline Banking & Trust Company was made a party

defendant, presumably upon the allegation contained in plaintiff's complaint to the effect that

on December 31, 1923, the said bank purchased all the assets of the Stockgrowers' Bank and

assumed all the liabilities of the seller to its depositors. The case comes before us upon appeal

from the judgment in favor of the plaintiff and against the Stockgrowers' Bank for the sum of

$5,398.23, and from an order denying and overruling its motion for new trial. The Scheeline

Banking & Trust Company being out of the case on appeal, the parties herein will be

designated as in the trial court.

The complaint alleges, and the answer of the defendant admits, the allegation contained in

the complaint that at various and divers times between about the 21st day of December, 1917,

and June 6, 1919, plaintiff deposited with said defendant, Stockgrowers' & Ranchers' Bank of

Reno, various and divers sums of money, which said last-named defendant received from

plaintiff, and, in accordance with its rules and regulations, agreed to keep for plaintiff, subject

to his right to withdraw the same, and to pay him interest on all such sums at the rate of 4 per

cent per annum compounded semiannually upon the first days of January and July of each

year.

The complaint alleges generally, and the answer of the defendant admits, that at the time

said deposits were made, they were made in accordance with the rules, conditions, and

regulations published and printed in a depositor's pass book issued to each depositor and

made a part of the contract between the plaintiff and the defendant.

The complaint alleges, and the answer of the defendant admits, rule 13 of said rules and

regulations inserted in the complaint in respect to interest.

The complaint alleges, and the answer of the defendant admits, that rule 5 of said rules

reads, in part, as ��-�G3��

�� #


follows: “When an account is closed the bank book shall be returned to the bank.”

The answer of the defendant alleges: “That on the 23d day of August, 1922, one John

Sagardia had on deposit in the savings department of the defendant, Stockgrowers' and

Ranchers' Bank of Reno, the sum of $4,428.51. That on the said 23d day of August, 1922, the

said sum of $4,428.51 was paid to the depositor and the said account was closed upon the

books of the defendant.”

The plaintiff filed a reply to the defendant's answer and denied the averment of payment

and reiterated his prayer for judgment.

Upon the issues thus framed, the action was tried to the court without a jury. Findings of

fact and conclusions of law were entered in accordance with the court's decision. All the

allegations of the complaint were found to be true and that the sums deposited by plaintiff

with defendant, together with interest thereon, aggregated the sum of $4,428.51 on June 30,

1922, and that said deposits with interest to July 1, 1927, amounted to $5,398.23. In

accordance with its findings of fact and conclusions of law, judgment was rendered against

the defendant for the amount stated.

Counsel for the plaintiff takes the position on appeal that, upon the issues as framed by the

pleadings, the controversy between the parties is as to whether the defendant on the 23d day

of August, 1922, or upon any other date, paid to plaintiff said balance of savings account,

amounting to $4,428.51, or any part thereof. Counsel for the defendant takes the position that

the immediate question presented by the appeal is whether, upon the record before us, the

plaintiff is entitled to recover.

Error is assigned to the trial court admitting in evidence plaintiff's “pass book” over the

defendant's objections. The greater part of the brief of counsel for the defendant is confined to

the discussion of the alleged error. The ground of objection to the admission of the pass book

was that it was not in the same condition it �� 21�� C!�! :�0��


was in when issued by the defendant to the plaintiff, in that there appears an erasure on the

line immediately following the last entry made in the book on June 30, 1922, showing said

balance of $4,428.51. The book is made a part of the record and was brought here for our

own examination and inspection to determine whether the erasure destroyed the book as

evidence. Counsel argues with considerable force that the admission of such a book as

evidence would open a door to frauds and perjuries and place books, evidently fair, on the

same footing with those fabricated for a particular purpose, and that to allow such a book to

be admitted in evidence would subject this sort of evidence to the danger of great abuse, and

tempt dishonest men to commit fraud by altering books, so as to adapt them to circumstances.

It is further argued that if the book in question, in its erased condition, be considered as proof

of its contents, it would leave banks completely at the mercy of any person who would

present an altered pass book and explain the alteration by saying, “I didn't know anything

about it.” We appreciate the argument, but under the particular facts and circumstances of this

case, the argument is not persuasive.

1-3. A book materially erased and altered cannot go to the jury unless the party offering it

explains the erasures or alterations. Otherwise, however, of immaterial alterations. Abbots'

Proof of Facts (3d ed.) 84. It is our understanding that the erasure had to be explained to the

reasonable satisfaction of the judge before the book could be admitted in evidence. The

Modern Law of Evidence, Chamberlayne, vol. 4, sec. 3103. The record discloses that when

the book in question was offered, it was exhibited to the court below and was considered

admissible in evidence if the erasure appearing thereon was explained. The findings of fact of

the trial court are silent as to the explanation given of the erasure, and we must infer that the

court determined that the book was not only competent to be admitted in evidence and, sitting

as a jury, it passed on the credit to be given the book in its erased condition. The court ��


was the proper judge of its weight, as all other evidence laid before it. We find no error in the

court's ruling.

It is contended on the part of the defendant that the evidence is insufficient to support or

maintain the judgment.

The facts are simple and undisputed. The evidence is clear and points to but the single

conclusion that the balance of plaintiff's account on deposit with the defendant bank was not

paid as alleged in its answer, or at all, and that the plaintiff was entitled to recover as

adjudged by the trial court.

The judgment and the order appealed from are affirmed.

____________

��51 Nev. 306, 306 (1929) Nickovich v. Mollart, Et Al.��

NICKOVICH v. MOLLART, Et Al.

No. 2815

March 1, 1929. 274 P. 809.

1. Aliens—Naturalization Proceedings Before Courts Having Necessary Jurisdiction Are

Judicial in Character. Naturalization proceedings before courts having the necessary jurisdiction are judicial in their nature,

and not administrative in character; the court in passing upon the application exercising its judicial

judgment.

2. Libel and Slander—Witness Testifying by Direction of Court in Legal Proceeding Is Not

Liable for Answers to Questions Relevant and Pertinent to Subject of Inquiry, though

They Are False or Malicious. Where witness testifies in the regular course of legal proceeding, and under the direction of court, he

is not liable for answers made by him to questions by court, provided answers of witness are relevant and

pertinent to subject of inquiry, whether or not they are false or malicious.

3. Libel and Slander—Statements of Witness in Naturalization Proceeding that Alien Was

Living in Adultery with Plaintiff Held Privileged. Where nothing is shown in complaint except that an alleged slanderous statement that alien was living

in adultery with plaintiff was made by the defendant as a witness in judicial proceeding, the same must be

regarded as absolutely privileged, in view of act Cong. June 29, 1906, sec. 4 (8 USCA, sec. 382), making

good moral character qualification for naturalization.

��51 Nev. 306, 307 (1929) Nickovich v. Mollart, Et Al.306��

4. Appeal and Error—Supreme Court Must Presume that Answers by Witnesses Alleged To

Be Slanderous in Naturalization Proceeding were Relevant and Pertinent to Subject of

Inquiry.

In the absence of any averment in complaint showing that an alleged slanderous statement was made by

defendants as witness in naturalization proceeding, supreme court must presume that answers were relevant

and pertinent to subject of inquiry.

5. Aliens—Applicant for Citizenship Must Allege in Petition Fulfillment of Conditions upon

which Right to Become Citizen Depends and Establish Allegations by Competent

Evidence. An applicant for citizenship must allege in his petition fulfillment of all conditions upon existence of

which his right to become citizen is made to depend, and must establish allegations by competent evidence

to satisfaction of the court.

6. Aliens—Alien Committing Adultery Is Not Entitled to Admission to Citizenship. Admission of person guilty of adultery, and therefore immoral, to citizenship is contrary to provisions of

act Cong. June 29, 1906, sec. 4 (8 USCA, sec. 382), and therefore illegal.


Aliens—2 C.J. sec. 138, p. 1115, n. 2; sec. 145, p. 1120, n. 50; sec. 146, p. 1121, n. 55; sec. 148, p. 1122, n.

81.


Libel and Slander—36 C.J. sec. 237, p. 1258, n. 25.

Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.

Action by Anna Nickovich against E. W. Mollart and another. Judgment dismissing

action, and plaintiff appeals. Affirmed.

H. Pilkington, for Appellant:

The trial court took the attitude that the testimony of a witness in a naturalization

proceeding was a privileged communication and as such, having such status, the witnesses

could not be attacked for the truth or falsity of their statements in any proceeding for slander.

We respectfully submit that this conception was a heresy in the mind of the honorable court,

and that the court thereby arrived at an erroneous conclusion. Slander is the defaming of a

person in his or her reputation ��


by speaking words that affect his or her life, office, profession or trade, or means of getting a

livelihood, or which tend to his or her special damage, and words imputing want of chastity

or the commission of adultery are slanderous and actionable. Newell on Slander (4th ed.) 28.

A privileged communication is a communication which under ordinary circumstances

would be defamatory, but given in the course of a proceeding which exonerates the slander,

however defamatory, so that slander will not lie, though the statement be false, unless actual

malice be proved in addition. We respectfully contend that actual malice by the defendants

and respondents was alleged in each and every attempt appellant made to have her complaint

prevail before the court. That the complaint shows a cause which should have been heard by a

jury and the malice proved by the plaintiff, under the full instructions of the court as to the

privileged character, and not to be estimated on the pleadings.

The communication must needs be shown to have been responsive and not volunteered by

the witness, maliciously and willfully, and interjected by him for ill purpose, and any

testimony so given loses its status as a privileged communication, and the witness becomes

liable in action for slander. Newell on Slander, sec. 375; Shadden v. McElwee, 86 Tenn. 146.

We think privileged communications and the legal position of a witness is a defense.

Newell on Slander, sec. 570.

Privileged communications are not extended to ex parte proceedings. Newell on Slander,

454.

The attention of the court is called to the fact that this was a proceeding on behalf of Tom

Markovich for naturalization, and this plaintiff was not a party thereto; that this appears from

the pleading; that the defendants sought an opportunity of making a communication in the

presence of the very persons most likely to act upon it to the prejudice of the plaintiff; that no

confidential relation is shown between the witnesses and the examiner in naturalization, and

if such there were, ��


it should be pleaded and not assumed from any pleading of the plaintiff.

Our Nevada code has provided that in an action for slander it shall be sufficient to state

generally that the same was spoken or published concerning the plaintiff, and that the

defendants shall show mitigating circumstances in his proofs. Rev. Laws of Nevada, sections

5073-4.

Platt & Sanford, for Respondents:

Respondents submit that appellant has misapprehended the attitude of the trial court. No

such broad and unqualified rule as stated by counsel was stated or applied by the trial court.

The rule the trial court did state and apply was set forth in the opinion. It was, first, that the

occasion was privileged, because it was an occasion of testimony by a witness in a judicial

proceeding, to wit, a naturalization proceeding. The communication was prima-facie

privileged. Second, the communication was privileged because it was testimony given on a

privileged occasion, which was pertinent to the issue and given bona fide. Being thus

privileged the words were not actionable even if false and animated by express malice or ill

will.

Had the exact words of the testimony been set up in the complaint the court could have

more accurately determined the question of pertinency and relevancy and good faith. They

might have furnished some facts to fortify the conclusion of “malice.” But even in their

absence we submit a proper decision was arrived at.

“As a general rule libelous or slanderous matter published in due course of a judicial

proceeding is absolutely privileged, and will not support an action for defamation although

made maliciously and with knowledge of its falsity.” 25 Cyc. 376; Hollis v. Meux, 69 Cal.

625, 11 P. 248; 58 Am. Dec. 757. See, also, 30 C.J. 1237, sec. 203; 36 C.J. 1218, sec. 167;

Gosewisch v. Doran, 161 Cal 511, 119 P. 656; Ann Cas. 1913d, 442; 36 C.J. 1239, sec. 204;

36 C.J. 1250, sec. 223.

As to limitation of this rule, to matter relevant and �� 0$��


pertinent to the proceeding, see 25 Cyc. 378, n. 59; notes to Cooper v. Phipps (Ore.), 22 L. R.

A. 836, 33 P. 985; Newell on Slander and Libel, sec. 370 (4th ed.); 36 C.J. 1251, sec. 225;

Miller v. Gust, 71 Wash. 139, 127 P. 845; Abbott v. National Bank of Commerce, 56 P. 376,

175 U. S. 409 (cited by trial court); Myers v. Hodges, 53 Fla. 197, 44 S. 357; Keeley v. Great

Northern R. Co., 145 N. W. 664; 36 C.J. 1251, sec. 226; Simon v. London Guar. Co., 16 A.

L. R. 743 and notes, 104 Nebr. 524, 177 N. W. 824; Kemper v. Fort, 219 P. 85, 13 L. R. A.

(N.S.) 820, 67 Atl. 991.

“But if a defamatory charge against a third person is inseparable connected with a

privileged communication concerning another, it will be protected by the privilege.” 18 A. &

E. Encl. L. (2d ed.), 1025; 36 C.J. 1242, sec. 207; Johnson v. Brown, 13 W. Va. 71, at pp.

136, 137, 138; Etchison v. Pergerson, 88 Ga. 620, 15 S.E. 680; 17 R. C. L. 336, sec. 83, p.

339, sec. 87; Jones v. Brownlee, 61 S. W. 795, 53 L. R. A. 445; Crockett v. McLanahan, 109

Tenn. 517, 72 S.W. 950, 61 L.R.A. 914.

There seems no dispute that this was a judicial proceeding. However, there is authority for

the statement that naturalization proceedings are judicial proceedings. 23 Cyc. 1615, n. 28;

Green v. Salas, 31 Fed. 106, 107; 23 Cyc. 1622, n. 79; In Re Tinn, 84 P. 152; U.S. v. Norsch,

42 Fed. 417.

Privilege need not be set up by answer when the complaint shows privilege not abused. It

may be raised by demurrer. Gosewisch v. Doran, 119 P. 656, 658; Miller v. Gust, 127 P. 845,

syllabus 3 and opinion; Johnson v. Brown, 13 W. Va. 71, syllabus 5; Crockett v. McLanahan,

72 S. W. 950, at 952; Hartung v. Shaw, 130 Mich. 177, 89 N. W. 701.

What a demurrer admits, see Goldstein v. Healy, 201 P. 462, at 463; Edwards v. City of

Reno, 45 Nev. 135, 198 P. 1090; In Re Parrott's Estate, 45 Nev. 318, 203 P. 258.

As to setting out specific words alleged to be slanderous, see Rapp v. Parker, 193 S. W.

535, syllabus 1; 9 Ann. Cas. 495.


As to alleged slander on a third party, see Etchison v. Pergerson, 15 S. E. 680; Cooley v.

Galyon, 109 Tenn. 1.

Counsel relies almost entirely for authority on Newell on Slander and Libel (4th ed.) That

book has been only recently available to us, and we are almost totally unable to identify the

references and to understand their bearing on this case. The pleadings in this case contain no

allegation of facts to the effect that the testimony was not responsive or that it was

volunteered or interjected or to show it was malicious. The court will not presume that which

plaintiff was unable to aver in her complaint. Practically all the matter in Newell's (4th ed.)

relevant to this case is in sections 340 to 389, pp. 377 to 415. The cases cited under sec. 370

are directly pertinent.

For a case on all fours with instant case, see Liles v. Gaster, 42 Ohio State, 631, followed

in 19 C. C. (N.S.) (Ohio), where demurrer were sustained. See, also, Vogel v. Gruaz, 110

U.S. 211, 28 L. Ed. 158. For full notes on testimony of a witness privileged, see 12 A. L. R.

1247.

Appellant states a misleading summary of sec. 5073, Rev. Laws. This section is identical

with sec. 460 California Code of Civil Procedure, the decisions construing which are noted in

16 Cal. Juris. 83.

OPINION


This is an appeal from a judgment of dismissal of the plaintiff's action, entered upon an

order sustaining the defendant's demurrer to the second amended complaint filed in the cause.

The complaint reads as follows;

“That during the month of October 1925 there was heard in this District Court of the State

of Nevada for the Eighth Judicial District in and for Lyon County, the application of one Tom

Markovitch for citizenship in the United States of America. That this plaintiff was not a party

to the said application but that the former husband of the plaintiff was a partner of the said<�� I� ��<�� 4��K��+� �$� ��4��/��


Tom Markovich and the husband of the plaintiff is now deceased and since the decease of her

said husband has been a partner and co-owner with the said Tom Markovich in a ranch

business in Smith Valley, Lyon County, State of Nevada.

“That during the month of October 1925 in the course of the said proceeding and at other

times during the said month of October in Lyon County, Nevada, and at Yerington, Nevada,

the defendants E. W. Mollart and Eleanor Mollart falsely and maliciously and with the intent

to injure the plaintiff and to do her harm, spoke in the hearing of the court, the judge thereof

and the officers of the said court, the attending clerk, the Sheriff of Lyon County, the

witnesses and the spectators, attending the court, and the U. S. Examiner in Naturalization,

and sundry other persons: false and slanderous words concerning the plaintiff, that the

plaintiff was guilty of adultery with the said Tom Markovich and that the said Tom

Markovich was the father of the children of the plaintiff, born to her while living in lawful

wedlock and still married to her husband, Nick Nickovich, now deceased; that the plaintiff

had been sold by her said former husband, now deceased, to Tom Markovich for immoral

purposes; that the plaintiff was a willing white slave, that the children of the plaintiff and of

her said former husband, were the children of Tom Markovich and not of her said husband,

and that plaintiff was guilty of adultery and lewd cohabitation with the said Tom Markovich.

That all of said statements of the defendants were untrue and false and the defendants

knew that the said statements made by them were untrue and false and that the said

statements were malicious and intentionally and knowingly malicious. That the said

statements were made to harm and discredit the plaintiff and were the fruit of the sheer malice

of the defendants.”

The defendant demurred to the pleading upon several grounds: (1) That there is a defect or

misjoinder of parties; (2) that several causes of action have been �� "�A2B�� "�A!B�� <��=� ��M ��4��


improperly united; (3) that the complaint is ambiguous, unintelligible, and uncertain; (4) that

the complaint does not state facts sufficient to constitute a cause of action, in that it

affirmatively appears therefrom that the purported statements attributed to the defendants

were made during a judicial hearing in the court below in the matter of the application of

Tom Markovich to be admitted as a citizen of the United States, and that all the statements

made in the course of that judicial proceeding were and are privileged.

1. The basic question for determination is whether the defamatory statements set forth in

the pleading are privileged. Counsel for appellant seems to contend that a naturalization

proceeding is ex parte, and that the rule of privilege does not extend to an ex parte

proceeding. It is now settled that naturalization proceedings before courts having the

necessary jurisdiction are judicial, not administrative, in character, and that in “passing upon

the application the court exercises judicial judgment.” In Re Stasinopulos (D. C.) 21 F. (2d)

71; Tutun v. United States, 270 U.S. 568, 46 S. Ct. 425, 70 L. Ed. 738.

2. It must be conceded that, where a witness testifies in the regular course of legal

proceedings and under the directions of the court, he is not liable for the answers he may

make to questions put to him by the court or counsel, provided the answers of the witness are

relevant and pertinent to the subject of inquiry, whether or not they re false or malicious. See

36 C.J. 1250-1257, and cases cited in notes.

3, 4. The pleading in this instance is liable to criticism, in that it states inferences and

conclusions rather than direct allegations. It is held that, where nothing is shown in the

complaint except that an alleged slanderous statement was made by the defendant as a

witness in a judicial proceeding, the same must be regarded as absolutely privileged.

Hutchinson v. Lewis, 75 Ind. 55. So in the absence of any averment in the complaint to the

contrary, we must presume that the answers were relevant and pertinent to the subject of

inquiry. Liles v. Gaster, 42 Ohio St. 631.


It is clearly inferable from the allegations of the complaint under review that the subject of

inquiry was the qualifications of Tom Markovich to become a citizen of the United States,

and it is also inferable from the allegations of the complaint that his application was opposed

by the government upon the ground that the appellant had not behaved as a man of good

moral character as to entitle him to citizenship.

5. An applicant for citizenship must allege in his petition the fulfillment of all conditions

upon the existence of which his alleged right is made to depend, and must establish these

allegations by competent evidence to the satisfaction of the court. Tutun v. United States,

supra.

It is inferable from the allegations of the complaint that the application of Tom Markovich

was opposed upon the ground that he did not possess all of the qualifications made requisite

by the naturalization act of Congress of June 29, 1906 (34 U.S. Stats. at Large, 596, c. 3592,

sec. 4; 8 U.S.C.A, sec. 382.

The naturalization act provides that, to authorize the naturalization of an alien it must be

shown that he “has resided continuously within the United States, five years at least, and

within the state or territory where such court is at the time held one year at least,” before his

application, and that during that time, “he has behaved as a man of good moral character,

attached to the principles of the Constitution of the United States, and well disposed to the

good order and happiness of the same.”

6. Under the accepted standard in this country, a person committing adultery is an immoral

person, and admission of such a person to citizenship is contrary to the provisions of the

statute and illegal. United States v. Unger (D.C.) 26 F. (2d) 114.

The fact that defendants, as witnesses in the matter of the application of Tom Markovich

for citizenship, charged the plaintiff with being the person with whom the applicant

committed adultery, does not deprive them ��


of their protection under the rule of absolute privilege.

For the reasons stated, we conclude that the demurrer to the complaint was properly

sustained, and the judgment of dismissal of the action is affirmed.


April 10, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 315, 315 (1929) Hobart Estate Co. v. Jones, Et Al.��

HOBART ESTATE CO. v. JONES, Et Al.

No. 2820

March 1, 1929. 274 P. 921

1. Appeal and Error—Appellate Court, in Absence of Evidence, Must Indulge Every

Presumption in Favor of Lower Court Holding. Where there is no evidence before supreme court on appeal every presumption must be indulged that

there was a showing in lower court warranting its holding on particular question.

2. Mechanics' Liens—Judgment Foreclosing Mechanic's Lien Held Not Erroneous because

Allowing Interest on Amount Due for Supplies Furnished. Judgment in suit to foreclose mechanic's lien held not erroneous because awarding interest on amount

due for supplies furnished in accordance with Stats. 1917, p. 351 (3 Rev. Laws, p. 2855, sec. 4), pursuant

to allegation of complaint as to time when amount sued for became due, since Rev. Laws, sec. 2228, does

not limit amount of recovery therein to principal, but simply requires claimant to enter acknowledgment

of satisfaction when amount due is settled.

3. Constitutional Law—Statutes Are Presumed Constitutional. Every statute is presumed to be constitutional.

4. Mechanics' Liens—Laws Authorizing Attorney's Fees to Prevailing Party, in Suit to

Foreclose Mechanic's Lien, Held Valid. Rev. Laws, sec. 2224, allowing as part of costs, in suit to foreclose mechanic's lien, reasonable

attorney's fees to prevailing party, held valid.



Constitutional Law—12 C.J. sec. 221, p. 791, n. 19.

Mechanic's Liens—40 C.J. sec. 6, p. 46, n. 6; sec. 325, p. 263, n. 3.


Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.

Action by the Hobart Estate Company against Millie R. Jones, Elizabeth A. Rodgers, and

others. From a judgment foreclosing a mechanic's lien, and an order denying a motion for a

new trial, defendants named appeal. Affirmed.

Booth R. Goodman, for Appellants;

In this case no contractural relations existed between the appellants and respondents, and

respondent's claim, even against Walter W. Akers, was an unliquidated claim for the

reasonable value of materials alleged to have been used on appellants' buildings under lease

to Akers. Appellants could not have paid the amounts of the liens as they did not set forth the

materials or any itemized list thereof, and contained charges against Akers determined by the

court to be nonlienable, to wit, coal, which was used for domestic purposes. In view of the

fact that both liens are shown to contain nonlienable items in addition to being absolutely

unliquidated claims, no interest should be allowed against any party before judgment, and

certainly not against the owners of the land.

This claim of lien is clearly distinguished from the kind of lien which is enforced against

an owner upon a contract to pay to a contractor a definite and specified sum. In the

last-mentioned case, here is authority holding that interest may be allowed since the demand

is liquidated, but all authorities are to the fact that interest cannot be allowed where the

demand is unliquidated.

If the court will refer to the findings, it will be noted that in each case the trial court was

determining the reasonable value of the materials furnished; likewise, in the claims of lien,

the reasonable value of the materials furnished is the basis of the demand, and nowhere is

there any contention that a contract to pay a definite sum ever existed. We take this occasion

to call the �� -�5�� )��?�>��! 2"��5��0:�>�


attention of the court to the following authorities: Burnett v. Glass, 97 P. 423; Macomber v.

Bigelow, 58 P. 312. In addition, we call attention to sec. 2228 of the Rev. Laws of Nevada,

providing that if any interested party pays the amount of the claims the lien shall be

discharged or a penalty exacted. Nothing is said about interest, and interest is not

comtemplated where the owner discharges the liens. How, therefore, could the lien claimant

recover interest?

In this case the court allowed an attorney fee of five hundred dollars and ordered the

foreclosure against the property of the appellants. We do not find the authority upon which

this attorney's fee is allowed, and while we may have overlooked at this time the section of

the law, we still submit that no valid law can exist which permits the recovery of such an

attorney's fee against any party to the suit, and certainly not as against the mere owners of the

property. The claims must find sound basis in our statutes for their existence. An attorney's

fee allowed to a lien claimant cannot be based on any law which is in itself unconstitutional.

Under the state and federal constitutions, every party litigant must come into court with equal

rights, and no law which permits a lien claimant to recover an attorney's fee, if successful, can

be permitted to stand as against the fundamental provisions of the constitution. Directly and

absolutely in point on this question is the case of Builders Supply Company v. O'Connor, 150

Cal. 265, 88 P. 982, 119 A.S.R. 193.

W. M. Kearney, for Respondents:

As to appellants' contention that no interest should be granted to respondent on its claims

prior to the date of the decree, it will be noted that all cases cited in appellants' brief in

support of the doctrine go back to and make reference to the case of Cox v. McLaughlin, 18

P. 100. And yet a careful analysis of that case shows that it does not support the rule as

contended by appellants, particularly when applying the facts of the case ��


at bar. In fact, the doctrine is in such a modified form that appellants' contention fails when

the proposition in its full significance is stated. It is clear from the holding in the case of Cox

v. McLaughlin, supra, that the respondent was rightly allowed and granted interest on the lien

claims, for it is clear that under the facts of the case at hand the value of the materials was

fixed and liquidated as to amount, in that they “were susceptible of ascertainment either by

computation or by reference to market values or other known standards.” There was nothing

so peculiar and unique in the character of the materials furnished as to preclude their

susceptibility to ascertainment by computation or by a reference to market values or other

known standards.

In addition, the case of Burnett v. Glass, 97 P. 427, cited at length by appellants, provides

in a paragraph not quoted by appellants that where the amount is so fixed by agreement that it

may be made certain by calculation, interest may be allowed prior to judgment.

The reason underlying the idea that no interest is allowable on unliquidated claims is that

there is no time of default from which to date the running of interest.

Again, the facts of the case at bar, if they could be considered by the court on an appeal on

the judgment roll alone, in the light of this basic theory, show beyond the shadow of a doubt

that they present a case separate and distinct from those in which interest has been denied.

Here, in addition to an amount capable of ascertainment by calculation, we have a definite

date from which to start the running of interest, i.e., the date provided in the agreement as that

when payment should be due, and that date was thirty days after delivery. The pleadings show

this fact.

In further support of this contention we cite 20 N.Y. 463. Likewise, the following cases

hold that if by contract the default may be fixed at a definite and certain time, then interest

may be granted, because the amount and not the right to recover is uncertain. 2 N. Y. 135; 4

Wend. 313; 2 Barb. 643; 36 N. Y. 255. The clearest �� &�� >��+��D �� $��


case in point and one holding unequivocally for the proposition contended for by respondent

is that of Pacific Mutual Life Insurance Co. v. Fisher, 39 P. 758, 760. See, also, 1 Ore. 183;

44 Md. 472; 116 Mass. 196; Van Rensselaer v. Jewett, 2 N. Y. 135, 139.

We call the notice of the court to vol. III of the Revised Laws of the State of Nevada, sec.

2499, at page 2855. It will be seen from an examination of the provisions there set forth under

the heading “money and interest” that provision is made in the statutes of this state for the

allowance of interest in cases such as the present one.

As to the allowance of attorney's fees, sec. 2224, Rev. Laws of Nevada, while covering

similar matters to sec. 1195 of the Code of Civil Procedure of California, is, however, unlike

sec. 1195 C. C. P. which was formerly held to be unconstitutional, in that sec. 2224, Rev.

Laws of Nevada, gives equal rights to both parties, in that an attorney's fee is allowed to the

prevailing party and not alone to the lien claimant as under the old California code section.

In conclusion, without the record of facts before it, this court could not determine whether

or not the lower court had evidence before it to award interest on the lien claim, and not

having the record must assume that the judgment is supported by the facts.

OPINION


This is an action to recover a personal judgment against certain of the defendants and to

foreclose a mechanic's lien. From a judgment foreclosing a mechanic's lien, and an order

denying a motion for a new trial, Millie Jones and Elizabeth A. Rodgers have appealed on the

judgment roll alone. Only two points are urged, namely, that the court erred in allowing

interest on the claim prior to judgment and in allowing an attorney's fee to the plaintiff.


The appellants were, in the year 1923, the owners of certain real estate in Pershing County

Nevada, which they leased to the defendant Walter W. Akers, who thereafter assigned his

lease to the Reservation Land & Cattle Company. The plaintiff sold and delivered to said

Akers, to be used in repairing and enlarging a certain building on said premises, building

supplies, and thereafter in due time filed its mechanic's lien statement. This suit was brought

to foreclose that lien. Certain other lien claimants were joined as defendants with Akers and

the appellants.

1. The first contention we will consider is that the court erred in giving judgment for

interest on the amount due for supplies furnished. In support of this contention we are

referred to the case of Burnett v. Glas, 154 Cal. 249, 97 P. 423, wherein it is held that the

claimant was not entitled to interest for the reason that the amount due was unliquidated. We

have no doubt but that the holding in that case was correct; but, in view of the fact that there

is no evidence before us, every presumption must be indulged that there was a showing in the

lower court that the claim in question was not an unliquidated claim as of the date from

which the court ordered that it draw interest.

2. Our statute provides that, when there is no express contract in writing fixing a different

rate of interest, interest shall be allowed at the rate of 7 per cent per annum upon all money

from the time it becomes due in certain cases, of which this is one. Stats. 1917, p. 351; 3 Rev.

Laws p. 2855, sec. 4. The complaint alleges the time when the amount sued for became due.

In the circumstances we must assume that the amount claimed fell due at the time fixed by

the court. There is no merit in the contention that section 2228, Rev. Laws, limits the amount

of the recovery to the principal. It does not undertake to fix the method of arriving at the

amount due on a mechanic's lien statement, but simply to require the claimant to enter an

acknowledgment of satisfaction when the amount due, whatever ��


it may be, is paid. We do not think the court erred in allowing an attorney's fee.

Counsel for appellant says in his brief: “* * * We do not find the authority upon which this

attorney's fee is allowed and while we may have overlooked at this time the section of the

law, we still submit that no valid law can exist which permits the recovery of such an

attorney's fee against any party to the suit and certainly not as against the mere owners of the

property. The claims must find sound basis in our statutes for their existence. An attorney's

fee allowed to a lien claimant cannot be based on any law which is, in itself,

unconstitutional.”

Section 2224, Rev. Laws, provides: “* * * The court may also allow, as part of the costs,

the moneys paid for filing and recording the lien, and shall also allow to the prevailing party

reasonable attorney's fees.”

Counsel disclaims knowledge of this provision of our statute and places his argument upon

the reasoning in Builders' Supply Depot v. O'Connor, 150 Cal. 265, 88 P. 982, 17 L. R. A.

(N.S.) 909, 119 Am. St. Rep. 193, 11 Ann. Cas. 712, which held that a statute which

authorized the allowing of an attorney's fee to the lien claimant, in case he prevailed, but

which made no provision for an attorney's fee to the adverse party in case he prevailed, is

void. The case is not in point, since our statute authorizes an allowance of an attorney's fee to

the prevailing party, whether plaintiff or defendant.

3, 4. Every statute is presumed to be constitutional, and as the California case is not in

point, and as no other reason is pointed out as a ground for holding it unconstitutional, we are

compelled to say that the law quoted is valid. Without expressing an opinion we may say that

there are authorities which seem to raise a serious doubt as to the correctness of the opinion

of the California court. Among them are: Missouri, K. & T. Ry. Co. of Texas v. Cade, 233

U.S. 642, 34 S. Ct. 678, 58 L. Ed. 1135; Vosburg v. A. T. & S. F. Ry. Co., 89 Kan. 114, 130

P. 667; Cascaden v. Wimbish A$�$�%�B��7��@�


(C.C.A.), 161 F. 241; A. T. & S. F. Ry. Co. v. Matthews, 174 U.S. 96, 19 S. Ct. 609, 43 L.

Ed. 909; Mills v. Olsen, 43 Mont. 129, 115 P. 33.

Perceiving no error on the record, the judgment and order are affirmed.


May 15, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 322, 322 (1929) State v. Muldoon��

STATE v. MULDOON

No. 2837

March 5, 1929. 274 P. 922.

1. Poisons—Instruction Conforming to Statute in Prosecution for Possessing Narcotic Drug

for Purpose of Sale as to Prima-Facie Proof of Possession Held Not Erroneous. Instruction in prosecution for having possession for purpose of sale narcotic drug in quantity

exceeding one ounce, that proof of possession of narcotic drug inclosed or wrapped in package or

container or otherwise arranged in form suitable or adapted for sale shall be prima-facie proof of

possession for purpose of sale, held not erroneous, where it conformed to language of narcotic act 1923

(Stats. 1923, c. 33), sec. 5, as amended by Stats. 1925, c. 146.

2. Poisons—In Prosecution for Possessing Narcotic Drug for Sale Whether Drug Was

Arranged in Form Suitable for Sale Held for Jury. In prosecution for having possession of narcotic drugs for purpose of sale, it was for jury to determine

whether under all facts and circumstances drug was arranged in such form as to be suitable or adapted for

purpose of sale, within meaning of narcotic act 1923 (Stats. 1923, c. 33, sec. 5, as amended by Stats,

1925, c. 146).

3. Criminal Law—Instruction that Law Presumes Man to Intend Reasonable Consequences of

Act Intentionally Done Held Not Erroneous, as Eliminating Question of Intent from

Jury. Instruction that law presumes man to intend reasonable and natural consequences of act intentionally

done, and that such presumption of law will always prevail, unless from consideration of evidence

bearing thereon jury entertains reasonable doubt, held not prejudicial, as eliminating from jury question

of intent provable as any other fact in case.


Criminal Law—18 C.J. sec. 2490, p. 1047, n. 65.

Poisons—31 Cyc. p. 899, n. 28.


Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.

William Muldoon was convicted of possessing a narcotic drug for the purpose of sale, and

he appeals. Affirmed.

Frame & Raffetto, for Appellant:

It was error for the trial court to give instruction No. 5, which laid down the rule of

prima-facie evidence. While this instruction in the abstract correctly declared the law, it was

inapplicable in this case for the reason that there was no proof offered at the trial proving or

tending to prove that the yen shee was contained in a container or wrapped in such a manner

as to be adaptable for the purpose of sale. Whether the same was so prepared is an evidentiary

fact, capable of proof, and of which the jury could not take judicial notice or resort to

common knowledge. This instruction was harmful to the defendant because the jury may

have assumed that because of the giving of this instruction the drug in question was wrapped

or prepared in such a manner as to indicate that the same was kept for the purpose of sale,

when there was nothing in the evidence to establish such fact or justify such an inference. An

instruction may be harmful and erroneous when same is inapplicable to the case made out

before the jury, even though the same may state correctly in the abstract a principle of law.

Instruction No. 12 was clearly erroneous and highly prejudicial to the defendant. It

declared that the law presumed that from acts assumed to have been proven that as a matter of

law the defendant was presumed to intend the natural and probable consequences of the act. It

casts the burden upon the defendant to overcome this legal presumption asserted to exist as a

matter of law, and deprives the defendant of the legal presumption of innocence, which, on

the contrary of the rule asserted, presumed the defendant to be innocent of the specific

criminal intent essential to constitute the offense charged, and cast upon the prosecution the��


burden of proving as a matter of fact that the defendant did possess such criminal intent, with

which legal presumption had nothing to do. The question is not one of law but one of fact to

be proven by the state. The only legal presumption, independent of evidence, that can obtain

is the presumption of innocence. State v. Cerfoglio, 46 Nev. 350; State v. Pappas, 39 Nev. 40;

State v. MacKinnon, 41 Nev. 182. We insist the instruction was ambiguous and misleading,

and did not, even in the abstract, state correctly any rule of law applicable to the case under

consideration, and on the contrary took from the jury the right to determine for themselves as

a matter of fact the weight and sufficiency of the evidence before them, in so far as the same

affected the question of intent, and was naturally calculated to lead the jury to believe that the

intent arose from a legal presumption which the law presumed from acts of the defendant,

which it might be inferred from the instruction had been proven at the trial, and that the

inference to be drawn therefrom was a matter of law which presumed that the defendant

intended even the probable consequences of the act.

As we have pointed out, there is no tangible proof of the existence of any fact bringing the

case within the prima-facie rule laid down by the statute. Hence the verdict should not have

been for more than the unlawful possession of the yen shee in question.

John R. Ross, District Attorney; M. A. Diskin, Attorney-General, and Wm. Forman, Jr.,

Deputy Attorney-General, for the State:

The position taken by appellant in his opening brief was that the state would necessarily

have to show the drug to be prepared in bindles or similar packages in order for it to be

adapted or suitable for sale. The state's contention is that such a requirement is not

contemplated by the statute. The defendant was convicted of being a wholesaler, in selling

narcotic drugs wholesale. Almost any kind of package or container can be a suitable one in

which the defendant might ��


sell the drug. The jury, having had before it in evidence the narcotic drug and the container,

could decide for itself whether or not such container was adaptable for the purpose of sale.

Especially should this be the case where one is charged and the proof shows him to be a

wholesaler of such drugs. Minter v. City of Jackson (Miss.), 57 So. 549; Price v. City of

Gulfport, 52 So. 486; Gillespie v. State, 51 So. 811. Instruction No. 5 given by the court

simply quoted the statute which applied to the prosecution in this case. There could be no

error in the court giving that instruction.

In contending that the court erred in giving instruction No. 12, appellant cites the cases of

State v. MacKinnon, 41 Nev. 189, and State v. Pappas, 39 Nev. 40, to the point that such an

instruction is erroneous. An examination of these cases will show that the instruction given in

those cases was substantially different from the instruction given here. The instruction here

was substantially to the effect that the jury should acquit the defendant if they had a

reasonable doubt of his intent, but they could take into consideration the fact that a man

intends the reasonable and natural consequences of an act intentionally done. Such has always

been the law of this state. See State v. McGinnis, 6 Nev. 109, holding that criminal intent can

only be proven as a deduction from a declaration or act, and when the acts are established, the

natural and logical deduction is that defendant intended to do what he did do, and if he offers

no excuse or palliation of the act done, such deduction would become conclusive.

