59 Nev. 1, 1 (1938) REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF NEVADA VOLUME 59 ÐÐÐÐ59 Nev. 1, 1 (1938) Las Vegas v. SchultzÐ Ð Ð CITY OF LAS VEGAS, a Municipal Corporation, Appellant, v. FRED SCHULTZ, Respondent. No. 3230 November 5, 1938 83 P.(2d) 1040. 1. Negligence. Where the gist of an action is negligence, plaintiff need not negative contributory negligence; contributory neglig ence being regarded, generally , as a matter of defense to be pleaded by the defendant. 2. Automobiles. In action against city for injuries sustained by automobile guest when automobile in which guest was riding collided, at night, with load of poles which was left on highway without any warning signal, complaint was not subject to demurrer on ground that it disclosed on its face that guest was guilty ofcontributory negligence or that guest's acts were the proximate cause of injury. 3. Automobiles. In automobile occupant's action against city for injuries resulting from obstruction of street, complaint must show a duty owing from city to occupant, a breach of that duty, that occupant was injured and damaged, and that city's negligence or breach of duty was the proximate cause of the injury or damage. 4. Pleading. In a negligence action, plaintiff is not required to make a detailed and minute statement of the circumstances of the cause of action.
5. Automobiles.In action by automobile guest against city to recover for injuries sustained when automobile in which
guest was riding collided at night with load of poles which had been left on street, allegations that street
was permitted to remain in unsafe condition during the evening and that accident happened during the
nighttime and approximately at the hour of 7:50 p. m. sufficiently alleged that it was dark at time of
collision; the word “dark” ordinarily meaning destitute or partially destitute of light, or wholly or partially
without light.
6. Automobiles.In action by automobile guest against city for injuries sustained when automobile in which guest was
riding collided, at night, with load of poles which had been left on street, complaint which showed that city
had actual notice of the obstruction less than two hours before the accident happened was not, therefore,
fatally defective, as against demurrer, since question whether city, by using ordinary care and diligence,could have removed the obstruction in such period, was one of fact.
7. Automobiles.A claim against city for injuries sustained by automobile guest when automobile in which guest was
riding collided, at night, with load of poles which had been left on street, which claim was filed within six
months of time of accident, was filed in due time as against contention that claim was within ordinance
requiring claims to be presented within two months “after the last item of the account accrues.”
8. Automobiles.Where automobile guest was injured when automobile in which he was riding collided, at night, with load
of poles which had been left on street, fact that street had been a part of state highway system to be
“constructed, repaired, improved and maintained” by state, did not relieve city from liability to guest.
Comp. Laws, secs. 5320-5355; Stats. 1911, c. 132.
9. Automobiles.In action by automobile guest against city to recover for injuries sustained when automobile in which
guest was riding collided, at night, with load of poles which had been left on street, it was not necessary for
guest to allege that he was a guest, how many people were in the automobile, or by whom it was being
driven.
10. Automobiles.In action by automobile guest against city for injuries sustained when automobile in which guest was
riding collided, at night, with load of poles which had been left on street, question whether city, which had
actual notice of obstruction less than two hours before accident, by exercise of reasonable diligence could
have removed obstruction or have warned and protected travelers against collision with it, was one of fact
for the court.
ÐÐÐÐ59 Nev. 1, 3 (1938) Las Vegas v. SchultzÐÐÐÐ
11. Automobiles.In action by automobile guest against city for injuries sustained when automobile in which guest was
(a) That the obstruction was in the congested traffic or business area of said city, but every
allegation tends to the contrary; that the highway was curved or not level, to account for the
obstruction not being seen in time to avoid a collision; that there was anything to distract the
attention of the plaintiff, or anyone in the automobile, from seeing what was ahead and what
the complaint says other motorists did see; who was driving the car in which the plaintiff
rode.(b) Any fact to exculpate respondent from the very strong inference that the proximate
cause of the accident was due to his own neglect. The statement “without any negligence on
his part,” if it does not square with the facts, must be disregarded. Summerfield v. Hines, 45
Nev. 60, 197 p. 690. It is not alleged that it was dark; the word “nighttime” does not
necessarily mean darkness.
(c) Sufficient notice to the city to charge it with negligence.
The trial court erred in sustaining respondent's demurrer to the second affirmative defense
in the answer, pleading the ordinance of the city requiring claims against it to be presented to
its board of city commissioners within two months. Holland v. Cranston, 1 Curt. C. C. 497
(Fed. Cas. No. 6606).
ÐÐÐÐ59 Nev. 1, 5 (1938) Las Vegas v. SchultzÐÐÐÐ
The trial court erred in sustaining respondent's demurrer to the third affirmative defense in
the answer. Where the legislature enjoins upon the state highway department the duty to
construct and maintain highways within the city limits, the city is relieved of any obligation to
maintain them, or liability for failure to maintain them. 29 C. J. p. 673.
The trial court erred in denying appellant's objection to the introduction of evidence whenthe first witness was called and sworn, for the reason that the complaint does not allege that
plaintiff was a guest in the automobile, how many people were in the automobile, nor that
there were others in it.
The trial court erred in denying appellant's second motion for nonsuit, for the reasons:
first, that there was an insufficient showing of negligence on the part of the city; second, even
if the city was negligent, its negligence was not the proximate cause of plaintiff's injuries.
The trial court erred in rendering its decision in favor of the respondent, in denying
appellant's motion for a new trial, and in rendering its judgment in favor of the respondent,
for the reason that the evidence was insufficient to show negligence on the part of the city, or,
if it did so, it also showed contributory negligence on the part of the plaintiff, which was theproximate cause of his injuries.
Roland H. Wiley and Leo A. McNamee, for Respondent.
The numerous cases cited in the footnotes under the topics “Limitations of Rule” and
“Effect of Negativing Contributory Negligence,” under sections 676 and 677, 45 C. J., clearly
indicate, when construed in connection with the complaint in this case, that the first objection
reception of injuries therefrom was sufficiently great to preclude the court from determining
that, as a matter of law, the alleged time was insufficient, citation is made to the following
authorities: 43 C. J. p. 1279, at p. 1281, “Negligence of Defendant in General,” and
“Determination by Court”; Bradford v. Mayor, etc. of Anniston (Ala.), 8 So. 683; Aaronson
v. City of New Haven (Conn.), 110 Atl. 872; Armstrong v. City of Tulsa (Okla.), 226 P. 560;
City of Fort Worth et al. v. Davidson (Tex.), 296 S. W. 288; City of Denver v. Moewes, 60 P.986.
The ordinances of the city of Las Vegas have no application to claims arising ex delicto.
The sections of Nevada statutes applicable to the presentation of tort claims against a
municipality are sections 1259 and 1260 N. C. L.
In Nevada, the common law duty obtains of a city to remove obstacles and encroachments
upon its public streets which materially disturb public user. (Pardini v. City of Reno, 50 Nev.
392, 263 P. 768.) No special statute exists depriving the city of its control over traffic or its
power to remove obstacles from its public streets. And when control is given to a city, it
becomes subject to a civil liability for failure to perform the correlative duty. Wynkoop v.
Mayor, etc. of Hagerstown, 150 Atl. 447; Automatic Signal Adv. Co. v. Babcock, 208 N. W.132; Mayer, etc. of Annapolis v. Stallings, 93 Atl. 974; 47 C. J., sec. 1755; City of Fort
Worth v. Davidson, supra.
The rule in relation to granting or refusing to grant a motion for nonsuit, when applied to
the facts of this case, certainly justified the trial court in overruling defendant's motion for a
nonsuit. Crossman v. Southern Pac. Co., 44 Nev. 286, 194 P. 839; Fox v. Meyers, 29 Nev.
169, 86 P. 793; Burch v. Southern Pac. Co., 32 Nev. 75 , Ann. Cas. 1912b, 1166, 104 P. 225;
Patchen v. Keeley, 19 Nev. 409, 14 P. 347; Brown v. Warren, 16 Nev. 231; Dunlap v. Dunlap
(N. H.), 150 Atl. 905; Rosehill Cemetery Co. v. Chicago (Ill.), 87 A. L. R. 742.
ÐÐÐÐ59 Nev. 1, 7 (1938) Las Vegas v. SchultzÐÐÐÐ
Mere forgetfulness does not necessarily constitute contributory negligence. McQuillan's
About 7:50 o'clock on the evening of July 6, 1934, respondent, plaintiff in the lower court,
while riding with Dave Holland in the latter's automobile on Clark Avenue, in the city of Las
Vegas, was seriously injured when the car collided with a load of poles which had beenabandoned and left on said street about four o'clock in the afternoon of said day. Claiming
that his injuries were the result of the city's negligence, respondent, after the rejection of his
claim for compensation, filed suit in the Eighth judicial district court, Clark County, for
$75,000 damages. After a trial by the court, without a jury, judgment was rendered in favor of
plaintiff and against defendant (appellant) in the sum of $4,743. Defendant's motion for a new
trial was denied, and it has appealed to this court from said order denying a new trial and
from said judgment and all intermediate rulings, proceedings and orders affecting the rights
of defendant and specified by it in the record and bill of exceptions.
In the trial court defendant demurred to plaintiff's fourth amended complaint upon the
ground that if failed to state facts sufficient to constitute a cause of action, and appellant's first
assignment of error on this appeal is the action of the district court in overruling saiddemurrer. Appellant specified the following particulars in which, as it contends, said
complaint is fatally defective: It leaves an inference that the injuries were due to contributory
negligence on the part of plaintiff; it shows that the obstruction was in an outlying district
near the open country highway; it alleges that all of the persons who had passed the
abandoned load of poles SULRUWRWKHDFFLGHQWREVHUYHGWKHVDLGREVWUXFWLRQLWGRHVQRW DOOHJHWKDWDWWKHWLPHWKHDFFLGHQWRFFXUUHGWKHUHZHUHDQ\RWKHUFDUVRUWUDIILFDWWKH SODFHZKHUHLWKDSSHQHGWKHUHLVQRDOOHJDWL RQWKDWWKHKLJKZD\ZDVFXUYHGRUQRWOHYHO RUWKDWWKHUHZDVDQ\WKLQJWRGLVWUDFWWKHDWWHQWLRQRISODLQWLIIRUDQ\RQHLQWKH DXWRPRELOHVRDVWRSUHYHQWWKHLUVHHLQJWKHREVWUXFWLRQVDLGFRPSODLQWGRHVQRWDOOHJH ZKRZDVGULYLQJWKHFDUQRIDFWLVDO OHJHGH[FXOSDWLQJSODLQWLIIIURPWKHLQIHUHQFHWKDW
prior to the accident observed the said obstruction; it does not allege that at the time the
accident occurred, there were any other cars or traffic at the place where it happened; there is
no allegation that the highway was curved or not level, or that there was anything to distract
the attention of plaintiff or any one in the automobile so as to prevent their seeing the
obstruction; said complaint does not allege who was driving the car; no fact is alleged
exculpating plaintiff from the inference that the proximate cause of the accident was due tohis own negligence; it is not alleged that it was dark at the time of the collision, or that it was
cloudy or stormy or raining, or that there was anything to prevent one's seeing the obstruction;
there is no allegation showing why the accident happened; it is not alleged that plaintiff knew
of the custom of the police department and the street department to remove obstructions from
the streets or highways; it is not alleged that plaintiff did not know the obstruction was there;
the complaint shows that it was only one hour and twenty minutes from the time the acting
night chief of police received actual notice of the obstruction, until the accident happened; it
is not alleged whether the superintendent of streets was on or off duty when notified
regarding the obstruction by said acting police chief, at 6:30 p. m.; the complaint is silent as
to whether there was any duty resting upon the superintendent of streets when off duty and at
home, to remove obstructions, but it does show that notice came to him at his home, whichwas one and one-half miles from said obstruction; the complaint shows on its face that, after
notice was given to the city, sufficient time had not elapsed to charge it with negligence.
Following is a summary of those portions of the complaint having some bearing upon
appellant's contention that said complaint does not state facts sufficient to constitute a cause
of action: Clark avenue is the main traveled thoroughfare leading into the city of Las Vegas
from the northern section of Nevada. The frequency RIPRWRUYHKLFOHWUDIILFLVJUHDWO\
of motor vehicle traffic is greatly increased both night and day during the months of June and
July, by reason of the fact that numerous persons living in the more congested area of said
city travel, during those months, to and from Lorenzi's park, a place of amusement and
recreation located within the confines of said city. By the charter and certain ordinances of
said city (specified and identified in said complaint) it was made the duty of its officers andemployees of the street and police departments to remove obstructions from said street at the
place where the accident happened, or otherwise guard against the same as an element of
danger to persons lawfully traveling thereon. During the evening, between sunset and
ordinary bedtime of the 6th day of July, 1934, an obstruction of an unusually dangerous
character, consisting of a wagon or trailer loaded with poles approximately 20 feet in length,
was left to remain on said street, unoccupied and unattended, by some third person, from
about two o'clock p. m. until eight o'clock p. m. of said day, without any lights, signals or
other suitable warning to persons traveling along said street in the nighttime. Among the
many persons who, traveling in motor vehicles in each direction, passed and observed said
obstruction were officers and employees of the police and street department of the defendant
city. At the time of the accident, and for many years prior thereto, it has been the custom and
usage and was the duty of the policemen of said city immediately to remove such obstructions
or appropriately guard the same so as to warn and protect persons traveling along said street,or to report the existence of such obstructions to the chief of police, who would in turn report
to the superintendent of streets; or to report the existence of such obstructions directly to the
superintendent of streets. It had also been the custom and usage of the officers and employees
of the street department, when observing such obstructions on any of the streets and highways
of said city, immediately to remove such obstructions or appropriately guard the same or
report their existence GLUHFWO\WRWKHVXSHULQWHQGHQWRIVWUHHWV
ÐÐÐÐ59 Nev. 1, 10 (1938) Las Vegas v. SchultzÐÐÐÐ
directly to the superintendent of streets. Actual notice of the existence of said obstruction was
given to the acting night chief of police, who communicated knowledge thereof to the
superintendent of streets prior to sunset, to wit, at approximately 6:30 p. m.; whereas the
accident did not occur until about 7:50 p. m. The place where the superintendent of streets
received notice, as aforesaid, was approximately one and one-half miles from the location of
said obstruction. More than a reasonable time elapsed within which defendant city could have
provided, by the exercise of ordinary care and diligence, suitable light signals or used other
proper means to warn and thus prevent accident and injury to persons traveling said street by
motor vehicle in the nighttime, and particularly injuries to plaintiff. During the nighttime of said day, about 7:50 p. m., an automobile in which plaintiff was riding along said street,
without any negligence on his part, collided with said obstruction with the result that plaintiff
sustained serious, painful and permanent injuries (fully described in the complaint). The
negligence of the city was the proximate cause of the injuries and damage sustained by the
plaintiff. In a second count of the complaint it was further alleged that the defendant,
knowing of the existence of said defective obstruction, undertook to eliminate the same and
also elected to place suitable lights as warning signals at or near said obstruction, but failed to
use ordinary care and diligence in so doing. “That this cause of action is based upon the fact
that defendant negligently permitted the same to remain upon said street and negligently
failed to guard against the same as an element of danger after having knowledge of theexistence thereof and after having elected and undertaken to remove the same or guard
against the same; and upon the further reason that Defendant carelessly and negligently
attempted and failed to place at, near, on or about said obstruction red lights or to use other
means properly to warn and protect persons traveling upon said street after knowledge of the
about half an hour before the accident. But we are now concerned with a question of
pleading—the sufficiency or insufficiency of the facts alleged in the complaint to constitute a
cause of action; and the complaint does not allege or show that plaintiff and Holland, or either
of them, passed the obstruction prior to the time of the collision.
6. The contention that the complaint is fatally defective because the city had actual notice
of the obstruction less than two hours before the accident happened requires little discussion.The complaint does not show on its face that the city could not, by the use of ordinary care
and diligence, have removed the obstruction or taken effective means to warn travelers of its
existence. The question, therefore, was one of fact, to be determined by a jury or the trial
court according to all the surrounding facts and circumstances. 43 C. J. 1004, n. 52.
We have considered all the other reasons advanced by appellant in support of its
contention that the complaint does not state facts sufficient to constitute a cause of action, but
find them without merit.
ÐÐÐÐ59 Nev. 1, 13 (1938) Las Vegas v. SchultzÐÐÐÐ
Appellant's second assignment of error is based upon the action of the trial court in
sustaining plaintiff's demurrer to defendant's second affirmative defense, which alleged that
plaintiff had not presented his claim against the city within two months, as required by a
certain section of an ordinance of said city reading as follows: “Every person having a claim
against the city of Las Vegas shall within two months after the last item of the account
accrues, present a demand therefor in writing to the Board of City Commissioners of Las
Vegas, Nevada, against which such claim or demand is held, verified by the affidavit of
himself or agent, stating minutely what the claim is for, and specifying each special item, andthe date and amount thereof.”
Respondent, whose claim against the city was presented within six months from the time
of the accident, contends that the foregoing section was not applicable to his claim, which
was filed within the time prescribed by sec. 1259 N. C. L. 1929, reading as follows: “All
demands and accounts and all claims of whatsoever kind, character or nature, or however the
same may have originated against any incorporated city in this state, must be presented to the
city council of said city, duly authenticated, within six months from the time such demands or
accounts became due or payable, and within six months from the time the acts from which
said claims originated shall happen.”
7. We are satisfied that plaintiff's claim was filed in time. Dawes v. City of Great Falls, 31Mont. 9, 77 P. 309. And see 19 R. C. L. 1042, where it is said: “On the other hand, the use of
the word ‘account' in connection with the requirement of the presentation of claims is
generally held to be an indication that claims arising from a tort were not within the
contemplation of the legislature.”
Appellant's third assignment of error is based upon the action of the trial court in
sustaining plaintiff's demurrer to defendant's third affirmative defense, wherein it is first
alleged that, by virtue of “An Act to SURYLGHDJHQHUDOKLJKZD\ODZIRUWKH6WDWHRI
provide a general highway law for the State of Nevada,” approved March 23, 1917, Statutes
of Nevada 1917, chap. 169, pp. 309-321, secs. 5320-5355 N. C. L. 1929, Clark avenue was
made a part of the state highway system, to wit, route No. 5, and has ever since been a part of
said system. Said third affirmative defense sets forth a copy of a project agreement under the
federal aid road act, 23 U. S. C. A. sec. 1 et seq., and goes on to allege that the state highway
department proceeded to grade, gravel and oil-surface the said highway, and otherwise
improve the same, and ever since the date of the execution of said project agreement “the said
state highway department, to the exclusion of the city of Las Vegas and all others, has
proceeded to construct a first-class highway and improve the same and did proceed to at that
time and has continued ever since to repair and maintain the said highway to the exclusion of
the defendant, with state highway funds. * * *” Sec. 5327, N. C. L. 1929, being sec. 8 of said
general highway law, designates the particular piece of road with which we are concerned in
this case as state highway route No. 5. Sec. 5329, N. C. L. 1929, provides in part that the
highways which are constructed or improved by the department of highways in accordance
with the routes set forth and described in said section (including said route 5) “shall be state
highways and shall be constructed or improved and maintained by the department of
highways * * *.”
Sec. 5335 N. C. L. 1929 reads as follows: “All work of construction and improvement of
the state highways as defined and established under the provisions of this act shall be under
the supervision and direction of the state highway engineer, and shall be performed inaccordance with the plans, specifications, and contracts prepared and executed by him
therefor.”
Sec. 5341 N. C. L. 1929 provides that: “Whenever a road, being a part of the system of
state highways herein created, shall be constructed or improved under the provisions of this
act, the board shall thereafter keep all VXFKURDGVLQUHSDLUDQGWKHWRWDOFRVWRIVXFK PDLQWHQDQFHVKDOOEHSDLGRXWRIWKHVWDWHKLJKZD\IXQG´
ÐÐÐÐ59 Nev. 1, 15 (1938) Las Vegas v. SchultzÐÐÐÐ
such roads in repair and the total cost of such maintenance shall be paid out of the state
highway fund.”
Appellant takes the position that where the legislature enjoins upon the state highway
department the duty to construct and maintain highways within the city limits, the city is
relieved of any obligation to maintain, or liability for failure to maintain; that municipalities
are not liable for defects in highways which it is not their duty to repair, and that the liability
follows the duty to construct, maintain and repair.
Respondent, on the other hand, points out that by virtue of the charter of defendant city
(Statutes of Nevada 1911, chap. 132, pp. 145-183) it was given control of the use of streets,
including said Clark Avenue, power to remove obstructions, regulate traffic thereon and pass
ordinances in relation thereto; that pursuant to said charter and certain city ordinancesadmitted in evidence at the trial, the city created a police and street department, made it a
public offense to leave an obstruction on any street without permission of the board of
commissioners, gave the chief of police authority to order removal of such obstructions,
power to officers of the police department to direct and control traffic, and to make arrests for
violations of traffic regulations, and generally to regulate and control the use of streets of the
city of Las Vegas. Respondent further points out that warning signals (flares) were in fact
maintained by the street department for use at obstructions of this kind. Respondent contends
that the ordinary “duty-creating” intent of the words “construct, improve and maintain” is not
such as to relieve a municipality of its common law duty to keep its public streets in a
condition safe for ordinary travel, especially with reference to the removal of an obstruction
upon the surface thereof, which is an obstruction relating to traffic regulation and control, andthe power to remove which is vested in the municipality by its charter. In cases of this kind,
argues respondent, there exists correlative duty that is coextensive with the right and power of
control. “In other ZRUGVZKHQFRQWUROLVJLYHQWRDFLW\LWEHFRPHVVXEMHFWWRDFLYLO
OLDELOLW\IRUIDLOXUHWRSHUIRUPWKHFRUUHODWLYHGXW\´
ÐÐÐÐ59 Nev. 1, 16 (1938) Las Vegas v. SchultzÐÐÐÐ
words, when control is given to a city, it becomes subject to a civil liability for failure to
perform the correlative duty.”
8. Appellant cites ten cases to support the proposition that where the legislature enjoins
upon the state highway department the duty to construct and maintain highways within the
city limits, the city is relieved of any obligation to maintain or liability for failure to maintain;
but not one of said cases involved a temporary movable obstruction left by a third party on
the surface of a street or highway, and in no way a part of, attached to or connected therewith.
Removing, guarding, or placing warning lights or signals at or near such an obstruction as a
load of poles left on a highway by a third person does not, in our opinion, constitute
constructing, repairing, improving or maintaining a highway within the meaning of those
words as used in the Nevada highway statutes cited by appellant. In the instant case the city
was empowered, and it was its duty, to remove the load of poles, or to guard, or place
warning lights or signals at or near it, for the purpose of preventing accidents and injuries.
9. Much of what has been said in connection with the first assignment of error is
applicable to appellant's fourth assignment, based on the lower court's overruling of
defendant's objection to the introduction of any evidence when plaintiff's first witness was
called and sworn. Appellant stresses the fact that the complaint does not allege that plaintiff
was a guest, how many people were in the automobile, whether there were others in it, or by
whom it was being driven. No authorities have been cited, and we know of none, holding that
any of such allegations is essential to the statement of a cause of action in a case of this kind.
Appellant contends (assignment X) that the district court erred in denying its second
motion for nonsuit. Two reasons are advanced: First, that the evidence showed there was
insufficient time between notice of the obstruction and the collision to charge the city withQHJOLJHQFHVHFRQGWKDWHYHQLIWKHFLW\ZDVQHJOLJHQWLWVQHJOLJHQFHZDVQRWWKH
SUR[LPDWHFDXVHRISODLQWLIIVLQMXULHV
ÐÐÐÐ59 Nev. 1, 17 (1938) Las Vegas v. SchultzÐÐÐÐ
negligence; second, that even if the city was negligent, its negligence was not the proximate
cause of plaintiff's injuries.
10. There was substantial evidence tending to show constructive notice, and positivetestimony showing actual notice to the city at least one hour and three quarters before the
accident happened. The obstacle, so dangerous that even a private citizen reported its
existence to the police upon his return from swimming at Lorenzi's place, was within the city
limits. It is clear the trial court could not say, as a matter of law, that the city could not, by the
exercise of ordinary and reasonable diligence, have either removed the obstruction or taken
appropriate means to warn and protect travelers against collision with it.
On the question of proximate cause, appellant directs attention to Dave Holland's
testimony that he was driving ten or fifteen miles an hour; that he and plaintiff must have
passed the obstruction about 7:00 or 7:30 o'clock that evening, on their way from town to
Lorenzi's; that before the accident he, Holland, had probably taken a coupe of glasses of beer—that he and plaintiff may have had a couple of drinks together that afternoon; that he
could have seen the silhouette of the load of poles if he had been looking, but that he was
watching an approaching car; that he knew the load of poles was there when he went out to
Lorenzi's earlier in the evening; that plaintiff did not warn him that he was in proximity with
said obstruction; that plaintiff did not say anything to him about exercising care; that plaintiff
was not asleep at the time, and was, so far as he knew, in full possession of his faculties; that
he, Holland, could have seen the poles if he had been watching his right of way.
It should be added that Mr. Holland also testified the lights were lit on the car that was
coming toward him, as well as his own car; that he was slowing up, driving slow, when he
was meeting the other car; that he did not see the poles just before the collision; that he wasGULYLQJYHU\VORZWKDWZKHQKHILUVWVDZWKHOLJKWVRIWKHRWKHUFDUKHZRXOGVD\LWZDVRQ WKHIDUVLGHRIWKHORDGRISROHVWKDWWKHRWKHUFDUPLJKWKDYHEHHQDKXQGUHGIHHWDZD\ ZKHQKHILUVWVDZLWVOLJKWVWKDWKHVORZHGGRZQKLVVSHHGDWWKDWWLPHWKDWWKHOLJ KWVRQ WKHRWKHUFDUILQDOO\JRWWRWKHSRLQWZKHUHKHFRXOGQWVHHZKDWZDVLQIURQWRIKLPWKDW KHGLGQRWVWRSKLVFDU²WKHORDGRISROHVVWRSSHGLWWKDWLWZDVQRWQHFHVVDU\IRUSODLQWLII WRFDOOKLVDWWHQWLRQWRWKHIDFWWKDWWKHUHZDVDORDGRISROH VWKHUHDQGWKDWSHUKDSVLW PLJKWEHZHOOWRSURFHHGFDXWLRXVO\EHFDXVHKHZDVSURFHHGLQJYHU\FDXWLRXVO\WKDWKH ZDVGULYLQJRQKLVVLGHRIWKHKLJKZD\WKDWWKHUHDVRQWKHORDGRISROHVZDVQRW GLVFHUQLEOHPLJKWKDYHEHHQEHFDXVHRIWKHOLJKWVRIWKHR QFRPLQJFDU²WKH\PLJKWKDYH
driving very slow; that when he first saw the lights of the other car he would say it was on the
far side of the load of poles; that the other car might have been a hundred feet away when he
first saw its lights; that he slowed down his speed at that time; that the lights on the other car
finally got to the point where he couldn't see what was in front of him; that he did not stop his
car—the load of poles stopped it; that it was not necessary for plaintiff to call his attention to
the fact that there was a load of poles there and that perhaps it might be well to proceed
cautiously, because he was proceeding very cautiously; that he was driving on his side of the
highway; that the reason the load of poles was not discernible might have been because of the
lights of the oncoming car—they might have been straight ahead, so they wouldn't hit the
load of poles at all; that when he drives at night, he certainly does watch the lights of
oncoming cars; that he does not like to drive at night, on account of what might be in the road
on approaching lights on the other cars; that he was watching the approaching car and not the
road; that he knew there had been a load of poles on the highway, and that he had not been
told, nor did he know, whether they had been removed.
Homer E. Grove, who was a deputy sheriff of Clark County at the time of the accident,
testified that on the evening of July 6, after dinner and before the accident happened, he had acall requiring him to go out on Clark avenue; that in doing so, he drove past the load of poles;
that it was some time near 8:00 o'clock, but it was after dusk and he had his lights on; that
there was no one at the wagon at the time he passed it; that there were no lights on the wagon;
that just before he reached the point where he could see the wagon load of poles in the range
of his lights, another car with lights on came toward him and he saw that car pull over to his
right; that he did not know just what to do until he started to pull over to his left, and then he
saw the load of poles; that he stopped and let the other car go by, RWKHUZLVHWKH\ZRXOGKDYH KDGDQDFFLGHQWWKDWKHZDVULJKWXSDJDLQVWWKHREVWUXFWLRQZKHQKHVWRSSHGWKDWKH ZDVLQTXLWHDKXUU\DQGWKHUHDVRQKHVWRSSHGZDVGXHWRWKHRWKHUOLJKWV²KHFRXOG QW
H[DFWO\VHHZKDWZDVJRLQJRQWKHUH
ÐÐÐÐ59 Nev. 1, 19 (1938) Las Vegas v. SchultzÐÐÐÐ
otherwise they would have had an accident; that he was right up against the obstruction when
he stopped; that he was in quite a hurry, and the reason he stopped was due to the other
lights—he couldn't exactly see what was going on there.
11. The trial court's ruling denying defendant's second motion for a nonsuit was correct.
McQuillin, Municipal Corporations, vol. 7, p. 268, n. 38; pp. 272, 273, n. 54, secs. 3014,
3015, 3017, 3031; 29 C. J. p. 704, nn. 83, 84; 43 C. J. pp. 1281, 1282, 1285, 1286, 1287,
1288, 1289.Assignments XI, XII and XIII may be considered together. They are, respectively, that the
lower court erred: In rendering its decision in favor of plaintiff; in denying defendant's motion
for a new trial, based on the ground, among others, of insufficiency of the evidence to justify
the decision of the court; and in rendering its judgment in favor of plaintiff. In view of what
has already been said in this opinion, the two main questions remaining to be discussed in
connection with the three assignments last mentioned are: First, whether, under all the
evidence, defendant had sufficient notice of the obstruction to enable it, by the exercise of
ordinary diligence, to either remove the obstruction, or take proper measures to warn travelers
of its presence; second, whether plaintiff was guilty of contributory negligence, and if so,
whether such negligence was a proximate cause of his injuries.
The conclusion of the trial court that defendant was negligent in failing either to removethe obstacle or to warn travelers of the danger, was clearly correct. Entirely aside from any
considerations of constructive notice, the evidence shows that the city had ample actual
notice. Motorcycle Officer Ward notified the superintendent of streets, at or a little before six
o'clock, that the load of poles was in the street, and where it was. C. L. Ronnow, immediately
after reaching his residence upon returning from a trip to Lorenzi's, and not later than 7:05
o'clock, informed the police station that the REVWUXFWLRQZDVRQWKHKLJKZD\DQGWKDWLW
ORRNHGGDQJHURXV
ÐÐÐÐ59 Nev. 1, 20 (1938) Las Vegas v. SchultzÐÐÐÐ
obstruction was on the highway, and that it looked dangerous. Shortly after receiving this
information, Assistant Chief of Police Mackey radioed two officers in car 1 to investigate.
Not later than 7:20 o'clock they returned and reported that they could not remove the
obstruction, and that some lights had better be placed there. Mackey, not later than 7:20
o'clock, telephoned to the superintendent of streets, then radioed car 1 to watch the road, as
“lights were coming over.” These instructions were not carried out, so the obstruction
remained without lights or other warnings until the accident happened—after which the flares
arrived. The record fails to disclose any good excuse for failing, in some effective manner, to
warn travelers pending the arrival of the flares.
We have now to consider whether plaintiff was guilty of contributory negligence.
Appellate points out that Schultz and Holland had been drinking and contends that
defendant's exhibits (photographs of Holland's car after the accident) show that when the
collision occurred, the car was traveling faster than Holland says it was. The city further
contends that contributory negligence is shown by Holland's testimony that he could have
seen the load of poles if he had been looking straight ahead instead of at the lights of a car
approaching from the opposite direction. Furthermore, argues appellant, Holland admits that
he and plaintiff must have seen the obstruction when they were on their way from the
business section of the city to Lorenzi's less than an hour before the accident occurred. Much
stress is laid upon the fact that plaintiff, according to his own testimony, could remember
nothing from between eleven and twelve o'clock on the morning of July 6 and the timeconsciousness returned to him in the hospital. Another circumstance to be considered,
according to appellant, is the fact, as it claims, that Holland asked to be taken back to
Lorenzi's, where he lived, rather than to a hospital.
12. The district court found as a fact that plaintiff, DWWKHWLPHRIWKHDFFLGHQWZDVQRWVR
at the time of the accident, was not so intoxicated that he otherwise could and should have
seen the load of poles. Holland denies that he asked to be taken back to Lorenzi's after the
accident. He testified that at this time, when Mrs. Bernstein testifies he did make such a
request, he was irrational, though conscious. He testified further that he did not at that time
know who took him back to Lorenzi's. Dr. Balcom testified that plaintiff's injuries could be
the cause of loss of memory. He described the injuries as follows: “He had a large scalp
laceration extending from about the left eyebrow back in to the scalp, this laceration being in
the neighborhood of six inches long. This laceration made a sort of a flap that could be turned
down somewhat, and when it was it exposed the skull, and the skull had multiple fractures
which were depressed, or the bones sank down into the brain tissue and permitted some of thebrain tissue to exude or look out through between the fragments of the bones.” No one
testified that either Schultz or Holland was intoxicated, or that either of them showed any
signs of intoxication. From the record it is plain that we would not be justified in setting aside
the lower court's finding as to Schultz; nor can we say that the testimony shows Holland to
have been under the influence of liquor.
13. The photographs of the car, taken after the accident, indicate that it may not have been
going very slow, as testified by Holland, its owner and driver. But these exhibits alone are not
sufficient to authorize this court to say that the car was being driven at an unreasonable speed.
This was a question of fact for the trial court, which found that plaintiff did not fail or omit to
exercise ordinary care for his own safety and security. Holland testified that he slowed up tomeet the oncoming car, and that he was going very slow when the collision took place. The
poles were of irregular length, extended many feet back from the wagon or trailer. If the
record showed clearly that the car was going at an unreasonable speed, there would be good
ground for concluding WKDWWKHUHZDVFRQWULEXWRU\QHJOLJHQFH
that there was contributory negligence. Brown & Root v. Duncan, Tex. Civ. App., 40 S. W.
(2d) 244.
Holland's testimony that he could have seen the obstruction if he had been looking straightahead is simply a circumstance to be considered with all the other evidence as bearing on the
question whether he was exercising the care of a reasonable man under all the circumstances.
A careful driver will watch the lights on an oncoming car as well as the road directly in front
of his own car. It would certainly be dangerous to watch either, to the exclusion of the other.
In a recent case in Kansas the fact that plaintiff was looking intently only at the ground
immediately in front of his car was considered by the supreme court as a circumstance
tending to show contributory negligence. Parsons v. State Highway Commission, 146 Kan.
476, 72 P.(2d) 75.
In West v. Marion County, 95 Or. 529, 188 P. 184, the approach to a culvert was a
defective fill. “It was fair time, and the plaintiff was driving on the road from Oregon Citytoward Salem. It was dark, and when the plaintiff reached the fill in question, he met a
number of automobiles coming from the fair. Several of these had their lights lit, and one in
particular did not dim its lights, and the reflection in plaintiff 's eyes blinded him so he could
not see the road. Under these conditions he got too far to the right, and his car ran off the
grade and down the bank, causing the injuries complained of.” [Page 185.] In this case, a
judgment of the circuit court in favor of plaintiff was affirmed.
14. The fact that at the moment of the collision the driver was watching the lights of the
oncoming car is but a circumstance to be weighed by the trial court, along with all the other
evidence, in determining whether Holland was acting as a reasonable man would act in like
circumstances.
15. The testimony indicates that plaintiff and Holland may have forgotten, at leastmomentarily, the obstruction which they “must have seen” less than an KRXUEHIRUH
ÐÐÐÐ59 Nev. 1, 23 (1938) Las Vegas v. SchultzÐÐÐÐ
hour before. But this again is only a circumstance for the consideration of the trier of facts. As
was said in Meindersee v. Meyers, 188 Cal. 498, 205 p. 1078, 1081: “Furthermore, even
forgetfulness of a known danger will not always operate to prevent such recovery for to forgetis not negligence unless it shows a want of ordinary care. Generally the question is one for the
jury * * *.” And see George v. City of Malden, 274 Mass. 606, 175 N. E. 53; Robinson v.
City of Alexandria, La. App., 174 So. 681. It is also to be borne in mind that plaintiff and
Holland could not be expected to assume that the city would leave such a perilous obstruction
on the highway without taking effective measures to warn and protect travelers, especially at
The rule that a guest in a vehicle is not barred from recovery for harm resulting from the
negligence of a third person by the contributory negligence of his host (Restatement of the
Law, Torts, vol. 2, sec. 490) need not be invoked in the instant case, as the record does not
show that Holland was guilty of contributory negligence.
16. Except where plaintiff's own evidence shows him guilty of contributory negligence,
the burden of proving it is upon the defendant. And a presumption of ordinary care weighs inhis favor. Lambert v. Emise, 120 N. J. L. 164, 199 A. 44.
Assignments V, VI, VII, VIII and IX have each received the careful consideration of the
court, but none of them, in our opinion, is of sufficient merit to require any discussion.
We think the district court reached the correct result in this case, and finding no error in
the record, the judgment and order appealed from are affirmed.
____________
ÐÐÐÐ
59 Nev. 24, 24 (1938) State v. LoganÐÐÐÐ
THE STATE OF NEVADA, Respondent, v.
RAYMOND W. LOGAN, Appellant.
No. 3236
November 5, 1938. 83 P.(2d) 1035.
1. Criminal Law.
Defendant, not having requested that testimony given at preliminary examination be taken down inwriting, could not complain of committing magistrate's failure to do so. Comp. Laws, sec. 10775, as
amended by Stats. 1933, c. 101.
2. Poisons.Information, charging that defendant knew that name of person for whom drug was prescribed and name
of prescribing physician were fraudulent and placed on prescription by forgery, sufficiently charged
defendant with fraud so as to sustain conviction of attempt to obtain narcotic drugs by fraud. Stats. 1937, c.
23, sec. 17; Comp. Laws, sec. 10858.
3. Poisons.Information, alleging forged prescription was presented to drug store by defendant, was sufficient to
sustain conviction of attempt to obtain narcotic drugs by fraud without alleging ownership or possession of
drugs in some person, as offense charged did not involve attempt to injure anyone in respect to obtaining or
converting property. Stats. 1937, c. 23, sec. 17.4. Poisons.
Evidence that defendant together with companion took blank prescription from physician's office, that
defendant's companion completed blank prescription to call for narcotic drug, and that both men went to
drug store to have prescription filled, was sufficient to sustain conviction of defendant as a principal, of
attempt to obtain narcotic drugs by fraud. Stats. 1937, c. 23, sec. 17; Comp. Laws, sec. 9958.
5. Poisons.Evidence that defendant handed prescription calling for narcotic drug to druggist, and asked how much it
would cost to have filled, was sufficient to constitute attempt to obtain narcotic drugs by fraud. Stats. 1937,
6. Criminal Law.Refusal to grant instruction requested by defendant that reasonable doubt may be created by failure of
state to prove essential item of case was not error, where principle was substantially covered in other
instructions given by court.
7. Criminal Law.In prosecution for attempt to obtain narcotic drugs by fraud, refusal of instruction requested by defendant
that jury should acquit defendant if there was reasonable doubt as to whether he requested that prescription
be filled was not error, as it was substantially covered in other instructions given by court.
ÐÐÐÐ59 Nev. 24, 25 (1938) State v. LoganÐÐÐÐ
8. Criminal Law.Where court properly refused requested instruction of defendant because its substance had been given in
other instructions, that court gave different reason for refusing instruction did not deprive defendant of any
substantial right.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler , Judge.
Raymond W. Logan was convicted of attempting to obtain narcotic drugs by fraud, and he
appeals. Affirmed.
Harlan L. Heward , for Appellant:
We submit that the proviso attached to the second sentence in section 10775 N. C. L.
clearly indicates the intent of the legislature that the testimony taken at preliminary
examinations must be taken down in some manner. The court will observe the use of the
mandatory words “must be filed” in reference to “such testimony so reduced to writing,” etc.
By failure to take down the testimony, a defendant is deprived of a substantial right, for the
reason that he cannot have it available on a habeas corpus proceeding.
The information is fatally defective in two respects: (1) it contains no allegation as to what
part of the alleged prescription was filled out or completed by the defendant; (2) it contains
no allegation that the alleged prescription was false or fraudulent, and no allegation that the
names therein were false or fraudulent. Under the uniform holdings of this court, where the
crime charged is an attempt, as in this case, it is not sufficient to allege the crime in the words
of the statute, but the particulars constituting the attempt must be specifically set forth. State
v. Brannan, 3 Nev. 238; State v. Lung, 21 Nev. 209, 215, 29 P. 235; State v. Dawson, 45 Nev.255, 201 P. 549. The failure to allege the fraudulent nature of the signature would seem to
present a fatal defect. People v. Logan, 1 Nev. 110; People v. Reynolds (Mich.), 38 N. W.
923; State v. Bradley (La.), 80 So. 657; Moore v. State (Tex.), 197 S. W. 728.
The information is fatally defective in that it contains no allegation that the prescription
was presented to any person, corporation or entity capable of response or action. State v.
Parsons, 169 P. 475; Phelps v. State, 219 P. 589.
The proof on the part of the State was not sufficient to establish the corpus delicti or towarrant the conviction, or sufficient to sustain the judgment.
Gray Mashburn, Attorney-General; W. T. Mathews and Allan Bible, Deputy
Attorneys-General; Ernest S. Brown, District Attorney; and Nash P. Morgan, Assistant
District Attorney, for the State:
The general rule seems to be that unless required by statute the justice of the peace need
not commit the evidence taken at the preliminary examination to writing. 16 C. J. sec. 588.
We submit that our statute, sec. 10775 N. C. L., does not require the testimony and
proceedings to be reduced to writing, but leaves it to the discretion of the justice, unless one
of the parties requests that it be done. People v. Williams (Cal.), 19 P.(2d) 38; State v. Davis,14 Nev. 411, State v. Holt, 47 Nev. 233, 219 P. 557.
The general rule in this state, we believe, is that an information conforming to the general
wording of the statute defining the crime is sufficient, unless the information fails to state all
the elements of such crime. State v. Dawson, 45 Nev. 255, 201 P. 549. The crime here
charged is different from cheating or defrauding, as it is made a felony by the uniform
narcotic act to obtain the narcotics, not the defrauding of the drug store, or the conversion of
anyone's property. We contend that the information shows an attempted crime, under the
definition of an attempt; it alleges separate overt acts.
In law, it makes no difference whether the defendant did the filling out or writing of the
prescription, as he was proceeded against as a principal. Sec. 9958 N. C. L.
We submit that the circumstances as demonstrated EH\RQGDUHDVRQDEOHGRXEWE\WKH
beyond a reasonable doubt by the proof in this case, disclose that the defendant did attempt to
obtain narcotic drugs.
We contend that no prejudicial error could have been committed by the court even if therequested instructions, refusal of which is complained of, were correct statements of the law,
as they were essentially covered by instructions given.
OPINION
By the Court, Ducker, J.:
The appellant was convicted of the crime of attempting to obtain narcotic drugs by fraud.
His appeal is from the judgment and order denying his motion for a new trial. It purports also
to be from an order of the court denying his motion to quash and set aside the information,
and from an order denying his motion in arrest of judgment. The charging part of the
information is as follows:
“That said defendant on the 30th day of March, A. D. 1938, or thereabouts, and before the
filing of this information, at and within the County of Washoe, State of Nevada, did then andthere wilfully, unlawfully and feloniously attempt to obtain a narcotic drug, to wit, morphine,
by fraud, deceit, misrepresentation and subterfuge in this: That on the 30th day of March,
1938, the said defendant did unlawfully obtain a prescription blank from the office of Donald
Maclean, M.D., in Reno, Washoe County, Nevada, and did complete and fill out said
prescription blank as follows:
“‘Donald Maclean, M.D.
“‘605-606 Medico-Dental Building,
“‘Reno, Nevada,
“‘Res. Phone 3735 Office Phone 5701
“‘For Mrs. B. O. Lane
“‘Address 623 California St.“‘R. Morph Sulph gr V (1/4 gr. hyp) ³µ1XUVHLQDWWHQGDQFHZLOODGPLQLVWHUDVSUHVFULEHG
RQHWDEHYHU\IRXUKRXUVLQFDVHRIH[FHVVLYHSDLQ
ÐÐÐÐ59 Nev. 24, 28 (1938) State v. LoganÐÐÐÐ
“‘Nurse in attendance will administer as prescribed one tab. every four (4) hours in case of
excessive pain.“‘For colitis
“‘D. Maclean, M.D.
“‘Date 3-30-38. Reg. No. 4207.
“‘Take this to Hilp's Drug Store
“‘127 N. Virginia St.
“‘Prescription Specialists
“‘Phone 6104.'
“That the defendant did then and there know at that time that the name, ‘Mrs. B. O. Lane,
623 California Avenue' and the name ‘D. Maclean' were fraudulent and placed on said
prescription was a forgery, that the said defendant did then and there on the said day
unlawfully, wilfully, and feloniously present said prescription to Hilp's Drug Store in Reno,
Washoe County, Nevada, and requested said Hilp's Drug Store in Reno, Washoe County,
Nevada, at said time to fill said prescription but that said prescription was not filled by reason
of the fact of said Drug Store discovering said fraud and misrepresentation aforesaid and had
the said defendant arrested.”
1. The first error assigned is the order of the court denying appellant's motion that a
preliminary examination be had. This motion was made and denied at the time appellant
appeared to answer the information. The time for entering his plea was continued to the
following day on which the same motion was included in a motion to set aside, quash and
dismiss the information. Both were denied. It is not contended that a preliminary examination
was in fact denied appellant, but that because the committing magistrate did not require the
testimony given to be taken down in writing, or employ a stenographer to take down all the
testimony and proceedings and to make a true and correct transcript of the same intolonghand or typewritten manuscript, there was no legal preliminary examination. The VWDWXWH
statute relied on as requiring such procedure at a preliminary examination is section 10775,
Nevada Compiled Laws, as amended by Statutes of 1933, p. 126, c. 101. In part it reads:“The witnesses must be examined in the presence of the defendant, and may be
cross-examined in his behalf. If either party so desires, the examination must be by
interrogatories direct and cross; provided, by consent of the parties the testimony may be
reduced to writing in narrative form. The magistrate, if he deem it necessary for the best
interests of justice, and upon the approval of the district attorney, is authorized to employ a
stenographer to take down all the testimony and the proceedings on said hearing or
examination, and within such time as the court may designate have the same transcribed into
long hand or typewritten transcript. The stenographer employed as aforesaid shall be sworn
by the magistrate before whom such proceedings are held to take down in shorthand,
verbatim, truthfully and correctly such proceedings and testimony, and to make a true andcorrect transcript of the same into long hand or typewritten transcript. When the testimony of
each witness is all taken and transcribed, the same must be read over to the witness and
corrected as may be desired, and then subscribed by the witness; or if he refuses to sign it, the
fact of such refusal, and any reasons assigned therefor must be stated, and the same must be
attested by the magistrate. And such testimony so reduced to writing and authenticated
according to the provisions of this section must be filed by the examining magistrate with the
clerk of the district court of his county, and in case such prisoner is subsequently examined
upon a writ of habeas corpus, such testimony must be considered as given before such judge
or court. The testimony so taken may be used by either party on the trial of the cause, and in
all proceedings therein, when the witness is sick, out of the state, dead, or when his personal
attendance cannot be had in court. * * *” 7KHUHZDVQRUHTXHVWE\DSSHOODQWWKDWWKH
alleged to have been embezzled, in some person, corporation or entity capable of owning the
same, are out of point.
4, 5. Appellant contends that proof on the part of the state was not sufficient to sustain the
judgment. this contention is based partly on the fact that while the information charges that he
completed and filled out the prescription, the proof shows that another performed these acts.
As to this the evidence shows that appellant and a person unknown took a blank prescriptionfrom the office of Dr. Maclean in Reno and then both went to a barroom in that city where
appellant's companion, in his presence, completed the blank prescription and both men went
to Hilp's Drug Store. The appellant went into the store and after asking how much it would
cost to have the prescription filled, left it with the clerk and departed. He returned a short time
after and was arrested. The evidence tends to prove him to have been concerned as a principal
in the acts charged as an offense. Section 9958 N. C. L. The judgment is therefore not
unsupported by the evidence in this UHVSHFW
ÐÐÐÐ59 Nev. 24, 32 (1938) State v. LoganÐÐÐÐ
respect. It is also claimed to find no support in the evidence because it falls short of proving
an attempt to secure narcotic drugs. This contention is that, while the information charges
appellant of having “requested said Hilp's Drug Store in Reno, Washoe County, Nevada, at
said time, to fill said prescription,” the proof shows that he did nothing more than to ask for
the price of filling it. The drug clerk testified that appellant came into the store with the
prescription, handed it to him “and wanted to know how much it would cost to have this
filed.” On cross-examination the following was elicited:
“Q. But as a matter of fact, the defendant in this case never at any time asked you to fill theprescription? A. Asked me how much it would be to have it f illed.
“Q. But my point is, he did not say, ‘Will you fill it?' or anything of that character? A. No,
sir.”
The appellant admitted to the arresting officer that he had been using morphine or
narcotics for quite awhile. That officer also testified: “I presented Mr. Logan with his
prescription and asked him what he could tell me about it. And he told me that another man
had given it to him and that he was trying to cash it or get it filled for this other gentleman.”
We think this evidence in connection with the manner in which the prescription blank was
taken from the doctor's office and filled out, was sufficient to prove the attempt.
All of his acts and admissions speak as loudly of an attempt as if he had made a directrequest that the prescription be filled.
We find no error in the rulings of the court in the admission of evidence complained of by
appellant.
6. It is contended that the court erred in refusing to give the following instruction offered
by appellant. “The court instructs the jury that a reasonable doubt may be created by the
failure on the part of the state to prove an essential item of its case.”
We think the instruction correctly states the law, but WKHUHZDVQRHUURULQUHIXVLQJLW
The italicizing in the second instruction above is ours and indicates how in connection
with the first instruction above the trial court told the jury that it is essential to prove the
request beyond a reasonable doubt, the information having alleged it. The appellant therefore
has no ground of complaint in the refusal of his offered instruction. The court gave a different
reason for refusing the instruction complained of than that its substance was covered in
another instruction given by the court, and appellant seeks to make a point out of this, relyingon State v. Ferguson, 9 Nev. 106. The court said: “If an instruction is refused because its
substance has been given by the court, that fact should be stated and noted on the instruction,
otherwise it might be such an error as to deprive the defendant of a substantial right.”
The substance of the instruction which had been refused in that case had been correctly
given by the court in another instruction, still the refusal was not held to be erroneous. The
court merely pointed out what it deemed proper practice in such a case to prevent what might
result in depriving a defendant of a substantial right.
8. Counsel for appellant has not directed our attention to an injury of that kind resulting
from such an omission, and we have discovered none. Moreover, under the present practice
of settling instructions the jury does not know what instructions are refused, consequently a
defendant could not in any event be deprived of a substantial right if an instruction is refusedbecause LWVVXEVWDQFHKDVEHHQJLYHQE\WKHFRXUWDQGWKHIDFWLVQRWQRWHGRQWKH LQVWUXFWLRQ
ÐÐÐÐ59 Nev. 24, 36 (1938) State v. LoganÐÐÐÐ
its substance has been given by the court and the fact is not noted on the instruction. Nor is it
discernible how prejudice could arise if the court in such a case assign a wrong reason for therefusal.
It is ordered that the judgment and order denying the motion for a new trial be and they are
hereby affirmed.
____________
ÐÐÐÐ59 Nev. 36, 36 (1938) Conklin v. BuckinghamÐÐÐÐ
STATE OF NEVADA, On the Relation of N. E. CONKLIN, Petitioner, v.
D. M. BUCKINGHAM, County Clerk of the County of Mineral,
ÐÐÐÐ59 Nev. 36, 38 (1938) Conklin v. BuckinghamÐÐÐÐ
Fifth judicial district court of the State of Nevada in and for the county of Nye, of an offense
involving moral turpitude on the 23d day of June 1938. Petitioner was and is the attorney for
the county in the above-named action and was served with a notice of appeal from denial of a
new trial and from the judgment, on said 23d day of June, and since said service nothingfurther has been done regarding said appeal.
Petitioner has demanded of respondent that he refrain from placing the name of said Wood
upon the ballot to be voted in the coming election, and he refuses to so refrain unless
prohibited from doing so by an order of court. Copies of the verdict of conviction together
with copies of the information and judgment of the court are made a part of the petition, and
in connection therewith it is alleged that certified copies of the same have been filed with the
clerk of this court, and ipso facto, said Wood was suspended from the practice of law in this
state, and is ineligible as a candidate for said office of district attorney.
The said information contained three counts. Wood was convicted on the third count of the
information, which is in words and figures, as follow: “That the defendant, Fred L. Wood, onor about the fifth day of October, 1933, and prior to the filing of this information, at the
County of Mineral, State of Nevada, he, the defendant Wood, being then and there, and at all
of the times herein mentioned, a public officer, to-wit: The duly elected, qualified and acting
district attorney in and for the County of Mineral, State of Nevada, was guilty of, and did
neglect the duties imposed upon him as such officer, in this: That said Wood, as such officer
did receive and have in his possession and custody the sum of Two Hundred and Seventy
Three and 41/100 dollars, paid unto him by the Tonopah and Goldfield Railroad Company, as
a portion resulting from a compromise of delinquent taxes due and owing from said company
to the County of Mineral, State of Nevada, and which moneys were then and there the
property of DQGZDVGXHDQGSD\DEOHXQWRVDLG&RXQW\RI0LQHUDO
ÐÐÐÐ59 Nev. 36, 39 (1938) Conklin v. BuckinghamÐÐÐÐ
and was due and payable unto said County of Mineral. That on, or about the fifth day of
October, 1933, said Wood was then and there guilty of neglect of duty in that he failed and
neglected to pay the aforesaid moneys into the treasury of the County of Mineral, State of
Nevada, and the said moneys being then and there moneys and property of said County, and it
being his duty to pay over the same as aforesaid. Said acts and offense were committed in a
secret manner, and remained such secret until on, or about the ninth of July, 1937, and prior
to the filing of this information, at which time your informant first discovered the offense.“Informant states that the offense set out in Counts one, two and three herein, grew out of,
arose from, and emanated from the same state of facts and offense, and at the same time.
“All offenses set out herein are contrary to the form, force and effect of the statutes in such
cases made and provided, and against the peace and dignity of the State of Nevada.
“Gray Mashburn, Attorney General of the
State of Nevada,
“By, N. E. Conklin, Deputy Attorney
General.”
The judgment pronounced upon the verdict of conviction is as follows: “As the court has
informed you, you now stand convicted before this court of the crime of a misdemeanor as
just announced by the court, and there appearing to me no legal cause why judgment andsentence should not be pronounced, it will be the judgment and sentence of this court, that for
the offense for which you now stand convicted, that you be fined in the sum of five hundred
dollars, and it is further ordered that in the event the fine is not paid, that you will be
committed to the custody of the sheriff of this county to be imprisoned in the county jail of
Nye County, Nevada, at the rate of two dollars per day, until the fine is paid; and it is further
the judgment and order of this court WKDWE\UHDVRQRIWKHFULPHIRUZKLFK\RXQRZVWDQG
supreme court a certified copy of the record of conviction. And upon such judgment of
conviction being entered, all rights of such attorney to practice as such shall ipso facto be
suspended until such judgment either becomes final or is reversed or otherwise set aside.”
The latter section provides, in part: “No person shall be eligible to the office of district
attorney unless he shall, at the time of his election, be a bona fide resident of the State of
Nevada, and duly licensed and admitted to practice law in all the courts of this state.”1. The contention may not be maintained. The defendant in said action, Fred L. Wood,
was not convicted of an offense involving moral turpitude. Consequently, the entering of the
judgment could not operate under said section 605, or otherwise, to suspend his rights to
practice as an attorney. This being so, he ZDVQRWUHQGHUHGLQHOLJLEOHWRWKHRIILFHRIGLVWULFW
ÐÐÐÐ59 Nev. 36, 41 (1938) Conklin v. BuckinghamÐÐÐÐ
was not rendered ineligible to the office of district attorney of said Mineral County by said
section 2071, or otherwise. He was duly licensed and admitted to practice law in all the courts
of this state.
2. 2 Bouv. Law Dict., Rawle's Third Revision, p. 2247, defines the term “moral turpitude”
as follows: “An act of baseness, vileness, or depravity in the private and social duties which a
man owes to his fellowmen or to society in general contrary to the accepted rule of right and
duty between man and man.”
This is stated in Drazen v. New Haven Taxicab Co., 95 Conn. 500, 111 A. 861, to be the
accepted legal definition of the term.
Practically the same definition is given in 2 Words and Phrases, Fourth Series, p. 714:“Turpitude is defined as inherent baseness or vileness of principle, words or actions, or
shameful wickedness or depravity, whereas ‘moral' describes conduct that conforms to the
generally accepted rules which society recognizes should govern everyone in his social and
commercial relations with others, regardless of whether those rules constitute legal
obligations, so that ‘moral turpitude' implies something in itself whether punishable by law or
not, the word moral serving only to emphasize the nature of the wrong committed.”