The court had further instructed the jury in instruction No. 7 to the effect that a man cannot

be criminally held responsible for the possession of that which he is not shown to actually and

consciously possess. When taking into consideration instruction No. 12 and the remaining

instructions, there can be no doubt that defendant was not prejudiced by these instructions,

but, on the other hand, this instruction clearly stated the law applicable to the case. In other

words, if defendant consciously became the possessor of these drugs, ��


he is to be held responsible for his act in possessing them when such act was purely voluntary

on his part.

OPINION


The appellant, William Muldoon, designated herein as “defendant,” was convicted of the

crime of having in his possession, for the purpose of sale, a narcotic drug, to wit, yen shee, in

a quantity exceeding one ounce. Upon his conviction the defendant was sentenced to

confinement in the state prison for a period of not less than 10 years nor more than 15 years.

The defendant appeals to this court from the judgment and sentence, and also from an order

denying the defendant's motion for a new trial. The defendant seeks reversal of the judgement

and order appealed from upon the grounds of the insufficiency of the evidence to support the

judgment and sentence; that the judgment is against law; and that the trial court misdirected

the jury upon one of the ingredients of the offense charged, namely, intent.

The information upon which the defendant was convicted is grounded upon section 5 of

the narcotic act of 1923, as amended by the act of 1925 (Stats. 1923, p. 39, c. 33; Stats. 1925,

p. 231, c. 146). Section 5 of the act as amended reads:

“A peddler of any of the narcotic drugs enumerated in section one of this act is hereby

defined as a person selling, furnishing, or giving away or having in his possession for the

purpose of sale, furnishing, or gift of any of said narcotic drugs in quantities not exceeding

one ounce.

“A wholesaler of any of the narcotic drugs enumerated in section one of this act is hereby

defined as a person selling, furnishing, or giving away, or having in his possession for the

purpose of sale, furnishing, or gift of any of said narcotic drugs in quantitites exceeding one

ounce. Any person violating the provisions of �� -�% ��


this section shall be guilty of a felony, and shall be punished as follows: Any person who

shall be convicted of being a peddler as herein defined shall be punished by imprisonment in

the state prison for a period of not less than five years, and any person who shall be convicted

of being a wholesaler as herein defined shall be punished by imprisonment in the state prison

for period of not less than ten years. Proof of the possession of any narcotic drug inclosed or

wrapped in a package or container or otherwise arranged in such form as to be suitable or

adapted for the purposes of sale shall be prima-facie proof of possession for the purpose of

sale.”

The facts, in brief, are substantially as follows: William Muldoon, an Indian, conducted a

grocery store in the incorporated town of Yerington, adjacent to an Indian camp therein. On

November 5, 1927, his place of business was visited by two federal narcotic inspectors,

armed with a warrant to search defendant's premises. When the defendant was informed by

the inspectors of the warrant, he stated to them that it would be unnecessary to make a search,

as he had the “stuff” and would have his wife give it to them. His wife left the presence of the

parties and returned with a can containing more than four ounces of yen shee. No search

apparently was made by the inspectors to find other narcotics. One of the inspectors who

testified upon the trial stated that the defendant offered them $1,900 to forget the incident and

keep “mum.” The defendant was placed under arrest and taken before a United States

commissioner in Yerington, where one of the inspectors. A. W. Roberts, the witness referred

to, swore to a complaint against the defendant, presumably under the federal narcotic act. The

record discloses that the government yielded its jurisdiction over the defendant, and he was

delivered into the custody of the local state officers, and he was prosecuted, as above stated,

for the violation of the narcotic act of 1923, as amended by the act of 1925.

1, 2. At the close of the testimony the jury was �� :��


burdened with 18 instructions as to the law and procedure. Counsel for the defendant

contends that particularly two of the instructions, namely, instruction No. 5 and instruction

No. 12, constitute reversible error.

Instruction No. 5 reads as follows: “You are instructed that proof of the possession of any

narcotic drug inclosed or wrapped in a package or container, or otherwise arranged in such

form as to be suitable or adapted for the purpose of sale, shall be prima-facie proof of

possession for the purpose of sale.”

It will be observed that this instruction conforms to the language of the statute with respect

to the rule of prima-facie evidence, and its application was left entirely with the jury.

Conceding that the narcotic drug found in the possession of the defendant was not inclosed or

wrapped in a package, or container, such as might be considered as being particularly adapted

for the purpose of the sale of its contents, either by wholesale or peddling, nevertheless, it

was for the jury to determine whether, under all of the facts and circumstances, the drug was

arranged in such form as to be suitable or adapted for the purpose of sale. It frequently

happens that a statute designates a certain kind of evidence as proof of certain facts. For

example, our attention is directed to statutes which prescribe that having spirituous liquor on

a counter in a public house shall be prima-facie proof of selling. This designation, however,

does not, unless the statute expressly so provides, exclude other proof of such facts. 1

Wharton's Criminal Evidence (10th ed.) sec. 157. The can, containing more than four ounces

of yen shee, found in the possession of the defendant, was admitted in evidence as being

prima-facie proof, in connection with other facts, that the defendant possessed the drug for

the purpose of sale. Conceding that the can was not a container such as that used by those

lawfully engaged in the business of sale of such drugs, it, nevertheless, was a question for the

jury to determine whether or not the particular receptacle was suitable or adapted for the

purpose of the sale of its contents. Under the rule of prima-facie ��

��


proof as laid down by the statute, the state was not limited or restricted to any particular kind

or character of container, provided it was one suitable or adapted for the purpose of sale of

the drug, either by peddling or in bulk.

3. Instruction No. 12 complained of reads as follows: “The jury is instructed that upon the

question of intent the law presumes a man to intend the reasonable and natural consequences

of any act intentionally done; and this presumption of law will always prevail, unless, from a

consideration of all the evidence bearing upon the point, the jury entertain a reasonable doubt

whether such intention did exist.”

Counsel for the defendant contends that the giving of this instruction was prejudicial, in

that it eliminated from the jury the question of intent, provable as any other fact in the case. In

support of this contention, counsel relies upon the authority of the cases of State v. Pappas, 39

Nev. 40, 152 P. 571, and State v. MacKinnon, 41 Nev. 182, 168 P. 330. We do not consider

the cases in point. In those cases the trial court in effect instructed the jury that the law

presumes the existence of a specific intent. The instruction here does not do that. It simply

advises that the law presumes a man to intend the natural consequences of an act intentionally

done, and leaves to the jury the determination of what the intention was.

It is argued on behalf of the defendant that the evidence is insufficient to support the

verdict. After a consideration of the entire evidence, we are not in accord with this contention.


Coleman, J.: I concur.

Ducker, C. J., concurring:

I concur in the order of affirmance and in so much of the opinion of Justice Sanders as

deals with instruction No. 5.

I also concur in the conclusion that the giving of instruction No. 12 was not error. The law

certainly �� &��


presumes a man to intend the reasonable and natural consequences of any act intentionally

done. State v. Newton, 4 Nev. 410. The presumption is, of course, one that may be rebutted.

This is clearly stated in the instruction.


August 12, 1929.

Per Curiam:

Rehearing denied.

____________


STATE OF NEVADA Ex Rel. NEVADA DOUGLASS GOLD MINES, Incorporated, v.

THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT, In and For

Mineral County, Et Al.

No. 2856

March 8, 1929. 275 P. 1.

1. Corporations—Later Statute Controlled Earlier Statute Relating to Service of Summons on

Corporation, where Conflicting. Stats. 1913, c. 76, relating to service of summons on corporation, controlled previous statute, Rev.

Laws, sec. 5023, pertaining to same matter, where they are conflicting.


Corporations—14a C.J. sec. 2898, p. 800, n. 86.

On petition for rehearing. Petition denied. (Sanders, J., dissenting)

C. C. Ward, District Attorney, and M. A. Diskin, Attorney-General, for Respondents:

The weight of authoritative precedents is to the effect that: “Where a judgment has been

rendered by the court without jurisdiction of the person, a general appearance after such

judgement waives all objection to the jurisdiction of the court over the person. Thus a general

appearance by defendant after final judgment waives any and all defects and irregularities in

the service of process and return, just as fully as it does where such appearance is entered

before final judgment.” Crane v. Penny, 2 Fed. 187; Lee v. Houston, 1�%��


20 Ala. 301; Touchstone v. Harris, 22 Ark. 365; Thompson v. Alford, 135 Cal. 52; Balfe v.

Rumsey etc. Co., 55 Colo. 97; Ryan v. Driscoll, 83 Ill. 415; Miles v. Goodwin, 35 Ill. 53;

Briggs v. Sneghan, 45 Ind. 14; Moffitt v. Chicago Chronicle Co., 107 Iowa, 407; Aherne v.

Wa Keeney Land etc. Co., 82 Kan. 435; Barnett v. Holyoke Ins. Co., 78 Kan 630; Moses v.

Hoffmaster, 64 Kan. 142; Baker v. Agricultural Land Co., 62 Kan. 79; Kaw L. Assoc. v.

Lemke, 40 Kan. 142; Johnson L. & T. Co. v. Burr, 7 Kan. A. 703; Louisville etc. R. Co. v.

Jordan, 112 Ky. 473; Tootle-Weakley Millinery Co. v. Billingsley, 74 Nebr. 531; Fisk v.

Thorp, 60 Nebr. 713; Dredla v. Baache, 60 Nebr. 655; Tisdale v. Rider, 119 App. Div. 594;

Crystal v. Ohmer, 139 N. Y. S. 841; Willett v. Blake, 39 Okl. 261; Farmers Nat. Bank v.

Pryor Creek Bank, 24 Okl. 140; Fildew v. Milner, 57 Ore. 16; Waymire v. Shipley, 52 Ore.

464; Jeannette v. Roehme, 195 P. 230; Taylor v. Sledge, 110 Tenn. 263; Morotock Ins. Co. v.

Pankey, 91 Va. 259; Columbia etc. R. Co. v. Moss, 53 Wash. 512; French v. Ajax Oil etc.

Co., 44 Wash. 697; Kilpatrick v. Horton, 15 Wyo. 501; Barra v. Peo, 18 Colo. A. 16; Ryan v.

Driscoll, 83 Ill. 415; McCarthy v. McCarthy, 66 Ind. 128; Pry v. Hannibal etc. R. Co., 73 Mo.

123; McCormick Harvesting Mach. Co. v. Schneider, 36 Nebr. 206; Boulder Sanatorium v.

Vanston, 14 N. M. 436; Yorke v. Yorke, 3 N. D. 343; Clarkson v. Washington, 38 Okl. 4;

Welch v. Ladd, 29 Okl. 93; Lookabaugh v. Epperson, 28 Okl. 472; Rogers v. McCord-Collins

Mercantile Co., 19 Okl. 115; Anderson v. McClellan, 54 Ore. 206; Henry v. Henry, 15 S. D.

80; Pfister v. Smith, 95 Wis. 51; Gilbert-Arnold Land Co. v. O'Hare, 93 Wis. 194; Insurance

Co. of North America v. Swineford, 28 Wis. 257.

“As to the immediate parties to the action, a general appearance validates a judgment that

was theretofore absolutely void for want of jurisdiction.” Barnett v. Holoyoke Mut. F. Ins.

Co., 78 Kan. 630, and other authorities, supra. See, also, Deegan v. Deegan, 22 Nev. 185;

Bowers on Process and Service, secs. 9-10, pp. 14-15, and authorities cited.


“The authority of any agent to bind the corporation by acceptance or receipt of legal

process is seldom conferred by express authority of the principal; it is implied by law from

the ostensible relationship between the parties. * * *” Bass v. Am Products etc. Co., 124 S.C.

346; 30 A.L.R. 168.

Cyrus A. Hovey and Green & Lunsford, for Petitioner:

Here there was no general appearance. There was only the naked statement—not under

oath—that service had been made and was admitted. There was no statement that the

corporation appeared in the action. But if there had been such a statement it would have been

nugatory, for: “A corporation cannot appear in an action in person; but must appear by

attorney.” C.J. 14a, p. 812, sec. 2921, and cases cited.

“Appearance by the president of a corporation is not appearing by the corporation.”

Whitehall v. Concordia, 127 La. 1022, 54 So. 337

It is good law, as everybody knows, that a general appearance validates a judgment, as to

the immediate parties thereto, even though the judgment were theretofore void. But in none of

the cases cited by counsel was the general appearance made otherwise than by an attorney at

law.

OPINION


The respondent has filed a very elaborate petition for a rehearing, and, as remarkable as it

may seem, the only point urged is one barely suggested on the original hearing, which is that

the so-called appearance in behalf of the defendant in the lawsuit validated the judgment and

sale theretofore made.

As we said in the original opinion, there was no showing that the person who filed such

appearance was an officer of the company, nor is there anything to indicate that the signature

is genuine. The record in this matter shows that this proceeding was instituted as the result �� =�� L��7�� :�


of an authorization by the board of directors held on October 6, 1928. The so-called

appearance was after this proceeding was instituted. Certainly in view of this situation, no

serious consideration can be given the so-called appearance.

Our esteemed associate does not disapprove of the foregoing views, but is of the opinion

that a rehearing should be granted on a ground not suggested by counsel for the respondents,

namely, that section 5023, Rev. Laws, controls, rather than Stats. 1913, c. 76, as to the

persons upon whom service of summons must be made when a corporation is a defendant.

There are several objections to this view, we think. If the suggestion is sound in law, there is

no reason for granting a rehearing. Such action would not result in a different conclusion as to

the validity of the judgment, but merely to prolong the agony at additional expense to the

litigants. It would not result in a different conclusion, for the reason that the summons in the

suit was not served upon a person mentioned in section 5023, Rev. Laws.

But we think the 1913 statute controls. It was adopted subsequent to the adoption of

section 5023, Rev. Laws, and pertaining to the same matter must control, where in conflict.

State v. Esser, 35 Nev. 429, 129 P. 559. The mere fact that section 81, c. 177, Stats, 1925,

provides that service of process shall be made in the manner provided by law for the service

of civil process does not affect the situation, since the manner provided by law for the service

of civil process upon a corporation is the manner provided by the 1913 act.

For the reasons given, the petition is denied.

Ducker, C. J.: I concur.

Sanders, J., dissenting:

On further consideration of the record in this proceeding on certiorari, I am of opinion that

the petition for rehearing should be granted. The opinion sought to be reviewed (51 Nev. 206,

273 P. 659) states:

“The applicant is a Nevada corporation. Statutes of 1913, p. 65 names the persons upon

whom a summons ��


must be served. None of the persons named in the statute was served in the action sought to

be reviewed. It is true that service was made upon a person not designated in the statute, but

there is no contention by counsel that service was made on any one designated by statute. In

this situation the judgment is void ab initio.”

I do not consider the act of 1913 to be the law applicable to the service of summons upon a

corporation formed under the laws of this state, such as the Nevada Douglass Gold Mines,

Incorporated, the petitioner. Stats. 1925, p. 287, c. 177, is entitled: “An act providing a

general corporation law.” Section 1 of the act provides:

“The provisions of this act shall apply to corporations hereafter organized in this state,

except such corporations as are expressly excluded by the provisions of this act. * * *”

The Nevada Douglass Gold Mines, Incorporated, was incorporated after the approval of

the act of 1925. Section 81 of the act provides as follows:

“In any action commenced against any corporation, in any court of this state, service of

process shall be made in the manner provided by law for the service of civil process.”

Section 81 of the civil practice act (section 5023, Rev. Laws) provides:

“The summons must be served by delivering a copy thereof attached to a certified copy of

the complaint as follows:

“1. If the suit is against a corporation formed under the laws of this state; to the president

or other head of the corporation, secretary, cashier, or managing agent thereof.”

In view of these enactments, the statute of 1913, in my opinion, is not now applicable to

service of summons on a corporation formed under the laws of this state. It is true this point is

not urged in the petition herein as a ground for a rehearing, but, in view of its importance, I

think our opinion should be reviewed.

____________

��51 Nev. 335, 335 (1929) Garred v. Garred��

GARRED v. GARRED

No. 2852

March 13, 1929. 275 P. 2.

1. Appeal and Error—Motion to Dismiss Appeal Must be Sustained, in Absence from Record

of Bill of Exceptions. In absence from record on appeal of bill of exceptions, settled and allowed within time required by

Stats. 1923, c. 97, or at all, respondent's motion to dismiss appeal must be sustained.



Appeal from Third Judicial District Court, Eureka County; W. R. Reynolds, Judge.

Action for divorce by U. A. Garred against Elizabeth H. Garred. From an adverse

judgment and from an order denying a new trial, plaintiff appeals. On defendant's motion to

dismiss the appeal. Motion granted, and judgment sustained.

R. R. Gill, of Ely, for Appellant.

Edgar Eather, of Eureka, and Thatcher & Woodburn, of Reno, for Respondent.

OPINION


This is a motion to dismiss an appeal taken from a judgment and from an order denying a

new trial in the divorce action of U. A. Garred, Plaintiff, v. Elizabeth H. Garred, Defendant.

After consideration of the entire record, the motion to dismiss the appeal from the order

must be sustained for the following reason: The record on appeal contains no bill of

exceptions settled and allowed by the judge or court or by stipulation of the parties within the

time required by the statute, or at all. Stats. 1923, p. 163, c. 97. See Barbash v. Pitt, 48 Nev.

108, 227 P. 1018, 233 P. 844, 236 P. 1101; Shirk v. Palmer, 48 Nev. 451, 232 P. 1083, 236 P.

678, 239 P. 1000; Water Co. of < ��< ��5�� .�� $��

��51 Nev. 335, 336 (1929) Garred v. Garred��

Tonopah v. Tonopah Belmont Development Co., 49 Nev. 172, 241 P. 1079; Markwell v.

Gray, 50 Nev. 427, 265 P. 705.

Finding no error upon the face of the judgment roll, the judgment appealed from is

sustained.

____________

��51 Nev. 336, 336 (1929) Ex Rel. Adams-McGill Co. v. McKernan��

STATE Ex Rel. ADAMS-McGILL CO. v. McKERNAN

No. 2858

March 13, 1929. 275 P. 369.

1. Taxation—Mandamus Lies to Compel County Auditor to Reduce Assessed Valuation of

Land as Tax Commission Ordered after Refusal of Board of Equalization. Petition for mandamus to compel county auditor to reduce assessed valuation of petitioner's land held

not demurrable as not showing that statutes had been complied with by petitioner, it appearing that state

board of equalization refused application for lowering valuation by making no recommendation, after

which petitioner applied to state tax commission under Stats. 1917, c. 177, sec. 6, which lowered

valuation, section 10 prohibiting action for redress until commission denies it.


Mandamus—38 C.J. sec. 415, p. 773, n. 3.

Mandamus by the State of Nevada, upon the relation of the Adams-McGill Company,

against John O. McKernan, to compel respondent as Auditor of White Pine County to make

reductions in taxes as ordered by the Nevada Tax Commission. Respondent interposed a

demurrer to the sufficiency of the petition for the writ, and protested against the alternative

writ of mandamus issued being made permanent. Writ issued.

Chandler & Quayle, of Ely, and M. A. Diskin, Attorney-General, for Petitioner.

Guy E. Baker, of Ely, for Respondent.

OPINION


The Adams-McGill Company, a taxpayer, made application to the state board of

equalization, at its regular �� %�� :�� 3��>� �� &��=�� :�


meeting in August, 1928, to lower the assessed valuation of its land within the county of

White Pine, theretofore established by the assessor and board of equalization of said county

for the purpose of taxation, for the year 1928. Its said application was referred to the land

committee of said state board of equalization for consideration and report. After a hearing the

committee reported as follows: “This committee feels that we have insufficient information to

enable us to act on the further application for reduction of valuations on the other properties

of the Adams-McGill Company. We make no recommendation.”

The state board of equalization approved and adopted the report of the land committee,

and, without further action on the application, concluded its business and adjourned.

Thereafter the Adams-McGill Company renewed its application to the Nevada tax

commission, at its regular meeting in October, 1928, to lower the assessed valuation of its

land, as aforesaid. After a hearing the Nevada tax commission made an order reducing the

assessed valuation of the land of the company in White Pine County, situate within a federal

forest reserve therein, to the amount of $1.25 per acre, and reduced the value of its land

situate without said federal forest reserve 25 per cent, and lowered the assessment on certain

land under lease to the company 25 per cent.

Thereafter the secretary of the Nevada tax commission, as required by law, certified to

John O. McKernan as auditor of White Pine County the changes or reductions as ordered by

the commission, with direction to make the changes in the assessment roll prior to the

delivery of his complete tax roll to the tax receiver of White Pine County. Upon receipt of the

order, the auditor declined and refused to comply with its directions and presumably

delivered his completed tax roll for the year 1928 to the ex officio tax receiver of White Pine

County. Upon said refusal, the Adams-McGill Company filed its petition in this court for a

writ of mandamus, commanding said John O. McKernan, as auditor of White Pine $� �� /��


County, to make the reductions as ordered by the Nevada tax commission. Upon

consideration of the petition, an alternative writ of mandamus issued, and on the day fixed for

return the respondent appeared by his attorney, who interposed a demurrer to the sufficiency

of the petition for the writ and protested against it being made permanent, principally for the

reason that it did not affirmatively appear from the petition that the petitioner had complied

with the several steps required by statute to have the state board of equalization and the

Nevada tax commission review the assessed valuation by the county assessor and the county

board of equalization of White Pine County of petitioner's lands therein for the purpose of

taxation for the year 1928.

We are not in accord with this contention, and are of opinion that the petitioner pursued

the only remedy provided by law, to have the valuation of its land, as established by the local

authorities, lowered or reduced.

Section 6 of the act creating the Nevada tax commission (Stats. 1917, p. 328) provides,

among other things, that if the state board of equalization shall fail to perform the duties

enumerated in the section, the Nevada tax commission may make such equalization as will be

necessary, and any person whose assessment valuation has been raised by said state board of

equalization may complain to the Nevada tax commission on or before the third Monday in

October in said year, and said commission may correct and remedy any inequality or error so

complained of.

1, 2. We are of opinion that the report of the land committee, approved by the state board

of equalization, which report states, “We make no recommendation,” was tantamount to the

refusal of that board to grant the petitioner the relief demanded in its application, and by

virtue of the provisions contained in section 6 it had the right to complain to the Nevada tax

commission to remedy any inequality in the assessed valuation of its land. It is perfectly clear

to us that, in view of the plain provisions contained in section 6, the petitioner pursued the

only remedy it had under the statute to have the tax ��


commission make findings upon its complaint. Section 10 of the act provides that no redress

from the finding of either the tax commission or the state board of equalization may be

obtained in a court of law, and no action can be instituted upon the act of an assessor or the

county board of equalization, or the state board of equalization, until the said tax commission

has denied the complainant redress. We have no hesitancy in affirming our former order

directing the writ to issue.

____________

��51 Nev. 339, 339 (1929) Ex Rel. Ormsby v. District Court��

STATE Ex Rel. ORMSBY v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT, in

and for Washoe County, Et Al.

No. 2845

April 1, 1929. 276 P. 14.

1. Divorce—Husband Suing Nonresident Wife for Divorce May Be Required to Pay her

Railroad Fare to and from Place of Trial. Under Rev. Laws, sec. 5843, husband suing nonresident wife for divorce may be required to pay her

railroad fare to and from place of trial to enable her to defend suit.

2. Divorce—Proceedings in Husband's Divorce Suit May Be Stayed or Suspended until He

can Furnish Wife Means to Defend Suit. Proceedings in husband's divorce suit may be stayed or suspended until he becomes of sufficient

ability to furnish wife means to defend the suit.


Divorce—19 C.J. sec. 558, p. 238, n. 1; sec 744, p. 321, n. 44.

Proceeding by the State, on the relation of Emmet E. Ormsby, for a writ of mandamus to

the District Court of the Second Judicial District in and for the county of Washoe and

Thomas F. Moran, Judge thereof. Demurrer to petition sustained, and proceeding

dismissed.

Wayne T. Wilson and Felice Cohn, for Respondent:

The respondent's position is that the petitioner fails to state a cause of action and fails to

show that the court ��


abused his discretion in making the allowance for railroad fare. Section 5443 of the Rev.

Laws of Nevada, 1912, provides: “That the court may, in its discretion, require the husband to

pay such sums as may be necessary to enable the defendant to defend such suit.” The words

“as may be necessary” are the determining words in the statute as it relates to this case.

This court has decided in the case of Wallman v. Wallman, 48 Nev. 235, that: “The

poverty of a husband is no defense to the application for allowances, where the action for

divorce is brought by him,” and cites many cases supporting that authority of the laws. The

same language is used in 19 C.J. at page 216, with numerous cases cited thereunder.

The plaintiff's “utter impecuniosity” might be a defense if it appeared from the petition

that the defendant has sufficient means to pay her own expenses without disturbing the corpus

of her estate. The petition, however, fails to make any such allegation. The law is that

temporary alimony and allowances will not be denied because the wife possesses a separate

estate, when the income therefrom is not sufficient for her support, and she need not resort to

the corpus of her estate before calling upon that of the husband. 19 C.J. 215.

In the Colorado case of Cairns v. Cairns, 68 P. 233, that court said: “When a husband

desires the luxury of a divorce from his wife, he should be compelled to pay the expenses of

his wife pending the litigation, and, in cases where the wife is a nonresident of the state, if she

desires to come to the State of Colorado to make a defense, she should be given an

opportunity to do so, and the courts should require the plaintiff to deposit in court a sum

sufficient to pay the expenses of the wife from her home to the State of Colorado.”

G. Gunzendorfer, for Petitioner:

Whatever the custom may have been or now is, if orders for railroad fare are not based

upon a positive ��


law, that is an express grant of the right, the court are without authority and their orders are

void and vain. 15 C.J. 730. Divorce actions in Nevada, as in the United States generally, are

wholly statutory. Worthington v. District Court, 37 Nev. 230. There is no inherent, inherited

or customary power in our courts to grant divorces, nor to exercise any ancillary or auxiliary

powers pertaining to them, such as the allowance of alimony, trial and appeal costs, and the

like. Worthington v. District Court, 37 Nev. 231; Phillips v. Phillips, 42 Nev 460; Effinger v.

Effinger, 48 Nev. 209. Whatever rights in these respects the courts of Nevada have are based

solely upon and limited by the statutes of the state. Worthington v. District Court, supra. “The

court cannot read into the statute something beyond the manifest intention of the legislature

gathered from its language.” Tiedemann v. Tiedemann, 36 Nev. 502; Ex Parte Pittman, 31

Nev. 43. The Nevada statute, sec. 5443, Rev. Laws, does not, in terms or otherwise, authorize

an allowance of railroad fare to a nonresident defendant in a divorce action. If our statute does

not in terms require the corporeal attendance of a party defendant, our courts have no right to

import into our said law nor interpolate therein or engraft thereon such a provision and upon

it base an order for the transportation of a defendant from a distant point. Tiedemann v.

Tiedemann, supra.

Petitioner further contends that the trial court had no legal right to stay the action until the

railroad fare was paid or provided. The statute under consideration provides that the court

“may enforce all orders made in this behalf as provided by section 24 of this act.” Section 24

(sec. 5840, Rev. Laws, vol. 2, p. 1702) reads 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.” This court

has ruled that the enforcement of interlocutory orders for payment of money in divorce

actions by execution does not appear to be according to the usages of ��


courts. Kapp v. District Court, 32 Nev. 264. It must be noted that the section intends and calls

for affirmative action on the part of the courts to enforce their orders, while staying

proceedings involves the idea of negation.

OPINION


Upon the verified petition of Emmet E. Ormsby, a writ of mandamus issued out of this

court commanding the respondent court and the judge thereof to proceed to hear and

determine the divorce action of Emmet E. Ormsby, plaintiff, against Mary Hill Ormsby,

defendant, pending therein, or that in default thereof the respondents show cause why they

had not done so on the date specified in the writ.

The respondents, in due time, interposed a general demurrer to the petition for the writ, the

validity or invalidity of which depends upon the following facts: The petitioner sued his wife

for a divorce on the grounds of cruelty and desertion. The marital domicile of the parties was

in the State of New York, where process was served upon the defendant wife. She appeared

in the action, and, by motion, asked that the plaintiff be required to pay counsel fees and that

he be required to pay her railroad fare to enable her to defend the action. After a hearing of

the motion, an order was made requiring the plaintiff to pay into court $150 counsel fees and

to pay to the defendant $250 railroad fare. The plaintiff was subsequently cited to show cause

why he had not complied with said order. Upon the hearing of the order to show cause, his

excuse for not complying with the order was that he was financially unable to do so, being a

day laborer, working as a janitor, and that the defendant wife was regularly employed as a

saleslady and was able to pay her own expenses.

The court renewed its order, and further ordered that the proceeding be stayed until the

plaintiff had complied with the order to pay said counsel fees and to pay the �� C 01��


defendant her railroad fare of $250 to and from the place of trial.

The petitioner makes no complaint of the order requiring him to pay the counsel fee of

$150, but insist that the court exceed its jurisdiction and abused its discretion in requiring him

to pay the defendant's railroad fare, or any sum whatever for that purpose.

1. Under our statute (section 5843), which permits the court or judge in a divorce suit, in

its discretion, to require the husband to pay such sums as may be necessary to enable the wife

to carry on or defend the suit, we are of opinion that the wife, being a nonresident of the state,

and desiring to come to Nevada in response to the summons served upon her in New York to

defend the suit, her railroad fare to and from the place of trial was a proper item to require the

husband to pay to enable the wife to defend the suit. Smiley v. Smiley, 136 Wash. 241, 239 P.

551; Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233, 93 Am. St. Rep. 55.

2. The practice of staying or suspending the proceeding in a divorce suit until the husband

becomes of sufficient ability to furnish his wife means to defend the suit was approved and

applied in Wallman v. Wallman, 48 Nev. 239, 229 P. 1, 35 A. L. R. 1096.

The demurrer to the petition for the writ is sustained, and this proceeding is dismissed.


May 14, 1929.

Per Curiam:

Rehearing denied

____________

��51 Nev. 344, 344 (1929) American Sodium Co. v. Shelley��

AMERICAN SODIUM CO. v. SHELLEY, Et Ux.

No. 2810

April 5, 1929. 276 P. 11.

1. Appeal and Error—Evidence Not Brought Into Record by Bill of Exceptions Cannot Be

Considered on Appeal from Denial of New Trial. The evidence not having been brought into the record by bill of exceptions in conformity to the

provisions of the act regulating proceedings on motions for new trials and appeals in civil cases (Stats.

1923, c. 97) cannot be considered on appeal from denial of new trial, though the action is in equity and

the evidence is in the transcript.

2. Mines and Minerals—Condition of Sodium Prospecting Permit against Assignment

Without Written Consent of Secretary of Interior Held Authorized and Not Inconsistent

with Law. The condition in permit under act Cong. Feb. 25, 1920 (30 USCA, sec. 181 et seq.), to prospect for

sodium, that it shall not be assigned without the express consent in writing of the secretary of the interior,

is within the authority given him by 30 USCA, sec. 189, to prescribe all necessary and proper rules and

regulations and do all things necessary to carry out and accomplish the purposes of the act (one to

promote the mining of certain minerals on the public domain), and particularly by 30 USCA, sec. 261, to

grant, under such rules and regulations as he may prescribe, permit to any qualified applicant to prospect

for sodium; and such condition is not inconsistent with or repugnant to law.

3. Mines and Minerals—Regulation by Secretary of Interior that Permit for Prospecting for

Sodium Be Unassignable Without His Consent Has Force of Law. Regulation by secretary of interior that permit to prospect for sodium on public lands be unassignable

without his consent, being authorized by statute and not inconsistent with or repugnant to law, has the

force and effect of a statute.

4. Pleading—Definite Facts Showing Existing Fiduciary Relation Must Be Alleged to

Support Claim that Mining Lease on Public Lands Was Procured by Lessee in

Violation of His Fiduciary Relation. In order to support the view that in equity and good conscience one granted a lease to mine public

lands procured it in violation of his fiduciary relations with others, definite facts (and not mere inferences

and conclusions) sufficient to show an existing fiduciary relation between them and him must be alleged.

5. Trusts—Permit to Prospect for Sodium on Public Lands Cannot Be Subject of Trust. A permit to prospect for sodium on public lands, a mere privilege personal in character and which at

most as a reward �� &��


for discovery of sodium in commercial quantities by the permittee entitles him to a lease of half the land

embraced in his permit, cannot be the subject of trust.

6. Trusts—Even if Lease to Mine on Public Lands Issued to Permittee Could Be Impressed

with Trust, it Would Be Necessary to Show Discovery of Sodium by Permittee or His

Assignee on Land Within Permit and Lease. Under no principle could the beneficiaries under an attempted assignment in trust of a permit to prospect

for sodium on public land have a lease to mine on public lands subsequently granted the permittee

impressed with a trust in their favor on that part of the leased land embraced in the permit, without showing

that sodium was discovered by the permittee or his assignee on the land covered by the permit.



Mines and Minerals—40 C.J. sec. 404, p. 889, n. 88.

Appeal from Eighth Judicial District Court, Lyon County; J. Emmett Walsh, Judge pro

tem.

Suit by the American Sodium Company against W. F. J. Shelley and others. Judgment for

plaintiff, and certain defendants appeal. Affirmed.

H. Pilkington, Hoyt, Norcross, Cheney & Hoyt, for Appellant:

The permit granted by the secretary of the interior to Warnken was assignable

notwithstanding the regulations prescribed by the secretary of the interior that such was not

assignable except with the consent of the secretary. Had Congress intended that a prospecting

permit authorized under sec. 23 of the act “To promote the mining of coal, * * * and sodium

on the public domain,” it would have so provided.

It is manifest that the secretary of the interior or any other cabinet officer has no power of

legislation. The power to make rules and regulations are at all times restricted to incidental

matters within the power granted by the statute. A prospecting permit is a right in real

property. Unless there is some statutory limitation it, like all other rights in real property, may

be sold or assigned in whole or part. If there are any limitations upon that right they must be

found in �� M ��4��


the granting power, which, in this case, is the United States, expressing its limitations by

statute. The courts have frequently had occasion to pass upon rules and regulations adopted

under similar provisions of acts of Congress, and it is universally held that such power to

prescribe rules and regulations does not include the power to legislate or assume the

prerogative of Congress. Morrill v. Jones, 106 U. S. 466; U. S. v. United Verde Copper Co.,

196 U. S. 207; Waite v. Macy, 246 U. S. 606; Hoover v. Selling, 110 Fed. 43; Int. Ry. Co. v.

Davidson, 257 U. S. 506; Williamson v. U. S., 207 U. S. 425; Patterson v. U. S., 181 Fed.

970; Bruell v. Wilson, 123 Fed. 957; Balfour v. Sullivan, 19 Fed. 579; Seigfreid v. Phelps, 40

Fed. 660; U. S. v. Goodsell, 84 Fed. 155; U. S. v. Valley Land & I. Co., 258 Fed. 102.

Shelley being an owner with Norrid in the permit, he could not obtain a lease thereon and

thereby cut out the interests of his associates in the permit. This is a rule that has been

repeatedly applied in the mining states. The fact that we are dealing with a lease and not a

patent to a mining claim does not affect the legal principle involved. The principle is well

stated in the syllabus to the case of Brundy v. Mayfield, 38 P. 1067. To the same effect, see

Miller v. Walser, 42 Nev. 497; Butte Co. v. Schwab, 34 P. 24; Yarwood v. Johnson, 70 P.

123; Lindley on Mines (3d ed.), vol. 3, p. 1782; 39 Cyc. 169.

The court erred in sustaining the demurrer to paragraphs VIII and IX of defendant Jennie

Baldwin Shelley's second amended cross-complaint. In making its ruling the court evidently

overlooked entirely the allegations in the second amended cross-complaint to the effect that

the corporation took the assignment and transfer of lease with knowledge of Shelley's rights;

also, overlooked the allegations to the effect that the corporation was organized by Warnken

and Guild for the very purpose of taking over the lease, and that, as shown by the assignment

of the lease to the corporation, that Warnken was president and Guild secretary thereof. It is

manifest from the pleadings that Warnken and Guild �� 3�� 4�� I�� 4�� =�� =��


at the time of the transfer of the lease to the respondent corporation were, in effect, the

corporation.While under the authorities hereinbefore cited, a protest upon the part of Shelley

may have been unnecessary, and if he had failed so to do his rights would not have been

affected, nevertheless he did have a right to protest and did so protest, and according to the

allegations of the second amended cross-complaint, such protest was withdrawn by means of

duress imposed upon Shelley by the action of the very parties who organized the respondent

corporation, and upon its organization became its principal officers and directors. The

sustaining of the demurrer to this portion of appellants' pleading denies appellant Mrs.

Shelley the substantial right of ever being able to show upon the trial an important element in

the case.

While the evidence adduced at the trial may not be considered on an appeal from the

judgment based on the judgment roll alone, nevertheless there are certain of the findings

which appellants contend are erroneous, based on the status of the pleadings and the facts

admitted therein. The rule that presumptions are in favor of the judgment does not extend to

findings on issues eliminated by demurrer and upon which appellants would have no reason

to expect evidence would be taken. There is no presumption in favor of a judgment contrary

to the findings nor of findings without or contrary to the issues made by the pleadings.

Further, the statute does not say that the evidence may not be considered on an appeal from

the judgment; it simple says that the sufficiency of the evidence will not be reviewed on

appeal unless a motion for a new trial is made.

Green & Lunsford, for Respondent:

In an appeal from the judgment every presumption and intendment is in favor of the

judgment. In early and well-considered cases we think this court has defined beyond doubt

the scope of inquiry and review by the supreme court when the appeal is from the ��


judgment alone. In Burbank v. Rivers, 20 Nev. 81, 16 P. 430, this court held that the rule that

the supreme court would not review the evidence upon an appeal from the judgment alone for

the purpose of determining its sufficiency to sustain the findings of the lower court, no

motion for a new trial having been made, lies equally to suits in equity as well as all other

actions. No consideration of insufficiency of evidence can be given on an appeal where there

was no motion for a new trial. “This has been so frequently decided by this court that it is

now unnecessary to discuss it.” Conley v. Chedic, 7 Nev. 336; James v. Goodenough, 7 Nev.

324; Whitman v. Shiverick, 3 Nev. 288; Cooper v. Pacific Mutual Ins. Co., 7 Nev. 116;

Sherman v. Shaw, 9 Nev. 148; Stats. 1919, p. 313. So that if the court had jurisdiction of the

parties and the subject matter, and the findings are within the issues and support the

judgment, neither is open to attack on an appeal from the judgment alone.

We have never been able to understand that the declaration of trust was sufficiently

definite in the description of its terms or subject matter as to create any legal status between

the alleged signatory parties. We cannot find that there was any meeting of minds upon any

lawful or existing property condition or relation between the parties.