In 41 C. J., 212, it is defined “as anything contrary to justice, honesty, principle, or good
morals; an act of baseness, vileness or depravity in the private and social duties which a man
owes to his fellow men, or to society in general, contrary to the accepted and customary rule
of right and duty between man and man.”The foregoing statements reflect generally the holdings of the courts and conform to our
idea of the meaning of the term “moral turpitude.” See cases listed in note 63 to last citation.
We think the instant case falls within the rule in Drazen v. New Haven Taxicab Co., supra,
which, holding in conformity with the above texts, stated a rule RIH[FOXVLRQDVIROORZV
ÐÐÐÐ59 Nev. 36, 42 (1938) Conklin v. BuckinghamÐÐÐÐ
of exclusion as follows: “Unintentional wrong, or an improper act done without unlawful or
improper intent, does not carry with it the germs of moral turpitude.”The petition alleges, as previously stated, that Wood was convicted of an offense involving
moral turpitude, but reference to the third count of the information shows that this allegation
is untrue. No intentional wrong, unlawful or improper intent or other ingredient of turpitude,
is alleged therein. No element of dishonesty or fraud is charged therein. The statement that
this neglect occurred in a secret manner, is not a sufficient allegation of any of the essential
elements of moral turpitude.
The peremptory writ could not, therefore, issue to prevent respondent from placing Wood's
name upon the ballot as a candidate for said office of district attorney.
____________
ÐÐÐÐ59 Nev. 42, 42 (1938) Carpenter v. District CourtÐÐÐÐ
W. W. CARPENTER, JOHN FANT and ANDREW JAHN, Petitioners, v. SIXTH
JUDICIAL DISTRICT COURT OF NEVADA, in and for the County of Humboldt, and J. M.
LOCKHART, as Presiding Judge Thereof, Respondents.
No. 3195
December 7, 1937. 73 P.(2d) 1310.
1. Waters and Water Courses.Exceptions to state engineer's determination of rights of water claimants may not be dispensed with, and
questions to be decided in adjudication proceedings are limited to issues raised thereby (Comp. Laws, sec.
7922).
2. Waters and Water Courses.The court had no jurisdiction, in adjudication proceedings, to award earlier and better priorities to water
claimants who filed no exceptions to state engineer's order of determination, and hence court had no
jurisdiction to grant new trial with view of restoring such priorities after they had been set aside by another
judge (Comp. Laws, sec. 7922).
ÐÐÐÐ59 Nev. 42, 43 (1938) Carpenter v. District CourtÐÐÐÐ
Where water claimants obtained order setting aside adjudication decree on ground that doctrine of
relation was improperly applied to give other claimants earlier and better priorities than were fixed by state
engineer's order of determination, no other claimant could enlarge scope of proposition presented thereby
so as to raise other questions (Comp. Laws, sec. 7922).
4. Prohibition.Where adjudication decree, without jurisdiction, awarded earlier and better priorities than those fixed by
state engineer's order of determination to water claimants who had not filed exceptions to order of determination, other claimants, who obtained order setting aside that portion of adjudication decree, were
entitled to writ of prohibition against new trials that were subsequently ordered with view of reinstating
original decree (Comp. Laws, sec. 7922).
Original proceeding in prohibition by W. W. Carpenter and others against the Sixth
Judicial District Court of Nevada, in and for the County of Humboldt, and J. M. Lockhart, as
Presiding Judge thereof. Writ of prohibition granted.
John R. Jurgenson, Myron R. Adams and Roy W. Stoddard, for Petitioners:
A new trial cannot be granted a claimant upon an issue that is not raised by the filing of exceptions to the state engineer's order of determination except in cases where the trial court,
after submission and decision of the case, changes, modifies and alters the rights of
noncontestants as specified and set forth in the state engineer's order of determination.
It was not within the power of Presiding Judge Lockhart to grant the new trials to the
noncontestants when it appeared upon the face of the record that Presiding Judge Edwards
reached the only conclusion which he could properly have reached on the record, that is that
Judge Bartlett's findings and decree as to said noncontestants' priorities was void, there being
no exceptions filed as provided by the water code.
Gray Mashburn, Attorney-General, W. T. Mathews and W. Howard Gray, Deputy
Attorneys-General, for 5HVSRQGHQWV0$'LVNLQ0RUOH\*ULVZROG0F1DPDUD5REELQV
DQG0LOWRQ%
ÐÐÐÐ59 Nev. 42, 44 (1938) Carpenter v. District CourtÐÐÐÐ
Respondents; M. A. Diskin, Morley Griswold, McNamara & Robbins, and Milton B. Badt, for
sundry claimants:
The position of counsel for petitioners as to lack of jurisdiction of Judge Bartlett is nottenable for the following reasons:
1. Because, from the very nature of the proceedings, all of the claimants of water rights to
the Humboldt river stream system were before the court in a “determination of the relative
rights.”
2. Your claimants herein filed exceptions, as shown by exhibits attached to the claimants'
answer on file in the above-mentioned matter.
3. In adjudication cases it is not necessary that any exceptions or objections be filed in
order to vest jurisdiction and to permit and authorize the trial court to enter a final judgment
in accordance with law and facts. In re Water Rights in Silview River (Ore.), 237 P. 322; In re
Rights to Use of Waters of Owyhee River (Ore.), 23 P.(2d) 206; sec. 35 of water code, being
sec. 7922, N. C. L.
Certainly, the application of the doctrine of relation, a judicial theory, is such a phase of
the adjudication as affects the entire stream system. Its application must be general along theentire stream. Section 35 of the water code certainly gives the court power to do equity as
between the relative rights. Plain City Irr. Co. v. Hooper Irr. Co. (Utah), 51 P.(2d) 1069.
OPINION
By the Court, Hatton, District Judge:
This is an original proceeding in prohibition to restrain the Honorable J. M. Lockhart, as
presiding judge of the Sixth judicial district court of the State of Nevada, in and for the
county of Humboldt, or any other district judge who may hereafter preside in said FDXVH
ÐÐÐÐ59 Nev. 42, 45 (1938) Carpenter v. District CourtÐÐÐÐ
cause, from proceeding with the new trials granted by the said district judge in the cause
entitled: “In the Matter of the Determination of the Relative Rights of Claimants and
Appropriators of the Waters of the Humboldt River Stream System and its Tributaries.”The order of determination of the state engineer, determining water rights on the
Humboldt river system, was filed with the clerk of the Sixth judicial district court, in and for
Humboldt County, on January 17, 1923. A number of claimants on the stream system filed
their exceptions to the said order. Hearings on these exceptions were had before the
Honorable George A. Bartlett, presiding district judge, whose findings and decree were
subsequently filed and entered. In the said findings and decree, some 191 claimants, who had
not filed exceptions in that regard, were awarded earlier and better priorities with respect to
their water rights than had been allotted to them in the order of determination of the state
engineer; such earlier and better priorities being based upon the application of the doctrine of
relation in determining the dates of such priorities. The petitioners herein moved for and
obtained an order, made by the Honorable H. W. Edwards, presiding district judge, settingaside the said Bartlett findings and decree, in part, and granting a new trial with respect to the
application of the doctrine of relation to the 191 noncontest claimants above referred to. Upon
such new trial, Judge Edwards made findings of facts and conclusions of law reciting that the
application of the doctrine of relation to the said noncontest claimants by Judge Bartlett was
without authority of law and void, and entered his decision and decree with respect thereto.
To the latter decision motions for new trial were interposed, and were granted by Judge
Lockhart. The claimants who sought and were granted new trials by Judge Lockhart took the
ÐÐÐÐ59 Nev. 42, 46 (1938) Carpenter v. District CourtÐÐÐÐ
the movents' attitude, Presiding Judge Lockhart granted new trials, the scope of which would
open to consideration and adjudication the claims of all claimants on the river system which
might now be presented, based on the doctrine of relation. The petitioners now seek to
restrain the respondent court from proceeding with the new trials so granted by Judge
Lockhart .
The petitioners contend that, because of the absence of exceptions to the order of determination of the state engineer on the ground of failure to apply the doctrine of relation,
there are no issues on that subject presented in the pleadings upon which a new trial could be
based. In answer to this, the respondents maintain that such issues may be raised, or may be
deemed to be raised in the absence of such exceptions. Section 35 of the water law (section
7922 N. C. L.) provides as follows: “At least five days prior to the date set for hearing, all
parties in interest who are aggrieved or dissatisfied with the order of determination of the
state engineer shall file with the clerk of said court notice of exceptions to the order of
determination of the state engineer, which notice shall state briefly the exceptions taken, and
the prayer for relief, and a copy thereof shall be served upon or transmitted to the state
engineer by registered mail. The order of determination by the state engineer and thestatements or claims of claimants and exceptions made to the order of determination shall
constitute the pleadings, and there shall be no other pleadings in the cause.”
1. The exceptions, duly filed, perform functions of such importance that the necessity of
filing them should not be dispensed with. It is the filed exception that gives notice to all other
claimants as to the objections and demands of the exceptor. The purpose of the law is to limit
the questions to be decided in the adjudication proceedings to issues raised by exceptions
duly filed. In Humboldt Land & Cattle Company v. Sixth Judicial District Court, 47 Nev.
396, 224 P. 612, 614, this court said: “The section * * * requires all those DJJULHYHGRU
aggrieved or dissatisfied to file notice of their exceptions with the clerk setting forth the
grounds and prayer for relief, thus affording all parties in interest who are satisfied with the
order of determination an opportunity to appear before the court and oppose any alteration or
modification of the order as proposed by those excepting.”
In the case of In re Water Rights in Humboldt River Stream System, 49 Nev. 357, 246 P.
692, 694, this court further said: “The water law is a special statutory proceeding brought intoeffectual existence after much travail to meet a great public need. The law meets every
demand for a full, fair, and just determination of the rights of every water user. * * * Though
these rights are secured to him, he must avail himself of them by proceeding in the manner
outlined in the water law.”
See, also, Ruddell v. Sixth Judicial District Court, 54 Nev. 363, 17 P.(2d) 693.
This court has held that a judgment which adjudges matters outside the issues raised by the
pleadings is so far void. Schultz v. Mexican Dam & Ditch Company, 47 Nev. 453, 224 P.
804; Douglas M. & P. Co. v. Rickey, 47 Nev. 148, 217 P. 590.
2. As we view this matter, there was no jurisdiction as the basis for Judge Bartlett's order
awarding the 191 noncontesting claimants an earlier and better priority than that fixed by the
order of determination. If this is true, we fail to see how Judge Lockhart could have jurisdiction to grant a new trial with a view of restoring to these noncontesting claimants, or
any of them, priorities which Judge Bartlett awarded, or any priorities other than those fixed
in the order of determination.
3. The proceedings sought to be reviewed grew out of and are limited solely to the attack
on Judge Bartlett's decree as to the 191 noncontesting claimants, made by petitioners. No
other claimant on the Humboldt river stream system attacked the Bartlett decree in this
respect, so far as appears, and no other claimant, as a result of the motion on which Judge
Edwards based KLVUXOLQJFRXOGHQO DUJHWKHVFRSHRIWKHSURSRVLWLRQSUHVHQWHGE\
The petitioners are allowed their costs in this proceeding.
Note—Taber, J., having disqualified himself, the Governor designated Hon. Wm. D.
Hatton, Judge of the Fifth Judicial District, to sit in his stead.
On Petition For Rehearing
April 25, 1938.
Per Curiam:
Good cause appearing therefor, it is ordered that the various petitions for rehearing filed
herein be and they are hereby granted.
It is further ordered that the case be set down for argument on Wednesday, May 25, 1938,
at 10 a. m.
On Rehearing
November 26, 1938. 84 P.(2d) 489.
1. Waters and Water Courses.
Purpose of statute relative to proceeding for determining rights of appropriators of
water, in providing that order of determination by state engineer, statements or claims of
claimants, and exceptions made to order, should constitute SOHDGLQJVZDVWROLPLW
SOHDGLQJVWRWKR VHVWDWHGLQVWDWXWH&RPS
ÐÐÐÐ59 Nev. 42, 49 (1938) Carpenter v. District CourtÐÐÐÐ
pleadings, was to limit pleadings to those stated in statute Comp. Laws, sec. 7922.
2. Pleading.
Purpose of pleadings is to define issues involved.
3. Waters and Water Courses.
Purpose of statute relative to proceeding to determine rights of appropriators of water,
in providing that aggrieved party should file exceptions to order of determination of stateengineer, briefly stating the exceptions taken, was to provide method whereby an issue in
the cause should be raised. Comp. Laws, sec. 7922.
4. Waters and Water Courses.
Under statute relative to proceeding to determine rights of appropriators of water,
which provides that, on day set for hearing with respect to order of determination of state
engineer, all who have filed notices of exceptions to order should appear, and
proceedings, including the taking of testimony, should be in accordance with rules
governing civil actions, where exceptions are filed by some claimants, evidence is
confined to issues raised by such claimants' exceptions, notwithstanding statute provides
that in cases where no exceptions are filed court may take further testimony. Comp.
Laws, sec. 7922.
5. Waters and Water Courses.In proceeding to determine rights of appropriators of water of a river system under
water law, where number of users excepted to order of determination of state engineer,
propriety of subsequent proceedings was to be determined by statutory provision relative
to cases where exceptions were filed and not by statutory provision relative to cases
where no exceptions were filed, notwithstanding a number of water users failed to file
exceptions. Comp. Laws, sec. 7922.
6. Waters and Water Courses.
Purpose of water law is to provide method whereby unappropriated water might be
appropriated or whereby relative rights of appropriators of waters of public streams
might be determined without great delay and expense to such appropriators, and to
enable state to supervise the distribution of waters so that greatest good might be attainedtherefrom for development of agricultural resources. Comp. Laws, sec. 7922.
7. Statutes.
In interpreting a section of a statute, every portion of section must be given effect, and
all portions must be harmonized.
8. Waters and Water Courses.
In proceeding to determine rights of appropriators of water of a river system under
water law where claimants, who had been granted new trials which were limited to
application of doctrine of relation, had not filed exceptions to order of determination of
state engineer on ground of failure to apply doctrine of relation, claimants were not
entitled to new trials so limited. Comp. Laws, sec. 7922.
ÐÐÐÐ59 Nev. 42, 50 (1938) Carpenter v. District CourtÐÐÐÐ
9. Waters and Water Courses.
In proceeding to determine rights of appropriators of water under water law, where
decision of trial court in granting a motion for a new trial dealt exclusively with
application of doctrine of relation, decision limited scope of such new trial and othersgranted in accordance with decision, to matter of applying such doctrine to facts
presented, and claimant whose predecessor's exceptions raised issues other than
application of doctrine was not entitled to new trial granted in accordance with decision.
Comp. Laws, sec. 7922.
10. Waters and Water Courses.
In proceeding to determine rights of appropriators of water under water law, where trial
court, after filing findings and decree upon which notice of decision was given, later
nearly as may be in accordance with the rules governing civil actions.”
That portion of the section which is italicized is the amendment of 1921. It seems that the
legislature had in mind, in incorporating the 1921 amendment into the section, that one of
two situations might confront the court in the adjudication of a stream system—one in which
no exceptions are filed to the order of determination, and one in which exceptions are filed by
one or more appropriators and none filed by those who do not deem themselves aggrieved bythe order. It seems clear from a reading of the above section with the amendment of 1921
deleted, that if no exceptions are filed the court has no power to do else than to enter a decree
in accord with the order of determination. What was the effect of the amendment of 1921? It
is the contention RIUHVSRQGHQWWKDWLWVHIIHFWZDVWRRSHQWKHPDWWHUZLGHIRUWKHWDNLQJ
ÐÐÐÐ59 Nev. 42, 53 (1938) Carpenter v. District Court
ÐÐÐÐ
of respondent that its effect was to open the matter wide for the taking of testimony as to the
rights of each and every water user, even though some failed to file exceptions.
1-3. We must carefully consider the entire section, so far as material, in disposing of this
contention. Let us now consider the sentence reading: “The order of determination by the
state engineer and the statements or claims of claimants and exceptions made to the order of
determination shall constitute the pleadings and there shall be no other pleadings in the
cause.” The sentence clearly indicates that it was the intention of the Legislature that the
pleadings should be limited. The purpose of pleadings, as we know, is to define the issues
involved. The section under consideration, in the first sentence thereof, provides that allaggrieved shall file with the clerk of the court exceptions to the order of determination, which
shall state briefly the exception taken. The sole purpose of this provision was to provide the
method whereby an issue could be raised.
4. The sentence following that incorporated by the act of 1921 provides that on the day set
for hearing all parties in interest who have filed notices of exceptions, shall appear, and it
shall be the duty of the court to hear the “same” until “such exceptions” are disposed of, “and
all proceedings thereunder, including the taking of testimony, shall be as nearly as may be in
accordance with the rules governing civil actions.” The last sentence of the section clearly
limits the taking of testimony, where exceptions are filed, to the issues raised by the
exceptions filed. Even the taking of testimony is limited, by the express language of this
sentence, to the issues raised by the exceptions. This is indicated by the words “the taking of
testimony, shall be as nearly as may be in accordance with the rules governing civil actions.”
This quoted language must be construed to mean that the evidence must be confined to the
issues raised, for in civil actions such is the practice.
5. The amendment applies to matters in which no H[FHSWLRQVDUHILOHG
ÐÐÐÐ59 Nev. 42, 54 (1938) Carpenter v. District CourtÐÐÐÐ
exceptions are filed. In the instant matter hundreds of water users on the Humboldt river
stream system excepted to the order of determination, although many filed no exceptions;hence this is not a case in which “no exceptions” were filed. We need not say what would be
the length to which the court might go if absolutely no exceptions had been filed, because no
such situation is here presented.
6. The contention of respondents, which is in effect that one noncontesting water claimant
in a great stream system, after years of expensive litigation, could come in and throw open the
stream system to another decade of litigation, is contrary to the spirit of the water law, which,
as stated by Justice Coleman in Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171
P. 166, is to provide a method whereby unappropriated water might be appropriated, or
whereby the relative rights of appropriators of the waters of the public streams of the state
might be determined without great delay and expense to such appropriators, and to enable thestate to supervise and administer the distribution of such waters so that the greatest good
might be attained therefrom for the development of our agricultural resources. If respondents
are to prevail, these objectives are as far from consummation as they were in the beginning. In
the adjudication of a stream as large as the Humboldt river some inequities are liable to result
to water claimants.
7. To give the 1921 amendment the construction contended for by respondents would, in
effect, nullify the other portions of the section to which we have alluded. This we cannot do
without doing violence to the well-known rule that every portion of a section must be given
effect. All portions of the section must be harmonized.
We will now consider the eight petitions for rehearing which have been filed in this
proceeding. In addition to the petition filed on behalf of the respondent court, there were joined in one petition for rehearing, RQWKHGRFWULQHRIUHODWLRQRQO\WKHIROORZLQJZDWH U FODLPDQWV6DPXHO0F,QW\UH,QYHVWPHQW&RPSDQ\61%RQG-RKQ0
ÐÐÐÐ59 Nev. 42, 55 (1938) Carpenter v. District CourtÐÐÐÐ
on the doctrine of relation only, the following water claimants: Samuel McIntyre Investment
Company, S. N. Bond, John M. Marble, Robert N. Marble, A. G. McBride, J. H. CarterEstate, H. H. Cazier, Kearns Corporation, Charles Dressi and Henderson Banking Company
Mortgage Corporation. Separate petitions were filed in behalf of Hibernia Savings and Loan
Society, T. S. Cattle Company, Rufus H. Kimball, A. G. McBride, S. N. Bond, H. H. Cazier
and John H. Cazier Estate, for the rehearing of issues other than the application of the
doctrine of relation. All of these claimants and petitioners seek a reversal of the order of this
court of December 7, 1937, enjoining the trial court from proceeding with the new trials
previously ordered. Twelve orders for new trial were made by the court below. With two
exceptions, hereinafter referred to, the new trials so ordered were based upon timely notices
of motion made in January 1935, and were ordered for the purpose of reviewing the facts in
the light of the doctrine of relation.
8. With regard to the joint petition for rehearing, filed on behalf of Samuel McIntyre
Investment Company and others, our decision is determined by the fact that, while the new
trials ordered were limited to the application of the doctrine of relation, the fact is that noexceptions on that subject were filed by any of these claimants, and hence no issues are
presented as subject matter for the new trials so limited.
Turning next to the petition of the Hibernia Savings and Loan Society, it is found that two
notices of motion for new trial were given by this claimant—one in January 1935, and the
other in October 1935. The timely motion made in January was granted, the new trial being
limited to the application of the doctrine of relation. Counsel for the claimants urges that it
was not the intention of the court to so limit the scope of the new trial, but that it was
intended that the same should go to the consideration of the issues raised by exceptions filed
by the claimant's predecessor on grounds R WKHUWKDQWKHGRFWULQHRIUHODWLRQ
ÐÐÐÐ59 Nev. 42, 56 (1938) Carpenter v. District CourtÐÐÐÐ
other than the doctrine of relation. The order of the court, in granting the new trial, reads as
follows:
“In accordance with the decision of the court this day made granting the motion for a new
trial made by Kearns Corporation.
“It is ordered that the motion of Hibernia Savings and Loan Society, successor to X.
Rodwell Meyer, successor to William Dunphy Estate, filed January 16, 1935, be, and thesame hereby is, granted.”
9, 10. The decision of the court in granting the motion of Kearns Corporation for a new
trial deals exclusively with the application of the doctrine of relation, and thereby limits the
scope of the new trial to the matter of applying that doctrine to the facts presented. The issues
raised by the exceptions of the claimant are therefore without the scope of the new trial order.
A further order for new trial, not limited to the doctrine of relation, was granted this claimant,
based upon its notice of motion given in October 1935. The question arises as to whether this
latter notice was timely. Ten days from date of notice of decision are allowed for filing notice
of motion for new trial. The notices filed in October were evidently filed on the theory that
the time for filing had been extended by reason of the fact that Judge Edwards refiled hisfindings and decree (Exhibit 12). The occasion for the refiling lay in the fact that the findings
had not been served on the interested parties before their first signing by the judge.
Respondents argue that the refiled findings and decree “contain many matters which are in
effect matters of decision,” and hence constitute the filing of the decision. The refiled
findings and decree are identical with those filed in December 1934, upon which notice of
decision was given in January 1935. Nothing was added thereto. The ten days for giving of
notice of motion for new trial ran from the latter date. Hence the notice of motion for new
ÐÐÐÐ59 Nev. 42, 57 (1938) Carpenter v. District CourtÐÐÐÐ
T. S. Cattle Company, the only notice of motion for new trial on behalf of that claimant was
the joint notice with Hibernia Savings and Loan Society, given and filed in October 1935.
Such notice came too late, for the reasons above given. This is also true of the order granting
a new trial to John M. Marble and others, based upon their joint notice of motion filed
October 28, 1935.
11. As to the petition for rehearing filed on behalf of Rufus H. Kimball, it appears that the
Hunter-Banks Company, a predecessor of Kimball, filed exceptions to the order of determination. These exceptions were four in number and relate to the request for substitution
of name of successor claimant, duty of water, length of irrigation season and a claimed
prescriptive right to the use of waters. None of these exceptions relate to the application of
the doctrine of relation. Upon the hearing of the exceptions had before Judge Bartlett, some
modifications of the order of determination were made in which were included the
application of the doctrine of relation. Carpenter and others, the petitioners for the writ of
prohibition herein, then moved for a new trial upon the ground that the court was without
jurisdiction to apply the doctrine of relation in the absence of any exception on that subject. A
new trial was granted by Judge Edwards, and thereupon the application of the doctrine of
relation was eliminated, and, further, certain acreages of claimant Kimball, whose prioritieshad been determined by the state engineer, were also eliminated. The claimant then moved,
before Judge Lockhart, for a new trial. Such new trial was granted, but the scope thereof was
limited to the application of the doctrine of relation. As there are no exceptions or issues on
the subject referred to, there is no subject matter for the new trial so granted and limited.
12. As to the petition for rehearing filed on behalf of A. G. McBride, it appears that this
claimant, by leave of court, filed an amended exception to the order of determination, by
which exception the claimant asserted DULJKWWRHDUOLHUSULRULWLHVWKDQWKRVHIRXQGE\WKH
VWDWHHQJLQHHU
ÐÐÐÐ59 Nev. 42, 58 (1938) Carpenter v. District CourtÐÐÐÐ
a right to earlier priorities than those found by the state engineer. Upon the hearing, Judge
Bartlett awarded to the claimant priorities which, on the whole, were earlier than those
claimed in his exception. Upon new trial granted by Judge Edwards, the latter relegated the
claimant back to the awards made by the state engineer. Timely notice of motion for new trial
was given by the claimant, and the motion was granted, the new trial being limited to the
application of the doctrine of relation. The issues raised by the amended exception of
claimant McBride, however, relate to the priorities to which the claimant's lands are entitled,
without regard to the question of applying the doctrine of relation. In other words, the
amended exception presents no issue for a new trial limited to the application of that doctrine.The record shows that the exception of claimant McBride purports to be an amendment of an
exception previously filed by Webster Patterson in his own behalf and on behalf of other
unnamed persons similarly situated. While we doubt that the exception of Patterson gave to
such unnamed persons the status of exceptors, or that there was anything upon which the
amendment of McBride could be based, we do not deem it necessary to pass upon that
question at this time. The same is true as to the absence of objections to the proposed findings
signed by Judge Edwards.
13, 14. As to the petition for rehearing filed on behalf of claimant S. N. Bond, it appears
that this claimant seeks to have added to the final decree of the lower court a notation that the
judgment in suit No. 1899, Union Canal Ditch Company et al. v. Pacific Reclamation
Company et al. is binding between the parties. This notation does not appear in the order of determination of the state engineer, and no exception was filed by claimant Bond or his
predecessors asking that the notation be made. The claimant made a timely motion for new
trial for the purpose of having the notation added to the decree. The motion was granted, but
limited to matters relating to the application of the doctrine of UHODWLRQ
ÐÐÐÐ59 Nev. 42, 59 (1938) Carpenter v. District CourtÐÐÐÐ
relation. A new trial is a reexamination of an issue of fact. Upon this state of the record, there
is no issue presented upon which a new trial could be had.
15. As to the petition for rehearing filed on behalf of H. H. Cazier and John H. Cazier
Estate, it is stated in the petition that the predecessor of the petitioners did not file an
exception to the order of determination other than upon a question of reclassification of lands,
and it is stated in the petitioners' brief that the issue involved in the petition is substantially
identical with the issue involved in the petition of Rufus H. Kimball above referred to. As
with claimant Kimball, the new trial granted to H. H. Cazier, Jno. H. Cazier, and Jno. S.
Cazier Estate, successors to John H. Cazier & Sons Company, was limited to the application
of the doctrine of relation. As ruled with respect to claimant Kimball, there is no subjectmatter for the new trial so granted and limited.
16. For the reasons given, it is hereby ordered that the demurrers to the petition for writ of
prohibition, and the motions to quash the alternative writ, are overruled, and that said
presiding judge, J. M. Lockhart, or any other district judge who may hereafter preside in said
cause, is prohibited, enjoined, and restrained from proceeding with the new trials granted by
said presiding district judge in said court and cause by orders dated December 3, 1936, and
The petitioners are allowed their costs in this proceeding.
____________
ÐÐÐÐ59 Nev. 60, 60 (1938) Perry v. EdmondsÐÐÐÐ
B. F. PERRY, in His Representative Capacity as Administrator of
the Estate of C. W. PERRY, Deceased, Appellant, v. JENNIE EDMONDS, Respondent.
No. 3244
December 2, 1938. 84 P.(2d) 711.
1. Appeal and Error.
An order denying a motion to vacate and set aside a default is not an “appealable order,” and a motion todismiss an appeal from such order must be granted.
2. Executors and Administrators.Where claim filed against estate in accordance with statute requiring filing within three months after first
publication of specified notice was disallowed by administrator and court, an action to recover a money
judgment upon claim under statute permitting suit after rejection was not an “action in rem” permitting the
acquisition of jurisdiction over a nonresident administrator by publication and service of summons outside
the state, where no specific property, actually or symbolically, was involved, although no execution would
issue upon the judgment. Comp. Laws, secs. 9707, 9711, 9717.
3. Judgment.A “judgment in rem,” as distinguished from a “judgment in personam,” is an adjudication pronounced
upon the status of some particular thing or subject matter.
4. Judgment.A judgment in an action in rem is only good to the extent of the amount realized from the specific
property seized, actually or symbolically, in the action.
5. Judgment.Where action against nonresident administrator on claim due from estate did not involve specific
property, actually or symbolically, but was merely an action to recover a money judgment, a default
judgment entered after an order of publication and service of summons on administrator outside the state
was void. Comp. Laws, secs. 9711, 9717.
6. Appearance.That a nonresident defendant over whom jurisdiction had not otherwise been acquired moved to set aside
a default and a default judgment did not operate as a “general appearance” to vitalize the antecedent
proceedings in which the judgment had been entered.
Appeal from Eighth Judicial District Court, Clark County, Wm. E. Orr, Judge.
Action by Jennie Edmonds against B. F. Perry, in his representative capacity as
administrator of the HVWDWHRI&:3HUU\GHFHDVHGWRUHFRYHUDPRQH\MXGJPHQWXSRQD
estate of C. W. Perry, deceased, to recover a money judgment upon a claim alleged to be duefrom the estate. From an order denying defendant's motion to vacate a default and an order
refusing to vacate a judgment by default, defendant appeals. Judgment in accordance with
opinion.
Noland & Noland , for Appellant:
We submit this is an action in personam. The judgment is a judgement in a judgment in
personam. The probate law of Nevada does not provide for any action upon a rejected claim,
other than an action in personam. Sec. 9717 N. C. L. 1929.
A service of summons outside of the state in an action in personam will not confer
jurisdiction. Service pursuant to sections 8582 and 8583 can be made only in actions in rem.
State ex rel. Pacific States Securities Co. v. Second Judicial District Court, etc., 48 Nev. 53,
226 P. 1106; Long v. Home Ins. Co. (N. C.), 19 S. E. 847.
The judgment in this action purports upon its face to be a judgment in personam, and the
appellant herein was not personally served within the State of Nevada, therefore said
judgment is a nullity. 33 C. J. 1089, sec. 50; 50 C. J. 542, sec. 213; Pennoyer v. Neff, 24 L.
Ed. 565, syllabi 2 and 8.
Harry H. Austin, for Respondent:
The order denying the defendant's motion to open the default is not an order from whichan appeal may be taken, and in the absence of an appeal from the judgment, cannot be here
reviewed. Sec. 8375 N. C. L.; sec. 8885 N. C. L., as amended by chapter 32, Stats. 1937, p.
56, sec. 10; Johns-Manville, Inc. v. Lander County, 48 Nev. 244, 229 P. 387.
It seems plain to us that the legislature, in enacting sec. 9717 N. C. L., did not regard
actions on claims against an estate as actions in personam.
If our action will not lie in any state other than Nevada (Pennoyer v. Neff, 24 L. Ed. 565;
Freeman v.$OGHUVRQ/(G&-6SS
ÐÐÐÐ59 Nev. 60, 62 (1938) Perry v. EdmondsÐÐÐÐ
Alderson, 30 L. Ed. 372; 1 C. J. S., pp. 1148 to 1150, sec. 52 and notes; 15 C. J. p. 802, sec.
100; 24 C. J. p. 768, sec. 1903; Vaughan v. Northrup, 15 Pet. 1, 10 L. Ed. 639), are we to be
denied redress because an administrator, appointed here, keeps himself without the state?
And if Nevada is the proper forum, we have no alternative in trying to bring the defendant
1. This action was brought against a nonresident administrator of an estate, residing in theState of Kansas, to recover judgment in the sum of $3,522.18. After an order of publication
was entered, service of summons was had upon the defendant, on December 3, 1937, in the
State of Kansas. On January 3, 1938, the clerk of the court entered the default of the
defendant. On January 4, 1938, the defendant served and filed notice of motion, supported by
affidavit of merits, to vacate and set aside the default. The motion was denied, and judgment
was entered in favor of the plaintiff upon the default, after which a like notice of motion to
vacate and set aside the judgment, supported by affidavit of merits and tendered answer, was
filed. An appeal was taken from both the order of the court denying the motion to vacate and
set aside the default and from the order to vacate and set aside the judgment. There was no
appeal taken from the judgment. The motion of respondent to dismiss the appeal from the
order denying the motion to vacate and set aside the default must be granted, as that is not anappealable order. If there were an appeal from the judgment, it may be that pursuant to
section 8887 N. C. L. we would review the order denying the motion to vacate the default.
ÐÐÐÐ59 Nev. 60, 63 (1938) Perry v. EdmondsÐÐÐÐ
2. Several errors are assigned in this matter, but we do not deem it necessary to consider
any save the one to the effect that the lower court did not obtain jurisdiction to enter a judgment in the matter, since this is not a suit in rem.
In this connection, counsel for respondent concedes, as we understand his position, that the
contention would be good if it were not an action in rem, but being, as he contends, an action
in rem, the court obtained jurisdiction by the service of summons in Kansas.
The claim of plaintiff which is the basis of this action was filed in the matter of the estate
of C. W. Perry, as provided by section 9707 N. C. L., and was disallowed by the administrator
and the court. Suit was brought upon the claim, pursuant to section 9711 N. C. L., which
reads: “When a claim is rejected by the executor or administrator, or the district judge, the
holder shall be immediately notified by the executor or administrator, and such holder must
bring suit in the proper court against the executor or administrator within thirty days after
such notice, whether the claim is due or not, otherwise the claim shall be forever barred. If the
holder of a claim resides out of the state he may be informed of the rejection of his claim by
written notice forwarded to his postoffice address by registered mail.”
Section 9717 N. C. L. reads as follows: “The effect of any judgment rendered against any
executor or administrator upon any claim for money against the estate of his testator or
intestate, shall only be to establish the claim in the same manner as if it had been allowed by
the executor or administrator and the district judge, and the judgment shall be that the
“Such service may also be sufficient in cases where the object of the action is to reach and
dispose of property in the State, or of some interest therein, by enforcing a contract or a lien
respecting the same, or to partition it among different owners, or, when the public is a party,
to condemn and appropriate it for a public purpose. In other words, such service may answer
in all actions which are substantially proceedings in rem.”
There is nothing in the language quoted to give comfort to respondent. Neither of the twomethods designated in the language quoted whereby jurisdiction may be acquired has been
complied with in this matter, and it is not pointed out whereby the plaintiff in the action has
instituted any proceeding against any property. Nothing is offered to show that this is an
action substantially in rem.
The language in Corpus Juris, relied upon as sufficient to warrant a holding that this is a
proceeding in rem, is: “With respect to proceedings in rem and quasi in rem, the basis of the
jurisdiction is the seizure of the property on which the judgment is to operate, and such
jurisdiction cannot be acquired except by a lawful seizure, unless the action or proceeding is
of such a character that the mere situs of the property to be affected within the territorial
jurisdiction of the Court is sufficient to confer jurisdiction, as for instance in administration
proceedings, condemnation proceedings and mortgage foreclosure.”There is nothing in this language to support respondent's contention. It points out that to
constitute an action in rem there must be a seizure of property in the jurisdiction of the court,
unless the action or proceeding is of such a character that the mere situs of WKHSURSHUW\WREH DIIH FWHGLVVXIILFLHQWWRFRQIHUMXULVGLFWLRQDVIRULQVWDQFHLQDGPLQLVWUDWLRQSURFHHGLQJV
FRQGHPQDWLRQSURFHHGLQJVDQGPRUWJDJHIRUHFORVXUHV
ÐÐÐÐ59 Nev. 60, 66 (1938) Perry v. EdmondsÐÐÐÐ
the property to be affected is sufficient to confer jurisdiction, as, for instance, in
administration proceedings, condemnation proceedings and mortgage foreclosures.
3. Volume 34 C. J., at page 1171, citing State v. Central Pac. R. Co., 10 Nev. 47, and
many other authorities, states: “A judgment in rem, as distinguished from a judgment in
personam, is an adjudication pronounced upon the status some particular thing or subject
matter * * *.”
4, 5. One of the authorities cited by counsel for respondent makes the loose statement that
a proceeding in rem may be one in which the mere situs of the property to be affected is
sufficient to confer jurisdiction, as, for instance, in administration proceedings. We can
conceive of a case in which specific property situated in this state and claimed as property
belonging to an estate may be the subject of a controversy so as to bring a proceeding within
the general statement made, but that such might be the fact is no argument to support the
contention that this is such a proceeding. We think it is not. In fact, this action does not
involve specific property or any property—it is a plain suit to recover a mere money
judgment. No property was seized, actually or symbolically. The judgment obtained, if valid,
is not and cannot be a lien on the assets of the estate in question, or any part thereof. It is a
There are three separate and distinct documents comprising the motions now before us.
The one we will first consider is a motion to strike portions of the bill of exceptions.
The next motion which we will consider is the one GLUHFWHGWRWKHGRFXPHQWHQWLWOHG
³RUGHUFRUUHFWLQJDQGDPHQGLQJPLQXWHVDQGUHFRUGV´
ÐÐÐÐ59 Nev. 67, 69 (1938) Taylor Et Al. v. TaylorÐÐÐÐ
directed to the document entitled “order correcting and amending minutes and records.”
We will take up for consideration finally the motion to strike a document filed in this court
February 20, 1937, entitled “Submission of Transcript of Proceedings in District Court in
Opposition to Sundry Motions to Strike and Motion to Dismiss Appeal.”
On January 4, 1938, counsel filed a stipulation herein to the effect that the record on
appeal “may be, and the same hereby is, deemed to be amended and supplemented by adding
thereto, and incorporating therein,” the order of the trial court of October 22, 1934, extending
the time of appellant in which to file a bill of exceptions, to and including November 1, 1934,
and that respondent might renew his motions, in pursuance of the order of this court as made
in said last-mentioned opinion.
Thereafter counsel for respondent made motions to strike and to dismiss. The motions thus
made were identical with the motions made in the early part of 1937, which were before us
and under consideration when we filed our last opinion in this case on November 4, 1937.
The record now before us is a bill of exceptions which contains all of the documents which
may be comprised in a judgment roll, plus the evidence in the case and other documents.
On February 15, 1935, the trial judge settled the bill of exceptions.1-3. The papers constituting the judgment roll being embraced in the bill of exceptions,
they are entitled to be considered as though filed in the case as a separate document (Taylor v.
Taylor, 56 Nev. 100, 45 P.(2d) 603), and if the bill of exceptions, as amended, was settled in
apt time, it cannot be stricken and must be considered in determining the merits of the case.
In view of the stipulation of January 4, 1938, whereby the order of the trial court of October
22, 1934, extending the time for the filing of a bill of exceptions to November 1, 1934, LV GHHPHGWREHLQFRUSRUDWHGWKHUHLQLWDSSHDUVRQWKHIDFHRIWKHELOORIH[FHSWLRQVWKDWLW
LVFRPSOHWHLQHYHU\GHWDLO
ÐÐÐÐ59 Nev. 67, 70 (1938) Taylor Et Al. v. TaylorÐÐÐÐ
is deemed to be incorporated therein, it appears on the face of the bill of exceptions that it is
complete in every detail. If this is true, this court has acquired jurisdiction to hear and
4. We feel, in view of the fact that the papers constituting the judgment roll are in a bill of
exceptions, properly settled, that we would be justified in denying the motions without further
consideration.
5-7. But it is contended by counsel for movant that the order of October 22 is an ex parte
order, and that no copy thereof was served upon respondent, hence the bill of exceptions
should be stricken. In support of this contention, our attention is directed to District CourtRule 36 and to the cases of O'Neill v. Vasiliou, 51 Nev. 236, 274 P. 1, and Beco v. Tonopah
Extension M. Co., 37 Nev. 199, 141 P. 453.
The court rule in question provides that in case of objections no ex parte order shall be
valid unless written notice thereof is promptly given to such opposing party.
We think the contention must be rejected. The order complained of was made October 22,
1934. The record does not show whether or not the order was made ex parte. In the O'Neill v.
Vasiliou case a motion was made in the trial court attacking the order as being ex parte and
for the reason that no notice thereof was given. In the Beco Case, counsel who obtained the
order frankly admitted that it was an ex parte order and that no notice thereof had been given.
The question was raised in that case in the trial court also. Counsel could have attacked the
order complained of here in the trial court; that was the place to do so. Furthermore, we think
that by entering into the stipulation of January 4, 1938, counsel for respondents must be
deemed to have stipulated that the order in question was valid, for if it was an invalid order it
was without force and effect. All objections to the correctness of a bill of exceptions must be
made in that court, and not in this court. Every presumption will be indulged by WKLVFRXUWLQ
ID YRURIWKHUHJXODULW\RIWKHSURFHHGLQJVLQWKHWULDOFRXUW
ÐÐÐÐ59 Nev. 67, 71 (1938) Taylor Et Al. v. TaylorÐÐÐÐ
this court in favor of the regularity of the proceedings in the trial court. The contention of
counsel must be rejected.
8. Coming now to the third and last motion stated above—the one to strike the
document filed in this court on February 20, 1937, entitled “Submission of Transcript of
Proceedings in District Court in Opposition to Sundry Motions to Strike and Motion to
Dismiss Appeal.”
The transcript of the proceedings shows what transpired at the hearing in the trial court
upon the application of appellant to amend the bill of exceptions so as to make it show that a
motion for a new trial was actually made in the trial court upon the grounds stated in themotion.
The court entered an order in the case that the bill of exceptions be corrected so as to show
the facts. The document in question has no place in the record and should be stricken.
What we have said disposes of all of the motions.
It is ordered that the document last referred to be stricken. It is further ordered that all
other motions of respondent be and are hereby denied.
It is also ordered that appellants have twenty days from the service of a copy hereof in
capital stock belonging to said M. Genevieve Williams. On May 18, 1932, pursuant to said
writ of execution, the sheriff further levied upon and sold to plaintiff, for $7,250, all the right,
title and interest of said judgment debtors in and to: (a) A further 1,350 shares of the capital
stock of defendant corporation, represented by certificate No. 6; (b) 617 shares of such capital
stock standing in the name of M. Genevieve Penrose on the records of said corporation; (c)
586 shares of such capital stock standing in the name of Alice E. Biane on said records; (d)65 shares of such capital stock standing on said records in the name of Ward Stanley
Williams.
Between the dates of said execution sales, plaintiff instituted proceedings supplementary
to execution, in the course of which said judgment debtors appeared and answered upon oath
concerning their property. On May 31, 1932, plaintiff demanded of said George B. Williams
as president, and said M. Genevieve Williams as secretary, of defendant corporation that
1,362 shares of the capital stock be transferred to him—being the said 5, 7 and 1,350 shares
hereinbefore mentioned. Said judgment debtors did not comply with said demand.
On January 8, 1932, plaintiff commenced this action, alleging the conversion by defendant
corporation of said VKDUHVRILWVFDSLWDOVWRFN
ÐÐÐÐ59 Nev. 72, 75 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
1,362 shares of its capital stock. At the trial in November 1932, defendant, at the conclusion
of plaintiff's case in chief, moved for a nonsuit. On this motion the court reserved its decision
and requested counsel for defendant to go on with the case. Def endant thereupon called three
witnesses and, after they had given their testimony, rested and renewed its motion for nonsuit.
This motion was later granted and the action dismissed. From the judgment, and from anorder denying a motion for new trial, plaintiff appealed to this court, which reversed the case
and ordered a new trial upon the ground that plaintiff had made out a prima facie case in the
district court.
By stipulation of the parties the case was transferred to the Second judicial district court,
Washoe County, where a second trial was had by the court, without a jury, in April 1936. At
this trial the testimony and documentary evidence given and adduced at the first trial were
admitted in evidence by agreement of the parties, and each party, pursuant to a further
stipulation, then proceeded to offer additional testimony and evidence. The second trial
resulted in a judgment for plaintiff against defendant in the sum of $260.88, the value of said
5 and 7 shares of capital stock, with interest in the amount of $75.36, and costs. Plaintiff moved for a new trial, which was denied, and then appealed to this court, basing his appeal
upon the trial court's failure to award him damages for the alleged conversion of said 1,350
shares. There is no contention as to said 5 and 7 shares which defendant admits belonged to
Mr. and Mrs. Williams, respectively, at the time of the first levy and sale. At the second trial,
and on this appeal, the controversy centers wholly around the 1,350 shares. Appellant claims
that these shares were the property of George B. Williams at the times of both levies and sales
on execution, while respondent contends that they belonged, at said times, to defendant
The position taken by respondent is based entirely upon the alleged transfer by George B.
Williams to GHIHQGDQWFRUSRUDWLRQRQ1RYHPEHURIVKDUHVRIFDSLWDOVWRFN
HYLGHQFHGE\FHUWLILFDWH1R
ÐÐÐÐ59 Nev. 72, 76 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
defendant corporation, on November 8, 1927, of 1,621 shares of capital stock evidenced by
certificate No. 6, and including the 1,350 shares in controversy. Appellant maintains that no
such transfer was made; and furthermore, if any such purported transfer was made at said or
any other time, it was wholly void, because it was made with intent to defraud the creditors of
said George B. Williams, and in particular with the intent to defraud appellant. The trial court
found that at the time of the levies and sales on execution said 1,350 shares did not belong to
George B. Williams, and in its written decision held that at the time of the levy on said 1,350
shares they were the property of respondent, that said alleged transfer by George B. Williams
to respondent was in fact made, that the surrender by said George B. Williams of 1,350 shares
to the corporation for the discharge of a debt and with the view of reducing the amount and
enhancing the value of the outstanding shares was ratified by the stockholders, and that said
transfer was for a valuable consideration and without intent to hinder, delay, or defraud
creditors.
Appellant assigns as errors: “1. That the finding and decision of the district court that the
1350 shares of stock attempted to be sold by the sheriff and which plaintiff claimed belonged
to George B. Williams did not in fact belong to him and that the officers of the defendant
corporation rightfully refused plaintiff's demand that the said 1350 shares be issued toplaintiff, was not supported by the evidence and was contrary to the evidence; 2. That the
district court erred in refusing to hold that plaintiff, by purchase at the execution sale, had
become the owner of 1,362 shares of defendant corporation; 3. That the district court erred in
refusing to grant plaintiff judgment for the conversion of said 1,350 shares in addition to the
12 shares for which judgment was given; 4. That, in refusing to grant judgment to plaintiff for
the conversion of said 1,350 shares, the decision of the court was against the law; and 5. That
the court erred in refusing to grant plaintiff a new trial.”
ÐÐÐÐ59 Nev. 72, 77 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
George B. Williams Land and Livestock Company was incorporated in 1917, with a
capitalization of 3,000 shares, each of the par value of $100. On September 6 of that year
certificate No. 1, for 300 shares, was issued to Eugene L. Williams, No. 2, for 2,153 shares, to
George B. Williams, and No. 3, for 267 shares, to Frank M. Hoy. George B. Williams was
president of the company, and Hoy its first secretary. On October 8 of the same year, George
B. Williams transferred 32 shares to his wife, M. Genevieve Williams. His remaining 2,121
shares, evidenced by certificate No. 4, were, on February 25, 1918, split up into three blocks,
issued to himself as follows: Certificate No. 6, 1,621 shares, No. 7, 250 shares, and No. 8,
250 shares. On February 19, 1927 he acquired a further 200 shares, transferred from
certificate No. 1, making a total of 2,321 shares standing in his name until November 8, 1927,according to the copy of the stock record furnished plaintiff by Mr. Sinai in 1932 (plaintiff's
exhibit No. 5). On November 8, 1927, according to the stock book as read into the record by
plaintiff's counsel, George B. Williams acquired a further 267 shares, transferred from Hoy
certificates 11 and 12.
We now proceed to inquire into what respondent claims transpired on November 8, 1927,
and on the 3d of the following month, relative to the 1,621 shares evidenced by certificate
No. 6. M. Genevieve Williams, wife of George B. Williams, testifying at the second trial, was
shown said certificate and its stub. On the certificate itself was written, in red ink and in
longhand, “Cancelled 11/8/27 in pay't of $135,000 debt. See certificate No. 16.” On the stub
there was also written in red ink, “Cancelled, See Certificate No. 16.” At the first trial, when
George B. Williams was on the stand, counsel for plaintiff, referring to said stub, said: “Andon the stub it says that it is transferred from George B. Williams. Original certificate No. 4;
original number shares 2121; number transferred 1621. See certificate No. 16.” Mrs.
Williams, at the second trial, testified that the red ink cancelations on said certificate DQG
a certain part went back to George B. Williams, which was agreeable, and that the balance
was to go back to the corporation, to be used later “in any way that might come up”; that such
was the advice given by plaintiff, so understood by the officers and stockholders, all of whom
were present, and that said procedure was acceptable to all the stockholders. She also testified
that she remembered her husband wanted to have this meeting so he could see what he could
do, after a sale which had been made to Mr.
ÐÐÐÐ59 Nev. 72, 79 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
Moffatt, to keep the stock as nearly at par value as possible. M. Genevieve Penrose, at the
second trial, gave substantially the same testimony as her mother regarding the alleged
meeting of December 3, and they both gave similar testimony at the first trial, though it
appears that there was no testimony at the first trial as to when the notations were made on
certificate No. 6 and its stub, nor any testimony as to who made the notations. George B.
Williams also gave some testimony at the first trial relating to the alleged cancelation of
certificate No. 6 in November 1927 and the corporation meeting in December of that year.
Ward Stanley Williams died before the second trial.
Respondent admits that no certificate for the 1,350 shares was issued, and that no record of
a transfer of the 1,621 shares to the treasury of the company was made in the stock book. But
it maintains that it was the intention of George B. Williams, with the knowledge and approval
of the corporation and of plaintiff, to turn back into the treasury 1,350 of said 1,621 shares,
retaining the remainder of them, and that in order to carry this out, it was decided to cancel
certificate No. 6, and at the same time issue a new certificate, No. 16, to George B. Williams
for 271 shares. In the stock book, said certificate No. 16 for 271 shares to George B.Williams, dated November 8, 1927, is marked: “Cancelled June 30th, 231 shares transferred
to M. Genevieve Williams. See certificate No. 28.” The stub of said certificate No 16 shows:
“Transferred from George B. Williams; original certificate 6; number of original shares 1621;
number of shares transferred 271.” This stub also has the annotation, “Cancelled. See
certificate No. 28.” In the copy of the stock book furnished plaintiff by Mr. Sinai in 1932, we
find that certificate No. 16, for 271 shares, was issued to George B. Williams on November 8,
1927 in lieu of certificate No. 6 for 1,621 shares. Respondent argues that this entry tends to
corroborate its witnesses regarding the turning back to WKHFRUSRUDWLRQE\*HRUJH%
ÐÐÐÐ59 Nev. 72, 80 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
the corporation by George B. Williams of the 1,350 shares because, with the single exception
of certificate No. 6, whenever a certificate was split up the stock record shows that all stock
evidenced by such certificate was transferred to one or more individuals—every share was
accounted for. This is further proof, argues respondent, that it was the intention of Mr.
Williams and the corporation that the 1,350 shares were to go back into the company's
treasury. As against appellant's contention that the pretended cancelation of certificate No. 6
did not take place until about the time the supplementary proceedings were instituted in 1932,
respondent points to the fact that when George B. Williams surrendered certificate No. 6 to
the corporation, he endorsed it in blank, and that his endorsement was witnessed by hisbrother Eugene, who died in the year 1930.
Appellant contends that certificate No 6 was not canceled on November 8, 1927, and that
it was only when members of the Williams family were called into court in 1932 on
supplementary proceedings that the attempted cancelation came into existence; that the
alleged cancelation on November 8, 1927, was not discussed, approved, or ratified at the
alleged corporation meeting on December 3, 1927, and that no such meeting was in fact held.
He denies that he attended any corporation meeting on December 3, 1927, and denies that at
that or any other time he ever discussed, advised, or approved of the alleged cancelation of
certificate No. 6. He testified that he did not learn of the purported cancelation until the
hearing on said supplementary proceedings.
Prior to the supplementary proceedings plaintiff, both as creditor and stockholder,demanded that he be shown the stock book, but his demands were not complied with. He was
furnished with what purported to be a list of all the stock issued, including the parties to
whom the same was issued, the date of issuance, and the transfer. Appellant points out that
while this list shows other FHUWLILFDWHVWRKDYHEHHQFDQFHOHG LWGRHVQRWVKRZWKDW1R
ÐÐÐÐ59 Nev. 72, 81 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
certificates to have been canceled, it does not show that No. 6 was canceled. Except for the
verbal testimony of members of the Williams family, there is nothing to show that this
alleged cancelation was ever ratified. No minutes of any corporation meeting in December
1927 have been produced. No other meeting was held until September 18, 1930, when Mr.
Sinai was present; and he wrote up the minutes, which show approval of the sale of land and
sheep to the Moffatt Company, but nothing whatever concerning the alleged cancelation of
certificate No. 6, which would also certainly be considered a major transaction. Mrs.
Williams testified that plaintiff, at the meeting on December 3, 1927, wrote up the minutes in
longhand, but later it was found that no minutes of this meeting had been written or typed in
the minute book. This is the reason advanced by defendant for holding the meeting of September 1930. We have already seen that appellant denies having attended any meeting of
the corporation in December 1927. He argues that if there had in fact been such a meeting,
and the sale to the Moffatt Company and the cancelation of certificate No. 6 had been acted
on at that meeting, Mrs. Williams, as secretary of defendant corporation, would have insisted
upon the minutes being written up in the minute book, so as to show the ratification of both
transactions. The fact that the minutes of the meeting of September 18, 1930, made no
mention whatever of the alleged cancelation of certificate No. 6, indicates very strongly,
according to appellant, either that no meeting of the company was held on December 3, 1927,
or that the alleged cancelation of said certificate was not acted on at that time. It is true the
stock book says that certificate No. 16, for 271 shares, was reissued on said 8th day of
November 1927, out of the 1,621 shares, certificate No. 6; but appellant maintains that this is
still another fact going to show that said certificate was not canceled, as 271 shares could not
have been sold out of stock that had been canceled.Members of the Williams family testified that plaintiff KDGEHHQRQHRIGHIHQGDQWV DWWRUQH\VPRVWRIWKHWLPHVLQFHWKHFRPSDQ\ZDVRUJDQL]HG
ÐÐÐÐ59 Nev. 72, 82 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
had been one of defendant's attorneys most of the time since the company was organized.
Plaintiff testified that he had never been its attorney, but only its resident agent. Defendant
introduced in evidence a receipted bill for legal services rendered by plaintiff to defendant.
This statement was for “legal services rendered 1927—$180.00.” Defendant's evidence
convinced the trial court that plaintiff was consulted from time to time on legal matters
relating to the corporation, and that he gave some direction in relation to the cancelation of
the 1,350 shares.
On the first trial, Mrs. Penrose testified that the meeting of December 3, 1927, was a
special meeting held to “verify” the sale of land and sheep to the Moffatt Company; on the
second trial, Mrs. Williams testified that the principal reason for calling that meeting was to
take up the matter of her husband's turning back to defendant corporation the 1,350 shares of
stock included in certificate No. 6.
1. We have not detailed all the evidence relating to the alleged turning back, by George B.Williams, of 1,350 shares to the treasury of the corporation, and the alleged meeting of
December 3, 1927; but the leading facts and circumstances relied upon by the respective
parties have been referred to. There is a sharp and substantial conflict in the evidence, and the
trial court, after weighing and considering the evidence and the credibility of the witnesses,
found that the transactions and happenings of November 8, 1927, and December 3, 1927,
were substantially as testified to by plaintiff's witnesses. While there is some doubt in our
minds as to the correctness of these findings, we are unable to say, after studying the record,
that it is clear they are not supported by the evidence; hence we cannot set them aside.
2. There remains, however, the question whether the aforesaid transfer was void because
made with intent to defraud, or under such circumstances as to constitute a fraud, upon thecreditors of George B. Williams, and in particular the plaintiff.
ÐÐÐÐ59 Nev. 72, 83 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
Members of the Williams family testified that certificate No. 6 was canceled on November
8, 1927, with the intent of all the officers and directors of the company, acting upon plaintiff's
advice, that 1,350 of the 1,621 shares evidenced by that certificate should revert to the
treasury of the corporation, the remaining 271 shares being retained by George B. Williams,
for which certificate No. 16 was issued to him.
George B. Williams testified that he borrowed considerable sums of money from thecompany, and when asked what such moneys were used for, he stated that he spent a great
deal of it in mines and lost money in the bank, also in oil wells; that he lost a great deal of
money; that he owed the Churchill County Bank $40,000, and had to borrow from the
Wingfield Bank to pay the Churchill County Bank. “Sometimes I would owe money and go
and borrow it, and it ran up to one hundred thirty-five thousand dollars.” He testified that he
didn't know how much he spent on his own personal affairs, but that he figured he owed the
company $135,000, and that by canceling that amount of corporation stock it put him back
even with the company. He testified that he paid $20,000 for bank stock; that he spent about
$35,000 on the Peterson ranch, and from $5,000 to $6,000 on the Moore ranch; that he lost
about $4,000 mining in Broken Hills. Sometimes, according to Mr. William's testimony, the
corporation would run short of money and he would borrow some and put it in the bank account and give his note for it. He testified that when his brother Eugene L. Williams drew
out of the corporation he, George B. Williams, put in the Eastgate ranch to make up what was
drawn out by his brother—approximately $30,000; and that when he bought out Mr. Hoy, he
borrowed $21,000 for that purpose. To a large extent, George B. Williams failed to keep
separate his personal financial affairs and those of the corporation, at times using his own
money for corporation purposes and at other times using the company PRQH\IRUKLPVHOI
ÐÐÐÐ59 Nev. 72, 84 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
money for himself. All this was done, however, according to his testimony, with the full
consent of all the other stockholders. The record shows that plaintiff used company checks in
making certain payments to plaintiff on account of personal indebtedness.
As against the foregoing, appellant contends that the indebtedness for which defendant
claims George B. Williams turned 1,350 shares back into the company's treasury, was a debt
of the corporation, not of George B. Williams, and that it was recognized as a corporation
debt by all parties concerned. That the indebtedness was that of the corporation, not that of
Mr. Williams, is proved, says appellant, by the canceled promissory notes and other writtenevidence furnished by Mr. Williams himself at the first trial. It further appears from the
record that the indebtedness to The Reno National Bank was treated as a corporate debt for
income tax purposes. Furthermore, appellant maintains that the amount of the indebtedness
was in fact less than $135,000—a fact which is proved not only by George B. William's own
testimony, “as near as I can remember it was one hundred eighteen thousand dollars I owed in
the fall and I paid it,” but also by defendant's exhibit A, a letter from the cashier of The Reno
“ February 2, 1926.......................................................................... 11,000.00“ January 24, 1927.......................................................................... 5,000.00
“ December 31, 1925...................................................................... 35,000.00
Interest on the above from
June 30th to Oct. 18th.......................................................................... 2,627.75
Dated April 22, 1927
Int. from June 30th.............................................................................. 120.00
__________________________
$117,233.29
“The last mentioned note is held by one of the other banks, and will be returned to you
within a few days. The balance of the notes are canceled and enclosed herewith accompaniedby the following shares of the capital stock of your company:
George B. Williams and the defendant, argues appellant, simply attempted to dispose of
the 1,350 shares by estimating the value of the stock at $100 per share—1,350 shares
equaling $135,000. When George B. Williams was asked at the hearing in the supplementary
proceedings in 1932, “What does this entry on the stock certificate mean, it was canceled inpayment of one hundred thirty-five thousand dollar debt?”, he replied, “I don't know, I can't
understand that myself.”
Appellant makes the further contention that all the indebtedness due The Reno National
Bank in October DURVHDQGJUDGXDOO\DFFXPXODWHGDIWHU2FWREHUDWZKLFK
ÐÐÐÐ59 Nev. 72, 86 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
1927 arose and gradually accumulated after October 24, 1922, at which time there was no
indebtedness to said bank, either on the part of Mr. Williams or the corporation. Appellant
asserts that, with the possible exception of the money paid to Mr. Hoy for his stock, Mr.
Williams in his testimony did not recite a single purpose for which he used the corporation's
money for his own benefit after October 24, 1922. “It seems incredible,” say counsel, “that
Mr. Williams could have incurred an indebtedness of more than $109,000, exclusive of
interest, between December 30, 1922, and October 19, 1927, and not be able to recall a single
use to which any of the money was put (with the exception of the Hoy deal) while, on the
other hand, the only things that he could recall, such as the oil stocks, Churchill County Bank
loss (which was really but a sale for a sum less than the original cost many years before), thepurchase and improvement of the Peterson ranch, the purchase and improvement of the
Eastgate ranch, etc., all occurred many years previously to the date this indebtedness to The
Reno National Bank actually commenced—December 30, 1922—and formed the basis for
the old indebtedness to the Churchill County Bank.” Appellant directs attention also to
dividends dispersed by the corporation, practically in their entirety, to Mr. Williams,
including one in the sum of $28,914.96 and another for $27,300. There is also the testimony
of Mr. Williams himself that annually, for some years at least, “We were selling over one
hundred thousand dollars, some years more than that.”
Appellant points out that the 1,350 shares were never entered on the books of the
corporation, nor was a certificate ever issued for them. Moreover, argues appellant, there was
no occasion for retiring any part of said 1,350 shares on or about November 8, 1927, for the
reason that the corporation's net worth was as much then as it had been before the Moffatt
sale, the proceeds of which discharged The Reno National Bank indebtedness. Appellant
quotes respondent's counsel: “There was no SDUWLFXODUQHHGWRFDQFHO&HUWLILFDWH1R
ÐÐÐÐ59 Nev. 72, 87 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
particular need to cancel Certificate No. 6 except for the fact that the stockholders felt that
this stock should go back to the corporation to cancel the debt which Mr. Williams owed the
corporation.” But, says appellant, as there was no debt, so there was no need for retiring the1,350 shares.
There is one important matter concerning which appellant and respondent differ widely,
and that is whether George B. Williams was rendered insolvent by reason of his turning the
1,350 shares included in certificate No. 6 back to the corporation. It is not claimed that the
debtor was insolvent before these shares were turned back to the corporation; but appellant
contends that by reason of said transaction, and because of other transfers made during the
week preceding Christmas of 1927, Mr. Williams was rendered insolvent; and the transfer
having been, as appellant contends, voluntary, it was fraudulent as to plaintiff, who was an
existing creditor all through the fall of 1927, as well as long prior and long subsequent
thereto. See 27 C. J., secs. 166, 253, pp. 502, 553. Respondent, however, not only insists thatthe cancelation of certificate No. 6 on November 8, 1927, was in good faith and for a valuable
consideration, but asserts that most of the alleged transfers in December 1927, and all the
larger ones in that month, were never effectuated, and that George B. Williams remained the
exclusive owner of almost all of that stock, except the 1,350 shares, until the last of June
1929.
We have already seen that after turning the 1,350 shares back to the company, George B.
Williams still had 1,238 shares. The stock book shows that on December 19, 1927, he
transferred 60 shares to his son, and 60 shares to his daughter, thus reducing his holdings to
1,118 shares. On December 24, 1927, three certificates were made out: No. 21, for 550
shares, to M. Genevieve Williams, No. 22, for 275 shares, to Ward Stanley Williams, and No.
23, for 275 shares, to M. Genevieve Penrose. But on said certificate No. 21 is written, “ThisFHUWLILF DWHRIVWRFNKDVQHYHUEHHQLVVXHGQHYHUKDGWKHVHDOSODFHGXSRQLWDQGQHYHU
ZDVGHOLYHUHGDQGWKHVDPHLVKHUHE\FDQFHOOHG-XQH´
ÐÐÐÐ59 Nev. 72, 88 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
certificate of stock has never been issued, never had the seal placed upon it, and never was
delivered, and the same is hereby cancelled June 1, 1929.” Also, on the face of said certificateNo. 22 is written, “This certificate of stock has never had the seal placed on it, has never been
issued or delivered, and the same is hereby cancelled June 1, 1929.” Certificate No. 23 bears
this annotation: “Cancelled June 29, 1929. George B. Williams.” On the stub of this
certificate is the following: “Transferred from George B. Williams; original number of shares
1118; number of shares transferred 275”; also this annotation: “This stock placed in escrow
with Eli Cann with instructions to him to whom, when and under what conditions to deliver
The trial judge concluded that George B. Williams remained the owner of said 1,100
shares (certificates 21, 22 and 23) until June 1929, and in this we cannot see that he was in
error.
On June 1, 1929, Mr. Williams went to plaintiff's office and asked him to draw a will. At
the same time he left with plaintiff three certificates of company stock, Nos. 23, 25 and 26,
with written instructions to plaintiff, in case of Mr. William's death, to deliver No. 23 (275shares) to Marie Genevieve Penrose, No. 25 (360 shares) to Mrs. Vernon R. Penrose, and No.
26 (468 shares) to Mrs. M. Genevieve Williams; such deliveries to be made “after the debts
of my estate are paid.” Plaintiff assisted Mr. Williams in the preparation of these escrow
papers which, with the stock book, were left at plaintiff's office. Mr. Williams and his
daughter testified that on this occasion plaintiff figured out how many shares Williams had,
and informed him of the number. This plaintiff emphatically denied, but testified that Mr.
Williams told him how many shares he had, and that plaintiff simply put down what Williams
told him. On June 29, 1929, Williams again went to plaintiff's office, canceled said escrow,
executed his will, and took away the stock certificates and stock book. On the same day he
transferred 552 shares of company stock (certificate 1R
ÐÐÐÐ59 Nev. 72, 89 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
No. 27) to M. Genevieve Penrose, and 486 shares (certificate No. 28) to M. Genevieve
Williams. These transfers reduced his holdings to 80 shares, and on August 15, 1925, he
transferred 75 of these to his son-in-law, Vernon Rowe Penrose, thus retaining only 5 shares
himself.
The trial court held that the evidence established the ratification by the stockholders of George B. William's surrender of the 1,350 shares of stock for the discharge of a debt and
with the view of reducing the amount and enhancing the value of the outstanding shares. Said
court found that said transfer was for a valuable consideration, and without intent to defraud
creditors; and that at the time of the execution sale the 1,350 shares attempted to be sold by
the sheriff did not belong to said George B. Williams.
This court finds itself unable to say that any of the trial court's controlling findings or
conclusions were clearly wrong. One of the chief reasons for our position is that George B.
Williams was not shown to have been rendered insolvent on November 8, 1927, or at any
time soon thereafter. The evidence indicates that plaintiff's claim could have been fully
satisfied out of the realizable assets of George B. Williams, not only for a long time beforeNovember 8, 1927, but for a long time thereafter. William's debt to plaintiff was an old one.
Every six months plaintiff would take a new note, for some years from Williams only, and
then from both him and his wife. Thus the interest mounted higher and higher, until the
original indebtedness more than doubled in amount. It was more than nineteen months after
the cancelation of certificate No. 6 on November 8, 1927, before Williams disposed of
practically all of the 1,118 shares he had held since December 19, 1927. Whatever question
there may be concerning the validity of the transfers made by Williams to his relatives in June
and August 1929 (Glenn, Law of Fraudulent Conveyances, sec. 307; 27 C. J. 495, sec. 153), it
is not clear, when DOOWKHHYLGHQFHLQWKHFDVHLVFRQVLGHUHGWKDWWK HFDQFHODWLRQRI
FHUWLILFDWH1R
ÐÐÐÐ59 Nev. 72, 90 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
all the evidence in the case is considered, that the cancelation of certificate No. 6 on
November 8, 1927, was the first move in a fraudulent scheme to defeat creditors, in which the
last moves were said transfers in June and August 1929.
The judgment and order appealed from are affirmed.
Ducker, J., I concur.
Coleman, C. J., concurring:
It is with grave misgivings that I concur.
There are many circumstances in the case which seem to impeach three witnesses on
behalf of defendant, who testified as to what transpired at a stockholders' meeting on
December 3, 1927.
If the testimony of the witnesses in question is correct, the judgment should be affirmed.
The plaintiff flatly contradicted the testimony in question, and it would seem improbable, as
contended by counsel for plaintiff, that he would have bid the amount he did for the interest
of George B. Williams in the stock in question if he had known that the stock had been turned
over to the company in payment of an indebtedness. Yet it is evident that the memory of plaintiff is bad as it was proven that it was poor. This was shown with reference to a $700
payment on a note he held.
The question of the relative weight to be given to circumstantial and positive evidence is
one which has long agitated courts and authors.
No hard and fast rule can be laid down as a guide in such a situation. Dean Wigmore in his
excellent work on Evidence, vol. 1 (2d ed.) section 26, in dealing with this problem, states
what we think is the correct view. He says: “Indeed, it can be said that there are no rules, in
our system of Evidence, prescribing for the jury the precise effect of any general or special
class of evidence. So far as logic and psychology assist us, their conclusions show that it is
out of the question to make a general assertion ascribing greater weight to one class or WRWKH RWKHU
ÐÐÐÐ59 Nev. 72, 91 (1938) Cann v. Williams Land & Livestock Co.ÐÐÐÐ
expressly adopted by the motor vehicle act. Section 14 of the latter act contains the only
provisions made for a review of the commission's action in reference to a certificate of
convenience and necessity, and then only when the certificate has been revoked.
The granting of a certificate of convenience and necessity as required by section 7 of the
motor vehicle act is not an interference with any property or property rights of any other
person or corporation, but grants permission to the grantee to use property belonging to thestate, to wit, the public highways, for the purpose of private gain. And the granting or refusal
to grant such certificate is a matter solely within the power of the legislature to delegate to the
commission, and is not a question that the courts can pass upon unless such power is
expressly granted.
No judicial question being presented in this matter, and no violation of any right of any
person being presented by the complaint, we submit that the district court has no jurisdiction
to interfere with or to set aside the order of the commission in granting a certificate of
convenience and necessity.
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General, for Petitioners, Public Service Commission of the State of Nevada:In view of the fact that the question involved in this proceeding is purely a question of law
and relates solely to the jurisdiction of the district court to review and modify the decision of
the public service commission, and does not involve the merits of another case now SHQGLQJ
ÐÐÐÐ59 Nev. 91, 93 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
pending in the district court, in which the Tonopah & Goldfield Railroad Company, et al., are
plaintiffs, and the petitioners herein are defendants, we adopt the brief filed herein by counsel
for petitioner, Nevada-California Transportation Company, Inc., for the sole purpose of
having said jurisdictional question determined by this court, although we are not willing to go
as far, either in this proceeding or in the case now pending in the district court, as counsel for
said transportation company does.
Brown & Belford and Walter Rowson, for Respondents:
It is obvious from a reading of the two statutes that section 14 of the 1933 act merelyprovided a remedy against the abuse of a new power granted thereby to the commission.
There is certainly no “irreconcilable repugnance” between the two acts, indicating a
legislative intent to repeal the 1919 act (State v. Reese, 57 Nev. 125, 59 P.(2d) 647), nor
indeed any repugnance whatever. The two can stand side by side and the remedy provided by
each invoked in a proper case. The 1933 act provides for a test in the courts in the case of the
revocation of a certificate by the commission, and the 1919 act provides for such a test if a
party feels himself aggrieved by certain other orders of the commission.
Since 1919 it has been the legislative policy of this state to permit a person aggrieved by
an order of the commission to seek relief in the courts. There can be no logic in restricting
this right as to motor carriers to cases where a certificate is revoked. Certainly the rights of
the public and competitors are as much jeopardized by other orders affecting motor carriers as
by orders of revocation. The contention of petitioners involves such a wide departure from
this legislative policy, and the 1933 act is so lacking in any expression showing a legislativeintent to change the existing law, that it seems obvious that no such change was intended.
ÐÐÐÐ59 Nev. 91, 94 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
OPINION
By the Court, Taber, J.:
In May 1938, Tonopah & Goldfield Railroad Company, Railway Express Agency, Inc.,
Pacific Motor Transport Company and Southern Pacific Company, as plaintiffs, commenced
an action in the First judicial district court, Ormsby County, against petitioners herein, as
defendants, for the purpose of having set aside and vacated an order of the public service
commission made in February, 1938, granting a certificate of public convenience to
Nevada-California Transportation Company, Inc.
It appears from the complaint in said action that in January 1936 said Nevada-California
Transportation Company, Inc., applied to the public service commission for a certificate of
public convenience, that each of plaintiff corporations filed its protest against the granting of
said application, and that after a hearing the commission made an order granting the same.
Said complaint detailed a number of reasons why said order was alleged to be unreasonable.Defendants demurred to the complaint upon the grounds: “I. That said complaint does not
state facts sufficient to constitute a cause of action against said defendants, or against either of
said defendants, or any cause of action at all. II. That the above entitled court has no
jurisdiction over the subject matter of said action.” The district court overruled said demurrer
and allowed defendants ten days within which to answer or further plead. Thereafter said
defendants applied to this court in the instant proceeding for a writ prohibiting respondents
from taking any further proceedings in said district court action other than to dismiss the
same.
In the year 1919 there was enacted what is frequently referred to as the Nevada public
service commission law, entitled “An Act defining public utilities, providing for the
regulation thereof, creating a public service commission, defining its duties and powers, and
other PDWWHUVUHODWLQJWKHUHWR´
ÐÐÐÐ59 Nev. 91, 95 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
matters relating thereto.” Statutes of Nevada 1919, chap. 109, pp. 198-216; secs. 6100-6146
N. C. L. 1929. Section 36 1/2 of said act, as amended, Statutes of Nevada 1925, chap. 161, at
pp. 245, 246 (sec. 6137 N. C. L. 1929), contains the following provision: “Every public utility
owning, controlling, operating or maintaining or having any contemplation of owning,
controlling, or operating any public utility shall, before beginning such operation or
continuing of operations, or construction of any line, plant or system or any extension of a
line, plant or system within this state, obtain from the public service commission a certificate
that the present or future public convenience or necessity requires or will require such
continued operation or commencement of operations or construction.”
The first paragraph of section 33 of said act of 1919 (sec. 6133, N. C. L. 1929) reads as
follows: “Any party in interest being dissatisfied with an order of the commission fixing any
rate or rates, fares, charges, classif ications, joint rate or rates, or any order fixing any
regulations, practices or services, may within ninety (90) days commence an action in the
district court of the proper county against the commission and other interested parties as
defendants to vacate and set aside any such order on the ground that the rate fixed in such
order is unlawful or unreasonable, or that any such regulation, practice, or service, fixed insuch order is unreasonable. The commission and other parties defendant shall file their
answers to said complaint within thirty (30) days after the service thereof, whereupon such
action shall be at issue and stand ready for trial upon twenty (20) days' notice to either party.”
In the year 1933 there was enacted what is commonly known as the motor vehicle carriers
act, now entitled “An Act declaring the purpose and policy of the legislature relative to use of
the public highways of the state I the carrying of persons and property thereon in motor
vehicles, defining such vehicles and public highways, providing for the licensing of certain
ÐÐÐÐ59 Nev. 91, 96 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
thereon by the public service commission of Nevada and providing and defining its duties inrelation thereto, providing license fees for the operation of motor vehicles in carrier service
for hire and other service on the public highways of the state, providing for official inspectors
and salary and allowances therefor, providing penalties for the violation hereof and other civil
actions for the recovery of license fees herein, providing for the weighing of motor vehicles
for license purposes by public weighmasters, and repealing all acts and parts of acts and
certain acts of the legislature in conflict herewith; and other matters properly connected
therewith.” Statutes of Nevada 1933, chap. 165, pp. 217-277 (title amended, Stats. of Nevada
1935, chap. 126, p. 261; Stats. of Nevada 1937, chap. 152, p. 336).
The preliminary provisions and section 1 of said motor vehicle carriers act are as follows:
“Whereas, The operation of motor cars and vehicles for hire on the public highways of the
state is known to materially increase the cost of maintenance of highways, and in many cases
to introduce elements of danger to the traveling public; and whereas, It is necessary for theenforcement of good order and for the protection of highways constructed by this state that
large sums of money be spent for the regular supervision of such highways and for repairing
damage done to said highways, whether or not such vehicles are operated in interstate
commerce; and whereas, This act is necessary for the preservation of safety, the protection of
the public and in providing funds for proper maintenance of said highways; now, therefore,
The people of the State of Nevada, represented in Senate and Assembly, do enact as follows:
* * * It is hereby declared to be the purpose and policy of the legislature in enacting this law
to confer upon the public service commission of Nevada the power and authority, and to
make it its duty to supervise, regulate and license the common motor carrying of property
and/or passengers for hire, and to supervise for licensing purposes the contract PRWRU
ÐÐÐÐ59 Nev. 91, 97 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
motor carrying of property and/or of passengers for hire, and to supervise for licensing
purposes the private motor carrying of property when used for private commercial enterprises
on the public highways of this state, hereinafter defined, so as to relieve the existing and all
future undue burdens on such highways arising by reason of the use of such highways by
motor vehicles in a gainful occupation thereon, and to provide for reasonable compensation
for the use of such highways in such gainful occupations, and enable the State of Nevada, by
a utilization of the license fees hereinafter provided, to more fully provide for the proper
construction, maintenance and repair thereof, and thereby protect the safety and welfare of thetraveling and shipping public in their use of the highways. This act is not to be construed as a
motor vehicle registration act, but that the license fees provided herein are in addition to the
motor vehicle registration license fees that are now or may hereafter be required under the
laws of this state.”
Section 4 of said act provides that: “No common motor carrier of property or passengers,
contract motor carrier of property or passengers or private motor carrier of property shall
operate any motor vehicle for the transportation of either persons or property for
compensation on any public highway in this state except in accordance with the provisions of
this act.”
The first paragraph of section 6 of said act, as amended, Statutes of Nevada 1937, chap.
152, at p. 339, sec. 4 reads: “(a) The public service commission of Nevada is hereby vested
with the power and authority, and it shall be its duty to license, supervise and regulate every
common motor carrier of property and/or of passengers in this state in all matters affectingthe relationship between such carriers and the traveling and shipping public over and along
the public highways of this state. All laws relating to the powers, duties, authority and
jurisdiction of the public service commission of Nevada over common carriers are hereby
made applicable to all such motor carriers except as in this act RWKHUZLVHVSHFLILFDOO\ SURYLGHGSURYLGHGDOOWUDQVSRUWDWLRQFKDUJHVPDGHE\DQ\FRPPRQPRWRUFDUULHURI
ÐÐÐÐ59 Nev. 91, 98 (1938) Public Service Comm'n. v. District Court
ÐÐÐÐ
otherwise specifically provided; provided, all transportation charges made by any common
motor carrier of property and/or of passengers shall be just and reasonable.”
Section 7 of said act, as amended, Statutes of Nevada 1935, chap. 126, sec. 4, at pp. 263,
264, is as follows: “It shall be unlawful for any common motor carrier of property and/or of
passengers to operate as a carrier of intrastate commerce within this state without first having
obtained from the public service commission a certificate of convenience and necessity. The
public service commission, upon the filing of an application for such certificate, shall fix a
time and place for hearing thereon, and shall proceed in the matter according to the provisions
of the laws of this state made applicable thereto; provided, however, before granting acertificate of convenience and necessity to such applicant the commission shall take into
consideration other existing transportation facilities in the territory for which a certificate is
sought. It shall also take into consideration the public necessity and convenience to be
accorded by the service and rates offered by such applicant or applicants; provided further,
that the commission, in its discretion, may dispense with the hearing on the application if,
upon expiration of the time fixed in the notice thereof, no protest against the granting of the
certificate has been filed by or in behalf of any interested person; and provided further, that
no such certificate of convenience and necessity shall be issued to the applicant unless and
until the applicant shall have paid to the said commission all license fees then and there due
as hereinafter provided.”
Section 14 of said act reads: “No certificate of convenience and necessity and/or license
issued in accordance with the terms of this act shall be construed to be either a franchise or
irrevocable. The commission may at any time, for good cause shown, suspend, and upon at
least five days' notice to the grantee of any certificate and/or license and upon a hearing had
ÐÐÐÐ59 Nev. 91, 99 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
such certificate and/or license; provided, any person aggrieved by the order of the
commission revoking such permit may within thirty days commence an action in the district
court of Ormsby County against said commission to vacate and set aside such order on the
ground that such order is unlawful or unreasonable. The proceedings thereafter shall be
governed by the provisions of section 33 of the public service commission act, i. e., section
6133 Nevada Compiled Laws 1929.”
The repealing section of said act, sec. 27, provides: “All acts and parts of acts in conflict
herewith, and particularly ‘An Act requiring a license for the operation of motor cars and
vehicles for hire on the public highways of the state, and other matters relating thereto,
approved March 29, 1929,' and ‘An Act authorizing the public service commission of Nevada
to employ an inspector, fixing his compensation, providing for necessary traveling expenses
and subsistence, and other matters relating thereto, approved March 24, 1931,' are hereby
repealed.”
Petitioners' argument may be summed up as follows: The motor vehicle carriers act of
1933 is not an amendatory act, nor an act supplementary to any existing law; it is an
independent act, complete in itself, and embodies in it many of the features of prior motor
acts, including the public utility act of 1919. Section 4 of the 1933 act excludes all other laws
relating to motor carriers except those expressly adopted by that act. The only prohibition, in
section 7 of the 1933 act, against granting a certificate of convenience and necessity is that
which forbids the issuance of such certificate unless and until all license fees shall have been
paid and the required indemnity insurance policy or bond filed. Provision is made in the actof 1919 for a review by the courts of the commission's action in granting a certificate of
convenience and necessity, but there are no such provisions anywhere in the 1933 act. Nor
does the latter act contain any of the requirements set out in section 36 1/2 of the 1919 act
(section 6137 N. C. L. 1929), RUWKHUHVWULFWLRQVSODFHGXSRQWKHFRPPLVVLRQE\WKDW
VHFWLRQ
ÐÐÐÐ59 Nev. 91, 100 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
or the restrictions placed upon the commission by that section. Section 14 of the 1933 act
limits the right of the grantee of the certificate of convenience and necessity, and expressly
provides that it shall not be construed to be a franchise or irrevocable. There is no provision
in the act of 1919 for the revocation by the commission of a certificate of convenience and
necessity; but said section 14 of the 1933 act empowers the commission to revoke such
certificate for good cause shown, and allows any person aggrieved by such order of
revocation to bring suit against the commission to vacate and set aside such order on the
ground that it is unlawful or unreasonable. This is the only provision in the 1933 act giving a
court the right to review the action of the commission with reference to a certificate of
convenience and necessity, and this right of review is given only when such a certificate has
been revoked. The granting of such certificate does not constitute an interference with
anybody's property rights; it simply gives permission to the grantee to use property belongingto the state, namely, the public highways, for the purpose of private gain, and the granting or
refusal to grant such certificate is a matter solely within the province of the legislature, the
courts being without power to review the action of the commission unless such power is
expressly granted. The legislature has the power to delegate to a commission the authority to
grant certificates of public convenience, and when the public service commission grants or
refuses to grant such a certificate, its action is administrative, and is to be deemed and taken
as the act of the state itself. As the act of 1933 does not permit a review by the courts of the
action of the commission in granting a certificate of convenience and necessity, such action is
conclusive upon the courts. Courts have power to determine judicial questions only, but in
this case no judicial question is presented by the complaint in the district court. Subdivision
(a) of amended section 6 of the 1933 act confers no authority XSRQWKHFRXUWVLWVLPSO\
ÐÐÐÐ59 Nev. 91, 101 (1938) Public Service Comm'n. v. District CourtÐÐÐÐ
upon the courts; it simply confers full authority upon the public service commission.
It is the opinion of this court that section 33 of the public utilities act of 1919 (sec. 6133 N.
C. L. 1929) remains in full force and effect with respect to motor vehicle carriers as well asother public utilities. The act of 1919 conferred no authority on the commission to revoke
certificates of public convenience. Section 33 of that act allows any dissatisfied party in
interest to bring an action in the district court to vacate and set aside any order of the
commission fixing any rates, fares, charges, classifications, joint rate or rates, or any order
fixing any regulations, practices or services. It was not until 1933 that the commission was
empowered to revoke certificates of convenience and necessity. By further providing, in
section 14 of that act, that any person aggrieved might sue in the district court to vacate and
set aside an order of the commission revoking such a certificate, the legislature was simply
protecting any such person against any unlawful or unreasonable order of revocation. Such an
action is entirely different from that provided for in section 33 of the act of 1919 (Sec. 6133
N. C. L. 1929). Section 33 of the public utilities act of 1919 and section 14 of the motor
vehicle carriers act of 1933 are in nowise inconsistent with or repugnant to each other. We are
satisfied that in passing the act of 1933 it was not the intention of the legislature that the
district court action provided for in section 33 of the act of 1919 should no longer be
applicable to cases involving motor vehicle carriers.
The alternative writ heretofore issued is vacated and set aside, and the petition for writ of
prohibition dismissed. The district court will set a time within which petitioners, as
defendants in the court below, may answer or further plead to plaintiffs' complaint.
____________
ÐÐÐÐ59 Nev. 102, 102 (1938) In Re AlwardÐÐÐÐ
In the Matter of FRED S. ALWARD, Attorney at Law.
No. 3226
December 30, 1938. 86 P.(2d) 27.
1. Attorney and Client.A delay by board of governors of over four months after rendition of decision before filing with clerk of
supreme court a certified copy of its decision and the transcript of evidence in disciplinary proceedingagainst attorney did not divest supreme court of jurisdiction to review decision. Comp. Laws, sec. 565.
2. Attorney and Client.Where there was proof of charge that attorney had sworn to observe rule of bar association of which he
was a member and that he had violated rule and made a false affidavit in connection therewith, evidence of
further charge that attorney had made continual representations to nine-tenths of members of the state bar
in county that he intended to abide by the rule was unnecessary to make out a case calling for disciplinary
action.
3. Attorney and Client.Evidence that attorney had sworn to observe rule of bar association of which he was a member, that he
thereafter violated rule by charging less than the minimum divorce fee required therein and made a false
affidavit that he had charged a fee not less than the minimum, justified decision of the board of governors
of the state bar recommending attorney's suspension from membership for six months, and untilreinstatement by court order. Comp. Laws, sec. 565.
4. Attorney and Client.The making of false affidavit by attorney that he had received a fee in divorce suit not less than the
minimum required was not excused or mitigated by fact that affidavit was not actually sworn to, where
attorney intended document to be taken as his affidavit.
Proceeding in the matter of Fred S. Alward, attorney at law, who filed a petition to review
a decision of the Board of Governors of the State Bar of Nevada recommending that he be
disciplined by the Supreme Court. Petitioner suspended from membership in the state bar
for a period of six months, and until reinstatement by order of the court.
George E. Marshall, for Petitioner, did not file a brief, but made an oral argument.
said decision, together with said transcript and findings, with the clerk of the supreme court.”
There may have been a tardy filing of the record made by the board of governors with the
clerk, but that would not affect the power of this court to hear and determine the matter. Its
jurisdiction in this respect is inherent, and the requirement of the provision, that the record
shall be filed immediately, is merely a part of the procedure by which such jurisdiction is to
be exercised. If the filing is unduly delayed it may be accelerated by appropriate proceedings,but such delay will not divest this court of jurisdiction.
We are not impressed with the claim of damages occasioned accused in his law practice
and political prospects by the action of the board of governor in not sooner filing the record
with the clerk. Accused made no application to this court for an earlier filing. He took
fifty-seven days out of the sixty prescribed for filing his petition for a review, and thereafter
made no application to have the matter set down for hearing in WKLVFRXUW
ÐÐÐÐ59 Nev. 102, 105 (1938) In Re AlwardÐÐÐÐ
this court. He was content to let it rest. In the meantime, he has not been suspended from the
practice of the law. Our conclusion is that any damage he may have sustained was negligible.
The motion to dismiss is denied.
Now as to the merits. A complaint was filed with the local administrative committee of the
state bar of Nevada for Clark and Lincoln Counties, against the accused, alleging in substance
that he violated a rule of the Las Vegas bar association, of which he was a member, which he
had sworn to observe, and made a false affidavit in connection therewith. A hearing was had
by the committee, at which accused was present, and evidence was taken upon the charges
made in the complaint. The committee decided that he was guilty as charged, andrecommended that he be suspended from the practice of the law for a period of six months.
The committee forwarded the report of its findings and recommendations, together with a
transcript of the proceedings and testimony had and given at the hearing, to the board of
governors for action, on July 8, 1937.
Notice thereof was duly given to the accused by the board of governors in conformity with
rule XXXII of the rules of procedure of the state bar of Nevada. Thereafter the petitioner,
having filed no statement in opposition to the recommendation with the board of governors
within the time prescribed by said rule, the board proceeded as heretofore stated.
The rule the accused is charged with violating, and concerning which the false affidavit
was allegedly made, is as follows: “Minimum divorce fee in default cases and cases notactually contested, $100.00, excluding costs, provided that the board of trustees is authorized
to fix a lesser amount in deserving cases. * * * Application for a lesser fee shall be made to
the board of trustees by the attorney representing the plaintiff. * * * Such application to be
made at least a week prior to the filing of the complaint.”
The sufficiency of the complaint lodged with the local administrative committee was
before us in State ex rel. Alward v. Local Administrative Committee of Dist. No. 1, 58 Nev.
47, 68 P.(2d) 580. Its allegations were stated in that opinion substantially as follows: “OnFebruary 10, 1934, petitioner subscribed and swore to an oath and affidavit, the body of
which read as follows: ‘That he is a member of the Las Vegas Bar Association; that the said
Association has adopted a minimum fee in default divorce cases and divorce cases not
actually contested; that he assents to the adoption of such minimum fee and will abide by the
said rule, while a member of the Las Vegas Bar Association; that he will charge and retain
said minimum fee in all cases except when a different fee is authorized in writing by the
Board of Trustees; that he shall remain a member of the said Las Vegas Bar Association until
his written resignation shall be filed with the Secretary or President of said Association.' * * *
On December 21, 1936, while petitioner was a member of said bar association, and while said
rule was in effect, and known by petitioner to be in effect, he charged and accepted the sum of $44, exclusive of costs, in full for his services in representing a certain named client in a
divorce action, and in obtaining for said client a decree of divorce. * * * On December 28,
1936, petitioner subscribed and swore to a false oath and affidavit relating to said action, the
body of which was in the following words: ‘I, Fred S. Alward, being duly sworn on oath
depose and say: that in the above entitled case, I have charged and received, in cash, a fee not
less than the minimum fee established by the Las Vegas, Nevada, Bar Association, or if the
Board of Trustees of said Bar Association have fixed a fee in the above entitled case, less
than the minimum, that I have charged said fee so fixed, and received the same in cash or
property or otherwise as fixed by the Board of Trustees in this particular case; and I further
state the fact to be that the amount charged for services in the above entitled FDVHH[FOXVLYH
the several states or territories of the United States or of a foreign country.' Petitioner,
according to said complaint, ‘has never consulted the Board of Trustees of said Association
relative to said divorce action, and said Board of Trustees have never fixed a fee in said
action less than said minimum fee of $100.00 or otherwise.' During all the year 1936, and
prior thereto, petitioner, as is further charged in the complaint, made continual representations
to approximately nine-tenths of those members of the State Bar practicing and residing inClark county, Nev., that he would charge and collect a fee of not less than $100 in any
uncontested divorce action in said county, except where, on application, the Board of
Trustees of said bar association should permit a reduction. The violations of the rule are
alleged in the complaint to have been willfully committed, with intent to deceive the other
members of said bar association who, it is charged, relied upon petitioner's representations to
their damage, in that legal business which would otherwise have come to them was thereby
diverted to him.”
2. The evidence adduced at the hearing before the local administrative committee, and
admissions there made by the accused, are all in the record sent up by the board of governors,
and if the weight thereof supports said allegations, State ex rel. Alward v. Local
Administrative Committee of Dist. No. 1, supra, would seem to be ruling so far as a case fordiscipline is presented. We there held that the alleged affidavit of December 28, 1936, taken
in connection with other facts alleged in the complaint, was alone sufficient to support
disciplinary proceedings before the committee. We find no variance between the evidence
and facts admitted, and the allegations, except that we find no evidence supporting the
allegation that during the year 1936, the accused made continual representation to
approximately QLQHWHQWKVRIWKRVHPHPEHUVRIWKHVWDWHEDUSUDFWLFLQJDQGUHVLGLQJLQ
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ÐÐÐÐ59 Nev. 102, 108 (1938) In Re AlwardÐÐÐÐ
nine-tenths of those members of the state bar practicing and residing in Clark County,
Nevada, that he intended to abide by the rule. As we view it, however, evidence of such
intention was not necessary to make out a case calling for disciplinary action.
3. The rule designating the minimum fee, and the affidavits alleged to have been made by
the accused in connection therewith, were admitted. It was admitted that the affidavit of
December 28, 1936, was false. Moreover, it was shown to be false by the deposition of one
Fairbourn, introduced in evidence at the hearing before the local administrative committee. Inthis deposition Fairbourn testified in substance that he was plaintiff in a divorce case; that the
accused was his attorney in that case; that he charged him $75 for his services, and told him
to keep it confidential. It was stipulated that the accused procured a divorce for Fairbourn in
the suit in Las Vegas, Nevada, on the 21st day of December. It was admitted that no
application was made to the board of trustees by petitioner as provided in the rule for a lesser
fee in that case; and that no permission was given by the board of trustees to charge a lesser
fee than $100. The accused made a statement at the said hearing in the course of which he
Under the record it clearly appears that the accused has not sustained the burden cast upon
him by section 26 of the state bar act (section 565 N. C. L.) to show wherein the decision of
the board of governors is erroneous or unlawful, and we are in accord therewith as to the
penalty recommended.
4. We see nothing of a defensive or mitigating character in the contention of the accusedthat the affidavit of December 28 was not actually sworn to by him. In this respect it is
alleged in his petition: “That the reason that your petitioner filed said so-called affidavit, was
for the reason that it was customary among other attorneys to file said so-called affidavits and
that your petitioner did not at any time swear to said so-called DI ILGDYLWWKDWWKHVDPHZDV
1. Attorney and Client.Under statute authorizing supreme court to adopt rules which shall be effective only after publication,
where from uncontradicted testimony it appeared that rule adopted by the board of governors of the state bar
of Nevada, and approved by the supreme court, prohibiting the circulation of professional cards by making
them available to others than the persons with whom the attorney is in personal contact, was adopted on
August 1, 1936, but was not published until January 1937, attorney was not guilty of professional misconduct
because of allegedly unauthorized distribution of professional cards on or about October 1936. Comp. Laws,
sec. 540-590, 568, 8377.
Disbarment proceedings by the Local Administrative Committee of the State Bar of
Nevada, in and for District No. 5, against W. B. Ames, attorney at law, wherein the defendant
was found guilty and it was recommended that he be suspended for three years and until
further order of the Supreme Court. On petition for review. Findings, conclusions, and
recommendations of the local administrative committee and the board of governorsannulled and set aside, and proceedings dismissed.
No briefs were filed, but the matter was argued orally by: Clyde D. Souter , for Petitioner,
and R. K. Wittenberg, for the State Bar of Nevada.
OPINION
By the Court, Coleman, C. J.:
The local administrative committee of the state bar of Nevada, in and for district No. 5, on
or about December 11, 1936, filed a complaint against W. B. Ames, an attorney at law,
wherein it is averred, after alleging preliminary matter: ³7KDWKHUHWRIRUHWRZLWRQRUDERXW 2FWREHUZLWKWKHLQWHQWWKHQDQGWKHUHE\WRVROLFLWSURIH VVLRQDOHPSOR\PHQWVDLG DFFXVHGFDXVHGWREHSULQWHGDQGGLVWULEXWHGLQDFRQVSLFXRXVSODFHLQDSXEOLFSODFHLQ 5HQR:DVKRH&RXQW\1HYDGDIUHTXHQWHGE\WKHJHQHUDOSXEOLFWRZLWWKHSXEOLFOREE\ RIWKH$PHV+RWHODODUJHQXPEHURIWKHSURIHVVLRQDOFDUGVRIWKHDFFXVHGDIXOOWUXHDQG
FRUUHFWFRS\RIZKLFKSURIHVVLRQDOFDUGLVDVIROORZV
ÐÐÐÐ59 Nev. 110, 111 (1938) In Re AmesÐÐÐÐ
“That heretofore, to-wit, on or about October, 1936, with the intent then and thereby to
solicit professional employment, said accused caused to be printed and distributed in a
conspicuous place in a public place in Reno, Washoe County, Nevada, frequented by the
general public, to-wit, the public lobby of the Ames Hotel, a large number of the professional
cards of the accused, a full true and correct copy of which professional card is as follows:
that since said date it has been the intention of said accused that said professional cards
should be made available to the general public and to persons with whom the accused was notin personal contact; and that in conformity with such intent, said professional cards were so
made available and since said time have been so made available.”
Mr. Ames, to whom we will hereafter refer as defendant, filed an answer, in which he
specifically denied the charges alleged, and also set up rule II of the rules of professional
conduct as originally adopted by the board of governors of the state bar of Nevada, and
approved by the supreme court of Nevada, which reads as follows: “A member of the state
bar shall not solicit professional employment by advertisement, or otherwise. This rule shall
not apply to the publication or use of ordinary professional cards, or to conventional listings
in legal directories.”
The answer also pleads said rule II as amended pursuant to a resolution adopted by said
bar on August 1, 1936, and approved by the supreme court on September 21, 1936, whichreads: “A member of the state bar shall not solicit professional employment by advertisement,
or otherwise. This rule shall not apply to conventional listings in legal directors, nor to the
of the acts charged. It is further insisted that the evidence does not show a breach of the rule
in question.
The defendant testified that he did not know of the amendment of rule II, in question, until
it appeared in the Bar Journal f or January 1937. He also testified that so far as he knew, the
rule, as amended, had not been published prior to that time. He also testified that he had not
caused to be distributed in a public place his professional cards; that on one occasion a patronof his hotel asked a clerk for one of his cards; and that ZKHQWKHFOHUNDSSURDFKHGKLPWR
when the clerk approached him to get a card, he got some cards, gave one to the clerk, and
placed a rubber band around the others and put them in a tray on the telephone stand in the
lobby of the hotel; that he had at no time prior thereto had any cards around, and that so far as
he knew none of the cards he placed in the tray had been given out, and that he put them there
in case one might be called for.
The clerk testified to substantially the same state of facts. He testified further that when he
asked Mr. Ames for a card, he was told by him that he did not know where they were and that
he had to look for them; that he had never seen any of defendant's cards on the desk in the
hotel.
None of the testimony on the part of the defendant was denied or contradicted by anywitness.
Section 29 of the state bar act, section 568 N. C. L., reads: “The rules and regulations
adopted by the board when approved by the supreme court shall be binding upon all members
of the state bar and the wilful breach of any of such rules shall be punishable by suspension
from the practice of law for a period not to exceed one year.”
From the uncontradicted testimony it appears that rule II as amended August 21, 1936, was
not published until in January 1937, quite a while after the alleged commission of the offense.
Section 8377 N. C. L., authorizes the supreme court to adopt rules which shall be effective
only after publication.
In view of the law just mentioned relative to the adoption and publication of rules by thiscourt, it is clear from the uncontradicted testimony that defendant was not guilty of the
charge.
It is ordered that the findings, conclusions and recommendations of the local
administrative committee and of the board of governors be and the same are hereby annulled
and set aside, and that the proceedings be dismissed.
ÐÐÐÐ59 Nev. 114, 114 (1938) Lander County v. Nye CountyÐÐÐÐ
COUNTY OF LANDER, Appellant, v. COUNTY OF NYE, Respondent.
No. 3229
December 30, 1938. 83 P.(2d) 34.
1. Taxation.To justify recovery of taxes due on property located in county seeking recovery from another county to
which they had been paid, it was necessary that provisions of statute pertaining to assessment of property
for tax purposes and to collection of taxes be complied with. Comp. Laws, secs. 6425, 6442, 6447, 6453,
6455.
2. Counties.A county's claim against the defendant county for taxes paid to defendant county by owner of land
claimed by both counties was filed within six months from time it became due or payable, so as to
authorize maintenance of action thereon, where claim was filed within six months after date on which taxes
would have become delinquent if not paid, notwithstanding that more than six months had elapsed since
date of actual payment of taxes to the defendant county. Comp. Laws, secs. 1957, 1958, 6425, 6442, 6447,
6453, 6455.
Appeal from Fifth Judicial District Court, Esmeralda County; Clark J. Guild, Presiding
Judge.
Action by the County of Nye against the County of Lander to recover taxes paid to the
defendant on land which each county claimed lay within its boundaries. From a judgmentrendered against the defendant on the first two counts in the complaint, and from an order
denying defendant's motion for a new trial, the defendant appeals. Judgment affirmed.
Howard E. Browne, District Attorney of Lander County, for Appellant:
A claim becomes due and payable as soon as the claimant has an enforceable demand. The
claim of Nye County was against Lander County (sec. 6425 N. C. L.), and could have been
presented on November 20, 1928, for the full amount of 1928 taxes paid by John Potts. While
the district attorney of Nye County could not have proceeded against John Potts for his 1928
taxes XQWLODIWHUWKHVHFRQG0RQGD\LQ-XQHVHFV
ÐÐÐÐ59 Nev. 114, 115 (1938) Lander County v. Nye CountyÐÐÐÐ
until after the second Monday in June 1929 (secs. 6447, 6453 and 6455 N. C. L.), that fact did
not or could not in any manner affect the right of Nye County to proceed against Lander
County (sec. 6425 N. C. L.). Its claim was not presented until October 18, 1929, more than
six months after the same became due and payable, and such claim is barred.
Lowell Daniels, District Attorney of Nye County, for Respondent:
The statute of limitations (sec. 8524 N. C. L.), where it is a question of mistake,
commences to run only when a mistake is discovered. 37 C. J., p. 950, par, 322; 17 R. C. L. p.758, par. 124; Gould v. Emerson, 160 Mass. 438, 39 Am. St. Rep. 501.
“A mistake of fact” was committed by Lander County, by the retention of the 1928 taxes
of John Potts, paid to Lander county but due Nye County. Notice of this mistake was
chargeable to Nye County after the second Monday in June 1929, and it could not take legal
action on said taxes until after that time.
OPINION
By the Court, Coleman, C. J.:
John Potts owns a ranch which each of the parties hereto claims lies within its boundaries.
It and his personal property were assessed in both counties for several years. He elected,pursuant to law, to pay taxes to defendant county. Plaintiff sued defendant county to recover
the taxes thus paid to it. The trial court rendered judgment in favor of the defendant on all
counts of the complaint except the first and second, and in favor of the plaintiff on the first
and second counts of the complaint—the first count being to recover the first installment of
1928 taxes paid by Potts prior to the first Monday in December 1928, and the second countEHLQJWRUHFRYHUWKHVHFRQGLQVWDOOPHQWRIWD[HVDOOHJHGLQWKHFRPSODLQWWRKDYH
EHHQSDLGE\3RWWVSULRUWRWKHILUVW0 RQGD\LQ-XQH
ÐÐÐÐ59 Nev. 114, 116 (1938) Lander County v. Nye CountyÐÐÐÐ
being to recover the second installment of 1928 taxes, alleged in the complaint to have been
paid by Potts prior to the first Monday in June 1929. From the judgment thus rendered against
the defendant, and also from the order denying defendant's motion for a new trial, an appeal
has been taken. Notice of appeal was also given as to certain other orders which are
nonappealable.
The only question involved on this appeal is whether or not the suit as to the 1st and 2d
causes of action can be maintained, that is, did Nye County present its claim to Lander
County for auditing pursuant to sections 1957 and 1958 N. C. L., within six months from thetime it become due or payable.
The first-named section reads: “All unaudited claims or accounts against any county in this
state, shall be presented to the board of county commissioners of said county, duly
authenticated, within six months from the time such claims or accounts become due or
payable; provided, nothing contained in this section shall be so construed as to prevent the
presentation and auditing of any claim now due against any county in this state, at any time
Section 1958 reads: “No claim or account against any county in this state shall be audited,
allowed, or paid by the board of county commissioners or any other officers of said county,
unless the provisions of the last preceding section are strictly complied with.”
Lander County received payment of all the taxes claimed by it for 1929 (both installments)
from Potts on November 19, 1928. Nye County filed its claim against Lander County onOctober 7, 1929, which was rejected and disallowed. Suit was brought within six months
from the date of rejection.
It is the contention of the plaintiff that since the Potts property is situated in Nye County,
and was placed upon the assessment rolls of that county and taxes levied thereupon by that
county, and the taxes WKXVOHYLHGQRWEHLQJGHOLQTXHQWXQWLOWKHVHFRQG0RQGD\RI-XQH LWZDVLQQRSRVLWLRQOHJDOO\WRWDNHDQ\DFWLRQDJDLQVW3RWWVXQWLOWKDWGDWHKHQFH
WKHVXLWDJDLQVW/DQGHU&RXQW\LVLQDSWWLPH
ÐÐÐÐ59 Nev. 114, 117 (1938) Lander County v. Nye CountyÐÐÐÐ
thus levied not being delinquent until the second Monday of June 1929, it was in no position
legally to take any action against Potts until that date, hence the suit against Lander County is
in apt time.
While the second cause of action alleges that Potts paid the second installment of 1928
taxes in 1929, the fact is he paid the entire 1928 tax on November 19, 1928; however, we do
not deem this material.
It is provided by section 6442 N. C. L., which was the law at the time the property in
question was assessed and at all times alleged in the complaint in the case (as is true as to theother sections referred to), that immediately after the first Monday in December the tax
receiver, at the close of official business on that day, shall enter upon the assessment roll a
statement that he has made a levy upon all property therein assessed, the taxes upon which
have not been paid, and shall mark the word “delinquent” thereon, opposite the name of the
person or description of the property liable for such taxes, and shall immediately ascertain the
total amount of taxes then delinquent. The section also provides: “A penalty of three percent
per month shall be added and collected by the tax receiver on all such delinquent property
from the date of delinquency until paid, or if still unpaid on the first Monday in June next
succeeding, such penalty of three (3%) percent per month shall be added to the original tax,
together with a penalty of fifteen (15%) percent, hereinbefore provided, and the same shall
become a lien on the property so assessed; and the tax receiver shall immediately prepare a
delinquent list in the manner above provided for delinquent lists for the first installment,
verified by the oath of himself or deputy, together with any property that may become
delinquent on account of the failure to pay the second installment of taxes, and shall file the
same in the office of the county auditor on or before the second Monday in June, specifying
therein the cases in which the taxes shall be collected by VXLW
ÐÐÐÐ59 Nev. 114, 118 (1938) Lander County v. Nye CountyÐÐÐÐ
suit. The second installment of all taxes for the preceding year which remain due and unpaid
on the first Monday in June following shall be subject to, and there shall be added thereto,like penalties as hereinbefore provided for delinquencies upon the first installment.”
Section 6447 N. C. L., provides that immediately after the second Monday in June of each
year the county treasurer shall advertise for sale property upon which delinquent taxes are a
lien, except where taxes due are in excess of $300, which he may omit from such sale, in
which event they shall be collected by suit. The amount paid by Potts to Lander County
exceeded $300, and the amount due by Potts to Nye County also exceeded that amount.
Section 6453 N. C. L. provides that the county auditor, within three days after receiving
the delinquent list, as provided by law, in June of each year, shall make out and deliver to the
district attorney of his county a list of all delinquencies to be collected by suit; and section
6455 provides that the district attorneys of the several counties of the state are directed toimmediately bring suit to recover such delinquent taxes.
It is provided in section 6425 N. C. L. that where the county assessors of two counties
assess property claimed to be situated in both counties, the owner of the property may pay
taxes in the county of his choice. It was held in the case of Humboldt County v. Lander
County, 24 Nev. 461, 56 P. 228, that where the taxes were paid to the wrong county, the
county in which the property was actually situated should recover.
There is no statute imposing a duty upon any public official of a county to inquire if
property assessed in his county (and situated therein) is also assessed in another county and
whether the taxes have been paid in such other county.
1, 2. We are clearly of the opinion that recovery by Nye County is not barred, as
contended by Lander County. The property in question was found by the ORZHUFRXUWWREHLQ
ÐÐÐÐ59 Nev. 114, 119 (1938) Lander County v. Nye CountyÐÐÐÐ
lower court to be in Nye County, and no error is assigned to that finding; hence it is
conclusively established, so far as this court is concerned, that it is in that county. Such beingthe fact, to enable Nye County to subject the Potts property to payment of taxes to that
county, and to enable the collection of those taxes, it was necessary that the provisions of the
statute pertaining to the assessment of property for tax purposes, and all subsequent
provisions pertaining to the collection of taxes, be complied with. No such thing was possible
as taking a short cut to collect from Lander County. The county officials of Nye County were
charged with a knowledge of the law, and it was necessary that they follow the method
outlined. They could take no notice of other circumstances—such as the full payment on
ÐÐÐÐ59 Nev. 121, 123 (1938) Richards v. SteeleÐÐÐÐ
that: the deposit of the funds in the name of Elizabeth Steele in the Postal Savings account;
the absolute surrender of all control over those funds by Margaret Steele Bridgman; the loss
of all dominion over the fund by her; the right of Elizabeth Steele to exercise completecontrol over the deposit, which dominion she subsequently exercised by the withdrawal of the
funds; the relationship of mother and daughter; the fact that Elizabeth Steele is a minor; in
view of the authorities, indicate clearly that a gift of the funds was made by Margaret Steele
Bridgman to Elizabeth Steele, her infant daughter, that there was a complete acceptance by
the donee of this beneficial gift, and that such a gift, so made, could not be revoked.
OPINION
By the Court, Coleman, C. J.:
This is an appeal by the defendant from a judgment in favor of the plaintiff and from anorder denying a new trial. The parties will be referred to as in the lower court.
Omitting a reference to the allegations of the complaint of which there is no denial, it
alleges that the plaintiff loaned to Margaret L. Bridgman, deceased, the sum of $2,400, and
that the said Bridgman did not repay the same.
The answer, for lack of knowledge, denies said allegation of the complaint. The answer
then alleges: “That defendant is informed and believes and therefore alleges the facts to be
that the plaintiff, Elizabeth Frances Steele, came into possession of certain sums of money
belonging to Margaret L. Bridgman, also known as Margaret L. Steele, in that Margaret L.
Bridgman disposed of real property situated in Reno, Washoe County, Nevada, and received
in consideration thereof, approximately WKDWWKHVDLG0DUJDUHW/%ULGJPDQ
Plaintiff filed a reply denying that portion of the matter alleged in the answer, above
quoted, alleging that Margaret L. Bridgman placed money on deposit in the name of plaintiff
for the use and benefit of Mrs. Bridgman, and also denied that portion of said matter alleging
that the plaintiff “gave” money to Mrs. Bridgman.
The plaintiff called as a witness the postmaster of Reno, who testified that Elizabeth
Steele, the plaintiff, a daughter of the deceased, of the age of fifteen, opened an account in theReno post office on January 28, 1937. He than testified as to plaintiff's Exhibit “A,” which is
in the usual form of a card signed by one making such deposit, showing residence, age,
business, amounts and dates of deposits and dates of withdrawal. This exhibit shows that on
January 28, 1937, the plaintiff deposited $1,150, and that on May 17, 1937, she deposited
$1,250. It also shows withdrawals by plaintiff, as follows: May 25, 1937, $400; June 14,
1937, $500; July 10, 1937, $500; July 24, 1937, $550; and August 12, 1937, $500.
The witness also testified that an infant over twelve years of age may withdraw deposits
made by her. He also testified that no person can deposit over $2,500.
At the conclusion of the testimony of this witness, the plaintiff rested. Thereupon the
defendant moved for a nonsuit, which was denied.
ÐÐÐÐ59 Nev. 121, 125 (1938) Richards v. SteeleÐÐÐÐ
Proof on the part of the defendant shows that Margaret L. Bridgman opened a postal
savings account on January 27, 1937, on which day she deposited $2,500.
Defendant called as a witness Beryl Steele Muntz, a sister of the plaintiff, both of whom
are adopted daughters of the deceased. She testified to her age being twenty-four years; that
her mother died August 12, 1937. The defendant also offered to prove by this witness thattwo weeks after the death of Mrs. Bridgman there was a conversation between the witness
and the plaintiff, to the effect that her mother desired to deposit some money in the Postal
Savings Department of the United States Post Office of Reno, Nevada, and that the post
office department would not accept over $2,500, and that her mother, or their mother, then
suggested that the remainder be deposited in Betty's name.
Counsel for the plaintiff objected to the admission of the tendered testimony, because it is
hearsay, immaterial and irrelevant, and upon the further ground that it is not admissible under
sections 8966 and 8970 N. C. L. The court sustained the objection. The husband of deceased
was called by defendant, and the court sustained an objection to his testimony on the ground
he was an interested party.Counsel for defendant urges several reasons why the judgment should be reversed. One is
for insufficiency of evidence to justify the judgment. We will now consider it.
1. There is no evidence in this case as to where the plaintiff procured the money which
she deposited in the postal savings account. Nor is there a scintilla of evidence that she loaned
it to Mrs. Bridgman or that she otherwise disposed of it. The pleadings do not constitute
evidence. The matter pleaded in the answer, above quoted, does not, as contended by
plaintiff, admit that the plaintiff loaned the amount stated therein to Margaret L. Bridgman,
election in county entitled to four assemblymen in which thirteen Democrats and one Republican filed for
assembly, were entitled to have their names printed on the general election ballot as nominees of
Democratic Party; the office of assemblyman being one “office” within statute. Comp. Laws, sec.2425.
Original proceeding for a writ of mandamus by the State of Nevada, on the relation of
Patrick Cline, against Lloyd S. Payne, as County Clerk of Clark County, Nevada, to compel
the respondent to print or cause to be printed certain names as candidates for office of assemblyman or member of the assembly of the state legislature on ballots to be used in Clark
County at general election, and certify such names to Secretary of State as candidates for the
office. On demurrer to petition. Demurrer sustained, alternative writ dismissed, and
peremptory writ denied.
Harry H. Austin, for Petitioner:
Surely, each member of the assembly is a separate office, for each is required by law to file
a declaration of candidacy, and if he is elected, each must take a separate oath of office, and
each may be separately prosecuted or removed for misconduct in office. And if each is aseparate office, the one who fills it should not be elected at the primary election. Riter v.
Douglass, 32 Nev. 400, 109 P. 444; Newberry v. United States, 256 U. S. 250, 65 L. Ed. 913.