It may be conceded that a governmental department cannot legislate under the guise of a

regulation, but where by a law the department is vested with a discretion and the regulation is

not obnoxious to the law under which it is promulgated, the courts have no right to interfere.

Numerous instances of departmental regulations are offered by the regulations relating to the

issuance of patents for mining claims, homestead entries, desert land entries, rights of way

over public domain, and many other such regulations essential to the enforcement and

administration of various laws. These, as will be conceded, have uniformly been sustained by

the courts. The courts have taken judicial notice of them � ��


and they have in fact become a part of the laws of the land, having the force of legislative

enactments. Lindley on Mines, sec. 662, pp. 1231, 1234. The federal land leasing act of

February 25, 1920, vests much discretion in the secretary of interior, and there is nothing in

the act itself inconsistent with or repugnant to the provisions inserted in sodium prospecting

permits making such permits nonassignable.

To hold that the permit is assignable while a lease upon the land is not assignable, and that

an assignment of the permit gives to the assignee an interest in the lease would defeat the

purposes of the act and create an irreconcilable conflict by construction. As was said of a

homestead entry in Adams v. Church, 193 U.S. 510, 48 L. Ed. 769: “The whole policy of the

government in this respect would be thwarted if the homesteader were permitted to alienate

prior to expiration of five years.” And the cases in respect to the prohibition against alienation

before patent of homestead entries are more analogous to the case at bar than those cited by

appellants, which may be ever so sound to the conditions under which they were applied. See,

also, Anderson v. Carking, 135 U.S. 483, 37 L. Ed. 272; Douglas v. Sanders, 228 U.S. 609,

59 L. Ed. 985; U. S. v. Jones, 242 Fed. 609; Miller v. Thompson, 40 Nev. 35, 160 P. 775.

The prospecting permit could not exceed the term of two years (sec. 23, act of Feb. 25,

1920), and the permit issued in this case had expired before the demurrers were ruled on and

were as dead as Lazarus so far as any rights under it were concerned.

“A statute prohibiting the making of contract, except in a certain manner, ipso facto makes

them void if made in any other way.” 13 C.J. p. 420, sec. 351, “Contracts.” The so-called

trust agreement if considered as an effective contract is also void because it is contrary to

public policy. It is a contract having for its direct object and result the violation of the

regulations of one of the departments of the United States Government respecting the public

lands. It also has for its purpose and �� M ��4��=��


result the breach of a contract with the government of the United States made through its duly

authorized agent, the department of the interior. 12 C.J. p. 427, bottom of column 2.

OPINION


After the commencement of this suit and during its trial the name of the plaintiff, Nevada

Sodium Company, was changed to that of American Sodium Company, and, upon court

order, the case proceeded to judgment in the name of American Sodium Company, a

corporation, as plaintiff, against W. F. J. Shelley and Jennie Baldwin Shelley, husband and

wife, et al., defendants. Their codefendants, Arthur Warnken and W. H. Yarco, are not parties

on appeal from the judgment upon the judgment roll alone. For convenience we shall

designate the parties as plaintiff and defendants.

1. Counsel for defendants insist that, a motion for new trial having been made and the

action being one in equity, we should consider the transcript of the evidence on appeal from

the order denying the defendants' motion for new trial and determine whether the evidence

supports the findings and the findings the judgment. It is now settled that error cannot be

predicated upon the insufficiency of evidence unless the evidence is brought into the record

by a bill of exceptions in conformity to the provisions contained in the act regulating

proceedings on motions for new trials and on appeal in civil cases. Stats. 1923, p. 163, c. 97.

The evidence not having been brought into the record in this case in conformity to the statute,

it cannot be considered. Markwell v. Gray, 50 Nev. 427, 265 P. 705.

For present purposes the pleadings consist of the complaint, the separate answers of

defendants, and the second amended cross-complaint of the defendant Jennie Baldwin

Shelley, and the replies. The answers contain practically the same allegations, with this

difference—the answer of the defendant husband shows that he ��


assigned whatever interest he has or had in the subject of the controversy to his wife as her

separate property, and he defends solely in his capacity as husband. The wife defends in her

capacity as assignee and in her own right. The plaintiff interposed a demurrer to the

cross-complaint, which was sustained. The case was tried upon issues joined upon the

complaint, answers, and replies which resulted in a judgment in favor of the plaintiff and

against the defendants in accordance with the trial court's findings of fact and conclusions of

law after a full hearing upon the pleadings and evidence.

The facts leading up to this suit as disclosed by the pleadings, stated in our way, are

substantially as follows: Under and by virtue of an act of Congress, approved February 25,

1920, entitled “An Act to promote the mining of coal, phosphate, oil, oil shale, gas, and

sodium on the public domain” (41 Stat. at L. 437; U. S. C. title 30, sec. 181 and following [30

USCA, sec. 181 et seq.]), the secretary of the interior granted to each, W. F. J. Shelley and

Arthur Warnken, a sodium prospecting permit to prospect the land described therein for

sodium. The permits are not before us, but it is inferable from the pleadings that each permit

was in the form of permits adopted by the secretary of the interior under rules and regulations

of the department of the interior as authorized by said act of Congress (Cir. 699; 47 Land

Dec. 531).

On January 15, 1924, Arthur Warnken and W. F. J. Shelley each assigned and transferred

his permit to Arthur Warnken, W. F. J. Shelley, and one W. H. Yarco as trustees named in an

instrument in writing, called a declaration of trust, to be carried out in accordance with the

articles of trust made a part of the agreement under the name and style of Wabuska

Development & Prospecting Association. The assignment and transfer of said permits were

made without the consent in writing, or at all, of the secretary of the interior.

Said declaration of trust was caused to be recorded by W. F. J. Shelley in the records of the

county of Lyon, where the land described in said permits is situate.


The complaint filed herein, on March 1, 1926, proceeds upon the theory that the

recordation of said declaration of trust, with said assignments, created a cloud upon the land

described in an indenture of lease entered into, by and between the government of the United

States, as lessor, and said Arthur Warnken and one Clark J. Guild, as lessees, bearing date on

June 29, 1925, whereby the government granted and leased to said lessees the exclusive right

and privilege to mine, remove, and dispose of all the sodium and other minerals in, upon, or

under the tract of land described therein, containing 1,440 acres, situate in Lyon County,

Nevada. On August 4, 1925, said lease was assigned and transferred to the Nevada Sodium

Company, a corporation, organized under local law, with Arthur Warnken, as president, and

Clark J. Guild, as secretary. The assignment of the lease was approved by the secretary of the

interior in writing on September 12, 1925. It is conceded that the lease was granted under and

by virtue of the leasing act of Congress, approved February 25, 1920, supra. The corporation

entered into possession of the leased premises and expended large sums of money in excess

of $18,000 in mining, removing, and disposal of sodium in the forms named in said act, and

continued and now continue to mine, remove, and dispose of sodium in accordance with the

terms, conditions, and covenants of said lease.

The separate answers of the defendants admit the execution, delivery, and assignment of

the lease, and in this connection assert that the lease passed to the lessees their respective

interest therein, subject to the equitable rights of the defendants. This allegation is predicated

upon other allegations of the complaint and answers which show that the lease covered a

portion of the lands described in the sodium permit granted Arthur Warnken hereinabove

referred to. The answers further admit that the Warnken permit was assigned as a trust estate

to the trustees named in said declaration of trust in violation of the condition expressed in the

permit, namely, “not to assign or transfer the permit granted hereby without the express

consent in writing of the �� #


secretary of the interior.” In this connection each of the defendants aver and assert that the

secretary of the interior possessed and possesses no power or authority to require such a

condition to be included in the form of sodium permit, and in doing so the secretary of the

interior exceeded his authority. This allegation is made the ground for demurrer to the

cross-complaint of the defendant Jennie Baldwin Shelley. We may as well dispose at this

point of the alleged error in sustaining the demurrer to the cross-complaint.

2, 3. In view of the leasing act of Congress, which admittedly authorizes the secretary of

the interior to prescribe all necessary and proper rules and regulations and to do any and all

things necessary to carry out and accomplish the purposes of the act (U. S. C. title 30, sec.

189 [30 USCA, sec. 189]), and particularly, the authority contained in section 261 (U. S. C.

title 30 [30 USCA, sec. 261]), the secretary of the interior, wisely, we think, incorporated in

sodium permits the condition above quoted. It is just as essential to the proper carrying out

and accomplishment of the purposes of the leasing act of Congress for the secretary of the

interior to know the qualifications of the assignee of a permit as it if for him to know the

qualifications of the permittee; otherwise, a qualified permittee could with impunity assign or

transfer his permit to an unqualified assignee, and thus abrogate the act itself.

We are not in accord with the contention of counsel for the defendants that such regulation

and condition is inconsistent with and repugnant to law. Whatever may be the character of the

right secured by a sodium permit, it is not an indefeasible right which comes from a grant of

title ownership, but depends upon the qualifications of the permittee and at all times upon

certain acts to be continuously performed for a period not exceeding two years. Section 261.

The condition not to assign or transfer the permit granted Arthur Warnken without the

express consent in writing of the secretary of the interior, being in our opinion necessary and

proper to carry out and accomplish the purposes of the leasing act ��$ ��


of Congress, it is not inconsistent with or repugnant to law. This being true, the regulation

should have the force and effect of a statute. Hodgson v. Midwest Oil Co. (D. C.) 297 F. 273.

This conclusion, however, is not decisive of all the legal questions involved in the appeal

from the judgment.

4-6. The cross-complaint of the defendant Jennie Baldwin Shelley proceeds upon the

theory that their codefendant, Arthur Warnken, in violation of his fiduciary duty and with the

purpose and intention of excluding his codefendants from the benefits to be derived from his

sodium permit so assigned and transferred by him to the trustees named in his declaration of

trust, procured a lease from the government to mine, remove, and dispose of all the sodium

in, upon, and under a portion of the land covered by the Warnken permit, and that said

Warnken and said Guild hold the legal title to the leasehold interest granted subject to and in

trust for the defendants as to their undivided one-third interest in said leasehold. The

defendant, by her cross-action, seeks, in short, to have a trust impressed upon so much of the

leasehold of plaintiff as is covered by the sodium prospecting permit granted Arthur

Warnken.

In order to support the view in equity and good conscience that Warnken procured the

lease in violation of his fiduciary duty, it would be necessary to allege definite facts (not mere

inferences and conclusions) sufficient to show an existing fiduciary relation between the

defendants and Arthur Warnken. There is nothing in the cross-complaint to show this unless

such relation necessarily arose because of the assignment for a consideration by Warnken of

his sodium permit, as a trust estate. We are of opinion that a mere sodium prospecting permit,

as authorized by the leasing act of Congress, is a mere privilege, personal in character, and

cannot be trusteed. A permit is granted only to those who possess the qualifications

prescribed by the act, and is, for a period of not exceeding two years, at all times dependent

upon the execution of the permit in accordance with its terms. The permit is exclusive, it is

true, but in no ��


event can it ripen into title ownership. The most that is granted by the government as a reward

for the discovery of commercial sodium in commercial quantities is that the permittee is

entitled to a lease of one-half the land embraced in his permit, in compact form. Cir. 699; 47

Land Dec. 529. There is nothing in the cross-complaint to show that sodium was discovered

by the permittee or his assignee upon the land embraced in the permit. In this situation we do

not perceive upon what principle of law or equity the defendants can have the lease in

question impressed with a trust in their favor upon that portion of the land embraced in the

Warnken permit.

One cannot impose a trust on a leasehold that neither he nor his grantor at any time were,

or now are, entitled to receive, or any part thereof. Hodgson v. Federal Oil & Development

Co., 274 U.S. 15, 47 S. Ct. 502, 71 L. Ed. 901, 54 A. L. R. 869, affirming (C.C. A.) 5 F. (2d)

442. Further in this connection we may observe that a court of equity is without jurisdiction

to grant relief to one claiming a preference right as against one in possession under a lease

from the government, the title still being in the government. Wilson v. Elk Coal Co. (C. C.

A.) 7 F. (2d) 112, and cases cited. In no admissible view of the leasing act of Congress is the

cross-complainant shown to be entitled to the lease in controversy or any interests therein.

Her cross-action seems to be based entirely upon the pleader's misconception of the

applicable law—the leasing act of Congress designed to promote the mining of and the

conservation of the valuable deposits on the public domain named in the act, coal, phosphate,

oil, oil shale, gas, and sodium. The conservation of these deposits is a matter of grave public

moment and concern, and their disposition cannot be too carefully safeguarded for the

protection of the government.

Finding no error upon the face of the judgment roll, the judgment is affirmed.

____________

��51 Nev. 356, 356 (1929) Blankenship v. Blankenship��

BLANKENSHIP v. BLANKENSHIP

No. 2838

April 5, 1929. 276 P. 9.

1. Divorce—Husband Having Been Found To Be Guilty of Extreme Cruelty Held Not

Entitled to Divorce from Wife for Her Extreme Cruelty. Extreme cruelty in part of husband suing for divorce, also charging extreme cruelty, alleged in answer

and proved on trial, operates as a bar to granting husband a divorce under the doctrine of recrimination.

2. Divorce—Neither Spouse Is Entitled to Divorce where Each Has Been Guilty of

Misconduct. Where each of the spouses has been guilty of misconduct which is a cause for divorce, neither is

entitled to such remedy.

3. Divorce—Doctrine of “Comparative Rectitude,” Wherein Relief by Divorce Is Granted to

Party Least in Fault, Does Not Obtain in Nevada. Doctrine of “comparative rectitude,” wherein relief by divorce is granted by some courts to the party

least in fault when both have shown grounds for divorce, does not obtain in Nevada, in view of Rev.

Laws, sec. 5841, divesting the guilty party in divorce of all property and pecuniary rights and interests,

and all rights touching the children, their custody and guardianship.


Divorce—19 C.J. sec. 219, p. 93, n. 78; p. 94, n. 81; sec. 221, p. 95, n. 92.


Action by R. E. L. Blankenship for divorce against Byrd C. Blankenship. From decree and

denial of motion for new trial, defendant appeals. Reversed and remanded, with directions.


If the defendant was guilty, as by the findings and judgment of the trial court she was

found to be, of extreme cruelty toward the plaintiff, the new matter set up in paragraph I of

her further and affirmative answer was, if proven, a complete and absolute defense. This

defense was that plaintiff had himself been guilty ��


of extreme cruelty toward the defendant, a defense of recrimination. It is the law in this state

and the universal rule in this country that what is called recrimination is, if proven, a

complete bar to a suit for divorce. Keezer on Marriage and Divorce, p. 301; Schouler on

Marriage and Divorce, sec. 1721; Bishop on Marriage and Divorce, sec. 365; 9 R. C. L. 387;

Pease v. Pease, 47 Nev. 124; Conant v. Conant, 10 Cal. 243; Church v. Church (R. I.), 19 Atl.

244; Tillison v. Tillison (Vt.), 22 Atl. 531; Radzinski v. Radzinski (Mich.), 207 N. W. 821;

DeViney v. DeViney (Mich.), 211 N. W. 633.

The fact that the offenses of plaintiff charged by the defendant occurred prior to the acts of

extreme cruelty alleged by plaintiff and found by the court to have been committed by

defendant, does not affect the rule that where both parties are at fault neither is entitled to a

divorce. When there are marital offenses on the part of each of the spouses, such offenses do

not usually occur at the same time, and to hold that an offense cannot be pleaded as

recrimination unless it occurs simultaneously with or subsequent to the other offense is to

establish a rule that finds support neither in reason nor authority. The authorities show that

the relative time of the offenses is immaterial. Conant v. Conant, 10 Cal. 243; Bishop on

Marriage and Divorce, vol. 2, p. 174; Keezer on Marriage and Divorce, p. 304; Smith v.

Smith (Ky.), 203 S. W. 884; Pease v. Pease (Wis.), 39 N. W. 133; Rapp v. Rapp (N.J.), 58

Atl. 167; Young v. Young (N.J.), 119 Atl. 92, Pierce v. Pierce (Vt.), 40 Atl. 728; Redington

v. Redington (Colo.), 29 P. 811; Arnaboldi v. Arnaboldi, 138 Atl. 116. In all of these cases

the matters charged as recriminatory defenses occurred prior to the commission of the acts

alleged as grounds for divorce.

The findings and judgments of the California court, pleaded by defendant, admitted in the

case and found by the trial court, conclusively proved and established the recriminatory

defense set out in the answer. A judgment in a prior suit between the same parties ��


although upon a different cause of action may be used as evidence of any fact actually in issue

and determined by said judgment, and as such evidence is conclusive. Cromwell v. County of

Sac., 94 U. S. 351, 24 L. Ed. 195; Southern Pacific Co. v. United States, 168 U. S. 1, 42 L.

Ed. 355; Hartford Life Insurance Co. v. Ibs, 237 U. S. 662, 59 L. Ed. 1165; Sherman v. Dilly,

3 Nev. 21; McLeod v. Lee, 17 Nev. 103; Vickers v. Vickers, 45 Nev 274; Edwards v. Jones,

49 Nev. 342; 34 C. J. 1066, sec. 1507; Swank v. Railway Co. (Minn.), 63 N. W. 1088, at

1089; Lytle v. Railway Co. (Minn.), 77 N. W. 975; Bonanza Con. Min. Co. v. Golden Head

Mine Co. (Utah), 80 P. 736, at 738; Bank v. Davis, 184 P. 275, at 278; Re Clark's Estate

(Calif.), 212 P. 622, at 625, par. 6.


The defense of recrimination to be available must establish the parties as being equally at

fault. 19 C.J. 93, sec. 219; R. C. L., vol. 9, p. 387, sec. 180. Appellant's contention, then, that

the matters alleged by appellant wife constituted a good recriminatory defense, and such

allegations being supported by a decree became a conclusive recriminatory defense, cannot,

we think, be sustained, for the reason that whether such defense was good or conclusive

rested in the sound discretion of the trial court, which may, under all of the authorities as we

find them, consider the comparative rectitude of the parties and whether or not one spouse is

guilty of excessive retaliation. Each case being so found and determined upon its own

particular facts. To hold otherwise would result in the complete elimination of the rule

established by this court in the case of Reed v. Reed, 3-4 Nev. 836. Clearly, then, a

complaining spouse may come into court having “violated the contract of marriage” and

without clean hands, if such spouse shows that the acts of cruelty complained of constituted

excessive retaliation or cruelty out of proportion to the plaintiff's cruelty. This question of fact

being addressed to the sound discretion of the trial court for determination.


A recriminatory defense is good only when there is a mutuality of fault, and when there is

a disproportion of guilt between the spouses a decree may be granted. Amy v. Berard, 12 La.

Ann. 882; Thomas v. Tailleu, 13 La. Ann. 127; Inskeep v. Inskeep, 5 Ia. 205; Beck v. Beck,

63 Tex. 35; Prather v. Prather, 68 N. W. 806; Staples v. Staples (Tex.), 136 S. W. 120;

McAllister v. McAllister (Wash.), 69 P. 119; Weiss v. Weiss, 140 N. W. 587.

OPINION


This is an action for divorce. As the parties have been involved in former litigation with

each other it will be more convenient to refer to them as husband and wife.

The husband's amended complaint charges extreme cruelty. Part of the facts charged as

such are alleged to have occurred subsequent to May 9, 1927. In her answer the wife denies

the acts of cruelty charged, and as an affirmative defense alleges extreme cruelty committed

by the husband prior to May 9, 1927. In support of this defense she pleads two judgments

rendered by the superior court of California in and for the county of San Diego. The first of

these judgments was rendered by the California court on July 22, 1925, in an action brought

by the wife against the husband for separate maintenance on the ground of extreme cruelty

and adultery. In this action the husband was found guilty of extreme cruelty and the wife was

granted separate maintenance. The second judgment was rendered May 9, 1927, in an action

for divorce brought by the husband. In this later action the wife filed a crossbill for a divorce.

The California court found both parties guilty of extreme cruelty and rendered judgment in

which relief was denied to either party. The reply admitted all of the allegations in the answer

concerning the judgments of the California courts.


In the instant trial the court found that the California judgments had been rendered as

alleged in the answer, but that the wife had been guilty of acts committed since May 9, 1927,

amounting to extreme cruelty, and granted the husband a decree of divorce. From this decree,

and the order denying her motion for a new trial, the wife has appealed.

1, 2. The only question to be determined is whether the extreme cruelty on the part of the

husband alleged in the answer and proved on the trial operates as a bar to his being granted a

decree. It must be conceded that the judgments of the California court pleaded and proved

furnish conclusive proof of the fact that the husband had been guilty of extreme cruelty

towards his wife prior to May 9, 1927, as alleged in her answer. The rule of recrimination is,

in our opinion, applicable to the case and operates as a bar to a decree of divorce. The fact

that the acts on account of which the court granted a divorce to the husband were found to

have been committed by the wife since the adjudication by the California court does not make

the rule inapplicable. Where each of the spouses has been guilty of misconduct which is cause

for divorce, neither is entitled to this remedy. This rule is established by the decided weight of

American authority. Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717; Cushman v. Cushman,

194 Mass. 38, 79 N. E. 809; Green v Green, 125 Md. 141, 93 A. 400, L. R. A. 1915e, 972,

Ann Cas. 1817a, 175; Church v. Church, 16 R. L. 667, 19 A. 244, 7 L R. A. 385; Day v. Day,

71 Kan. 385, 80 P. 974, 6 Ann. Cas. 169; Kirn v. Kirn, 138 Va. 132, 120 S. E. 850; Morrison

v. Morrison, 62 Mo. App. 299; Redington v. Redington, 2 Colo. App. 8, 29 P. 811; Smith v.

Smith, 181 Ky. 55, 203 S. W. 884; Tillison v. Tillison, 63 Vt. 411, 22 A. 531; 2 Bishop on

Marriage, Divorce, and Separation, secs. 337 to 409, inclusive. Tiffany on Domestic

Relations (3d ed.), sec. 109, p. 281. The rule rests upon the equitable principle that one who

invokes the aid of a court must come into it with clean hands.

3. Relief by divorce has been granted by some courts ��


to the party least in fault when both have shown grounds for divorce. This is called the

doctrine of comparative rectitude. Counsel for respondent urge that this should be accepted as

the true rule. By reason thereof he insists that the court had discretion to compare the faults of

the parties and grant respondent a divorce notwithstanding the established cruelty of both. We

cannot subscribe to this doctrine. As has been pertinently said, it is not a principle of the

divorce law that if both are guilty the party who has sinned the least is entitled to a divorce.

Divorce is a remedy provided for an innocent party. A divorce for a guilty party is not

contemplated by our statutes respecting this subject, which under certain conditions divest the

guilty party of “all property and pecuniary rights and interests, and all rights touching the

children, their custody and guardianship.” Section 5841, Rev. Laws. If the doctrine of

comparative rectitude is admitted it would render this provision of law ineffective.

In Conant v. Conant, supra, the court states the reasons why any conduct made a ground

for divorce in a suit for dissolution will be adequate in bar. The court said: “In this state, the

statute has specified certain acts or conduct which shall constitute grounds of divorce, and so

far as the matrimonial contract is concerned, the courts cannot distinguish between them,

whatever difference there may be in a moral point of view. The several offenses must,

therefore, be held equally pleadable in bar to the suit for divorce—the one to the other, within

the principle of the doctrine of recrimination. Aside from this consideration, it would seem to

be correct in principle, that where the matter pleaded is such as would entitle the defendant to

a decree, had it been presented in a bill brought by himself, the relief should be denied.

Certain consequences are attached to the decree, independent of the dissolution of the

marriage contract, and they are generally more favorable to the party obtaining the relief than

to the contestant; but a decree cannot be granted in �� "�� #


favor of one, and afterwards in favor of the other, as the first would dissolve the marriage,

and then no marriage would subsist, upon which the second decree could act; and a decree

granting a divorce in favor of each, would be an anomalous proceeding.”

The same view is expressed in Bishop on Marriage, Divorce, and Separation. In volume 2,

secs. 395, 396, it is said: “In a dissolution suit for whatever cause, any conduct for which the

law provides the same consequence will be adequate in bar, * * * Why ? * * * If the law is

not so, we have this perplexing state of things, that cross-suits may be brought, resulting in

both parties being entitled to prevail; then, if dissolution decrees are rendered in favor of

both, each is the guilty and each the innocent party under statutory and unwritten laws which

leave to the innocent and to the guilty, after the divorce, different rights, duties, and pecuniary

interests. The law, in most of our states, has no provision for the decree in favor of one of the

parties to give way to that in favor of the other. There is a deadlock. And when this occurs,

the movements of the court in the cause cannot do otherwise than stop. The cause cannot

proceed to a decree. And this result shows, as distinctly as though the legislature had used the

exact words, that the bar must be good; since, if it is not, the statutory and common-law

provisions concerning collateral things can have no effect.”

The reasoning of the foregoing authorities clearly shows the soundness of the doctrine of

recrimination adopted by most of the American courts in divorce cases. It is necessarily

opposed to any rule which would permit a court to compare marital offenses and say which of

the two parties who had committed cause for divorce was the lesser offender and therefore

entitled to a decree.

The doctrine of comparative rectitude repudiates the principle that divorce is a remedy

provided for an innocent party. In this respect it runs counter to a prohibition which would

seem to be necessarily implied from our statutes concerning divorce.


The judgment is reversed and the cause is remanded, with directions to the lower court to

enter judgment for the appellant dismissing the action.


September 13, 1929.

Per Curiam:

Rehearing denied.

____________


D'ERRICO v. D'ERRICO

No. 2824

April 5, 1929. 276 P. 530

1. Divorce—Finding Supporting Res Judicata Plea Based on Foreign Judgment, Interposed to

Original Complaint, Precluded Decree for Misconduct after Filing Original Complaint. Where court found in action for divorce that defendant's plea of res judicata, based on foreign

judgment, interposed to original complaint, was established by evidence, decree based on misconduct or

cruelties committed after filing of original complaint cannot be sustained, since new cause of action

arising after institution of original suit cannot be prosecuted by supplemental bill, and misconduct of

defendant alleged in supplemental complaint was but continuation of general attitude toward plaintiff.


Divorce—19 C.J. sec. 311, p. 119, n. 77.


Action by Joseph D'Errico against Maria T. D'Errico. From a judgment for plaintiff, and an

order denying a new trial, defendant appeals. Reversed and remanded, with directions.

Brown & Belford and Walter M. Kennedy, for Appellant:

A judgment in a prior suit between the same parties although upon a different cause of

action, may be introduced as evidence of any fact actually in issue and ��


determined by said judgment and as such evidence is conclusive. Probably the leading case in

this country on the doctrine of res judicata is that of Cromwell v. County of Sac., 94 U. S.

351, 24 L. Ed. 195. In that case Mr. Justice Field lays down two main principles of that

doctrine: (1) Where the second suit is between the same parties and upon the same cause of

action, the judgment of the first suit is a complete bar to the action. (2) Where the second suit

is between the same parties but upon a different cause of action, the judgment of a court of

concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive

between the same parties upon the same matter directly in question in another court. (Quoting

the Duchess of Kingston's case.) See, also, Southern Pacific Co. v. United States, 168 U. S. 1,

42 L. Ed. 355; Hartford Life Insurance Co. v. Ibs, 237 U. S. 662, 59 L. Ed. 1165; Sherman v.

Dilley, 3 Nev. 21; McLeod v. Lee, 17 Nev. 103; Vickers v. Vickers, 45 Nev. 274; Edwards v.

Jones, 49 Nev. 342; Higuera v. Corea (Cal.), 145 P. 529.

Since it was conclusively established by the Ohio judgment that plaintiff had deserted and

abandoned defendant on April 27, 1925, and since it appears from plaintiff's complaint and

from all the evidence that the desertion had continued and that the parties never cohabited

after said date, and consequently that at the time of the commencement of this action said

desertion had continued for a period of more than one year, and since under the law an

established recriminatory defense is a bar to a divorce action, and since plaintiff neither

alleged nor proved facts constituting a cause of action, and since such facts were not found by

the court, it was the duty of the lower court to enter judgment for defendant.

Platt & Sanford, for Respondent:

The findings and decree of the court were primarily predicated upon the issues joined by

the supplemental complaint filed by the plaintiff and respondent. This supplemental

complaint was filed and based upon a cause ��


of action having arisen since the filing of the original complaint in the action. To this

supplemental complaint no demurrer was filed by defendant and no motion was addressed to

it. An answer was filed, followed by a reply, and issue was joined on the merits. “In such a

situation the complain should receive the construction more favorable to the plaintiff.”

Neilsen v. Rebard, 43 Nev. 274, 183 P. 984; Morris v. Morris (Nev.), 258 P. 232.

That a supplemental complaint is actually authorized by the Nevada statute and by

authority is undisputed. Section 5076, subdivision 134, Rev. Laws of Nevada, 1912. That this

statute is applicable to divorce actions must likewise be conceded. Scoland v. Scoland, 29 P.

930; Pease v. Pease, 217 P. 239, 47 Nev. 124.

The trial court in its findings did not find that the plaintiff-respondent was guilty of willful

desertion, and if appellant-defendant relies upon the decree of a foreign court establishing this

desertion, it may not be legally pleaded or considered by way of res adjudicata. This has been

fully and finally determined by this court in the case of Pease v. Pease, ibid.

OPINION


This is an appeal from a judgment and from an order denying the defendant wife's motion

for a new trial in a divorce action tried to the court without a jury. Referring to the parties as

“plaintiff” and “defendant,” the facts in brief are as follows:

On June 15, 1925, the plaintiff filed a petition for divorce in the court of common pleas,

Cuyahoga County, State of Ohio, alleging therein various acts of misconduct, neglect of duty,

and cruelties of the defendant, of such nature as to force plaintiff to withdraw from the

marital relation and to live separate and apart from the defendant since the 27th day of April,

1925. Upon �� L��


issues joined on the petition, answer, and reply, the petition of the plaintiff was dismissed and

the defendant granted a decree against the plaintiff for separate maintenance, under the Ohio

statute, which judgment or decree is now in force. Unquestionably the judgment determined

that the plaintiff was the wrongdoer, and in effect that the plaintiff deserted the defendant on

April 27, 1925, willfully and wrongfully and without just cause or excuse.

Thereafter the plaintiff took up his residence in Reno, Washoe County, Nevada, and on

January 25, 1927, commenced this action for divorce upon various acts of misconduct,

neglect of duty, and cruelties, of such nature and character which, he alleges in his complaint,

constituted constructive desertion of plaintiff by the defendant, occurring on April 27, 1925.

The petition in the Ohio suit shows that the plaintiff's complaint herein is predicated upon

identically or substantially the same cause of action as that stated in his petition in the Ohio

suit. The defendant, in her answer to the complaint herein, pleaded the desertion of plaintiff

on April 27, 1925, as a recriminatory defense to the action, and set up the judgment roll in the

Ohio suit as a bar and estoppel of plaintiff's right to recover in this action. The plaintiff, for

reply to the answer, in effect admitted the pleadings in the Ohio suit, exhibited with and made

a part of the defendant's answer, but so framed his reply as to put the defendant upon proof of

all the allegations contained in her answer.

After issues were joined upon the pleadings, the plaintiff left Nevada and went back to the

place of the marital domicile of the parties in Cleveland, Ohio. While there employed

temporarily, with the intention of returning to Reno and to continue his residence therein, the

defendant literally followed plaintiff upon the streets of Cleveland, chased him in and out of

office buildings, annoyed him at the home of his brother, at which he was stopping, and

carried her nagging and annoyance to such an extent as to make it necessary for him to appeal

to the ��$��


authorities of Cleveland for protection. Subsequently the plaintiff returned to Reno and filed a

supplemental complaint in this action, specifying in detail the manner, time, place, and

character of such nagging and annoyance committed by the defendant after the filing of his

complaint, and alleged that they were of such character as to constitute extreme cruel

treatment, causing him serious mental anguish, pain, and suffering, and making further

cohabitation with the defendant positively unbearable and unendurable. The defendant

answered the supplemental complaint, and for answer denied its allegations, and by way of

recrimination pleaded the willful and wrongful desertion of the defendant by plaintiff,

without just cause or excuse on April 27, 1925, and prayed dismissal of the plaintiff's action.

Plaintiff for reply denied the allegations contained in the answer to the supplemental

complaint, and reiterated his prayer for judgment contained in his original complaint.

The court permitted the case to be tried as though there had never been a former trial

between the parties. In its findings of fact the court followed closely the averments contained

in the plaintiff's supplemental complaint, and found them to be true. The court also made a

finding, which reads as follows: “That the affirmative defense of res adjudicata, estoppel, and

bar addressed to the cause of action alleged in plaintiff's complaint are sustained by the

evidence.” Upon its findings of fact and conclusions of law, judgment was rendered in favor

of the plaintiff and against the defendant for a divorce.

The trial court having decided and found from the evidence that the cause of action alleged

in the plaintiff's original complaint was, in effect, barred by the former judgment in the Ohio

suit, we do not perceive upon what principle it could have granted the plaintiff a divorce upon

the various acts of misconduct and alleged cruelties committed by the defendant after the

filing of the original complaint, as alleged in the supplemental complaint.


A supplemental complaint, as its name indicates, being merely an addition, or supplement, to

the original bill, and the two constituting but one record, the new matter alleged in the

supplemental bill did not and could not change the cause of action upon which the proceeding

for divorce was founded, admittedly barred by the judgment in the Ohio suit. From the very

allegations contained in the supplemental complaint, it is obvious that the subsequent acts

complained of therein were pleaded and proved for the purpose of characterization of the

previous relations between the parties and the earlier acts of cruelty decided and found by the

court to have been adjudicated in the Ohio suit. As Mr. Bishop says: “Plainly the facts alleged

and existing at the time of suit brought must be the ground of the proceeding, yet it is easy to

see why they may not receive color as well from what has happened since as from what took

place before.” 2 Bishop on Divorce, sec. 657.

All of the issues involved in the action, including those joined by the original and

supplemental complaints, were tried together as if there had never been a former judgment,

and the court, having found that the plaintiff could not recover upon his original complaint

because of the former judgment in the Ohio suit, plainly erred in granting to plaintiff a

divorce upon the plaintiff's supplemental complaint, which must be given the same force and

effect as though the acts therein complained of had been alleged in the original complaint.

The defeat of the original and only cause of action by the defendant's plea of res adjudicata

carried with it the supplemental complaint, which merely gave color to the acts of cruelty

alleged in and existing at the time of suit.

It is manifest that the supplemental complaint did not propose a new cause of action. On

the contrary, the various acts of misconduct on the part of the defendant were but the

continuation of the general attitude of the defendant toward plaintiff for practically 15 years

of the period of time the parties lived together. In this �� '�� '��


situation the defendant's plea of res adjudicata, found to be established by the evidence, was

as effectual a bar to the plaintiff's right to recover upon his supplemental complaint as it was

to his original complaint.

Counsel for the plaintiff, upon the authority of Pease v. Pease, 47 Nev. 124, 217 P. 239,

insists that the judgment of the Ohio court could not operate as a bar or estoppel to plaintiff's

right to recover upon his supplemental complaint, because the acts complained of therein

could not have been heard and determined in the Ohio suit. We do not consider the case of

Pease v. Pease in point. Furthermore, if by this contention we are to infer that the trial court

considered the defendant's acts of cruelty, committed after the filing of the original complaint,

to be a new and substantial cause of action, the court was not authorized to grant a divorce

upon such new cause of action. It is well settled that to permit a new cause of action, arising

after the institution of the original suit, to be prosecuted by a supplemental bill, would be to

violate the obvious principle that in every case the cause of action must exist at the time the

suit is brought. Schwab. v. Schwab, 96 Md. 592, 54 A. 653, 94 Am. St. Rep. 598. The case

expressly holds that an entirely new case cannot be introduced by a supplemental bill, citing

numerous cases to which reference is here made.

In view of the finding that the defendant's plea of res adjudicata, interposed to the original

complaint, was established by the evidence, a decree based upon misconduct or cruelties

committed after the commencement of the action cannot be sustained. The conclusion renders

it unnecessary for us to consider other questions urged for the reversal of the judgment and

order appealed from.

The judgment is reversed, and the cause is remanded, with directions to the lower court to

dismiss the action.

Ducker, C. J., and Coleman, J., concurring:

We concur in the order of reversal for the reasons given by Justice Sanders. As it appears

that both �� 5�� 5�� 0��/��207


parties have been guilty of matrimonial offenses constituting grounds for divorce, we also

concur in the order on the authority of the case of Blankenship v. Blankenship, 51 Nev. 356,

276 P. 9, just decided by this court.


September 13, 1929.

Per Curiam:

Rehearing granted.

____________

��51 Nev. 370, 370 (1929) Lippert v. Lippert��

LIPPERT v. LIPPERT

No. 2863

May 6, 1929. 277 P. 1.

1. Appeal and Error—Appellate Court Acquired No Jurisdiction where No Undertaking,

Deposit in Lieu Thereof, Nor Written Notice of Waiver Was Made Within Five Days. Where no undertaking, nor deposit in lieu of undertaking, nor written notice of waiver of undertaking

was made within five days after service of notice of appeal as required by Rev. Laws, sec. 5330, to make

appeal effectual, supreme court failed to acquire jurisdiction of appeal, and it must be dismissed, as

against contention that appellee waived requirement as to undertaking by delay in moving to dismiss.




Action by Olga Wish Lippert, also known as Olga Wish Lipschutz, against Samuel S.

Lippert, also known as Samuel S. Lipschutz. From the judgment and from an order refusing

to stay such judgment, defendant appeals. On plaintiff's motion to dismiss appeals. Appeals

dismissed.

OPINION


This case is before the court on plaintiff's motion to dismiss the appeals. The defendant

gave notice of ��

��51 Nev. 370, 371 (1929) Lippert v. Lippert��

appeal from the final judgment and also from an order refusing to stay such judgment.

The defendant filed and served notice of appeal from the final judgment on June 28, 1928.

The defendant at no time filed an undertaking nor made a deposit in cash in lieu of an

undertaking, nor was an undertaking waived in writing by the plaintiff. On February 20, 1929,

the defendant filed an undertaking on appeal.

The notice of appeal from the order refusing a stay of judgment was filed and served July

10, 1928. No undertaking was filed until February 20, 1929. No deposit in lieu of undertaking

was ever made, nor was there a written notice of waiver of undertaking.

Section 5330, Rev. Laws, provides that an appeal is ineffectual for any purpose unless

within five days after the service of a notice of appeal an undertaking be filed, a deposit of

money be made with the clerk, or the undertaking be waived by the adverse party in writing.

The motion to dismiss the two appeals is based upon the fact that no undertaking was filed

within the time prescribed by law; that no deposit was made in lieu of an undertaking, and

there was no waiver in writing of an undertaking.

Counsel for defendant takes the position that plaintiff waived the statutory requirement as

to undertaking by not sooner moving to dismiss. There is nothing to this contention.

In this situation we have no option in the matter. This court has failed to acquire

jurisdiction of the appeal; hence it must be dismissed. Jasper v. Jewkes, 50 Nev. 153, 254 P.