If, therefore, each one of these four seats in the assembly is a separate office, then, in the
case at bar we have one Republican candidate matched with one of the four Democratic
candidates for one of those seats. And that results in the remaining three Democratic
candidates running without opposition for the other three seats, there being no independent
candidates. Therefore, the case falls squarely within the first proviso of the statute, and it is
required that there shall be two Democratic candidates on the November ballot for each of
those three seats, and one Democratic FDQGLGDWHRSSRVHGWRWKH5HSXEOLFDQFDQGLGDWHIRU
WKHIRXUWKVHDW
ÐÐÐÐ59 Nev. 127, 129 (1938) Cline Ex Rel. v. PayneÐÐÐÐ
candidate opposed to the Republican candidate for the fourth seat.
Roger Foley, District Attorney of Clark County, for Respondent:
It seems to us that the first proviso of section 22 of the primary election law should beconstrued to apply only in the event that there was no Republican candidate for the office,
there being no express provision in the law that would permit the placing on the November
election ballot of seven Democrats and one Republican, as here contended by petitioner. In
the absence of such express provision, the statute should be construed in accordance with the
purpose and intent of the legislature, namely, as a substitution for the party convention. The
way the matter now stands, the two parties have candidates. It cannot be said that the
Republican party has no candidates when it has one candidate. If there were only one
independent candidate and no Republican candidate, the four high Democratic candidates
only would go on the November ballot. There is no apparent reason why the rule would be
different where there is only one Republican and no independent candidate.
OPINION
By the Court, Hatton, District Judge:
This is an original proceeding in mandamus to compel respondent to print or cause to be
printed the names of James Farndale, Patrick Cline, and V. Ray Gubler as candidates for the
office of assemblyman or member of the assembly of the state legislature of the State of
Nevada, upon the ballot to be used in Clark County at the general election to be held therein
on the 8th day of November 1938, and to certify the names of the said parties to the secretary
of state as candidates for the said office of assemblyman at said general election.
ÐÐÐÐ59 Nev. 127, 130 (1938) Cline Ex Rel. v. PayneÐÐÐÐ
Thirteen Democrats and one Republican filed for the Assembly in Clark County. The
county is entitled to four assemblymen. The county clerk, respondent above named, issued
certificates of nomination to the four Democratic candidates who received the highest number
of votes at the primary. The above-named Farndale, Cline and Gubler were the three
Democratic candidates who received the next highest number of votes. The county clerk also
issued a certificate of nomination to the one Republican candidate for the assembly whose
name appeared on the primary ballot of that party. No independent candidate filed. Thequestion to be decided is, how many Democratic candidates should go on the ballot for the
general election in November? The solution of this question involves the application of the
provisions of section 22 of the primary election law, approved March 23, 1917, c. 155, as
amended (section 2425 N. C. L. 1929), which now reads as follows: “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 of said
office or offices; provided further, that where only two candidates have filed for a partisan
nomination for any office on only one party ticket, and no candidates have filed for a partisan
nomination on any other party ticket, for the same office, to which office only one person can
be elected, the names of such candidates shall EHRPLWWHGIURPDOOWKHSULPDU\HOHFWLRQ
ÐÐÐÐ59 Nev. 127, 131 (1938) Cline Ex Rel. v. PayneÐÐÐÐ
be omitted from all the primary election ballots, and such candidates' names shall be placed
on the general election ballots. 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 shall be declared to be the non-partisan 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. As amended, Stats. 1923, 49, 51; 1925, 258; 1927, 325; 1933, 82.”
1. The petitioner takes the position that the names of the seven Democratic candidates
who received the highest number of votes at the primary should be placed on the general
election ballot. If the first part of the second sentence of the section above set forth governs
this situation, it is clear that only the four Democratic candidates who received the highest
number of votes at the primary election are entitled to have their names printed on the general
election ballot as nominees of the Democratic party. But petitioner contends that the situation
is governed by the first proviso of the section. We have concluded that the proviso referred to
does not govern in the present case, for the reasons now set forth. “The words ‘office' and
‘officer' are terms of vague and variable import, the meaning of which necessarily varies with
the connection in which they are used, and, to determine it correctly in a particular instance,
regard must be had to the intention of the statute and the subject-matter in reference to whichthe terms are used.” Mootz v. Belyea, 60 N. D. 741, 236 N. W. 358, 359, 75 A. L. R. 1347.
ÐÐÐÐ59 Nev. 127, 132 (1938) Cline Ex Rel. v. PayneÐÐÐÐ
2. What does the word “office” mean in section 2425? The wording of the section itself
throws light on this question. In the first part of the second sentence of the section, we find
the words, “an office to which two or more candidates are to be elected at the Novemberelection.” In the first part of the last sentence of said section, we find these words, “a
nonpartisan office to which two or more persons may be elected at the November election.”
The foregoing expressions strongly indicate that the legislators themselves intended the office
of assemblyman to be regarded as one office within the meaning of section 2425, regardless
of the number of assemblymen to be elected from the various counties in the general election.
In this view of the matter, the Clark County situation was not one where only one party had
The first part of the second sentence of section 2425 reads, “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,” etc. In the first proviso of the section
referred to, the expression “office or offices” occurs twice. In this expression, is the word
“offices” used simply to imply two or more separate offices, or does the word also connote
the separate positions in one office, as in the office of assemblyman? We take the formerview—that the office or offices referred to may, in any instance, have only one position to be
filled, or there may be several positions, as in the office of assemblyman. The first proviso
applies to an office only when but one party shall have a candidate or candidates for such
office, and there is no independent candidate. If a party has a candidate for one position in an
office, it has a candidate for that office.
The language of the proviso is perfectly clear in a situation where only one party has any
candidates at all for the office of assemblyman, and there is no independent candidate. But we
encounter difficulties if we DWWHPSWWRDSSO\WKHILUVWSURYLVRWRDVLWXDWLRQVXFKDVLV
ÐÐÐÐ59 Nev. 127, 133 (1938) Cline Ex Rel. v. PayneÐÐÐÐ
attempt to apply the first proviso to a situation such as is presented in the instant case; for, if
the situation be regarded as one where there are four separate offices, then it would seem that
the Republican candidate could be the Republican nominee for only one of them. He could
not be the Republican nominee for four separate offices. If the Republican nominee is to bedeemed the nominee of his party for one of the four separate offices, then how could it be
determined who his opponent for that one of the four separate offices would be? As a matter
of fact, each candidate is a candidate to represent all of Clark County. If the county were
divided into four districts so that a candidate would be required to run for one district only,
then there would be a better reason for considering the office as four separate offices instead
of one office to which four candidates are to be elected in November.
For the reasons given, it is hereby ordered that the demurrer to the petition be, and the
same hereby is, sustained, the alternative writ of mandate dismissed, and the peremptory writ
of mandate denied, with cost to respondent.
Note—Ducker, J., having disqualified himself, the Governor designated Hon. Wm. D.Hatton, Judge of the Fifth Judicial District, to sit in his stead.
____________
ÐÐÐÐ59 Nev. 134, 134 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
staying execution was heard by said district court. This motion was opposed by respondent
upon the ground, among others, that the said undertaking filed on March 21 was “defective
for the purpose of staying said execution.” The record does not show that any action was
taken by the court on said motion, but on said first day of April defendant filed with the clerk
of said district court a dismissal, without prejudice, of the said appeal taken on March 21. No
order dismissing said appeal was made by the district court, nor was any application made tosaid court for such an order.
On said first day of April, appellant served and filed a new notice of appeal, and on the
same day also filed a new undertaking on appeal, including an undertaking for stay of
execution. On the same day the district court ordered that the execution of the judgment be
stayed.
No contention or suggestion has been made by either party that the first notice of appeal
was defective or that it was not served or filed within the time or manner prescribed by the
statute; nor is it claimed by either party that the f irst undertaking on appeal was in any way
insufficient as an appeal bond, or that it was not filed within the time limited in the statute.
No exception was taken to the sufficiency of the sureties on the first appeal bond, and the
time for so excepting had expired before April 1.Transcript of the record on appeal was not filed with the clerk of this court until April 30.
Rule II of the rules of this court provides that: “The transcript of the record on appeal shall be
filed within thirty days after the appeal has been perfected, and the bill of exceptions, if there
be one, has been settled.”
1. Respondent has moved this court to dismiss both DSSHDOV
ÐÐÐÐ59 Nev. 134, 136 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
appeals. He contends that if appellant could abandon the first appeal at all, such abandonment
could be effected only by court order, or with his consent. As no court order was made or
applied for, nor respondent's consent given to any dismissal or abandonment of the first
appeal, there was, respondent argues, a valid and perfected appeal pending when appellant
attempted to take a second appeal, and said attempt was therefore a nullity, and the second
appeal should be dismissed. While the transcript of the record on appeal was filed in this
court within thirty days after the second attempted appeal had been perfected, it was filed
more than thirty days after the first appeal was perfected; and as no good cause has been
shown for appellant's failure to comply with said supreme court rule II, this court should, asrespondent contends, also grant his motion to dismiss the first appeal.
2. A number of California and Oregon decisions tend to support respondent's position
with reference to the second appeal. Hill v. Finnigan, 54 Cal. 311; Brown v. Plummer, 70
Cal. 337, 11 P. 631; Schmeer v. Schmeer, 16 Or. 243, 17 P. 864; McCarty v. Wintler, 17 Or.
391, 21 P. 195; Little Nestucca Wagon-Road Co. v. Landingham, 24 Or. 439, 33 P. 983; Hill
v. Lewis, 87 Or. 239, 170 P. 316. But the better rule, in our opinion, is that declared in Sharp
v. Brown, 37 Idaho 582, 217 p. 593. In that case the court said, in part: “Respondent argues
that after the first appeal was perfected a second appeal could not be taken because the trial
court was ousted of jurisdiction, citing Richardson v. Bohney, 18 Idaho 328, 109 P. 727; Hill
v. Finnigan, 54 Cal. 311; Brown v. Plummer, 70 Cal. 337, 11 P. 631, and other cases. The
following statement of the California court in the case of Brown v. Plummer, supra, fairly
represents the view of the courts so holding: ‘Where there is a good and valid appeal from a
judgment of the superior court pending in the Supreme Court, a second appeal from the same judgment is a nullity, for the reason that after the taking of the first appeal there would be
nothing in WKHFRXUWEHORZIURPZKLFKDQRWKHUDSSHDOFRXOGEHWDNHQ:HWKLQNWKLV
ÐÐÐÐ59 Nev. 134, 137 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
the court below from which another appeal could be taken.' We think this position is due to
an erroneous view as to the effect of an appeal. While an appeal undoubtedly divests the court
of jurisdiction to proceed in any manner that would affect the merits of the appeal, it does not
follow that ‘there would be nothing in the court below from which an appeal could be taken.'
At most, the effect of the judgment or order appealed from is only suspended, and in certain
case recognized by C. S. sec. 7155, and other sections of the Idaho Compiled Statutes, a mere
appeal does not stay an execution of the judgment appealed from. These statutory provisions
completely refute the contention that simply taking an appeal wholly removes the case from
the trial court. * * * Whether the first appeal was good or not, respondent has suffered no
injury by the second, and if the first was in fact valid and the second had been taken in good
faith, under the mistaken impression that the first was not valid, we think only a technical
construction of the law would require us to hold that the second must be dismissed becausethe first, now lapsed or abandoned, was valid when the second was taken. * * * If a valid
appeal is in existence when the second is taken, and remains effective so that at the time a
motion to dismiss is presented there are two identical appeals before the court, of course the
second confers no benefit on appellant nor jurisdiction on the court not already possessed
under the first, and therefore it should be dismissed. But if the first appeal, even though valid
at the time the second was taken, is thereafter abandoned or allowed to lapse, if the second
has been taken in good faith and within the statutory time, and respondent is not prejudiced
thereby, such second appeal will not be dismissed on the ground that a valid appeal was
pending at the time the second was taken.” Sec. 17 of the Nevada new trials and appeals act,
Stats. of Nevada 1937, chap. 32, p. 53, at page 58, corresponds to Idaho C. S. sec. 7155
mentioned in the foregoing excerpt from Sharp v. Brown.
ÐÐÐÐ59 Nev. 134, 138 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
See, also, the following: Pilkington v. Potwin, 163 Iowa 86, 144 N. W. 39; Jenney v.
Walker, 80 Ohio St. 100, 88 N. E. 123; Groendyke v. Musgrave, 123 Iowa 535, 99 N. W.
144.
If there were anything in the record showing bad faith on the part of appellant, or prejudice
or injury to the respondent, we would feel more disposed to grant both of respondent's
motions.The motion to dismiss the first appeal is granted; the motion to dismiss the second appeal
is denied.
Costs are awarded to appellant.
On the Merits
January 4, 1939. 85 P.(2d) 1016.
1. Appeal and Error.
Documents not properly incorporated in a bill of exceptions or part of the judgment roll
would be stricken from the record on appeal.2. Appeal and Error.
Where there was no bill of exceptions, inquiry into the matter of alleged error in the
court below would be limited to the pleadings, the copy of the finding of that court, and
the copy of its judgment. Comp. Laws, sec. 8829, subd. 2.
3. Appeal and Error.
Where there was no bill of exceptions and alleged error did not appear on the face of
the judgment roll, alleged error could not be considered by the supreme court.
4. Chattel Mortgages.
The section providing that a mortgage of personalty is void as against creditors of
mortgagor and others unless the mortgage is filed but not for recordation in the office of recorder which, as amended, required the mortgage also to be alphabetically indexed in
the proper book of indexes was not repealed by statute as amended entitled “An act
concerning county recorders, and defining their duties,” and providing that all acts and
parts of acts in conflict therewith are hereby repealed. Comp. Laws, sec. 987, as
amended; Comp. Laws, sec. 2110, as amended by Stats. 1935, c. 148.
5. Chattel Mortgages.
A mortgage covering mining claims and personal property located thereon which was
recorded in the book of real and chattel mortgages, which record was duly indexed in the
real estate index but which was not filed and alphabetically indexed in the proper book of
indexes, but not for recordation, in the office of the county recorder where property
mortgaged was located, was void as against a judgment creditor of mortgagor.
ÐÐÐÐ59 Nev. 134, 139 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
Comp. Laws, sec. 987, as amended; secs. 986, 988, 989, as amended by Stats. 1935, c.
116; Comp. Laws, sec. 2110, as amended by Stats. 1935, c. 148; Stats. 1935, cc. 119,
121, 123.
Appeal from Sixth Judicial District Court, Humboldt County; L. O. Hawkins, Judge.
Action by Noel Devine against the East Standard Mining Company, a corporation, wherein
Mamie Joseph intervened. From a judgment for the plaintiff, defendant and intervener appeal.
Affirmed.
Salter & Robins, for Appellant:
In view of the fact that this is an appeal upon the judgment roll, and from certain orders,
we are not insisting that any additional papers sent up to the supreme court be considered, in
the face of the motion of respondent to strike them.
Section 6, Stats. 1935, p. 329, is free from ambiguity, stands alone, and is not modified or
limited by any other statute relating to real mortgages only, or to chattel mortgages only. Themortgage involved herein is an instrument mortgaging both real and personal property, and
was presented to the county recorder for recording by the mortgagee; it was recorded in a
book kept by him for that purpose, Book 3 of Real and Chattel Mortgages, at page 517; it was
indexed in the real estate index as deeds and other conveyances are required by law to be
indexed.
J. W. Dignan, for Respondent:
This is an appeal upon the judgment roll alone, so that the only proper appellate record is
the judgment roll, together with the notice of appeal and the undertaking on appeal. The
documents which we have moved to have stricken are no part of the judgment roll, they arenot incorporated in any bill of exceptions, and no one of them has any proper place in this
record. Streeter v. Johnson, 23 Nev. 194, 44 P. 819.
The alleged fourth assignment of error is apparently LQWHQGHGWREHDQDVVLJQPHQWRI
In November 1937 respondent (plaintiff) commenced an action against appellant EastStandard Mining Company (defendant) for a money judgment, and cause certain personal
property to be attached. Appellant Mamie Joseph intervened, alleging that she held a prior
lien on said property by virtue of a real and chattel mortgage executed and delivered to her by
defendant in May 1936 to secure an indebtedness of $10,000, of which only $6,693.57 had
been repaid.
After issue joined, a trial was had by the district court, without a jury. Judgment was
awarded plaintiff, on his first cause of action, in the sum of $375 with interest, and on his
second cause of action, in the sum of $554.27 with interest. The complaint of the intervener
was, by said judgment, dismissed.
No motion for new trial was made, either by defendant or intervener.
Defendant and intervener have appealed from those portions of the judgment which readas follows: “For the sum of Five Hundred Fifty-four and 27/100 ($554.27) Dollars, with
interest thereon at the rate of seven per cent per annum from June 1st, 1936, to and until
March 7th, 1938, amounting to the sum of Sixty-seven and 87/100 ($67.87) Dollars, on his
second cause of action, being the total sum of Six Hundred Twenty-two and
any place in the judgment roll; the motion to strike must therefore be, and is hereby, granted.
Our inquiry into the matter of alleged error in the court below is thus limited to the pleadings,
the copy of the finding of that court, and the copy of its judgment. Subd. 2, sec. 8829 N. C. L.
1929.
Appellants contend that the district court erred in refusing to allow a set-off in the sum of
$378 against plaintiff's second cause of action—the amount allowed by the court being but$50.
The second alleged error complained of is the action of the district court in denying
defendant's motion to discharge the writ of attachment.
Defendant further contends that the trial court erred in denying its motion to retax costs by
striking out an item for keeper's fees amounting to $74.
3. If any error was committed by the lower court with respect to any of said three
assignments of error, VXFKHUURUFDQQRWEHFRQVLGHUHGRQWKLVDSSH DOEHFDXVHLWGRHVQRW DSSHDURQWKHIDFHRIWKHMXGJPHQWUROODQGWKHUHLVQRELOORIH[FHSWLRQV
ÐÐÐÐ59 Nev. 134, 142 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
such error cannot be considered on this appeal because it does not appear on the face of the
judgment roll, and there is no bill of exceptions.
Appellants further assign as error the action of the district court in dismissing intervener's
complaint in intervention. The question presented by this assignment appears from the
following portions of the trial court's findings of fact and conclusions of law: “The court
further finds that on May 24th, 1936 the defendant, East Standard Mining Company, for value
received, by its duly authorized officers, made, executed and delivered to Mamie Joseph,Intervenor herein, a note in the sum of $10,000.00, and bearing interest at 6%, payable two
years after date; that on the same day said East Standard Mining Company by its duly
authorized officers made, executed and delivered to said Mamie Joseph a mortgage, securing
said note, covering certain mining claims located in Elko County, Nevada, and also covering
personal property located upon said mining claims consisting of mining machinery, pipe,
rails, tools, timber, cars, engines, wells, buildings, well drilling machinery and mill
machinery. That there has been paid on said note the sum of $6,693.57, leaving a balance
owing upon said note of $3,306.43, with interest. That the said mortgage was filed for record
at the request of Mamie Joseph on the 25th day of August, 1936, and recorded in Book 3 of
real and chattel mortgages at page 517 thereof, as of said date, and that the said record was
duly indexed in the real estate index as deeds and other conveyances are required to be
indexed. That the said mortgage was not filed and alphabetically indexed in the proper book
of indexes, but not for recordation, in the office of the recorder of Elko County, Nevada,
where the property mortgaged is located at the time the mortgage was executed, and therefore
the said mortgage, as to the personal property therein described, is void as against the
creditors herein; and that said complaint in intervention should be dismissed, with costs in
ÐÐÐÐ59 Nev. 134, 143 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
We are referred by appellants to section 6 of “An act concerning county recorders, and
defining their duties.” sec. 2110 N. C. L. 1929, as amended, Stats. of Nevada 1935, chap.
148, pp. 328, 329. Said section reads as follows: “Whenever an instrument conveying,
encumbering or mortgaging both real and personal property shall be presented to any county
recorder for recording, the said county recorder shall record such instrument in a book kept by
him for that purpose, which record must be indexed in the real estate index as deeds and other
conveyances are required by law to be indexed, and for which he may receive the same fees
as are allowed by law for recording and indexing deeds and other instruments, but only one
fee for the recording of such instruments shall be collected.” Said act of 1935, amending said
section 6, as aforesaid, contains this further provision: “All acts and parts of acts in conflict
with the provisions of this act are hereby repealed.”
Said section 6, as originally enacted (Stats. of Nevada 1921, chap. 92, p. 157, N. C. L.
1929, sec. 2110), provided that the record of an instrument conveying, encumbering or
mortgaging both real and personal property, “must be indexed in both the real estate index
and the personal property index, as deeds and other conveyances are required by law to be
indexed * * *.” (Italics ours). In other words, the only change made in said section 6 by the
1935 amendment consisted in the omission of the requirement that such records must be
indexed in the personal property index. The reason for said change in section 6 becomes
apparent when we consider certain other legislation enacted by the same (1935) legislature.
Section 1 of chap. 116, Stats. of Nevada 1935, p. 242, amends the title of the act of March
8, 1923, “concerning mortgages of personal property, providing for their recordation, andother matters relating thereto, and repealing all acts or parts of acts in conflict herewith”
(Stats. of Nevada 1923, chap. 91, p. 153; vol. 1 N. C. L.
ÐÐÐÐ59 Nev. 134, 144 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
1929, p. 288), by changing the word “recordation” to “filing.” Section 2 of said act of 1923
(sec. 986 N. C. L. 1929), as amended, Stats of Nevada 1935, chap. 116, p. 243, reads asfollows: “Every mortgage, deed of trust or other instrument which creates a lien upon
personal property, crops, or chattels, even though real property be included therein, is a
chattel mortgage within the terms of this act, and when the same is executed, as required by
this act, shall be entitled to filing as provided for in this act.”
Section 3 of said act of 1923 (sec. 987 N. C. L. 1929), as amended, Stats. of Nevada 1935,
chap. 116, p. 243, is as follows: “A mortgage of personal property or crops is void as against
creditors of the mortgagor and subsequent purchasers or encumbrancers of the mortgaged
property in good faith and for value, unless the mortgage, or a copy thereof certified to be
such by a notary public or other officer authorized to take acknowledgments, or in executed
counterpart of such mortgage, is filed, but not for recordation, in the office of the recorder.
* * * A mortgage of personal property or crops when so filed operates as constructive notice
to all persons of the contents thereof.”
Said section 3 was again amended on March 19, 1937, p. 162, c. 87, by adding, after theword “filed,” in both of the two places where that words occurs in said section, the words
“and alphabetically indexed in the proper book of indexes.”
We refer also to the wording of sections 4 and 5 of the 1923 act (secs. 988 and 989 N. C.
L. 1929, as amended, Stats. of Nevada 1935, chap. 116, pp. 243, 244), and to that of chap.
119, Stats. of Nevada 1935, pp. 247-251, chap. 121, Stats. of Nevada 1935, pp. 253-255, and
chap. 123, Stats. of Nevada 1935, pp. 258, 259.
4, 5. It appears from the judgment roll that the requirements of amended section 3 of the
chattel mortgage act of March 8, 1923, were not complied with in this case. Said amended
section was not repealed or superseded by chap. 148, Stats. of Nevada 1935, pp. 328,
ÐÐÐÐ59 Nev. 134, 145 (1938) East Standard Mining Co. v. DevineÐÐÐÐ
329. The district court was therefore right in dismissing said complaint in intervention.
No motion for a new trial having been made in this case; there being no bill of exceptions
in the record on appeal, and no error appearing in the judgment roll, the judgment and orders
appealed from must be, and are hereby, affirmed, with costs to respondent.
____________
ÐÐÐÐ59 Nev. 145, 145 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
FEDERAL MINING AND ENGINEERING COMPANY, LTD., A Nevada Corporation,
Appellant, v. ROBERT M. POLLAK, Respondent.
No. 3213
January 4, 1939. 82 P. (2d) 1008.
1. Mines and Minerals.The obtaining of corporate note and mortgage by director to whom mining corporation was indebted was
not evidence of fraud which would invalidate note and mortgage, where director did not vote on giving of
mortgage and thereafter continued to loan money to the corporation.
2. Mines and Minerals.A transaction by which director was to sell his stock and the note and mortgage executed to him by
mining corporation, and by which buyer was to be given a lease on mining property after director acquired
title thereto by foreclosure of the mortgage, and by which a sum of money called advance royalty was paid
by buyer to director's account as a payment for the mortgage and stock, did not indicate such fraud as
would invalidate corporation's prior execution of note and mortgage to director.
3. Mines and Minerals.A special meeting of which no written notice was given to directors as required by bylaws of mining
corporation, and which was not attended by a majority of directors plus one, which the bylaws providedshould constitute a quorum, was not a legal meeting and no legal action could be taken at such meeting.
4. Estoppel.A person cannot accept the benefits derived from a transaction and repudiate the burdens connected with
the transaction.
5. Corporations.A corporation cannot avail itself of the benefits of moneys ORDQHGWRLWIRULWVFRUSRUDWH
ÐÐÐÐ59 Nev. 145, 146 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
loaned to it for its corporate purposes, and disavow a mortgage given without authority by its agents to
secure the loan.
6. Estoppel.The rule that a person cannot both benefit by and repudiate an instrument rests upon the equitable ground
that a person cannot claim inconsistent rights in regard to the same subject.
7. Corporations.A corporation, which knowingly accepts or retains the benefit of an unauthorized contract or other
transaction by its officers or agents, thereby ratifies the contract or other transaction, and is estopped todeny ratification unless the rights of the public are involved or unless the contract is in violation of some
positive law or well-settled rule of public policy.
8. Mines and Minerals.A mining corporation was estopped from asserting invalidity of note and mortgage executed by
corporation to director at a special meeting of which the directors were not given written notice and which
was not attended by a quorum consisting of a majority of the directors plus one as required by bylaws,
where note and mortgage were executed in good faith to secure director's loans without which the
corporation could not have continued in business, and the director did not procure execution of note and
mortgage by fraud and did not vote on the motion calling for execution of note and mortgage, and all the
directors knew of the giving of the note and mortgage and acquiesced therein.
9. Corporations.
That a person lending money to corporation and taking security therefor is an officer of corporation doesnot of itself invalidate the transaction, but merely requires that the evidence be subjected to a close scrutiny
as to the good faith of the officer, and such a transaction is valid if fairly entered into.
10. Pleading.An order requiring plaintiff to amend his reply to conform to the proofs submitted was not error,
notwithstanding that order was not made during trial of case but on the settlement of the findings on
question of corporation's ratification and estoppel to deny validity of mortgage, where the case was tried on
the theory that ratification and estoppel were in issue.
11. Mines and Minerals.In action to foreclose mortgage executed by mining corporation to director loaning money to corporation,
refusal to allow as a credit to the corporation a sum paid to director by third person in connection with
transaction by which director was to sell his stock and mortgage to third person and was to give third
person a lease on the corporation's mining property was not error, where transaction was not to be
completed until after director acquired title to mining property by foreclosure of the mortgage.
ÐÐÐÐ59 Nev. 145, 147 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
12. New Trial.The denial of motion for new trial on ground of newly discovered evidence was proper where due
diligence to procure such evidence a the trial was not shown.
Appeal from Fifth Judicial District Court, Mineral County; Wm. D. Hatton, Judge.
Action by Robert M. Pollak against the Federal Mining & Engineering Company, Limited,
to foreclose a mortgage on certain mining property and personal property appurtenant thereto.
From a decree for the plaintiff and from an order denying a motion for a new trial, the
defendant appeals. Decree and order affirmed.
Walter Rowson, for Appellant:
It is elementary that a corporate meeting cannot be convened in the absence of the
prescribed quorum required by the bylaws, and that any business attempted to be transacted at
such a purported meeting is a nullity, excepting only a resolution to adjourn. The YellowJacket S. M. Co. v. Stevenson, 5 Nev. 224. So we say that there was no meeting and no
authoritative direction to the defendant's officers to execute and deliver the note and
mortgage. The same argument holds true as to those portions of finding No. V which recite
the purported execution of the note and mortgage, “upon the purported condition, as adopted
by said meeting of directors, that such moneys and any moneys theretofore or thereafter
advanced by plaintiff to defendant corporation would be secured by said note and mortgage.”
It is our contention that the general rule as to ratification does not necessarily apply where
the party claiming ratification is not a stranger, but a director or officer of the corporation,
and that the rule has no application whatever in a situation such as is presented by the case at
bar. Acceptance of benefits is not enough, of itself, to operate as a ratification. There must be
proof of full knowledge by the corporation, on the part of all of its directors, of all of the
material facts of the transaction. If less than all of the directors are fully LQIRUPHGWKH
ÐÐÐÐ59 Nev. 145, 148 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
informed, the corporation does not have full knowledge, In this case we have at least two
directors who were denied the confidence to which they were entitled as members of the
board, and two additional directors who were certainly not fully informed.The very least that Pollak, as president of the corporation, should have done was to notify
all of his stockholders that he intended to file suit in foreclosure unless arrangements were
made to reimburse him for the moneys advanced. His silence under such circumstances was
evidence of bad faith.
Execution of the note and mortgage for $25,000 by a minority of the directors was a fraud
on the corporation, for no such sum was or could be proven due plaintiff in any event. That
sum included not only $5,000 as a reimbursement to plaintiff for the amount of his stock
investment, but also approximately $2,000 unjustly claimed by him for travel expenses and
other unauthorized and inequitable claims. A fraudulent note and mortgage cannot be ratified,
except by unanimous action of all of the stockholders. Dana v. Morgan et al., 219 Fed. 313.Plaintiff's amended reply filed after trial presented a material variance from plaintiff's case
as originally pleaded and presented on the trial, and was prejudicial to defendant. Sections
8636—8638 N. C. L. There is a failure of proof of plaintiff's case, as distinguished from a
technical variance to which such proof may be reasonably made to conform. Keller v.
Blasdell, 2 Nev. 162; Marshall v. Golden Fleece M. Co., 16 Nev. 156; Orleans M. Co. v. Le
Champ M. Co., 52 Nev. 92, 284 P. 307, 289 P. 805.
Defendant is entitled to credit for the $3,500 advance royalties paid to plaintiff for
defendant's account, which plaintiff admitted he held in his own name in a foreign bank at the
time he initiated the foreclosure suit and at the time of the trial.
As appears in the supporting affidavit on motion for new trial, defendant received its
information as to the WZRGD\VEHIRUHWKHWULDODQGWKHQHFHVVDU\ZLWQHVVFRXOGQRW
ratifies the transaction or will be estopped to deny the validity thereof. Fletcher Cyclopedia
Corporations (permanent edition), vol. 2, pp. 826, 839; Defanti v. Allen Clark Co., 45 Nev.
120, 198 P. 549.
In the case at bar, the situation is even stronger than the facts of the Defanti case. Here the
evidence showed and the lower court found that all of the directors knew the meeting was to
be held and the general purpose thereof. In the instant case it also appears that not only didthe appellant corporation receive the benefits of the mortgage loan, but all of the directors
knew at the time, or shortly thereafter, of the loan and of the mortgage, and acquiesced
therein. The lower court so found. The stockholders of the corporation were also advised of
the transaction. In this situation, even without the aid of the doctrine laid down in the Defanti
case, the appellant corporation would be bound by reason of ratification. Clark Realty Co. v.
Douglas, 46 Nev. 378, 212 P. 466; Sorge v. Sierra Auto Supply Co., 47 Nev. 217, 221 P. 521.
That an officer of a corporation may loan money to such corporation and take security
therefor is a rule of law that has long been settled. Twin-Lick Oil Co. v. Marbury, 91 U. S.
587, 23 L. Ed. 328; Terhune v. Weise (Wash.), 231 P. 954; Foster v. Belcher's Sugar Refining
Co. 24 S. W. 63; Hough v. Reserve Gold Mining Co., 55 Nev. 375, 35 P. (2d) 742.
The lower court found there was no fraud. And there LVQRSOHDGLQJLQWKHFDVHZKLFK
ZRXOGHYHQUDLVHDQLVVXHRIIUDXG
ÐÐÐÐ59 Nev. 145, 150 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
is no pleading in the case which would even raise an issue of fraud. Bancroft's Code Pleading,
pp. 97—98, 128, 129.
No error was committed by ordering amendment of the reply to conform to the proof.Throughout the trial plaintiff took the position that even if the directors' meeting at which the
note and mortgage were authorized was irregular, in any event appellant had accepted and
retained the benefits and would be estopped to challenge the validity of the mortgage.
The lower court did not err in refusing to allow appellant credit for the $3,500 paid by
Mooney to respondent subsequent to commencement of this action. It is elementary law that
if one claims credit on a negotiable instrument by reason of other transactions, such set-off or
counterclaim must be pleaded to constitute an issue in an action for collection of the debt
evidenced by such instrument. Facts occurring or coming to the notice of a party after the
filing of his pleading may be pleaded by supplemental pleadings. Sec. 8632 N. C. L. In the
absence of such a pleading, the facts cannot be brought before the court. McRea v. Warehime,
94 P. 924. Upon the testimony produced at the trial, it is inconceivable how this $3,500 item
could have constituted a set-off in favor of appellant.
The lower court did not err in overruling the motion for a new trial. No due diligence has
been shown to produce the claimed newly discovered evidence at the first trial. Howard v.
In January 1934 appellant sold to respondent and received payment therefor in cash, stock
in the corporation to the amount of $5,000. Shortly thereafter appellant commenced to borrow
money from him for the purposes of the corporation in connection with said mining property.
Beginning in March 1934 and extending to and including August 31 of that year, respondent
had at various times advanced sums of money to appellant for such purposes, amounting to
$6,221.55.A stockholders meeting was held in April 1934 at which respondent was elected a director
of the corporation. The remaining directors elected at that time were O. J. Belleville, P. B.
Beamer, Edwin E. Sprague, Elmer E. Sprague, H. W. Lang, Dr. Barnard, Harry Kankamp and
M. E. Bohannan, who thereafter, with respondent, constituted the board. A directors meeting
was held at that time at which respondent was elected president of the corporation. Elmer
Sprague was elected secretary and H. W. Lang treasurer at this meeting.
Respondent advanced $2,000 to the company at that time, and in June following advanced
$2,000 more. Soon thereafter the company was again in financial difficulties, and the time to
make final payment to Hanson on the lease and option was nearing. Hanson extended the
time to the last of August. In the latter part of that month the company was considerably in
debt. It had no money to meet its obligations or to make the final payment on the lease andoption. In this exigency, Elmer Sprague, on August 20, wired respondent at Fort Wayne,
Indiana, where the latter lived, for financial help, and was told by a return wire on August 22,
that respondent could furnish no more capital. On the same day Sprague sent him another
pressing wire of the same import. Being unable to secure any money from respondent,
Sprague went to Fort Wayne and induced him to come to Nevada to pay off Hanson. While in
Indiana Sprague also conferred with directors .DQNDPSDQ G'U
ÐÐÐÐ59 Nev. 145, 153 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
Kankamp and Dr. Barnard, concerning the matter. They understood that final payment was
soon to become due; that a meeting of the directors was to be held in Mina about August 28,
and it was expected to get the money from respondent to make the payment. Sprague
informed them that their presence would not be necessary to form a quorum. Respondent and
Elmer Sprague flew to Salt Lake City, where they met director Edwin E. Sprague, and
discussed with him the proposition of respondent putting up the money to make final
payment. From Salt Lake City respondent and Elmer Sprague went to Mina, in Mineral
County, and thence to the mining property on August 31. With the exception of Kankamp,Dr. Barnard and Edwin E. Sprague, the remaining directors were in Mina and went with
respondent and Elmer Sprague to the mining property. On their return to Mina on the evening
of the 31st of August a meeting of the directors was held at the Baker Hotel, at which it was
agreed that if respondent would advance the money to make final payment to Hanson, and
also money to the corporation to meet unpaid bills, taxes due water rent due, and an
additional accrued pay roll, the corporation would execute and deliver to him the note and
mortgage in question. This was done and respondent gave Hanson a check for $9,558, in
payment of the balance of the purchase price, and gave the corporation his check for
$2,720.45, for obligations of the corporation then due. The total of all the sums advanced by
respondent to the corporation and in its behalf, was $18,500. To this was included in the note
and mortgage the said sum of $5,000 paid by him to the corporation, and the sum of $1,500
for additional expenses of the corporation, making in all the sum of $25,000. Respondent
testified that he had paid said additional expenses in the amount of $1,500. A resolution wasadopted at the meeting authorizing the secretary and treasurer to execute the note and
mortgage. Respondent testified that O. J. Belleville was present at the meeting, but the latter
testified that he was not present, and the lower court DFFHSWHGKLVWHVWLPRQ\
ÐÐÐÐ59 Nev. 145, 154 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
accepted his testimony. The bylaws of the corporation provide that a majority of the directors
plus one, shall constitute a quorum. So a quorum of the directors was not present at the
special meeting at which the note and mortgage were given to respondent. No written notice
of the special meeting was given to the directors, as provided by the bylaws.
The court found, among other findings, as follows:
“That at a meeting of the five directors of the defendant corporation held in Mina, Nevada,
August 31, 1934, the said secretary and treasurer of defendant were purportedly authorized
and directed to execute and deliver said mortgage; that no written notice was given to the
remaining directors of the defendant corporation of the said meeting prior to the holding
thereof, but that all of the remaining directors of said defendant corporation had knowledge
that said meeting was to be held and the general purpose thereof; that the directors in
attendance at said meeting, including the plaintiff, constituted a majority of all the directors of said defendant corporation, but that said directors constituted one less than a quorum (a
majority plus one) provided for by the by-laws of the defendant; that the consideration of the
said promissory note and mortgage consisted of moneys advanced by plaintiff to defendant
corporation in the sum of $17,901.43, including taxes hereinafter mentioned; that a portion of
the moneys so advanced were advanced simultaneously with the said signing and purported
execution and delivery of said note and mortgage and to supply the purchase price of the
mining claims described in said mortgage, and were advanced by plaintiff upon the purported
condition, as adopted by said meeting of directors, that such moneys and any moneys
theretofore or thereafter advanced by plaintiff to defendant corporation should be secured by
said note and mortgage; that defendant corporation accepted said advancements in the sum of $17,901.43 so made by plaintiff, and said moneys were used by defendant corporation for its
corporate purposes; that all of the GLUHFWRUVRIILFHUVDQGVWRFNKROGHUVRIWKHGHIHQGDQW
ÐÐÐÐ59 Nev. 145, 155 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
directors, officers and stockholders of the defendant corporation for a long time past, have
been upon notice or have had knowledge of the advancement and acceptance of the said
aggregate sum of $17,901.43, and of the use of the same as aforesaid, and of the execution
and delivery of the said note and mortgage, and have by their acquiescence and the said
corporation has by its acquiescence, ratified the same as the debt and mortgage of the
corporation to the extent of $17,901.43, and is estopped to deny the same.
“That the defendant has failed to pay taxes upon the property described in the mortgage for
the years 1934 and 1935, which said taxes were a lien and charge upon the property described
in said mortgage; that plaintiff herein has paid said taxes in the sum of $648.07.
“That no fraud was practiced by plaintiff in any of the transactions involved in this court.”
These findings are supported by substantial evidence, except possibly, as to all of the
directors having knowledge that the special meeting was to be held. Edwin E. Sprague swears
he knew nothing of the meeting until some time after. Belleville testified he did not know that
the meeting was to be held. However, it appears he was not averse to respondent having
security for the money he advanced, or was to advance. He testified that he went with
respondent, and the other directors to the mining property on the 31st of August, and while
there respondent said to him, “What is the matter with the property, why doesn't it pay?” I
told him that the property was all right, it was the management. And he said that he had
$8,700 in the property, and I told him it was worth fifty thousand dollars of any man's money,
but that I would not put it up unless I had control or security.”
The record justified the finding as to the absence of fraud on the part of respondent. Wewill not attempt to answer all of the contentions of respondent in this respect, a few general
comments will suffice. Of all of the directors, respondent, so far as the record shows, ZDVWKH RQO\RQHZKRSXWXSDQ\UHDOPRQH\WRREWDLQWLWOHWRWKHSURSHUW\LQYROYHGDQGWRWU\WR
SXWLWRQDSURGXFLQJEDVLV
ÐÐÐÐ59 Nev. 145, 156 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
was the only one who put up any real money to obtain title to the property involved and to try
to put it on a producing basis. He was liberal in this respect, and his liberality held good for
some time. Naturally he wanted security for his outlay and Belleville thought he should have
it. When he got it we find Belleville on hand wanting to know what was to be done about his
commission. That he was not present at the meeting does not appear to be through any
connivance of respondent. Respondent testified that he was there and probably thought he
was. Having told respondent that he would not put up money unless he had control or
security, respondent would naturally want him present to vote like he talked.
1. The obtaining of the note and mortgage by respondent is no evidence of fraud. He did
not vote on the motion. After the execution of the note and mortgage he continued to put up
money for corporate purposes. Thereafter he made several unsuccessful attempts to make a
deal for the sale of the property, and was finally forced to commence suit to reimburse
himself.2. One of the incidents that appellant dwells upon as indicating fraud, is that after this
action was instituted respondent entered into a deal with one Mooney to sell to him his
mortgage and stock for $26,000, and by which Mooney was to be given a lease on the mining
property, and in which he paid to respondent's account $3,500, which was designated advance
royalty, and which was to apply as a payment by Mooney to respondent for his mortgage and
stock. We see nothing fraudulent in this transaction. It was fully explained by respondent.
Moreover, it was a transaction accruing some time after the execution of the note and
mortgage, and was wholly immaterial. The same is true as to other negotiations respondent
had for the sale of the property during several years after the execution of the note and
mortgage.
The trial court disallowed a substantial part of UHVSRQGHQWVFODLPLQFOXGHGLQWKH
PRUWJDJH
ÐÐÐÐ59 Nev. 145, 157 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
respondent's claim included in the mortgage. No allowance was made for the sum of $5,000
paid by respondent for his stock in the company, or for the sum of $1,500 additional expense
or for sundry other advancements, reducing the claim, as heretofore stated, from $25,000 to$17,901.43. It was found that the latter amount represented payments accepted by the
corporation for its corporate purposes.
3-5. The question is presented whether, under the facts of the case, the judgment was
warranted, on the ground of ratification by acquiescence, or estoppel, for it must be conceded
that notice of the special meeting was not given to all of the directors, nor was there a quorum
present when the note and mortgage were executed. As heretofore pointed out, the bylaws
required that a written notice of any special meeting must be given, and that a majority plus
one should constitute a quorum. Consequently a legal meeting was not held for want of
proper notice. Defanti v. Allen Clark Co., 45 Nev. 120, 198 P. 549; Clark Realty Co. v.
Douglas, 46 Nev. 378, 212 P. 466. Aside from that, legal action was not and could not havebeen taken for lack of a quorum. Appellant's contention in these respects must be allowed.
But generally speaking, it is a well-settled rule of law that one cannot accept the benefits
derived from a transaction and repudiate any burden connected with it. To state the rule more
specifically in its application to the facts of this case, a corporation cannot avail itself of the
benefits of moneys loaned to it for its corporate purposes, and disavow a mortgage given
without authority by its agents to secure the loan.
The rule is analogous to that which governs in a case where a party avails himself of the
ÐÐÐÐ59 Nev. 145, 158 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
repudiate an instrument, but, if he chooses to take the benefit which it confers, he shall
likewise take the obligations or bear the onus which it imposes.” 24 Nev. 143, 146, 50 P. 798,
799. The principle rests upon the equitable ground that no man can be permitted to claim
inconsistent rights in regard to the same subject. 2 Herman on Estoppel, and Res Adjudicata,
section 1028.7. The generally accepted rule is thus stated in 2 Fletcher Cyclopedia Corporations, at
page 826, and following: “Unless the rights of the public are involved or unless the contract is
in violation of some positive law or well-settled rule of public policy, as a general rule, if a
corporation, with knowledge of the facts, accepts or retains the benefit of an unauthorized
contract or other transaction by its officers or agents, as where it receives and uses or retains
money or property paid by the other party, or accepts the benefits of services, etc., it thereby
ratified the contract or other transaction, or will be estopped to deny ratification.” The
authority goes on to say: “This rule is based upon the doctrine of ratification in toto, under
which a principle must either ratify the whole transaction or repudiate the whole. He cannot
separate the transaction and ratify the part that is beneficial to him, repudiating the remainder;but if he, of his own election and with full knowledge, accepts and retains the benefits of an
unauthorized transaction, he must also accept the part that is not beneficial, and will be held
to have ratified the whole. In some states this rule is adopted by statute.”
8. We have no such statute in this state, but in view of the decisions heretofore rendered
by this court, the question as to the applicability of the rule to the facts of this case is not an
open one in our jurisdiction.
The rule was applied in Defanti v. Allen Clark Co., 45 Nev. 120, 198 P. 549. In that case
the mortgage was made by two of the trustees of the corporation, which received the benefit
of the loan thus secured. The third remaining trustee, Allen Clark, received no notice of WKH PHHWLQJDQGFRQWHQGHGWKDWKHKDGQRNQRZOHGJHRIWKHWUDQVDFWLRQXQWLODIHZGD\V
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ÐÐÐÐ59 Nev. 145, 159 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
the meeting and contended that he had no knowledge of the transaction until a few days
before the institution of the suit for foreclosure.
The court held the giving of the mortgage was an invalid act, but as the corporation had
received the money derived from the mortgage loan, the decree of foreclosure should be
affirmed. Appellant contends that the facts in Defanti v. Allen Clark Co., supra, are so
dissimilar to those of the instant case that it is not an authority in point. We think it iscontrolling. In some respects the facts in the cases are strikingly similar, and in others not so
variant as to invoke a different rule. In each there was an invalid act of executing a mortgage
on the corporate property at a meeting of which proper notice had not been given to all of the
directors. In each the money represented by the mortgage was of the utmost benefit to the
corporation, in fact of lifesaving quality in both cases. In the instant case the moneys
advanced by respondent were substantially the only resource of the corporation for its
corporate purposes, and saved the loss of title to almost all of its mining property. If
respondent had not put up $9,558 on the 31st of August 1934, the last day of the extension of
time to make final payment on the option, the corporation would have been wrecked. In
addition he, at the same time, put up $2,720.45, and subsequently large sums were advanced
by him in good faith, which were disallowed. All of this, in addition to the large sums he hadadvanced for the benefit of the corporation prior to said 31st of August.
In the Defanti v. Allen Clark Co. case a similar portending disaster was averted by the
mortgage loan, as indicated in the opinion. The court said: “The loan was personally
negotiated by Emily Clark, wife of Allen L. Clark, to protect the property of the corporation
from being sacrificed, as well as to pay other existing obligations.”
But appellant contends that essential elements are lacking in the instant case that were
present in Defanti Y$OOHQ&ODUN&RVXSUDQDPHO\NQRZOHGJHRQWKHSDUWRIWKH
fact only subjects the evidence to a close scrutiny as to the good faith of the officer of a
corporation who loans money to it and takes security therefor. That such a transaction is valid
if fairly entered into, is settled law. Hough v. Reserve Gold Mining Company, 55 Nev. 375,
35 P.(2d) 742; Foster v. Belcher's Sugar Refining Co., 118 Mo. 238, 24 S. W. 63; Terhune v.
Weise, 132 Wash. 208, 231 P. 954, 38 A. L. R. 94; Twin-Lick Oil Co. v. Marbury, 91 U. S.
587, 23 L. Ed. 328. In Hough v. Reserve Gold Mining Company, supra, we held that acorporation could enter into a valid contract to purchase property from one of its officers. We
said: “In such a case the better view, sustained by the weight of authority, is that a contract
between a corporation and an officer thereof ‘is not void per se, nor is it voidable, except for
unfairness or fraud for which it will be closely scrutinized in equity.'”
In Twin-Lick Oil Co. v. Marbury, supra, the court said: “While it is true that the defendant,
as a director RIWKHFRUSRUDWLRQZDVERXQGE\DOOWKRVHUXOHVRIFRQVFLHQWLRXVIDLUQHVV ZKLFKFRXUWVRIHTXLW\KDYHLPSRVHGDVWKHJXLGHVIRUGHDOLQJLQVXFKFDVHVLWFDQQRWEH PDLQWDLQHGWKDWDQ\UXOHIRUELGVRQHGLUHFWRUDPRQJVHYHUDOIURPORDQLQJPRQH\WRWKH FRUSRUDWLRQZKHQWKHPRQH\LVQHHGHGDQGWKHWUDQVDFWLRQLVRSHQDQGRWKHUZLVHIUHH
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ÐÐÐÐ59 Nev. 145, 161 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
of the corporation, was bound by all those rules of conscientious fairness which courts of
equity have imposed as the guides for dealing in such cases, it cannot be maintained that any
rule forbids one director among several from loaning money to the corporation when the
money is needed, and the transaction is open, and otherwise free from blame.”
The court in Terhune v. Weise, supra, held valid an agreement between a failing
corporation and one of its officers, whereby in return for advancements to the corporation to
enable it to continue business, the officer was given assignment of contracts, as the agreement
was made in good faith and could not be questioned as a preference.
In Foster v. Belcher's Sugar Refining Co., supra, the directors of the corporation were
commended by the court for loaning money to it for legitimate purposes of the corporation,
and held it a valid claim against the corporation.
The evidence in the instant case points clearly to the good faith of respondent and the
directors who sought to authorize the note and mortgage.
10. On the question of ratification and estoppel the court ordered respondent to amend his
reply to conform to the proofs submitted, which was accordingly done. The order was made
by the court on the settlement of the findings when appellant objected to the findings relatingto ratification and estoppel. Respondent asserts that the amendment was probably
unnecessary and was ordered by the court out of an abundance of caution.
He cites Zenos v. Britten-Cook Land & Livestock Co., 75 Cal. App. 299, 242 p. 914, to
sustain his theory, and refers to the Defanti case in which this court decided the same on the
theory of estoppel, on the pleadings made in the lower court without there having ever been
any amendments to the pleadings. Be that as it may, there was no error in the order. The case
was tried on the theory that ratification and estoppel were in issue, DQGFRQVLGHUDEOH
ÐÐÐÐ59 Nev. 145, 162 (1939) Federal Mining & Engineering Co. v. PollakÐÐÐÐ
and considerable evidence directed thereto was introduced. Appellant therefore could not
have been misled by the fact that the amendment was not made during the trial of the case.
11. Error is predicated upon the refusal of the court to allow as a credit to the corporations
the sum of $3,500 designated as advance royalty paid by Mooney to respondent. The refusal
of the court to allow it was based on the theory that if it was allowable in any event it should
have been made the subject of a set-off on counterclaim, and in the absence of such a
pleading there was no issue made therein. There was no error in this ruling. If, as claimed by
appellant, knowledge thereof was gained subsequent to the filing of its answer in the suit, a
supplemental answer setting up the claim was in order. Moreover, as heretofore pointed out,
the deal in which the $3,500 was involved was entered into after the commencement of the
suit and was made as a part payment to respondent for his mortgage and stock. This
transaction was to be completed after respondent received a deed for the mining property. It is
difficult to see how the corporation had any interest in the payment.
12. The motion for a new trial was properly overruled. The motion was supported by the
affidavit of the attorney of appellant on the ground of newly discovered evidence. Assuming,
without deciding, that the newly discovered evidence claimed is material and not cumulative,
due diligence to procure it at the trial is not shown. Such diligence must appear before a new
trial would be warranted on the ground of newly discovered evidence. Howard v. Winters, 3
Nev. 539; Pinschower v. Hanks, 18 Nev. 99, 1 P. 454; State v. Cook, 13 Idaho 45 , 88 P. 240.
We have examined all the other errors claimed and have discovered none.The decree and order denying the motion for a new trial should be affirmed, and it is so
ordered.
____________
ÐÐÐÐ59 Nev. 163, 163 (1939) Baker v. BakerÐÐÐÐ
MATILDA BAKER, Appellant, v. HARRY BAKER, Respondent.
No. 3249
March 4, 1939. 87 P.(2d) 800.
1. Guardian and Ward—Insane Persons.The words “general guardian,” as used in statute providing that when infant, insane person, or
On June 4, 1937, respondent, as plaintiff, commenced an action for divorce against
appellant in the Second judicial district court, Washoe County. The complaint alleged two
causes for divorce, extreme cruelty, and insanity existing for two years prior to the
commencement of the action. A week later, one June 11, summons and certified copy of complaint were served on defendant at the Fairview Sanitarium in Chicago. Upon plaintiff's
application the court, on July 2, DSSRLQWHGDWWRUQH\-RKQ'DYLGVRQJXDUGLDQDGOLWHPDQG
appointed attorney John Davidson guardian ad litem, and authorized him to appear in and
defend said action in behalf of the defendant.
On July 7 Benjamin Cornbleet, defendant's brother, to whom letters of conservatorship had
been issued on May 5 by the probate court of Cook County, Illinois, noticed a motion for an
order revoking the appointment of said guardian ad litem and filed a petition praying that he
be appointed such guardian ad litem. At the hearing of said motion on July 13, it was shown
that Mr. Davidson was associated with the plaintiff's attorney and frequently looked up law
for him; that they occupied adjoining offices; that plaintiff's attorney paid Mr. Davidson's
office rent; that they were not partners; that one reception room was used in common for their
respective offices, and that Mr. Davidson paid no rent for this room; that he had many cases
of his own; that plaintiff's attorney sometimes turned cases over to him and gave him certain
office work. At said hearing plaintiff's attorney stated that he welcomed the generalconservator to come into the case, and consented to his appearing and filing an answer
therein.
The court denied the motion to remove the guardian ad litem, but gave leave to the general
conservator to appear in the action and file a demurrer. The general conservator, in behalf of
defendant, filed a demurrer to the complaint and an answer thereto, and demanded a bill of
particulars which was furnished by plaintiff—all without any objection on his part. It was also
the conservator, not the guardian ad litem, who, in behalf of defendant, moved for
modifications and additions to the proposed findings of fact, moved for a new trial, and
appealed to this court. From the time the trial court refused to remove Mr. Davidson as
guardian ad litem until after the conservator noticed a motion in this court for allowances on
appeal, neither plaintiff (respondent) nor the guardian ad litem made any objection to the
conservator's appearing and acting in behalf or defendant. Plaintiff, however, did consistently
judgment appealed from; and that the above-entitled court is without jurisdiction to entertain
the said appeal.”
Sec. 8549 N. C. L. 1929 provides that: “When an infant, or an insane or incompetent
person is a party, he must appear either by his general guardian or by a guardian ad litem
appointed by the court in which the action is pending, in each case. A guardian ad litem may
be appointed in any case, when it is deemed by the court in which the action or proceeding isprosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent
person in the action or proceeding, notwithstanding he may have a general guardian and may
have appeared by him.”
The pertinent part of sec. 8550 N. C. L. 1929 reads: “When a guardian ad litem is
appointed by the court, he must be appointed as follows: * * * 3. When an insane or
incompetent person is a party to an action or proceeding, upon the application of a relative or
friend of such insane or incompetent person, or of any other party to the action or
proceeding.”
There can be no question as to the right of the defendant to appeal. The main question is
whether the appeal must be dismissed because Benjamin Cornbleet, the Illinois conservator
who is prosecuting the appeal in behalf of defendant, has not been appointed either as generalguardian or guardian ad litem by any court in Nevada.
1, 2. In the case of In re Nickals, 21 Nev. 462, at page 465, 34 P. 250, at page 251, this
court said: “Except as a matter of comity, and to a very limited H[WHQWJXDUGLDQVDSSRLQWHG
dismissed because Benjamin Cornbleet is not a “party aggrieved” and has no appealable
interest, cannot be sustained. Matilda Baker, not Benjamin Cornbleet, is the appellant, and
she is a party aggrieved and has an appealable interest. Neither as an individual nor in his
capacity as foreign conservator is Benjamin Cornbleet appellant in this case.
In re Pedroli's Estate, 44 Nev. 258, 193 P. 852, 853, cited by respondent, is not pertinent.
In that case one Scott, who had been appointed and had qualified as administrator of the
estate of Charles Pedroli, deceased, was, upon petition of deceased's widow, removed as such
administrator. After a motion for a new trial had been denied, Scott appealed to this court. In
doing so he appealed, not as an individual, but in his representative capacity. It was held that
he could not, in such capacity, appeal from the order removing him as administrator. “This
conviction,” said the court, “is based upon the fact that he has ceased to be the administrator
of the estate, could not control the litigation thereof and handle its affairs generally, and, in
fact, has no appealable interest therein. * * * In what way was Scott affected by the removal?Solely to the extent of the compensation he might earn in the capacity of administrator. * * *
So far as we are advised, the authorities are unanimous in holding that, where one has been
removed as an administrator, his only right of appeal is as an individual. * * *” In the Pedroli
case Scott, in his representative capacity, was the appellant. In the case at bar Cornbleet is not
the appellant in any capacity.
Respondent also relies on the case of Power v. Lenoir, 22 Mont, 169, 56 P. 106, 109, in
support of the proposition that, as Cornbleet has no standing in the Nevada courts, anything
done by him in appellant's behalf in any of the courts of this state would not be binding on
her, and this court is therefore without jurisdiction to entertain this appeal. In the Montana
case, the father of certain minor children was appointed their general JXDUGLDQEXWGLGQRW TXDOLI\E\JLYLQJWKHVWDWXWRU\ERQG
guardian, but did not qualify by giving the statutory bond. Nevertheless he assumed to appear
for them in an action wherein their interest in certain property devised to them by their
mother was at stake, and in which they, with their father as general guardian, were made
parties defendant. About three and a half years after the suit was commenced, the father, in
his absence, was appointed guardian ad litem for his said minor children, and then final
judgment was entered against them. The judgment of the district court was reversed.Speaking of the statute requiring a bond on qualifying, the court said: “But the great weight of
authority sustains the view that the provisions of such statutes are mandatory, and that a
neglect to comply with them renders void all acts of the guardian, insofar as they conclude the
rights of the wards.” Regarding the “nunc pro tunc” order appointing the father guardian ad
litem, the court had this to say: “The court will, in its discretion, make any such order in favor
of a minor not violative of established principles of law; but we have been unable to find any
case in which the court indulges in any presumption against the minor. In the case under
consideration the infants were sought to be divested of their title to the property in
controversy. They were left without lawful defense or representation. This was due to the
failure on the part of plaintiff's counsel and the court to see that they were represented. It was
not for the court to say, after the trial was over, and when he was about to announce the judgment taking from them the property left them by their mother, that the father, whom he
was also about to convict of fraud and wrongdoing, had given them the defense the case
deserved and the real facts warranted.”
4. Power v. Lenoir, supra, is but one of many cases showing the disposition of the courts
to protect minors and incompetents, who are wards of the court, particularly when it is sought
to divest them of any of their rights under the law. See Cubbison v. Cubbison, 45 Ariz. 14, 40
P.(2d) 86; In re Price, 61 Cal. App. 592, 3
ÐÐÐÐ59 Nev. 163, 172 (1939) Baker v. BakerÐÐÐÐ
215 P. 710; Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 697. But there is nothing in any
of these cases which would justify this court in dismissing the present appeal. So far as
appears at this time, Benjamin Cornbleet is not seeking to divest appellant of any rights, but
rather to protect her rights. The chief purpose of statutes such as sections 8549 and 8550 N.
C. L. 1929 is to protect infants, insane persons, and incompetents. They are intended as a
shield for the protection of such litigants, and should not be used as a sword for their injury.
Carlton v. Miller, supra; Brooke v. Clark, 57 Tex. 105.5, 6. This court is of the opinion that although the conservator has no standing, de jure, in
the courts of this state, he should, for the protection of the appellant, on principles of comity,
be recognized and accepted as the proper person to prosecute this appeal on her behalf. In re
Prouty's Estate, supra; 12 R. C. L. 1174, sec. 65; Monographic Note, 89 Am. St. Rep. 273,
274; 15 C. J. 1181, sec. 655; 11 Am. Jur. p. 299, notes 12, 13, 16. In this connection it is to be
remembered that he is appellant's brother (32 C. J. 774, sec. 596), and has thus far sought to
actively protect her rights, apparently at his own expense. Furthermore, the district court
permitted the conservator to act more as a guardian ad litem in fact that as a mere friend of
the court. Ordinarily, at least, an amicus curiae may not file a pleading. 3 C. J. S., Amicus
Curiae, sec. 3, p. 1050, notes 79, 80; 2 Am. Jur. 680, sec. 4, note 13. But in this case the
conservator was not only permitted, without any objection, to file a demurrer and an answer
to plaintiff's complaint, but to demand a bill of particulars (which was furnished him without
objection), move for modifications of and additions to the proposed findings of fact, andmove for a new trial. When plaintiff gave written notice of the lower court's decision denying
the motion for a new trial, it was addressed to the conservator and his attorney, but not to the
guardian ad litem.
ÐÐÐÐ59 Nev. 163, 173 (1939) Baker v. BakerÐÐÐÐ
And, as we have seen, the additional time for filing bill of exceptions was given appellant
through the conservator, not the guardian ad litem. See Lindly v. Lindly, Tex. Civ. App., 109
S. W. 467, at page 469.
There remains for consideration appellant's motion for allowances. Benjamin Cornbleet's
affidavit sets forth that the estate of appellant consists solely of a claim to an interest in a
small house, previously owned by her and respondent, which the latter now professes to have
sold to one of his relatives for an inadequate consideration; that appellant is absolutely
destitute, and has no means of obtaining funds for the expenses incident to her appeal, or for
an attorney's fee for prosecuting the same in her behalf; that she is ill and wholly unable to
work, and is dependent upon her relatives for the necessities of life; that respondent is a man
of ability and is capable of earning sufficient money to pay all the costs and attorney's fees
incident to her appeal; and that he has means within his control with which to obtainsufficient money to defray the expenses of said appeal, aside from his earning power.
The affidavit of R. K. Wittenberg, attorney for appellant, sets forth that the court reporter's
charges for transcribing her notes of the testimony taken at the trial will amount to
approximately $50; and that the record of the other proceedings in the trial court, and the
transcript on appeal, will cost approximately $121.50. An allowance of $250 for preliminary
counsel fee is also requested, making a total of $421.50.
Respondent makes affidavit that he is a man without any means whatever, except what he
earns from week to week as an insurance salesman—his income varying from $10 a week to
$40 a week; that for the six months preceding the date of his affidavit he earned not more
than $10 per week on an average; that at one time he owned an equity in a home in which heand defendant lived; that appellant was of unsound mind for ten years before respondent's
action for divorce was filed, DQGWKDWKHNH SWRQGXW\DWKLVKRPHSUDFWLFDOO\DOORIWKH
and that he kept on duty at his home, practically all of the time, a special nurse to guard
appellant, so that she could be kept at home instead of at an institution for the insane; that all
of his resources were consumed in providing for a special nurse and for doctor's bills until
finally his equity in said home was lost; that he has a daughter thirteen years of age who is
and at all times has been living with him, and that he is supporting and educating her as best
he can from his said meager earnings; that Benjamin Cornbleet, appellant's brother, has
removed her from the Fairview Sanitarium in Chicago and has refused to inform respondent
of her whereabouts; that said Benjamin Cornbleet is a man of great wealth; that he is
interested in or owns or operates some 200 stores constituting a chain store system in the
middle west; that said Benjamin Cornbleet has made threats that he would harass and annoyrespondent because of his action in seeking a divorce from the appellant, and that he would
use every means to delay or prevent him from obtaining such a divorce; that the appeal papers
herein have not been filed in good faith; that respondent has already paid considerable sums,
for a man of his financial ability, in the trial court and in the certiorari proceedings in this
court; that he still owes his counsel a substantial portion of the original fees for representing
him in said matters, and is now unable to pay said balance; that he has not paid his counsel
for appearing in this court in opposition to appellant's present motion, and has no funds with
which to pay for said services, and that his counsel has agreed to appear without any advance
payment under the circumstances.
7-9. The rule requiring the husband to pay the wife sufficient to enable her to meet the
necessary expenses and attorney's fees on appeal in a divorce case is based on necessity to
prevent a failure of justice, and will not be required unless it appears that the wife is without
the means to be employed for such purposes. Effinger Y(IIL QJHU1HY
v. Effinger, 48 Nev. 205, 228 P. 615, 239 P. 801. Where she is destitute of such means, the
husband's poverty is no defense against her right to obtain from him the means necessary to
prosecute her appeal. Jeffers v. Jeffers, 55 Nev. 69, 25 P.(2d) 556. But such poverty should be
taken into consideration in fixing the amount of the allowances. Herrick v. Herrick, 54 Nev.
323, 15 P.(2d) 681. In Black v. Black, 47 Nev. 346, 221 P. 239, 240, upon an application of
the wife for an allowance of $250 attorney's fee on appeal, this court, in denying the motion,
took into consideration, besides the husband's straitened circumstances, the fact that the wife's
father was able and willing to help her financially in her divorce action. In that case the court
quoted the statement of Mr. Nelson, in his work on Divorce and Separation (vol. 2, p. 803),
that “The courts sometimes refuse to assist her where friends or relatives are doing so.” In the
case at bar, though it does not affirmatively appear that Benjamin Cornbleet is willing to
assist appellant financially on this appeal, it does appear, from respondent's affidavit, that he
is abundantly able to do so. We naturally infer that up to this time he has helped her, and
presume that, to some extent at least, he is willing to continue aiding her on her appeal.
10. In the difficult situations frequently presented on motions for allowances in divorcecases, the courts can but use their best judgment in the exercise of an equitable discretion. A
wife in necessitous circumstances must be placed in a position which will enable her to
prosecute her appeal. When that is done, justice to the husband requires that he be not placed
in a position such as to make it impossible for him to strive for the affirmance of a decree
presumably lawful and just.
11. Respondent's motion to dismiss the appeal is denied. It is further ordered that, within
thirty days after written notice of this decision, respondent pay to the clerk of this court, for
the use and benefit of appellant in the prosecution of her appeal, the aggregate DPRXQWRIRQH
amount of one hundred ninety-five dollars, being $30 toward the cost of transcribing court
reporter's shorthand notes of the trial in the district court, $65 toward the cost of preparing
typewritten transcript of the proceedings in the lower court for filing in this court, and $100for attorney's fee. After said money is paid to the clerk of this court, it may be paid out by her
to said conservator, or, upon his authorization, to appellant's attorney. Appellant may later
apply for any further order or orders deemed necessary or proper. Reasonable time after
compliance with said order for allowances will be allowed appellant by the district court for
preparing, filing and serving proposed bill of exceptions, and for taking such other steps as
may be required to complete the bringing of her appeal to this court.
Coleman, J., died before the foregoing opinion was completed.
On Petition for Rehearing
July 19, 1939.
Petition for rehearing granted.
R. K. Wittenberg, for Appellant.
William M. Kearney and Robert Taylor Adams, for Respondent.
Per Curiam:
Upon petition for respondent, and good cause appearing therefor, it is hereby ordered that
the petition for rehearing in the above-entitled cause be, and the same is hereby, granted; the
time for such rehearing is hereby set for Thursday, the 27th day of July 1939, at the hour of 10 o'clock a. m. The rehearing will be confined to the matters presented in the petition.
On Rehearing
November 29, 1939. 96 P.(2d) 200.
1. Exceptions, Bill of—
It is a jurisdictional requirement that bills of exceptions be filed and served in time
prescribed by statute or within VXFKIXUWKHUWLPHDVPD\EHJLYHQE\RUGHURIFRXUWRU
VWLSXODWLRQ
ÐÐÐÐ59 Nev. 163, 177 (1939) Baker v. BakerÐÐÐÐ
such further time as may be given by order of court or stipulation.
2. Appeal and Error.
Portion of order granting motion for allowances which directed trial court to allowreasonable time after compliance with order for allowances within which to prepare, file
and serve proposed bill of exceptions was set aside on rehearing, where it appeared that
time for filing and serving bill of exceptions had been extended several times but had
expired without stipulation for further time before decision of supreme court was filed
but after motion for allowances was heard and submitted.
3. Appeal and Error.
Where portion of order granting motion for allowances directing district court to allow
reasonable time within which to file and serve proposed bill of exceptions was set aside
because time for filing bill of exceptions had expired, order for allowances was modified
by disallowing items toward cost of transcribing court reporter's notes of trial and of
preparing transcript, with leave to appellant to renew application for further allowances,
if trial court relieved her from default in failing to secure extension of time within which
to file and serve bill of exceptions.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
On rehearing. Original order set aside in part and modified in part.
For former opinion, see 59 Nev. 163, 87 P.(2d) 800.
R. K. Wittenberg, for Appellant.
William M. Kearney and Robert Taylor Adams, for Respondent.
OPINION
By the Court, Taber, C. J.:
In our decision denying respondent's motion to dismiss appeal and granting, in part,
appellant's motion for allowances, 59 Nev. 163, 87 P.(2d) 800, 805, we included the
following sentence: “Reasonable time after compliance with said order for allowances will E H DOORZHGDSSHOODQWE\WKHGLVWULFWFRXUWIRUSUHSDULQJILOLQJDQGVHUYLQJSURSRVHGELOORI H[FHSWLRQVDQGIRUWDNLQJVXFKRWKHUVWHSVDVPD\EHUHTXLUHGWRFRPSOHWHWKHEULQJLQJ
RIKHUDSSHDOWRWKLVFRXUW´
ÐÐÐÐ59 Nev. 163, 178 (1939) Baker v. BakerÐÐÐÐ
be allowed appellant by the district court for preparing, filing and serving proposed bill of
exceptions, and for taking such other steps as may be required to complete the bringing of her
appeal to this court.” Respondent filed a petition for rehearing, which was granted. On the
rehearing it was shown that appellant's time for filing and serving bill of exceptions had been
extended several times by the district court; but had expired, without stipulation for furthertime, on February 28, 1939, four days before said decision of his court was filed. It further
appears that, after the petition for rehearing was filed but before it was granted, appellant, in
the district court, noticed a motion for an order relieving her from her default in failing to
secure an extension of time within which to file a bill of exceptions, the motion being based
upon the ground that such failure was the result of mistake, inadvertence, and excusable
neglect.
1. It is a jurisdictional requirement that bills of exceptions be filed and served within the
time prescribed by statute, or within such further time as may be given by order of court of
stipulation. Johnson v. Johnson, 54 Nev. 433, 22 P.(2d) 128; Comstock Phoenix Min. Co. v.
Lazzeri, 55 Nev. 421, 36 P.(2d) 360. At the time the order of this court was made directing
the district court to allow a reasonable time after compliance with the order for allowances
within which to file and serve proposed bill of exceptions, it was not known to this court that
appellant's time for taking such steps had expired. When respondent's motion to dismiss theappeal and appellant's motion for allowances were heard and submitted, appellant's time for
filing and serving bill of exceptions had not expired. Respondent could not foresee that it
would be allowed to expire, and that this court would make the order complained of. He was,
therefore, not in a position to attack the order until and except by petition for rehearing.
2, 3. The order of this court made on March 4, 1939, GLUHFWLQJWKHGLVWULF WFRXUWWRDOORZ DUHDVRQDEOHWLPHDIWHUFRPSOLDQFHZLWKWKHRUGHUIRUDOORZDQFHVZLWKLQZKLFKWRSUHSDUH
directing the district court to allow a reasonable time after compliance with the order for
allowances within which to prepare, file, and serve proposed bill of exceptions, is hereby set
aside. The order for allowances made on the same day is hereby modified by disallowing the
$30 item toward the cost of transcribing the court reporter's shorthand notes of the trial in the
lower court, and disallowing further the item of $65 toward the cost of preparing typewritten
transcript of the proceedings in the lower court for filing in this court. The allowance of $100
for attorney's fee will remain undisturbed.
If the district court shall decide, or has decided, to relieve appellant from her default infailing to secure an extension of time beyond February 28, 1939, within which to file and
serve her bill of exceptions, or if other legal and proper cause be made to appear, she may
renew her application to this court for further allowances on appeal.
Orr, J., did not participate in this rehearing.
____________
ÐÐÐÐ59 Nev. 180, 180 (1939) Thiess v. RapaportÐÐÐÐ
W. H. THIESS, Respondent, v. PAUL RAPAPORT and ETHEL RAPAPORT, Doing
Business Under the Name and Style of ETHEL'S DELICATESSEN, Appellants.
1. Appeal and Error.The filing of transcript of record on appeal with supreme court clerk while motion, noticed within time
allowed by district court order, to strike such transcript from files was pending in latter court, was
premature. Stats. 1937, c. 32, sec. 31 (1).
Appeal from Eighth Judicial District Court, Clark County; L. O. Hawkins, Presiding
Judge.
Action by W. H. Thiess against Paul Rapaport and Ethel Rapaport, doing business under
the name and style of Ethel's Delicatessen. From a money judgment for plaintiff against
defendant Paul Rapaport and a judgment dismissing the action as to defendant Ethel
Rapaport, both defendants appeal. On respondent's motions to strike the transcript of record
on appeal and transcript of testimony in lieu of bill of exceptions from the files, to strike from
such transcripts all portions except those constituting the judgment rule, to strike appellants'
opening brief from the files, and to dismiss the appeal as to defendant Ethel Rapaport.Orders directing remission of the transcript of the record on appeal to the clerk of the
district court and granting respondent's motion to strike appellants' opening brief from
the files.
Albert A. Hinman, for Respondent:
As to the transcript on appeal, the same was prematurely filed. It was filed while plaintiff's
motion to strike the same as a bill of exceptions was pending and undecided in the court
below, after the final decision upon which motion plaintiff had, and still has, five days ZLWKLQ ZKLFKWRVHUYHDQGILOHDOORWKHUREMHFWLRQVZKLFKKHPD\KDYHWRWKHDOORZDQFHDQG
ÐÐÐÐ59 Nev. 180, 181 (1939) Thiess v. RapaportÐÐÐÐ
within which to serve and file all other objections which he may have to the allowance and
settlement of said bill of exceptions, pursuant to the order of said lower court. The time to file
the transcript on appeal does not begin to run until the bill of exceptions has been settled and
allowed. Supreme Court Rule II; Joudas v. Squire, 50 Nev. 42, 249 P. 1068. A transcript filedprematurely will be stricken from the files. 4 C. J. 469, n. 99; City of Bisbee v. Hargrove
(Ariz.), 94 P. 112.
As the transcript of testimony in lieu of a bill of exceptions, the same was also prematurely
filed. Statutes 1937, p. 63, expressly grants the right to object to such a transcript. That right
of the plaintiff was, by order of the court below, extended to five days after notice of final
decision upon his motion to strike, no decision having been rendered thereon, and said order
remaining in full force and effect. Unless such transcript of testimony is filed in conformity
ÐÐÐÐ59 Nev. 180, 182 (1939) Thiess v. RapaportÐÐÐÐ
after the service upon him of the proposed transcript on appeal, propose any amendments
thereto, although given that opportunity, inasmuch as it appears from his own moving papersthat no amendments were proposed from September 20, (1938), the date upon which service
was made, to and including October 14, 1938, the date this cause was docketed in this court.
OPINION
By the Court, Taber, C. J.:
Upon the second trial of this action in the Eighth judicial district court, Clark County,
plaintiff was awarded a money judgment against defendant (appellant) Paul Rapaport, but the
action was dismissed as to the other defendant, Ethel Rapaport. Each defendant moved
separately for a new trial, but both motions were denied. Both defendants have appealed tothis court.
The amended notice of appeal was served and filed September 20, 1938. On the same day
defendants also filed in the district court “Transcript on Appeal and Transcript of Testimony
in lieu of Bill of Exceptions.”
The district court, on said 20th day of September 1938 made the following order: “Upon
good cause shown, the Plaintiff reserving all rights to object to the Bill of Exceptions of the
defendants herein upon the ground the same was not served and filed in time, and having
stated his intention to move for an Order striking the same: It is hereby ordered that the
plaintiff may have to and including the 1st day of October, 1938, within which to serve and
file his Notice of Motion for an Order Striking said Bill of Exceptions, in which event, said
Plaintiff may have five days after notice of final decision upon said Motion within which to
serve and file all other objections which he any have to the allowance and settlement of said
Bill of Exceptions. It is further ordered that in the event said 1RWLFHRI0RWLRQLVQRWVHUYHG DQGILOHGZLWKLQWKHWLPHDERYHOLPLWHGWKDWSODLQWLIIVKDOOVHUYHDQGILOHKLVVDLG 2EMHFWLRQVWRWKH$OORZDQFHDQG6HWWOHPHQWRIVDLG%LOORI([FHSWLRQVRQRUEHIRUHWKHWK
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ÐÐÐÐ59 Nev. 180, 183 (1939) Thiess v. RapaportÐÐÐÐ
Notice of Motion is not served and filed within the time above limited, that plaintiff shall
serve and file his said Objections to the Allowance and Settlement of said Bill of Exceptionson or before the 5th day of October, 1938.” On September 21, 1938, plaintiff served upon
defendants, and filed with the clerk of the district court, written notice of said order.
On said 21st day of September 1938 appellants (defendants) deposited with the clerk of
the district court three hundred dollars in cash in lieu of an undertaking on appeal.
On September 27, 1938, plaintiff served and filed with the clerk of the district court his
notice of motion to strike said transcript on appeal and transcript of testimony in lieu of bill of
exceptions. There is nothing before this court to show that this motion was ever heard or
determined.
The only service of the transcript on appeal and transcript of testimony in lieu of bill of
exceptions was that made on plaintiff September 20, 1938.On October 8, 1938, defendants withdrew said transcript on appeal and transcript of
testimony in lieu of bill of exceptions from the files in the office of said district court clerk,
transmitted said transcripts to the clerk of this court, who filed the same herein on October
14, 1938. There is nothing to show that plaintiff (respondent) at any time noticed any motion
in the district court to correct any error in the said transcript of proceedings, or that he served
or filed any objections to the allowance and settlement of any bill of exceptions.
Respondent has made four motions in this court. The first is a motion for an order striking
from the files the transcript on appeal and transcript of testimony in lieu of bill of exceptions,
upon the ground that both of said transcripts were, and each of them was, prematurely served
and filed.
The second motion is for an order striking from said transcripts all portions thereof, exceptsuch portions as FRQVWLWXWHWKHMXGJPHQWUROO
ÐÐÐÐ59 Nev. 180, 184 (1939) Thiess v. RapaportÐÐÐÐ
constitute the judgment roll. This motion is based upon two grounds, first, that the portions of
said transcripts sought to be stricken are not embraced in a bill of exceptions duly settled and
allowed; second, “that the same as a Bill of Exceptions has been waived.”
The third motion is for an order striking appellants' opening brief from the files. The
grounds upon which this motion is made are, first, that said brief was prematurely served and
filed; second, that it is irrelevant and immaterial to the questions involved as shown by the
record.
The fourth motion is for an order dismissing the appeal as to the appellant Ethel Rapaport,
and for damages. This motion is made upon the grounds, first, that appellant Ethel Rapaport
is not a party aggrieved; second, that the appeal as to her is unauthorized and was made for
delay.
Section 31 of the 1937 new trials and appeals act, Stats. of Nevada 1937, chap. 32, at pp.
63-65, provides, in part, that :
“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 service of
written notice of the decision upon such motion, except as in subdivision (2) of this sectionotherwise provided, any party to an action or 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
proceeding.
“Bills of exceptions shall be made up and prepared as follows, and not otherwise: ³$ WUDQVFULSWRIWKHSURFHHGLQJVFHUWLILHGE\WKHFRXUWUHSRUWHUDSSRLQWHGE\WKHFRXUW XQGHUDXWKRULW\RIODZRUE\DJUHHPHQWRIWKHSDUWLHVWREHDIXOOWUXHDQGFRUUHFW WUDQVFULSWWKHUHRIPD\EHVHUYHGDQGILOHGDQGZKHQVRILOHGVKDOOEHDQGFRQVWLWXWHWKH ELOORIH[FHSWLRQVRIWKHSURFHHGLQJVUHODW LQJWRWKHSRLQWRUSRLQWVLQYROYHGDVWKHUHLQVHW IRUWKZLWKRXWIXUWKHUVWLSXODWLRQRUVHWWOHPHQWE\WKHFRXUWSURYLGHGKRZHYHUWKDWRQ PRWLRQGXO\QRWLFHGWKHFRXUWPD\DWDQ\WLPHFRUUHFWDQ\HUURULQVXFKWUDQVFULSWE\
DSSURSULDWHDPHQGPHQWWKHUH WR
ÐÐÐÐ59 Nev. 180, 185 (1939) Thiess v. RapaportÐÐÐÐ
“(1) A transcript of the proceedings, certified by the court reporter, appointed by the court,
under authority of law, or by agreement of the parties, to be a full, true and correct transcript
thereof, may be served and filed, and when so filed shall be and constitute the bill of
exceptions of the proceedings relating to the point or points involved, as therein set forth,
without further stipulation or settlement by the court; provided, however, that on motion duly
noticed, the court may at any time correct any error in such transcript by appropriate
amendment thereto. The transcript of the proceedings, certified by the court reporter, as
herein provided, together with all other matters, exhibits, motions, papers or orders, required
to be incorporated in a bill of exceptions, when so incorporated in the bill of exceptions, as
herein provided, and when such bill of exceptions has been so settled and allowed, as herein
provided, it shall become a part of the record in such action or proceeding.
“(2) When the transcript of the proceedings, as provided in subdivision (1) of this section,is not served and filed as the bill of exceptions of the proceedings relating to the point or
points involved upon such proceedings, then the bill of exceptions shall be based and be
prepared upon a record of the proceedings made up as follows:
“(a) The point of the exception shall be particularly stated, and may be delivered in writing
to the judge, or, if the party require it, shall be written down by the clerk. When delivered in
writing or written down by the clerk, it shall be made conformable to the truth, or be at the
time, or at or before the conclusion of the trial, corrected until it is so made conformable to
the truth. If the judge shall in any case refuse to allow an exception in accordance with the
facts, any party aggrieved thereby may petition the supreme court for leave to prove the same,
and shall have the right so to do, in such mode and manner and according to such regulations
as the supreme court may by rules impose, and VXFKH[FHSWLRQVDVDUHDOORZHGE\VDLG
VXSUHPHFRXUWVKDOOEHFRPHDSDUWRIWKHUHFRUGRIWKHFDXVH
ÐÐÐÐ59 Nev. 180, 186 (1939) Thiess v. RapaportÐÐÐÐ
such exceptions as are allowed by said supreme court shall become a part of the record of the
cause. * * *
“(d) When the bill of the proceedings, as provided for in subdivision (2) of this section, isused instead of the bill of exceptions, as provided for in subdivision (1) of this section, and
such bill of exceptions has been settled and allowed by the judge or court, or by stipulation of
the parties, as herein provided, the same, together with other matters, exhibits, motions,
papers or orders required to be incorporated in a bill of exceptions, when so incorporated in
the bill of exceptions, as herein provided, and when such bill of exceptions has been so
settled and allowed, it shall become a part of the record in such action or proceeding;
provided, however, that no party to any action or proceeding shall have the benefit or the right
to present or use the form of bills of exceptions, as authorized in subdivision (2) of this
section, unless such party, in open court and before the taking of any testimony, stated such
intention and caused such statement of intention to be entered of record in such action or
proceeding by the clerk of the court.”
Section 32 of said act, Stats. of Nevada 1937, chap. 32, at p. 65, reads as follows: “Any
adverse party may object to the allowance and settlement of any bill of exceptions herein
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
54 Nev. 371, 17 P.(2d) 695, and Anderson v. Snell, 57 Nev. 78, 58 P.(2d) 1041, 1042, 62
P.(2d) 703.
In the Capurro case, supra, this court said [54 Nev. 371, 17 P.(2d) 697]:
“Our Practice Act contemplates at least two methods of having a bill of exceptions prepared
and settled. One is the preparation of a proposed bill of exceptions in a statement of only so
much of the proceedings as is necessary to present to this court the point or points involved.* * * Another method of having a bill of exceptions prepared is to have the court reporter
transcribe the testimony, objections, and rulings, and certify that the same is a full, true, and
correct transcript of the proceedings. The attorney for the defeated party can elect which
method he will resort to. * * * The trial court cannot adopt a different method of settling the
bill of exceptions than that chosen by the counsel for appellant.”
In Anderson v. Snell, supra, referring to the last sentence of subdivision (1) of sec. 31 of
the 1935 new trials and appeals act (Stats. of Nevada 1935, chap. 90, at p. 203), which is
identical with the last sentence of subdivision (1) of the 1937 new trials and appeals act
(Stats. of Nevada 1937, chap. 32, at pages 63, 64), we said: “Respondent argues that this
language signifies that the transcript of the proceedings, as well as the other matters
mentioned, must be settled and allowed by the court or by stipulation of the parties beforethey can become a part of the record as a bill of exceptions. We do not so interpret the
language. It means only that such other matters not properly a part of the judgment roll must
be settled and allowed. We pointed out in Picetti v. Orcio, 56 Nev. [1], 41 P.(2d) 289, where
chapter 97, Stats. of 1923, containing language substantially the same as to making a
transcript of the proceedings certified by the court reporter, the bill of exceptions was under
consideration, that it was not contemplated that such a transcript might not be used with other
documents or matters to make up a bill of exceptions to be VHWWOHGE\WKHWULDOMXGJH
ÐÐÐÐ59 Nev. 180, 189 (1939) Thiess v. RapaportÐÐÐÐ
settled by the trial judge. We say the same as to the statute before us.”
The authorities relied on by appellants are not determinative of the problem now
confronting us. When the transcript of the record on appeal was withdrawn from the files of
the district court and filed with the clerk of this court, there was as we have seen, a motion to
strike pending in the district court. This motion was noticed within the time expressly
allowed by that court in its order of September 20. Appellants have cited no authority holding
that the trial court was without jurisdiction (a) to make said order, or (b) that it is without jurisdiction to strike a proposed bill of exceptions from its files. There is authority holding
that in a proper case the trial court may strike a proposed bill of exceptions. Dainty Pretzel
Co. v. Superior Court, 7 Cal. App. (2d) 437, 45 P.(2d) 817; 4 C. J. S., Appeal and Error, p.
1403, sec. 904, note 16.
We conclude that the transcript of the record on appeal was prematurely filed in this court,
and that it should be returned to the trial court so that plaintiff's motion to strike, heretofore
noticed in that court, may be heard and determined, and such further proceedings had as may
be proper in pursuance of said order of September 20, or otherwise authorized by law.
As the transcript of the record on appeal must be sent back to the trial court, we do not
deem it proper to pass on respondent's second and fourth motions. Such motions may be
renewed in the future if the occasion arises. His third motion, however, for an order striking
appellants' opening brief should be granted.
It is ordered that the transcript of the record on appeal filed in this court on the 14th day of October 1938 be forthwith remitted by the clerk of this court to the clerk of said district court,
and that proceedings be had in the latter court in conformity with the views herein expressed.
It is further ordered that respondent's motion to VWULNHDSSHOODQWVRSHQLQJEULHIIURPWKH
ILOHVEHDQGWKHVDPHLVKHUHE\JUDQWHG
ÐÐÐÐ59 Nev. 180, 190 (1939) Thiess v. RapaportÐÐÐÐ
strike appellants' opening brief from the files be, and the same is hereby, granted.
Costs to respondent.
Note—Coleman, J., died before the foregoing opinion was completed. Orr, J., did not
participate in the consideration of any matters connected with this case.
____________
ÐÐÐÐ59 Nev. 190, 190 (1939) Kelly v. StateÐÐÐÐ
EDWARD KELLY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 3265
April 7, 1939. 89 P.(2d) 1.
1. False Pretenses.Information for obtaining money under false pretense and false representations was sufficient although it
failed to state that the money alleged to have been received was the money of prosecuting witness. Comp.
Laws, secs. 10391, 10865.
2. Indictment and Information.An information should not be required to allege more elements in charging a crime than the statute
defining the crime requires.
3. False Pretenses.Lawful possession of person defrauded is all that is necessary to render person obtaining money by false
pretense and false representations guilty of crime as against contention that no crime is committed unless
money received was owned by person defrauded. Comp. Laws, sec. 10391.
4. Indictment and Information.In obtaining money under false pretenses, the different receipts of money prompted by one design, one
purpose and one impulse are a single act without regard to time. Comp. Laws, sec. 10391.
5. Indictment and Information.Where evidence disclosed intention of defendant to obtain from prosecuting witness as much money as
possible under false and fraudulent representation that defendant had a patent on a radio fixture and was
about to dispose of it and that such representation was the inducement to prosecuting witness to part withhis money in each instance, defendant was properly charged with obtaining the aggregate amount of $75, as
against contention that each sum obtained with a distinct crime which could not be consolidated. Comp.
Laws, sec. 10391.
ÐÐÐÐ59 Nev. 190, 191 (1939) Kelly v. StateÐÐÐÐ
6. Criminal Law.Where defendant was charged with obtaining $75 by false pretenses, and jury, although properly
instructed that they could find defendant guilty of misdemeanor, found defendant guilty as charged, verdict
was not void on ground that jury did not find the degree of the crime. Comp. Laws, sec. 10391.
7. False Pretenses.
Evidence sustained jury's finding that defendant obtained money by false pretenses.
8. Criminal Law.In prosecuting for obtaining money under false and fraudulent representation that defendant had patent on
a radio fixture and was about to dispose of it, refusing defendant's requested instruction defining a patent
was proper since the word has a certain well-defined meaning among laymen.
9. Criminal Law.In prosecution for obtaining money under false and fraudulent representation that defendant had a patent
on a radio fixture which would eliminate static in radio reception and was about to dispose of patent,refusing to permit defendant to make demonstration of his alleged attachment unless district attorney were
given right to cross-examine with reference to it was not error, as against contention that to permit
cross-examination would have disclosed certain secrets which defendant possessed.
10. Criminal Law.In prosecution for obtaining money under false and fraudulent representation that defendant had a patent
on a radio fixture which would eliminate static and was about to dispose of patent, permitting introduction
of expert testimony for purpose of enlightening jury regarding whether defendant's attachment had merit
and to assist jury in determining good or bad faith of defendant was not objectionable on ground that
experts were not familiar with patent law and procedure.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Edward Kelly was convicted of obtaining money under false pretense and false
representations, and he appeals. Affirmed.
M. B. Moore and John W. Burrows, for Appellant:
Their admission of their lack of knowledge as to patents and their characteristics
disqualified each of the witnesses Barnes and Sandorf as to the value of their WHVWLPRQ\LQ
testimony in this case. An expert must be skilled and qualified in the subject as to which he
attempts to pass an opinion. 16 C. J. 747, sec. 1532, U. 1; 16 C. J. 756, sec. 1554b.
The refusal of the court to charge the jury as to the definition of a patent was error and
prejudicial to the material rights of the defendant, in that the jury were thereby confused as to
the value of such expert testimony and unable to understand the difference between an expert
in the line of radio and electricity and an expert on patents, the patentability, novelty and
utility of such “patent,” as a basis of misrepresentation and fraud on a charge of obtaining
money under false pretenses.
A mere false pretense does not constitute a case within the statute; but money, goods or
merchandise must have been obtained from another person; and these acts must have been
done with the intent to cheat and defraud. “The pretense relied upon must relate to a past
event or an existing fact; any representation or assurance in relation to a f uture transaction,
however false or fraudulent it may be, is not, within the meaning of the statute, a false
pretense which lays the foundation of a criminal prosecution.” Maxwell's Crim. Law and
Pro., ch. XVII, p. 129; Dillingham v. State, 5 Ohio St. 284.
Where the crime is divided into degrees, the basic difference being whether the money
received was above or below the sum of fifty dollars; the money being paid in installments,
the payor having knowledge of the proposed use of the money, such sums having been used
in a manner known to the payor before another sum was secured, each secured sum was a
separate and distinct transaction, and the defendant should have been acquitted of the chargeas contained in the information, no one of the sums amounting to the sum of fifty dollars.
People v. Hatch, 109 P. at p. 110; Edelhoff v. State, 36 P. at p. 631.
The court erred in refusing to allow appellant to demonstrate his machine to the jury unless
the district DWWRUQH\ZDVDOORZHGWRFURVVH[DPLQHLQWKHSUHVHQ FHRISHUVRQVQRWH[SHUWV
RQSDWHQWVEXWH[SHUWVRQUDGLRNQRZOHGJHDQGVNLOO
ÐÐÐÐ59 Nev. 190, 193 (1939) Kelly v. StateÐÐÐÐ
attorney was allowed to cross-examine in the presence of persons, not experts on patents, but
experts on radio knowledge and skill. Either Barnes or Sandorf could have applied for the
patent the morning after, knowing that appellant was financially helpless to protect himself in
an infringement suit.
The offense of obtaining money under false pretenses may be either a felony or a
misdemeanor. The verdict of a jury should find the amount proven to have been secured by
The evidence in this case is wholly insufficient to support any verdict of guilty of
obtaining money under false pretenses.
The rule is well established in all jurisdictions that under a statute such as sec. 10865 N. C.
L., the information or indictment must strictly conform to the provisions of the statute
relating to the pleading. The pleader in this case has failed to allege that the money alleged tohave been secured was the money of Zunino, and the information is therefore defective.
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General; Ernest S. Brown, District Attorney; and Nash P. Morgan, Assistant
District Attorney, for Respondent:
Appellant will not be permitted to pick out one of the many representations, and because it
happens to be in the nature of a promise, contend that Zunino relied upon that alone. If a false
promise is coupled with a false statement of fact, or if he relied partly on the false promise
and partly on the false statement of fact, the conviction will stand. 25 C. J. 594. Zunino, of
course, was counting on a 2% interest in the patent, but it cannot be successfully argued that
he would have parted with the money unless he had also been told that there was a patent,that the tube covered thereby would eliminate static, that he was working on a deal with
people to take it over, together with the money demonstrations and discussions in connection
with it.
ÐÐÐÐ59 Nev. 190, 194 (1939) Kelly v. StateÐÐÐÐ
We respectfully submit that the state would have the right to cross-examine the appellantas to any demonstration by him of his alleged invention.
If the obtaining of the money was continuous and systematic and in pursuance of a single
design, purpose or impulse, then it was one crime, to wit, a felony, and not a series of
misdemeanors. It was the same false and fraudulent scheme and design that caused Zunino to
part with all of his money. State v. Barryman, 8 Nev. 262; State v. Mandich, 24 Nev. 336, 54
P. 516; Brown v. State, 18 Ohio St. Rep. 496; State v. Wise (Mo.), 84 S. W. 954; People v.
Mill (Cal.), 183 P. 865; People v. Bratton (Cal.), 14 P.(2d) 125; Ex Parte Jones (Mont.), 126
P. 929.
This court has held in the case of State v. Cudney, 47 Nev. 224, 218 P. 736, that it is no
longer necessary to allege or prove that stolen or embezzled property is actually owned by the
victim, but that lawful possession is all that is necessary. The information alleges that the
money was unlawfully obtained from Zunino with intent to defraud him. So Zunino must at
least have had the lawful possession of it. See, also, 25 C. J. 607.
The jury were instructed as to the different degrees of the offense; also that they might find
the defendant guilty of a lesser degree of the crime charged. So it was no error to refuse to
give the instruction requested by appellant to the effect that if they found the money was
obtained at different times and in amounts each time of less than fifty dollars, they could not
The appellant in this action was convicted of the crime of obtaining money under falsepretense and false representations from on Elmo Zunino. From the MXGJPHQWRIFRQYLFWLRQ
judgment of conviction, order overruling motion for new trial and an order denying a motion
in arrest of judgment, the defendant has appealed.The evidence discloses that the complaining witness, Elmo Zunino, and one Robert E.
Hunt were engaged in conducting a grocery business in the city of Reno, State of Nevada.
Appellant had certain negotiations with one of the partners, Hunt, relative to purchasing an
interest in a patent which the appellant represented he had secured on a radio attachment
which would eliminate static in radio reception and would permit the receiving of programs
from foreign countries at any hour of the day without the accompaniment of static or other
noise. Appellant entered into an agreement with the said Hunt for the purchase of a twenty
percent interest therein. While negotiations with the said Hunt were being carried on,
appellant mentioned the subject to Zunino, and at the invitation of appellant, Zunino
accompanied him to the back room of the store known as the Z and H Market, whereappellant then and there purported to give a demonstration of the workability of his alleged
invention. During the course of the conversation had at that time, appellant informed Zunino
that he had a patent on the attachment, and suggested to Zunino that he get a two percent
interest in it from Hunt. Later Zunino contacted Hunt, and subsequently informed the
appellant that his partner was unwilling to part with a two percent interest. Appellant then
informed Zunino that he would give him a two percent interest. Thereafter, beginning with
the 25th of July 1938, and continuing until the 1st day of September 1938, appellant received
from Zunino numerous small sums of money, aggregating in the whole the sum of
seventy-five dollars. The money was received upon the representation that it was to be used
to purchase radio tubes and chemicals to manufacture a certain gas needed in the operation of
the radio attachment. Appellant further represented to Zunino that he was at the timenegotiating with the Philco people for the sale of his SDWHQWWKDWWKUHHUHSUHVHQWDWLYHVRI VDLGFRPSDQ\ZHUHDWWKH5LYHUVLGH+RWHOLQ5HQRDQGWKDWWKHGHDOZRXOGEHFORVHGDQ\
patent; that three representatives of said company were at the Riverside Hotel in Reno; and
that the deal would be closed any day. According to the testimony of Zunino, it was the
representations of appellant that he possessed a patent and had completed arrangements for its
sale which induced him, Zunino, to give appellant the money. Appellant admitted at the trialthat he had no patent, and we find that the evidence establishes the representations as to
negotiations for a sale to the Philco people to have been false.
Counsel for the appellant have made numerous assignments of error. We will consider the
assignments presented in the briefs and orally argued, but not in the same order.
1-3. First: does the information state a public offense? This question was raised in the
motion for an arrest of judgment, and inasmuch as it relates to the jurisdiction of the court we
deem it advisable to dispose of it first. Counsel for appellant argue that because the
information fails to state that the money alleged to have been received was the money of
Zunino, it is fatally defective. The charging part of the information is as follows: “That the
defendant did wilfully and unlawfully obtain from Elmo Zunino * * * the sum of seventy-fivedollars, lawful money of the United States of America, by means of and by use of false
representation and false pretense, with intent to cheat and defraud the said Elmo Zunino.”
Section 10865 N. C. L. 1929 sets out what shall constitute a sufficient description of the
offense of obtaining money under false pretense or false representation. The pleader in
drawing the information in this case followed the exact language of the statute, with the
exception that he failed to incorporate therein the words “his money.” As we understand the
contention of appellant, a person could not be guilty of the crime of obtaining money under
false pretense or false representation unless the money received was owned by the person
defrauded. Certainly such would be the result if the LQIRUPDWLRQPXVWFRQWDLQDQDOOHJDWLRQ
RIRZQHUVKLSLQWKHGHIUDXGHGSHUVRQ
ÐÐÐÐ59 Nev. 190, 197 (1939) Kelly v. StateÐÐÐÐ
information must contain an allegation of ownership in the defrauded person. We cannot
subscribe to any such restricted interpretation. Section 10391 N. C. L. 1929, which defines
the crime, makes no such restriction; it is made a crime to obtain by false pretense or
pretenses from “any other person.” The information should not be required to allege more
elements in charging a crime than the statute defining the crime requires. Lawful possessionis all that is necessary.
“Actual ownership of the money or goods by the person upon whom the fraud is
perpetrated is not essential. It is sufficient if he had lawful possession and dominion of the
same.” 25 C. J. p. 607.
4, 5. Appellant makes the further contention that because the defendant received from
Zunino small sums of money over a period of several days, none of which was in the sum of
fifty dollars, he could not be convicted of a felony, and should have been charged with a
series of misdemeanors; that each sum obtained was a distinct crime in itself, and could not
be consolidated so as to constitute a sum in excess of fifty dollars. This is true where each of
the crimes is separate and distinct, but an exception obtains where the receipt of the money is
obtained pursuant to one design, one purpose, one impulse, or under such circumstances as to
constitute a single act without regard to time. In adopting this conclusion as to the crime
charged, we have not been furnished with, nor have we found, authority dealing with thecrime of obtaining money under false pretenses where the precise question is decided. Such is
the rule adopted relative to the crime of larceny, and the reasoning employed in the one is
most persuasive in the other. In larceny, different asportations prompted by one design, one
purpose, one impulse, are a single act without regard to time. State v. Berryman, 8 Nev. 262;
State v. Mandich, 24 Nev. 336, 54 P. 516; Brown v. State, 18 Ohio St. 496; State v. Wise,
186 Mo. 42, 84 S. W. 954; People v. Mills B. Sing, 42 Cal. App. 385, 183 P. 865; People v.
Bratton, 125 Cal. App. 337, 14 3
ÐÐÐÐ59 Nev. 190, 198 (1939) Kelly v. StateÐÐÐÐ
P.(2d) 125; Ex Parte Jones, 46 Mont. 122, 126 P. 929. And in obtaining money under false
pretenses, the different receipts of money prompted by one design, one purpose, one impulse,
are a single act without regard to time. The acts may be looked upon as one transaction and
constituent and component parts of the same cheat and fraud. We have read the cases of
People v. Hatch, 13 Cal. App. 521, 109 P. 1097, 1100, and Edelhoff v. State, 5 Wyo. 19, 36
P. 627, 631, cited by appellant, but to our minds they present different situations than exists
in this case. In the first, each loan was a separate transaction, and in the second the rent was
collected in monthly installments and each payment converted to the use of the agent as hecollected it—each a single and distinct act without the element, as exists here, of a single
design, purpose, or impulse.
What was the purpose and intent of appellant in this case? The evidence discloses the
intention of the appellant to get from Zunino as much money as possible under the false and
fraudulent representation that he had a patent on a radio fixture and was about to dispose of it.
This was the inducement to Zunino to part with his money, in each instance. The same false
scheme actuated Zunino to part with his money each time. Appellant did not receive the
money under the representation that he was attempting to perfect a patent, but that he needed
the money in order to obtain tubes and purchase chemicals in order to demonstrate a patent
already obtained and which he was about to sell—one and the same false pretense or falserepresentation of an existing fact, of something having great value. The promise to give
Zunino a two percent interest is but one of the false promises made; and though it deals with
something to be done in the future, the other representations come within the rule that the
representations must relate to a prior or existing fact. Appellant made representations to
Robert E. Hunt, the partner of Zunino, as to his ownership of a patent. This HYLGHQFH
evidence corroborated the existence of a scheme and design in the mind of appellant to cheat
and defraud. The circumstances of this case bring it well within the exception, and appellant
was properly charged with obtaining the aggregate amount, namely, seventy-five dollars.
6. Another contention made is that the verdict of the jury is void in that no judgment
could be rendered thereon because the jury did not find the degree of the crime, the jury
having found the defendant guilty as charged. The contention of counsel being that inasmuch
as the defendant could have been convicted of a misdemeanor, the jury should have
designated the degree of the crime. This point is completely answered by the determination
that the acts constitute one crime. He was charged with obtaining seventy-five dollars, a
felony. The jury were properly instructed that they could find the defendant guilty of a
misdemeanor under the information, on the theory that the lesser crime was contained within
the greater. But their verdict was for the greater.
7. The summary of the evidence given in this opinion and the effect we ascribe to the
representations made convince us that it is ample to justify the jury in finding as they did.
8. An instruction was requested by defendant, which defined a patent. This was properly
refused by the court. An involved definition as to what constitutes a patent could only have
the effect of confusing the jury. The word has a certain well-defined meaning among laymen,
and connotes a thing of value. Such was the understanding intended to be imparted by the
appellant, and, we conclude, such was the understanding that Zunino had.
An attempt was made to persuade this court to overrule the case of State v. Moran, 43
Nev. 150, 182 P. 927. In disposing of this question we will content ourselves with stating thatwe are satisfied with the conclusion UHDFKHGLQWKDWFDVHDOVRWKHUHDVRQLQJXSRQZKLFK
VXFKFRQFOXVLRQLVEDVHGDQGUHIXVHWRGLVWXUELW
ÐÐÐÐ59 Nev. 190, 200 (1939) Kelly v. StateÐÐÐÐ
reached in that case, also the reasoning upon which such conclusion is based, and refuse to
disturb it.9. Complaint is made that the trial court refused to permit the defendant to make a
demonstration of his alleged attachment unless the district attorney were given the right to
cross-examine with reference to it; counsel's position being that the appellant should have
been permitted to place the attachment on the radio, and if it worked that was all that was
necessary. We cannot subscribe to that view. If such a privilege were allowed the appellant,
there would have been no way to determine whether or not he was using some attachment
already in existence, rather than a new principle being involved, or a combination of old and
new principles. This is particularly true in view of the evidence of experts who testified that
there were and are on the market attachments which will reduce static. Counsel urges that to
permit the cross-examination would of necessity disclose certain secrets which the appellant
possessed. A reading of the whole record convinces us that the jury were justified in finding
he had none of value; but conceding that he did, such would not be a sufficient reason to
deprive the state of a valuable right afforded by the law. The ruling was correct. The learnedtrial judge was very careful to safeguard every right of the defendant, and every latitude
consistent with the proper application of the rules of evidence was allowed.
Our finding as to the charge constituting but one crime disposes of the assignment of error
as to the trial court's refusal to instruct the jury that each sum of money obtained was a
distinct offense.
10. It is urged that the court erred in permitting the expert testimony, for the reason that
the said experts were not familiar with patent law and procedure. The question of what
constitutes a patent was not within the field of the relevancy, competency, or materiality of
their testimony. Their testimony was for the purpose of enlightening the jury as to whether the
1. Marriage.Evidence held sufficient to sustain judgment overruling objections to probate of will not mentioning
objector, who claimed to be testator's common-law wife.
2. Wills.The trial court was exclusive judge of credibility of one objecting to probate of will as witness and had
power to disregard her undisputed testimony as to her common-law marriage to testator, if persuaded by
her demeanor on stand, circumstances in evidence, or character of her testimony that it was unreliable.
3. Evidence.Testimony may be so contrary to natural laws, inherently improbable or unreasonable, opposed to
common knowledge, inconsistent with other circumstances established by evidence, or contradictory within
itself as to be subject to rejection by court or jury, though unimpeached by any direct contrary evidence.
4. Wills.The weight of testimony admitted in will contest was for trial court.
5. Wills.Whether reason, given by will contestant for several years' separation of contestant and testator, whose
common-law wife contestant claimed to be, was satisfactory explanation, was for trial court.
6. Wills.
The trial court's action in overruling objections to probate of will and admitting it to probate was noterror because REMHFWRURIIHUHGHYLGHQF HVXIILFLHQWWRVXEPLWFDVHWRFRXUWDQGMXU\
ÐÐÐÐ59 Nev. 201, 202 (1939) In Re Golding's EstateÐÐÐÐ
objector offered evidence sufficient to submit case to court and jury, where proponent did not rely oninsufficiency of objector's evidence, but introduced substantial evidence on issue whether objector was
testator's common-law wife.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
In the matter of the estate of Warren T. Golding, deceased. From a judgment overruling
objections by Mabel Wright to the admission of deceased's will to probate and an order
denying her motion for a new trial, she appeals. Affirmed.
J. M. Frame and F. Raffetto, for Petitioner:
The evidence overwhelmingly established that Mabel Golding was the common-law wife
of Warren T. Golding, deceased, and entitled to all of the rights and benefits accrued to her by
reason of being his widow. The evidence does not to any degree support the ruling and
decisions of the trial court that Mabel Golding was not the wife of Warren T. Golding.
It was error for the trial court to grant what is the equivalent of a motion of nonsuit, in
other words, a motion to overrule appellant's objections to the admission of the will to
The correspondence kept up between Mabel Golding and Warren T. Golding during the
period of time that Mabel was away from him fully explains the reason of her absence. It
shows that it was at the suggestion and request of Warren T. Golding, for the purpose of
taking care of some little children that were left by their deceased mother; that the separation
between the parties at that time was only temporary; and that all during the time money, food,
and clothing was provided for Mabel Golding by Warren T. Golding.
Painter, Withers & Edwards, for Respondent:
The testimony of appellant herself discloses indubitably that there was never any
agreement to effectuate a common-law marriage on the day and hour claimed, or DQ\RWKHU WLPH
ÐÐÐÐ59 Nev. 201, 203 (1939) In Re Golding's EstateÐÐÐÐ
any other time. The parties' subsequent conduct upon returning to Nixon and taking up
separate abodes, as testified by appellant: “I stayed there a little while then go back to my
house”; her sporadic visits to the Golding store: “I live mother's house but go to his house
often”, the lack of continuity of residence and cohabitation in Nixon and Sutcliffe, when she
states that she went back and forth to cook and do housework, “but sometimes I stay with
him”; Mr. Golding's first obtaining her mother's permission for appellant to accompany him
to California; the formal tone of the infrequent correspondence passing between them; the
fact that Mr. Golding sent her back to the reservation after their return from the State of
Oregon; and that the parties did not see each other thereafter for a period of three years; all doanything but indicate that the relationship of husband and wife existed between them. Eldred
v. Eldred (Va.), 34 S. E. 477; In re Richards (Cal.), 65 P. 1034; In re Danikas (Colo.), 230 P.
608.
Melvin E. Jepson, for Respondent, did not file a brief, but participated in the oral
argument.
OPINION
By the Court, Ducker, J.:
This case is before the court for the second time on appeal from a judgment overruling
objections to the admission of a will to probate and from an order denying a motion for a new
trial. On the first appeal the judgment was reversed on the ground of error by the trial court in
striking certain testimony of appellant. In re Golding's Estate, 58 Nev. 274, 76 P.(2d) 1099.
For many years Warren T. Golding conducted a trading post on the Pyramid Lake Indian
Reservation, at Nixon, Nevada, where he lived with his wife, Clara O. Golding. She obtained
a divorce from him in the Second MXGLFLDOGLVWULFWFRXUWRIWKLVVWDWHRQ-XO\
ÐÐÐÐ59 Nev. 201, 204 (1939) In Re Golding's EstateÐÐÐÐ
judicial district court of this state on July 16, 1927. The decree of divorce was filed at the
hour of ten o'clock (10:00) a. m. on that day.
In its findings of fact in the divorce action a written agreement entered into by the parties
on the 15th day of July 1927, pursuant to which Warren T. Golding made and executed the
will appellant is now contesting, was approved by the court. She is not provided for in the
will or mentioned therein. After a certain bequest is made therein to Clara O. Golding, in
compliance with said agreement, the residue of his estate is devised and bequeathed to his
brothers and sisters.
Appellant claims that after the divorce was granted she became the common-law wife of
Golding and was such at the time of his death. The trial court decided that she did not become
the common-law wife of Golding and accordingly made and entered the judgment appealed
from.
1. The single question presented is whether the evidence is sufficient to sustain the
judgment of the trial court.
A general review of the evidence is necessary. In addition to the facts stated above it
appears that appellant, an Indian woman, was born at Nixon, Nevada. Her name was Mabel
Wright. She was about thirty years of age at the time she claims she was married to Golding,
and he was then about seventy years of age. When she was a girl, during the years 1912-13-14
she worked for the Goldings at their home in Nixon, doing the cooking and general
housework. At first she was paid twenty-five cents a day and later fifty cents a day, and wasgiven her meals. She also attended the school at Nixon during that time and slept at the
schoolhouse.
Concerning the alleged marriage relation, appellant, who will also be spoken of as Mabel,
or Mabel Wright, testified that on July 16, 1927, Golding asked her to marry him and she
agreed to do so. Her counsel asked:
“What did he say to your at that time? A. He asked me to marry him.
ÐÐÐÐ59 Nev. 201, 205 (1939) In Re Golding's EstateÐÐÐÐ
“Q. How were you to marry him—the Indian Custom? A. Indian custom.
“Q. A common law marriage? A. Yes.
“Q. And ever since that time you have lived and cohabited together as husband and wife
during his life time, up to the time of his death? A. Yes.”
ÐÐÐÐ59 Nev. 201, 208 (1939) In Re Golding's EstateÐÐÐÐ
on August 21, 1936. She testified that Golding always treated her as a wife from July 16,
1927, up to the time of his death; that they always acted towards each other as husband and
wife; that he gave her the ring she was wearing; that after July 16, 1927, she took his name;
that he never paid her any wages after marriage; that he bought her clothing; that he sent her
money all the time and provided for her in every way; that she cooked for him and kept house
for him; and that when they visited they always went together. “When he got real sick, I asked
him,” she said, “in case any thing happen to him, what am I going to do, and he said, ‘Mabel,
well, you are going to be well fixed. Everything is made to you.”
She testified that she used the name of Mabel Golding after the divorce, used it right
along; and that she wrote to Golding after the divorce and signed the name Mabel Wright.
Later she said: “I used my name right along, Mabel Wright and Mabel Golding. I used both
names.” She testified that after his death she did not write to anybody using the name of
Mabel Wright. She identified a number of letters that passed between her and him which
were introduced in evidence; also a letter written by her to Mrs. E. Long. She said that all
letters came to her from him addressed to Mabel Wright.
The testimony set out above has been subjected to some condensation, but has been fairly
stated in substance.
Appellant's mother, aunt, sister, and brother testified in her behalf. The mother, Annie
Wright, on account of her meager knowledge of our language had difficulty in
comprehending the questions asked and in expressing herself. She testified that her husband's
name was Johnny Wright and she took his name when she married him. She testified as toMabel working for the Goldings when she was a little girl; as to the kind of work she did; and
as to the pay she received. As to their life in Sutcliffe and California the following testimony
was given by her: ³4
ÐÐÐÐ59 Nev. 201, 209 (1939) In Re Golding's EstateÐÐÐÐ
“Q. Did Mabel go to Sutcliffe with him? A. No, she was visiting with him in the daytimeand when she asked me she wanted to go to California and she asked me he wanted to go
with her and we talk together and the three and he said all right and she go with him.
“Q. And she went to Sawtelle? A. Yes.”
Further as to their going to California she testified as follows:
“Q. Did Mr Golding come to you and say anything about taking Mabel away? A. Yes.
“Q. Tell that to the court. A. Yes, I don't understand very well. He ask me, he was going
down to—what you call it? He asked me, he wanted Mabel to go down with him, and me and
Mabel talked together and she said all right, and she often go down there. I don't know what
you call that place.
“Q. Did Mabel go away with him at that time? A. Yes.
“Q. Where has she lived since that time? Has she been with him up to the time he died? A.
When she die?
“Q. When Mr. Golding died, he died this year? A. Yes, he died right there.“Q. Did Mabel stay with him up to that time? A. Yes, and she took care of him * * *
“Q. That was when he was sick? A. Yes.”
Asked concerning Mabel and Golding coming to her home to visit, she said: “Yes,
sometimes day time she visit with us at my house and then that is all, and some times she go
out to visit with our home and then she stay. Mabel she stay behind from Mr. Golding's little
cabin he kept them there, Mabel, and then she left the little boy to to school at that time.