698.

It is so ordered.

____________

��51 Nev. 372, 372 (1929) Bruce v. Young Men's Christian Ass'n.��

BRUCE v. YOUNG MEN'S CHRISTIAN ASS'N.

No. 2807

May 23, 1929. 277 P. 798.

1. Charities—Rejection of Evidence Tending to Show Young Men's Christian Association

Was Charitable Institution in Support of Affirmative Defense Held Error. In action against Young Men's Christian Association to recover damages on account of death

resulting from injuries while using gymnasium of defendant, rejection of evidence tending to show that

defendant was a charitable organization to support affirmative defense in line with legislative

determination as shown by Rev. Laws, sec. 3842, exempting property used for purposes of such

associations from tax, held to constitute error.

2. Charities—That Young Men's Christian Association Was Charitable Institution Does Not

of Itself Prevent Recovery for Death of One Using Gymnasium. Fact that Young Men's Christian Association was a charitable institution is insufficient in itself to

prevent recovery against it for death as a result of injuries received while using gymnasium.

3. Charities—Recovery Could Not Be Had against Young Men's Christian Association for

Death of Member as Result of Injuries Received when Using Gymnasium. Where person dying as result of injuries received while using gymnasium of Young Men's Christian

Association was a member paying only nominal dues, and hence accepting benefit of a charitable

institution, recovery could not be had against association in that beneficiary of charitable trust may not

hold corporation liable for neglect of its servants.

4. Negligence—Risk of Known Danger Is Generally Only One Assumed. Generally in damage suits one only assumes the risk of a known danger.


Charities—11 C.J. sec. 106, p. 374, n. 94; p. 375, n. 98.

Negligence—45 C.J. sec. 600, p. 1043, n. 67.


Action by Daniel H. Bruce, as administrator of the estate of Leslie M. Bruce, deceased,

against the Young Men's Christian Association. From a judgment for plaintiff, and an order

denying a motion for a new trial, defendant appeals. Reversed.


Brown & Belford and E. F. Lunsford, for Appellant:

The facts alleged as an affirmative defense and new matter in defendant's answer show that

the defendant is a charitable corporation and therefore not liable to respond in damages for

the cause of action alleged by plaintiff. The facts alleged having been admitted by the reply,

our contention is that they constituted complete defenses to the cause of action alleged in the

complaint. We contend that the property of charitable associations is trust property, and

cannot be taken or destroyed or diverted by the uses designated by actions such as this. That

the defendant is a charitable association and entitled to all protection accorded such

associations, is apparent. Nev. Const., art 8, sec. 2. being sec. 339 Rev. Laws, re taxation;

Rev. Laws, sec. 3842; 5 R.C. L. 291-292, also, sec. 9. H.; 11 C. J. 303-304; 5 R. C. L. 374;

Abston v. Waldon Academy (Tenn.), 102 S. W. 351-352; Downes v. Harper Hospital

(Mich.), 60 N. W. 42; Feoffees of Heriot's Hospital v. Ross, 12 Clark & Finnelly, 507;

Gamble v. Vanderbilt University (Tenn.), 200 S. W. 510; Little, et al. v. City of Newburyport

(Mass.), 96 N.E. 1032; Susman v. Young Men's Christian Association of Seattle (Wash.), 172

P. 554; Magnuson v. Swedish Hospital (Wash.), 169 P. 828; Wharton, et ux. v. Warner, et al.

(Wash.), 135 P. 235; Commonwealth v. Young Men's Christian Association (Ky.), 76 S. W.

522; Horton v. Colorado Springs Masonic Building Society (Colo.), 173 P. 61; Parks v.

Northwestern University (Ill.), 75 N. E. 991; Currier v. Trustees of Dartmouth College (N.

H.), 105 Fed. 886; Fordyce v. Woman's Christian National Library Association (Ark.), 96 S.

W. 155, 7 L. R. A. (N. S.), 485; Farrigan v. Pevear, et al. (Mass.), 78 N. E. 855, 7 L. R. A. (N.

S.), 481; Thomas v. German General Benevolent Society (Cal.), 141 P. 1186; Burdell, et ux.

v. St. Luke's Hospital (Cal.), 173 P. 1008; Paterlini, et ux. v. Memorial Hospital Association

etc., et al. (C. C. A. 3d Ct.), 247 Fed. 639; Weston's Adm'x v. Hospital of 4��K� �� >��AK��B��1?�4��6��?:0"�,�� >��5� ��5��9��A��B�� 7�/��6��2� "+��<��4��*�6 ��>��9��A��B�


St. Vincent of Paul (Va.), 107 S. E. 785; Roosen v. Peter Bent Brigham Hospital (Mass.), 126

N. E. 392; Loeffler v. Trustees of Sheppard & Enoch Pratt Hospital (Md.), 100 Atl. 301;

Nicholas v. Evangelican Deaconess Home and Hospital (Mo.), 219 S. W. 643.

The courts in the various jurisdictions of this country unite in holding charitable

institutions not liable to the recipient of the charity, although the basis of the exemption is

placed in the cases on different grounds. There are some cases which hold that a charitable

institution is liable to an employee or to a stranger but not liable to a beneficiary of the

charity. The reason for this rule is stated in Powers v. Mass. Homeopathic Hosp., 109 Fed

294, at p. 303; Bruce v. Central Methodist Episcopal Church (Mich.), 110 N. W. 951;

Hamburger v. Cornell University, 166 N. Y. Supp. 46.

A. Grant Miller, for Respondent:

Assuming that the defendant in the case at bar is a charitable institution, for the sake of

this argument, respondent squarely denies appellant's proposition and contends that the

defendant corporation is liable even if it were true that it were a charitable organization

within the meaning of the law. There have been numerous decisions in the United States as

well as England upon this point, and anciently charitable institutions were held free from

liability, but the modern decisions are to the contrary. There are four lines of precedence:

First, the line of authorities where liability was denied in cases where the injury was to

persons who were recipients of charity. Under this head there is a great deal of conflict

between the reported cases. The majority of the cases hold that the charitable corporation is

not liable for the torts of its servants where the injured person was accepting the benefits of

the charity at the time, unless the corporation did not use due care in selecting its servants.

One of the reasons given for these decisions is that a person who accepts the benefits of a

charity enters into a relationship which exempts �� "�� =��


the benefactor; another reason, and the one most generally assigned, is that to permit such an

institution to be held liable in such cases would authorize the diversion of the funds of the

trust from the purpose for which it was created. Under this classification follow the reported

cases: Powers v. Massachusetts Hospital, 65 L. R. A. 372; Hearns v. Waterbury Hospital, 31

L. R. A. 224; Park v. N. W. University, 2 L. R. A. (N. S.) 556; Parry v. House of Refuge, 52

Am. Rep. 495; McDonald v. Massachusetts Hospital, 21 Am. Rep. 529; Downes v. Harper

Hospital, 25 L. R. A. 602; Bruce v. C. M. E. Church, 10 L. R. A. (N. S.) 74; Abston v.

Academy, 11 L. R. A. (N. S.) 973; Thornton v. Franklin Square House, 22 L.R.A. (N.S.) 486;

Duncan v. Sanitarium, 41 L.R.A. (N.S.) 973; Jenson v. Infirmary, 33 L. R. A. 141; Gable v.

Sisters of St. Francis, 136 A. S. R. 879; Taylor v. Hospital, 39 L. R. A. (N.S.) 427; Fordyce v.

Library Association, 7 L.R.A. (N.S.) 485; Fire Insurance Patrol v. Boyd, 6 A. S. R. 745.

Nearly all of the cases cited by appellant are based upon facts showing that a trust fund

was created, by will, bequest or gift, created in express trust for charity, and the allegation of

appellant's answer in this case fails to show any trust, which takes this case out of every one

of the cases cited upon the question of impairment of a trust fund. This includes the case of

Feoffees of Heriot's Hospital v. Ross, and most of those cited above. We must further

segregate the “hospital” cases where the plaintiffs were charity patients and can be properly

styled beneficiaries of an expressed trust. However, it is to be noted in connection with these

cases that a trust fund is not altogether exempt from liability for torts (see Powers v.

Massachusetts Hospital, 65 L. R. A. 372). In fact, it is difficult to see why a charitable

corporation should be held liable for neglect in selecting its servants and not be liable for the

negligence of servants carefully selected. It is certain that the liability for one class would

impair its trust fund (if it �� B��


had one) just as surely as liability for the other class, and there does not seem to be any logic

in such reasoning. Hordorn v. Salvation Army, 32 L. R. A. (N. S.) 62; Basabo v. Salvation

Army, 42 L. R. A. (N. S.) 1144.

The defendant corporation is not a charitable institution. By examination of sec. 2, art. 8 of

the Nevada constitution it will be seen that the Young Men's Christian Association is not

therein declared to be a charitable organization, nor does the section deal soley with

charitable organizations, but includes a class of other corporations, to wit, municipal,

charitable, religious and educational, and states that they may be exempt by law from

taxation. The act of 1911 cited by appellant, being sec. 3842 Rev. Laws, exempting the

Young Men's Christian Association from taxation does not designate it as a charitable

institution, but merely recognizes it as being one of the classes referred to in the constitution,

and so far as the act of 1911 is concerned the Young Men's Christian Association may be

either a charitable or a religious or an educational institution. Therefore the appellant is

obligated in the case at bar to prove as a fact in this case that the Young Men's Christian

Association of Reno is a charitable organization, and even if it were so proved, yet it might be

held liable in damages, because it nowhere appears that plaintiff's decedent was a beneficiary

of any charity. The proof shows he paid a price first to the defendant for its use, and second

for the use by him of the gymnasium.

In connection with the citation in appellant's brief in 5 R. C. L., we ask the court to read

paragraph IV of the same volume, at page 294.

The second line of cases are those in which liability is denied in all cases. Under this head

follows the original House of Lords case, The Feoffees of Heriot's Hospital v. Ross. But these

cases were based upon the contention that the administrators of a trust fund are not

responsible for the torts of their agents, and that a trust fund cannot be diverted from the

purposes to which it was dedicated by the donor. However, that doctrine was modified in

Mercy Docks Trustee v. Gibbs, ��9��+��7:7�


11 House of Lords 686. Respondent's contention in reference to this line of cases is that no

express trust was ever created nor was any fund ever dedicated in the case at bar, neither was

the building itself.

The third line of cases recognizes liability as to strangers and servants. The declaration that

trust funds cannot be used to compensate wrongs committed by an agent of the trustee is not a

correct statement of the law. Bruce v. C. M. E. Church, 10 L. R. A. (N. S.) 74; Powers v.

Massachusetts Hospital, 65 L. R. A. 372. It is usually held that a charitable institution is liable

for the negligence of its servants where injury is inflicted upon a stranger. Bruce v. C. M. E.

Church, supra; Gallon v. House of Good Shepherd, 24 L. R. A. (N. S.) 286, 122 N. W. 631;

Kellog v. Church, 38 L. R. A. (N. S.) 481; Basabo v. Salvation Army, 42 L. R. A. (N. S.)

1144. If such charitable corporations are liable to strangers and their servants where there is

an express trust created, certainly the defendant is liable in the case at bar where no such

express trust exists.

The fourth line of cases recognizes liability in all cases. Hewitt v. Women's Hospital, 7 L.

R. A. (N. S.) 496; Tucker v. Mobile Infirmary Association, L. R. A. vol. 1915d, p. 1167;

State (Trustee of Y. M. C. A., Prosecutor) v. City of Patterson; David Horden v. Salvation

Army, supra; Basabo v. Salvation Army, supra; Kellog v. Church Charity Foundation, 124 N.

Y. S. 566; Chapin v. Young Men's Christian Association, 42 N. E. 1130. The rule of

respondent superior is not dependent upon whether the master makes profit by the discharge

of the duties, according to the case of Gilbert v. Trinity House, 17 O. B. D. 795. Then the

question is: “Did the defendant in the present case owe a duty to Bruce at the time when he

was using the apparatus and when the injury occurred? We believe it did, and that duty was to

furnish reasonable safe apparatus for the purpose for which it was to be used. If the

corporation failed in this, it failed in its duty to Leslie M. Bruce. This being so, the first

affirmative �� 3��


defense, setting up what may be termed a charitable defense, is not a defense to the cause of

action alleged in the complaint.We have no statute in this state exempting charitable

institutions from their torts.

OPINION


The plaintiff sued to recover damages on account of the death of Leslie M. Bruce, which

was the result of injuries received while using the gymnasium of the defendant, of which he

was a member. While climbing and swinging on a rope attached to a screw bolt which was

fastened to the ceiling or a joist, the bolt pulled out, causing the deceased to drop to the floor,

falling on his head.

The defendant pleaded several defenses, among others that it is a charitable institution, and

hence not liable in damages. From a judgement in favor of the plaintiff and an order denying

a motion for a new trial, an appeal has been taken.

The first alleged error to be considered is the ruling of the trial court in sustaining the

objection to certain evidence tending to show that the defendant is a charitable organization.

Article 8, sec. 2, of our constitution, provides that property of all corporations shall be

subject to taxation, except that corporations formed for municipal, charitable, religious, or

educational purposes may be exempted by law. Our legislature in 1911 enacted a statute

exempting all property of Young Men's Christian Associations used for the purposes of such

associations. Stats. 1911, p. 127; R. L. sec. 3842.

1. The evidence which was rejected was offered to support an affirmative defense pleaded

in the answer to the following effect: That the principal objects for which the defendant was

formed, as stated in its articles of incorporation, are to develop the Christian character of its

members and to improve the spiritual, mental, �� "�� "�� "�� "�� &�� "�� "�� "�� &��


social, and physical conditions of young men; that defendant has no capital stock; that no

person has or can derive private pecuniary profit therefrom, and that it has never paid and

does not pay any salary or compensation to any of its directors or officers, or to any persons

except employees; that the building belonging to defendant and used by it in promotion its

chief aim was erected on land donated to the defendant in order that said building might be

erected thereon; and that said building was erected and equipped with funds secured from

gifts, donations, and contributions made by individuals impelled by charitable, benevolent,

and philanthropic motives; that, in furtherance of its primary purposes, the defendant has

carried on in said building religious courses of instruction along educational lines, and has

had addresses and lectures on educational, moral, social, and other subjects; that it maintained

a gymnasium and conducted gymnasium classes therein and maintained a swimming pool and

other facilities for sports and physical exercise, and has conducted and permitted others to

conduct social activities therein; that defendant, in order to promote its primary purposes,

frequently permitted members of the general public, who were not members thereof, to use its

said building, including its gymnasium, swimming pool, and general facilities, free of charge,

or at a nominal charge, and that all of the members of defendant were and are entitled to use

all of its facilities, and that they pay membership dues which in amount are wholly

insufficient to cover the cost of maintenance and of carrying on its activities, which said

members are entitled to enjoy.

We think the court committed prejudicial error in rejecting the evidence offered. 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. The defendant is not a municipal corporation, nor is it

religious or educational, and, since it had authority to exempt only �� &��


one other class of institutions, and those charitable, a strong inference may be drawn that such

was the class in which the legislature in adopting the act in question placed the defendant. But

aside from the classification which the legislature made, if any, we are clearly of the opinion

that the defendant is a charitable organization in case the tendered proof is established. In the

case of Little, et al. v. Newburyport, 210 Mass. 414, 96 N. E. 1032, Ann. Cas. 1912d, 425,

was presented the identical question here confronting us. The court said: “It will be seen that

this is not an alms-giving organization. But that is not decisive of the question raised. Charity

in the legal sense ‘is not confined to mere almsgiving or the relief of poverty and distress, but

has a wider signification, which embraces the improvement and promotion of the happiness

of man.' Braley, J., in New England Sanitarium v. Stoneham, 205 Mass. 335, 342, 91 N. E.

385, 387. The association carries on a work which is intended and adapted for the

improvement and elevation of young men, not only to bring them under good influences, but

to promote their moral, mental and physical welfare. It incurs expense for this purpose, for

meeting which it relies mainly upon charitable contributions. In its essence, though not giving

charity in the narrow sense of that word, it is a benevolent or charitable institution within the

meaning of those words in the statute”—citing cases.

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.”

This definition was approved in Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527, 40 L. R. A.

730, 63 Am. St. Rep. 241. We heartily approve of this definition. In what better way, we may

observe, than that adopted by the Young Men's Christian Association, and similar

organizations, may the young be assisted in establishing themselves for life, and as good

citizens who will contribute to the promotion of good government? It is to the interest of

society and government to promote the highest type of citizenry, and an organization which

contributes to this end lessens the burden of government. If this were a doubtful question,

every presumption should be resolved in favor of the conclusion reached. We entertain no

doubt concerning the point involved, from a consideration of sound reasoning, and the weight

of authority is in line with this view. Carter v. Whitcomb, 74 N. H. 482, 69 A. 779, 17 L. R.

A. (N. S.) 733; Philadelphia v. Women's Christian Ass'n., 125 Pa. 572, 17 A. 475; Young

Men's Christian Ass'n. v. Douglas County, 60 Neb. 642, 83 N. W. 924, 52 L. R. A. 123;

Young Women's Christian Ass'n. v. Spencer, 29 Ohio Cir. Ct. R. 249; Goodell v. Union

Ass'n. etc., 29 N. J. Eq. 32. It is not necessary that an institution give alms to constitute it

charitable in character. 5 R. C. L., p. 374, par. 119; Dingwell v. Seymour (Cal. App.) 267 P.

327.

2. Does the fact that the defendant is a charitable institution, of itself, warrant a judgment

in its favor?

There are many decisions in this country holding in accord with the contention of

appellant. These decisions hark back to the case of Feoffees of Heriot's Hospital v. Ross, 12

Clark & F. 507, 8 Eng. Reprint, 1508, as an authority establishing the doctrine.

That case grew out of the refusal of the trustees of a hospital, endowed for the benefit of

poor fatherless boys, to receive a boy qualified for admission. Three opinions were written in

that case. Lord Cottenham ��-�G<��&�� O��4��


observed: “The question then comes to this,—whether by the law of Scotland a person who

claims damages from those who are managers of a trust fund, in respect of their management

of that fund, can make it liable in payment. It is obvious that it would be a direct violation, in

all cases, of the purposes of a trust, if this could be done; for there is not a person who ever

created a trust fund that provided for payment out of it of damages to be recovered from those

who had the management of the fund. No such provision has been made here. There is a trust,

and there are persons intended to manage it for the benefit of those who are to be the objects

of the charity. To give damages out of a trust fund would not be to apply it to those objects

whom the author of the fund had in view, but would be to divert it to a completely different

purpose.”

It will be noted that the learned jurist stated the question in the first sentence quoted and

then proceeded to answer it. The question, as stated, is whether a trust fund can be held liable

for the mismanagement of the trust by the trustees. The basis of his conclusion is that to allow

damages would be a diversion of trust funds to a purpose other than that intended by the

creator of the fund, and, incidentally, to indemnify trustees for their own wrongdoing.

To say that we have had great difficulty in reaching a conclusion in this case would not be

an exaggeration. However, after much study and analysis of the cases, we think we have

reached the correct conclusion in the instant case.

We think it must be said to be a rash presumption to assume that any right-thinking,

charitably disposed person would have ever contemplated that any fund he might establish

should be used, managed, or disbursed in a manner which would defeat any principle of the

existing law. It was certainly the law at the time of the endowment of the defendant that

corporations and individuals generally were liable for their torts, and we know of no theory

upon which any court would be justified in saying that any charitable organization is ��


above the law, or that the creator thereof contemplated that such should be the fact. However

this might be, the instant case is dissimilar from the case mentioned, in that it was conceded

in that case that the individual trustees might be liable in damages, though they were not

liable in their trust capacity. The whole reasoning of the case is unsound, novel, and

revolutionary, in that, if the trust fund was exempt, that is a matter that should have been

asserted in a different proceeding rather than as a defense to the cause of action. To illustrate:

A man's homestead in this state is exempt to the extent of $5,000, but that fact is no defense

to a cause of action for damages.

It seems that the Heriot case has been repudiated in England and in some of her colonies.

Mersey Docks v. Gibbs, L. R. 1 H. L. (Eng.) 93, 35 L. J. Exch. (N. S. ) 225, 12 Jur. (N. S.)

571, 14 L.T (N.S.) 697, 14 Week. Rep. 872; Hillyer v. Hospital, 78 L. J. K. B. N. W. 958,

101 L. T. (N. S.) 368, 9 British R. C. 1; Lavere v. Smith, 35 Ont. L. Rep. 98; 9 British R. C.

13.

However this may be, while some of the leading cases in the United States concede that

the weight of authority is in accord with the general principle that a trust fund cannot be

diverted, in any event, from the purpose of the charity to the payment of damages sustained at

the hands of a charitable corporation, we think such is not the fact. Upon an analysis of the

cases, we find in this country decisions holding squarely against the doctrine contended for by

appellant; and others, though cited in support of the doctrine contended for by appellant, in

fact will not justify such contention. The first case in this country which is supposed to

sustain the contention of appellant, and which is the foundation for the Massachusetts rule, is

that of McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529. That

was a suit against a charitable institution for damages sustained by a patron of the institution.

Amazing as it may seem, nothing was said in that opinion to the effect that the defendant

would not be liable for the reason that to give judgment ��


it would be a diversion of trust funds from the purposes for which they were intended, but it

was held that a charitable institution is not liable where there has been no neglect on the part

of the institution in the exercise of care in the selection of its inferior agents. Just how such an

opinion can be an authority for the contention of appellant is beyond our understanding. It is a

concession that it would be liable for an injury resulting from negligence in the selection of

its inferior agents. Such a concession can be interpreted in no other way but as a repudiation

that a charitable institution will not be liable in any event for its negligence, as is contended

by appellant. Yet this case is often cited in American cases to support the doctrine that a

charitable institution is not liable for damages in any event.

One of the leading cases in this country which flatly repudiates the doctrine contended for

by appellant is that of Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675, where

the earlier cases are reviewed and greatly shorn of their force.

The supreme court of New Hampshire took the same view in Hewett v. Woman's Hospital

Aid Ass'n., 73 N. H. 556, 64 A. 190, 7 L. R. A. (N.S.) 496. A strong opinion taking the same

view is that of Tucker v. Mobile Infirmary Ass'n., 191 Ala. 572, 68 So. 4, L. R. A. 1915d,

1167.

There are many cases holding that a charitable institution is liable for its negligence in the

employment of unskilled and incapable employees resulting in injury to its patrons. Others

hold that such an institution is liable for the negligence of its employees. The cases so holding

necessarily repudiate the broad contention of appellant to the effect that a trust fund cannot be

resorted to to compensate one injured through the negligence of one administering the trust.

There can be no reconciling these and decisions of a like character with the idea of absolute

immunity from liability, as stated in Heriot's Hospital v. Ross, supra. In other words, it is as

much a diversion of trust funds from the �� 9��9��


object for which the trust was created by giving judgment because of the negligence in

selecting servants as to divert it to pay damages resulting from a wrongful act of the trustees,

such as in the Heriot Hospital case.

One of the strongest, if not the strongest, opinion, holding that a charitable institution is

liable for damages arising out of the selection of unskilled servants, is that of Basabo v.

Salvation Army, 35 R. I. 22, 85 A. 120, 42 L. R. A. (N.S.) 1144.

The opinion in the case we have just mentioned reviews all of the decisions theretofore

rendered upon the question here involved, and the court reached what we think a sound

conclusion, and we will content ourselves with calling attention to a few of the cases

subsequently decided in accord with the views therein expressed.

In Hospital of St. Vincent of Paul v. Thompson, 116 Va. 101, 81 S. E. 13, 51 L. R. A. (N.

S.) 1025, in an opinion by Keith, J., a learned and distinguished jurist, the court repudiated

the contention that a charitable institution is immune from liability, though on a different

theory from that expressed in some of the cases.

The supreme court of Indiana, in St. Vincent's Hospital v. Stine, 195 Ind. 350, 144 N. E.

537, 33 A. L. R. 1361, while apparently not satisfied to repudiate the trust fund doctrine,

seems, as a matter of precaution, to have made its opinion turn upon the proposition that a

charitable institution is not liable if it uses due care in the selection of its employees. In truth,

this opinion contains but little nutriment for the proponents of either side of the real question.

The supreme court of Tennessee, in Love v. Nashville etc., Inst., 146 Tenn. 550, 243 S. W.

304, 23 A. L. R. 887, said: “The trust fund doctrine as applied in the Waldon Academy case

[118 Tenn. 24, 102 S. W. 351, 11 L. R. A. (N. S.) 1179], carried to its logical conclusion,

would permit of no exceptions, and operate to exempt institutions of this character from

damages of all sorts, which might result from mismanagement of the officers ��


of the corporation or the torts of any of its agents or employees, regardless of how they may

have been inflicted or the persons affected thereby. * * * Whatever may be said for or against

the soundness of the doctrine as an original proposition, we are not prepared to repudiate it,

and do not do so, but there are cogent reasons for limiting its operations, and the real question

here is whether or not a limitation to its application should be made in the case now before

the court.”

The court in the opinion mentioned admits that it has misgivings as to the soundness of the

trust fund rule, but does not seem prepared to break away from the fetish worship which

influenced so many courts.

Another case which tacitly repudiates the trust fund doctrine is Bruce v. Central Methodist

Episcopal Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150.

Amazing as it seems, while the court says it is committed to the trust fund doctrine, it holds

that the defendant, a charitable organization, is liable for the negligence of its servants. Such a

position is indefensible. If a trust fund created for charitable purposes cannot be diverted from

the purpose to which it is dedicated, because of the negligence of the trustee, on what sound

basis can it be diverted from such purpose because of the negligence of an inferior employee?

Another Michigan case which substantially repudiates the trust fund doctrine is that of Gallon

v. House of Good Shepherd, 158 Mich. 361, 122 N. W. 631, 24 L. R. A. (N. S.) 286, 133 Am.

St. Rep. 387.

The supreme court of Nebraska, though in line with the trust fund doctrine, in Marble v.

Nicholas Senn Hospital Ass'n., 102 Neb. 343, 167 N. W. 208, held that a doctor, who, by

invitation, entered a hospital with a patient to procure a radiograph and is injured through the

negligence of an X-ray operator, can recover. Such a decision cannot be reconciled with the

trust fund theory. If a trust fund is sacred for the reason generally given, why is it not sacred

in every kind of a case? Is it not as much a diversion of the trust fund in the case just

mentioned as it would be in the case of a �� (


patient of a hospital? Such opinions seem to us to be arbitrary and without rhyme or reason to

support them.

In McInerny v. St. Luke's Hospital Ass'n., 122 Minn. 10, 141 N. W. 837, 46 L. R. A. (N.

S.) 548, it was held that an employee injured through the negligence of the hospital, a

charitable institution, might recover. Another case to the same effect is that of Hotel Dieu v.

Armendarez (Tex. Com. App.) 210 S. W. 518. The latest case in line with the view we take is

that of Lewis v. Young Men's Christian Ass'n. (Cal. Sup.) 273 P. 580.

A flood of cases might be cited holding that a charitable institution is liable for its

negligence in the selection of its employees, for the negligence of its employees, to strangers,

or for some other reason. Every decision so holding, no matter how astutely the court may

seek to evade the real question—that is, the charitable trust theory—is in fact, where the

question is presented, a denial of that doctrine, for, as we have said, in substance, a charitable

institution is either exempt or it is not. No sophistry, no refinement of argument, can

consistently hold that a charitable institution is exempt in the one case and not exempt in the

other.

3, 4. It is next asserted that, since the deceased was a beneficiary of the charity of the

defendant, there can be no recovery, even though he paid the annual dues required of all

members. As we understand plaintiff's position as to this contention, it is the general one that

the deceased cannot be said to have assumed a risk that he did not know of, and that there is

no showing that he knew of the defect which resulted in his death. Of course it is a

well-known general rule in damage suits that one only assumes the risk of a known danger,

but that rule has no application in this character of a case.

The leading case in support of the doctrine here contended for is that of Powers v.

Massachusetts Homeopathic Hospital, 109 F. 294, 47 C. C. A. 122, 65 L. R. A. 372, from

which we quote:

“* * * If, indeed, there can be shown an agreement by the plaintiff to hold the defendant

harmless ��


for the acts of its servants, then it follows that this action cannot be maintained, and we agree

with the learned judge of the court below that this agreement arises by necessary implication

from the relation of the parties. That a man is sometimes deemed to assume a risk of

negligence, so that he cannot sue for damages caused by the negligence, is familiar law. Such

is the case of common employment, and such are the cases of athletic sports and the like, put

by Pollock on page 150 et seq. Such is the case at bar. One who accepts the benefit either of a

public or of a private charity enters into a relation which exempts his benefactor from liability

for the negligence of his servants in administering the charity; at any rate, if the benefactor

has used due care in selecting those servants. To paraphrase the illustration put by the learned

judge before whom this case was tried, it would be intolerable that a good Samaritan, who

takes to his home a wounded stranger for surgical care, should be held personally liable for

the negligence of his servant in caring for that stranger. Were the heart and means of that

Samaritan so large that he was able, not only to provide for one wounded man, but to

establish a hospital for the care of a thousand, it would be no less intolerable that he should

be held personally liable for the negligence of his servant in caring for any one of those

thousand wounded men. We cannot perceive that the position of the defendant differs from

the case supposed. The persons whose money has established this hospital are good

Samaritans, perhaps giving less of personal devotion than did he, but, by combining their

liberality, thus enabled to deal with suffering on a larger scale. If, in their dealings with their

property appropriated to charity, they create a nuisance by themselves or by their servants, if

they dig pitfalls in their grounds and the like, there are strong reasons for holding them liable

to outsiders, like any other individual or corporation. The purity of their aims may not justify

their torts; but, if a suffering man avails himself of their ��


charity, he takes the risks of malpractice, if their charitable agents have been carefully

selected.

“We have thus indicated the grounds upon which rests, in our opinion, the defendant's

exemption from liability in this case. Though we feel constrained to differ from the reasoning

followed by some other courts in reaching the same conclusion, we are not unmindful that the

identity of conclusion reached, though by different roads, is a strong proof of its correctness.

Doubtless a weight of authority is more overwhelming if it is identical in reasoning as well as

in result, but identity of result is in itself no mean argument for its justice.”

Such is the rule in New York. Chief Justice Cullen, in delivering the unanimous opinion of

the court in Horden v. Salvation Army, 199 N.Y. 233, 92 N.E. 626, 32 L.R.A. (N.S.) 62, 139

Am. St. Rep. 889, after disposing of the trust fund theory, said: “In several jurisdictions,

however, the immunity of charitable corporations for the torts of their trustees or servants has

been made dependent on the relation the plaintiff bore to the corporation. In all it is

recognized that the beneficiary of a charitable trust may not hold the corporation liable for the

neglect of its servants. This is unquestionably the law of this state.”

The learned jurist, after citing and commenting on various authorities, quotes a portion of

the language above quoted from the Powers case, and concludes with this observation: “We

can add nothing to the force of this reasoning, but simply express our concurrence therein.”

The supreme court of Michigan is also committed to the theory stated. In Bruce v. Central

Methodist Episcopal Church, 147 Mich. 230, 110 N.W. 951, 10 L.R.A. (N.S.) 74, 11 Ann.

Cas. 150, after holding that the defendant was a charitable institution, and distinguishing the

case under consideration from that of Downes v. Harper Hospital, 101 Mich. 555, 60 N.W.

42, 25 L.R.A. 602, 45 Am. St. Rep. 427, held that those voluntarily ��


accepting the benefits of a charity cannot recover from the dispenser of charity for its

negligence.

In Hamburger v. Cornell University, 99 Misc. Rep. 564, 166 N.Y.S. 46, the court

considers the point at length, stating: “In all jurisdictions it is recognized that the beneficiary

of a charitable trust may not hold the corporation liable for the neglect of its servants.”

In the instant case, the deceased, like all other members, paid only nominal dues, and

hence voluntarily accepted the benefit of a charitable institution.

In the light of the circumstances and the well-established rule, we see no recourse open but

to reverse the judgment and order appealed from.

It is so ordered.


August 6, 1929

Per Curiam:

Rehearing denied.

____________

��51 Nev. 390, 390 (1929) Smith v. Southern Pacific Co.��

SMITH v. SOUTHERN PACIFIC CO.

No. 2797

May 25, 1929. 277 P. 609.

1. Master and Servant—Railroad Held Not Liable for Death of Brakeman unless Its

Negligence Concurred in Causing Injury. In action against railroad under federal employers' liability act (45 USCA, secs. 51-59) for injuries to

head brakeman resulting in death, there can be no recovery unless negligence of railroad was at least

concurring cause of injury.

2. Master and Servant—Railroad Agents Are Confined to Particular Duties, and their

Authority Does Not Extend Beyond Apparent Authority unless Greater Authority Is

Shown. Each agent of railroad is confined in his duties to scope of his employment and to particular work

which he is employed to do, and such agent's authority does not extend beyond point of apparent

authority unless greater authority is shown.

3. Master and Servant—Telegraph Operator Could Not Be Considered as Railroad in

Determining Liability for Injuries to Brakeman while Delivering Clearance Order at

Operator's Request. In action against railroad under federal employers' liability ��A!0�M4$%��


act (45 USCA, secs. 51-59) for injury to brakeman requested by telegraph operator to deliver clearance

order to railroad fireman and injured in attempting to deliver order, telegraph operator could not be

considered as railroad.

4. Master and Servant—Brakeman Held Chargeable with Telegraph Operator's Limited

Authority and Acted Voluntarily and Not “in Course of Employment” in Delivering

Order for Operator. Head brakeman held chargeable with knowledge of telegraph operator's limited authority to deliver

orders to train crew received from train dispatcher, and action of brakemen in undertaking to deliver

clearance order for operator was voluntary service, and not act “in course of employment” for which

railroad was liable.

5. Master and Servant—Railroad Held Not Liable for Injury to Brakeman Attempting to

Deliver Clearance Order in Other than Authorized or Customary Manner, though

Telegraph Operator Was Authorized to Direct Brakeman to Deliver Order. Though telegraph operator of railroad was authorized to direct brakeman to deliver clearance order,

railroad would not be liable for injuries to brakeman when attempting to jump on car to deliver order after

fireman failed to catch hoop to which card was attached, where there was no occasion to deliver order

except by use of hoop as authorized and customary.

6. Master and Servant—Brakeman Injured when Attempting Delivery of Clearance Order at

Telegraph Operator's Request in Other than Customary Manner Held Negligent. Railroad brakeman requested by telegraph operator to deliver clearance order to fireman, and injured

while attempting to deliver order by jumping on train instead of using hoop as customary, held guilty of

negligence in using risky and obviously dangerous method which was proximate cause of injury, since

operator's negligence, if any, in requesting brakeman to deliver message, would only bind railroad up to

attempt to deliver order in customary manner.

7. Master and Servant—Railroad's Negligence, if Any, by Telegraph Operator's Request to

Brakeman to Deliver Clearance Order, Did Not Concur in Causing Injury by Use of

Risky Method. Where brakeman was injured when attempting to jump on train to deliver clearance order delivered to

him by telegraph operator instead of using hoop as customary, negligence of railroad, if any, resulting from

act of operator, stopped when brakeman attempted to deliver order by use of hoop, and operator's request

of brakeman to deliver order was no part of causation of injury resulting after railroad's negligence stopped.


Master and Servant—39 C.J. sec. 402, p. 277, n. 49; sec. 403, p. 278, n. 54; sec. 585, p. 469, n. 80; sec. 746,

p. 637, n. 22; sec. 1081, p. 864, n. 16; sec. 1082, p. 865, n. 23.

See, also, 50 Nev. 377. %��4�� .��$��3��$� ��"�<��

@�



Action by Beatrice F. Smith, as administratrix of the estate of Newton N. Smith, deceased,

against the Southern Pacific Company. Judgment for plaintiff, and from an order denying a

motion for a new trial defendant appeals. Reversed.


By special interrogatory No. 2 it appears that the only “negligence” of which the jury

found the defendant guilty was the “negligence” of J. W. Lusk. The act of Lusk cannot be

considered either as negligence toward the deceased or as the proximate cause of the injury.

By the finding that “J. W. Lust was negligent,” the jury must have intended to find that Lusk

was negligent in not personally delivering the orders and in requesting Smith to make the

delivery. Whether or not Lusk was negligent in so doing may possibly be a debatable

question. But this request to Smith to deliver the orders is the only act of Lusk shown by any

evidence which might be claimed to be negligence. Was it actionable negligence in this case

and the proximate cause of the injury? One of the most fundamental rules of the law of

negligence is that the alleged negligence, in order to be actionable, must be the violation of a

duty imposed by law and owed by the defendant to the complaining party. Thompson on

Negligence, sec. 3; Newark E. L. & P. Co. v. Garden, 78 Fed. 74; P. C.C. & St. L. Ry. Co. v.

Simons, 76 N. E. 883 (Ind.); B. & M. R. R. v. Sargent, 57 Atl. 688 (N. H. ).

The only duty owed by Lusk as agent of defendant to the deceased was that of using

reasonable care not to injure him. Before plaintiff can rely upon the act of Lusk in requesting

Smith to deliver the order, she must show that such request was negligence towards the

deceased and was the proximate cause of the injury. 29 Cyc. 488a; Roberts Federal Liability

of Carriers, sec. 538. Unless an injury could have been reasonably foreseen or anticipated as

likely to result from the �� $�� <��A2��B��


alleged negligent act, said act is not the proximate cause of the injury. Cooley on Torts (3d

ed.), vol. 1, p. 101; Phillips v. Penn. R. Co., 283 Fed. 381-382; Reading Co. v. Boyer, 6 Fed.

(2d) 185-186; Davis v. Schroeder, 291 Fed. 47-49; Roberts Fed. Liab. of Car., sec. 538;

Douglas v. Washington Terminal Co., 298 Fed. 199; C. St. P. M. O. Ry. Co. v. Elliott, 55

Fed. 949; Butts v. C. C. C. & St. L. R. Co., 110 Fed. 329; St. L. & S. F. R. Co. v. Conarty,

238 U. S. 243, 59 L. Ed. 1290; Lang v. N. Y. C. R. Co., 255 U. S. 455, 65 L. Ed. 729; Teis v.

Smugler Mining Co., 158 Fed. 260; Great Northern R. Co. v. Wiles, 240 U. S. 444, 60 L. Ed.

732; Patton v. T. & P. R. Co., 179 U. S. 658, 45 L. Ed. 361; Crossman v. S. P. Co., 42 Nev.

92; St. L. I. M. & S. Ry. Co. v. McWhirter, 229 U. S. 265, 57 L. Ed. 1179.

The complaint alleges that the defendant did not provide a safe method for the delivery of

train orders, and yet the record may be searched in vain for any evidence tending to show that

the method provided was dangerous or that any injury could result from the employment of it.