Mabel was to stay with him and I, after that he sold that store and went away and she went
down to that place and we went up there, and after New Years time we give a turkey present
to him, and that time we went up there he asked me about Mabel go with him, and me and
Mabel talked together, and we said all right, and she go with him after that, and she come
ÐÐÐÐ59 Nev. 201, 210 (1939) In Re Golding's EstateÐÐÐÐ
Concerning the Indian custom of marriage, the following was elicited:
“Q. Do you know what an Indian marriage is? A. Yes, he always, some man, go to his
home and you know, man you know, go to his folks home and then he get married. Indianway all the time that way, you know.
“Q. And he takes her and takes her to his house and calls her his woman, or his wife, does
he? A. Oh, sometimes he lives with people, his girl's house and some times he takes his boys
folks name. That is the way the Indian do.”
The sister, Josephine French, testified substantially as follows: She had seen appellant and
Golding together many times at Nixon, Reno, and Los Angeles. She saw them living together
in a house at Nixon. She took a trip with them to Los Angeles in 1928 and stopped with them
in their home. They were living together and he treated her as his wife. He treated her very
affectionately. In 1928, in Sawtelle, California, Golding and Mabel occupied the same room
just like they were married. Appellant cooked for him there. They visited relatives there. Theywent to Sutcliffe where he had a house. In the summer of 1933 he took appellant to Klamath
River on a trip. She had heard Golding say in Los Angeles that Mabel was his wife. In the
spring of 1928 when they left for Los Angeles he said, “Mabel belong to me and I am going
to take her to Los Angeles and take care of her.” He said he wanted Mabel to be his wife in
Indian and he said he asked Mabel to marry him and she didn't want to marry him in the
White way.
When he went to the place on Mill Street in Reno he sent for Mabel. The witness also
went to the house on Mill Street to help take care of Golding and was there when he died.
Mabel's room was not far from Golding's, and witness slept with Mabel. Ever since witness
was married she used the name of Josephine French. Golding bought all Mabel's clothing. He
sent her a box every Christmas and always sent her money when he FRXOGVSDUHLW
ÐÐÐÐ59 Nev. 201, 211 (1939) In Re Golding's EstateÐÐÐÐ
could spare it. At the time he took Mabel away he told witness and her father and mother that
he was going to keep her; and that is the Indian way of contracting marriage. The general
repute among the Indian relations and friends and associates was that they were husband and
wife and were married according to the Indian custom. He always treated her respectfully, the
way other men treated their wives, somebody that they loved. That was the general repute. “I
know he gave her a ring.” The Indian way of marriage was just to go and live together and
raise families.
Appellant's aunt, Minnie Houten, testified that she had seen Golding and Mabel together
on many occasions; and that she spent two weeks of one summer with them in Sawtelle,
California, but did not go out any place. Golding and Mabel occupied the same bedroom
there. “He always called her Mabel. She belong to me and whenever I leave I will take care of
her and leave plenty whenever I go away. He referred that to me many times, she was the only
girl.” She treated him the same way. Many ladies down there recognized her as his wife. The
witness was acquainted with those Indian people, talked with them; they associated with
Golding and Mabel and talked about them as man and wife; and that was the general repute.
Her brother, Paul Wright, testified that just before Mr. Golding went to California in the
spring of 1927 and took Mabel with him he came to the house of his mother and gave Mabela ring and put it on her left thumb and said, “You belong to me now.”
Kate Williams, an Indian woman, testifying in behalf of the appellant, stated that she had
known Mabel ever since she was a little girl; that she knew Golding and knew when Mabel
went to live with him, and had a conversation with him in which he said: “I am going to
marry Mabel.” The witness testified that she was married and after the marriage took her
husband's name, Williams. George A. Evans, testifying in behalf of appellant, VWDWHGWKDWKH UHVLGHVDW6DZWHOOH&DOLIRUQLDEXWKDGGRQHFRQVLGHUDEOHWU DGLQJZLWK*ROGLQJWKDWKH KDGVHHQ*ROGLQJDQG0DEHOWRJHWKHUIUHTXHQWO\VLQFHWKDWRQRQHRFFDVLRQLQ
Golding's store during the year 1927, the latter said: “I am going to take her with me.” I said,
“Yes, that is good.” Asked to state the Indian custom of contracting marriage he replied:
“* * * They like one another and go out and stay together, and they are married in that way,
and I am married in that way. * * * An Indian custom that the White man calls common law
marriage. * * *” Later he stated that his mother was a Pitt River Indian and his father a White
man. He also testified that the general repute among the Indians and those that associatedwith them, was that Golding was Johnnie Wright's son-in-law.
Mamie John, Brady Calico, Mike Rhodes and Raymond Natchez testified in behalf of
appellant. The former stated that she lived at Nixon, Nevada, and knew appellant and
Golding. In 1927 and 1928 they were living in the same house in Sutcliffe. She visited their
house often during that period. She did washing for Golding; washing men's clothing and
Mabel's clothing. She heard Golding call Mabel his wife. She saw them in the same room and
their slippers on both sides of the bed; saw them eating at the same table. At Nixon she heard
the Indians laughing and saying, “That Mabel had an old man husband.” At Nixon Mabel
lived with Golding back of the store.
Brady Calico lived at Nixon and knew Golding and appellant at Nixon and Sutcliffe. He
helped build the house they lived in at the latter place. Mabel, Golding, and Sutcliffe wereliving in the same house. The former acted like they were man and wife. The people at Nixon
say they were married.
Mike Rhodes, living at Nixon from 1927, knew appellant and Golding. At that time she
lived in Golding's house back of his store. The general repute among the people in that
community as to their relation was that WKH\ZHUHOLYLQJWRJHWKHUDVPDQDQGZLIH
ÐÐÐÐ59 Nev. 201, 213 (1939) In Re Golding's EstateÐÐÐÐ
they were living together as man and wife. It was common talk.
Raymond Natchez, a witness in behalf of appellant, had lived in Nixon all his life and
knew appellant and Golding. In the summer of 1927 appellant, Golding, and Sutcliffe moved
into a house at Sutcliffe. Asked as to the general repute among the people of the
neighborhood as to their relations, he said: “Well, anybody knows that they were married as
to common law.
* * * According to our regulation and rule * * * Yes, in the Indian custom we say we are man
and wife and we stay together. * * * That is what the people generally said when they spoke
about them.”Edward Caughlin, a witness on behalf of respondent, testified that he went to work for
Golding, clerking in his store in 1920 and became acquainted with appellant, who was doing
the housework for Golding; that he left the latter's employ in 1928 or 1929 and next met him
in Reno in June 1937 when Golding was living at 257 Mill Street; that he saw him there
frequently; that witness was living at Golding's house when he died and had been living there
for a while before that ; and that he spent a good deal of his time there. When Golding was
taken ill he sent for appellant. She came and nursed him and also did the cooking and
ÐÐÐÐ59 Nev. 201, 215 (1939) In Re Golding's EstateÐÐÐÐ
Nixon and Sutcliffe, he replied that he did, and that the reputation was that Mabel Wright was
working for Golding as a servant in the house. He testified that when Golding died he was
around eighty-one or eighty-two years old; and that Golding commenced to reside at 257 MillStreet in the latter part of May or the first of June 1936. Witness would call at the house every
day and sometimes three or four times a day. When Golding got sick he told witness that he
would “phone to the reservation and get Mabel Wright to come and take care of me * * * She
is a good cook and a good housekeeper and she will give me first class care.” It was in the
latter part of July or the first of August that Mabel came there and remained there till Golding
died, and attended his funeral in Wadsworth. She did the cooking and kept the house there
very clean and took first class care of Golding. He and Mabel occupied separate rooms.
Witness saw no change in relationship of master and servant, to that of husband and wife. If
there had been such a change he believed he would have observed it. Mabel never told
witness that she was the wife of Golding, nor indicated it in any way. She always showed thegreatest concern for Golding, and immediately after his death she was beside his bed holding
his hand and crying.
Robert Schultz, a witness on behalf of respondent, testified substantially as follows: He
was in the employ of Golding at Nixon in the years 1927 and 1928. He went into that
employment in the month of February or March of the former year, first as a clerk and later
had complete charge of the store. He knew Mabel Wright. He first got acquainted with her as
a customer of the store. While he was in the employ of Golding, Mabel also worked for him.
She would come in and wash the dishes and clean house and make the beds, etc. She was a
part time employee. She was not continually engaged in performing housework at the
Golding home after Mrs. Golding left. There were other Indian girls doing the work the same
as Mabel.
ÐÐÐÐ59 Nev. 201, 216 (1939) In Re Golding's EstateÐÐÐÐ
“If there were Indian girls down there he would get them in there, there was no distinction
made in that respect.” When Mabel was working there she resided at the home of her parents
and at a cabin in back of the Golding home. Mabel never occupied any of the bedrooms in the
Golding home. After the Goldings were divorced the witness lived there a little over a year.He was a confident and companion of Golding. He never saw Golding introduce Mabel
Wright to any of the people who came to the reservation. He never heard Mabel make any
statement that Mr. Golding was her husband. Golding occupied his room alone at nights. It
was approximately a year and a half after the divorce when Golding sold the store. Mabel
took no part in the transaction.
The letters, five in number, written by Golding in Los Angeles, California, to appellant,
between 1933 and June 1936, were all addressed to Mabel Wright. The first of these,
introduced in evidence, had the first page missing. It was signed, “Yours truly, W. T.
Golding.” The second letter commenced: “Dear Mabel” and was signed, “Yours truly, W. T.
Golding.” The third commenced, “Dear Mabel,” and was signed, “Yours truly, W. T.
Golding.” The fourth, dated March 1, 1932, commenced, “Friend Mabel,” and was signed,
“Yours, Golding.” The fifth, of date, May 17, 1931, commenced, “Mabel,” and was signed,
“Yours, W. T. Golding.” A letter dated Reno, Nev., Sept. 13, 1936, after Golding's death,addressed to Mrs. E. Long, of Los Angeles, written by appellant, was signed, “Mabel
Wright.” A check dated in Los Angeles, California, Dec. 2, 1930, made by Golding payable
to the order of Mabel Wright, was endorsed on the back, “Miss Mabel Wright,” by appellant.
Two letters from her to him introduced in evidence commenced: “My dear Mr. Golding,” and
were signed, “From Mabel Wright.”
We are of the opinion that there is substantial evidence in the foregoing statement to
support the decision of the court, and require an affirmance of the judgment.
ÐÐÐÐ59 Nev. 201, 217 (1939) In Re Golding's EstateÐÐÐÐ
Appellant contends that there is no evidence contradicting her testimony that on July 16,
1927, he asked her to marry him and she assented. True, there is no evidence directly
contradicting it, but under the circumstances, Golding being dead and no other witness
present at the time of the claimed agreement of marriage, such evidence could not have been
obtained.
2, 3. But the trial court was not bound by her undisputed testimony on this point. That
court was the exclusive judge of her credibility, and if persuaded from her demeanor on the
stand or circumstances in evidence, or from the character of her testimony, that it was
unreliable, had the power to disregard it. As stated in Catlett v. Chestnut, 107 Fla. 498, 146
So. 241, 246, 91 A. L. R. 212: “Testimony may be unimpeached by any direct evidence to thecontrary, and yet be so contrary to natural laws, inherently improbable or unreasonable,
opposed to common knowledge, inconsistent with other circumstances established in
evidence, or so contradictory within itself, as to be subject to rejection by the court or jury as
a trier of the facts.”
4. Considerable latitude was allowed by counsel and the court in the admission of
testimony, but being in the record, its weight was for the trial court. Some of the evidence
introduced by respondent tended to prove that the only relation existed between Golding and
appellant was that of master and servant. Familiars like Caughlin, Cowell, and Schultz, with
ample opportunity for observation provided by daily contact over quite a period of time, saw
nothing in the conduct of the two to indicate a nearer relation than master and servant.Appellant's version of her cohabitation with him at Sutcliffe is contradicted by the two
Coopers, who resided there. It is also somewhat inconsistent with the statement of her mother
that Mabel “was visiting him in the day time.” Other circumstances, which furnished the trial
court with a basis for a legitimate inference unfavorable to the version of appellant and her
witnesses, are the following: The character of the cohabitation UHOLHGRQE\DSSHOODQWDV
ÐÐÐÐ59 Nev. 201, 218 (1939) In Re Golding's EstateÐÐÐÐ
relied on by appellant as evidence of a common law marriage; the character of the letters that
passed between them and from appellant to Mrs. Long; the lack of any evidence to
corroborate appellant that she took the name of Golding after marriage, or ever used the
name; her denial that after her marriage she ever wrote to any one using the name of Mabel
Wright, and retraction of that statement after being confronted with her letters to the contrary.
5. As to the character of the cohabitation claimed by appellant, it was quite unlike the
ordinary course of marriage. Appellant's evidence does not show a constant living together,
but on the other hand, discloses a series of intervals of more or less time when they were not
together, beginning immediately after July 16, 1927.
From 1933 to June 1936 they were not together at all but living in different states. This is
not accounted for on the ground of strained relations, but as appellant states, because she had
to return to Nixon to take care of some little children of a deceased sister. Whether this was a
satisfactory explanation was, of course, for the trial court to say.
As to the character of the letters written by Golding to appellant, it is significant that in
none was she referred to as wife, and that each letter to her was commenced in a most formal
manner, as “Dear Mabel, Friend Mabel, Mabel” and concluded in an equally formal manner,
as, “Yours truly, W. T. Golding, Yours, Golding, Yours, W. T. Golding”; the letters from her
to him were equally formal, commencing, “My dear Mr. Golding:” and signed, “From Mabel
Wright.” They contain no allusion to him as husband. True, one of her letters contains
expressions of affection, and there is other evidence revealing that she was fond of him, as
that which disclosed her clinging to his hand and weeping by his deathbed. This, however,could have been reconciled by the trial court on the score of their long and intimate
acquaintance and his many acts of friendship towards her. That this feeling was reciprocal isG HULYDEOHIURPKLVOHWWHUVDQGDFWVDQGFRXOGKDYHEHHQDWWULEXWHGE\WKHFRXUWWRWKH
VDPHFDXVH
ÐÐÐÐ59 Nev. 201, 219 (1939) In Re Golding's EstateÐÐÐÐ
derivable from his letters and acts, and could have been attributed by the court to the same
cause.
A significant circumstance pointing towards the relation of master and servant is found in
the testimony of Irving Cowles. When Golding got sick he told Cowles that he would “phone
to the reservation and get Mabel Wright to come and take care of me. * * * She is a good
cook and will give me first class care.”
Our statement of what the trial court could have considered as indicating that there was no
common law marriage is not exhaustive, but enough has been stated to show that its judgment
rests on substantial evidence. That point being reached, it is unnecessary to comment on the
evidence to the contrary.
6. It is contended by appellant that the action of the court, in overruling the objection to
the probate of the will and admitting it to probate, was in the nature of granting a motion for a
nonsuit and was error because there was evidence offered by her sufficient to submit the caseto the court and jury. If there is any merit in this contention, the error claimed would have
been available only as arising from the first trial. On the second trial respondent did not rely
on the insufficiency of the evidence offered by appellant, but introduced, as we have pointed
out, substantial evidence on the issue.
The judgment and order denying a new trial are affirmed.
Coleman, J., died before the opinion in this case was written.
Orr, J., did not participate in any of the proceedings relative thereto.
____________
ÐÐÐÐ59 Nev. 220, 220 (1939) Nahas v. NahasÐÐÐÐ
KATBY NAHAS, Appellant, v. GABRIEL C. NAHAS, Respondent.
No. 3252
May 6, 1939. 90 P.(2d) 223.
1. Judgment.Defendant's actual knowledge of pending action is not determining factor as to whether service of
process was personal within statute authorizing court to allow defendant to answer to merits within six
months after rendition of judgment where process was not personally served on him. Comp. Laws, sec.
8640.
2. Judgment.Service of process outside state, as authorized by statute declaring personal service of copy of summons
and complaint out of state equivalent to completed service by publication, is “substituted service” and
cannot be made basis of personal judgment against defendant. Comp. Laws, sec. 8583, as amended by
Stats. 1931, c. 95, sec. 2.
The word “equivalent” has been defined to mean “equal in value, area, volume, force, meaning, or thelike; synonym: alike, identical.”
3. Judgment.The term “personal service” in statute authorizing court to allow defendant, on whom summons and copy
of complaint have not been personally served, to answer to merits of action within six months after
rendition of judgment therein, means personal service within state. Comp. Laws, sec. 8640.
4. Divorce.To set aside default judgment and divorce decree entered after showing that original summons was served
on defendant in foreign country, it was necessary for defendant only to file notice of motion to set aside
default and judgment thereon within six months after its rendition and show that he was not personally
served in state. Comp. Laws, sec. 8640.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Suit for divorce by Katby Nahas against Gabriel C. Nahas. From an order setting aside adefault judgment and divorce decree and permitting defendant to file in answer, plaintiff
appeals. Affirmed.
McCarran, Rice & Bible, for Appellant:
Although we believe this court has never had occasion to pass on the precise point here
involved, we contend WKDWWKHSXUSRUWRIWKHGHFLVLRQL QWKHFDVHRI*XDUGLDY*XDUGLD
1HY
ÐÐÐÐ59 Nev. 220, 221 (1939) Nahas v. NahasÐÐÐÐ
that the purport of the decision in the case of Guardia v. Guardia, 48 Nev. 230, 229 P. 386,
was to the effect that when a defendant has been personally served with process in a foreign
jurisdiction he must bring himself within the provisions of section 8640 N. C. L. by showing
either mistake, inadvertence, surprise, or excusable neglect before a trial court can rightfully
exercise its discretion in setting aside a default. Section 8640 N. C. L. is identical with the
provisions of sec. 473 of the California Code of Civil Procedure, except for the time within
which the notion or application must be made. The California section is discussed in the
following authorities: 14 Cal. Jur. 1030, 1031; Hiltbrand v. Hiltbrand, 23 P.(2d) 277.
Appellant contends that the trial court erred—indeed, that the court below had no
jurisdiction to make its orders extending respondent's time, beyond that allowed by law,
within which to serve and file his affidavit and proposed verified answer. The six-months'
period provided by the statute is a limitation on the court, and applications for relief on the
grounds provided by the statute must be made within the prescribed time. 14 Cal. Jur. 1062,
n. 11. Certainly it cannot be contended that the affidavit of merit of counsel for respondent,
which was the only affidavit or supporting evidence filed within the six-months' period, was
sufficient to warrant the setting aside of respondent's default.
M. A. Diskin, for Respondent:
Section 8583 N. C. L. does not provide or declare that delivery of a copy of the summons
and complaint to defendant outside of the state is “personal service,” or that when service of
this kind is made the party is personally served, but on the contrary the legislature has
specifically provided that such service when made is equivalent to completed service by
publication. In the case of Bowman v. Bowman, 47 Nev. 207, 217 P. 1102, this court held, in
served was entitled to set aside a default any time within six months from the date of
rendition of the judgment, as a matter of law. See, also, Wheaton Flour Mill Co. v. Welsh
(Minn.), 142 N. W. 714; Spence v. Koll, 97 N. W. 974; Bowers on Process and Service, sec.
296.
It is respectfully submitted that the filing and service of the notice of motion and motion in
this case conferred jurisdiction upon the court over the subject matter thereof, and the court
thereafter possessed the inherent power, upon good cause being shown therefor, to make any
necessary order to the end that an opportunity be given to the litigants so that a full and trueshowing might be made upon the merits. Valle v. Picton, 16 Mo. App. 178; Henry v. Diviney,
13 S. W. 1057; Heco v. Conner, et al. (Cal.), 265 P. 181.
OPINION
By the Court, Orr, J.:
This is an appeal from an order of the court below setting aside a default judgment and
decree of divorce, and permitting the respondent herein to file his answer.
The parties were married in New York City on January 25, 1925, and immediatelythereafter went to Bierut, Syria, to reside. The parties resided at Bierut, Syria, until October
1936, at which time appellant left for New York, and arrived on November 5, 1936. On July
28, 1937, appellant left New York for Reno, Nevada.
On September 9, 1937, a complaint was filed by appellant in the district court of Washoe
County, asking that the bonds of matrimony existing between appellant and respondent be
dissolved, and on the same day summons was issued; affidavit for publication was filed, and
also affidavit of mailing a copy of the complaint and summons to the husband.
On October 22, 1937, the original summons was returned and filed, showing service to
have been made XSRQWKHUHVSRQGHQWDW(KGHQ5HSXEOLFRI/HEDQRQRQ2FWREHU
ÐÐÐÐ59 Nev. 220, 223 (1939) Nahas v. NahasÐÐÐÐ
upon the respondent at Ehden, Republic of Lebanon, on October 5, 1937. On November 5,
1937, default of the respondent was entered, trial had, and judgment and decree of divorce
entered. On May 3, 1938, notice of motion and motion by respondent to set aside the default
were filed and served. The motion was finally submitted to the court for decision, on July 29,
1938, and on the same date the court entered its order setting aside the default and default
judgment.
Appellant makes three assignments of error. The conclusion we have reached as to the first
leaves unnecessary a consideration of the second and third.The first assignment is that the trial court erred in its decision, ruling and holding that
“personal service” as used in section 8640 N. C. L. means “personal service” within the
State of Nevada.
1. Section 8640 N. C. L. reads as follows: “The court may, in furtherance of justice, and
on such terms as may be proper, amend any pleading or proceedings by adding or striking out
the name of any party, or by correcting a mistake in the name of a party, or a mistake in any
other respect, and may upon like terms enlarge the time for an answer, reply, or demurrer, or
demurrer to an answer or reply filed. The court may likewise, upon affidavit showing good
cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an
amendment to any pleading or proceeding in other particulars, and may upon like terms allow
an answer or reply to be made after the time limited; and may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment,
order, or other proceeding taken against him through his mistake, inadvertence, surprise or
excusable neglect; and when, from any cause, the summons, and a copy of the complaint in
an action have not been personally served on the defendant, the court may allow, on such
terms as may be just, such defendant or his legal representatives, at any time within six
months after the rendition of any judgment LQVXFKDFWLRQWRDQVZHUWRWKHPHULWVRIWKH
RULJLQDODFWLRQ´
ÐÐÐÐ59 Nev. 220, 224 (1939) Nahas v. NahasÐÐÐÐ
in such action, to answer to the merits of the original action.”
If we correctly understand the position of appellant, it is this: that in enacting section 8640
the legislature had in mind the protection of parties who would have judgments by default
taken against them without their having any knowledge whatsoever of a pending action, such
as in a publication case; but by permitting service outside the state in lieu of publication, the
presumption of actual knowledge would obtain, and thus remove such party from without the
class intended to be protected. Section 8640 expresses no such condition. If knowledge is to
be made the determining factor as to whether service is personal in the sense the word is used
in section 8640, then in a case where receipt of a copy of summons by mail was had,
knowledge would be presumed; and it seems as reasonable to say that because of the actual
knowledge thus obtained, personal service as contemplated by section 8640 was had.
However, it is conceded that such service is not personal service.
2. Authority for service outside the state is found in section 8583 N. C. L., as amended by
Statutes 1931, p. 159, c. 95, sec. 2, reading in part as follows: “When publication is ordered,
personal service of a copy of the summons and complaint, out of the state, shall be equivalent
to completed service by publication and deposit in the post office, and the person so served
shall have thirty days after said service to appear and answer or demur. The service of
summons shall be deemed complete in cases of publication at the expiration of four weeks
from the first publication, and in cases when a deposit of a copy of the summons and
complaint in the post office is also required, at the expiration of four weeks from suchdeposit.”
This section does not declare that service outside the state shall be deemed personal
service, but does declare that such service shall be equivalent to completed service by
publication and deposit in the post office.
ÐÐÐÐ59 Nev. 220, 225 (1939) Nahas v. NahasÐÐÐÐ
The word “equivalent” is defined by Webster to mean: “equal in value, area, volume,
force, meaning, or the like; synonym: alike, identical.”
Service outside the state is substituted service and cannot be made the basis of a personal
judgment. Bowers on Process and Service, section 296.
In the case of Wheaton Flour Mills Co. v. Welsh, 122 Minn. 396, 142 N. W. 714, 715,
Ann. Cas. 1915b, 563, it was held: “Delivery to a defendant outside the state of a summons is
not personal service thereof within the meaning of section 4113 of the Code. It is merely the
equivalent or substitute for a completed statutory service of summons by publication.”
This is the only case found which deals with the precise question.
Appellant contends that the force of this decision as authority has been destroyed by the
holding in the case of Beelman v. Beck, 164 Minn. 504, 205 N. W. 636. In the latter case thedefendant had been served outside the state of Minnesota, and delayed for five months to take
action asking for relief from a default judgment (the Minnesota statute allows one year to a
defendant who has not been personally served to appear and defend). The court, in that case,
held that a delay of five months in taking action constituted laches, and the defendant had
thereby lost his right to defend. No finding was had as to whether the service was or was not
personal service, leaving undisturbed the finding in Wheaton Flour Mills Co. v. Welsh, supra.
Many of the decisions cited by appellant turn upon the question of laches or the principle of
estoppel. This has lead to much confusion. These decisions do not decide as to whether the
service outside the state is personal service, but determine the cases upon whether or not the
party seeking relief has acted promptly; and in so doing, the courts have made inquiry as towhether actual knowledge of the pendency of the action or the entry of default was had by the
moving party, and thus have UHDGLQWRWKHVWDWXWHWKDWHOHPHQWDQGHVWDEOLVKHGDVWKHODZ
read into the statute that element, and established as the law in some states a limitation on the
right to move to set aside a default within the statutory period.
While this precise question was not before the court in the case of Bowman v. Bowman,
47 Nev. 207, 217 P. 1102, that case is authority on the proposition that actual knowledge isnot a factor in determining whether personal service as used in section 8640 means service
within or without the state; at page 214 of that decision, 217 P. at page 1104 the court said:
“The affidavit is not defective in that it is not averred therein that the defendant had no actual
notice of the pendency of the action in time to answer. If our statute made lack of actual
notice one of the conditions for setting aside a judgment when the defendant had not been
personally served with summons in the action, as do the statutes of the states from which
authority has been cited by appellant, for instance Kansas and Nebraska, an affidavit failing to
aver lack of actual notice would be insufficient. But it expresses no such condition. While
some of the authorities cited by appellant hold to the contrary on statutes similar to ours, we
cannot concur in such a construction. The statute gives a defendant, under prescribedconditions, the right to answer to the merits. Lack of actual notice is not one of them.”
And in the same case the court also quotes with approval the following statement taken
from the case of Stanton-Thompson Co. v. Crane, 24 Nev. 171, 181, 51 P. 116, 118, which
we believe is pertinent here: “We must also hold that under the last clause of section 68 of
our practice act, above cited,—the clause upon which the action of the court in this case is
manifestly based,—the respondents were not guilty of laches in this proceeding, as that clause
confers upon the respondent the right at any time within six months after the rendition of the
judgment, to answer to the merits of the action, where, from any cause, the summons and
copy of the complaint have not been personally served upon them.
ÐÐÐÐ59 Nev. 220, 227 (1939) Nahas v. NahasÐÐÐÐ
This proceeding was commenced within the time limited by that clause.”
We deem it unnecessary to go into the questions of laches or estoppel in this case. Such
would not be responsive to any assignment of error made by appellant.
3, 4. If personal service as used in section 8640 means personal service within the State
of Nevada, and we decide that it does, then under the issues presented here all that was
necessary for the respondent to do was to file his notice of motion to set aside the default anddef ault judgment within six months from the rendition thereof, and, upon the hearing of the
motion, to show that the defendant had not been personally served with summons within the
State of Nevada. As to such a showing being made, there is no dispute.
Since the decision on the motion in the trial court, the question here presented has been
taken care of by an amendment enacted in 1939 (chap. 154, p. 205, session laws of 1939).
Where personal service is not made and a default judgment taken, defendant may at anytime within six months move the court to set aside the default judgment. Comp. Laws,
sec. 8640.
2. Judgment.
The filing and service of a notice of motion to set aside default judgment, followed by a
motion for relief from the default and proof that notice and motion is seasonably given
and made, constitutes a prima facie showing in favor of a defendant against whom a
default judgment has been obtained. Comp. Laws, sec. 8640.
3. Judgment.
Under the statute allowing court to set aside default judgment within six months where
personal service is not made, burden is on the party obtaining a default judgment to show
laches or inexcusable neglect on party against whom default is obtained or other
circumstances which would make setting aside of judgment inequitable. Comp. Laws,
sec. 8640.4. Divorce.
Under the statute permitting trial court to set aside a default judgment within six
months where personal service is not made, trial court did not abuse its discretion in
setting aside a default judgment and divorce decree where defendant established to
satisfaction of trial court that default resulted from “excusable neglect,” a statutory
ground for setting aside a default judgment. Comp. Laws, sec. 8640.
5. Divorce.
To set aside default judgment and divorce decree entered after showing that original
summons was served on defendant in a foreign country, it was not necessary that an
affidavit of merits and a verified answer be filed with notice of the motion to set aside
the default where the notice stated that a verified answer would be filed, and a copy of which was tendered at the time. Comp. Laws, sec. 8640; Court Rule 45.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
For former opinion, see 59 Nev. 220, 90 P.(2d) 223.
McCarran, Rice & Bible, for Appellant.
M. A. Diskin, for Respondent.
OPINION
By the Court, Orr, J.:
Appellant has filed herein a petition for rehearing, wherein it is urged, among other things,
that this court in its opinion laid down the rule that where personal service has not been made
upon a defendant and default is taken against him, his right to have such default set aside at
any time within six months is absolute. We did not intend to so decide, and were dealing with
the circumstances of this particular case, rather than with the thought of establishing a general
rule.
However, conceding that the opinion admits of such DFRQVWUXFWLRQDQGLQYLHZRIWKH IDFWWKDWWKHTXHVWLRQPD\DULVHKHUHDIWHULQFDVHVZKHUHVHUYLFHLVPDGHE\SXEOLFDWLRQ
DQGPDLOLQJQRWZLWKVWDQGLQJWKHDPHQGPHQWFKDS
ÐÐÐÐ59 Nev. 220, 229 (1939) Nahas v. NahasÐÐÐÐ
a construction, and in view of the fact that the question may arise hereafter in cases where
service is made by publication and mailing, notwithstanding the 1939 amendment (chap. 154,p. 205, session laws of 1939). We deem it advisable to clarify the situation.
1-3. We are satisfied with our holding “that personal service, as used in section 8640 N.
C. L. means personal service within the state.” We further decide that where personal service
is not made and default taken, defendant has the right at any time within six months to move
the court to set aside the default. The filing and service of a notice of motion within the time,
followed by a motion for relief from the default and proof that the notice and motion is
seasonably given and made, constitutes a prima facie showing in favor of a defendant. If there
are circumstances which would make the granting of the relief inequitable, such as a showing
of laches or inexcusable neglect, of sufficient strength to create an estoppel, it becomes the
duty of the plaintiff to set them up, in order that they may be taken into consideration by the
court in exercising the discretion given it by section 8640 N. C. L. Bowman v. Bowman, 47Nev. 207, 217 P. 1102, quotes with approval a statement to this effect from the case of Gray
v. Lawlor, 151 Cal. 352, 90 P. 691, 12 Ann. Cas. 990. For additional California authorities
see: Hiltbrand v. Hiltbrand, 218 Cal. 321, 23 P.(2d) 277, at page 278; Palmer v. Lantz, 215
Cal. 320, 9 P.(2d) 821, at page 823; 14 Cal. Jur. 1031, n. 2; Cal. Jur Ten Year Supp., vol. 7, p.
283, sec. 91; 9 Cal. Jur. 746, n. 7; Cal. Jur. Ten Year Supp., vol. 5, pp. 275, 276.
4. In this case the defendant, assuming a burden which was not his, made a showing
file an affidavit of merits and a verified answer, after the six-months' period had elapsed,
contending that service of a copy of these with the notice of motion was necessary to
constitute a valid notice under court rule 45. This contention is without merit. The affidavit of
M. A. Diskin, served and filed with the notice of motion, discloses the date service uponrespondent was made and that it was made out of the state, also that the default was entered
on November 5, 1937. The filing date endorsed on the notice of motion and the date of
admission of service by counsel for appellant is May 3, 1938. This brought the movant within
the six-months' period. The facts contained in the affidavit of M. A. Diskin made a prima
facie showing. The filing of an affidavit of merits and a verified answer was not required with
the notice of motion. The notice of motion stated that a verified answer would be filed, a copy
of which was tendered at the time. “This was sufficient to prevent plaintiff from being
mislead as to the ultimate purpose of the motion.” Bowman v. Bowman, 47 Nev. 207, at page
216, 217 P. 1102, at page 1105.
In this case appellant, consistent with her theory that the service made was personalservice, relied on that portion of section 8640 N. C. L., requiring a showing of mistake,
inadvertence, surprise or excusable neglect, and assigned as error the finding of the court that
respondent had made such a showing, failing to recognize that the burden was upon her to
establish inexcusable neglect on the part of defendant. If in the opinion of the appellant the
record disclosed that she had met such burden, then in order to have that matter considered by
this court, such assignment should have been made.
The petition for rehearing is denied.
____________
ÐÐÐÐ59 Nev. 231, 231 (1939) Bishop of Reno v. HillÐÐÐÐ
STATE OF NEVADA, Ex Rel. The ROMAN CATHOLIC BISHOP OF RENO and his
Successors, A Corporation Sole, THOMAS K. GORMAN, FRED GREULICH, and
MRS. GURNEY GORDON, Petitioners, v. CHARLES L. HILL, as City Engineer and
Ex Officio Inspector of Buildings of the City of Reno, County of Washoe, State of
Nevada, Respondent.
No. 3268
May 8, 1939. 90 P.(2d) 217.
1. Evidence.It is a matter of common knowledge that funeral services are frequently conducted in the finest as well as
the less pretentious private homes in the residential district of the city of Reno.
2. Constitutional Law.Sections of Reno zoning ordinance requiring written permission of 75 percent of owners of property
within certain distance for construction of a building in residential district for nonresidential purposes are
invalid as applied to building of proposed church because they violate due process clause of state and
federal constitutions. Stats. 1923, c. 125, secs. 1, 2; Stats. 1903, c. 102; Stats. 1937, c. 204, sec. 20,
amending Stats. 1903, c, 102, art. 12, sec. 10j; Const. Nev. art. 1, secs. 1, 4, 8; U. S. C. A. Const.
Amend. 14.
3. Municipal Corporations.Each case involving the constitutionality of zoning laws must be determined on its own facts as they
appear in the record before the court.
Original mandamus proceeding by the State of Nevada, on the relation of the Roman
Catholic Bishop of Reno and his successors, and others, against Charles L. Hill, as City
Engineer, and ex officio Inspector of Buildings of the City of Reno, County of Washoe, State
of Nevada. Peremptory mandate awarded.
M. A. Diskin and William S. Boyle, for Petitioners:
If section 7 of the ordinance is to be applied to a church, thereby excluding a church from
the residential district, the ordinance bears no substantial relation to SXEOLFKHDOWKVDIHW\ DQGPRUDOVDVZLOOHQDEOHWKHFRXUWWRXSKROGLWDVDSSOLHGWRDFKXUFKDQGLILWLVWREH FRQVWUXHGDVSUHYHQWLQJWKHHUHFWLRQRIDFKXUFKLQWKHUHVLGHQWLDOGLVWULFWLWLVDUELWUDU\ DQGUHSXJQDQWWRWKHGXHSUR FHVVDQGHTXDOSURWHFWLRQFODXVHVRIWKHVWDWHDQGIHGHUDO
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ÐÐÐÐ59 Nev. 231, 232 (1939) Bishop of Reno v. HillÐÐÐÐ
public health, safety, and morals as will enable the court to uphold it, as applied to a church,
and if it is to be construed as preventing the erection of a church in the residential district, it is
arbitrary and repugnant to the due process and equal protection clauses of the state and
federal constitutions.
Where any part of a zoning ordinance is attacked as being unreasonable in its application
to a particular property, the case must be decided upon its own facts.
An undertaking parlor should not be classified with a church, where people listen to the
soft tones of the organ and the singing of hymns and psalms, which is all in the promotion of
good citizenship and all that is right in living.
Douglas A. Busey, City Attorney of Reno, for Respondent:
The courts have found that the public welfare is bettered by the establishment of singlefamily dwelling districts. The ringing of a church bell in a residential district will become
very distracting to those whose residences are nearby. There will be people coming to and
from the church for weddings and funerals, and the probabilities are that most of these will be
held during school hours. Certainly this increase in traffic and consequential congestion of the
area in an exclusively residential district and across the street from a public school is a proper
object of the protective arm of the police power.
There will be funerals held at the church, with all the incidental depressing acts in
conjunction with funerals taking place. These activities will unquestionably impair the
comfort, repose, and enjoyment of the homes in the neighborhood, and will inevitably
depreciate the value of the residence property. The courts have uniformly upheld ordinances
excluding funeral homes from residential districts.
ÐÐÐÐ59 Nev. 231, 233 (1939) Bishop of Reno v. HillÐÐÐÐ
OPINION
Per Curiam:
In this proceeding petitioners challenge the validity of sections 7 and 8 of ordinance No.
433 (the zoning ordinance) of the city of Reno, upon the ground that they infringe sections 1,
4 and 8 of article I of the constitution of Nevada, and the fourteenth amendment of the
constitution of the United States, U. S. C. A.
Section 7 of said zoning ordinance reads as follows: “It shall be unlawful for any person,
firm, association or corporation to erect, build, alter, or enlarge any building or structure in
the Residential District, not intended for residential purposes, except sheds which may be
erected in the rear of any lot, except as hereinafter provided.”
Prior to January 1, 1939, section 8 of said ordinance read: “Any person, firm, association
or corporation desiring to build, enlarge, alter or build upon any structure in the Residential
District, shall first submit the plans of the same to the Building Inspector of the City of Reno,
and if said building or structure is to be used for any other purpose than a dwelling or
apartment house, the person, firm, association or corporation intending to construct, alter or
enlarge the same shall first obtain the written permission of seventy-five (75%) percent of the
owners of property in the block in which said building is to be constructed, altered or
enlarged, and of the owners of property in the adjacent blocks facing on the street upon which
said building will face, within a distance of 500 feet of said building, and shall obtain in
ÐÐÐÐ59 Nev. 231, 234 (1939) Bishop of Reno v. HillÐÐÐÐ
with a statement as to what purpose said structure is to be used, and the City Council by a
majority vote may grant a permit for the construction of said building or the enlarging oralteration of the same over the protest of the property owners, if in their judgment the protest
or refusal of permission was unreasonable.”
An amendment to said section 8 was introduced in the city council on December 13, 1938,
passed December 27, 1938, and became effective January 1, 1939. The amended section is as
follows: “A permit may be issued for the erection or building in the residential district of a
building or structure for purposes other than residential purposes, or for the alteration,
enlargement or conversion of a building or structure in such district for or to such purposes
other than residential purposes, provided that there be filed with any application for such
permit written consents thereto signed by the owners, or legal representatives of the owners,
of three-fourths of the land in the block in which such building or structure is to be erected,
built, altered, enlarged or converted, and of the land in the adjacent blocks facing upon the
street upon which such building will face within a distance of 500 feet thereof. Provided
further that if such written consents are filed with such an application then the Council may
by a majority vote grant or deny the application, but if such written consents are not filed with
such an application then a five-sixths vote of the members elected to the City Council shall be
required to grant the application.”
On July 25, 1938, the bishop made application to the city council, pursuant to section 8 of
ordinance No. 433, for permission to construct a church on certain lots in the residential
district of the city as defined by said ordinance. The application was not supported by the
written permission of seventy-five percent of the property owners within the distance
specified in section 8 of the ordinance. It was opposed by a protest signed by a majority of theproperty owners within such distance.
ÐÐÐÐ59 Nev. 231, 235 (1939) Bishop of Reno v. HillÐÐÐÐ
bishop became the owner of six lots in said block on September 14, 1938, and on the same
date secured an option for the purchase of four more lots therein. Said option had not been
exercised when the stipulation and agreed statement of facts was filed herein. The proposed
church would be built at a cost of approximately eighteen thousand dollars.
Nothing has been done in the way of construction work to erect a church on the proposed
site at the corner of Wright street and Walker avenue. The lots now stand in an unimprovedcondition. If the proposed church is erected on these lots, masses will be conducted there on
Sundays, and there will be church meetings. Weddings will be held at such church, and
funerals will also be conducted at, to, and from such church. There will also be a church bell
used in connection with the regular activities of the church. The map attached to WKHDJUHHG
ÐÐÐÐ59 Nev. 231, 237 (1939) Bishop of Reno v. Hill
ÐÐÐÐ
the agreed statement of facts shows that the site of the proposed church is just across Lander
street from the Billinghurst junior high school and playground. There are many dwellings
situated in close proximity to the lots where the church is proposed to be built.
Section 1 of the “Zoning Act” (Statutes of Nevada 1923, chap. 125, pp. 218—220, N. C.
L. 1929, secs. 1274–1280) provides that: “For the purpose of promoting the health, safety,
morals, convenience, property or general welfare of the community, the city council * * *
may, by ordinance, regulate and restrict the height, number of stories and size of buildings,
and other structures, the percentage of lot that may be occupied, the size of yards, courts and
other open spaces, the location and use of buildings, structures and land for trade, industry,residence or other purposes, and establish lines designating the distance at which buildings
shall be erected from the property line of any lot or lots in the said city.”
Section 2 of said act reads: “For any and all of said purposes, the city council may, by
ordinance, divide the city into districts of such number, shape and area as may be deemed
suitable to carry out the purposes of this act; and within districts it may regulate and restrict
the erection, construction, reconstruction, alteration, repair or use of buildings, structures or
land. All such regulations shall be reasonable and uniform for each class or kind of buildings
throughout each district and for the kind and class of business or industry carried on in each
district, but the regulations in one district may differ from those in other districts.”
The city of Reno was incorporated by an act of the legislature in the year 1903. Statutes of
Nevada, chap. CII, pp. 184—198. Said act has been amended from time to time. Section 10j
of article XII of said act, as last amended (Statutes of Nevada 1937, chap. 204, sec. 20, pp.
452–455), reads as follows: “The city council, among other things shall have power: * * *
Tenth:
* * * To regulate the types of structures or buildings ZKLFKPD\EHFRQVWUXFWHGLQVSHFLILHG
ÐÐÐÐ59 Nev. 231, 238 (1939) Bishop of Reno v. HillÐÐÐÐ
which may be constructed in specified districts of the city to be designated by the city council.
For any and all of said purposes, the city council may, by ordinance, divide the city intodistricts of such number, shape and area as may be deemed suitable to carry out the purposes
of this subdivision; and within districts it may regulate and restrict the erection, construction,
reconstruction, alteration, repair or use of buildings, structures or land. All such regulations
shall be reasonable and uniform for each class or kind of buildings throughout each district
and for the kind and class of business or industry carried on in each district, but the
regulations in one district may differ from those in other districts. All regulations shall be
made in accordance with a comprehensive plan, and designed to lessen congestion in the
streets, to secure safety from fire, panic and other dangers; to protect property and promote
the health, safety and general welfare; to provide adequate light and air; to prevent the
overcrowding of land; and to conserve the value of the buildings and structures in saiddistrict. Such regulations shall be made with reasonable consideration, among other things, as
to the character of the district and its peculiar suitability for particular uses, and with a view
of conserving the value of property and encouraging the most appropriate use of land
throughout said city.”
Sections 1 and 4 of article I of the state constitution are as follows:
Section 1. “All men are, by nature, free and equal, and have certain inalienable rights,
among which are those of enjoying and defending life and liberty; acquiring, possessing and
protecting property, and pursuing and obtaining safety and happiness.”
Section 4. “The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed in this state; and no person shall be
rendered incompetent to be a witness on account of his opinions on matters of his religiousbelief; but the liberty of conscience hereby secured shall QRWEHVRFRQVWUXHGDVWRH[FXVH DFWVRIOLFHQWLRXVQHVVRUMXVWLI\SUDFWLFHVLQFRQVLVWHQWZLWKWKHSHDFHRUVDIHW\RIWKLV
VWDWH´
ÐÐÐÐ59 Nev. 231, 239 (1939) Bishop of Reno v. HillÐÐÐÐ
not be so construed as to excuse acts of licentiousness, or justify practices inconsistent withthe peace or safety of this state.”
The due process provision in section 8 of article I of the state constitution is identical with
that in the fourteenth amendment of the constitution of the United States, U. S. C. A.
The validity of sections 7 and 8 of the zoning ordinance has been challenged on several
grounds, but we have found it necessary to consider but one. The great weight of authority
convinces us that these sections, as applied to the property involved in this case, bear no
substantial relationship to the promotion of the health, safety, morals, convenience, property,
or general welfare of the city of Reno, or of its residential district, and that they constitute an
invasion of the property rights of petitioner corporation. Roman Catholic Archbishop v.
Baker, 140 Or. 600, 15 P.(2d) 391; Village of University Heights v. Cleveland Jewish
Orphans' Home, 6 Cir., 20 F.(2d) 743; Women's Kansas City St. Andrew Soc. v. Kansas City,
Mo., 8 Cir., 58 F.(2d) 593; Western Theological Seminary v. Evanston, 325 Ill. 511, 156 N.
E. 778; City of Miami Beach v. State, 128 Fla. 750, 175 So. 537; State of Washington ex rel.Seattle Title Trust Co. v. Roberge, 278 U. S. 116, 49 S. Ct. 50, 73 L. Ed. 210, 86 A. L. R.
654. As against these authorities, cases involving livery stables, garages, gasoline stations,
funeral parlors, billboards, two-family residences, morgues, laundries, etc., afford us little aid
in the instant case. The law distinguishes between such cases and those relating to churches,
schools, parks and playgrounds, art galleries, library buildings, community center buildings,
etc. In some, if not most zoning ordinances, churches are expressly classified in first
residence districts. See Women's Kansas City St. Andrews Soc. v. Kansas City, Mo., supra;
State of Washington ex rel. Seattle Title Trust Co. v. Roberge, supra; Western Theological
Seminary v. Evanston, supra.
In Village of University Heights v. Cleveland Jewish 2USKDQV+RPHVXSUDWKHFLUFXLW
ÐÐÐÐ59 Nev. 231, 240 (1939) Bishop of Reno v. HillÐÐÐÐ
Orphans' Home, supra, the circuit court of appeals, sixth circuit, in the course of a unanimous
decision, said [20 F.(2d) 745]: “The structural plans of the proposed orphanage comply with
all the requirements of the village. There is no objection to the buildings per se, but only to
the use of them as a home for a large number of children. If they were intended for a privateschool, or for private residences, their use as such would not and could not be prohibited. The
question is whether the proposed use is so different in character from concededly legitimate
uses as to bring it within the scope of the police power of the municipality. That power has
been held, as we have seen, to include the right generally to exclude business houses, stores,
shops, and apartment houses from strictly residential districts. It has never been held to
include the right to prohibit the use for orphan children of cottages built according to the
requirements of the municipality. We can see many valid reasons, affecting the public
welfare, which would justify the exclusion of factories, business houses shops, and even
apartment houses from strictly residential districts, but which would not apply to the use of
structurally proper cottages for an orphanage; and while an orphanage would no doubt be less
agreeable to the community in some respects than a private school or private residences, we
are unwilling to hold that it is within the power of the village to prohibit the use of cottages of
this character for that purpose.”
In Women's Kansas City St. Andrew Soc. v. Kansas City, Mo., supra, which concerned a
philanthropic old ladies' home, the circuit court of appeals, eight circuit, said in part [58
F.(2d) 597]: “The chief objection to plaintiff's coming into the neighborhood seems to have
come from the residents of the Rockhill district, and from the trustees of the various trusts
ÐÐÐÐ59 Nev. 231, 241 (1939) Bishop of Reno v. HillÐÐÐÐ
his morals ‘to have it referred to as the old ladies' home next door.' * * * Zoning laws rest
upon the police power of the states, and, when they are fairly within the well-recognized
bounds of such power they are valid, even though they may entail some hardship upon
property owners. While such police power is broad, there are limitations to its exercise, which
the courts have not attempted to accurately define. However, restrictions by zoningordinances imposed upon the use of one's property to be valid must bear some ‘substantial
relationship to the public health, safety, morals or general welfare.' The reserved police power
of the state must stop when it encroaches on the protection accorded the citizen by the Federal
Constitution. * * * Certainly the fact that aged people may have a depressing effect on some
people is not sufficient to exclude such people from a district. There is no limit to the causes
that may depress people, but they do not furnish a basis for the support of a restriction as to
use of one's property. What was said by the Texas court in Spann v. City of Dallas et al., 111
Tex. 350, 235 S. W. 513, 516, 19 A.L.R. 1387, with respect to the noise and annoyance
incident to the operation of a grocery store in a residential district, would apply a fortiori to
the so-called ‘depressing influence' of elderly residents, viz.: ‘It could disturb or impair thecomfort of only highly sensitive persons. But laws are not made to suit the acute sensibilities
of such persons. It is with common humanity—the average of the people, that police laws
must deal. A lawful and ordinary use of property is not to be prohibited because repugnant to
the sentiments of a particular class.' * * * There must be limits as to what even a general plan
may do, and the mere comprehensiveness of the zoning ordinance is in itself no justification
for each separate restriction that the ordinance imposes. * * * If the restriction here
complained of does in fact, however, have no relationship to the fundamentals upon which
zoning statutes can be sustained, viz. public health, safety, moral, and general welfare, and is
not HVVHQWLDOWRDJHQHUDO]RQLQJRUGLQDQFHEDVHGRQWKHVHFRQVLGHUDWLRQVWKHQWKHFRXUWV VKRXOGQRWKHVLWDWHWRSURWHFWSODLQWLIIIURPEHLQJGHSULYHGRIWKHXVHRILWV SURSHUW\
XQGHUWKHJXLVHRISROLFHSRZHU
ÐÐÐÐ59 Nev. 231, 242 (1939) Bishop of Reno v. HillÐÐÐÐ
essential to a general zoning ordinance based on these considerations, then the courts should
not hesitate to protect plaintiff from being deprived of the use of its property under the guise
of police power. * * * Our conclusion is that the restriction upon the use of plaintiff's
property is not an essential of the general zoning plan, and is in its application to plaintiff's
property so arbitrary and unreasonable as to be void.”
Western Theological Seminary v. Evanston, supra, as the title implies, concerned a
theological seminary. Part of the opinion in that case reads as follows [325 Ill. 511, 156 N. E.783]: “Both liberty and property are subject to the police power of the state, under which new
burdens may be imposed on property and new restrictions placed on its use when the public
welfare demands it. The police power is, however, limited to enactments having reference to
the public health, comfort, safety, or welfare. An act which deprives a citizen of his liberty or
property rights cannot be sustained under the police power unless a due regard for the public
health, comfort, safety, or welfare requires it. Ruhstrat v. People, supra [185 Ill. 133, 57 N. E.
41, 49 L. R. A. 181, 76 Am. St. Rep. 30]; Bailey v. People, 190 Ill. 28, 60 N. E. 98, 54 L. R.
A. 838, 83 Am. St. Rep. 116; Bessette v. People, 193 Ill. 334, 62 N. E. 215, 56 L. R. A. 558;
People v. City of Chicago, 261 Ill. 16, 103 N. E. 609, 49 L. R. A., N. S., 438, Ann. Cas.
1915a, 292; Catholic Bishop v. Village of Palos Park, 286 Ill. 400, 121 N. E. 561. The
legislative determination as to what is a proper exercise of the police power is not conclusive.Whether the means employed have any real, substantial relation to the public health, comfort,
safety, or welfare, or are arbitrary and unreasonable, is a question which is subject to review
by the courts, and in determining that question the courts will disregard mere forms and
interfere for the protection of rights injuriously affected by arbitrary and unreasonable action.
City of Aurora v. Burns, supra [319 Ill. 84, 149 N. E. 784].”
ÐÐÐÐ59 Nev. 231, 243 (1939) Bishop of Reno v. HillÐÐÐÐ
A home for aged poor was the subject matter of State of Washington ex rel. Seattle Title
Trust Co. v. Roberge, supra. In the opinion of the court in that case, we find the following
[278 U. S. 116, 49 S. Ct. 51]: “Zoning measures must find their justification in the police
power exerted in the interest of the public. Euclid v. Ambler Realty Co., supra [272 U. S.
365], 387 (47 S. Ct. [114] 118 [71 L. Ed. [303], 310, 54 A. L. R. 1016]). “The governmental
power to interfere by zoning regulations with the general rights of the landowner by
restricting the character of his use, is not unlimited and, other questions aside, such restriction
cannot be imposed if it does not bear a substantial relation to the public health, safety, morals,
or general welfare.' Nectow v. Cambridge, supra [277 U. S. 183], page 188 (48 S. Ct. [447],448 [72 L. Ed. 842, 844]). Legislatures may not, under the guise of the police power, impose
restrictions that are unnecessary and unreasonable upon the use of private property or the
pursuit of useful activities. * * * It is not suggested that the proposed new home for aged poor
would be a nuisance. We find nothing in the record reasonably tending to show that its
construction or maintenance is liable to work any injury, inconvenience or annoyance to the
community, the district or any person. The facts shown clearly distinguish the proposed
building and use from such bill boards or other uses which by reason of their nature are liable
In City of Miami Beach v. State, supra, the supreme court of Florida was called upon to
consider the validity of an ordinance prohibiting private schools in a multiple family district
while permitting public schools. The ordinance was held invalid because “it appears to be
arbitrary and unreasonable and has no relation to the public safety, health, morals, comfort, or
general welfare.” [128 Fla. 750, 175 So. 539.]In Roman Catholic Archbishop v. Baker, supra, the property in controversy was a
proposed parochial grade VFKRRO
ÐÐÐÐ59 Nev. 231, 244 (1939) Bishop of Reno v. HillÐÐÐÐ
school. In that case one of the claims advanced by the city officials was that the proposed
school site was in a high class residential district in which many of the residents had
expended large sums of money in improving and beautifying their property; that the erection
of a school on the site in question would lessen the value of the property of many of the
adjacent property owners, many of whom had bought their property and built mansions
thereon for homes, after the passage of the ordinance, and had spent large sums of money in
making lawns and setting out shrubbery. Notwithstanding this and other arguments put
forward in support of the ordinance, it was held invalid, the court saying, inter alia [140 Or.
600, 15 P.(2d) 395]: “The right to own property is an inherent right, one of those rights with
which men ‘are endowed by their Creator.' This right of ownership is subject to the superior
rights of the public to appropriate such property for certain public uses on payment of just
compensation. The right to own carries with it the right to use that property in any manner
that the owner may desire so long as such use will not impair the public health, peace, safety,or general welfare. The kind of school proposed to be erected will not interfere with the
public health; it cannot affect the public peace; it surely will not endanger the public safety;
and by all civilized peoples, an educational institution, whose curriculum complies with the
state law, is considered an aid to the general welfare. These propositions cannot be
successfully disputed. It is not a question alone of what monetary damage plaintiff may
sustain, but also a question of the invasion of one of plaintiff's inherent rights. * * * Under the
ordinance, the plaintiff could not buy a tract of land in any residential district in the city of
Portland and know at the time of the purchase whether a building for school purposes might
be erected thereon. There are no specifications in the ordinance as to how or where a site for a
school may be located, prior to the action of the city council. Its location would be a matterHQWLUHO\ZLWKLQWKHDUELWUDU\SRZHURIWKHFLW\FRXQFLOWKHFLW\SODQQLQJFRPPLVVLRQRU SHUFHQWRIWKHSURSHUW\RZQHUVLQDGLVWULFWRIZKLFKWKHERXQGDULHVDUHDUELWUDULO\IL[H G E\WKHRUGLQDQFHDQGWKDWSRZHUPLJKWEHH[HUFLVHGRUQRWDWWKHZKLPRUFDSULFHRI
ÐÐÐÐ59 Nev. 231, 245 (1939) Bishop of Reno v. HillÐÐÐÐ
entirely within the arbitrary power of the city council, the city planning commission, or 50
percent of the property owners in a district of which the boundaries are arbitrarily fixed by the
ordinance, and that power might be exercised or not at the whim or caprice of these bodies.”
1. Respondent urges that funerals at the proposed new church would have a depressingeffect on near-by residents; but it is a matter of common knowledge that funeral services are
frequently conducted in the finest as well as the less pretentious private homes in the
residential district of the city of Reno. Death is a part of our existence, and is as natural as
life. We are unable to perceive why a church funeral service, reverently conducted as such
services uniformly are, should have a more depressing effect on normal persons than one held
at a private residence.
Petitioners and respondent differ as to whether section 8 of the zoning ordinance, as
amended, is material, in view of the fact that the application for building permit was made
before the amendment; but this question need not be decided because, amended or
unamended, said section is unconstitutional with reference to the instant case.So, too, it is immaterial whether the challenged sections be regarded as having been
enacted pursuant to the Nevada zoning act or amended section 10j of article XII of the Reno
incorporation act, particularly in view of the wording of section 1 of the Reno zoning
ordinance, which reads: “For the purpose of promoting the health, safety, morals,
convenience, property and general welfare of the community, the City of Reno is hereby
divided into three districts to be known as Business District, Industrial District, and
Residential District.”