It was only when Smith undertook to depart from this method that injury ensued. When Lusk

requested Smith to deliver the orders, any reasonable man in his position would assume that

the delivery would be made in the accustomed manner. To hold that Lusk should have

foreseen that Smith would make a jump for the moving train should the orders be missed, in

view of the fact that the rules of the defendant, which Smith is presumed to and must have

known as an experienced brakeman, required the train to come to a stop to get the orders, is

to disregard the evidence and substitute allegation for proof.

Even if it be conceded that this court is not confined to a consideration of the negligence of

Lusk alone, there is no proof of any other negligence upon the part of the defendant. It is a

familiar principle that a railroad's duty to furnish safe means, methods and appliances extends

only to such work as an employee is required or expected to do. When he does that which is

neither required nor expected of him and is injured �� 5��*�L�,��$��


thereby there can be no liability. B. & O. R. Co. v. Newell, 196 Fed. 866 (syllabus); Hogan v.

N. Y. C. & H. R. R. Co., 223 Fed. 890 at 896; Reese v. P. & R. Ry. Co., 225 Fed. 518 at 520;

Philadelphia & R. Ry. Co. v. Allen, 9 Fed. (2d) 854; Philadelphia & Ry. Co. v. Thirouis, 9

Fed. (2d) 856; Philadelphia & R. Ry. Co. v. Bartsch, 9 Fed. (2d) 858. We submit that this

record fails to disclose any evidence whatever tending to show that the defendant failed to

proved a safe method for the delivery of train orders. In this connection it is interesting to

note the case of Southern Pacific Company v. Berkshire, 254 U. S. 415, 65 L. Ed. 335. The

question as to whether or not the defendant had provided a safe method for the delivery of

train orders should not have been submitted to the jury. It was Smith's own method, on the

morning of the accident, which was unsafe, not the method of the Southern Pacific Company.

Whatever risk there was in attempting to go upon the train with the order was clearly

assumed by Newton N. Smith. The risks that may be assumed by an interstate employee are

of two kinds, ordinary and extraordinary. Ordinary risks are those that are normally incident

to the occupation in which an employee voluntarily engages. An employee is conclusively

presumed to have knowledge of such risks and assumes injuries arising therefrom. Such

ordinary risks are assumed by an employee whether he is actually aware of them or not, for

the dangers or risks that are normally or necessarily incident to his occupation are presumable

taken into account in fixing the rate of wages. He is also to be treated as assuming

extraordinary risks arising from defects due to the negligence of the employer when he has

knowledge of them and the danger arising therefrom, or when the risk and danger are so

obvious that an ordinarily prudent person under similar circumstances would have known the

risk and appreciated the danger arising therefrom. Labatts Master & Servant (2d ed.), vol. 4,

sec. 1307; Roberts Fed. Liabilities of Carriers, sec. 558; Seaboard Air Line Ry. Co. v. Horton, 22�M��4��!� ��0:�+��6��17 ��1?1"�$��*�L��,��$��.�%�� !��M��4�2�1��71�+��6��1�7��1 1"�4��5��,��*�>��,��$�� 1�M��4�0:��00�+��6��0�7��711"�$� ��K�� ,��$��5�� 17�@��:7:��:?1"4�� %�� <��*�4� ��@��,��$��"��!:�>�


233 U. S. 492, 58 L. Ed. 1062 at 1070; Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U. S.

310, 60 L. Ed. 1016 at 1020; Schlemmer v. Buffalo, Rochester & Pitts. Ry. Co., 220 U. S.

589, 55 L. Ed. 596 at 600; Central Vermont Ry. Co. v. Bethume, 206 Fed. 868 at 870;

Spinden v. Atchison, Topeka & Santa Fe Ry. Co. ; 148 P. 747 at 748; Screnson v. Northern

Pac. Ry. Co., 163 P. 560 at 562; Southern Pacific Co. v. Miller, 207 S. W. 554; Hinson v.

Atlanta & C. A. L. Ry. Co., 90 S. E. 772; Gaddy v. N. C. Ry, Co., 95 S. E. 925; Southern

Pacific Company v. Berkshire, 254 U. S. 415, 65 L. Ed. 335; Briggs v. U. P. R. Co. (Kans.),

175 P. 105.

A. Grant Miller, Edward C. Short, and Green & Lunsford, for Respondent:

This case was brought under the federal employers' liability act, and it is of importance in

considering this case to keep in mind the provisions of that act and the interpretations of it by

the federal courts, both district and supreme. It is beyond dispute that the decisions of the

Supreme Court of the United States will control upon state courts in cases coming under this

particular act. The federal employers' liability act is a remedial statute along the lines of the

state workmen's compensation statutes, and is a part and parcel of the same class of

legislation, following the same theory and for the same purpose. By it the doctrine of the

fellow servant rule is abolished; the doctrine of contributory negligence is abolished, and the

doctrine of comparative negligence is substituted therefor; the common-law doctrine of

proximate cause is greatly modified, so that the common-law rules applying to proximate

cause and the decisions thereon do not control. The statute says that where the injury or death

of an interstate employee is caused “in whole or in part” by the neglect of the defendant the

plaintiff may recover, and the federal decisions declare that it is only when the employee's

injury or death is due wholly to his own negligence that the defendant is not liable. All

decisions of all courts which are conflicting with the decisions rendered by the 4��$��M ��4��


Supreme Court of the United States upon the federal liability act are without authority in this

case. Fulgham v. Midland Valley R. Co., 167 Fed. 660, reversing 181 Fed. 91, 104 C. C. A.

151; Baltimore R. Co. v. Brason, 98 Atl. 225; Behrens v. Illinois Central R. Co., 192 Fed.

581; Walker v. Iowa Central R. Co., 241 Fed. 395; St. Louis R. Co. v. Steel, 197 S. W. 288;

Smithson v. Atchison R. Co., 162 P. 111; Seaboard Air Line Railway v. Horton, 235 U. S.

492, 58 L. Ed. 1062.

Ordinarily the injury must be a result of negligence which is the proximate cause, but in

Wisconsin it has been declared that the common-law rule of proximate cause has no

relevancy. Calhoun v. Great Northern R. Co., 156 N. W. 198. Where the question is one upon

which reasonable men might honestly draw different conclusions, it should be submitted to

the jury. Carolina Railway Co. v. Stroup, 239 Fed. 75; Pennsylvania R. Co. v. Glas, 239 Fed.

256; Chicago Railway Co. v. Felder, 155 P. 529; Lincoln v. Pryor, 199 Ill. App. 228.

No clear and palpable error being shown on the part of the state court as to the sufficiency

of evidence to justify the submission to the jury of a case arising under this act, rulings there

made will not be disturbed by the United States Supreme Court. Baltimore R. Co. v.

Whitacre, 61 U. S. (L. Ed.) 228.

“It is only when the plaintiff's act is the sole cause—when defendant's is no part of the

cause—that defendant is free from liability under this act.” Grand Trunk Western R. Co. v.

Lindsay, 201 Fed. 836; Southern R. Co. v. Mays, 239 Fed. 41. “Whether the act of an injured

employee was the sole cause of the injury is a question for the jury.” Lusk v. Osborne, 191 S.

W. 944. “The question of comparative negligence where both parties are negligent is one for

the jury.” Louisville & N. R. Co. v. Blankenship, 84 Southern 960; Voorhees v. Central R.

Co., 14 Fed., 2d Series, 899-901.

Under the federal employers' liability act, the fact that plaintiff and another employee were

chargeable with negligence, which contributed to plaintiff's injury, does not warrant direction

of verdict for defendant.


Roberts Fed. Liability, vol. 1, sec. 577, p. 1029; Lehigh Valley v. McGranahan, 6 Fed., 2d

Series 431; Air Reduction Co. v. Phila. S. B. Co., 14 Fed., 2d Series, 734-739.

Proximate cause is a question of fact to be determined by the jury. “It is only when

plaintiff's neligence was the sole cause of his injury that defendant is free from the liability

under this act.” Auchenbach v. Phila. R. Co., 8 Fed., 2d Series, 350.

Assumption of risk is for the jury. Arnold v. National Starch Co., 21 L. R. A. (N. S.) 178;

Maloney v. Winston Bros., 47 L. R. A. (N. S.) 634; Davis v. Hynde, 4 Fed., 2d Series, 656.

Under the federal employers' liability act, if the injury is due in whole or in part to

defendant's negligence, defendant is liable. L. M. R. Co. v. Paschal, 89 S. E. 620; O'Conner v.

Norfolk Western R. Co., 188 S. W. 621; Molzoff v. C. M. St. Paul R. Co., 156 N. W. 467;

Calhoun v. Great Northern R. Co., 150 N. W. 198; Grand Trunk Western R. Co. v. Lindsay,

58 U. S. (L. Ed.) 838, at 842.

OPINION


This action was brought to recover damages for injuries sustained by Newton N. Smith,

which resulted in his death.

Judgment was rendered in favor of the plaintiff. The appeal is from an order denying a

motion for a new trial. We will refer to the parties as plaintiff and defendant, and where

necessary to allude to the deceased, we will do so as Smith.

On October 5, 1924, at Hazen, a point about 135 miles east of Reno, where the defendant

maintains two sidetracks in addition to its main line, Smith received the injuries resulting in

his death. He was in the employ of the defendant on that day as head brakeman on a train

traveling westward, which was on the south siding at the time of the injury, awaiting the

passing eastward of a train designated “First 272.” There ��


was on the north siding shortly before and at the time of the injury a train headed eastward.

While train “First 272” was approaching the depot, Smith and others of the crew of his train

were in the depot.

As train “First 272” approached Hazen, it gave the signal for orders, and a stop sign was

given by the telegraph operator. It was the duty of this train to come to a full stop before

reaching the switch about a mile easterly from the depot, unless it received a clearance order.

As train “First 272” was pulling in at the depot, the train on the north siding, also headed

eastward, began to pull out at the switch mentioned.

As train “First 272” approached the depot it slowed down to 15 miles per hour. The rule of

the defendant requires that the clearance card be delivered by the telegraph operator if the

train is in the vicinity of the depot. The train in question passed in the vicinity of the depot,

and a clearance card was to be delivered to the train crew, but the operator, instead of

delivering it himself, requested Smith to do so. To make delivery of the card, it is attached to

a hoop held up by a long stem, so that the fireman can catch it on his arm. On this occasion

the fireman failed to catch the hoop, and Smith endeavored to jump on the fourth car back of

the tender, evidently with the view of delivering the card, missed his footing, fell, and

received the injuries in question. Under the rules of the defendant, when the card was not

delivered it is the duty of the train to stop and have a trainman go back and get the order.

The attorneys for the plaintiff concede that if this suit were brought under the common law

there could be no recovery, but it is claimed that it was brought pursuant to the Federal

Employers' Liability Act (45 USCA, secs. 51-59) and that the judgment must be sustained.

This contention is based upon the theory that the telegraph operator at Hazen was negligent in

requesting Smith to deliver the order, that such negligence must be imputed to the defendant,

that it was the �� 4��'�� &��


proximate cause of the injury, and that Smith's negligence, if there was any, is no defense

under the act in question. It is also said that the question of negligence was one solely for the

jury.

The defendant contends, on the other hand, that Smith's injuries were received solely as

the result of his own negligence, and hence that no recovery can be had.

Other questions are discussed, but we do not deem it necessary to consider them.

In addition to the general verdict in favor of plaintiff, the jury made answer to several

specific questions. One of such answers was to the effect that the injury received by Smith

was due to the negligence of Lusk, the operator. In this connection, counsel for the plaintiff,

in support of their contention that Lusk's request of Smith to deliver the hoop order

constituted actionable negligence of the defendant, say that on that morning Lusk was the

defendant company.

1. While we do not concede that a telegraph operator, an agent of limited authority, can be

said to be the company, yet if such were the fact it would be necessary to reverse the order

appealed from. There can be no recovery in this case unless the negligence of the defendant

was at least the concurring cause of the injury.

2-5. Let us inquire if Lusk was, as counsel say, the company on the morning the injury was

sustained by Smith. The company, in operation of its railroad system, had unlimited authority.

It could have ordered train “First 272,” which was a train transporting fruit to the east, back to

California; it could have ordered the freight train, on which Smith was head brakeman and

which was traveling westward, back to Ogden; it could have ordered dozens of trains to have

pulled on the sidings and the track at Hazen and remain there for days. It could have ordered

dozens of its engines into a roundhouse to be scrapped. It might have ordered scores of other

things which would seem to the average man unreasonable and a ruthless destruction of

property or waste of time. Can it be said that Lusk had �� (


authority to do any of these things? If not, the contention that he was the company is without

the semblance of foundation. We know, and every one who knows anything of the law of

agency knows, that a great railroad system must have agents and employees to carry on its

operations, and we know that each agent is confined in his duties to the scope of his

employment, and to the particular work which he is employed to do. At least such an agent's

authority does not extend beyond the point of his apparent authority unless greater authority is

shown. If this were not true, and if Lusk was the company, he had authority to direct the

engineer to come to the depot at Hazen and act as the telegraph operator and he take the

engineer's job. But it takes no very smart man to know that the engineer would have ignored

any such order. What we have said makes the contention that Lusk was the company so

groundless that it would seem to be a waste of time to even try to convince a layman, to say

nothing of a lawyer, of the weakness of the contention that Lusk was the company. Lusk was

a mere agent of the company, an agent of limited authority. He could deliver orders to a train

crew, received from the train dispatcher, but he had no personal control over a train crew or

any member of it, any more than he had over any person who might have been waiting in the

depot to catch a train. And as a railroad man Smith was chargeable with knowledge of this.

Smith's action in undertaking to deliver the clearance order, in view of this fact, was a

volunteer service, an act of friendship for Lusk, and not an act in the course of his

employment, for which the defendant is liable. But even if Lusk were such an agent as was

authorized to direct Smith to deliver the clearance order, we do not think the defendant is

liable, for the reason that in no event was there occasion for Smith to deliver the order except

in the manner in which the defendant authorized such orders to be delivered while the train

was in motion, namely, by the use of the hoop. The hoop �� 4��


was furnished to be used for that purpose, and several experienced trainmen testified that they

had never known an attempt having been made to deliver an order as Smith did. It is not

claimed that Lusk directed the delivery except by the use of the hoop. While it does not

appear that the defendant had a rule governing the method of delivery, the furnishing of the

hoop for that purpose, plus the evidence as to the well-recognized and long-established

customary method of delivery, of which Smith, an experienced trainman, must have had

knowledge, is as effective as would have been a rule itself.

In Chicago Great Western R. Co. v. Egan (C. C. A.) 159 F. 40, the court held that, in an

action for damages for negligence, evidence of the ordinary practice and of the uniform

custom, if any, of persons in the performance of similar acts like those which are alleged to

have been negligently done, presents the correct standard for the determination of the issue

whether or not there was negligence. This is a well-recognized rule. Lake v. Shenango

Furnace Co. (C. C. A.) 160 F. 887; Waters Pierce Oil Co. v. Deselms, 212 U. S. 159, 29 S.

Ct. 270, 53 L. Ed. 453. The cases mentioned cite numerous authorities supporting the rule.

6. In resorting to a risky and obviously dangerous method of delivering an order, and

contrary to the well-established method—one not approved by the defendant and never

theretofore resorted to—Smith was guilty of negligence which was the proximate cause of his

injuries, for if we assume that Lusk, in requesting Smith to deliver the order, was such an

agent as could bind the defendant, and that he was negligent in making the request of Smith,

such negligence could continue only up to and including the attempt to deliver the order by

the use of the hoop, and no further.

In this situation there was no contributory negligence, no concurring nor comparative

negligence, resulting in the injury, because the defendant's negligence, if any, ceased to enter

into the situation when Smith went ��


beyond the customary method of making delivery of the order. He then became a volunteer

and his own negligence was the sole cause of the injury.

Counsel for plaintiff invite our attention to the case of Grand Trunk Western R. Co. v.

Lindsay, 233 U. S. 42, 34 S. Ct. 581, 58 L. Ed. 838, and says it lays down the law of the

instant case. They quote therefrom, inter alia, as follows: “It is only when plaintiff's act is the

sole cause—when defendant's act was no part of the causation—that defendant is free from

liability under the act.”

We agree with counsel that the case mentioned states the law of the case in hand, and we

think that by an application of the law thus declared there is no escape from a reversal of the

order appealed from.

The facts of the case mentioned present a very different situation from that presented for

our consideration. Let us distinguish. In that case the proximate cause of the injury was the

bad condition of the automatic coupler, a condition which existed right up to and including

the moment the injury was received; hence a recovery was proper though the negligence of

the plaintiff was a concurring cause. In the instant case, as we have seen, the act of Lusk was

not the proximate cause of the injury; hence there could be no liability on the part of the

defendant.

7. We think perhaps we can make more clear our view by using the expression used in

Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65, when we alluded to the fact that the

negligence of the plaintiff “stopped.” In the instant case, assuming that the defendant was

guilty of negligence when Lusk requested Smith to deliver the hoop order, such negligence

“stopped” when Smith had made the attempt to deliver the order by the use of the hoop, and

whatever Smith did, after that attempt was made, was a voluntary act on his part, and the

negligence of the defendant having stopped before Smith received the injury, the request of

Lusk to deliver the order was no part of the causation, and hence the voluntary act of Smith

was the sole cause of injury.


This being true, under the authority of the case cited by counsel, there can be no recovery.

The order appealed from is reversed.


August 6, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 403, 403 (1929) Donohue v. Pioche Mines Co.��

DONOHUE v. PIOCHE MINES CO.

No. 2849

June 4, 1929. 277 P. 980.

1. Abatement and Revival—Attachment against Plaintiff, Later Dismissed, Wherein

Defendant Was Garnished, Did Not Deprive Plaintiff of Right of Action on Note. That writ of attachment had been sued out against plaintiff, and garnishment process issued therein

against defendant, did not deprive plaintiff of right of action on promissory note, where there was no

change of possession and attachment was dismissed subsequently.

2. Set-off and Counterclaim—Where Plaintiff Was Allowed Recovery in Capital Stock, Court

Did Not Err in Applying Counterclaim to Reduction of Stock Due Plaintiff. In action on defendant's promise to pay specified sum of money, or specified number of shares of

stock at plaintiff's option, in which defendant counterclaimed on promissory note, courts, under Rev.

Laws, sec. 5268, did not err in applying defendant's counterclaim to reduction of plaintiff's demand by

deducting number of shares equivalent to amount claimed by defendant, where plaintiff was allowed

recovery in stock rather than in money.

3. Judgment—Where Plaintiff Demanded Judgment for Stock or Money on Note Payable in

Either, Allowance of Number of Shares of Value Exceeding Money Demand Was

Erroneous. In suit on promissory note by which defendant agreed to deliver 900 shares of stock to plaintiff, or at

plaintiff's option to pay sum of $2,700, in which court found value of stock was $5 a share, and plaintiff

demanded judgment for 900 shares, or in lieu thereof for $2,700, and complaint was not amended,

allowance of 900 shares under plaintiff's claim was erroneous because exceeding in value amount of

plaintiff's money demand.


Attachment—6 C.J. sec. 1090, p. 466, n. 77.


Recoupment Set-off and Counterclaim—34 Cyc. p. 689, n. 73.


Appeal from Tenth Judicial District Court, Lincoln County; Wm. E. Orr, Judge.

Action by Ed. P. Donohue against the Pioche Mines Company, in which defendant filed a

counterclaim. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

(Sanders, J., dissenting.)

F. E. Wadsworth, for Appellant:

Since an attachment was issued against the chose in action sued on by the plaintiff at the

time this action was started, plaintiff had no cause of action that could be based thereon. The

liability of the defendant, if any, was to the plaintiff in the action in which the attachment was

issued, and to the attaching officer. Upon this point sec. 5154 of the code is very definite.

Under the laws of Nevada the levy of an attachment gives to the sheriff a special interest in

and to the property levied on. He has the sole right to reduce a chose in action to collection.

The right is of such a nature that if a third party interfere therewith the sheriff may maintain

an action to protect his interest therein. This rule is definitely set forth in the case of Foulks v.

Pegg, 6 Nev. 136, at 137-8.

Therefore, it is clear that at the time of bringing this suit all right and liability in and to the

cause of action alleged in the complaint herein resided in the attaching officer and not in the

plaintiff in this suit. The cause of action set forth in the complaint, therefore, was void, and

the judgment in favor of the plaintiff therein should be reversed.

The court below erred in compelling the defendant to accept forty shares of its stock in

payment of a promissory note which by its terms was payable in cash. The power of the court

to dispose of defendant's counterclaim is set forth in sec. 5268 of the civil practice act. The

affirmative relief prayed for in defendant's counterclaim was the payment of the aforesaid

note. It is respectfully submitted that the judgment herein should be modified so as to provide

that the plaintiff pay the note which the court has already decreed he was legally ��


bound to pay. This point of law is sustained by that long line of cases analogous hereto,

wherein the elementary principle of law is set forth that a court of law cannot make a new

contract for the parties. The right to grant relief to the plaintiff in an action is specifically set

forth in sec. 5241 of the civil practice act. The defendant in its counterclaim did not ask for

and should not be compelled to accept the shares of stock awarded him by the court,

defendant's cause of action being based upon a promissory note for the payment of money,

and not for the payment of stock. This restriction on the court's power to award judgment that

is consistent with the nature of the action is set forth in the case of Marshall v. Golden Fleece

G. S. & M., 16 Nev. 156-173. In line with the ruling in that case, therefore, it would seem that

the court had no authority to determine upon a new fact not embraced within the pleadings

and not a part of, nor consistent with, the cause of action set forth either by the plaintiff or

defendant.

A. L. Scott, for Respondent:

Defendant must be laboring under a delusion that he is arguing against a demurrer in

connection with which all the allegations of his answer must be taken as true. The fact

remains, however, that the contentions now made were merely allegations in his answer

which he was required to prove by competent evidence upon the trial of the case, if he wished

to prevail thereunder. That there was a failure of proof on his part is shown by the judgment.

In Kelly v. Kelly, 18 Nev. 49, it is held: “When matter is necessary to be proven in order to

support the judgment, it will be presumed to have been proven in the absence of an

affirmative showing to the contrary. This principle is always applied when the appeal is taken

from the judgment roll alone.” The converse would of course be likewise true. And in Jones

v. Adams, 19 Nev. 8, it is held: “When the evidence in the case is not presented to the

appellate court for review, every material fact not found must be �� #


presumed in favor of the judgment.” This contention of defendant, therefore, even if properly

before this court, could have no merit whatever.

Point two is answered by defendant in citation of par. 5241 (sec. 299) of the civil practice

act. After an examination of the pleadings, including the reply and the judgment, it needs no

further comment. The judgment, it will be noted, states definitely that the present value of the

stock was fixed by “the testimony of defendant.”

Firmly convinced that the record in this case conclusively shows that this appeal is

prosecuted solely to delay and embarrass plaintiff, it is earnestly suggested that your

honorable court add to the costs such damages as may be just.

OPINION


The complain alleges:

“That on June 5, 1923, at Pioche, Nevada, the Defendant made and delivered to the

Plaintiff its promissory note of which the following is a copy:

“‘Pioche, Nevada, June 5th, 1923.

“‘Twelve months after date, for value received, the Pioche Mines Company promises to

deliver to Ed. P. Donohue, Nine Hundred (900) shares of the capital stock of the Pioche

Mines Company, par value $5.00 per share, or at the option of the said Pioche Mines

Company to pay to said Ed. P. Donohue, the sum of Twenty seven hundred ($2700) and

00/100 Dollars in lawful money of the United States, payable at the Bank of Pioche, Pioche,

Nevada.

“‘Pioche Mines Company,

“‘By [Signed] John Janney.

“‘John Janney, President.'

“That said note became due and payable June 5, 1924, but the Defendant has not paid said

note nor any part thereof.”


It demands judgment for 900 shares of the capital stock of defendant company, or in lieu

thereof judgment in the sum of $2,700, with interest and costs.

To the complaint an answer and counterclaim was filed. The answer admits the execution

of the document pleaded in the complaint, and alleges an agreement in writing between the

parties extending the time for performance to January 1, 1925. The answer further avers that a

writ of attachment was sued out by a partnership known as Pierce, Critchlow & Marr against

the plaintiff in this action to recover the sum of $5,289.24, wherein this defendant was

garnished, and that the same was still in full force and effect.

For counterclaim the defendant alleges that the plaintiff, for value received, made,

executed, and delivered to the defendant his certain promissory note in the sum of $200

payable on January 1, 1925, without interest, which had fallen due and remained wholly

unpaid.

The complaint in the action was filed December 15, 1926, and summons was served on the

same day. The case was tried to the court on February 27, 1928.

There is no bill of exceptions in the record containing the testimony; hence the case is

before us on the judgment roll alone.

The court found that the value of the stock of the defendant company was $5 per share;

that the documents alleged in the complaint and counterclaim were executed as averred; and

that the terms of neither had been complied with. It appears from the judgment roll that the

attachment pleaded in the answer was dismissed prior to the trial of this case. The court also

found that the defendant was entitled to recover judgment on its counterclaim in the sum of

$200.

The court adjudged that plaintiff was entitled to recover from the defendant 900 shares of

its stock, that the sum of $200 be set off against the judgment in favor of the plaintiff, and

that the defendant deduct from the 900 shares of stock awarded to plaintiff 40 shares, and

deliver to plaintiff 860 shares; and that, in the event of refusal, failure, or inability of

defendant to deliver said �� C!�211�� ?��


stock, the plaintiff in lieu thereof do have and recover of the defendant the sum of $4,300,

with interest at 7 per cent per annum, and costs.

1. It is first asserted that in view of the attachment mentioned the plaintiff had no right of

action at the commencement of the suit. In support of this contention our attention is directed

to the case of Foulks v. Pegg, 6 Nev. 136. There is nothing in the case mentioned to justify

the contention. The facts of that case are dissimilar from those in this. There the constable

took physical possession of lumber under an attachment, which the court correctly said gave

him a special property interest therein. In the attachment against plaintiff there was no change

of possession. But if there had been, the result would be the same, since the attachment

proceeding would have only created a lien; there would have been no change of title unless

followed by judgment and sale. The dismissal of the attachment obviated such a possibility.

2. It is next asserted that the court erred in adjudging that the defendant deliver to plaintiff

900 shares of the stock, less 40 shares in cancellation of the sum of $200 due from plaintiff to

defendant.

In this connection counsel for defendant directs our attention to section 5268, Rev. Laws.

In pursuance of this section, counsel insists that as to the counterclaim the court had no

authority to render anything but a money judgment in favor of the defendant for $200. We

cannot agree with the contention. Concerning a counterclaim it is said in 34 Cyc. 629: “A

counterclaim is a claim presented by a defendant in opposition to or deduction from the claim

of plaintiff. A species of set-off or recoupment introduced by the codes of civil procedure in

several of the states, of a broad and liberal character, and embraces, as a general rule, both

recoupment and set-off, although broader and more comprehensive than either, and secures to

defendant the full relief which a separate action at law, or a bill in chancery, or a cross bill,

would have secured him on the same state of facts. * * *” 3��

�� =� ��


We think it the purpose of the code provision authorizing a counterclaim to confer upon

the courts in a proper case the broadest latitude, with a view of adjusting all differences and

avoiding a multiplicity of suits. Such being the spirit of the law, we do not see how the court

could have rendered any judgment in the case, under the findings, which are not complained

of, except to apply the claim of the defendant to the reduction of plaintiff's demand.

3. We think, however, the judgment is excessive, as contended. The document sued upon

fixes the amount of plaintiff's money demand at $2,700.

Furthermore, plaintiff sued upon that theory. The complaint does not allege the value of

the stock. Having elected to sue upon that theory, and not having amended his complaint to

present any other theory, and not now urging any reason in support of the judgment in the

amount given, other than that the court found the value of the stock to be $5 per share, we

would not be justified in sustaining the judgment in the amount for which it was rendered. As

quoted approvingly in State v. Board of County Commissioners of Lander County, 22 Nev.

71, 79, 35 P. 300, 302: “It may accordingly be laid down as a broad proposition that one who

has taken a particular position in the course of a litigation must, while that position remains

unretracted, act consistently with it.”

It is ordered that the trial court modify its judgment in accordance with the views herein

expressed, and, as so modified, that it stand affirmed.

Ducker, C. J.: I concur.


The complaint is based upon the written contract set out in the opinion. By reference to the

contract, it will be observed that defendant promised to deliver to plaintiff 900 shares of its

capital stock, par value $5 per share, or, at the option of the defendant, to pay to the plaintiff

the sum of $2,700 at the Bank of Pioche. The defendant did not choose to exercise its option.

Therefore, its promise to deliver the stock became absolute ��


regardless of its value. I do not conceive that the complaint is based upon a money demand.

The prayer of a complaint is no part of the cause of action, and, where an answer is filed, the

prayer becomes immaterial. Kingsbury v. Copren, 43 Nev. 448, 187 P. 728, 189 P. 676;

Sugarman v. Morse Bros., 50 Nev. 191, 255 P. 1010, 257 P. 1.

Upon the trial of the case the court determined and fixed the value of the stock at $5 per

share. With all respect, I cannot subscribe to the reduction of its value to $2,700 in the event

of the failure, refusal, or inability of the defendant to deliver the stock as ordered by the court.


August 9, 1929.


A strenuous petition for a rehearing has been presented. Both the petition and the reply

thereto discuss much that is not in the record and which cannot be considered.

We will first dispose of the contention that the appellant did not complain that the

judgment is excessive.

It is true that counsel for appellant did not use the word “excessive,” but the only inference

to be drawn from the language is used in his reply brief is that such was his contention. He

alluded to the fact that the question of the value of the stock in question was not alleged in the

complaint and hence not an issue in the case.

He argued that the 900 shares of stock to be delivered to the plaintiff was attached in a suit

pending against the plaintiff, because of which the defendant could not make delivery. After

considerable argument along this line it is said in the brief: “This defendant is entitled to an

opportunity to pay without penalty this obligation after the attachment had been duly

dissolved. * * * The additional purpose of this appeal is to permit this appellant to collect a

$200 promissory note. * * *”

Thus it appears the appellant was asserting two grievances—one the right to pay without a

penalty, � ��C 11��


and the other relative to the $200 pleaded in the counterclaim. What could appellant have

alluded to as the penalty except the difference between the $2,700 mentioned in the document

sued on and the sum of $4,500 for which judgment was rendered, less the $200 for which

counterclaim was asserted? We think appellant was complaining of an excessive judgment.

There are no allegations in the complaint from which we might infer that this is an

equitable action or which could confer jurisdiction upon a court of equity.

We disposed of this matter in the first instance, not on our idea as to what kind of an

action should have been instituted, nor of the allegations necessary, but upon the record as we

found it and upon the points urged upon appeal.

Both the petition and the reply refer to matters dehors the record, which cannot be

considered.


Sanders, J: I dissent.

____________

��51 Nev. 412, 412 (1929) Ex Rel. Gray v. District Court��

Ex Rel. GRAY v. SECOND JUDICIAL

DISTRICT COURT

No. 2842

June 5, 1929. 278 P. 363.

1. Exceptions, Bill of—Bill of Exceptions May Consist of Statement in Substance of

Proceedings or Reporter's Certified Transcript Thereof. Stats. 1923, c. 97, sec. 1, providing for filing of bill of exceptions to judgment, ruling, decision, order,

or action of court gives party the option to file bill of exceptions containing substance of proceedings

relating to point or points involved or transcript of proceedings certified by court reporter, and trial court

cannot dictate to party which one of these two methods he must adopt.

2. Exceptions, Bill of—Objectors to Proposed Bill of Exceptions Not Proceeding in Manner

Prescribed Forfeit Right To Be Heard on Allowance and Settlement Thereof. Unless parties objecting to bill of exceptions proceed in manner prescribed by Stats. 1923, c. 97, sec.

1, and Stats. 1915, c. 142, sec. 3, they forfeit right to be heard on allowance and settlement of proposed

bill of exceptions.

3. Exceptions, Bill of—Plaintiffs Not Even Substantially Complying with Procedure for

Correcting Defendants' Proposed Bill of Exceptions Were Not Entitled To Be Heard. Where defendants' proposed bill of exceptions contained substance of proceedings relating to point or

points involved under Stats. 1923, c. 97, sec. 1, and plaintiffs' objections contained in substance

statement that court reporter's transcript of all testimony and evidence was only bill of exceptions which

would authorize supreme court to review points in question, there was not even substantial compliance

with Stats. 1915, c. 142, sec. 3, prescribing procedure for correcting proposed bill of exceptions, and

plaintiffs had no right to be heard.

4. Exceptions, Bill of—Requirement that Objectors to Bill of Exceptions Must File

“Statement Specifically Pointing Out” Defect Means that True Facts Must Be Stated in

Particular Manner. Stats. 1915, c. 142, sec. 3, requiring adverse party, if he wishes to object to allowance and settlement

of bill of exceptions, to serve and file “statement specifically pointing out” wherein said bill is defective,

means that true facts as claimed by adverse party must be stated in particular manner and is opposed to

any general designation.

5. Exceptions, Bill of—Objectors to Proposed Bill of Exceptions Had Burden to Proceed as

Prescribed by Statute for Correction Thereof. Where defendants filed proposed bill of exceptions under Stats. 1923, c. 97, sec. 1, stating substance

of proceedings relating to point or points involved, burden was on plaintiffs' deeming proposed bill of

exceptions to be incorrect or defective in its statement of facts to proceed as prescribed by Stats. 1915, c.

142, sec. 3, for correction thereof.


6. Exceptions, Bill of—Reporter's Transcript of Record, where No Motion for Correction Is

Made, Becomes Bill of Exceptions by Operation of Law Without Settlement or

Stipulation. Where proposed bill of exceptions consists of transcript of proceedings certified by court reporter, under

Stats. 1923, c. 97, sec. 1, and no motion for correction is made, transcript certified by court reporter and

filed in due time becomes bill of exceptions by operation of law without settlement by court or stipulation

of parties.

7. Exceptions, Bill of—Court Is Not Bound by Bill of Exceptions Containing Substance of

Proceedings But Must Settle it as Presented on Affirmative Showing, or Make it

Conform to Truth and Settle it. Under Stats. 1923, c. 97, sec. 1, giving court power and making it duty to settle bill of exceptions, where

bill of exceptions is filed in time and consists of substance of proceedings relating to point or points

involved, trial judge is not bound by such bill when presented, even in absence of objections, but is under

duty to settle it as presented where it affirmatively shows that it contains substance of proceedings, or, if

not, make it conform to truth and settle it.


Appeal and Error—4 C.J. sec. 1864, p. 257, n. 97; sec. 1941, p. 320, n. 77, 78.

Mandamus by the State, on the relation of Donley Gray and others, directed to the Second

Judicial District Court of the State of Nevada, in and for the County of Washoe, and Hon.

George A. Bartlett, Judge of said Court, to compel respondent to settle relators' bill of

exceptions. Peremptory writ granted.

Wayne T. Wilson, of Reno, for Relators.

Cole L. Harwood and John D. Hoyt, both of Reno, for Respondents.


This is an original proceeding in mandamus. The petition for the writ verified by Wayne T.

Wilson, Esq., shows that he was attorney for relators in the proceeding and trial of the case,

Coykendall, et. al. v. Donley Gray, et al, case No. 24228, in said district court, Hon. Geo. A.

Bartlett sitting as judge; that as such attorney he did on the 21st day of April, 1928, and

within the time allowed by law, file with the clerk of said court �� "�� &�� C?11"�� "�� '�� =�� &��


a bill of exceptions in said case; that prior to the preparation and filing of said bill of

exceptions the defendants below, relators here, made inquiry of the court reporter who

reported the trial and were informed that a transcript of the testimony and evidence in the case

would cost the relators the sum of $700; that relators not being financially able to pay for

such a transcript instructed affiant to prepare a bill of exceptions in narrative form, which

affiant prepared, setting out in substance all of the proceedings relating to the point or points

involved, fully and correctly, including all of the exhibits that in any way might aid the

supreme court in deciding the point or points involved; that plaintiffs filed their objections to

the bill of exceptions, in which they objected to the same upon the ground that the court

reporter's transcript of all the testimony, together with all the exhibits introduced in the trial is

the only bill of exceptions which would authorize the supreme court to review the points in

question.

The matter of settling the relators' bill of exceptions was heard by Hon.Geo. A. Bartlett,

judge of said Second judicial district court. The court sustained plaintiffs' objections, and in

its order declared that the court reporter's transcript duly certified by him to be a full, true, and

correct transcript of all of the testimony, together with copies of all the exhibits introduced at

the trial, would be the only bill of exceptions which the court would certify to the supreme

court in this proceeding.

The petition further alleges that plaintiffs did not file objections to the relator's bill of

exceptions, specifically pointing out wherein said bill of exceptions fails to state the true

facts, or wherein the same omits any fact necessary to explain or make clear any ruling,

decision, or action of the court, but, on the contrary, the objections filed are argumentative,

contain nothing but conclusions, and state no objection to the bill of exceptions as

contemplated by the statute; that, unless the bill of exceptions is settled by the usual method

of settling a bill of exceptions in narrative form, relators �� "��


will not be able to bring this case to the supreme court; and that the order refusing to settle

said bill of exceptions is not an order from which they have the right of appeal. A writ of

mandamus requiring said judge to settle said bill of exceptions as filed is prayed for.

On the hearing of the application for the writ a copy of the proposed bill of exceptions was

filed in the proceedings, and it was stipulated by counsel that it might be considered by the

court.

The sections of the statute involved in the determination of the question presented are

section 1 of Stats. 1923 at pages 163 and 164, and section 3 of Stats. of 1915 at pages 164 and

165. These sections read, respectively, as follows:

“Section 1. At any time after the filing of the complaint and not later than twenty (20) days

after final judgment, or if a motion be made for a new trial, then within twenty (20) days after

the decision upon such motion, any party to an action or special proceeding may serve and

file a bill of exceptions to such judgment or any ruling, decision , order, or action of the court,

which bill of exceptions shall be settled and allowed by the judge or court, or by stipulation of

the parties, by attaching thereto or inserting therein a certificate or stipulation to the effect

that such bill of exceptions is correct, contains the substance of the proceedings relating to the

point or points involved and has been settled and allowed, and when such bill of exceptions

has been so settled and allowed it shall become a part of the record in such action or special

proceeding. A transcript of the proceedings certified by the court reporter to be a full, true,

and correct transcript thereof may be filed in lieu of such bill of exceptions and when so filed

shall be and constitute the bill of exceptions without further stipulation or settlement by the

court; provided, however, that on motion duly noticed, the court may at any time correct any

error in such transcript by appropriate amendment thereto.”

“Sec. 3. Any adverse party may object to the allowance and settlement of any bill of

exceptions herein �� A0B��


provided for within five (5) days after the service of the same, by serving upon the opposite

party and filing in said court a statement specifically pointing out wherein said bill does not

state the true facts, or wherein the same omits any material fact necessary to explain or make

clear any ruling, decision, or action of the court. Such objection shall be heard and

determined by the court within five (5) days thereafter, and upon such hearing the court shall

designate in what respect said bill is incorrect or untrue, or fails or omits to state the true

facts, and shall order and direct that such bill be corrected in accordance with said

determination, and engrossed so as to contain the true facts as herein required, and when so

engrossed said bill shall be allowed and settled as in this act provided, and when so settled

shall become and be a part of the record of said action. If the objections of the adverse party

are disallowed, then such bill as originally filed shall be immediately settled and allowed as

by this act required.”