2, 3. It is to be borne in mind that we do not hold sections 7 and 8 of the zoning ordinance
invalid in their general scope or aspects, but only as applied to the building of the proposed
church in the residential district RI5HQR
ÐÐÐÐ59 Nev. 231, 246 (1939) Bishop of Reno v. HillÐÐÐÐ
of Reno. Village of University Heights v. Cleveland Jewish Orphans' Home, supra; Women's
Kansas City St. Andrew Soc. v. Kansas City, Mo., supra; Roman Catholic Archbishop v.
Baker, supra; State of Washington ex rel. Seattle Title Trust Co. v. Roberge, supra. Each case
involving the constitutionality of zoning laws must be determined on its own facts as they
appear in the record before the court. 3 McQuillin, Municipal Corporations, p. 350, sec. 1043;Harvard Law Review, vol. 37, pp. 856, 857.
The refusal of the city engineer of Reno to grant a building permit to the bishop pursuant
to the latter's application of December 20, 1938, was based on said sections 7 and 8 of the
Reno zoning ordinance, being city ordinance No. 433. The court holds these sections invalid
with reference to said application, because they violate the due process provisions of both the
constitution of the United States and the constitution of the State of Nevada.
It is ordered and adjudged that peremptory mandate be, and the same is hereby, awarded
instruction that jury should not infer that defendant was guilty, and other proper instructions on burden of
proof were given. Comp. Laws, sec. 11001.
ÐÐÐÐ59 Nev. 247, 248 (1939) Terrano v. StateÐÐÐÐ
9. Poison.Evidence held sufficiently substantial to support conviction of illegal possession of narcotic drugs. Stats.
1937, c. 23.
10. Criminal Law.Where there was substantial evidence to support verdict in criminal case, reviewing court would not
disturb the verdict nor set aside the judgment because of insufficiency of evidence to warrant conviction.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Sol J. Terrano was convicted of having narcotic drugs in his possession, and he appeals.
Affirmed.
W. M. Kearney and Robert Taylor Adams, for Appellant:
When the court instructed the jury: “The court deems the evidence in this case insufficient
to warrant a conviction of the defendant, Leon Hansen, of the offense charged in the
information,” and said nothing about the evidence, one way or the other, against defendant
Terrano, when both defendants were tried jointly and the same evidence applied to both
parties under the same conditions, it was in effect a charge to the jury that the court deemed
the evidence sufficient to convict the defendant Terrano. The court did not protect the rights
of the defendant Terrano by admonishing the jury that the converse of the instruction as tohim should not be inferred by the jury. The instruction is contrary to the rule that the court
should not comment upon the evidence.
It is appellant's contention that he was entitled to bail throughout the trial, as a matter of
right, under section 7, article I, of the constitution of Nevada. Insofar as section 11000 N. C.
L. attempts to deprive him of that right, it is unconstitutional. Even if it be considered a
matter within the trial court's discretion, which we do not concede, it was an abuse of
discretion such as to constitute reversible error.
We say that whatever interpretation the Nevada VXSUHPHFRXUWPD\JLYHWRWKH
SURYLVLRQVRIWKHVWDWHFRQVWLWXWLRQWKHWHUPVRIWKHIHGHUDOFRQVWLWXWLRQIRUELGGLQJVXFK VHDUFKHVDQGVHL]XUHVDVWRRNSODFHLQWKLVFDVHUHTXLUHWKHGHQ\LQJRIDGPLVVLRQR I
supreme court may give to the provisions of the state constitution, the terms of the federal
constitution forbidding such searches and seizures as took place in this case require the
denying of admission of evidence so secured; and where a federal officer participates, to the
extent as occurred in this case, in the illegal search and seizure, the federal constitution isviolated and the evidence may not be admitted, even though the search was primarily
conducted by state officer.
It is appellant's further contention that whether or not this court's pronouncement in the
case of State v. Chin Gim, 47 Nev. 431, 224 P. 798, continues to be the law in Nevada
generally, as to any prosecution under the 1937 uniform narcotic drug act, evidence which is
secured by search and seizure not made in compliance with the terms of that act is
inadmissible in evidence. Indeed, the very condition stressed by Chief Justice Taft in the case
of Carrol v. United States, 69 L. Ed. 543, as a necessary prerequisite to search should have
been followed.
In its constitution, Nevada adopted and expressed as its fundamental law provisions whichare essentially the same as those found in the federal constitution (secs. 8 and 18, art. I,
Nevada constitution). It would seem, therefore, that we are bound to give the same
interpretation to those provisions as has been given them by the United States supreme court
(sec. 2, art. I, constitution of Nevada).
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General; Ernest S. Brown, District Attorney, and Nash P. Morgan, Assistant
District Attorney, for Respondent:
In the case of State v. Chin Gim, 47 Nev. 431, 224 P. 798, this court held competent
evidence admissible, irrespective of the method of obtaining it. It therefore follows that if the
evidence is admissible, irrespective of any alleged unlawful search and seizure by the stateand federal officers working together, the lower court VKRXOGEHVXVWDLQHGLQUHIXVLQJWR VXSSUHVVWKHXVHRIVXFKHYLGHQFH
ÐÐÐÐ59 Nev. 247, 250 (1939) Terrano v. StateÐÐÐÐ
should be sustained in refusing to suppress the use of such evidence. The court did not err in
permitting the federal officers to testify for the State of Nevada, and the question of whetheror not the evidence discloses an unlawful search and seizure of evidence is totally immaterial
in this state.
We contend that section 14 of the uniform narcotic drug act does not change the holding of
the Chin Gim case. That statute has nothing to do with the admissibility of evidence in
criminal cases, if the same be of probative value in determining the issues of the criminal
trial.
California has a statute which is practically word for word the same as section 11000 N. C.
L., and the supreme court of California has held that this section of the penal code is
constitutional and that it is not reversible error when the court orders the defendant,
previously admitted to bail, remanded to the custody of the sheriff, in the presence of the jury.
People v. Williams, 59 Cal. 674; People v. Nickell, 70 P.(2d) 663; 3 Cal. Jur. p. 1038, sec.
11. See, also, 16 C. J. 819, sec. 2075; 3 R. C. L. 15, sec. 13.
Appellant, not having asked for a separate trial, cannot now complain of the instruction inregard to the joint defendant, Hansen. The court did not comment upon the evidence. If the
court, as appellant contends, should have instructed the jury that the instruction regarding the
insufficiency of the evidence against the defendant Hansen should not be considered as an
inference that defendant Terrano was guilty, appellant should have requested such instruction,
and in the absence of such request he cannot complain in this court.
OPINION
By the Court, Taber, C. J.:
On the evening of January 30, 1938, about seven miles west of Reno, in Washoe County,
appellant and RQH/HRQ+DQV HQULGLQJHDVWZDUGLQDSSHOODQWVDXWRPRELOHRQKLJKZD\1R
ÐÐÐÐ59 Nev. 247, 251 (1939) Terrano v. StateÐÐÐÐ
one Leon Hansen, riding eastward in appellant's automobile on highway No. 40, were stopped
and arrested by a party of Washoe County and federal officers. The officers had been waiting
for this particular car and were “looking for narcotics,” but did not know whether any
narcotics were in the car. Terrano and Hansen as well as the front part of Terrano'sautomobile, were searched at the place they were stopped, but no narcotics were found.
Terrano, Hansen and the former's car were then taken to the sheriff's office in Reno, where
the car was driven into the sheriff's garage. John B. Parks, deputy sheriff of Washoe County,
pursuant to orders from Ray J. Root, sheriff of said county, proceeded, according to his
testimony, to search the Terrano automobile, and found, in the rear compartment thereof, a
package containing four cans of opium. At this search neither of the defendants was present.
The arrests and searches of Terrano, Hansen and the car were made without any warrant of
arrest or search warrant. The county and federal officers suspected that the Terrano car was
transporting narcotics, but the evidence is insufficient to show probable cause. The evidence
indicates that there was ample time, had there been legal basis, for obtaining a search warrant.
Less than six weeks after the arrests and searches, and nearly three months before the trial,
Terrano moved the district court to suppress the use of said four cans of opium as evidence.
This motion was denied.
After a joint trial in department No. 2 of the Second judicial district court, county of
Washoe, appellant was found guilty of having narcotic drugs in his possession, an offense
which constitutes a felony under the provisions of the uniform narcotic drugs act (Stats. of
Nevada, 1937, chap. 23, pp. 35–46). The court advised the jury to acquit defendant Leon
court erred in refusing to suppress the use of the evidence obtained by federal officer
McGuire assisted by the county officers. (b) The court erred in permitting the federal officer,
Thomas E. McGuire, to testify with relation to any matter or evidence obtained by him in the
illegal search complained of by the defendant. (c) The court erred in admitting the testimony
of federal officer David F. Carpenter while acting as a federal officer.” These assignments
may properly be considered together.
Respondent relies upon the case of State v. Chin Gim, 47 Nev. 431, 224 P. 798. In that
case cocaine and opium were seized by peace officers pursuant to a search warrant issued on
an affidavit made on information and belief. The case was fully argued by able counsel, and
this court unanimously held, in a carefully considered opinion prepared by Ducker, C. J., that
the drugs were properly admitted in evidence regardless of whether they had been found in
the course of a search made in violation of the state and federal constitutions.
Appellant strongly urges that this court abandon the rule laid down in State v. Chin Gim,
and adopt what is frequently referred to as the federal rule. It is pointed out that judicial
officers, as well as other officers of this state, subscribe to an official oath that they will,
among other things, support, protect and defend the constitution and government of the
United States, and the constitution and government of the State of Nevada, against allenemies, whether domestic or foreign, and that they will bear true faith, allegiance and loyalty
to the same, any ordinance, resolution or law of any state notwithstanding. We are also
referred to that provision in section 2 of article I of the constitution of Nevadfa, which
provides that “the paramount allegiance of every citizen is due to the federal government, in
the exercise of all its constitutional powers, as the same have been, or may be, defined by the
supreme court of the United States, and no power exists in the SHRSOHRIWKLVRUDQ\RWK HU VWDWHRIWKHIHGHUDOXQLRQWRGLVVROYHWKHLUFRQQHFWLRQWKHUHZLWKRUSHUIRUPDQ\DFW WHQGLQJWRLPSDLUVXEYHUWRUUHVLVWWKHVXSUHPHDXWKRULW\RIWKHJRYHUQPHQWRIWKH
8QLWHG6WDWHV´
ÐÐÐÐ59 Nev. 247, 253 (1939) Terrano v. StateÐÐÐÐ
people of this or any other state of the federal union to dissolve their connection therewith, or
perform any act tending to impair, subvert, or resist the supreme authority of the government
Appellant contends that in recent years there has been a marked tendency on the part of
state courts which in the past adhered to the admissibility rule to change over to the federal or
inadmissibility rule. Six state jurisdictions, counsel assert, have aligned themselves with the
federal courts on this question since State v. Chin Gim was decided.
There are few questions upon which the courts are more sharply divided than that relatingto the admissibility or inadmissibility of evidence illegally obtained. Annotation, 88 A. L. R.
348–369; Underhill's Criminal Evidence, Fourth Edition, secs. 796–798, pp. 1447–1455;
Wharton's Criminal Evidence, Eleventh Edition, vol. 1, sec. 373, pp. 590–595; Wigmore on
Evidence, Second Edition, vol. IV, secs. 2183, 2184; Wigmore on Evidence, Supplement to
Second Edition, 1934, pp. 920–946.
At pages 348 and 349 of 88 A. L. R. the annotator says: “An examination of the earlier
annotations, in connection with this annotation, discloses that there are at present twenty-six
states which definitely follow the rule of admissibility, and eighteen which follow the rule of
inadmissibility, with Alaska and the Federal courts following the latter. * * * It appears from
the cases subsequent to the annotation in 52 A. L. R. 477, where a summary of jurisdiction
revealed twenty-eight states following the rule of admissibility and sixteen following the ruleof inadmissibility, that Pennsylvania and Vermont have definitely adopted the rule of
admissibility, while South Dakota has changed to the rule of inadmissibility, and Washington,
where the question had not been settled, has likewise adopted the rule of inadmissibility.”
In People v. Defore, 242 N. Y. 13, 150 N. E. 585, 588, the court of appeals, in a
to adopt the rule of inadmissibility. The opinion was written by Justice Cardozo who, after
pointing out the conflict among both the courts and law writers, said: “With authority thus
divided, it is only some overmastering consideration of principle or of policy that should
move us to a change. The balance is not swayed until something more persuasive than
uncertainty is added to the scales.”
The people of the State of New York recently adopted a new constitution. A strenuous but
unsuccessful effort was made in the constitutional convention to have a provision
incorporated to the effect that any evidence secured or obtained in violation of the unlawful
search and seizure provisions should be inadmissible upon any trial, civil or criminal, or inany proceeding whatsoever. See People v. La Combe, 170 Misc. 669, 9 N. Y. S. (2d) 877.
1. If it were perfectly apparent that the decision of this court in State v. Chin Gim was
manifestly erroneous, we would feel justified in overruling it. Linn v. Minor, 4 Nev. 462. But
we think the conclusion reached in the Chin Gim case was correct. And here it may be
observed that no attempt has been made in this state, either by way of constitutional
amendment or legislative enactment, to change the rule of admissibility enunciated in that
Appellant contends, however, that conceding State v. Chin Gim to have been correctly
decided, there are other considerations requiring reversal of this case. One of these is that the
1937 narcotic drugs act, Stats. of Nevada, 1937, chap. 23, pp. 35–46, gives Nevada a new
narcotics law similar to the federal statute, and different from the law as it existed in Nevada
at the time of the Chin Gim case. Particular attention is directed to the first paragraph of
section 14 of said 1937 act, which reads: “Warrant to search any store, shop, office,warehouse, dwelling house, building, vehicle, boat, aircraft or any place whatever where there
is a reasonable ground to believe that narcotic drugs are PDQXIDFWXUHGSRVVHVVHGKDG
manufactured, possessed, had under control, sold, prescribed, administered, dispensed, or
compounded, in violation of this act, may issue in the same manner and under the same
restrictions as provided by law for other personal property, or implements used, or evidences
of crime.”
We find nothing in said paragraph which forbids the admission in evidence of narcotic
drugs seized in an illegal search. State v. Chin Gim was decided in 1924, and if the legislature
of 1937 had desired to change the law as laid down in that case, it could easily have done so
by the addition of a few words forbidding the reception in evidence of narcotic drugs seized
in the course of an unlawful search.
2. Appellant further points out that in the Chin Gim case no federal officers participated inthe search and seizure. He contends that in admitting evidence secured by illegal search and
seizure the district court condoned and utilized not only the illegal acts of the state officers,
but also those of federal narcotic officer McGuire, which were in violation of the fourth
amendment to the United States constitution, U. S. C. A. With this contention we cannot
agree. The trial court did not condone any illegal acts on the part of either the county or
federal officers. The opium and the testimony of federal office McGuire were admitted in
evidence because they were competent and material on the issue of appellant's guilt or
innocence of the offense charged in the information. In admitting said testimony and
evidence, the trial court was simply following the rule laid down in the Chin Gim case. It
would be wholly inconsistent with that rule to hold that such evidence should be excluded
because federal officers participated in the unlawful search and seizure.3. The fourth amendment to the federal constitution applies only to officers of the federal
government and to its branches. It is usually held, even in those jurisdictions following the
inadmissibility rule, that evidence obtained in an illegal search and seizure by privateLQGLYLGXD OVRUE\VWDWHFRXQW\RUPXQLFLSDORIILFHUVLVDGPLVVLEOHLQWKHIHGHUDOFRXUWV
individuals or by state, county or municipal officers is admissible in the federal courts.
Annotation, 88 A. L. R. 348, at pages 362–365; Wharton's Criminal Evidence, Eleventh
Edition, vol. 1, sec. 375. So it is ordinarily held that evidence obtained in an unlawful searchand seizure by federal officers is admissible in prosecutions in the state courts. State v.
Gardner, 77 Mont. 8, 249 P. 574, 52 A. L. R. 454; People v. Touhy, 361 Ill. 332, 197 N. E.
849, at page 857.
There is a line of cases holding that where state and federal officers cooperate as in a joint
enterprise in obtaining evidence by illegal search and seizure, such evidence is not
admissible. Annotation, 88 A. L. R. 348, at pages 363–365. Such decisions are by federal
courts, or state courts following the federal rule. In State v. Hiteshew, 42 Wyo. 147, 292 P. 2,
it was held that evidence seized pursuant to a valid federal search warrant is admissible in a
prosecution in a state court, notwithstanding the warrant would be held illegal under the state
law.4. A state court, in construing a state constitution, is not bound by the construction of a
similar provision in the federal constitution by the supreme court of the United States. State v.
Aime, 62 Utah, 476, 220 P. 704, 32 A. L. R. 75; 14 Am. Jur. pp. 338, 339, n. 14.
5. As a general rule, state courts are not bound to follow federal court decisions on the
question of admissibility of evidence. Kraettli v. North West Transp. Co., 166 Wash. 186, 6
P.(2d) 609, 80 A. L. R. 1520; 14 Am. Jur. 336, sec. 116, n. 14.
6. Neither this nor any other court approves any search or seizure illegal under state
constrictions or the constitution of the United States; but the fact that judicial officers take the
official oath hereinbefore mentioned does not require the courts of this state to follow the
federal rule that evidence seized in an illegal search is not admissible. The same is true of the
paramount allegiance clause of our state constitution hereinbefore TXRWHG
ÐÐÐÐ59 Nev. 247, 257 (1939) Terrano v. StateÐÐÐÐ
quoted. The wording of that clause and the discussions concerning it appearing in Marsh's
Nevada Constitutional Debates and Proceedings (pp. 41–50, 51–53, 200, 201, 202 and 781)
convince us that it cannot reasonably be construed as requiring the courts of this state to
follow the federal rule making inadmissible evidence obtained in an unlawful search andseizure.
Appellant assigns as error the action of the trial court in remanding defendants Terrano
and Hansen to the custody of the sheriff while they were under bail lawfully fixed by the
court, and without any showing or requirement for increased bail. The record shows that, after
all the evidence was in and the district attorney had made his opening argument and counsel
for defendant Hansen had made his argument and before the argument of counsel for
defendant Terrano, the court, just before taking the noon recess, without explanation and in
which provides that “All persons shall be bailable by sufficient sureties, unless for capital
offenses when the proof is evident or the presumption JUHDW´
ÐÐÐÐ59 Nev. 247, 259 (1939) Terrano v. StateÐÐÐÐ
great.” Aside from and in addition to said constitutional questions, appellant further urges that
the order of remandment, made at the time and under the circumstances disclosed by the
record, was prejudicial error and that even if the order be considered a matter within the trial
court's discretion, which appellant does not concede, it was such an abuse of discretion as to
constitute reversible error.
7. It is our opinion that the district court did not commit reversible error in remanding the
defendants to the custody of the sheriff at the time and in the manner shown by the record.
People v. Williams, 59 Cal. 674; People v. Fidelity & Deposit Co., 107 Cal. App. 160, 290 p.
59, at page 60; People v. Nickell, 22 Cal. App. (2d) 117, 70 P.(2d) 659, at page 663; 3 Cal.
Jur. 1038–1040, sec. 11; People v. Merhige, 219 Mich. 95, 188 N. W. 454, at pages 455, 456;
3 R. C. L. 15, sec. 13; 6 Am. Jur. 86, sec. 95; 6 C. J. 965; sec. 184, n. 29; 8 C. J. S., Bail, p.
51, sec. 31, notes 62, 63.
The trial court gave the following instruction, advising the jury to acquit defendant
Hansen: “Lady and gentlemen of the jury, the Court deems the evidence in this case
insufficient to warrant a conviction of the defendant, Leon Hansen, of the offense charged in
the information, and the Court therefor advises the jury to acquit the defendant, Leon Hansen,
but this advice differs from the instructions given you by the Court in this particular, you are
bound to follow the instructions given by the Court but you are not bound by the advice now
given you, for the statute provides that the Court may not for any cause prevent the jury fromgiving a verdict except as provided in certain sections which have no application to this case
and you are authorized to use your own judgment in arriving at a verdict for or against the
defendant, Leon Hansen.”
Appellant argues that the only implication left for the jury from this instruction was that in
the view of the court the testimony was insufficient to convict the GHIHQGDQW7HUUDQR
ÐÐÐÐ59 Nev. 247, 260 (1939) Terrano v. StateÐÐÐÐ
defendant Terrano. He complains that the court failed to admonish the jury that the converse
of the instruction as to him should not be inferred by the jury. He contends that the instruction
is contrary to the rule requiring the trial court to refrain from commenting on the evidence.
Section 11001 N. C. L. 1929, provides: “If, at any time after the evidence on either side is
closed, the court deem the same insufficient to warrant a conviction, it may advise the jury to
acquit the defendant. But the jury shall not be bound by such advice, nor must the court for
any cause prevent the jury from giving a verdict, except as provided in sections 318, 319, and
320.”
8. Appellant did not ask for a separate trial, and he and Hansen were tried jointly.
Appellant did not request the trial court to instruct the jury that it was not to be inferred, from
the instruction advising the acquittal of defendant Hansen, that the court was of the opinion
that the evidence was sufficient to warrant the conviction of defendant Terrano. Among theinstructions given to the jury were the following: “A defendant in a criminal action is
presumed to be innocent until the contrary is proved; and in case of a reasonable doubt as to
whether his guilt is satisfactorily shown, he is entitled to be acquitted.” “In this, as in every
criminal action, it devolves upon the prosecution to establish, by competent evidence, beyond
a reasonable doubt, all the material facts constituting the crime of which the defendant is
accused.” “The court instructs the jury that if the jury finds facts established by the evidence
beyond a reasonable doubt which may consistently lead to a theory of innocence as well as to
a theory of guilt, you are bound to follow the theory of innocence and acquit the defendant.”
“The jury are the sole judges of the credibility of the witnesses, and of the weight and value to
be given to their testimony.” We do not believe that the instruction complained of can fairly
be considered as a comment on the evidence as regards DSSHOODQWQRUWKDWLWVHIIHFWZRXOG
appellant, nor that its effect would naturally be to cause the jury to infer that in the opinion of
the court Terrano was guilty.
9. Contending that the evidence was insufficient to warrant his conviction, appellantpoints out that he was convicted on circumstantial evidence; that neither he nor Hansen had
ever been in trouble before; that a charge of violating the narcotic drugs law, like a charge of
rape, is calculated to prejudice people upon the mere mention of the offense; that the officers
found no drugs when the search was made on the highway when appellant was present, and
that it was after the car had been driven into the sheriff's garage in Reno, and when neither of
the defendant's was present, that the officer claimed to have found the package containing the
four 5-tael cans of opium.
Appellant admitted that the car was his. The evidence on the part of the state tended to
show that defendants left Reno early in the morning of January 30, 1938; that upon being
arrested about noon at Berkeley, California, for speeding, a thorough search of the car wasmade, but no narcotics were found; that upon being released on bail, defendants crossed the
bay bridge and proceeded immediately to the Turf Club at 18 Turk street in San Francisco,
where they arrived at about 1:25 p. m.; that Terrano entered the Turf Club, remained there
about five minutes or so, then drove with Hansen in his car to his mother's home on Larkin
street, San Francisco; that before entering the home, Terrano opened the rear compartment of
his car and placed something therein; that at 2:20 p. m. the defendants drove away from the
home on Larkin street, and proceeded on their way back to Reno; that the front part only of
Where jury returned for further instructions, court could give oral instruction by mutual consent of the
parties.
4. Homicide.In prosecution for involuntary manslaughter, any error in oral instruction defining involuntary
manslaughter as the killing of a human being without intent to do so, in the commission of an unlawful act,
was not prejudicial to defendant who contended that he was not engaged in the commission of an unlawful
act at the time of the killing.
ÐÐÐÐ59 Nev. 262, 263 (1939) State v. LewisÐÐÐÐ
5. Homicide.In prosecution for involuntary manslaughter, instruction that the degree of negligence required to be
shown on a charge of manslaughter wherein unintentional killing was established, was such recklessness or
carelessness as was incompatible with proper regard for human life, was properly given. Comp. Laws, sec.
9955.
6. Homicide.Where a person is doing anything dangerous in itself, or has charge of anything dangerous in its use and
acts with reference thereto without taking the precautions which a person of ordinary prudence would
under the circumstances, and the death of another results therefrom, his act or neglect is “criminal
negligence,” notwithstanding his negligence does not amount to a wanton or reckless disregard of human
safety or life.
7. Homicide.Instruction that intent was not an element of the offense of involuntary manslaughter and that state was
not required to prove that defendant intended to kill deceased, correctly stated the law. Comp. Laws, sec.
10072.
8. Criminal Law.Argument to jury wherein district attorney, against objection, states pertinent facts which are not in
evidence or assumes such facts to be in the case when they are not, is reversible error.
9. Criminal Law.In prosecution for involuntary manslaughter, closing argument of district attorney was proper as being
supported by the evidence.
10. Criminal Law.The statute requiring court to admonish jury at each adjournment of the court not to converse on any
subject in connection with the trial or to form or express any opinion until the cause is finally submitted to
them, must be strictly complied with. Comp. Laws, sec. 10991.
11. Criminal Law.The admonition given by court to jury at first adjournment of court and admonitions given at subsequent
adjournments merely by reference to the first one, did not comply with statute requiring court to admonishthe jury in a particular manner at each adjournment. Comp. Laws, sec. 10991.
12. Criminal Law.Under the statute, the duty of the court to admonish jury in a particular manner at each adjournment of
court is imperative, and defendant does not waive any rights by failing to request such admonition, or by
failing to mention the matter at the time the court fails to give the statutory admonition, or by failing to
except to the failure of the court to give such admonition. Comp. Laws, sec. 10991.
Charles Lewis was convicted of involuntary manslaughter, and he appeals. Affirmed.
Ham & Taylor, V. Gray Gubler and Clifford A. Jones, for Appellant:
In either form in which the jury considered the instruction defining involuntary
manslaughter, it was erroneous for the following reasons:
It is abstract, confusing, misleading, uncertain, contrary to law, assumes the defendant wasguilty of involuntary manslaughter, is ambiguous and vague, and the statute upon which it
was based was void because of uncertainty. The error would have been corrected had the
court, when the jury expressed confusion, given them an instruction based upon sections
10069 and 10082 N. C. L.
The court erred in giving the instruction on the degree of negligence required to be shown
on a charge of manslaughter, for the reason that it is abstract, confusing, misleading,
uncertain, contrary to law, assumes the defendant guilty of negligence, assumes the defendant
guilty of involuntary manslaughter, is ambiguous and vague, and instructs upon the element
of negligence. This is not a case wherein negligence is involved, because negligence is not an
element of the offense.
The court committed error in instructing the jury that intent is not an element of theoffense charged against the defendant. The language of the information, “did then and there,
willfully, unlawfully, and feloniously,” could import no meaning other than a voluntary or
intentional act, and the statute defining manslaughter (sec. 10069 N. C. L.) imports the idea of
a voluntary and willful act. The instruction in the form in which it was given could have no
effect but to confuse and mislead, it being contrary to law and abstract.
The district attorney was guilty of gross misbehavior and prejudicial error in his argument
to the jury.
The court committed error in omitting to admonish the jury as required by section 10991
N. C. L. There ZHUHQXPHURXVUHFHVVHVEXWWKHMXU\ZDVRQO\DGPRQLVKHGRQFHDQGWKHQ
Appellant was convicted of the crime of involuntary manslaughter and sentenced to six
months in the county jail. This appeal is from the judgment and from the order denying a new
trial.Briefly stated, the facts are as follows: About nine o'clock on Christmas eve, December 24,
1937, Thomas Edward Stevenson, a large man, over six feet tall and weighing approximately
200 pounds, left the Grace Community Church on Wyoming street, in Boulder City, Nevada,
of which he was pastor, carrying two buckets, one containing chili and the other cocoa, and
started to walk south across the street to his home. The street runs east and west and is 56 feet
wide between curbs. Reverend Stevenson reached a point on the street 35 feet 4 inches
southerly from the north curb and 20 feet 8 inches northerly from the south curb, or 7 feet 4
inches beyond the center line of the street, when he was struck and instantly killed by an
automobile then being driven by the appellant along the street in a westerly direction.
The defendant testified: “I noticed some person coming out from behind a car that was
parked in front of the church, and I honked my horn at him and the fellow stopped, and I puton my brakes. I thought he was going to stand there, and he didn't, and I started on, and he
had some stuff in his hands and he threw them up and it went all over the windshield, and
about the same time I hit him.”
ÐÐÐÐ59 Nev. 262, 270 (1939) State v. LewisÐÐÐÐ
Except for springing the hood on both sides, the damage on the car was all in the leftportion of the front. The left front of the grill around the radiator was mashed in and sprung
back, and the hood was dented and sprung loose. The food carried by the deceased was
spilled over the front of the car. There were a few spots on the windshield, but otherwise the
condition of the windshield was not affected and vision through it was good.
There is no direct evidence concerning the speed of the automobile at the time. The skid
marks on the street, all of which, at and before the place of impact, were over the center line
and on the southern portion of the street—the wrong side of the street for a car traveling
west—showed that after the brakes were applied by appellant, the car traveled a distance of
73 feet 3 inches before striking the deceased, and then a further distance of 29 feet 5 inches
before stopping. A test of the brakes on the car showed that they were uniform and in good
condition; and that at a speed of 35 miles an hour, a full application of the foot brake only
would stop the car in 16 feet.
The testimony concerning the intoxication of the appellant is quite voluminous and very
conflicting. Appellant testified that he drank a portion only of a bottle of 3.2 percent beer
about thirty minutes before the tragedy. Some of the witnesses testified that he was
intoxicated and others that he was not.
Nine separate and distinct specifications of error have been assigned. They will be
1, 2. Appellant first contends that the court erred in giving instruction No. 6 1/2 as
follows: “You are instructed that Involuntary Manslaughter shall consist in the killing of a
human being, without intent to do so, in the commission of an unlawful act, or a lawful act
which probably might produce such a consequence, in an unlawful manner.”
This instruction is, in effect, the same as a portion RIVHFWLRQ1&/
ÐÐÐÐ59 Nev. 262, 271 (1939) State v. LewisÐÐÐÐ
of section 10072 N. C. L. 1929, defining involuntary manslaughter, and was properly given.
State v. Kelly, 1 Nev. 224, 227; State v. Willberg, 45 Nev. 183, 189, 191, 200 P. 475; Bias v.
United States, 3 Ind. T. 27, 53 S. W. 471, 474.
If defendant had felt that a more particular instruction should have been given, he should
have requested it. This he did not do, and cannot now be heard to complain of the lack of
such instruction. State v. Switzer, 38 Nev. 108, 110, 145 P. 925; State v. Hall, 54 Nev. 213,
235, 13 P.(2d) 624.
3, 4. The jury returned into court after it had retired to deliberate upon the case, and the
foreman stated that the last part of said instruction was confusing; that the jury did not
understand it aright; that some seemed to understand it, and that others were confused about
it. Whereupon, the court informed the jury that the instruction was the statutory definition of
involuntary manslaughter; that he could not orally instruct the jury in the absence of a
stipulation; and that if the jury would retire a written instruction would be worked out.
Thereupon, one of the jurors asked: “Juror: Will it be this here? If a man through an accident
unavoidably and in the rights, killed another man on the highway would that bemanslaughter? We are trying to find out if in just killing a man, and the man was in his rights,
and it is unavoidable and he can't help it, would that be manslaughter?”
The jury was then asked to retire. Some twenty minutes later the jury returned into court,
and, the record showing that the court might give instructions orally, the court said:
“The Court instructs you members of the jury, that portion of Instruction 6 1/2 reading as
follows: ‘or a lawful act which probably might produce such a consequence, in an unlawful
manner' has no application to this case.”
“I again call your attention to Instruction No. 8, reading: ³,I\RXDUHVDWLVILHGIURPWKH
“If you are satisfied from the evidence, beyond a reasonable doubt, that the deceased cameto his death by being struck by an automobile driven by the defendant upon a public highway,
at the time and place charged in the Information, and, if you further believe from the
evidence, beyond a reasonable doubt, that the said automobile was being driven by the
defendant in an unlawful manner, to-wit: while the defendant was under the influence of
intoxicating liquor or while the machine was being operated by the defendant in a reckless
manner, or in any other than a careful and prudent manner; or at a rate of speed greater than is
reasonable and proper, having due regard for the traffic, surface and width of the highway; or
at such a rate of speed as to endanger the life, limb or property of any person, you should find
the defendant guilty of Involuntary Manslaughter”;
“to Instruction No. 19, reading:
“The jury are instructed that it would not be proper to single out any one of these
instructions as the law of the case; they must all be considered together and construed as a
whole”;
“to Instruction No. 13, reading:
“If you believe from all the evidence in the case that Thomas Edward Stevenson, was
killed as a result of an unavoidable accident, you should find the defendant not guilty.”
“With that explanation I will ask you to retire again.”
Clearly, the court had the right to give this oral instruction by the mutual consent of the
parties. State v. Clark, 48 Nev. 134, 152, 228 P. 582.
It is even more clear that the oral instruction so given was beneficial and not prejudicial to
the defendant, for by such oral instruction the jury were informed: “That InvoluntaryManslaughter shall consist in the killing of a human being, without intent to do so, in the
commission of an unlawful act.”
The defendant at all times contended that he was not HQJDJHGLQWKHFRPPLVVLRQRIDQ
XQODZIXODFWDWWKHWLPHRIWKHXQIRUWXQDWHNLOOLQJ
ÐÐÐÐ59 Nev. 262, 273 (1939) State v. LewisÐÐÐÐ
engaged in the commission of an unlawful act at the time of the unfortunate killing.
Therefore, if the court erred, in its oral instruction, in so defining involuntary manslaughter, it
was error in appellant's favor, of which he cannot now complain. State v. Hall, 54 Nev. 213,
239, 13 P.(2d) 624.
5, 6. Appellant next contends that the court erred in giving instruction No. 12, which
reads: “The degree of negligence required to be shown on a charge of manslaughter, where an
unintentional killing is established, is such recklessness or carelessness as is incompatible
In State v. Leonard, 195 N. C. 242, 141 S. E. 736, the court said that the language
contained in this instruction well stated a principle of law in actions of this kind.
As shown by the following authorities, no one of which is directly in point but all of which
are analogous, the instruction made it incumbent on the state to establish criminal negligence
on the part of the defendant, as apparently required, where no intent is involved, by section9955 N. C. L. 1929. State v. Beyers, 58 Nev. 125, 71 P.(2d) 1044, 1046; State v. Goetz, 83
Conn. 437, 76A. 1000, 30 L. R. A. (N. S.) 458, 462; Cooper v. State, 61 Okl. Cr. 318, 67
P.(2d) 981, 987; People v. Driggs, 111 Cal. App. 42, 295 P. 51, 53; People v. Hurley, 13 Cal.
App. (2d) 208, 56 P.(2d) 978, 981—983; State v. McMahan, 57 Idaho 240, 65 P.(2d) 156.
In a case of this kind, criminal negligence is not an extreme state of recklessness and
wantonness, as claimed by appellant, the true rule in that respect being well expressed as
follows: “When a person is doing anything dangerous in itself, or has charge of anything
dangerous in its use, and acts with reference thereto without taking those proper precautions
which a person of ordinary prudence would have used under the circumstances and the death
of another results therefrom his act or neglect is a criminal act against the person so killed
even though his negligence does not DPRXQWWRDZDQWRQRUUHFNOHVVGLVUHJDUGRIKXPDQ
VDIHW\RUOLIH´
ÐÐÐÐ59 Nev. 262, 274 (1939) State v. LewisÐÐÐÐ
amount to a wanton or reckless disregard of human safety or life.” People v. Wilson, 193 Cal.
512, 226 P. 5, 7; People v. Crossan, 87 Cal. App. 5, 261 P. 531, 533; People v. Marconi, 118
Cal. App. 683, 5 P.(2d) 974, 976.7. Appellant next contends that the court erred in giving instruction No. 15, which reads:
“You are instructed that intent is not an element of the offense charged against the Defendant
and that in this case, the State is not required to prove that the defendant intended to kill the
deceased.”
This instruction, when applied to the facts, correctly states the law. In Ex Parte Liotard, 47
Nev. 169, 173, 217 P. 960, 962, 30 A. L. R. 63, wherein petitioner, with another, had been
charged with manslaughter, in that, while under the influence of intoxicating liquor, they so
operated an automobile as to strike and kill another person, the court said: “Our statute does
not make intent an element of the offense charged.”
8, 9. Appellant next contends that the district attorney, in his closing argument to the jury,went beyond the limits of legitimate argument to the prejudice of the defendant.
The rule is well settled that it is error sufficient to reverse a judgment for a district
attorney, against objection, to state facts pertinent to the issue, and not in evidence or to
assume in argument to the jury such facts to be in the case, when they are not. People v.
Mitchell, 62 Cal. 411, 412; State v. Rodriquez, 31 Nev. 342, 345, 102 P. 863; State v. Cyty,
50 Nev. 256, 258, 256 P. 793, 52 A. L. R. 1015
But that rule has no application to this case. A very careful reading of the entire record
fails to disclose the statement by the district attorney in his closing argument, of any fact,
pertinent to the issue, not in evidence. The district attorney made no charge against the
character of the defendant of his good name, nor did he so much as intimate that the
defendant was guilty of any offense or offenses other than the offense of involuntary
manslaughter on which he was being tried.
ÐÐÐÐ59 Nev. 262, 275 (1939) State v. LewisÐÐÐÐ
Matters of common knowledge and historical facts were referred to and interwoven in the
argument, and allusion was made to the prevalence of death by automobile and the duty of the
jury. The district attorney fully stated his views as to what the evidence showed, and as to the
conclusions to be fairly drawn therefrom, and he expressly told the jury: “Look at this case as
you have been instructed by the Court to look at it, and decide it solely from the evidence.” At
no time did he overstep the bounds of propriety. State v. Robison, 54 Nev. 56, 71, 6 P.(2d)
433; People v. Molina, 126 Cal. 505, 59 P. 34, 35; People v. Soeder, 150 Cal. 12, 87 P. 1016,
1020; People v. Burke, 18 Cal. App. 72, 122 P. 435, 448.
10-14. Appellant next contends that the court erred in failing to admonish the jury as
required by section 10991 N. C. L. 1929, which reads: “The jury must also, at each
adjournment of the court, whether they be permitted to separate or be kept in charge of
officers, be admonished by the court that it is their duty not to converse among themselves, or
with any one else, on any subject connected with the trial, or to form or express any opinion
thereon until the cause is finally submitted to them.”
This statute should have been and always ought to be strictly complied with. People v.
Thompson, 84 Cal. 598, 24 P. 384, 387; People v. McKeehan, 11 Cal. App. 443, 105 P. 273,274; Johnson v. State, 68 Ark. 401, 59 S. W. 34; State v. Mulkins, 18 Kan. 16.
The trial of this case commenced on Wednesday of one week and ended on Monday of the
following week. At the afternoon recess on the first day the court informed the jury that they
would be allowed to separate by consent of counsel, and then said: “It is the duty of the Court
to admonish you not to form or express an opinion until the case is finally submitted to you.
You are to be careful not to let anyone speak to you concerning any of the issues of the case,
or to discuss it with anyone.”
ÐÐÐÐ59 Nev. 262, 276 (1939) State v. LewisÐÐÐÐ
At the evening adjournment on the first day of the trial, the court said: “Members of the
jury, during the recess kindly remember the admonition of the Court heretofore given you.”
At each and every subsequent recess and adjournment, the court told the jury to “kindly
heed the admonition of the Court heretofore given you.”
It is quite clear that the court did not give the statutory admonition to the jury at any time.
The only admonition ever given does not tell the jury, as expressly required by statute, “that it
is their duty not to converse among themselves, or with anyone else, on any subject connected
with the trial, or to form or express any opinion thereon until the cause is finally submitted to
them.”
The subsequent requests made by the court to the jury to kindly remember or to kindlyheed the admonition of the court theretofore given, are wholly insufficient. Our statutes does
not, as do the statues of some states, provide that the “admonition must be given or referred to
by the court at each adjournment.” Instead, it provides that the court must, at each
adjournment, admonish the jury in a particular manner. A mere reference to a prior
admonition, even though that admonition complied with the statute, is not admonishing the
jury as the statutes requires.
Obviously the failure of the court to properly admonish the jury was a mere oversight,
which the court would have promptly corrected had its attention been called thereto. The
court was not requested to admonish the jury, nor was there any exception at the time of its
failure to do so.
But as the statute makes it the imperative duty of the court, without any suggestion, at eachadjournment of the court, to admonish the jury as therein provided, a defendant does not
waive any rights by failing to request the court to admonish the jury, or by failing to call the
attention of the court to the matter at the time the court IDLOVWRJLYHWKHVWDWXWRU\ DGPRQLWLRQRUE\IDLOLQJWRH[FHSWWRWKHIDLOXUHRIWKHFRXUWWRDGPRQLVKWKHMXU\DV
UHTXLUHGE\WKHVWDWXWH
ÐÐÐÐ59 Nev. 262, 277 (1939) State v. LewisÐÐÐÐ
fails to give the statutory admonition, or by failing to except to the failure of the court to
admonish the jury as required by the statute. State v. Mulkins, 18 Kan. 16, 19; Johnson v.
State, 68 Ark. 401, 59 S. W. 34.
However, the rights of a defendant under this statute can be later waived, and were actually
waived by the defendant in this case. Defendant's motion for a new trial and his motion to
vacate the verdict were each made and based upon numerous grounds, excluding, however,
any reference whatever to the failure of the court to give the statutory admonition to the jury.
In State v. Gray, 19 Nev. 212, 222, 8 P. 456, this court held that the failure of the trial court to
admonish the jury as required by statute will not justify the granting of a new trial where it is
clearly shown that the defendant was not injured thereby. Had such failure been called to the
attention of the trial court at the time of the motion for new trial, the state would have had the
right to show, and perhaps could have shown, that nothing transpired during the separations
of the jury prejudicial to the defendant's rights.
This court has often held that one charged with crime may waive a statutory requirement.
State v. Roderigas, 7 Nev. 328, 333; State v. Larkin, 11 Nev. 314, 325; State v. Collyer, 17
Nev. 275, 279, 30 P. 891; McComb v. District Court, 36 Nev. 417, 421, 136 P. 563; State v.
By not moving for a new trial because of the failure of the court to admonish the jury as
required by statute, the appellant clearly waived the error now complained of. As said in State
v. Mulkins, 18 Kan. 16, 19: “If the defendant had failed to move for a new trial because of
said failure [the failure to admonish the jury], then perhaps we might presume that the
defendant had waived the error, or at least we might presume that the error did not work anysubstantial prejudice to his rights, and therefore, and for that reason, he did not choose by
moving for a new trial on that ground to put WKHVWDWHWRWKHWURXEOHRIVKRZLQJWKDW
the state to the trouble of showing that nothing prejudicial in fact occurred during the
irregular separation of the jury.”
15. Appellant next contends that the court erred in settling the instructions in chambers.
The record discloses that the defendant, in open court, before and after the reading of the
instructions to the jury, excepted to said instructions, and to each and every one of them, upon
six different specified grounds; and that thereafter, and before the submission of the case and
argument of counsel, the defendant submitted in writing and requested the court to give the
jury fifteen additional instructions, and that the court declined and refused to give each and all
of them.
The affirmative action of the court regarding the instructions, thus taken in open court,
conclusively establishes the fact that the instructions were actually settled in open court and
disproves an inadvertent expression in the record to the contrary. That the instructions wereproperly settled in open court cannot be denied, because, as said in Kline v. Vansickle, 47
Nev. 139, 144, 217 P. 585, 586: “It is true that the judge frequently informally considers
tendered instructions in his chambers, but action thereupon is taken in open court, though he
may indicate what his ruling will be. Ruling upon tendered instructions and objections thereto
is a part of the trial of a case, and the trial must be in open court, and all objections and
exceptions must be made there.” Apparently that is exactly what happened in this case.
16-18. Appellant next contends that there is no lawful verdict or verdict upon which a
judgment could be rendered, in that : (1) The verdict is not in the form required by the statute;
(2) The verdict was coerced by the court; and (3) The verdict was not rendered and recorded
as required by law.Except for the entitlement of court and cause, the verdict in this case and the
recommendation appended thereto read as follows: ³:HWKH-XU\LQWKHDERYHHQWLWOHG
surplusage, but is a condition which renders the verdict nugatory. There is no merit in such
contention.
It is well settled that, except where authorized by statute, words recommending mercy or
leniency constitute no part of the verdict, but are merely in addition thereto, in no wise
qualifying the verdict's legal effect, and may be rejected as surplusage. State v. Stewart, 9
Nev. 120, 134; State v. Gray, 19 Nev. 212, 222, 8 P 456; 8 Cal. Jur. page 407, sec. 436; 16 C.J. page 1110, sec. 2601; Notes 17 A. L. R. 1161; 87 A. L. R. 1372.
The claim of appellant that the verdict was coerced by the court is based upon the
conversation between the court and Juror Johnson, shown above, and merits no consideration.
19. In support of appellant's contention that the verdict was not rendered and recorded as
required by law, it is urged that the jury were not polled before the verdict was recorded,
contrary to section 11021 N. C. L. 1929, which reads: “When a verdict is rendered, and
before it is recorded, the jury may be polled, on the requirement of either party, in which case
they shall be severally asked whether it be their verdict, and if anyone answer in the negative,
the jury shall be sent out for further deliberation.”
After the verdict was rendered, and before it was recorded, the defendant had the right
under this statute to request, as he did, that the jury be polled. The language of the statute isclear and unambiguous, and needs QRLQWHUSUHWDWLRQ
ÐÐÐÐ59 Nev. 262, 281 (1939) State v. LewisÐÐÐÐ
no interpretation. The statute prescribes the time and manner of polling the jury, and should
be followed. Cases might arise where a failure to comply with its provisions would be
prejudicial to a defendant. However, in this case, the jury were actually polled, after theverdict was recorded, without any objection or exception on the part of the defendant, and
each juror answered that the verdict was his. Under these circumstances, the right of polling
was in effect and substantially accorded to the defendant. People v. Nichols, 62 Cal. 518, 521.
20, 21. Appellant next contends that the jury were guilty of gross misconduct, and that the
verdict was coerced as a result of misrepresentation and deceit of fellow jurors, in that some
member of the jury deleted instruction No. 6 1/2, by drawing a pencil line through the last
four words thereof, and then represented to the remaining jurors that the court had made such
deletion.
In support of this assignment, appellant relies upon the affidavits of three of the jurors
offered on his motion for a new trial and rejected by the court and upon said instruction, asoriginally given, with the last four words deleted.
The affidavits of the two jurors recited, among other things, that the jury retired after the
court had given its oral instruction, and “upon again reading said Instruction No. 6 1/2 said
instruction was changed by a pencil marking out of the last four words of said instruction,
to-wit: ‘in an unlawful manner.' That it was represented to me by other jurors that said
instruction was amended by the Court to read as the same then appeared with the last four
words of said instruction crossed out with a pencil mark.”
The affidavit of the other juror recited, among other things: “That the Court was asked to
explain said above instruction No. 6 1/2, and that the said instruction was changed and
amended by the Judge of said Court by striking out the last phrase, ‘in an unlawful manner,'
making said instruction read as follows, to-wit: µ<RXDUHLQVWUXFWHGWKDW,QYROX QWDU\ 0DQVODXJKWHUVKDOOFRQVLVWLQWKHNLOOLQJRIDKXPDQEHLQJZLWKRXWLQWHQWWRGRVRLQWKH FRPPLVVLRQRIDQXQODZIXODFWRUDODZIXODFWZKLFKSUREDEO\PLJKWSURGXFHVXFKD
FRQVHTXHQFHLQDQXQODZIXOPDQQHU´
ÐÐÐÐ59 Nev. 262, 282 (1939) State v. LewisÐÐÐÐ
‘You are instructed that Involuntary Manslaughter shall consist in the killing of a human
being, without intent to do so, in the commission of an unlawful act, or a lawful act which
probably might produce such a consequence, in an unlawful manner.'”
The last-mentioned affidavit is clearly contrary to the facts as shown by that portion of therecord hereinbefore set forth, and the other affidavits do not disclose the name of any juror
who misrepresented any facts. Such affidavits are valueless.
Moreover, it is a well established general rule, founded upon well-recognized grounds of
public policy, that a juror will not be heard to impeach his own verdict. State v. Stewart, 9
Nev. 120, 134; State v. Crutchley, 19 Nev. 368, 369, 112 P. 113; Southern Nevada Gold &
Silver Mining Co. v. Holmes Mining Co., 27 Nev. 107, 145-151, 73 P. 759, 103 Am. St. Rep.
759; Page v. Sutton, 45 Nev. 395, 401, 204 P. 881, 207 P. 1102; Priest v. Cafferata, 57 Nev.
153, 157, 60 P.(2d) 220.
22. Appellant next contends that the court erred in not vacating the verdict and in denying
the motion for a new trial.Appellant does not claim that the want of evidence demands a reversal, but does claim that
the evidence is slight and unsatisfactory and that its weakness emphasizes the prejudicial
effect of the numerous other errors assigned.
A thorough consideration of all of the other alleged errors, hereinbefore discussed, shows
that the appellant was in no way prejudiced. The evidence discloses that the jury might well
have found that there were several violations of the traffic laws which appellant may have
committed, to-wit: Driving an automobile while intoxicated or under the influence of
intoxicating liquor, driving at a rate of speed in excess of that permitted by law, reckless
driving, and driving on the wrong side of the street. Therefore, as said in People v. Von
Eckartsberg, 133 Cal. App. 1, 23 P.(2d) 819, 821: “It must be FRQFHGHGWKDWLIWKHUHFRUG
FRQWDLQVDQ\HYLGHQFHWHQGLQJWRVKRZWKDWDSSHOODQWZDVJXLOW\RIDQ\RQHRIWKH D IRUHVDLGYLRODWLRQVRIODZWKLVFRXUWPD\QRWGHFODUHWKDWWKHWULDOFRXUWDEXVHGLWV
conceded that if the record contains any evidence tending to show that appellant was guilty of
any one of the aforesaid violations of law this court may not declare that the trial court abused
its discretion in refusing a new trial.”
A most careful consideration of the entire record fails to disclose any prejudicial error.
Therefore, the judgment and the order denying a new trial should be, and they hereby are,
affirmed.
Orr, J., being disqualified from participating in this opinion, the Governor designated Hon.
Wm. McKnight, Judge of the Second Judicial District Court, to sit in his place.
____________
ÐÐÐÐ59 Nev. 283, 283 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
LOUIS BARTLETT, Appellant, v. THE BISHOP OF NEVADA,
A Corporation Sole, Respondent.
No. 3257
June 23, 1939. 91 P.(2d) 828.
1. Parties.There are two types of code provisions relating to intervention, and Nevada has adopted the broader and
more liberal type of statute. Comp. Laws, sec. 8563.
2. Parties.Under statute providing that any person may intervene in an action or proceeding, who has an interest in
matter in litigation, in success of either of parties, or an interest against both, a claim to property which is
the subject of litigation, or to some part of such property, constitutes a sufficient “interest” to entitle
intervention on part of claimant. Comp. Laws, sec. 8563.
3. Parties.That intervener may protect his interest in some other way does not defeat his right to intervene, provided
there exists a statutory interest in the matter in litigation or in the success of either of the parties. Comp.
Laws, sec. 8563.
4. Parties.
Where intervener and his co-owner contracted to sell land to defendants, and action was brought againstdefendants, who immediately went into possession of land, to restrain defendants from interfering with
plaintiff's use of strip of such ODQGZKLFKSODLQWLIIDOOHJHGZDVGHGLFDWHGDVSXEOLFURDGZD\
ÐÐÐÐ59 Nev. 283, 284 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
land, which plaintiff alleged was dedicated as public roadway, intervener had an “interest” in the litigation,
and hence was entitled to intervene, since, if judgment should be awarded plaintiff, intervener and hisco-owner would be in position, at least until judgment could be set aside, of having contracted to sell
defendants a piece of land in which they had not interest. Comp. Laws, sec. 8563.
5. Parties.That intervener seeks an entirely different type of relief from that sought by original parties does not
alone justify dismissing intervention. Comp. Laws, sec. 8563.
6. Parties.Whether a new issue of fact is presented by petition for intervention is not the test to apply in determining
whether an issue different from that between original parties will be made by intervener; it being sufficient
if the ultimate issue to be determined remains the same. Comp. Laws, sec. 8563.
7. Parties.
The same rules govern intervener's rights which govern those who originally sue or defend.
8. Parties.Where intervener and his co-owner contracted to sell land to defendants, and an action was brought
against defendants, who immediately went into possession, to restrain defendants, from interfering with
plaintiff's use of a strip of such land, which plaintiff alleged was dedicated as public roadway, allegations in
intervener's complaint that plaintiff's removal of fence posts constituted a trespass on intervener's land
depended on the essential question whether such strip was dedicated as public roadway, and hence did not
justify dismissing intervention. Comp. Laws, sec. 8563.
9. Parties.While plaintiff frequently has privilege of selecting persons to be parties to his case, such privilege is
sometimes of less importance than the speedy administration of justice in disposing, in one suit, of the
essential question at issue.
10. Parties.“Ejectment” is essentially a possessory action, and is an action at law, not in equity.
Appeal from First Judicial District Court, Douglas County; Clark J. Guild, Judge.
Action by the Bishop of Nevada, a corporation sole, against George Miracle and another to
restrain defendants from interfering with use of strip of land which plaintiff alleged was
dedicated as a public roadway. Louis Bartlett intervened, claiming ownership in fee of RQHKDOILQWHUHVWLQODQGLQLVVXH
ÐÐÐÐ59 Nev. 283, 285 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
one-half interest in land in issue. From an order striking intervener's amended complaint, and
from judgment dismissing intervention, intervener appeals. Reversed.
It is a general rule that if the judgment striking a complaint in intervention becomes final,
the intervener is not affected by the judgment rendered in the original action. This view has
been expressed by the supreme court of Nevada in the case of Harlan v. Eureka Mining Co.,
10 Nev. 92. That case, however, has been distinguished by the court in the case of Rutherford
v. Union Land and Cattle Co., 47 Nev. 21, 213 P. 1045, which was an action in equity. This isalso an action in equity, and clearly falls within the holding in the last cited case.
It is beyond cavil that the owner of the fee of a tract of land has an interest in that land
which will be affected by a judgment declaring it to be a highway or that an individual has
prescriptive rights to use it as such. He has an interest in the success of either of the parties
and an interest against both.
“An order denying an application to intervene in an action ends the litigation as to the
intervener, and may be appealed from by him immediately, free and unhampered by the
subsequent proceedings in the action.” 20 Cal. Jur. 528; Brown v. Canty, 31 Cal. App. 183,
50 P. 1056. So, also, the intervener may appeal from a judgment entered against him after a
demurrer to the complaint in intervention has been sustained. 20 Cal. Jur. 529.
Wayne T. Wilson and Emerson J. Wilson, for Respondent:
The amended complaint in intervention is defective because of its failure to state facts
from which the court may determine that the intervener has such an interest in the outcome of
the controversy as would warrant the FRXUWLQSHUPLWWLQJKLPWRLQWHUYHQHXQGHUWKH
In April 1937, in the First judicial district court, Douglas County, respondent, as plaintiff,
commenced civil action No. 595 against George Miracle. In substance, the complaint in that
action alleges:
That on May 21, 1920, and continuously for a long time prior thereto, Katherine SmithHill, predecessor in interest of plaintiff and of defendant Miracle, was the owner of the NW
1/4 of the SE 1/4 of section 27, township 13 N., range 18 E., Mount Diablo base and
meridian, said property being adjacent to the townsite of Lakeside, California, on the shore of
Lake Tahoe.
That on said 21st day of May 1920 said Katherine Smith Hill deeded to plaintiff a part of
said subdivision, with easements and appurtenances particularly GHVFULEHGDVIROORZVWRZLW
That plaintiff ever since the 21st day of May 1920 has been the owner in fee simple and in
the actual peaceable possession of said real property, together with the improvements thereon
and the appurtenances thereunto belonging.
That lying along the state line, between the States of California and Nevada, and for a
distance of fifty feet on each side of said state line, commencing at the state highway on the
south and running northwesterly along said state line and along the westerly line of theabove-described premises, to the shore of Lake Tahoe, is a roadway or street known and
designated as Stateline DYHQXHWKDWHYHUVLQFHDWLPHPRUHWKDQWZHQW\\HDUVSULRUWRVDLG
ÐÐÐÐ59 Nev. 283, 288 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
avenue; that ever since a time more than twenty years prior to said 21st day of May 1920 said
Stateline avenue has been dedicated to the general public, and was until May 1936 openly and
notoriously used, without let or hindrance from any person, as a foot way, and for wagons,
and coaches, and vehicles of every nature and description, by the adjoining property owners
and the general public as a thoroughfare to be used by the adjoining property owners and the
general public in accordance with their convenience and desires; that said street or roadway
was known to the general public and to the adjoining property owners for many years prior to
the said 21st day of May 1920 as Stateline avenue, and was so delineated and designated on a
townsite plat filed of record with the county recorder of Eldorado County, California, by said
Katherine Smith Hill, and her husband, Arthur N. Hill, on or about the 5th day of October
1909; that by filing said plat the said Hills evidenced their intention to dedicate, and did at
said time dedicate, said Stateline avenue to the use of the general public as a right of way or
thoroughfare, without interference or molestation by or from any person whomsoever, and
that by and on account of such designation and such setting apart of said street by said owners
and by long continued use, plaintiff and other adjoining property owners and the generalpublic have acquired an easement and right to the use of said roadway or street; that plaintiff
and other adjacent property owners and the general public accepted said dedication of said
Stateline avenue, and it has been used as a street, road or highway by the plaintiff and other
adjacent property owners and the general public continuously for a period of twenty-seven
years or more without let or hindrance from any person, and as a matter of right.