1. Section 1 clearly gives a party the option to file a bill of exceptions which shall contain

the substance of the proceedings relating to the point or points involved, or a transcript of the

proceedings certified by the court reporter as required by the section, which shall constitute

the bill of exceptions.

The trial court cannot dictate to a party which one of these two methods he must adopt.

The privilege given to a party to adopt either is very plainly expressed.

2. When the latter method is chosen, if the adverse party considers that the transcript is

incorrect, he may proceed on motion for its correction as prescribed in said section 1. If the

former is chosen and the adverse party considers that the proposed bill of exceptions does not

state the facts correctly or omits any material fact necessary to explain or make clear any

ruling, decisions, or action of the court, he may proceed for its correction in accordance with

the procedure prescribed by said section 3 of the act of 1915. This was the method chosen in

this case, and, unless the plaintiffs proceeded in the manner prescribed, they forfeited their��


right to be heard on the allowance and settlement of the proposed bill of exceptions. Reinhart

Co. v. Oklahoma Gold Mining Co., 48 Nev. 32, 226 P. 902, 233 P. 842.

3. Repondents represented in their return, and argued on the hearing, that plaintiffs

complied with the requirements of section 3 of the act of 1915 in making their objections to

the proposed bill of exceptions. We do not think so. Plaintiffs' objections to the proposed bill

of exceptions, 13 in number, are set out in the petition. In each one of them it is stated that the

court reporter's transcript of all the testimony and evidence introduced at the trial is the only

bill of exceptions which would authorize the supreme court to review the point in question,

and such transcript, together with the copies of all the exhibits introduced in evidence and

copies of all the papers used on the motion for a new trial is proposed to be used in lieu of

any other bill of exceptions. In a number of the objections it is stated that the proposed

exception is argumentative and does not state a proceeding of the court during the course of

the trial to which exception is made. In some of the objections it is stated that the matter

excepted to was entirely within the discretion of the court. There was not even a substantial

compliance with said section 3, and plaintiffs therefore had no right to be heard against the

allowance of realators' proposed bill of exceptions.

4, 5. Section 3, as we have seen, requires an adverse party, if he wishes to object to the

allowance and settlement of a bill of exceptions, to serve and file a “statement specifically

pointing out wherein said bill does not state the true facts, or wherein the same omits any

material fact necessary to explain or make clear any ruling, decision, or action of the court.”

This requirement has a very definite and precise meaning. It is opposed to any general

designation. It means that the true facts, as claimed by the adverse party, must be stated in a

particular manner. They must be supplied in the statement. Nowhere in any of the objections

was this attempted to be done. Plaintiff's objections should have been disregarded. Counsel

for respondents, �� '��


on the hearing in this court, first took the position that under the circumstances of this

particular case, it was necessary for the relators to furnish the court reporter's transcript as the

bill of exceptions. They later in the argument receded from this position and contended that

the burden was on the relators, after their objections in the lower court, to supply the

substance of the testimony and evidence on the points involved wherein such testimony or

evidence was incorrect in not stating the true facts or in omitting essential facts. As we have

pointed out, neither position is tenable. As previously stated, an appellant can always make

up a bill of exceptions consisting of the substance of the testimony and evidence on the point

or points involved. A denial of this privilege would, in some cases, where an appellant was

financially unable to furnish the court reporter's transcript, work a positive injury. It would in

such cases practically deny the right of appeal. As to the burden claimed by respondents, the

relators had filed what they claimed was a bill of exceptions. The burden was therefore on the

plaintiffs, if they deemed the proposed bill of exceptions to be incorrect or defective in its

statements of facts, to proceed as prescribed by said section 3 of the act of 1915.

6, 7. Was the trial court justified in refusing to allow and settle the proposed bill of

exceptions? We think not. The proposed bill purported to contain the substance of the

testimony and evidence relating to the points involved. It was therefor the duty of the trial

judge or court to settle it as presented or to make it conform to the truth and settle it, if it were

deficient in that respect. Counsel for relators contend that, as no proper objection was made to

the proposed bill of exceptions, it was the duty of the trial judge to settle it as presented. We

cannot agree to this. Under the old practice requiring a statement on motion for a new trial, it

was held that, when there had been no amendments to the statement proposed and filed

within the time limited, or when no amendments had been filed at all, there was nothing for

the judge to settle, and the proposed ��


statement became, by operation of the law, a part of the record. State v. Cheney, 24 Nev. 222,

52 P. 12. But the legislative intent to this effect was clearly apparent from the provisions of

the act providing for such a statement, as the court pointed out. However, there is nothing in

the act of 1915 or in the act of 1923 to indicate that it was intended to bind the trial court by

the bill of exceptions as filed in case no objections are made. Section 1 of the act of 1923

provides that it shall be the duty of the trial judge or court to settle a bill of exceptions filed

within the time prescribed, whenever the method of embodying in such a bill the substance of

the proceedings relating to the point or points involved is adopted. It is otherwise, when the

method of the court reporter's transcript is chosen, unless on motion duly noticed, as provided

in the section. If no motion for correction is made, the transcript certified by the court reporter

and filed in due time becomes the bill of exceptions by operation of the law without

settlement by the court or stipulations of the parties. But as the power and duty to settle the

bill of exceptions when the former method is chosen are expressly given by said section, and

not there or elsewhere limited, it follows that the trial judge or court is not bound by such a

bill when presented, even in the absence of objections. If a bill of exceptions is filed, in due

time, showing affirmatively that it contains the substance of the proceedings relating to the

points involved, the trial judge or court must follow the mandate of the statute and settle it. It

must be made to conform to the truth.

It is therefore ordered that a peremptory writ of mandate issue herein commanding

respondents to settle realtors' bill of exceptions without requiring them to furnish a transcript

of the proceedings.


August 9, 1929.

Per Curiam:

Rehearing denied.

____________

��51 Nev. 420, 420 (1929) Nevada Cornell Silver Mines v. Hankins��

NEVADA CORNELL SILVER MINES, Inc., Et Al.

v. HANKINS, Et Al.

No. 2806

July 5, 1929. 279 P. 27.

1. Assignments—One Assigning Mining Claims to Mining Company Held Not Proper Party

Plaintiff in Company's Suit to Set Aside Default Judgment Entered Against it

Adjudicating Title to the Claims. In suit to set aside default judgment adjudicating right, title, and interest to mining claims as against

company to which claims were transferred, assignors, joined with company as coplaintiff, held not proper

party plaintiff under Rev. Laws, secs. 4998, 5001, since assignor's title had passed under the assignment.

2. Process—Service of Summons Attempted To Be Made by Plaintiff's Attorney Held Void. Attempted service of summons by plaintiff's attorney held void under Rev. Laws, sec. 5022, providing

that summons shall be served by sheriff, or his deputy, or by any citizen over 21 years of age, since

common law required service of summons by disinterested party and common law controls in state under

Rev. Laws, sec. 5474, except when expressly changed by statute.

3. Statutes—Court Must Assume that Statute Is Enacted with Reference to Prevailing

Common-Law Rule. Court must assume that statute is passed in the light of existing common law as to the subject of the

enactment.

4. Statutes—Statute Should Be Given Reasonable Construction, where Possible. If language of statute admits of two constructions, one of which would give absurd result, the

construction giving a reasonable result should be adopted; it being presumed that legislature intended to

avoid absurd consequences.

5. Judgment—Agreement of Defendant to Refrain from Opposing Application of Plaintiff's

Assignor for Patent to Mining Claims in Return for Half Interest in Such Claims

Presented Meritorious Defense, in Suit to Set Aside Default Decree Adjudicating

Claims in Defendant. Agreement of defendant and plaintiff's assignor, whereby defendant agreed to refrain from asserting

adverse claim to mining claims, in consideration of conveyance of half interest therein by plaintiff's

assignor in that and other claims, constituted meritorious defense in suit to set aside default decree

whereby title to claims was adjudicated to be in defendant.


Assignments—5 C.J. sec. 211, p. 1002, n. 16.




Appeal from Ninth Judicial District Court, White Pine County; H. W. Edwards, Judge.

Suit by Nevada Cornell Silver Mines, Inc., and another, against Rose Hankins, and others.

Judgment for defendants, and plaintiffs appeal. Reversed and remanded. (Ducker, C.J.,

dissenting.)

Cooke & Stoddard, for Appellants:

Service of summons by a party or his attorney is invalid at common law and is invalid

under Nevada statutes. The record shows summons in case No. 1682 was served or attempted

to be served by V. H. Vargas, who admittedly was the attorney for plaintiff in that case. We

assert such service was void and conferred no jurisdiction.

At common law the service of summons had to be by an indifferent person—one who was

not interested in the litigation. 8 Bacon Abr., p. 690; 1 Blackstone Com., pp. 344-349.

By statutory enactment the common law exists in this state except where expressly

changed by statute. It is made the rule of decision. Rev. Laws, 5474.

Service of a summon by plaintiff, or his attorney, in a cause is void. State ex rel. Finch v.

Duncan (Mo.), 193 S. W. 950-954; Nelson v. Chittenden (Colo.), 123 P. 656; Ann. Cas.

1915a, 1198, and note; Toenniges v. Drake, et al., 7 Colo. 471; People v. Seicke (Ill.), 96 N.

E. 1052; Filkins v. O'Sullivan, 79 Ill. 524; Dyson v. Baker, 54 Miss. 24; Boykin v. Edwards,

21 Ala. 261; McLeod v. Harper, 43 Miss. 42; Barker v. Remick, 43 N. H. 235; Waring v.

Keeler, 33 N. Y. S. 415; Smith v. Burliss, 52 N. Y. S. 841; Morton v. Crane, 39 Mich. 526;

Bowen v. Jones (N. C.), 55 A. D. 426; Healey v. Tewley, 74 N. C. 250; Bennett v. Fuller, 4

Johns 486; Woods v. Gillson, 17 Ill. 218; Everett v. Gengia, 18 Vt. 15; Rutherford v. Moody

(Ark.), 27 S. W. 230; Snydaker v. Drosse, 51 Ill. 357, 99 A. D. 551; Singletary v. Carter (S.

C.), 21 A. D. 480; Bush v. Meacham (Mich.), 19 N. W. 192.


Witcher is a proper party plaintiff; the complaint alleges equities in his favor. The

demurrer sets up that Witcher is misjoined because no joint interest is shown. Such is not the

statutory test.

“All persons having an interest in the subject of the action, and in obtaining the relief

demanded, may be joined as plaintiffs, except when otherwise provided in this act.” Revised

Laws, 4998. See, also, Revised Laws, 5001.

Further, while the cause of action must be one affecting all plaintiffs, it need not affect

them alike or in equal degree or in the same way. If the cause of action is common to all

plaintiffs, i. e., each has some interest in it in obtaining the relief demanded, then they are

properly joined. Fairbanks v. S. F. R. R. Co., 47 P. 450; People ex rel. v. Morrill, 26 Cal.

336-360; Churchill v. Lauer (Cal.), 24 P. 107; Barham v. Hostetter (Cal.), 7 P. 689.

V. H. Vargas and J. M. Lockhart, for Respondents:

Our statute provides that service of summons may be by “any citizen of the United States

over twenty-one years of age.” The Minnesota statute provides that service of summons may

be made by the “sheriff of the county where the defendant is found or by any other person,

not a party to the action.” In express language our statute does not preclude a party to the

action from serving a summons. The Minnesota statute expressly does, and notwithstanding

this expressed prohibition the Minnesota supreme court in the case of First National Bank of

Whitewater v. Esteson, 70 N. W. 775, in deciding the identical point presented here for

decision, held that summons may be served by the plaintiff's attorney, since the legislature

had not seen fit to extend the prohibition to him. See, also, in this connection: Plano Mfg. Co.

v. Murphy, et al., 92 N. W. 1072; Loucks v. Hollenbeck, 63 N. Y. S. 1, 48 App. Div. 426, 7

N. Y. Ann. Cas. 314.

Conceding the rule to be at common law as enunciated ��


by counsel, it has no application in this state, as our statute is not declaratory thereof, but

rather amendatory thereto. If our statute were declaratory of the common-law rule, why did

the legislature not say in express terms that the summons may be served by any citizen of the

United States over the age of twenty-one years, and not a party to the action, or the attorney of

such party, or phraseology of similar import?

We cannot see where by any stretch of the imagination Witcher can be made a party

plaintiff in this action; he was not a party to the original action, case No. 1682, nor has he any

interest in this action except as a stockholder in the plaintiff corporation. The complaint

shows over three years had elapsed between the time Mrs. Hankins brought her action, case

No. 1682, and the time when Witcher had conveyed all of his interest in the mining claims to

the plaintiff corporation. He did this by quitclaim deed, which under our laws has the effect of

conveying every interest which he had in the claims at the time of its execution and including

the after acquired title by patent, and were it not that the plaintiff corporation was the

“creature” of Witcher, created and charged with actual knowledge of his trust agreements, as

the complaint shows, to serve his purpose, the plaintiff corporation would have acquired a

title good as against the world, including Mrs. Hankins, Minoletti and Hoppe. Brown v.

Warren, 16 Nev. 228, pp. 233, 236, which stands as the law of the state of Nevada today.

It is only in cases where the board of directors of a corporation refuses to sue or defend a

suit on behalf of the corporation that a stockholder can intervene or join as a plaintiff. 4

Thompson on Corp. 1017-1021, sec. 4551-3. Failure of a corporation to sue as a condition

precedent to the right of a stockholder to sue. 4 Thompson on Corp. 1022, sec. 4554.

“To entitle a person to intervene, he must have such an interest in the matter in litigation

that he would gain or lose by the direct legal operation and effect of �� #


the judgment which might be rendered in the suit between the original parties.” Harlan v.

Eureka Mfg. Co., 10 Nev. 92.

OPINION


This suit was instituted to set aside a default judgment against the plaintiff company, and

in favor of Rose Hankins.

We will refer to the complaint as amended as the complaint. It alleges that the plaintiff

company has been duly organized since December 3, 1919; that on December 4, 1919, it

acquired in good faith and for a valuable consideration, from A. B. Witcher, the Glory,

Quartz, and Atlas lode mining claims, situated in White Pine County, Nevada; that within 15

days after December 4, 1919, about 30,000 shares of stock in said company were sold and

delivered to said persons, and that 200,000 shares of the 999,998 shares of stock in the

company, previously issued to Witcher in payment for said lode mining claims, were

transferred to the treasury of plaintiff company; that on July 9, 1918, the said Witcher, who

was then applying for patent to said Glory and Quartz lode mining claims, entered into an

agreement in writing with one Mrs. Rose Hankins to the effect that in consideration of her

refraining, and inducing Mrs. C. S. O'Neil and Frank X. Murphy, a minor, through his

guardian, to refrain from filing an adverse to his said application for patent, and of their

conveyance to him of a half interest in the Monitor, Snowbank, Huntington and Quartzite

claims, and other considerations, he would, upon procuring of patent to said Glory and Quartz

mining claims, convey to said Mrs. Hankins an undivided one-half interest therein; that said

agreement was duly recorded in the office of the county recorder of White Pine County on

October 21, 1918; that on November 28, 1916, said Witcher, in consideration of the

conveyance to him of an undivided one-half interest in and to the Glory mining claim above

mentioned, for the purpose of �� $��


patenting the same, agreed to reconvey said interest to Charles Minnoletti upon the issuance

of patent thereto. It is alleged that on the date last mentioned Witcher entered into a similar

agreement with one Herman Hoppe as to a one-half interest in and to the Quartz claim; that

the agreement with Minnoletti was not recorded until July 20, 1920, and the one with Hoppe

was not recorded until October 5, 1920. It appears from the complaint that said Minnoletti

and Hoppe assigned their interests in the respective agreements to Rose Hankins prior to the

institution of the suit brought by her against this plaintiff. The complaint alleges subsequent

agreements with Hoppe and Minnoletti under which Witcher acquired an equitable interest in

the half interest owned by them respectively in the Glory and Quartz claims.

It is further alleged that the half interest so agreed to be conveyed to said Witcher by said

Hankins, O'Neil, and Murphy, was of the same value as the undivided one-half interest in the

Glory and Quartz claims which the said Witcher agreed to convey to said Hankins, and that

the claims of liability asserted by said Hankins, O'Neil, and Murphy, for ore extracted by

Witcher for which said Hankins undertook to procure a release as a part of the consideration

for said agreement, amounted to $6,500.

It is further averred that on February 2, 1923, the said Hankins, as sole plaintiff, but also

for the use and benefit of the defendants O'Neil and Murphy, commenced an action in the

district court of White Pine County against this plaintiff to obtain a decree adjudging her the

owner of the Glory and Quartz mining claims; that V. H. Vargas, the attorney for the plaintiff

in said action, served the summons thereon on February 5, 1923, as shown by his affidavit on

file in the action; and that no other service of summons was made in the action.

It is further alleged that no appearance was made in that action by the defendant, and that

on February 23, 1923, the clerk of the court entered a default in favor ��9� �� %�� 0�� 2�� )�� Q��=�� 9� �� ,��9� �� ,��9� �� &��


of said Hankins and against this plaintiff, and that the court on April 25, 1923, entered a

judgment and decree in favor of the plaintiff and against the defendant, upon the default

theretofore entered, adjudging and decreeing that this plaintiff company held the said Glory

and Quartz mining claims in trust for the said Hankins, and that all of the right, title, and

interest, together with the right of possession, in and to said claims, and the whole thereof, be

vested in the said Rose Hankins, free and clear of all liens and encumbrances, and that said

company be forever enjoined from asserting or claiming any right, title, or interest in said

claims, and that the title of said Rose Hankins be quieted.

The complaint alleges that the court had no jurisdiction to render a decree in the case

mentioned, for the reason no summons was properly served on the defendants therein,

plaintiffs herein, and no appearance by the defendant in the case.

It is further alleged that the decree is void in that it adjudges any claims or liens of A. B.

Witcher, in or to said lode, to be void, though said Witcher was not a party to the suit. It is

further alleged that said judgment is void for the reason that the complaint in said action does

not state facts sufficient to give the court a jurisdiction to render the decree which it did. It is

further alleged that the decree is void for the reason that certain agreements between Witcher

and others were not complied with.

It is further averred that neither of the plaintiffs herein had knowledge of the decree

complained of, until October, 1924; that defendants have conducted no mining operations on

said property and there are no intervening rights of third persons, except as to an optionee

who has invested $2,000 in the property, but that said option contract be consummated,

subject to the rights of plaintiffs.

A demurrer was filed to the amended complaint, on two grounds, viz.: First, that there was

a misjoinder of parties plaintiff; and, second, that it did not state a ��


cause of action. The court sustained the demurrer on both grounds. As to the first ground the

plaintiffs declined to amend, and a judgment of dismissal was entered as to Witcher. As to the

ruling on the other ground, plaintiff company filed an amendment, wherein it is alleged that

the default judgment aforesaid was and is null and void, in that it was obtained by the

fraudulent inducement and procurement of said Rose Hankins, acting in her own behalf and

in behalf of other interested parties, in this: That about 10 days after the filing of the action

against this plaintiff, it, acting through Joseph V. Murphy, its vice president, employed an

attorney to defend the suit brought against it by the said Hankins, and that said company, to

enable said attorney to properly defend said action, delivered the corporate minute books and

other records, books, documents, and data of said company, which were material and

necessary for use in the defense of said action; that thereupon, as this plaintiff is informed and

believes, and on such information so charges, the said Hankins, for the purpose and with the

intent to prevent said company from appearing in said action and interposing any defense

therein, fraudulently and corruptly induced said attorney to refrain from entering any

appearance in said action in behalf of said company; that because of said fraudulent and

corrupt inducement, the exact amount, character, and nature this plaintiff is unable to state,

the said attorney wholly failed and neglected to take the necessary steps to prevent a default

and decree being entered in favor of said Hankins and against this plaintiff; that upon the

taking of proof after the entry of said default the said Hankins caused to be used in evidence a

portion of the documents, records, and data so obtained.

To the complain as thus amended the defendants demurred on the following grounds:

1. That it does not state a cause of action.

2. That it is ambiguous in that it does not appear in what particular the defendants

fraudulently and ��


corruptly induced the attorney named to refrain from entering an appearance in behalf of this

plaintiff company.

3. That it is unintelligible and uncertain for the same reason.

The defendants also moved to strike the amendment last mentioned, on the following

grounds:

1. That it attempts to state a new cause of action.

2. That it is contradictory and inconsistent with the allegations contained in the complaint

which is purports to amend.

3. That the fraud therein alleged is upon information and belief.

The court filed a written decision in which it passed upon only two points, viz.: Whether

the complaint, as amended, stated a cause of action; and, secondly, whether the amended

complaint is contradictory of, and inconsistent with, the allegations contained in the

complaint.

In its reasoning the court held that the complaint as amended does not state a cause of

action and that the amended complaint is “inconsistent and contradictory.” The court ordered:

“The demurrer is hereby sustained.” It made no order that the amendment be stricken.

Thereafter the court entered judgment in favor of the defendants and against the plaintiffs,

from which an appeal was taken.

Many points are urged by appellants, but in the view we take of the matter we need decide

but two of them.

1. We will first determine if the court erred in holding that Witcher was not a proper party

plaintiff. We think it did not. Section 4998, Rev. Laws, provides: “All persons having an

interest in the subject of the action, and in obtaining the relief demanded, may be joined as

plaintiffs, except when otherwise provided in this act.”

Section 5001 provides that “those who are united in interest shall be joined as plaintiffs or

defendants.” In McBeth v. Van Sickle, 6 Nev. 134, it was correctly ��


held that parties having no interest in common could not be joined as plaintiffs. The subject

matter of this action is the title to the mining claims in question. From the allegations of the

complaint it appears that Witcher conveyed whatever title he had in them to plaintiff

company. The complaint failing to allege any interest in Witcher in the title to the claims, the

demurrer on the ground stated was properly sustained.

2-4. We now come to the contention that the judgment complained of is void, since the

only service of summons made was that made by the attorney for the plaintiff.

We are clearly of the opinion that the contention is well founded. It was admittedly the

rule at common law that an interested party could not serve a summons (8 Bacon's Abr. p.

690), and the common law exists in this state except when expressly changed by statute (Rev.

Laws, sec. 5474); but it is claimed by respondent that section 5022, Rev. Laws, authorizes

such service. It provides that the summons “shall be served by the sheriff of the county where

the defendant is found, or by his deputy, or by any citizen * * * over twenty-one years of

age.”

To accept respondent's view, a plaintiff, over the age of 21 and a citizen, might make

service of summons upon the man he is suing. We do not think it can be said that the

legislature in enacting the statute in question intended any such thing. It has always been the

policy of the law that an interested person should not be put in a position whereby he may

gain an advantage over his antagonist in litigation, and nothing but a clear, unequivocal

renunciation of that policy will justify the interpretation contended for by the respondent.

Judge Cooley, speaking for the court in Morton v. Crane, 39 Mich. 526, in which was

involved the validity of service of summons by a constable who was plaintiff in the case,

said: “The danger of abuse in case of a summons consists in this, that the officer may falsely

make return of a service never made, and thereby ��


put himself in position to obtain judgment by default against a party who perhaps will hear of

the proceedings for the first time when an execution appears against him. No danger of abuse

from an officer serving his own process can be greater than this, and the practice which would

subject the officer to this temptation should not be tolerated. The courts generally have

adhered with great propriety and justice to the rule that in no case shall a man be officer and

party in the same proceeding.”

The supreme court of Illinois, in White v. Haffaker, 27 Ill. 349, used the following

language: “* * * In all legal proceedings, and at every stage of a cause, courts scrupulously

guard against entrusting the execution of its mandates, to persons having any interest in the

cause. The law, for wise purposes, acts alone through disinterested agents. It will not tempt

those having an interest in any way to abuse its process, for the purpose of promoting selfish

ends.”

The same court repeatedly laid down the same rule, and in People v. Feicke, 252 Ill. 414,

96 N. E. 1052, said: “* * * The law is well established that a party to a suit cannot serve his

own writ. (Filkins v. O'Sullivan, 79 Ill. 524.) The reason for this rule is, that the party serving

process should be a wholly disinterested person. (Tallon v. Schempf, 67 Ill. 472.) If such a

practice were sanctioned there would be great danger of abuse and inducement to the person

making the service to make a false return, and thereby put himself in a position to obtain

judgment by default or some other undue advantage over the opposite party, who would

perhaps not know anything of the proceeding until after judgment had been rendered against

him. The courts have therefore generally adhered, with great propriety and justice, to the rule

that in no case can a person be both officer and party in the same proceeding. (Woods v.

Gilson, 17 Ill. 218; Gage v. [Graffam], 11 Mass. 181; Morton v. Crane, 39 Mich. 526.) In the

case at bar we have a petitioner serving the only process ��


provided by the statute to be served, upon himself. This service was in compliance with the

letter of the statute but in violation of its spirit. * * *”

In State ex rel. Finch v. Duncan, 195 Mo. App. 541, 193 S. W. 950, wherein it considered

the authority of a husband, acting as deputy sheriff, to serve upon his wife certain papers in

the matter of an inquisition into her sanity initiated by him, it was held that no jurisdiction

was acquired in the matter. The court said: “Now, in civil actions it has never been the policy

of the law, either statutory or that known as the unwritten or common law, that the person

who brought the action and was interested therein should be allowed to also serve the process

and make return thereof. * * * So that even in the case of an ordinary civil action, involving

no more than a mere civil liability for a limited sum of money, and where the regular process

server is an official under heavy bond for the faithful performance of his duties, still the

statute will not permit him to act in a case where he is plaintiff or is interested in the outcome

of the suit. And the same is true at common law. * * * If an official who is under bond, is not

allowed to serve process as the foundation of a suit in which he is interested or is a party, how

much less should a private person, who is a party to the proceeding and interested in the

outcome thereof, be allowed to serve the foundational notice or process therein and make

return by attaching an affidavit thereto? * * * It is not a question of whether Mr. Finch in this

case is or is not acting honestly and with the best of motives, nor of whether he did or did not

deliver a copy of the notice to Mrs. Finch as the attempted return on the notice states. The

question is whether or not the law can regard service of jurisdictional notice, by one who is

the moving party to a cause and interested in the outcome, as any service or notice at all. To

recognize the validity of such notice in this case will give validity to it in all other cases of

like character. It would open the way and make it more ��


easily possible for designing persons to railroad another into guardianship and perhaps worse,

and to deprive him of his liberty and property without an opportunity to be heard.

Consequently, it is not an error of fact against which this particular feature of relatrix's

application for a writ of prohibition is directed, but, if we are right in our view, it is an error

of law in holding that to be notice which is not notice, when viewed in the general light of the

law's fixed and settled policy. If the so-called notice on which the inquiry is based is in law no

notice, then the error of considering it as notice is not only an error of law, but one going to

the jurisdiction of the probate court to maintain the inquiry and not a mere irregularity or

defect thereof.”

Such is unquestionably the law. Some of the additional authorities so holding are:

Chambers v. Thomas, 3 A. K. Marsh (Ky.) 537; Knott v. Jarboe, 1 Metc. (Ky.) 504; Gage v.

Graffam, 11 Mass. 181; Bush v. Meacham, 53 Mich. 574, 19 N. W. 192; Boykin v. Edwards,

21 Ala. 261; State v. District Court, 73 Mont. 84, 235 P. 751; Singletary v. Carter, 1 Bailey

(S. C.) 467, 21 Am. Dec. 480.

In the light of the reasoning of these authorities, which is but the crystallization of the

experience and wisdom of the ages, and which we must presume was the polestar of our

legislature when it adopted the provision above quoted providing who may serve a summons,

must we assume that it intended to confer upon a plaintiff in an action the authority to serve a

summons, though it did not expressly negative that idea? We think not. No sounder, no saner,

no wiser rule for the interpretation of statutes was ever announced than that stated by Lord

Campbell in Reg. v. Skeen, 5 Jur. N. S. (Engl.) 151, 21 L. J. M.C. 91, as follows: “Where by

the use of clear and unequivocal language, capable only of one construction, anything is

enacted by the legislature we must enforce it, although, in our own opinion, it may be absurd

or mischievous. But, if the language employed admit of two constructions, � �� #


and according to one of them the enactment would be absurd and mischievous, and according

to the other it would be reasonable and wholesome, we surely ought to put the latter

construction upon it as that which the legislature intended.”

“All laws should receive a sensible construction. General terms should be so limited in

their application as not to lead to injustice, oppression, or an absurd consequence. It will

always, therefore, be presumed that the legislature intended exceptions to its language which

would avoid results of this character.” Goldfield Con. M. Co. v. State, 35 Nev. 178, 127 P.

77; Escalle v. Mark, 43 Nev. 172, 183 P. 387, 5 A. L. R. 1512; 25 R. C. L. 1019.

If the views quoted from the various authorities mentioned are justified by experience, as

we think they are, it would certainly be unwise, unreasonable, and unwholesome for our

legislature to authorize the service of a summons by an interested party. Then, if we are to be

guided by the rule of construction we have heretofore approved to the effect that general

terms should be so limited in their application as not to lead to injustice, oppression, or

absurd results, we must certainly say that the legislature never intended by enacting that a

summons shall be served by “any citizen”—a general term—to confer that authority upon a

party to an action. There is nothing in the opinion in Nevada Con. M. Co. v. Lewis, 34 Nev.

500, 126 P. 105, in conflict with this view. The statement of facts does not show by whom

service of summons was made. It is evident that the court merely assumed that service of

summons in that case was as prescribed by law. It did not consider the question.

If the conclusion which we have reached to the effect that it was not the legislative intent

to confer upon a plaintiff authority to serve a summons on the defendant is sound, then by

what process of reasoning can it be said that the statute should be construed to authorize

plaintiff's attorney to make such service, �� (


since at common law he too was precluded from doing so? The very same reasoning which

precludes the one precludes the other.

So far as we are aware, there is only one case taking a different view (Whitewater First

Natl. Bank v. Estenson, 68 Minn. 28, 70 N. W. 775), and the court in that case did not

consider the question from the standpoint above suggested. In that case the court overlooked

the fact that only an indifferent person could make service at common law, and the further

fact that in many cases the attorney for the plaintiff has a contingent interest in a case. We

know that an attorney in a case is but little, if any, less free from bias, interest, and acrimony

of feeling that is the client. Not so with one who has no further interest than merely to make

service of summons. Then, too, the court seemed to have been influenced by the fact that it is

a common practice in Minnesota for an attorney in a case to serve a summons. Such is not the

fact in this state. The same reasons of public policy which required that an indifferent person

serve a summons at common law exists with us.

The supreme court of Colorado, in Nelson v. Chitenden, et al., 53 Colo. 30, 123 P. 656,

Ann. Cas. 1914a, 1198, considered the Minnesota case and refused to follow it, and held that

service of summons by plaintiff's attorney was void.

In Rutherford v. Moody, 59 Ark. 328, 27 S. W. 230, it was held that the plaintiff's attorney

could not serve the summons in a case.

We are of the opinion that the court never acquired jurisdiction to render the judgment

complained of, and it is therefore void.

5. It is contended by respondent that the complaint as amended does not allege a

meritorious defense to the cause of action set up in the action wherein the default decree was

entered, and hence no relief can be granted, citing Nevada Con. M. Co. v. Lewis, 34 Nev.

500, 126 P. 105, in support of the contention. The court in that ��

��


case held that a judgment regularly obtained by default would not be set aside in the absence

of a showing of a meritorious defense. We have shown that the decree herein attacked was

not regularly obtained. But whatever the law may be on this point, we think the complaint as

amended shows a meritorious defense in part at least, in that it avers that Rose Hankins did

not comply with the terms of her contract. It also avers payment of money to Hoppe, pursuant

to contract, which, if true, gave Witcher an equitable interest in one of the claims which

passed to the company under the deed from Witcher.

Having reached the conclusion expressed, we do not deem it necessary to decide the other

points raised, but call to the attention of counsel, as to the point suggested that the company is

charged with a knowledge of all the facts known to Witcher, the case of Keyworth v. Nevada

Packard Mines Co., 43 Nev. 428, 186 P. 1110.

It is ordered that judgment and decree appealed from be and the same are hereby reversed,

and the case is remanded for further proceedings not inconsistent herewith.

Sanders, J.: I concur.

Ducker, C. J., dissenting:

I dissent from the order of reversal.

It is a generally recognized canon of construction that, “if a statute is plain, certain and

unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare

reading suffices; then interpretation is needless.” The statute is of this character. It reads in

part: “Summons shall be served by the sheriff of the county where the defendant is found, or

by his deputy, or by any citizen of the United States over twenty-one years of age. * * *”

Section 5022.

There is nothing obscure in its phrasing. This broad authorization certainly includes an

attorney for plaintiff, and in no other part of the statute, or elsewhere � ��


in our law, is such attorney prohibited from serving a summons, either expressly or by

implication. There is then no room for interpretation.

The prevailing opinion refers to two cases holding that an attorney for a plaintiff cannot

serve a summons, but these cases are of no value as authorities under a statute like ours.

In Rutherford v. Moody, 59 Ark. 328, 27 S. W. 230, the question was determined with

reference to common-law principles which required such service to be made by a person not

interested in the litigation. Moreover, the statute in Arkansas, which at that time seems to

have been applicable, was dissimilar to ours, in that it in express terms prohibited a party

from serving a summons.

In Nelson v.Chittenden, 53 Colo. 30, 123 P. 656, Ann Cas. 1914a, 1198, also cited, it was

held that service of summons by the plaintiff attorney was void. But in Colorado the several

sections of the code construed are largely different from our statute. The court in the

Colorado case was of the opinion that the legitimate inference derivable from these sections

was that the legislature never intended that an attorney for a plaintiff should serve a

summons. The opinion was largely predicated upon the language of a section which

authorized the attorney to issue a summons, and also provided that when the summons is

served by any other person than the sheriff or his deputy, it shall be returned to the clerk or

attorney who issued the same, with the affidavit of such person of its service. The provision

permitting a return to be made to the attorney was deemed strongly to indicate an intent to

prohibit the attorney from serving the summons, for the court reasoned it could hardly have

been intended that one could serve a summons and make the return to himself.

The supreme court of Minnesota, in First National Bank of Whitewater v. Estenson, 68

Minn. 28, 70 N. W. 775, held that the statue involved in that case did not prohibit an attorney

for a plaintiff from serving a ��


summons. The statute construed was practically the same as ours, except that a party to an

action was prohibited from serving a summons. The court pointed out that the same reasons

of public policy which moved the legislature to deny such authority to a party to an action do

not apply to the same extent to an attorney, who is an officer of the court, and answerable to it

for fraud or misconduct in the premises. But, be that as it may, I think whatever may be urged

as to the impolicy of an attorney for a plaintiff serving a summons is a matter for legislative

consideration.


October 21, 1929.

Per Curiam:

Rehearing denied.

Ducker, J.: I dissent.

____________

��51 Nev. 437, 437 (1929) Allenbach v. Ridenour��

ALLENBACH, Et Al. v. RIDENOUR, Et Al.

No. 2822

July 5, 1929. 279 P. 32.

1. Deeds—Evidence Held to Support Finding that There Was No Delivery of Deed Found in

Grantor's Safe-Deposit Box at Bank After His Death. Evidence held to support finding that there was no delivery to son of deed found in grantor's

safe-deposit box in bank after his death, since court could legitimately conclude that deed from time it

was signed until death of grantor was never out of his possession or control.

2. Deeds—Delivery of Deed to Third Person Must Show that Grantor Has Voluntarily

Relinquished All Control Over Instrument. Delivery of deed to third person for use of grantee will not be effectual, unless made in such manner

as to show that grantor has voluntarily relinquished all control over instrument, and so long as he retains

right to recall deed from hands of depository there is no delivery.


3. Deeds—Delivery During Grantor's Lifetime Is Necessary to Pass Title Under Deed to Take

Effect After Grantor's Death. Where deed is executed by grantor with intention of having it take effect after his death, delivery of deed

in lifetime of grant is necessary to pass title.

4. Wills—Undelivered Deed Did Not Become Part of Will as Devise After Death, though

Will Referred to Deed as Having Been Executed. Where deed was never delivered, but will referred to it as having been executed, and it was actually in

existence at time will was made, such deed, though identified, did not become part of will as devise after

death, since will merely expressed opinion that testator had conveyed by deed to take effect on his death.

5. Wills—Daughters Held Entitled to Rescission of Agreement Not to Object to Disposition

of Property According to Father's Will, where Agreement Was Based on Mistaken Belief

that Father Bequeathed Ranches to Sons. Daughters of testator held entitled to rescission of agreement under which they agreed to present no

objection to distribution of property according to will, where such agreement was based on mistaken belief

that testator had bequeathed certain ranches to sons.

6. Contracts—Agreement Based on Mistake, whether Unilateral or Bilateral, May Be

Rescinded. Where mistaken belief is basis of agreement, equity has jurisdiction to furnish relief by rescission,

whether mistake is unilateral or bilateral.

7. Wills—Testator's Daughters Held Entitled to Cancellation for Mistake of Agreement Not

to Object to Will, Without Returning Consideration, which Was Moneys Advanced from

Estate. Daughters of testator held entitled to rescission of agreement under which they received advances from

estate of deceased parents and promised not to object to distribution of property according to will, without

returning moneys advanced, where equivalent amount could be withheld from other money due them from

estate, notwithstanding general rule that party cannot rescind and at same time retain possession of

consideration, since party is not obliged to return that which he will be entitled to retain, even though

cancellation be decreed.

8. Courts—District Court Had Jurisdiction of Suit to Set Aside Deed Referred to in Will as

Against Contention Probate Court Had Exclusive Jurisdiction. District court, acting as court of equity, held to have jurisdiction of suit by surviving daughters of testator

against surviving sons, individually and as administrators of parents' estates, to have deed from testator to

son canceled, such deed having been referred to in will, as against contention that probate court had

exclusive jurisdiction.


9. Equity—Equity, Taking Jurisdiction to Set Aside Deed, May Also Take Account of Rents

Received Thereunder, and Award Them to Rightful Owners. Although recovery of rents is usually matter of legal cognizance, when court of equity has taken

jurisdiction to set aside deed, it may also take account of rents received under such deed and award them to

rightful owner.


Contracts—13 C.J. sec. 656, p. 612, n. 16.

Courts—15 C.J. sec 581, p. 1133, n. 39.

Deeds—18 C.J. sec. 99, p. 204, n. 68; sec. 113, p. 208, n. 25; sec. 546, p. 440, n. 84.

Equity—21 C.J. sec. 121, p. 141, n. 49.

Wills—40 Cyc. p. 1094, n. 26; p. 2108, n. 45.


Suit by Hattie Ridenour Allenbach and another against C. D. Ridenour and another.

Judgment for plaintiffs, and defendants appeal. Affirmed. (Sanders, J., dissenting.)

Barry & Barry, for Appellants:

The main point in the case is whether or not there was a sufficient delivery of the deed

from D. W. Ridenour to C. D. Ridenour, herein refered to general as Carl. This question is

not so much a question of fact as a question of law, our contention being that under the

evidence a sufficient delivery was shown, that is to say, sufficient to satisfy the law. It must

be borne in mind all the time that at the commencement of this action Carl Ridenour was in

the possession of the property and his deed had been recorded. A deed that is recorded and is

in the possession of the grantee is presumed to have been delivered, and the burden of proof

is upon the party assailing the deed. Little v. Little, 130 P. 1022; Stewart v. Silva, 192 Cal.

409. We start off, then, with a burden of proof on the plaintiffs to show a nondelivery of the

deed.

We are assuming that there is no occasion for citing authority to the effect that a person in

his lifetime may deliver a deed in escrow to be delivered to the ��


grantee on the death of the grantor, and that such a deed will convey the title. This much was

assumed by counsel for both sides during the trial. The only question of difference is the

plaintiff's claim that the deed must be delivered in such a manner that the grantor cannot

thereafter obtain the possession of it, that is to say, that it must be so physically situated that it

would be impossible for the grantor to regain possession of it. On the other hand, defendants

maintain that the delivery of the deed is a pure question of intent. In other words, whenever

the grantor has manifested his intention to deliver the deed, that is a sufficient delivery, and

that the grantor may thereafter obtain the possession of the deed and, if he intended in the first

place that the deed should be delivered, his possession thereafter does not prevent the deed

from taking effect. Kelsa v. Graves, 68 P. 608; Brown v. Westerfield, 53 Am. St. Rep. 536;

Hastings v. Vaughn, 5 Cal. 319; Stone v. Daley, 181 Cal. 571; Moore v. Trott, 162 Cal. 274.

The rule is that when a deed is placed in the hands of a third party the grantor must intend

it to be beyond his control, and when the courts say it must be beyond the control of the

grantor they mean it must be beyond his right to control it, not beyond his control in the sense

of having the mere physical custody of it.

There is one thing that is established in this case, and that is that Dave Ridenour intended

this property to pass to Carl, and that he thought it had done so, and that is sufficient delivery,

even under the authorities cited by plaintiffs.

Our contention is that even though conceding that the deed was never delivered, the will

refers to the deed as having been executed, and if the deed were actually in existence at the

time the will was made and can be identified by parol proof, it becomes a part of the will and

becomes effective as a devise after the death of D. W. Ridenour. Or, again, if the deed from

David W. Ridenour to C. D. Ridenour had been witnessed by two ��


witnesses, we could probate the deed as a will. Noble v. Tipton, 3 L. R. A. (N. S.) 645;

Alexander on Wills, vol. 1, p. 77, sec. 66; Estate of Willey, 128 Cal. 1; Estate of Plumel, 151

Cal. 77; American and English Encyclopedia of Law, vol. 30, p. 578. See, also, Estate of

Vandehurst, 171 Cal. 553; Estate of Skerrett, 67 Cal. 585; Estate of Doane, 190 Cal. 412;

Estate of Shillaber, 74 Cal. 144; Estate of Soher, 78 Cal. 477.

There is also such a thing in law as a devise by implication. See Estate of Franck, 190 Cal.

31; Estate of Blake, 157 Cal. 456.

If plaintiffs were mistaken or imposed on by the agreement whereby they were to have two

thousand dollars each extra out of the estate and the boys were to have the ranches, their

remedy was to rescind the agreement. In order to effect a rescission, the parties rescinding

must restore everything received by them under the contract. No such restoration or offer to

restore was made by the plaintiffs. The only thing that can be said is that they expressed a

willingness to allow the two thousand dollars each received by them to be taken out of their

share of any property coming to them from the estate. In the case of Hite v. Mercantile Trust

Co., 156 Cal. 765, an offer of this kind was held insufficient. In order to effect a rescission

the parties must rescind promptly and restore everything received under the agreement. Kelly

v. Owens, 120 Cal. 507; Westerfield v. New York etc. Co., 129 Cal. 84; Matteson v. Wagner,

147 Cal. 744; Hill v. North Pacific Ry., 113 Fed. 919.

Since writing the above, our attention has been called to a decision of the supreme court of

California, Bauer v. Bauer, 201 Cal. 267, which leads us to believe that the complaint in this

case does not state a cause of action, and that the Second judicial district court of the county

of Washoe, State of Nevada, sitting as such, did not have any jurisdiction to try the cause or

render a judgment, and that the judgment in this case is void ab initio. The decision referred

to was based upon the provisions of sections 1581 and 1582 of the Civil Code ��$�� 71 �� 71 ��,��+��/��


of California, which correspond to sections 6021 and 6022 of the Rev. Laws of Nevada. This

Bauer case is exactly on all fours with the case at bar, and the question to be determined is

whether or not the court had jurisdiction to try the case or whether such jurisdiction was

exclusively in the probate court. The demurrer to the complaint in the Bauer case was

sustained without leave to amend, for the reason that no court other than the probate court had

jurisdiction to adjudicate the title as between the administrator and the estate. In other words,

the jurisdiction of the probate court was exclusive.

Whatever may be said of the judgment as to the real estate, it is clear that the court had no

jurisdiction to enter a judgment against the defendants in this action for two thousand dollars,

the rental value of the premises. That is purely a matter of accounting in the probate court.

Robertson v. Burrell, 110 Cal. 568; Holland v. McCarthy, 177 Cal. 510. In the above cases it

was clearly held that the heirs could not bring suit for personal property.

E. F. Lunsford, Green & Lunsford and Anthony M. Turano, for Respondents:

The trial court, after hearing all of the evidence and observing the demeanor of the several

witnesses, reached the conclusion that there was not a sufficient delivery of the deed to pass

the title to the defendant C. D. Ridenour, named as grantee therein. Therefore the question

before the appellate court is this: Is there sufficient evidence in the record to justify the trial

court in finding that there was not a sufficient delivery of the deed? We do not deem it

necessary to us to cite any decisions of our own supreme court to the effect that if there is any

evidence upon which the trial court could have reached the foregoing conclusion, that

conclusion and the findings and judgment based thereon will not be disturbed by this court.

This court, as did the trial court, in passing upon the question as to whether there had been

a delivery of ��


the deed, must first start with a strong presumption of nondelivery, which is almost

irresistible, because the deed was first found and discovered in the possession, or rather,

among the effects of the grantor himself after death. Such a presumption of nondelivery under

these circumstances is referred to by the supreme court of California in the case of Stone v.

Daley, 181 Cal. 571. Of course, in that case there was other evidence which the court held

conclusively showed that a delivery had first been made to a third party and that the grantor,

at that time, intended that there was a complete delivery, and that the instrument was to

become effective in praesenti, and the fact that it was thereafter returned to the grantor for the

special purpose of safekeeping, and in order that the grantor's husband should not know of the

existence of the deed until after her death, did not detract from the delivery that was first

made to the third party.

In support of the trial court's finding that the said deed, after its making and signing by the

grantor, remained in the exclusive and continuous possession and control of said grantor, we

direct the court's attention to the fact that no one other than David or D. W. Ridenour, the

grantor, ever had access to the safe-deposit box in which the deed was found after the

grantor's death.

It has always been universally held that intention must be joined with the act of delivery

before title passes. Counsel confuses intention to deed with intention to deliver, in the

authorities he has cited. The trial court very aptly illustrated our point as follows: “However

clear testator Ridenour's intentions may have been, that intention should have found

expression in the manner and form provided by law. * * * He retained personal control of the

deed, and the requirement of law that a deed, to be operative, must be delivered to the

grantee, or to someone for delivery to him, being also shown not to have been complied with,

the intention of the testator vanishes into the realm of things improperly done, and, in law,

useless and void.”


In the case of Noble v. Tipton, an Illinois case, cited in 3 L. R. A. (N.S.) 645, the facts are

very similar to the instant case; it was held that there was no delivery of the deed during

grantor's lifetime, and inasmuch as the grantor retained control over it and it was not to be

delivered until after his death, there was no delivery.

The case of Lang v. Cullinan, cited in the Noble case, supra, is directly in point with the

contention here made by appellants' counsel on the effect of the testator's statement in the

Ridenour will that he had deeded the ranch to C. D. Ridenour; and the court in the Lang case

held squarely that such reference in the will had no bearing on the question of delivery.

We are unable to find a single authority which supports counsel's argument when that

argument is analyzed and the authorities themselves are properly applied; and we therefore

repeat that according to the universal rule mere intention to deed or to convey does not

constitute a delivery.

The grantor, by the clause in his will, if there were no other evidence in this record, has

clearly negatived any inference of an intention to deliver presently, by expressly stating that

the will had been or would be placed in escrow in the Scheeline Bank “to be delivered upon

my death.” This could only show that it was intended as a testamentary disposition of the

property, and, therefore, the deed would have to be dealt with as such, and in order to pass

title would have to conform to our statute on wills. This, of course, it does not do, and there

being no delivery, the instrument is void and ineffective for any purpose.

We agree that in this case the burden rests with the plaintiff to prove nondelivery, but, as is

said in the case of Hawes v. Hawes, 53 N. E. 79, this presumption is inconclusive and may be

overcome by other evidence. The record being clear that the deed was first found among the

effects and in the safe-deposit box of the grantor himself, a presumption is raised, as stated by

the authority of Stone v. Daley, supra, that there was no delivery, and for that reason ��&��


we submit that we have met the requirement of the law in assuming the burden of proof of

nondelivery, and that that presumption of nondelivery must be overcome by the other side,

especially in view of all of the other facts and circumstances in the record showing

conclusively that the grantor exercised full dominion and ownership over the property. See,

also, Wiggins v. Lusk, 12 Ill. 132.

It seems to us that it would be idle to enter upon a discussion of the numerous cases cited

by counsel for the appellants, because, in our opinion, the facts in the instant case are entirely

dissimilar to those in the cases cited by counsel; but rather will it be more profitable and

convenient to this court just to cite authorities which conclusively establish the law and the

almost universal rule of what is necessary in order to constitute a valid delivery. Perhaps one

of the earliest cases in the State of California upon the question is that of Bury v. Young, 33

P. 338. In that case the supreme court of California pointed out what seems to be the

distinction running through practically all of the cases, and has been followed through all of

the later California cases, and may be said to be the pioneer case upon the subject in that

state. In the case of Moore v. Trott, much cited by counsel, and in the first opinion in that

case from the supreme court of California, that court laid down what we believe, from a

reading of all of the authorities, to be the true test as to whether or not there is a delivery, at

the top of page 578 of 104 P., and again at page 579 of the opinion.

In a few of the cases cited by counsel for the appellants, the deed was eventually found

among the effects of the grantor; but the court will bear in mind that there was positive and

uncontradicted evidence that the deed had, at some time during the life of the grantor, been

unconditionally delivered to a third party.

In the case of Williams v. Kidd, 151 P. 1, decided on July 30, 1915, the supreme court of

California held that there had been no delivery of the deed, because the grantor, when he

delivered the deed to the third ��


party, did not surrender control over it and thereafter continued to exercise his ownership

over the property by offering to sell the property to other parties. This is just what D. W.

Ridenour did in this case; he continued to exercise ownership over the property by leasing it,

collecting the rents, paying the taxes and offering to sell it to the lessee. The facts in the case

of Williams v. Kidd made it a much stronger case than this one in support of a delivery, as it

appeared there that the deed had been actually delivered during the lifetime of the grantor.

But the court held that it was under such circumstances that the grantor still retained control

over it.

For other cases in California, see Long v. Ryan,, 137 P. 29; Rice v. Carey, 151 P. 135;

Rees v. Rees, 216 P. 1006.

Even though we might assume for the sake of argument that at some time or other during

the lifetime of D. W. Ridenour his wife had possession of the deed, still, in the absence of any

testimony that he had made an unconditional surrender of the deed to her with no right to

recall or revoke it, there would and could be no valid delivery. We might say that the

authorities are unanimous in support of that proposition, and we cite just a few recent

decisions from different states which hold to that effect, as follows: Seely v. Curts, 180 Ala.

445, 61 So. 807; Stevens v. Stevens (Ill.), 99 N. E. 917; Linn v. Linn (Ill.), 104 N. E. 229;

Latshaw v. Latshaw (Ill.), 107 N. E. 111; Gomel v. McDaniels (Ill.), 109 N. E. 996; Deitz v.

Deitz (Ill.), 129 N. E. 508; Johnson v. Johnson (Ill.), 133 N. E. 667; McColley v. Binkley

(Ind.), 121 N. E. 847; Kirby v. Hulette (Ky.), 192 S. W. 63; Smith v. Thayer (Mass.), 125 N.

E. 171; Weber v. Schafer (Mich.), 210 N. W. 248; Vanhuff v. Wagner (Mo.), 287 S. W.

1038; Abbe v. Donahue (N. J.), 90 N. J. Equity 597, 107 Atl. 431; Allen v. Leet (N. Y.), 217

N. Y. Sup. 274; Gross v. List, 33 Ohio C. C. 579; Snodgrass v. Snodgrass (Okla.), 231 P.

237; Thrush v. Thrush (Ore.), 125 P. 267, and 126 P. 994; Eckert v. Steward (Tex.), 207 S.

W. 317; Rhines v. Young (Wash.), 166 P. 642; Zimmerman v.�R�� A3��B�


Zimmerman (Wis.), 161 N. W. 396; Padden v. Padden (Wis.), 177 N. W. 22; Darling v.

Williams (Wis.), 207 N. W. 255; Fisher v. Oliver (Cal.), 164 P. 800.

An exhaustive search of the Nevada decisions fails to disclose that our supreme court has

ever had occasion to decide upon the main question of what constitutes a delivery of a deed

under circumstances present in this record. The nearest approach to an application of the rules

on this subject is found in the famous case of In Re Miller's Estate, 43 Nev. 12.

As to counsel's contention that even though conceiving that the Ridenour deed was never

delivered, the will refers to the deed as having been executed, and if the deed was actually in

existence at the time the will was made and can be identified by parol proof, it becomes a part

of the will, and becomes effective as a divise after the death of Ridenour, we cite: Jarman on

Wills (50th ed.), p. 540 of vol. 1; Noble v. Tipton, 3 L. R. A. (N. S.) 645; Page on Wills, sec.

468; Underhill on Wills, sec. 475; Koger v. Koger, 92 S. W. 1167; Smith v. Smith, 31 L. R.

S. (N. S.) 922; Zimmerman v. Hafer (Md.), 32 Atl. 316.

There is no incorporation of this deed in the Ridenour will by reference. The language of

the will merely refers to what the testator believed had been done, to wit, a conveyance by

him to his son of the property in question through the medium of the deed he referred to;

hence, none of the authorities cited by counsel upon this point have any application

whatsoever to the language in the Ridenour will. The very fact that the testator said he had

“conveyed” negatives all possible inference that he intended to bequeath or devise. The

subject is dealt with in 40 Cyc., pages 1390 and 1391, under the heading “Devise or Bequest

by Implication.”

Counsel for appellants suggest that the agreement of the Ridenour sisters to accept $2,000

each in lieu of their interests in the ranches is sufficient to estop the plaintiffs from a recovery

in this case, or perhaps it would be more accurate for us to quote counsel as saying in his brief

that the plaintiffs could not rescind ��


the agreement because they had failed to restore everything received by them under the

contract. It is hardly necessary for us to cite any authorities to the effect that where the parties

are mistaken as to the subject matter of a contract a court of equity will decree a rescission of

the contract. We shall content ourselves by directing the court's attention to the text in 13 C.

J., p. 376, supported by innumerable authorities. The very authorities cited by counsel for the

appellants clearly demonstrate the unsoundness of his proposition when applied to the instant

case.

The only authority which the appellants produced in support of their contention that the

district court was without jurisdiction to hear this matter is the California case of Bauer v.

Bauer, 201 Cal. 267, 256 P. 820, which case is easily distinguished from the instant case. In

the instant case, the deed having been taken subsequent to the death of the grantor or testator,

it was not such an action, in its very nature, which could have been maintained by the testator

during his lifetime. Section 6022 of our statute, relied upon by counsel, does not make it

imperative that the action shall be commenced by the representative of the testator or

intestate. It merely says that such an action “may” be commenced, but where, as in this case,

title to the property being of record in the testator at the time of his death, all of the rights of

the heirs in and to the property immediately vested upon the testator's death. Wren v. Dixon,

40 Nev. 172 and 208; Winters v. Winters, 32 Nev. 324; Gossage v. Crown Point M. Co., 14

Nev. 156.

It is idle indeed to argue that the above section can have any bearing upon this case when, as

is shown by the pleadings, the defendant claims adversely to the estate in his individual

capacity, and refuses to recognize the rights of the plaintiffs as heirs to the property.

We fail to find wherein the sections in question, 6021 and 6022 of our Rev. Laws, can in

any way assist the appellants in their contentions here, because obviously the sections do not

require that such actions, even ��


though brought by the executor or administrator, be commenced and maintained in the

probate proceedings. We do not believe that we need to go beyond one single decision in this

state in order to answer the contention of the appellants on this question. That is the case of In

Re Singleton, 26 Nev. 107, 64 P. 513. As we read this case it is on all fours with the facts in

the instant case.

Perhaps one of the best definitions of the jurisdiction of our probate courts is found in the

opinion written by Mr. Chief Justice Beatty in the case of Lucich v. Medin, 3 Nev. 93, on p.

99. The language of Mr. Chief Justice Beatty was cited and followed with approval in the

Washington case of In Re Alfstad's Estate, 67 P. 596. For further authorities upon the same

question we cite the following: Weeks v. de Young (Texas), 290 S. W. 852; Johnson v.

Hampton, 297 S. W. 891; In Re Klumpke's Estate (Cal.), 139 P. 1062; Fancher v. Kenner

(Ark.), 160 S. W. 166.

In support of his contention that whatever may be said of the judgment as to the real estate,

the court had no jurisdiction to enter judgment against appellants for the rental value of the

property, counsel cites two California cases. In our opinion neither of these cases has any

application whatever to the facts in this case. In the first case cited, Robertson v. Burrell, 110

Cal. 568, 42 P. 1086, the language of the court indicates that the same was based upon the

statute relating to partnerships. The next case cited by counsel is that of Holland v. McCarthy,

177 Cal. 510. We have searched for this case in the Pacific Reporter and have been unable to

find it, unless it be the case of Holland v. Kelly, 171 P. 421, which it is very possible is the

one that counsel refers to. The court in that case, after discussing the various sections of the

California code, uses language, on page 422 of 171 P., which throws the instant case squarely

within the exception recognized by the California Code.

It would seem absurd for the appellants to contend by the citation of the California

authorities that the ��


right of action for these rents lies exclusively in the administrator, in view of the

circumstances of this case. See Gossage v. Crown Point M. Co., supra; 11 Cal. Jur., sec. 42.

It is a waste of time for either side in this case to cite authorities upon the question of

jurisdiction of the probate court to try the question involved in this proceeding unless we bear

in mind the broad distinction between the cases, as defined and pointed out by Mr. Justice

Belknap in the Singleton case, supra. Upon this distinction the Singleton case is cited by the

supreme court of Utah in the case of Snyder v. Murdock, 73 P. 22.

OPINION


Respondents, surviving daughters of D. W. Ridenour and Mary Jane Ridenour, brought

this action against the surviving sons of the latter, individually and as administrators of their

parents' estates, to have a deed canceled and to compel them as administrators to list and

inventory the lands described in said deed as the property of said estates, and for further

relief. The principal question in the case is whether or not a delivery of the deed was made by

the father, D. W. Ridenour, to his son, C. D. Ridenour. The trial court found that there was no

delivery of the deed. From the judgment in favor of the daughters, and the order denying a

new trial, defendants have appealed.

The following is a summary of the facts about which there is no dispute: D. W. Ridenour

died in the city of Reno, in this state on the 2d day of September, 1922, and left a will

devising all his property to his wife, Mary Jane Ridenour, for life, with remainder to his four

children, Hattie Ridenour Allenbach, Echo Ridenour Gerow, S. D. Ridenour, and C. D.

Ridenour, share and share alike. On the 23d day of August 1919, he had made and

acknowledged before a notary public a deed conveying the property involved in this suit to�� $��.��,��


his son, C. D. Ridenour. A few days after the death of D. W. Ridenour, all of said children

and their mother went to the Scheeline Bank in Reno, and there found the deed in a

safe-deposit box of said bank standing in the name of D. W. Ridenour. The deed was taken

out and delivered to C. D. Ridenour, and he placed it on record, went into possession of the

property, and has remained in such possession up to the present time. The will of D. W.

Ridenour was admitted to probate in the month of September, 1922. Mary Jane Ridenour died

on the 11th day of November, 1925. In the month of January, 1926, D. C. Ridenour and S. D.

Ridenour were appointed administrators of the estates of D. W. Ridenour and Mary Jane

Ridenour, respectively.

1. The evidence offered by respondents to establish nondelivery is substantially as follows:

As has been observed, the deed, signed and acknowledged by the father, was found in his

safe-deposit box in the bank a few days after his death. The grantee did not know until that

time that such a deed had been executed. Only one key to the box had been issued by the

bank, and that to the father. According to the custom of the bank, he was the only person

entitled to have access to the box. The cashier of the bank testified very positively that the

mother never had access to the box. After the execution of the conveyance the property was

always assessed to the father, and he continued to pay the taxes up to the time of his death.

Subsequent to the execution of the deed he granted a lease on the property and an option to

purchase the same. On the 23d day of August, 1919, D. W. Ridenour executed a will, in

which he made this declaration: “I have also by deed conveyed to my son, C. D. Ridenour, of

Reno, Nevada, the certain ranch in Washoe County, formerly known as the Lyell ranch,

together with all live stock, farming implements and other personal property belonging to me,

kept and used in connection with the said ranch, which said deed has been or will be placed in

escrow with said Scheeline Banking & Trust Company to be delivered upon my death.”


2. We think the evidence is sufficient to support the finding of nondelivery. Upon the

evidence the court could legitimately conclude that the deed, from the time it was signed until

the subsequent death of the father, was never out of his possession or control. It is established

by the great weight of authority that the delivery of a deed to a third person for the use of the

grantee will not be effectual, unless it is made in such a manner as to show that the grantor

has voluntarily relinquished all control over the instrument. So long as the grantor retains any

right to recall the deed from the hands of the depository, there is no delivery. It is unnecessary

to cite authority in support of this rule.

The evidence offered by respondents supports their view that a delivery of the deed in the

lifetime of the grantor was not intended. The declaration of the testator in his will that the

“deed has been or will be placed in escrow with the said Scheeline Banking & Trust

Company to be delivered upon my death” supports that view. So do his acts subsequent to the

execution of the deed, indicating ownership of the property. The payment of the taxes on it to

the time of his death, the execution of a lease upon the property, and giving an option to

purchase, all tend to show that the father did not understand that he had parted with the title.

At the most the execution of the deed and the testator's declaration in his will concerning it

indicate that it was his intention that upon his death his son should have the property.

3. A delivery of the deed in the lifetime of the grantor, however, was necessary to pass the

title. “And it is unquestionably the general rule,” as stated by the court in Fisher v. Oliver,

174 Cal. 781, 164 P. 800, “that, where a deed remains in the possession of a grantor, to be

delivered to take effect after his death, the deed is void for want of delivery during his

lifetime.” This general rule is thus stated in 18 C.J. 208: “A deed executed by the grantor with

the intention of having it take effect after his death, but which he �� #


retains in his possession or control, will be ineffectual to pass title for want of delivery.”

Considering the case from the standpoint of appellants' evidence, we are of the opinion

that the testimony of the two witnesses produced by the appellants, which is to the effect that

some time before his death he told them that he intended to give the ranch to his son, C. D.

Ridenour, and the acts and declarations of the father, testified to by the appellants and their

wives, signifying his desire to give the ranch to his son, have little or no bearing upon the

question of delivery. Noble v. Tipton, 219 Ill. 182, 76 N. E. 151, 3 L. R. A. (N. S.) 645. The

statements, if true, are entirely consistent with the intention expressed in the will that the son

was to have the property upon the testator's death.

But, if it were clearly established that he had intended a delivery of the deed in his

lifetime, this alone would not be sufficient to pass title. For, as the court said in Fisher v.

Oliver, supra: “For, saving under exceptional circumstances which do not here arise,

ownership of real estate, so far as that ownership is to be parted with by deed, necessitates a

delivery of that deed to terminate the grantor's title.”

Concerning the requisite of delivery, it is pertinently stated in 8 R. C. L. p. 974: “Certainly

no title passes in its absence, even though the intent to deliver is clear and the failure to

deliver due to accident.”

Further considering the case from the standpoint of appellants' evidence, we find that S.D.

Ridenour testified that his father told him he had deeded the two ranches to him and his

brother, C. D. Ridenour, and that the mother had the deeds; that after his father's death his

mother told him that the father told her he had deeded the two ranches to him and his brother,

and that she had the deeds and had had them for a long time; that after his father's funeral his

mother told the witness that she had the key to the safety-deposit box, and had had it for a

long time. Mrs. S. D. Ridenour testified as to the mother having three keys on a ring and�� -GD��


telling the witness that one was the key to the bank box, and also that the mother on one

occasion when the father was out of town received from him a check and note and said: “I

must go down and put these things away. I don't like to keep anything like this in the house,

because some one got in and got Mr. Ridenour's suit case open.” Mrs. C. D. Ridenour

testified that she heard the mother say she had the key to the safety-deposit box.

It is argued that the declarations of the father and mother, that he had deeded the ranches to

the boys and that she had the deeds, show a delivery of the deed in question by the grantor in

his lifetime to the mother. The fact that the deed was found in the safety-deposit box shortly

after the fathers death is sought to be accounted for upon the theory that the mother either

gave the deed back to the grantor, and he placed it in the box, or, having the key to the box,

she placed the deed there herself. It is argued that the declaration of the father, testified to by

S. D. Ridenour, to the effect that he had deeded the property to the sons, and that the mother

had the deeds, stands in the record undenied. This is true as to any direct evidence to that

effect, but there is other evidence sufficient to make a substantial conflict in the evidence on

the point of such a delivery in the lifetime of the grantor. This conflict, under well-settled

principles, precludes this court from disturbing the finding of the trial court to the effect that

the deed from the date of its signing until the death of the father remained continuously and

exclusively in his possession and under his dominion and control.

The circumstances in evidence, which, in our opinion, make such a conflict, are

substantially as follows: Both respondents testified that the mother told them, shortly after the

opening of the box, that she never knew of the deeds. This is certainly opposed to the

testimony of S. D. Ridenour, in which he stated that both parents told him the father had

deeded the ranches to him and C. D. Ridenour, and that the mother had the deeds, and the

testimony of the respondents as to this declaration ��

��


of the mother is certainly opposed to the theory that the deeds may have been delivered to the

mother and by her returned to the father. The declaration of the mother that she never knew of

the deed also conflicts with the theory that she had the key to the box and may have placed

the deed in it herself after it was delivered to her. The testimony of the bank cashier that she

had no access to the safety-deposit box is in flat opposition to that theory. The declaration of

the will of the testator that “said deed has been or will be placed in escrow with said

Scheeline Banking & Trust Company, to be delivered upon my death,” was relevant to be

considered, as bearing against the claim that a delivery had been made to the mother. So, on

the whole testimony, we cannot say, in opposition to the finding of the trial court, that the

testator actually parted with the deed as claimed, with the intent of placing it beyond his

control.

It is insisted that the case of Moore v. Trott, 162 Cal. 274, 122 P. 462, is an authority of

weight in appellants' favor. That case is readily distinguished from the instant case on one

feature at least. In the Moore case there was no question of the deposit of the deed with a

third person for the use of the grantee in case the grantor died. The grantor recovered from his

illness, and on the first appeal (Moore v. Trott, 156 Cal. 353, 104 P. 578, 134 Am St. Rep.

131) it was held that the evidence was insufficient to show that the grantor had effectually

parted with control over the instrument. The grantor, after his recovery, did not take the deed

from the depository, and it remained with the latter until the grantor's death. On the second

appeal (162 Cal. 274, 122 P. 462) it was held that delivery had been rendered effective by

subsequent acts and declarations of the grantor showing his intent to part with control of the

deed, although the depository was not informed of the grantor's changed intention. The court

was of the opinion that the added evidence was sufficient to support the finding of delivery,

saying that it was “fairly inferable that after his [Moore's] return ��+��% �� <��=� �� #


from the Los Angeles hospital, finding himself in failing health, he intended that the deeds

which he had left with Tietzen should absolutely be delivered, without power of revocation

upon his part, and that he expressed this intent to the grantee under such circumstances as to

perfect the delivery.” But in the case presented here there is substantial evidence to sustain

the finding of the trial court to the effect that the deed was never placed in the possession of a

third party.

The case of Stone v. Daily, 181 Cal. 571, 185 P. 665, relied on by the appellants, is also

easily distinguished. In that case, as in the case before us, the deed was in the possession of

the grantor when she died, but it appeared in the former case, by evidence amounting to

positive proof, that the grantor had formerly made an absolute delivery to a third person, and

had merely retaken the deed into her possession in accordance with her previous intention to

insure its not being recorded, because she did not wish her husband to know anything about

it.

The question of whether or not there has been a delivery must be determined upon the

facts of each particular case, and, at least in the respect pointed out in the foregoing cases, the

facts are dissimilar to the situation presented here. When title to real estate is claimed by the

grantee by a deed found to have been in the possession of the grantor at the time of his death,

and of which the grantee had no previous knowledge, as in this case, evidence to overcome

the presumption of nondelivery flowing from the facts must be strong and convincing. The

situation is stated in Wiggins v. Lusk, 12 Ill. 132, in which the court said:

“The evidence introduced on the part of the plaintiff showed, that the deed, after being

acknowledged, was retained by the grantor, and was found among his papers, after his

decease. The grantee was not present when the deed was executed, and it is very evident that

he was not aware of its existence, until after the death of the grantor. It is an irresistible

inference from this proof, that the grantor never parted with the � ��"�� E�� F��


control over the deed; in other words, it effectually rebuts any presumption arising from the

other facts of the case, that the deed was ever delivered to the grantor [grantee], or to any one

for his use. It was, no doubt, at one time, the intention of the grantor to convey the land to

McDowell, but he died without carrying the intention into effect. His design was but in part

executed; it was never consummated, so as to give the deed any legal operation.”

Stress is placed on the following declaration in the will: “I have also by deed conveyed to

my son, C. D. Ridenour, of Reno, Nevada, that certain ranch in Washoe County, formerly

known as the Lyell ranch,” etc. We see no force in the claim that this declaration tends to

prove a delivery of the deed. It is merely a conclusion of the grantor. What he meant is

explained in the statement which immediately follows, to wit: “Which said deed has been or

will be placed in escrow in the Scheeline Banking & Trust Company to be delivered upon my

death.”

The same contention was made in Noble v. Tipton, 219 Ill. 182, 76 N. E. 151, 3 L. R. A.

(N. S.) 645. The recital in the will in that case was that the testator had deeded the home farm

to his son. The court was of the opinion that such a recital did not aid in establishing that

there had been a valid delivery of the deed.

Another point made by the appellants is that, because the deed was recorded and was in

the possession of the grantee, it is presumed to have been delivered, and the burden of proof

was on the respondents to show nondelivery. In reply to this contention it is necessary only to

say that there was substantial evidence in the record to justify the trial court in concluding

that any presumption flowing from these facts was rebutted.

4. It is contended that, even though the deed was never delivered, the will refers to the

deed as having been executed, and the deed being actually in existence at the time the will

was made, and being identified, it becomes a part of the will as a devise after death. The

contention is untenable. It is based on the declaration � �� +�� $��.��,��


in the will heretofore mentioned to the effect that the testator had by deed conveyed the Lyell

ranch, together with certain personal property, to his son, C. D. Ridenour. It is obvious that

the reference in the will to the deed does not adopt the deed as a part of the will, nor does it

otherwise appear therefrom that the testator intended to give the property described in the

deed by will. It expresses merely the opinion of the testator that he had conveyed by deed to

take effect on his death. It cannot, therefore, be taken as a devise by implication.

The case of Noble v. Tipton, supra, is directly in point. In the latter case the recital in the

will was that the testator had deeded the home farm to his son Thomas. It was held that this

recital could not give the effect of a devise. The rule on the subject, recognized and applied,

was declared to be as follows: “* * * Where a recital in a will is to the effect that the testator

has devised something in another part of the will when in fact he has not done so, the

erroneous recital may operate as a devise by implication of the same property, for the reason

that it shows an intention to devise the property by the will; but where the recital is to the

effect that the testator has by some other instrument given to a certain person named in the

recital, property, when in fact he has not done so, such a recital does not disclose an intention

to give by the will, and in such a case resort must be had to the other instrument and not to

the will.”

The rule as stated above is uniformly accepted. In Page on Wills, sec. 468, it is stated as

follows: “But where the testator in his will, recites erroneously that he has conveyed certain

of his real estate by deed to a certain named person, it does not show an intention to dispose

of the property by will, but merely testator's opinion as to the legal effect of some pre-existing

instrument. If, therefore, such pre-existing deed is for any reason invalid, the reference to it in

the will cannot be held to amount to a devise by implication of the property described in such

will to the grantee therein.”


To the same effect are Koger, et al. v. Koger, et al. (Ky.) 92 S. W. 1167; Zimmerman v.

Hafer, 81 Md. 347, 32 A. 316; Smith v. Smith, 113 Md. 495, 77 A. 975, 31 L. R. A. (N. S.)

922, 140 Am. St. Rep. 435; Underhill on the Law of Wills, sec. 475; 40 Cyc. pp. 1390, 1391.

The instant case falls precisely with the rule so uniformly recognized.

5-7. Another question presented by appellants arises from the agreement in writing made

by both the parties to this action and their mother, which is pleaded by the answer. It reads as

follows:

“Whereas, the said Mary J. Ridenour is the widow of David W. Ridenour, deceased, and

the remainder of the parties hereto are the children of the said David W. Ridenour, deceased,

and said Mary J. Ridenour; and

Whereas, the said David W. Ridenour, deceased, by last will and testament bequeathed

what is known as the ‘Susanville Ranch' and personal property to S. D. Ridenour, and

bequeathed what is known as the ‘Lisle Ranch' in Washoe County, Nevada to C. D. Ridenour,

and bequeathed all of the rest, residue, and remainder of the property to the said Mary J.

Ridenour, for life, with the remainder to the said C. D. Ridenour, S. D. Ridenour, Hattie

Allenbach and Echo Gerow.

“Now, therefore, it is hereby agreed by and between all of the parties hereto that the said

Mary J. Ridenour, if she sees fit, may advance to the said Hattie Allenbach the sum of $2,000

out of the funds of said estate, and to the said Echo Gerow the sum of $2,000 out of the funds

of said estate; and

“It is further agreed that, if none of the parties hereto shall make a contest, or objection, to

the probating of said will and the distribution of the property as therein stated, then and in

such case the sums hereby advanced to the said Hattie Allenbach and to the said Echo Gerow

shall not be deducted from portions hereinafter coming to the last-named parties under the

terms of said will, but shall be regarded as a clear gift to each of them, and the said Hattie

Allenbach and the said Echo Gerow hereby both agree that in consideration ��


of the above they will make no protest and present no objection to the probating of said will

or the distribution of said property in accordance therewith.

“In witness whereof, the parties hereinabove named have hereunto set their hands the day

and year hereinabove first written.

“Mrs. D. W. Ridenour.

“S. D. Ridenour.

“C. D. Ridenour.

“Mrs. Harriet Allenbach.

“Mrs. J. W. Gerow.”

It is alleged in connection with the agreement that at the time it was made the parties to it

had met shortly after the death of the father for the purpose of discussing the provisions of his

will, and it was thereupon fully understood between the parties to this action and their mother

that the father intended by the terms of his will that C. D. Ridenour should have the property

in question, that upon the execution of the agreement the mother paid to the daughters the

sum of $2,000 each, and that said daughters have ever since retained the same and have never

called for a rescission of the agreement or offered to return the money. It is therefore claimed

by appellants that respondents are estopped from a recovery in the case.

It is obvious that the agreement, which is admitted in the reply, is based on the assumption

that the father had bequeathed the ranches to appellants. That this was a mistaken belief was

pleaded in the reply, and the court found, in accordance with the allegations thereof, that all

of the parties to the agreement mistakenly believed that the father had bequeathed the ranches

to his sons; that this was the sole consideration of the agreement; that if it had not been for

their mistaken belief in this regard the respondents would not have signed the agreement; that

subsequent to the signing of said agreement the mother paid to each of the plaintiffs

(respondents) the sum of $2,000 out of the funds of her husband's estate; that the plaintiffs

have offered to allow judgment and decree to go against them � �� C �111�� '��


in this action, adjudging and decreeing that the said sum of $2,000 advanced to each of them

be deducted from the distributive shares or portions of the mother's estate. The court further

found that there was sufficient money in the estate to withhold the sum of $1,000 from the

distributive share of each of the respondents. The trial court concluded that respondents were

entitled to have the agreement rescinded, and it was so decreed. There is sufficient evidence

to support the findings.

The jurisdiction of a court of equity to decree the rescission of a contract for the mutual

mistake of fact, or where even one of the parties was laboring under such a mistake, is too

well recognized to require discussion. The mistake in this case, namely, the belief that the

father had bequeathed the ranches to his sons, affected the substance of the agreement. It was,

in fact, the basis of the agreement, and in such cases, whether the mistake is unilateral or

bilateral, equity has jurisdiction to furnish relief. But appellants insist that, in order to effect a

rescission, the parties rescinding must restore everything received by them under the contract,

and that respondents in this case have not restored or offered to restore the $2,000 they each

received under the agreement. It is a general rule, heretofore recognized by this court, that a

party cannot rescind a contract and at the same time retain possession of the consideration, in

whole or in part, which he received under it. Bishop v. Stewart, 13 Nev. 41.

But the rule is not applicable to a case like this. A party is not obliged to return that which he

will be entitled to retain, even though cancellation be decreed. 6 Pomeroy, Equity

Jurisprudence, 688. The respondents were entitled, under the law applicable to the facts of

this case, to ultimately receive and retain, as a part of their distributive shares of the estate of

their deceased parents, the moneys advanced to them. The court found that there would be

more than sufficient money in the estates to withhold the amount they had received. There is

evidence to support this finding. Respondents in their reply offered to allow judgment � ��


and decree to be entered against them in that respect. The court, by its judgment, in deducting

the said amounts from what they were otherwise entitled to receive, has placed the parties in

the same position as they were before the $2,000 was advanced to them. Restoration of the

amounts received under the agreement would, under such circumstances, have been

unnecessary to do justice, and the law does not require idle acts. It would be an idle act to

restore that which ultimately a party would be entitled to receive and retain. This case is

therefore clearly distinguishable from the class of cases illustrating the general rule requiring

the restoration of money received before the commencement of an action. Under the facts the

court could and did accomplish restoration by its decree. Thackrah v. Haas, 119 U. S. 499, 7

S. Ct. 311, 30 L. Ed. 486; Harris v. Equitable Life Assurance Society, 64 N. Y. 196; Kley v.

Healy, 127 N. Y. 555, 28 N. E. 593; Collier v. Collier, 137 Ga. 658-667, 74 S. E. 275, Ann.

Cas. 1913a, 1110; Winter v. K. C. Cable Ry. Co., 160 Mo. 159, 61 S. W 606; Reggio v.

Warren, 207 Mass. 525, 93 N. E. 805, 32 L. R. A. (N. S.) 340, 20 Ann. Cas. 1244; 24 Am. &

Eng. Encyc. of Law (2d ed.) pp. 621, 622; 9 C. J. sec. 107, p. 1215; 6 Pom. Eq. Juris. sec.

688.

We have examined all of the cases cited by appellants in support of their position, but do

not find any of them in point on the facts of this case. In Kelley v. Owens, 120 Cal. 502, 47 P.

369, cited by appellants, the rule we hold applicable was expressly recognized in the

following language: “There are exceptional cases where restoration or an offer to restore

before suit brought is not necessary—as, for instance, * * * where it clearly appears that the

defendant could not possibly have been injuriously affected by a failure to restore.”

Such is the case before us. It is also recognized in Richards v. Fraser, 122 Cal. 456, 55 P.

246, quoted from in Matteson v. Wagoner, 147 Cal. 739, 82 P. 436, cited by appellant in the

following statement: “One who �� &�� #�&�� J��9�� ?�/��H��000�� :�/��6��0�2�


attempts to rescind a transaction on the ground of fraud is not required to restore that which,

in any event, he would be entitled to retain,” quoted approvingly from Kley v. Healy, 127 N.

Y. 555, 28 N. E. 593.

In Hill v. Northern Pacific Railway Co. (C. C. A.) 113 F. 914, cited by appellant, the court

quotes approvingly from Vandervelden v. Chicago & N. W. Ry. Co. (C. C.) 61 F. 55, in

which the class of cases to which the instant case belongs is referred to as follows: “There is a

class of cases wherein the facts are such that the court, without a repayment or tender on the

part of the plaintiff has it within its power to protect fully the interests of the other party in

case of rescission, and in such cases the court may proceed to a hearing without requiring

repayment or a tender.” We hold, therefore, that restoration or offer to restore was not a

condition precedent to respondents' right of action.

8. In his closing brief counsel for appellants for the first time raises an objection to the

jurisdiction of the district court acting as a court of equity in this case. He claims that it had

not the power to hear and determine the subject matter in controversy as such a jurisdiction

was exclusively in the probate court. The question has been determined, and we think

correctly, in Re Singleton's Estate, 26 Nev. 106, 64 P. 513. In that case it was held that the

probate court, in the absence of a statute, has no jurisdiction to adjudicate disputed rights

against an estate. Such as the nature of this case. Appellant C. D. Ridenour claims the

property involved against the title of the estate. He claims it by deed, which has been shown

to be void for want of delivery. We think In Re Singleton's Estate was correctly decided and

deem it unnecessary to elaborate upon it. It declares the law of this case.

9. It is contended further that, whatever may be said of the judgment as to the real estate,

the court had no jurisdiction to enter judgment against appellant C. D. Ridenour for the rental

value of the property, and requiring him to account for the same to the administrator of the

estate. As to this it would seem to be �� &��


sufficient to revert only to the settled principle that a court of equity, having jurisdiction of

the subject matter of a suit is entitled to retain jurisdiction for the purpose of giving complete

relief. 21 C. P. pp. 134, 135. And in so doing it may establish purely legal rights and grant

legal remedies, which would otherwise be beyond its power. 21 C. J. 138.

Although the recovery of rents is usually a matter solely of legal cognizance, when a court

of equity has taken jurisdiction to set aside a title, it may also take an account of rents

received through such title and award them to the rightful owner. Whetstone v. McQueen,

137 Ala. 301, 34 So. 229; Conklin v. Foster, 57 Ill. 104; Holeton v. Thayer, 86 Ill. App. 526;

Martin v. Martin, 44 Kan. 295, 24 P. 418; Canton v. McGraw, 67 Md. 583, 11 A. 287.


Coleman, J.: I concur.


The issue made by the pleadings in this case involves primarily the construction of two

instruments—one a deed which is made a part of the plaintiffs' complaint, and the other a will

which is made a part of the defendants' answer to the complaint. The main question for

decision is whether the instrument, which possesses the formalities of a deed, is a deed or a

will. The instrument contains the following provisions:

“The above-described real property, ditch, and water rights being the same property

conveyed to said D. W. Ridenour by that certain deed bearing date the 20th day of March,

1916, and recorded in Book 47 at page 316, Records of Deeds of Washoe County, Nevada

and executed by W. F. P. Lyell. Together with the tenements, hereditaments and

appurtenances thereunto belonging or appertaining, and the reversion and reversions,

remainder and remainders, rents, issues and profits thereof, subject, however, to the following

reservations, reversions and remainders; that if the said C. D. Ridenour has not conveyed or

transferred the said �� I��A�8 B�� I��


described lands at any time prior to his death, then in that event an undivided one-half (1/2)

interest in said premises is to revert to and reinvest in fee in the grantor or heirs of the grantor

herein now living or to their heirs, executors or legal representatives, and they shall be the

owners of said undivided one-half interest in said premises.

“To have and to hold the said premises, together with the appurtenances, unto the said

party of the second part, and to his heirs and assigns forever subject to the reservations and

remainders as above mentioned.”

At the time of the execution of the deed the grantor made his last will, which contains,

among others, the following clauses:

“Second. I further declare that I have be deed transferred to my son, S. D. Ridenour, of

Susanville, California, all of the real property which I own in Lassen County, California,

formerly known as the D. C. Wheeler ranch, together with all live stock, farming utensils and

implements and other personal property which I own in connection with said ranch, which

said deed has been or will be placed in escrow in the Scheeline Banking & Trust Company, of

Reno, Nevada, to be delivered upon my death. I have also by deed conveyed to my son, C. D.

Ridenour, of Reno, Nevada, that certain ranch in Washoe County, formerly known as the

Lyell Ranch, together with all livestock, farming implements and other personal property

belonging to me, kept and used in connection with said ranch, which said deed has been or

will be placed in escrow with said Scheeline Banking & Trust Company to be delivered upon

my death.

“Third. I devise and bequeath all of my real and personal property, of whatsoever character

and wheresoever situated, of which I may die possessed, other than the real and personal

property which I have conveyed to my sons, as above mentioned, to my wife, Mary J.

Ridenour, during her lifetime, and at her death all of the residue of the personal and real

property which may be in her possession to be dived equally among our four children, to wit,

our sons C. D. Ridenour, ��,� ��/�� 4��.��,�� 4�� $�� 9��%�� 6��)��,� ��/��&�� #


of Reno, Nevada, and S. D. Ridenour, of Susanville, California, and our daughters, Hattie

Allenbach and Echo Gerow, both of Reno, Nevada, to share equally therein.”

The complaint proceeds upon the theory that the will did not devise, bequeath or convey to

any devisee any part or portion of the property and premises described in the complaint and

that as to said property and premises the decedent, David W. Ridenour, died intestate. The

answer denies this allegation and asserts that it was the intent of the testator to convey to the

defendant, C. D. Ridenour, all the property described in the deed concerning which this action

was brought.

I am impressed that the instruments were drawn by a person skilled in legal phraseology,

and they must be judged by the legal meaning of the words employed. The deed in form is

that of a bargain and sale deed, but it is conceded, or must be conceded, that it was intended

as a voluntary grant made by a father to his son, in consideration of love and affection, and

executed animo testandi. By reference to the will it will be observed that the testator says: “I

have also by deed conveyed to my son, C. D. Ridenour.” But it will also be observed that the

deed is made to speak from the date of the death of the testator.

In determining whether the instrument is a deed or a will the controlling question is: “Did

the maker intend any estate or interest whatever to vest before his death, and before the

execution of the paper? Or * * * did he intend that all the interest and estate should take

effect only after his death. If the former, it is a deed; if the later, a will; and it is immaterial

whether he calls it a will or a deed, the instrument will have operation according to its legal

effect.” Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Niccolls v. Niccolls, 168 Cal. 444,

143 P. 712; Knight v. Knight, 133 Miss. 74, 97 So. 481; In Re Neil's Estate, 111 Or. 282, 226

P. 439; Mumpower v. Castle, 128 Va. 1, 104 S. E. 706; Young v. O'Donnell, � ��3��


129 Wash. 219, 224 P. 682; 40 Cyc. 1085 (b), note 47; Devlin on Deeds, sec. 309.

Tested by the rule enunciated by the authorities cited, I am of the opinion that the legal

effect of the instrument is a will and not a deed: First, because it is to take effect only from

the date of the death of the maker. Second, it appears from the extrinsic evidence that the

maker exercised complete dominion and control over the property up to the time of his death,

and in fact at one time leased it to a stranger for a term of years at a stated rental, with option

to purchase. Third, it attempts to convey in fee to the son upon condition that, if the property

was not sold in the grantee's lifetime, then and in that event an undivided one-half of the

property is to revert to the grantor or his heirs now living or other heirs. Whether such a

reversion is repugnant to the grant, and void, I express no opinion. Fourth, the instruments

were executed together with testamentary intent. Fifth, the doctrine of the cases is that,

whatever the form of the instrument, if it possess no present interest, but only points what is

to be done after the death of the maker, it is a testamentary instrument. Devlin on Deeds, sec.

309.

Entertaining the view that the deed is a testamentary instrument, I conclude that its

delivery to C. D. Ridenour and its acceptance by him was not induced by a common or

mutual mistake of the parties in interest as to the legal effect of the instrument. Feeling as I do

that by its delivery the will and manifest intent of the testator was carried out, I dissent from

the opinion of the majority.


September 27, 1929.

Per Curiam:

Rehearing denied.

Sanders, J.: I dissent.

____________


KLEPPER v. KLEPPER

No. 2804

August 1, 1929. 279 P. 758.

1. Divorce—In Divorce Suit, Publication of Summons Was Proper, where Affidavit Gave

Defendant's Foreign Residence, and Stated He Could Not Be Served Locally. In suit for divorce, an affidavit that defendant resided outside of the State of Nevada, and that he was

not then, and could not be, found in that state, and that said defendant's present place of residence was

4202 G. Street, Norfolk, Va., stated facts sufficient to give court jurisdiction to order publication of

summons.


Divorce—19 C.J. sec. 250, p. 102, n. 12.

See, also, 51 Nev. 145.


Suit by Bessie Lovell Klepper against Frank Klepper. From an order denying a motion to

quash the service of summons, defendant appeals. Affirmed.

Wm. M. Kearney and Sidney W. Robinson, for Appellant:

The recital in the affidavit filed in the trial court as a basis for the order of publication of

summons in this case is wholly insufficient to authorize the court to issue an order of

publication, and the court acquired no jurisdiction in the case. Perry v. District Court, 42 Nev.

284; Richardson v. Richardson, 26 Cal. 149; Yolo Co. v. Knight, 11 P. 663; McCracken v.

Flanagan, 28 N. E. 386; Stimson v. District Court, 223 P. 823; Mills v. Smiley, 76 P. 787;

Forbes v. Hyde, 31 Cal 332. Those cases and the cases cited therein indicate that the statute

requires something more than the bare conclusion of the affiant. The statute must be strictly

complied with where one relies on constructive service. Coffin v. Bell, 22 Nev. 169.

The statute, sec. 5026, Rev. Laws, as amended by Stats. 1923, p. 275, authorizes service by

publication only under certain conditions. When and only when such facts appear as the

statute recites, “it shall be �� #


presumed that such party still resides and remains out of the state, and it shall not be

necessary to use due or any diligence to find such party in this state, or to show by affidavit

that due or any diligence was so used.” On the other hand, unless the recitals indicated in the

statute, or such of them as are applicable, are set forth in the affidavit, we take it the statute

requires that a showing of due diligence be actually made. It is the general, if not the

universal rule, that all statutes providing for publication of summons or other forms of

substituted service of process are “in derogation of the common law, and hence are to be

strictly construed and literally observed.” 32 Cyc. 476. See, also, Gibson v. Wagner, 136 P.

93.

That the statement of nonresidence does not negative the possibility of defendant's

presence in the state is clearly seen from the cases of Carleton v. Carleton, 85 N. Y. 313; and

Johnson v. Hunter, 147 Fed. 136.

Painter & Withers, for Respondent:

We cannot agree with counsel for appellant that the 1923 amendment has any bearing

whatsoever where, as in the present case, the facts are that the defendant resides out of the

state at a known address. We believe that this amendment would not be applicable under such

conditions, and that it is only necessary for the plaintiff's affidavit for publication of summons

to comply with the requirements of the statute prior to the 1923 addition and to show “to the

satisfaction of the court that the defendant resides out of the State of Nevada,” and “that a

cause of action exists against the defendant, and that the defendant is a necessary and proper

party to the action.”

The supreme court of Nevada has repeatedly expressed itself in accordance with the

general ruling adopted elsewhere that the upper court will not set aside the decision of the

lower court upon a question where there are substantial facts to support the judgment. State v.

C. & C. Railroad, 29 Nev. 504; Burch v. Southern Pacific Company, 32 Nev. 75. In the case

at bar the lower court �� "�� '�� &��


twice held the affidavit sufficient; first, by granting an order of publication of summons, and,

secondly, by overruling the appellant's motion to quash the service of summons upon the

ground of the insufficiency of the affidavit. In the affidavit in question the essential probative

facts are directly set forth, to wit, that the defendant resides out of the State of Nevada and

that he resides in a definite city at a definite street address.

As to the sufficiency of the affidavit we cite the following authorities: Anderson v. Goff,

13 P. 74; Furnish v. Mullan, et al., 18 P. 854; Clarkin v. Morris, 172 P. 982; Fue v. Quinn, 66

P. 217; Parsons v. Weiss, 77 P. 1010; Pettiford v. Zoellner (Mich.), 8 N. W. 57.

We contend that the record on appeal affirmatively shows that the respondent has

complied with all statutory requirements, and that the default was duly, legally and properly

entered.

OPINION


Plaintiff brought suit for a divorce. After the issuance of summons, she filed an affidavit,

and obtained an order for publication of summons. The defendant made a motion to quash the

service of summons, which, being overruled, the court took testimony and entered a decree in

favor of plaintiff. The defendant has appealed from the order denying the motion to quash.

Only one point is raised on this appeal, and that is that the affidavit does not state facts

sufficient to give the court jurisdiction to order the publication of the summons, that it states

mere conclusions, and that no showing of due diligence is made therein. In support of this

contention our attention is directed to the case of Perry v. District Court, 42 Nev. 284, 174 P.

1058.

Omitting the formal parts of the affidavit, it reads:

“That defendant resides outside of the State of Nevada, to wit, 4202 Granby Street,

Norfolk, Virginia; and that he is not now and cannot be found � ��4��/�� '�� ! 1 �)�� 4��/��K�� #


in the State of Nevada, and that said defendant's present place of residence is 4202 Granby

Street, Norfolk, Virginia.”

The purpose of requiring such an affidavit is to enable the court to determine the place of

residence of the defendant, if known, and, if not, where notice will most likely reach him. The

affidavit in the Perry case did not do this, but merely stated that the plaintiff had used due

diligence to learn the defendant's place of residence. We held that the affidavit should show

what efforts the plaintiff had made to ascertain the defendant's address, that the court might

determine whether or not the plaintiff had used due diligence. In the instant case the affidavit

states the place of residence of the defendant—giving the name of the city, street, and

number. The plaintiff having this knowledge, there was no occasion for the exercise of

diligence. It is true the affidavit states that the defendant cannot be found in the State of

Nevada, which, standing alone, would be insufficient, but, since the affidavit states positively

where the defendant's residence is, and shows that it is in a sister state, that was sufficient,

and the further statement is mere surplusage.

Since the rendition of the decision in the Perry case, supra, the statute relative to affidavits

for an order of publication of a summons has been amended (Stats. 1923, p. 275, c. 158) so as

to add the following proviso:

“Provided, that when said affidavit is based on the fact that the party on whom service is

to be made resides out of the state, it shall be a sufficient showing of such fact if the affiant

shall state generally in such affidavit that at a previous time such person resided out of this

state in a certain place (naming the place and stating the latest date known to affiant when

such party so resided there); that such place is the last place in which such party resided to the

knowledge of affiant; that such party no longer resides at such place; that affiant does not

know the present place of residence of such party or where such party can be found; and that

affiant does not know and has never been informed � �� "�� #


and has no reason to believe that such party now resides in this state; and, in such case, it

shall be presumed that such party still resides and remains out of the state, and it shall not be

necessary to use due or any diligence to find such party in this state, or to show by affidavit

that due or any diligence was so used.”

This amendment contemplates cases in which the present address of the defendant is not

known, and where the defendant was at one time known to be a nonresident of this state, and,

so far as plaintiff knows, or is informed, still resides without the state. The instant case does

not fall within the purview of the amendment.

What we have said disposes of the objection made. The court did not err in its ruling on

the motion to quash.

The order appealed from is affirmed.

____________

��51 Nev. 475, 475 (1929) In Memoriam, Edward Silsby Farrington��

PROCEEDINGS

IN THE

SUPREME COURT OF THE STATE OF NEVADA

Thursday, October 24, 1929.

Present— Hon. E. A. Ducker, Chief Justice;

Hon. B. W. Coleman, Associate Justice;

Hon. J. A. Sanders, Associate Justice;

Committee, and Officers of the Court.

The Committee appointed September 28, 1929, to draft and present to this court

resolutions of respect for the late Judge of the Federal Court of this district, Judge Edward

Silsby Farrington, presented and recommended the adoption of the following:

MEMORIAL

____________

EDWARD SILSBY FARRINGTON

Judge Edward Silsby Farrington was born on September 6, 1856, at Yreka, California, to

which place his parents, Daniel Farrington and Elizabeth Silsby Farrington had moved from

the State of Maine. There were of English ancestry.

Attended by his wife and other members of his family, Judge Farrington died at Santa

Barbara, California, on August 31, 1929, aged six days less than seventy-three years. He had

been in failing health, but instead of resigning from the bench he retired in 1928 so as to

continue work to the extent of his strength on cases which might be assigned to him.

In addition to his widow, Celia Agnes Farrington, there are surviving him four of her sons,

Judge Erroll J. L. Taber, A. D. Taber and H. S. Taber residing at Elko, Nevada, and Joseph

M. Taber residing in San Francisco, a nephew, Donald H. Farrington, and a niece, Grace

Farrington Isenberg, living in Oregon.

He graduated from Amherst University in 1880 with the degree of Bachelor of Arts. He

came to Nevada � �� 6�� $�� ,��&��=�� K�� $��


and taught school at the town of Empire on the Carson River, where quartz mills extracted

many millions of dollars from Virginia City ores, and where other men taught who later

became prominent. In 1883 and 1884 he was the principal in charge of the State University,

then located at Elko, before its removal to Reno.

During his vacations in the years he taught at Empire he read law at Virginia City with

Judge Whitman, an able lawyer of high character who later became a Justice of the Supreme

Court. While in charge of the University at Elko he occupied his spare time by studying law

in the office of George F. Talbot.

In 1885 and 1886 he attended Hastings Law School in San Francisco. Upon his graduation

there and admission to the bars of California and Nevada in December, 1886, he began

practice at the age of thirty, at Elko, Nevada, as a member of the firm of Talbot and

Farrington. This partnership continued until George F. Talbot was called to the district bench

in January, 1891, Judge Farrington continued to reside at Elko and to practice law there and

in other parts of the State until he was appointed Federal Judge.

On August 22, 1892, he married Celia Agnes Taber, his helpful and devoted wife. Mutual

tenderness and exceptional happiness extended throughout their married life. In 1904 he took

into his office his stepson, Judge E. J. L. Taber, upon his graduation at the Law School of

Columbia University.

Judge Farrington was the nominee for Congress of the Republican party, with which he

was always consistently allied, in 1900 and again in 1902. His party was greatly in the

minority and he was unsuccessful in both instances, but the high plane upon which he

conducted his campaigns won for him sympathy, standing and support which led to his

appointment to the highest federal office in the State.

After careful investigation President Roosevelt appointed him United States District Judge

for the District of Nevada, and he entered upon the duties of this office in February, 1907.


His appointment to the Federal District Bench was most worthily merited and met with the

approval of the leading citizens of the State and members of the bar. His conduct of that

important office for over twenty-one years was marked with signal ability and painstaking

and conscientious application to duty.

As a jurist in the trial of important cases in this and adjoining States he rendered

distinguished public service.

Judge Farrington's integrity and character were above reproach. With few faults of his

own, he was too considerate to criticize the failings of others.

His devotion and care, not only for his wife but for all members of his and her families,

was exceptional. In his intercourse with others he was always approachable and kindly.

In recognition of his worth and learning, the University of Nevada in 1908 conferred upon

him the degree of Doctor of Laws.

Be It Therefore Resolved, That in the passing of Judge Farrington, the Bench and Bar of

this State lost a profound, conscientious and able jurist; the State at large, one of its most

splendid citizens; his wife, a tender and affectionate husband; the other members of his

family a wise and considerate counselor; and all who best knew him, a most kindly and

appreciative friend.

Be It Further Resolved, That the members of the Bench and Bar extend to his stricken

widow and family their deepest sympathy; that a copy of this memorial be spread upon the

minutes of the Court and published in the next Nevada Report, a copy mailed to the Secretary

of the State Bar, and that a certified copy under the seal of the Court be forwarded to Mrs.

Farrington.

Respectfully submitted,

G. F. Talbot,

Sardis Summerfield,

Wm. Woodburn,

George L. Sanford,

B. F. Curler.


In addition to the Memorial, members of the Court and Bar made the following remarks:

B. F. Curler, Esq.:

May it please Your Honors. To me has been delegated the duty and the privilege of

presenting to Your Honors these resolutions and recommending their adoption. Just before

leaving Reno I received a wire from the Chairman of the Committee, Judge Talbot, notifying

me that he had been delayed in San Francisco, and expressing his great regret that he was

unable to be here at this time. Sardis Summerfield, the next on the Committee, is suffering

from an attack of neuritis and is unable to be here. The other two members of the Committee

notified that their engagements were such it would be impossible for them to be here. So to

me has fallen the duty of presenting the resolutions to the Honorable Supreme Court of the

State of Nevada.

Aside from my position as a member of the Committee delegated to assist in the drafting

of these resolutions, I desire to say a word as a friend of the deceased.

My first acquaintance with Judge Farrington dates back to the year 1896, when we were

both engaged, upon opposing sides, in a water suit in Elko County. At that time, though we

were opposing attorneys, I developed a great affection and admiration for Judge Farrington,

and that affection and admiration continued during his entire life.

As an advocate he was an opponent worthy of any man, but he was always fair and always

considerate, though very, very earnest in the advocacy of his cause.

As a friend he was loyal. And though, as these resolutions say, he had hardly a fault of his

own, yet he was very, very charitable toward the faults of others.

It has always seemed to me that the greatest honor that can be conferred upon a lawyer by

others is his elevation to the Bench, and the greatest honor that can come to a man by the

effort of himself is to administer that office in the manner in which Judge Farrington�� &�� $��


administered his, actuated by the desire to do equal and exact justice between all who

appeared in his Court. He was signally fortunate in being able to carry that desire out in a way

few have been able to equal.

The loss of Judge Farrington was a great loss to the State of Nevada; it was a great loss to

the profession; it was a great loss to his family; and it was a great loss to his friends.

H. H. Atkinson, Esq.:

May it please the Court. It is very difficult for me to add anything to that which has been

said by the Committee in its resolutions and by Judge Curler. The gentleman who prepared

the resolutions has known Judge Farrington so long; the Honorable Sardis Summerfield and

Judge Curler has been associated with him, as he mentioned. Nevertheless I feel that it would

be unpardonable if the United States District Attorney's Office, representative of the

Government, should let the opportunity go by without adding our respects to him, the more so

since we, because of our close association with him, probably know him more intimately than

the average member of the bar. And we in that office feel that the people at large have lost

one of the greatest exponents of justice, one of the most powerful men who had the law at

heart, and the enforcement thereof, and who believed it was his innate duty to enforce the law

impartially and yet with kindness.

He was fearless, he was utterly impartial, he felt that he should enforce the law as it was,

even though it fell hard, sometimes, on those who were his friends. But he was universally

respected for that one marvelous principle, his belief in the enforcement and the maintenance

of the Constitution and laws of this country. More than that, when we were with him in

chambers he showed such a magnanimity of spirit and warmth of heart that it was almost an

antithesis, as it were, in contrast to the way he enforced the law from the bench.

He was a wonderful instructor to us. We, as members of the United States District

Attorney's Office, ��


probably got more real instruction from him than is possible to detail, and we feel that we

have lost a real preceptor and instructor, as well as a friend.

Judge Farrington, furthermore, impressed the people with the dignity of the Federal Bench.

Although that court has been relegated, perhaps, in the eyes of some on account of the

enforcement of the Prohibition Act, yet when Judge Farrington entered the courtroom filled

with people, with his presence came a dignity and strength that permeated that courtroom

immediately, and everyone was impressed with the power and strength of a Federal Judge.

We, as members of the United States District Attorney's Office, feel that the people have

lost a wonderful exponent of justice, and we know the sorrow that must be in the heart of

Mrs. Farrington, because we know Judge Farrington was exemplary as a husband.

George A. Whitley, Esq.:

I think perhaps I knew Judge Farrington more as a son might know his father. I came to

Carson City about five years ago as an assistant to George Springmeyer, then United States

District Attorney. Almost one of the first met I talked to was M. A. Diskin, now

Attorney-General of Nevada, who had formerly been assistant to United States District

Attorney William Woodburn. He said: “George, I envy you the experience you are going to

have. I would give thousands and thousands of dollars for what I learned from Judge

Farrington.” And although I thought I knew a great deal, I soon found that I didn't know so

much after all, for almost daily I stored up in my memory something I learned from Judge

Farrington. I got, perhaps, his angle of the law in a case, his view of the presentation of

evidence or the argument before a jury. And many and many a time after some man had been

sentenced by the Court or some jury had brought in a verdict I went into Judge Farrington's

chambes and sat down and we talked over the situation from ��


the human standpoint. I found that Judge Farrington was one of the most understanding men

that I ever came in contact with. We would sit down and talk things over, not as judge and

attorney, but as two citizens, or possible as a father and a son.

I shall always remember a day perhaps three or four years ago, when I wondered if I was in

good standing with Judge Farrington. Sometimes an attorney doesn't quite know how he

stands with the members of the bench, and the Judge did not always display his feelings. But

one day I was standing in the lobby of the Arlington Hotel after we had had a very strenuous

session of court. He came up to me, put his arm around my shoulder and said: “Well, boy,

you have had a pretty tough day, haven't you?” I knew then I had at least a certain amount of

respect from Judge Farrington.

As I say, I knew him more as a son knows his father, and Judge Farrington seemed to have

that fatherly regard for all the members of our office. And, contrary to what most people

think, it was quite customary for Judge Farrington to want various attorneys to come into his

office and sit down and chat over things, for maybe hours at a time. I recall particularly Mr.

Montrose, Mr. Cantwell, Mr. Atkinson, Mr Springmeyer and myself just sitting and chatting

with the Judge for hours at a time.

So I say that in the loss of Judge Farrington there is a little different feeling in me than that

expressed in the resolutions and in the statements of Judge Curler and Mr. Atkinson.

Homer Mooney, Esq.:

May it please the Court. I feel that I would be lacking in natural feeling and a sense of duty

if I did not, with the permission of the Court, add my tribute also to Judge Farrington.

It is the glory of the law that it serves as a vicegerent of the Deity in mundane affairs for

the vindication of ��


the rights of society and the administration of justice between man and man.

Among the fundamental principles of jurisprudence are the precepts: “Injure no man,”

“Render to every man his due.” And it is a characteristic phenomenon that those naturally

attached to these principles seem to receive a contagion enriching their character as lawyers

and judges. Those who become active in the administration of law derive from their activities

the characteristics of Equity, the characteristics of Justice.

Judge Farrington not only brought these natural qualities to the practice of the law and the

administration of justice, but exemplified them himself in action, and enriched his own

character from them. Such a development is somewhat in keeping with the legend of the

Great Stone Face. The boy, gazing upon the grand and benignant rock sculpture promising the

advent of a leader, became so imbued with the qualities of that visage that in later years he

developed into that character himself. So Judge Farrington, contemplating the principles of

law and admiring and construing its lofty purposes, became with the passing years Equity

itself.

But despite the legal qualities of his mind, Judge Farrington was essentially a democratic

man. I met him in more than one capacity. My first interview with him was with diffidence,

because I stood in awe of the great light that hedges the throne. But I was received so

graciously and so simply that my sentiments changed immediately to those of friendship and

admiration.

Judge Farrington was a nationalist, but withal he was a Nevadan quick to evidence local

pride and patriotism. He was like Marshall, the first expounder of nationalism. Marshall first

of all was a Virginian. Judge Farrington, moreover, had a democracy, not of the

back-slapping type, but that kind of democracy which finds itself unable to discriminate

between Tyrian and Trojan. It was a real democracy.

So far as the contribution of Judge Farrington to �� D��


the jurisprudence of this district is concerned, I think he left lasting monuments in the reports,

particularly in respect of the water law, the mining law, and the public utilities law. While he

adhered closely to the letter of the statutes, he showed his human side by tempering justice

with mercy.

His private life, filled with virtue, is as much a monument to him as that testimony

concerning his intellect, his industry and his honesty, which remains as a perpetual memorial

in the records of our courts. Of him it may be well said, as was said of Christopher Wren, the

architect of St. Paul's: “If you would see his monument, look about you.”

Chief Justice Ducker:

The court desires to thank you, Judge Curler, and your associates, for acting as members of

this Memorial Committee, and for your report, and to thank you, Mr. Atkinson, Mr. Whiteley

and Mr. Mooney for the sentiments you have expressed here this morning.

I wish also to say that your good offices have been faithfully discharged, and that the

Justices of this Court indorse to the fullest measure the fine tributes you have paid to the life

and character of Judge Farrington. We are happy to know that these deserved tributes are a

permanent record of this Court and will be published wherever its decisions are to be found.

We deplore the loss of this distinguished member of our great profession of the law. We

deplore his loss as a useful and lovable citizen, as a public servant of high repute, and as a

friend in private life.

During his long and honorable career on the Federal Bench of this district he has been

contemporaneous as a judge with the present Justices of this Court and with several of our

predecessors. As such he has commanded our respect, our confidence and our admiration as

judges and as men and neighbors daily impressed with the worth of his character. In the

course of his tenure of the bench he has with singular ability construed and �� 4�� $��


applied some of our important State statutes, and his opinions in this respect and in other

instances have been helpful to this Court.

His fair fame as a jurist is quite secure. It is written into the annals of the Nation by a mind

that was endowed with great natural powers and cultivated by the most painstaking

assiduity—written there through hours and days and years of laborious thought and study.

He was always clear and fearless in the performance of duty. The breath of slander never

touched him, either in private life or in the great office which he so long adorned. The life of

Judge Edward S. Farrington furnishes a most noble prospect for the members of our

profession and for all who love to contemplate the majesty of a life devoted to kindness, to

duty, and to the attainment of high ideals.

Justice Coleman:

I do not feel that I can add anything to what has already been said. It was not my pleasure

or privilege to know Judge Farrington for as great length of time as most of you, and before I

came to Carson City my acquaintance with him was indeed very limited. But I did form of

Judge Farrington a very exalted opinion. In fact my sentiments might be expressed in a very

few words. To me he was an ideal man, an ideal citizen, and an ideal judge. I think that

contains all that I am capable of saying.

There was one thing, however, that struck me rather forcibly some years ago. I had lived in

the State of Colorado before coming to this State, and there we had as United States District

Judge a man who established a reputation for learning, ability and integrity, but who was of a

different temperament from Judge Farrington; he was a very austere man, and being years

younger than I am now, I looked upon him somewhat with awe. After coming to Carson City

and being thrown more or less in intimate touch with Judge Farrington, I could but contrast

the two men. I need not �� D��@�� '��


dwell upon the impressions which I formed as to Judge Farrington's humanitarianism. But

here I want to say that one of the outstanding things which I will never forget is the fact that

after our country became involved in the World War, Judge Farrington did not withdraw

himself into the sanctuary of his office, but contributed his energies and strength to the cause

of his country in every way. Notwithstanding the fact that at that particular time of which I

now speak he was about the age of sixty years, he joined the local home guard. Now, of

course, he knew, and we all knew, that Judge Farrington had no idea of ever qualifying as a

soldier in the army. We knew the motives which prompted him, motives of patriotism, to

stimulate activity in others in being outstanding in the cause of liberty. As I say, that one little

thing made a marvelous impression on me and others who joined, I know, for the same

reason. There were others here who were approximately of Judge Farrington's age, perhaps

not quite so old, who joined that organization, but they were differently situated.

Taking everything into consideration, I can pay Judge Farrington no higher tribute than, as

I said, he was an ideal man, an ideal citizen, and an ideal judge.

Justice Sanders:

I heartily concur in what has been said. Our colleague was not only a great jurist but a

most admirable character, a Christian, a gentleman, and a scholar. His decisions have not only

been helpful to this Court, but instructive. His record as a jurist has had much to do with the

economic and social conditions in Nevada. As a citizen he was without a peer. The

Constitutions of the United States and the State of Nevada were his guides.

I deeply sympathize with his charming and devoted wife, the light of whose love is present

with us on this occasion. My associations with him since I have been a member of this bench

endeared him to me personally, � ��D�� "�D��


and I know no way of expressing my sincere regret at his passing than to say that my heart is

sad; I shall miss him.

E. J. L. Taber:

With the Court's permission, I desire to express the appreciation of my mother, her sons,

their families and the other relatives of Judge Farrington for what has been and is being done

here today. We thank Your Honors, the members of the Committee, those other members of

the bar who have eulogized Judge Farrington and paid him tributes today, and all those others

who have gathered here in respect to his memory.

To those of us who were near to him and who loved him with all our hears, his loss is

irreparable. The loss falls most grievously upon his widow, who lived with him so many

years, who loved him so much, and who was beloved by him so much; a mutual devotion,

may it please the Court, which served as a most beautiful example to those of us of the

younger generation. The courage with which my mother has borne her loss is such as can be

explained only as having its source in a power higher than anything on this earth. She desires

me to say that she asks God's blessing on each and every one of you here, and she prays that if

you shall have such burdens to bear, God may help you to bear them as you today have

lightened her burden.


Judge Taber, we all appreciate the grief of yourself and the members of your family.

I have here a communication from Judge George F. Talbot, which has been handed to me

by the Clerk, and which I shall read:

San Francisco, October 23, 1929.

“Mrs. Eva Hatton, Clerk of Supreme Court, Carson City, Nevada.

“Dear Mrs. Hatton: I am very sorry I will not be able to be there tomorrow for the

presentation of the �� @��


resolutions in respect to the late Judge Farrington. I intended and expected to come, but now

find that I will be detained here about two days longer.

“I will inclose a statement of part of the remarks which I had intended to make upon the

presentation of the Memorial.

“With my sincere regrets and compliments to the Court, I remain

“Very truly,

“G. F. Talbot.”

These are the remarks that Judge Talbot was to make:

“It is desired upon this occasion to make some personal remarks in respect to the late

Edward Silsby Farrington, who held the highest federal office in the State and ably presided

over the United States Court in this district for a generation.

“Supplementing the Memorial, it is deemed appropriate to pay a short tribute to the

memory of the man with whom long acquaintance brought understanding and admiration.

“He possessed a rare combination of virtues. He was free from the bad habits which are

too common with men. He possessed the true refinement which has tender regard for the

rights and feelings of others. Although unusually free from faults himself, he was too kind

and considerate to condemn or criticize the failings which are prevalent with mankind, or to

say anything which if heard or conveyed might cause pain to any worthy human being. He

was especially devoted to his wife and family. His love and care for his stepsons and their

children excelled that of most parents for their own. He was free from false pride,

approachable and kindly. He was imbued with religious tenets. Integrity and sincerity he

possessed to a high degree.

“These splendid traits came partly from sterling parentage, and, as with most great and

good men, largely from the influence and teaching of a Christian mother.

“In looking for his faults without seeing any, after a congenial partnership lasting four

years and close friendship over a third of a century, during a � �� 4�� -�;H�� "�� D�� '


considerable part of which time there were periods of reversed relations of occupant of the

bench and practicer at the bar, there comes to mind one of the greatest compliments ever paid

to a woman by a former legislator in this State, who, when consoled upon the loss of his good

wife with whom he had lived for over twenty years, replied: ‘Yes, she was a good woman; if

she had any faults I do not know it.'

“His life work was in two eminent professions, teaching and the administrating of justice.

His great success as a lawyer and jurist was due not so much to his unusual ability and keen

judgment as to his industry, his close and incessant application to the work before him. Day

and night, year after year, usually without vacations, he labored in the careful and

conscientious preparation and determination of the cases at hand. Labor creates and conquers,

and is the only road to success in the law.

“The greatest connoisseur of mankind and human nature said that the evil men do lives

after them. This cannot apply to him, for he did no evil to live after. But the influence of his

amiable qualities has made and will make others better.

“He lived beyond the time allowed to average man. Friends and kindred are never ready to

part with loved ones. It is wished that he could have been spared as long as Senator Cole of

California, who was in the Senate when Lincoln was President, and who died recently at the

age of one hundred, after practicing law in Los Angeles; or as long as Justice Holmes, an able

and industrious member of the United States Supreme Court when near ninety; or as long as

our beloved Edison, the light of the world and the idol of humanity, who is still active in his

good work at eighty-two.

“If all men would emulate Judge Farrington as a standard, there would be no oppression of

the weak by the strong, nationally or individually, the sorrow and misery resulting from

greed, crime and war would come no more, courts and jails would not be needed, and the��$�� =��


world would be Christianized indeed. Sometime this may come by governments preventing

propagation of the criminally inclined, by the compulsory teaching of all children and youth

to be good and industrious, and by making provision for the destitute and for relief from the

necessity which leads to the commission of crime.

“A pure life filled with labor and love and crowned with honor has passed. Many friends

of the departed not only extend sympathy but feel a personal loss, and join with the widow

and family in mourning. May time soon soften their sorrow, may they feel consolation for

having his devotion and tender care so long, and be comforted by the thought that ‘The pure

in heart shall see God.'”


Gentlemen of the Bar, the Court wishes again to thank you for your expressions of

admiration and affection for Judge Farrington. And in further honor and respect to his

memory this court will now stand adjourned for the balance of the day.

nevada reports 1928-1929 (51 nev.).pdf

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