That about May 1936 said defendant, George Miracle, forcibly, and against the protest of
plaintiff, erected a fence across and in that portion of said Stateline avenue located in the
ÐÐÐÐ59 Nev. 283, 289 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
enclosed that portion of said Stateline avenue adjacent to the property of plaintiff, described
as follows: “Commencing at a point on the north side of the south half of Section 27,
Township 13 N., R. 18 E., said point being at right angle to and 50 feet distant from the
boundary line between the states of California and Nevada; thence 50 feet southwesterly to
the boundary line between the states of Nevada and California; thence northwesterly along
said boundary line between the states of California and Nevada to the point of intersection
between said boundary line between the states of Nevada and California and the north side of
the south half of section 27 Township 13 N., Range 18 E., Mount Diablo Base and Meridian;thence along the north side of the south half of said section 27, Township 13 N., Range 18 E.,
Mount Diablo Base and Meridian, to the place of beginning.”
That thereafter said defendant constructed upon said enclosed portion of said Stateline
avenue three small buildings, and by said fence and buildings obstructed said Stateline
avenue and excluded and still does exclude plaintiff and the adjoining property owners and
the general public from the use and enjoyment of said described portion of Stateline avenue,
to the great inconvenience, detriment and irreparable injury of said plaintiff, and that said
defendant ever since has and still does continue to maintain said obstructions, thereby
preventing the plaintiff from enjoying his easement in said Stateline avenue.
The relief prayed by plaintiff is (1) that defendant be required to remove said obstructions;(2) that defendant be forever restrained from interfering with said Stateline avenue, and with
plaintiff's free and unobstructed use of the same; (3) such other and further relief as to the
court may seem meet and just.
On June 30, 1937, an answer to said complaint was filed by said George Miracle and
Margaret A. Dixon, also known as Mrs. George Miracle, as defendants in said action. In this
answer defendants deny that the VWULSRIODQGUXQQLQJDORQJWKHVWDWHERXQGDU\OLQHRQWKH
northeasterly from the California-Nevada State line, commencing at a point thereon 100 feet
northwesterly from its intersection with the Lincoln Highway, and extending northwesterly
along said State line 880.80 feet, and 797.47 feet on the parallel line northeasterly therefrom;
and including the triangle formed by a line joining the northwesterly ends of the parallel lines
described, with a line at a right angle to said State line, passing through the northwesterly
point RIVDLGSDUDOOHOOLQH´
ÐÐÐÐ59 Nev. 283, 292 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
of said parallel line.” He alleges that “on May 11, 1936 John H. Kimball, as trustee for
himself and Louis Bartlett, plaintiff in intervention, entered into an agreement with Margaret
A. Dixon, also know as Mrs. George Miracle, by the terms of which said Margaret A. Dixon
agreed to purchase and said John H. Kimball, as trustee for himself and plaintiff in
intervention, agreed to sell to said Margaret A. Dixon that certain lot or parcel of land in
Douglas County, Nevada, and in Section 27, Township 13 N. Range 18 E., M. D. B. & M.,
described as fellows: Commencing at a point on the California-Nevada State Line distant
thereon 989.80 feet north 48° 42′ west from its intersection with the westerly line of the
Lincoln Highway, running thence south 48° 42′ east along said California-Nevada State line
292.33 feet; thence at a right angle northeasterly 50 feet; thence north 48° 42′ west a distance
of 200 feet; thence north 80° 12′ west to the point of commencement (subject to correction of
survey.)” He further alleges that in the months of June and July 1936 plaintiff corporation
sole, defendant in intervention, and one Thomas Jenkins trespassed upon the property last
above particularly described, and attempted to open up a road thereon from its easterly
boundary on the Lincoln highway to and including the property occupied by the defendants,caused a line of fence posts upon the boundary of said property along the California-Nevada
state line to be pulled up, and cut down two large fir trees and a number of smaller trees on
said property.
The relief prayed by plaintiff in intervention is: “I. That said defendant be required to
restore said line of fence posts removed by it as hereinabove set forth. II. That said defendant
be restrained forever from interfering with the property described in this amended complaint
in intervention and a decree of this court for such other and further relief as to this court may
seem meet and just in the premises, and for general relief, and for costs of the plaintiff in
intervention in this action.”
ÐÐÐÐ59 Nev. 283, 293 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
To said amended complaint in intervention plaintiff, Bishop of Nevada, filed a general
demurrer. Plaintiff also moved to strike from the amended complaint in intervention certain
portions thereof, and further moved to strike the whole amended complaint in intervention
from the files. The trial court took no action on said demurrer, nor on the motion to strike
portions of the amended complaint in intervention, but granted the motion to strike said
amended complaint from the files and entered judgment dismissing the intervention. Said
Louis Bartlett, plaintiff in intervention, has appealed to this court from said order striking
from the files his amended complaint in intervention and from the judgment dismissing saidintervention.
Section 8563 N. C. L. 1929 reads: “Any person may, before the trial, intervene in an action
or proceeding, who has an interest in the matter in litigation, in the success of either of the
parties, or an interest against both. An intervention takes place when a third person is
permitted to become a party to an action or proceeding between other persons, either by
joining the plaintiff in claiming what is sought by the complaint, or by uniting with the
defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both
the plaintiff and the defendant; and is made by complaint, setting forth the grounds upon
which the intervention rests, filed by leave of the court and served upon the parties of the
action or proceeding who have not appeared, and upon the attorneys of the parties who have
appeared, who may answer or demur to it as if it were an original complaint. The court shalldetermine upon the intervention at the same time that the action is decided; if the claim of the
party intervening is not sustained he shall pay all costs incurred by the intervention.”
The position taken by appellant is that his amended complaint in intervention sufficiently
shows that he is interested in the matter in litigation, and that he is interested in the success of
the defendants. Respondent FRQWHQGVWKDWVDLGDPHQGHGFRPSODLQWLQLQWHUYHQWLRQLV
not been placed in issue by the other parties, and that he seeks an entirely different type of
relief from that which is sought by the defendants. Respondent points out that intervener's
allegations are not confined to the property described in plaintiff's complaint, and alleged to
have been obstructed, but includes property which defendants did not obstruct and in which
they have no interest. Intervener, says the respondent, comes in and sets up his title to the
property and his right of possession, and then injects the issue of a trespass by plaintiff oncertain property, thus making his amended complaint in intervention one in the nature of a
cross-complaint.
The ultimate issue between plaintiff and defendants, as stated by respondent, is whether or
not that portion of the fifty-foot strip described in the complaint and REVWUXFWHGE\WKH
ÐÐÐÐ59 Nev. 283, 295 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
obstructed by the defendants was or was not dedicated and accepted as a roadway. Appellant
agrees to this statement and proceeds to point out that he, as plaintiff in intervention, claims
ownership in fee of a one-half interest in said particular piece of land, while plaintiff
(defendant in intervention) claims a right to use said property as a dedicated roadway.
We have carefully considered the briefs of appellant and respondent, as well as many
authorities not cited in any of them, and our conclusion is that appellant is entitled to
intervene in this action because his amended complaint in intervention shows that he has an
interest in the matter in litigation, and that he is interested in the success of the defendants.
We do not decide whether the amended complaint in intervention is faulty or defective in
some particulars. Our decision goes only to the extent that intervener's complaint should nothave been stricken in its entirety, nor his intervention dismissed.
As might be expected, no case has been found which is similar in all respects to the case at
bar. Following are some of the authorities which have proved helpful: Rutherford v. Union
Land & Cattle Company, 47 Nev. 21, 213 P. 1045; Crumley v. Fabbi, 47 Nev. 14, 213 P.
1048; Elms v. Elms, 4 Cal. (2d) 681, 52 P.(2d) 223, 102 A. L. R. 811; Robinson v. Crescent
City Mill & Transp. Co., 93 Cal. 316, 28 P. 950; Coffey et al. v. Greenfield, 55 Cal. 382;
Orcutt v. Woodard, 136 Iowa, 412, 113 N. W. 848; Northern Gravel Co. v. Muscatine North
& S. Ry. Co., 185 Iowa, 1259, 171 N. W. 787; McConniff v. Van Dusen, 57 Nev. 49, 77 N.
W. 348; Jones v. Security State Bank, 120 Okl. 231, 251 P. 65; Clements v. Holmes, Tenn.
App., 120 S. W. (2d) 988; State v. Capdevielle, 122 La. 615, 48 So. 126; Pomeroy's Code
Remedies, Fifth Edition, secs. 308, 310, 313, 323, 324, 325; Clark on Code Pleading, sec. 65;
Bancroft's Code Practice and Remedies, vol. 2, secs. 772, 774, 775; Bancroft's Code
Pleading, Practice and Remedies, Ten Year Supplement, vol. 1, secs. 590, 591, 593; 20 Cal.
ÐÐÐÐ59 Nev. 283, 296 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
20 R. C. L. 685, 686, sec. 23, 687, 688, sec. 26; Annotation, 123 Am. St. Rep. 280, at pages
298, 299, 300, 301; 47 C. J. 101, 102.
1. There are two types or classes of code provisions relating to intervention. Nevada is oneof the states which have adopted the broader and more liberal type of statute. Clark on Code
Practice and Remedies, vol. 2, sec. 772; Rutherford v. Union Land & Cattle Company, supra.
Referring to the type of intervention statutes obtaining in California, Nevada and many other
states, Professor Pomeroy says: “This is certainly a great innovation upon the procedure
which has hitherto prevailed in courts of law and of equity. It is, however, a method based
upon the very principles which lie at the foundation of the entire reformed American system.
The only possible objection is the multiplication of issues to be decided in the one cause, and
the confusion alleged to result therefrom. This objection is not real: it is the stock argument
which was constantly urged in favor of retaining the common-law system of special pleading,and was repudiated when the codes were adopted by the American States, and has been at last
utterly repudiated in England. Complicated issues of fact are daily tried by juries, and
complicated equities are easily adjusted by courts.” Code Remedies, Fifth Edition, sec. 325.
2, 3. It is quite uniformly held, under intervention statutes of the Nevada type, that a claim
to the property which is the subject of litigation, or to some part of such property, constitutes
a sufficient interest to entitle intervention on the part of the claimant. In 20 R. C. L., at page
685, it is said: “Under most, if not all, the statutes, a person who is entitled to the subject
matter of the action or some substantial interest therein may intervene in an action involving
its title or the right to its possession.” Similarly, in 20 Cal. Jur., at page 521: “The fact that the
intervener may or may not protect his interest in some other way is immaterial SURYLGHGWKHUH H[LVWVWKHVWDWXWRU\µLQWHUHVWLQWKHPDWWHULQOLWLJDWLRQRULQWKHVXFFHVVRIHLWKHURIWKH SDUWLHV7KHFRGHGRHVQRWDWWHPSWWRVSHFLI\ZKDWRUKRZJUHDWWKLVQHFHVVDU\LQWHUHVW
VKDOOEHL QGHHGDQ\LQWHUHVWLVVXIILFLHQW
ÐÐÐÐ59 Nev. 283, 297 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
provided there exists the statutory ‘interest in the matter in litigation or in the success of
either of the parties.' The code does not attempt to specify what or how great this necessaryinterest shall be; indeed any interest is sufficient. Thus an interest suffices if created by a
claim to the demand or some part thereof in suit, or a claim to or lien upon the property or
some part thereof which is the subject of the litigation.”
4. Respondent points out that intervener does not allege any interest in the obstructions
erected by defendants, nor does he allege that the line of fence posts removed by plaintiff was
on the property occupied by defendants. The fact remains, however, that the premises
occupied by defendants are wholly included in those of which intervener claims to be half
owner, and this latter property, in turn, is wholly included in the fifty-foot strip on the Nevada
side alleged by plaintiff to have been dedicated as a part of Stateline avenue. The land
occupied by defendants is under contract of sale to them from intervener and his co-owner. If
appellant be not permitted to intervene, and judgment should be awarded plaintiff, intervener
and his co-owner would be in the position, at least until such judgment could be set aside, of
having contracted, as owners, to sell defendants a piece of land in which they had and have nointerest. Under these circumstances it seems clear to us that intervener has an interest in the
matter in litigation as well as in the success of the defendants.
5-8. With reference to respondent's contentions that intervener, in alleging trespass by the
plaintiff, has introduced new matter, and that he seeks an entirely different type of relief from
that sought by the defendants: If that be so, it alone would not justify striking the entire
complaint in intervention from the files, and dismissing the intervention. In sec. 775 of
Bancroft's Code Practice and Remedies, vol. 2, it is said: “But it is to be borne in mind that it
would be practically impossible for one to intervene in an action without presenting a
question of fact not involved in the pleadings of the RULJLQDOSDUWLHVDQGLIWKLVZHUH
ÐÐÐÐ59 Nev. 283, 298 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
original parties, and, if this were inhibited, then the code provision on the subject of
intervention would be of no avail. The question, therefore, whether or not a new issue of fact
is presented by a petition for intervention is not the test to apply in determining whether an
issue different from that between the original parties will be made by the intervener; it is
sufficient if the ultimate issue to be determined remains the same.” As we have seen,respondent says that the ultimate issue made between the plaintiff and defendants is whether
or not that portion of the fifty-foot strip described in the complaint and obstructed by the
defendants was or was not dedicated and accepted as a roadway. The same rules govern
intervener's rights which govern those who originally sue or defend. Pomeroy's Code
Remedies, Fifth Edition, sec. 324, p. 485, n. 56. Whether the alleged removal of a line of
fence posts by the plaintiff would constitute a trespass on intervener's land depends upon the
essential question in this case, namely, whether the fifty-foot strip on the Nevada side of the
state line has been dedicated as alleged by plaintiff.
The relief prayed by intervener is not only that plaintiff be required to restore the line of
fence posts; he prays for an injunction restraining plaintiff forever from interfering with the
property in which he claims a half interest, and further asks such other and further relief as to
the court may seem meet and just in the premises, and for general relief. Intervener's
complaint clearly shows that he is interested in the defeat of plaintiff's cause of action as well
as in the success of the defendants. It shows that he is resisting the claim that the fifty-foot
strip on the Nevada side of the state line has been dedicated as alleged by plaintiff.
9. While a plaintiff frequently, and perhaps usually, has the privilege of selecting the
persons to be parties to his case, such privilege is sometimes of less importance than the
speedy administration of justice in disposing, in one suit, of the essential question at issue.
ÐÐÐÐ59 Nev. 283, 299 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
Clark on Code Pleading, sec. 65, p. 289; 21 Columbia Law Review, p. 214.
Respondent relies much on the case of Reay v. Butler, 7 P. 669. This case is also reported
in 2 Cal. Unrep. 501. A subsequent opinion in bank is reported in 69 Cal. 572, 11 P. 463. The
facts in that case are in some respects similar to those in the instant case, but the case is
dissimilar to that at bar in a number of important particulars and, in our opinion, the decision
is not applicable to the present case.
10. Ejectment is essentially a possessory action. 18 Am. Jur. pp. 7, 8, 21. Ejectment is a
legal remedy; the action is one at law, not in equity. 18 Am. Jur. 8, sec. 3. In the opinion in
Reay v. Butler, 69 Cal. 572, 11 P. at page 469, the court expressly states that the action in that
case was purely one at law. In Rutherford v. Union Land & Cattle Co., supra, where the
Nevada intervention statute was under consideration, this court distinguished an earlier
Nevada case involving a question of intervention, saying [47 Nev. 21, 213 P. 1048]: “Counsel
for respondent contend that the case of Harlan v. Eureka Mining Co., 10 Nev. 92, controls
this case, and hence the judgment must be affirmed. The facts of the instant case do not bring
it within the rule asserted in the former case. It will be observed that the Harlan Case was an
action at law, while the present proceeding is a suit in equity, wherein we are controlled by
equitable principles.” In the instant case plaintiff has alleged, as a basis for injunctive relief,
that defendant Miracle obstructed Stateline avenue with his buildings and fencing, that he still
maintains said obstructions “to the great inconvenience, detriment, damage and irreparable
injury” of the plaintiff, “thereby preventing the plaintiff from enjoying his easement in saidStateline avenue to the great and irreparable damage of plaintiff.” Plaintiff not only prays the
court to compel Miracle to remove the alleged obstructions, but asks that he be forever
restrained from interfering “with said stateline Avenue, KL JKZD\RUURDGDVGHVFULEHGLQ 3DUDJUDSK,9RISODLQWLIIVFRPSODLQWDQGZLWKWKHSODLQWLIIVIUHHDQGXQREVWUXFWHGXVHRI
WKHVDPH´
ÐÐÐÐ59 Nev. 283, 300 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
highway, or road, as described in Paragraph IV of plaintiff's complaint, and with the plaintiff's
free and unobstructed use of the same.” In Reay v. Butler, 69 Cal. 572, 11 P. at page 468, the
court says: “If the prayer of the complaint gives character to the action, it would seem that the
intervener in this cause was attempting to change an action of ejectment into an action to
quiet title.” In the case at bar there is not only no attempt to change an action of ejectment
into an action to quiet title, but there is no action of ejectment at all. Again, in Reay v. Butler,
69 Cal. 572, 11 P. at page 466, the court says: “It may be conceded that a landlord might have
been allowed to intervene and defend an action of ejectment brought against his tenants in
their name, in accordance with the law regulating procedure in the courts of this state, at the
time Treadwell was allowed to file the intervention in this case. * * * The foregoing
intervention by the landlord in this case to defend in the name of his tenants, however,
extends only to the defenses which may be made at law. And, for the purposes of this case, itmay also be conceded that the landlord might have been permitted to intervene, and set up
any equitable defenses which he might have to the action. But if the landlord is allowed to
intervene, and set up a defense in equity, it must certainly be a defense of that character.” The
court analyzes the allegations in intervener's complaint, and after doing so concludes that,
while intervener may have attempted to set up an equitable defense, he did not succeed in
doing so and the case was therefore held to be purely an action at law in all its aspects. If, as
stated by the supreme court of the State of California in Reay v. Butler, supra, 69 Cal. 572, 11
p. at page 466, the landlord might have been permitted to intervene and set up any equitable
defenses, we apprehend no reason why such should not be the rule in the instant case where
plaintiff corporation sole has itself chosen to allege facts as the basis for equitable relief, and
has prayed for such relief.It is interesting to note that the pleadings in Reay v.%XWOHUZHUHILOHGEHIRUHWKHDGRSWLRQ
ÐÐÐÐ59 Nev. 283, 301 (1939) Bartlett v. Bishop of NevadaÐÐÐÐ
Butler were filed before the adoption of the provision in the California code of civilprocedure allowing the landlord to be made a party. This is expressly pointed out by the court
in that case (69 Cal. 572, 11 P. at page 464). It may further be observed that in Reay v. Butler
the defendants were tenants of the intervener, whereas in the case at bar defendants are
contracting purchasers of a part of the land claimed by plaintiff to have been dedicated as a
part of Stateline avenue, and by intervener to be a part of the land in which he owns a half
interest.
The rule laid down in Reay v. Butler seems to be an exception to the general rule. As is
said in 9 Cal. Jur. at p. 1003, “While the statute provides that any person who has or claims
an interest in the controversy adverse to the plaintiff, may be made a party defendant, it has
been held that this provision does not apply to actions of ejectment.” Respondent does not
contend that the instant case is an action in ejectment.
We are not to be understood as saying that the Nevada intervention statute applies only to
equitable actions, and not to actions at law.
The court being of the opinion that the amended complaint in intervention shows that
intervener is interested both in the matter in litigation and in the success of the defendant, the
order and judgment appealed from must be, and they are hereby, reversed.
ÐÐÐÐ59 Nev. 302, 303 (1939) In Re Garrison EstateÐÐÐÐ
administrator, was appointed administrator, and Elsie Garrison filed petition for revocation of
the letters of administration. From an order dismissing the petition, and a decree of
distribution, the petitioner appeals. Modified, and as modified, affirmed.
Milton B. Badt, for Appellant:
The holographic will definitely attempted: first, to set aside the $700 for the wife;
secondly, to show that she was not entitled to anything else; and, thirdly, to dispose of the
balance of the estate. The general rule is that in the construction of wills the intent of the
testator must govern. Pray v. Belt (U. S.), 7 L. Ed. 309, footnote. The probate court gave no
effect of any kind whatsoever to that provision of the will reading as follows: “My estate
amounts to about $6,000 after the deduction of $700 for my wife, which I have signed papers
to prove.” The use of the words “after the deduction of $700 can mean nothing else than the
fact that this money is first to be paid out. The purpose of its payment is likewise
unmistakable; it is for “for my wife.” It is clear that the testator intended this clause as a
direction to the administrator to pay this sum to the wife. And if it was such a direction, then,
of course, no claim was required to be filed. 11 R. C. L. 197; Black v. Black, 58 N. D. 501,
226 N. W. 485, 65 A. L. R. 852.
“Estates may be created by any words manifesting the testator's intention.” 69 C. J. 429.
Even in the absence of express testamentary words estates may arise by implication to
further the testator's apparent intention. 69 C. J. 432, line 1, n. 83.We think it clear that the surviving widow was entitled to letters of administration with the
will annexed, in preference to the public administrator.
H. W. Castle and D. A. Castle, for Respondent:
Surely, if the testator had intended to give his wife $700, he would have used the same
language in that LQVWDQFHDVKHGLGLQWKHLQVWDQFHRIWKHVHYHUDORWKHUOHJDFLHVQDPHGLQ
WKHZLOO
ÐÐÐÐ59 Nev. 302, 304 (1939) In Re Garrison EstateÐÐÐÐ
instance as he did in the instance of the several other legacies named in the will. The fact that
he said that his estate was worth about $6,000 after the deduction of $700 for his wife “which
I have signed papers to prove” does not mean the matters and things claimed for it by the
attorney for the appellant. We respectfully submit it is not a direction to pay the sum of $700
to his wife, and if he owed her $700 it would have been a simple matter to file the claim
against the estate within the time required by law.
The authorities cited by the appellant are not in point, because there is no difficulty in
construing the clauses in the wills therein mentioned.
There is no finding by the trial court that Elsie Garrison was an heir at law or a devisee and
legatee under the will, and no proof exists of that fact. And we have the admission of ElsieGarrison herself, as set forth in exhibit “D,” that she is not entitled to any part of her
husband's estate. Therefore, the rule announced in the Crites' Estate (Cal.), 101 P. 316,
applies, and she is not entitled to letters of administration.
OPINION
Per Curiam:
Ernest Garrison died on the 21st day of July 1935 from a self-inflicted wound, in Elko
County, Nevada, leaving a holographic will in the following words and figures:
“Sunday July 20/35
“I want Tony Coletta left $200 out of my estate, Nels Anderson loaned enough money toput him through business college. I want Catherine Anderson, and Margariete Wyns loaned
enough money to finish high school and teachers college with. I want Jack McClinsey left
$100 to buy necessities at H. S., and him loaned enough money to go through business
college with.
ÐÐÐÐ59 Nev. 302, 305 (1939) In Re Garrison EstateÐÐÐÐ
“My estate amounts to about $6000 after the deduction of $700 for my wife which I have
signed papers to prove.
“I have tried to make this world a better place by having lived in it the time I have. Tried to
do right by every body, tried to be of more good than harm to every body. I came in contact
with. Tried to do the same by my wife gave her money to finish school at Carbondale, and
tried so we could have a home and family of our own, but she found happiness elsewhere and
it is impossible for me to go on this life without her. I get no contentment day or night.
“I want a very plain funeral, very little expense. I request Hulbert Percy to preach it. No
flattery please. I am just what I am.
“Ernest Garrison
“I want my car left to Walter and Lela Rose. Clothing radio watch etc. goes to Tony. Rest
of estate goes to mother.”
In due time, on application of the public administrator and after due notice, the district
court in and for Elko County appointed the public administrator as administratrix of said
estate with the will annexed.
On February 27, 1936, Elsie Garrison, the widow, filed her petition in said matter,
alleging that Ernest Garrison, at the time of his death, was a resident of and domiciled in
Wheaton, Illinois; that deceased left no real property in the State of Nevada; that petitioner is
informed and believes that certain personal property of deceased which was physically
present in Elko County, Nevada, had been taken possession of by the public administrator of
said county, by reason of her appointment as administratrix, with the will annexed, of the
deceased; that petitioner is informed and believes that inasmuch as the residence and domicile
of the deceased was in Wheaton, Illinois, at the time of his death, the situs of said personalproperty was all in Illinois, and without the State of Nevada, and WKHMXULVGLFWLRQRIWKHFRXUW
ÐÐÐÐ59 Nev. 302, 306 (1939) In Re Garrison EstateÐÐÐÐ
the jurisdiction of the court in which the proceedings had been instituted; that petitioner is
informed and believes that said deceased died intestate. It is further alleged that the publicadministrator of Elko County, Nevada, on August 9, 1935, filed in the said court an
instrument purporting to be the holographic will of deceased, together with a petition for the
probate thereof and the appointment of said public administrator as administratrix of said
estate.
It is further alleged, inter alia, that petitioner is the surviving wife of said deceased and is
entitled to administer said estate.
The petition prays that after due notice an order be entered vacating the order appointing
the said public administrator as administratrix with the will annexed of said estate and that
petitioner be appointed to administer the same.
To this petition a general demurrer and an answer were filed.The lower court sustained the demurrer and entered an order dismissing said petition.
Thereupon, without notice, it entered a decree of distribution wherein it held that the
deceased did not make a bequest of $700 to Elsie, his widow, but that the deceased merely
intended, if anything, to recognize that she had a claim against the estate for that sum, and not
having filed proof of claim therefor, she could not assert it.
A motion for a new trial was made and denied.
In the written opinion of the trial court sustaining the general demurrer to the petition of
Elsie Garrison asking the revocation of letters of administration, with the will annexed, to
Delpha M. Jewell, the public administrator, it is stated that the petitioner relies on section
9649 N. C. L., which reads: “When letters of administration have been granted to any other
person than the surviving husband or wife, the child, the father, mother, brother or sister of
the intestate, any one of them may obtain the revocation of the letters by presenting to theGLVWULFWFRXUWDSHWLWLRQSUD\LQJWKHUHYRFDWLRQDQGWKDWOHWWHUVRIDGPLQLVWUDWLRQEH
ÐÐÐÐ59 Nev. 302, 307 (1939) In Re Garrison EstateÐÐÐÐ
district court a petition praying the revocation, and that letters of administration be issued to
him or her.”
1-4. The said section has no application in the instant case. It will be noted that it applies
only in cases of intestacy. In so deciding, we are not unmindful of the construction placed ona similar section by the courts of California, in Re Pacheco's Estate, 23 Cal. 476, and In re Li
Po Tai's Estate, 108 Cal. 484, 41 P. 486. As evidenced by the petition for revocation, it was
the theory of the pleader that Elsie Garrison was entitled to revocation of the letters issued to
the public administratrix solely because of being the surviving wife of the deceased. The
deceased having died testate, any right of Elsie Garrison to letters would necessarily be based
upon her right to take under the will. There is not a sufficient allegation in the petition as to
that fact; hence, the decision of the lower court sustaining the demurrer should be upheld. The
right to administer follows the right to some portion of the property under the will. In re
Aguirre's Estate, 57 Nev. 275, 62 P.(2d) 1107, 65 P.(2d) 685. The theory upon which we
uphold the decision of the lower court evidently was not presented there, but it is in the briefsand oral arguments before this court.
5. Of the points urged for the granting of a new trial, we, as did the lower court, find only
the second to merit serious consideration, namely, insufficiency of the evidence to justify the
decree of distribution and that the same is against law.
We are concerned with the construction of that provision of the will which reads as
follows: “My estate amounts to about $6000 after the deduction of $700 for my wife which I
have signed papers to prove.” It seems clear that the testator was dealing with the sum of
$6,700 which he, either immediately before or at the time of his death, had in his possession.
He gave recognition to the fact that $700 of this amount belonged to his wife; and the
remaining amount, about $6,000, he wanted to be distributed as directed. The question is, GLG GHFHDVHGWXUQRYHUWR(OVLH*DUULVRQWKHVXPRIEHIRUHKLVGHDWKRUGLGKHDWWKH
ÐÐÐÐ59 Nev. 302, 308 (1939) In Re Garrison EstateÐÐÐÐ
did deceased turn over to Elsie Garrison the sum of $700 before his death, or did he at the
time of his death have in his possession the entire amount of about $6,700?
It appears from the record that the husband and wife, shortly prior to the death of thehusband, had been negotiating an agreement for a property settlement. The negotiations
disclosed the wife was willing to take the sum of $700 as her share of the property. There is
no evidence that the agreement had been executed, and the situation indicates that the death
of the husband occurred before the agreement was finally consummated. We conclude from
the letters written by the wife and the statement signed by the deceased and Elsie Garrison,
which appear in the record, that the payment to the wife of the sum of $700 was agreeable to
both. We are also of the opinion that this sum was not paid the wife before the death of the
husband. This conclusion is strengthened by the fact that it seemed to be the policy of the
parties to reduce their agreements and transactions to writing, and had the proposed
agreement been consummated, it is more than probable that there would be in existence some
writing evidencing that fact. If the amount had not been paid and was still in the possession of
the deceased at the time of his death, the declaration in his will convinces us it was his desire
to limit the participation of the wife in the assets of the estate to $700, and the signed papersreferred to was her expressed willingness to be content with that amount. The expression
made in the will was to inform his representatives of that limitation and to direct that they set
aside her interest before making disposition of the remaining amount.
6. We cannot subscribe to the idea that it was a debt, for which she would be compelled to
file a claim. We think it was a definite setting apart of that amount from the assets for the use
of the wife, and that the filing ofa claim was unnecessary. There is a clear implication from
the language used that deceased considered about DVWKHYDOXHRIKLVHVWDWHRI ZKLFKEHORQJHGWRKLVZLIHDVKHUVKDUHDQGZKLFKVKHVKRXOGKDYH
ÐÐÐÐ59 Nev. 302, 309 (1939) In Re Garrison EstateÐÐÐÐ
$6,700 as the value of his estate, $700 of which belonged to his wife as her share and which
she should have. Bequests may be created by implication. In re Smith's Estate, 46 Misc. 210,
94 N. Y. S. 90. The decree of distribution should have recognized this bequest to the wife.
It is ordered that the decree of distribution be modified so as to provide such a bequest to
Elsie Garrison.
The argument and briefs filed by the appellant indicate her willingness to take under the
will. Having found she is so entitled, and ordered that the decree of distribution be amendedin that respect, it is unnecessary to go into the question of her community rights.
7. Two appeals were taken in this matter, one in which the appellant prevailed and one in
which the respondent prevailed. It being difficult to apportion the costs as to each, it is
corpus to secure release from the Reno city jail. Writ dismissed, and petitioner remanded
to custody of chief of police of city of Reno for the execution of sentence.
ÐÐÐÐ59 Nev. 309, 311 (1939) Ex Parte OhlÐÐÐÐ
Harry Swanson, George S. Green and John P. Thatcher, for Petitioner:
Section 3 of article 14 of the charter of the city of Reno, as amended, Statutes of 1937, p.
424, is in violation of article 4, section 17, of the constitution of Nevada, in that by
implication it amends sections 10920, 11315, and 11313 N. C. L. without such intent being
expressed in the title of the act. Said section of the charter is also contrary to article 1, section
3, of said constitution, in that it denies to the accused the right to a jury trial. It is well settled
in Nevada that an unconstitutional statute may be attacked by a writ of habeas corpus.
Said section of the charter is also contrary to the provisions of article 1, section 8, of the
constitution of Nevada. It does not appear from the minutes of the court that any time for
pronouncement of sentence was appointed. And it affirmatively appears that there was no
waiver of time for sentence, and that sentence was pronounced less than six hours after the
decision of the court, contrary to the provisions of sections 11040 and 11041 N. C. L. So the
sentence pronounced in this case is not merely an irregular judgment, but is a void judgment,
being contrary to a prohibition contained in a positive statute. The district court being without
power to pass the sentence, such lack of power may be inquired into on proceedings for a writ
of habeas corpus.
Under the provisions of article 6, section 4, of the constitution of Nevada, no appeal lies
from a trial de novo in the district court, the crime charged being a misdemeanor. Therefore,the error of the court in passing sentence less than six hours after its decision on the issues of
fact cannot be corrected, and to deny the writ would amount to a suspension of it.
Duplicate certified copies of the minutes of the court showing the judgment of the court
were not forthwith GHOLYHUHGWRWKHH[HFXWLQJRIILFHUVFRQWUDU\WRWKHSURYLVLRQVRIVHFWLRQ
1&/
ÐÐÐÐ59 Nev. 309, 312 (1939) Ex Parte OhlÐÐÐÐ
delivered to the executing officers, contrary to the provisions of section 11062 N. C. L.
Where the commitment is void, a writ of habeas corpus will lie.
Douglas A. Busey, City Attorney, for Respondent:
Errors or irregularities in the proceedings of a lower court having jurisdiction will not be
A sentence too soon after conviction is a mere irregularity, and not in excess of
jurisdiction so as to entitle a petitioner on habeas corpus to his discharge. Ex Parte Smith, 2
Nev. 228; Ex Parte Gafford, 25 Nev. 101, 57 P. 484.
Assuming the sentence is void because rendered too soon, it is, at most, only ground for
reversing the erroneous sentence, leaving the conviction to stand as a basis for a new proper
sentence. State v. Moore, 48 Nev. 405, 233 P. 523; 8 R. C. L. 239, n. 15.Section 11393 N. C. L. makes it the duty of a judge, on habeas corpus, to remand the
petitioner if it appears that he is detained by virtue of a judgment or decree of a competent
court of criminal jurisdiction, or of any process issued upon such judgment. And so if there is
a judgment authorizing petitioner's detention, the court must remand him. This is the holding
of the court in Ex Parte Smith, supra, and in Ex Parte Nakanishi (Cal.), 126 P. 508, where it
was held that the failure of the clerk to furnish certified copies of the judgment did not
destroy the effect of the entry of the judgment.
Violations of municipal ordinances were triable in a summary manner at the time of the
adoption of the constitution, and hence are so triable now. A person charged under the
ordinance with driving while intoxicated is not entitled to a jury trial.
The section of the charter providing for summary trials in ordinance cases in the municipalcourt and on appeal therefrom is within the general scope of the subject embraced in the title
of the act incorporating Reno, DQGLVDQHFHVVDU\SDUWRIWKHSRUWLRQRIWKHFLW\FKDUWHU UHODWLQJWRWKHPXQLFLSDOFRXUWDQGDSSHDOVWKHUHIURP
ÐÐÐÐ59 Nev. 309, 313 (1939) Ex Parte OhlÐÐÐÐ
and is a necessary part of the portion of the city charter relating to the municipal court and
appeals therefrom.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in habeas corpus. The petition shows that petitioner was
convicted in the municipal court of the city of Reno on a charge of driving a motor vehicle
while intoxicated. From the judgment of the municipal court, petitioner appealed to the
Second judicial district court. He was tried in the latter court without a jury, found guilty, and
sentenced to thirty days confinement in the Reno city jail and fined $300. He wasimmediately imprisoned in said jail.
Matters wherein it is claimed that petitioner's imprisonment is illegal are also set out in the
petition. On the issuance of the writ petitioner was admitted to bail. He bases his claim that
his imprisonment is illegal upon the following grounds:
First: That he was sentenced too soon after the decision of the court in violation of sections
conviction or acquittal, or once in jeopardy, if the judgment be not arrested or a new trial
granted, the court shall appoint a time for pronouncing judgment.”
Ҥ 11041. The time appointed shall be at least two days after the verdict, if the court intend
to remain in session so long; or, if not, as remote a time as can reasonably be allowed. But in
no case shall judgment be rendered in less than six hours after the verdict.”
Respondent advances several reasons why the contention that petitioner's imprisonment is
unlawful because he was sentenced in less than six hours after his conviction, cannot prevail.
The statement of one will suffice. If the sentence was so pronounced it was at the most an
irregularity. This would not deprive the court of jurisdiction to pronounce a valid sentence.
Errors or irregularities within the jurisdiction of the court are beyond the scope of inquiry by
habeas corpus. That was settled long ago in Nevada and quite generally elsewhere. Ex ParteSmith, 2 Nev. 338; Ex Parte Winston, 9 Nev. 71; Ex Parte Davis, 33 Nev. 309, 110 P. 1131;
29 C. J. 25 and cases cited in note 4 on that page.
The precise question before us, namely, the effect of a premature sentence, has been
determined in Ex Parte Smith, supra. The court said: “The legality of the judgment is
contested on the ground that the sentence or judgment was passed in less than six hours after
the plea of guilty was entered. * * * Whether the recital above quoted does or does not
sufficiently show that the sentence immediately followed the plea without the intervention of
time which the statute (secs. 435-6 of the Criminal Practice Act) requires, it is not now
material to determine. If it does, it would at most but show error or irregularity on the part of
the Court below in not fixing a subsequent time for the passing of sentence. Such error must
be taken advantage of in the manner prescribed by statute. The defendant should, in due time,
have excepted to the action of the Court and taken his appeal to this Court. Habeas corpus is
not the proper writ to review the decisions RID'LVWULFW&RXUWDQGFRUUHFWLWVHUURUVRU DPHQGLWVLUUHJXODULWLHV´
of a District Court, and correct its errors or amend its irregularities.”
The same ruling on the identical question will be found in In re Barton, 6 Utah, 264, 21 P.
998; and Ex Parte Ah Sam, 83 Cal. 620, 24 P. 276.3. But petitioner contends that as there is no appeal in this case from the judgment of the
district court, the error claimed should be reviewed in this proceeding. This contention, if
allowed, would convert the writ of habeas corpus into a writ of error. The same contention
could be made to all other errors claimed to have been committed on a trial de novo. There
must be an end to criminal proceedings, and the legislature has established the district court
as the court of last resort in minor cases.
4, 5. As to the second contention, the return made to the writ by respondent chief of police
of the city of Reno, shows that he detains and imprisons petitioner by authority of a judgment
of imprisonment rendered by said district court on the 17th day of February 1939, and
certified copy of the entry of said judgment attested by the clerk under seal of said courtfurnished respondent on February 23, 1939. This being shown, and it being further shown by
the return that the term of imprisonment has not expired, it would seem to be the duty of this
court to remand petitioner to said imprisonment. Section 19 of the habeas corpus act, section
11393 N. C. L. provides: “It shall be the duty of such judge, if the time during which such
party may be legally detained in custody has not expired, to remand such party, if it shall
appear that he is detained in custody by virtue of the final judgment or decree of any
competent court of criminal jurisdiction, or of any process issued upon such judgment or
decree, or in cases of contempt of court.”
Petitioner's claim of illegal detention in this respect is predicated solely upon the fact that
the certified copy of the entry of judgment was not forthwith furnished respondent as
provided by section 11062 N. C. L., but IXUQLVKHGKLPODWHURQ)HEUXDU\
ÐÐÐÐ59 Nev. 309, 316 (1939) Ex Parte OhlÐÐÐÐ
furnished him later, on February 23, 1939. How this could render petitioner's imprisonment
unlawful, is not discernible. It could have no such effect. Ex Parte Smith, supra. Nor could it
render respondent's custody of petitioner under the conviction unlawful. The return further
shows that a police officer of the city of Reno, a representative of respondent, was present incourt when the judgment was rendered and entered, and that petitioner was remanded into
respondent's custody for the execution of sentence. The certified copy of the judgment
furnished him later was merely the evidence of his authority for executing the sentence of the
law. 15 Am. Jur. 152; State v. Hatfield, 66 Wash. 9, 118 P. 893, 38 L. R. A. (N. S.) 609. Of
course it should have been furnished forthwith upon the entry of judgment, but the delay does
not affect it. Ex parte Nakanishi, 19 Cal. App. 552, 126 P. 508.
Is the punishment unlawful because petitioner was tried without a jury in the district court?
A proviso in section 3, article 16, of the charter of Reno, as amended, reads: * * * Provided,
that the trial and proceedings in such cases [breaches or violations of the provisions of any
ordinance of said city or its charter], in the municipal court or on appeal therefrom, shall be
summary and without a jury.” Stats. 1937, p. 456.
In the first place it is contended that said proviso in providing for trial and without a jury
on appeal, is unconstitutional because in violation of section 17, article 4, of our stateconstitution, providing that the subject matter of each law shall be briefly expressed in the
title. And secondly, it is unconstitutional because contrary to section 3, article 1, of said
constitution, in that it denied the accused the right to a jury trial secured by such section.
We are again confronted with the question of the availability of habeas corpus to
determine the question. Counsel for respondent has objected to the use of the writ for such an
inquiry and has produced ample authority for his position.
ÐÐÐÐ59 Nev. 309, 317 (1939) Ex Parte OhlÐÐÐÐ
Section 10920 N. C. L. provides in part as follows: “Issues of fact must be tried by jury,
unless a trial by jury be waived in cases not amounting to felony, by consent of both parties
expressed in open court. * * *”
6, 7. That the constitution does not prevent a waiver of a jury trial in a misdemeanor case
will not be doubted. The absence of a jury, therefore, in such a case would not affect the
jurisdiction of the court to proceed to trial and judgment. A denial of a jury trial in a case of
that character would be merely an error within jurisdiction and beyond the reach of habeas
corpus. Ex Parte Miller, 82 Cal. 454, 455, 22 P. 1113; In re Fife, 110 Cal. 8, 42 P. 299. In the
latter case the petitioner sought release by habeas corpus from imprisonment for convictionon a charge of vagrancy. He had not waived a jury trial in the police court and expressly
demanded it in the superior court. It was held that the denial by the lower court of the demand
for a jury was only error and did not go to the question of jurisdiction, and therefore could not
be reviewed in the proceeding of habeas corpus. The writ was dismissed. The court said:
“Upon a thorough examination of the question, we are forced to the conclusion that either in
civil or criminal cases the denial of a trial by jury is merely error to be corrected on appeal,
and does not go to the jurisdiction of the court, so that it may be inquired into on habeas
corpus, except in those cases where a jury cannot be waived and therefore is a necessary
constituent part of the court.”
The law on the point as established by the supreme court of California is stated in 13California Jurisprudence, page 237, section 18, as follows: “A jury trial may be waived in
civil cases and in criminal cases not amounting to a felony. Accordingly, in any case in which
such a trial may be waived, and in which a jury is not a necessary constituent of the court, the
refusal to allow a jury is mere error of procedure. Such error does not go to the jurisdiction of
the court and cannot be reviewed on habeas corpus.”
8. The limitation of inquiry by habeas corpus was declared in an early decision of this
court. Ex Parte Winston, 9 Nev. 71. The petitioner had been found guilty in a justice's court,of the offense of playing at a game of chance for gain on the first day of the week, commonly
called Lord's Day, and was held in the custody of the sheriff in default of the payment of the
fine imposed, and sought release by habeas corpus. He claimed that the court had no
jurisdiction because no public offense was specified in the commitment. He sought to
maintain his position upon the theory that the law under which he was convicted and
sentenced had been repealed by a later law. The court held that the point could not be
considered on habeas corpus. The court said: “A habeas corpus is not a writ of error. It cannot
be used to authorize the exercise of appellate jurisdiction. On a habeas corpus the judgment
of an inferior court cannot be disregarded. We can only look at the record to see whether a
judgment exists, and have no power to say whether it is right or wrong. It is conclusivelypresumed to be right until reversed; and when the imprisonment is under process, valid on its
face, it will be deemed prima facie legal, and if the petitioner fails to show a want of
jurisdiction in the magistrate or court whence it emanated, his body must be remanded to
custody.”
The principle declared in Ex Parte Winston was applied in Ex Parte Twohig, 13 Nev. 302,
and Ex Parte Bergman, 18 Nev. 331, 4 P. 209.
In United States v. Oates, 61 F.(2d) 536, 537, Ninth Circuit Court of Appeals, Judge
Norcross said: “The Winston Case * * * has been widely cited as an authority on the
limitations of proceedings in habeas corpus generally.”
9. As previously stated, the fact that there was no appeal from the judgment of the district
court does not affect the principle that habeas corpus is not available for the consideration of nonjurisdictional errors.
ÐÐÐÐ59 Nev. 309, 319 (1939) Ex Parte OhlÐÐÐÐ
In Ex Parte Sloan, 47 Nev. 109, 217 P. 233, we did consider and determine that the
provision of the charter of the city of Reno in the act of 1905, authorizing trial without jury in
cases of violations of city ordinances or provisions of the charter of a police nature, was notin conflict with the constitutional guarantee of a jury trial. The objection, however, that
habeas corpus could not be employed for such an inquiry, was not raised in Ex Parte Sloan.
Here the point has been made and elaborately briefed. It cannot therefore be evaded. In re
Fife, supra.
It is ordered that the writ be dismissed and petitioner is remanded to the custody of the
chief of police of said city of Reno for the execution of sentence.
12. Criminal Law.Where testimony of child was substantially to the same effect as facts admitted by accused, admission of
child's testimony was not prejudicial.
13. Infants.Evidence held sufficient to sustain conviction of lewd and lascivious act committed on the body of a
child.
14. Criminal Law.Where there was ample evidence to support verdict of guilt, objection that jury disregarded instruction of
court to effect that, if evidence could be reconciled either upon theory of innocence or guilt, law requires
that theory of innocence must be adopted, was without merit.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Oscar Skidmore was convicted of committing a lewd act upon the person of a female child
of the age of five years, and he appeals. Affirmed.
ÐÐÐÐ59 Nev. 320, 322 (1939) Skidmore v. StateÐÐÐÐ
Oliver C. Custer and Grant L. Bowen, for Appellant:
We submit that the state has not proved beyond a reasonable doubt that appellant
committed a lewd act, and has not proved the requisite intent necessarily attendant to the
commission of the crime of lewdness with child. Furthermore, the state has totally and wholly
failed to prove the alleged facts and circumstances set out in the information. Mereopportunity or suspicion is never sufficient to identify a person with the commission of a
crime.
We submit that the evidence produced in this case presents one of those cases where the
evidence is far more consistent with the theory of innocence than with the hypothesis of guilt,
and that, under the well-recognized rule in this state and others, the conviction should be
reversed. The jury in their meager deliberation of only five minutes had no opportunity
whatsoever to understand the full meaning and import of the court's instruction on the
subject.
We earnestly insist that the relationship of physician and patient clearly existed between
the appellant and Dr. Cann. Why should Dr. Cann make a second visit to appellant if it werenot for the purpose of prescribing for and treating him? He had already determined that
appellant had gonorrhea when he first examined him.
By permitting the state to introduce the evidence of Dr. Cann, the court violated the
appellant's rights as defined by both the United States constitution and the constitution of
Nevada, in that the appellant was compelled in a criminal case to be a witness against
himself.
We submit that any statement made by Irene Taylor or Josephine Cheney was inadmissible
ab initio under sec. 8970 N. C. L., the trial court having ruled, after voir dire examination of
them, that they were of such immature age as not to be able to testify in a credible manner.
Therefore, a repetition of such statements by the witness Griffith could not possibly make
them admissible, whether appellant was present or not when such statements were made.
ÐÐÐÐ59 Nev. 320, 323 (1939) Skidmore v. StateÐÐÐÐ
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General; Ernest S. Brown, District Attorney, and Nash P. Morgan, Assistant
District Attorney, for Respondent:
We contend that the facts disclosed by the evidence in this case are sufficient for the jury
to base their verdict upon, and where there is a conflict in the testimony, we understand that
this court will not disturb the verdict.
The court committed no error in overruling defendant's objection to the testimony of Dr.
Cann, for the reason that the proper foundation was laid by the state to show, first, it was a
voluntary examination, and, second, that the relation of physician and patient did not arise
and the purpose was other than necessary to enable the physician to prescribe or act for the
patient. Norwood v. State (Miss.), 130 So. 733. The second visit, as disclosed by the record,
was for a confirmation of the findings of the first examination at the request of the deputy
sheriff. As the testimony discloses that the examination was voluntary, it is admissible the
same as any verbal admission against interest.
The testimony of Deputy Sheriff Griffith as to accusatory statements of Irene Taylor and
Josephine Cheney, made in the presence of the defendant, was admissible as tending to show
tacit admissions, since the defendant either failed to deny them or made evasive repliesthereto. 115 A. L. R. 1510. The fact that the one who made the accusatory statement is an
infant and incompetent to testify does not alter the rule. 80 A. L. R. 1246; 115 A. L. R. 1514.
OPINION
By the Court, Orr, J.:
The appellant was, by means of an information filed n the Second judicial district court of
the State of Nevada, on the 14th day of November 1938, charged ZLWKWKHFULPHRI
the age of five years. Thereafter the appellant was tried, found guilty and sentenced to a term
in the state prison. From the judgment of imprisonment and order denying motion for new
trial this appeal is taken. The appellant will be hereinafter referred to as defendant. The facts,
insofar as it is necessary to detail them, are as follows:
Defendant, during the month of September 1938, resided in cabin No. 3 of a row of cabins
facing north on the Southern Pacific siding, which siding runs east and west between an alleyon the east, Washington street on the west, West Second street on the south, and the Southern
Pacific railroad on the north, in Reno, Washoe County, Nevada. The cabin east of the
defendant's cabin, or cabin No. 4, was occupied by a man named Funk, and one Pat Scanlan
occupied cabin No. 2, which adjoined defendant's cabin to the west. South, along the alley,
about fifty feet away, was situated a house occupied by Irene Taylor and her mother. The
child, Irene Taylor, together with other children, made a practice of playing in the vicinity of
the cabins, and at times visited in the different cabins. On the 24th of September 1938 Irene
Taylor met defendant. In the afternoon of said day she went into the cabin occupied by him
and remained there for about twenty minutes. Mr. Funk instructed a playmate of Irene, one
Josephine Cheney, to inform Mrs. Taylor that Irene was in Skidmore's cabin and to get her
out of there. In response to this message, Mrs. Taylor sent her oldest son, Edward Tilliman, toSkidmore's cabin for Irene. Edward Tilliman testified as follows relative to the circumstances
of his visit to the cabin:
“Q. Will you tell the jury what you did? A. I went right over to his cabin—to Skidmore's
Cabin No. 3 and knocked on the door and asked for Irene, and he said, ‘Wait a minute' and I
waited about a minute and she came out.
“Q. Did he threaten you any? A. No, he did not.
ÐÐÐÐ59 Nev. 320, 325 (1939) Skidmore v. StateÐÐÐÐ
“Q. Did he open the door when you came to the cabin? A. He just cracked open the door
wide enough and I could hear what he said easily.
“Q. Did he open it wide enough so you could see whether he was dressed or undressed? A.
Well, he did not have the curtain up and I saw through the window at the top of the door and
he did not have a top shirt on.
“Q. He did not have a top shirt on? A. He had an undershirt on.
“Q. He had an undershirt on? A. Yes, sir.
“Q. Did he ask you to come in the house? A. No, sir.“Q. Did he tell you to come in the house? A. I never tried to go in.
“Q. He just said, ‘Wait a minute.' A. Yes.”
The following Monday Irene Taylor attended her class at the Catholic school in Reno,
Washoe County, Nevada. On this date she complained to her teacher that she was suffering
pain. The teacher made an examination, notified her mother, and sent the child home.
Thereafter the child was taken to the office of Dr. Dwight L. Hood, who made an
examination and had certain laboratory tests made, and determined therefrom that the child
was suffering from gonorrhea. The child was later taken to the Washoe General hospital and
placed under the care of Dr. L. R. Brigman, a child specialist, whose examination also
disclosed that the child was suffering from the said disease. On the 29th of September 1938
the defendant was taken into custody by Sheriff Root. The same day Deputy Sheriff Earl
Griffith made a request of the county physician, Dr. George A. Cann, to examine defendant to
determine whether he, defendant, was afflicted with gonorrhea. Defendant was, on September29, 1938, taken to Dr. Cann's office and an examination made. As a result of such
examination it was determined that defendant was suffering from said disease. Later Deputy
Sheriff Griffith took the defendant to the Washoe General hospital, where the following
transpired:
“A. I taken him directly to the little Irene Taylor URRPDQGWKHQXUVHDGPLWWHGXVDQGDV
room and the nurse admitted us, and as we walked in why she, the little girl's sister was there,
Alice, and almost the minute that we walked in the little girl pointed her finger at Skidmore,
and said, ‘That is the man.'
“Q. Then what happened then—what happened after that, if anything? A. I started talking
with the little girl—little Irene Taylor, and I asked her several questions, and she seemed to be
scared, and so she told me that if I would take Mr. Skidmore out of the room, pointing to him,
that she would talk. So I told her that I could not do that after all as Skidmore was in my
custody and that I could not allow him to leave or go out of my sight.“Q. Could he hear you from where he was standing? A. He could. Yes, he was standing
right along side of me. At that time I asked Skidmore to stand over in the corner of the room
and turn his back to us, and then I talked to the little girl and she seemed to be more quiet
after that, and I asked her if Skidmore—
“The Court: Was he within hearing distance of the little girl? A. Judge, your Honor, I
should judge probably in five or six feet or something like that.
“The Court: Go ahead. A. After Mr. Skidmore stood over in the corner of the room which
is a very small distance, it is not a large room, I asked the little girl, ‘If that was the man that
had put his penis between her little legs? And she says, ‘Yes, he is the one.' About that time
Skidmore turned around and he says, ‘You had better be careful what you say' or words to
that effect, and that was practically all of the conversation and shortly after that we left.”
The witnesses Scanlan and Funk testified they saw the little girl in or near the cabin, and
one of them testified that he heard a whispered conversation in the cabin occupied by
defendant, and identified one of the voices heard as Irene's.
Defendant makes five assignments of error. We have JLYHQFDUHIXOFRQVLGHUDWLRQWRHDFK
examine him, and attempts to draw the inference that such second visit was for the purpose of
treatment. The testimony of Dr. Cann is that he made the second trip for the purpose of
checking up on the findings made on the first visit, and that it was not at the request of the
defendant. The objection to the testimony of Dr. Cann on the first ground is without merit; it
clearly comes within the exception.
4. As to the examination having invaded the constitutional right of the defendant, in thathe was forced to give testimony against himself, we find, as was said in the case of State v.
Oschoa, 49 Nev. 194, 207, 242 P. 582, 587, “the contention has been resolved against
appellant by a former decision of this court.”
5. In presenting this question counsel have cited many cases from other jurisdictions, but
failed to cite decisions of this court which establish the rule that the privilege afforded by the
constitution is not merely immunity from compulsion, but testimonial compulsion. State v.
Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530; State v. Petty, 32 Nev. 384, 108 P. 934, Ann. Cas.
1912d, 223; State v. Oschoa, 49 Nev. 194, at page 207, 242 P. 582.
The case of Ah Chuey, supra, is considered “A leading case among those asserting the
right, that the constitutional provision that no person shall be compelled to be a witness
against himself is construed to mean WKDWQRRQHVKDOOEHUHTXLUHGWRWHVWLI\DJDLQVW
KLPVHOI ´
ÐÐÐÐ59 Nev. 320, 329 (1939) Skidmore v. StateÐÐÐÐ
that no one shall be required to testify against himself.” 28 L. R. A. p. 700, note II. See, also,
State v. Barela et al., 23 N. M. 395, 168 p. 545, L. R. A. 1918b, 844; Wigmore on Evidence,
vol. 4, secs. 2263 and 2265.The examination in this case was made in the privacy of a physician's office; there was
nothing in the examination itself which tended to humiliate or degrade defendant or otherwise
prejudice him before the jury, and hence this case does not come within any of the exceptions
mentioned in the Ah Chuey case, supra. If testimony of the result of the examination tended
to degrade defendant in the eyes of the jury, it was the inevitable result of a degrading
condition and situation in which he had placed himself. The evidence was properly admitted.
6-9. We next consider the admissibility of the testimony of Deputy Sheriff Griffith as to
what transpired in the Washoe General hospital. The trial court found the child Irene Taylor
incompetent to testify because of her age. It is the contention of defendant that the child being
incompetent to testify, any statements made by her would likewise be incompetent. In supportof this contention cases are cited where statements made by parties mentally incompetent
were excluded, on the theory that third parties could not be permitted to testify for them.
Whether or not such testimony was admissible in this case must rest upon a different theory,
to wit: were the accusatory statements made in the presence of the defendant directly or
unequivocally denied by him, and if not, did such failure to deny constitute an admission by
conduct? Under such circumstances the incompetency of the party making the accusatory
statements is no bar to their admissibility. Underhill on Criminal Evidence (4th ed.), p. 500.
12. As to the evidence of the child Josephine Cheney, substantially the same thing
testified to by her was admitted by defendant, namely, that the Cheney girl and the Taylor girl
had been in Skidmore's cabin; hence the defendant was not prejudiced thereby.
13. The testimony of Dr. Cann and Deputy Sheriff Griffith being admissible, and
considering such testimony in connection with all of the other testimony in the case, there ispresent all of the elements necessary to establish the corpus delicti, proof of a lewd and
lascivious act committed on the body of the child by defendant. The testimony of Dr. Cann is
strongly corroborative of that fact, as is the testimony of other witnesses in the case. This
disposes of subdivisions (a) and (b) of assignment one.
Assignments two and four have hereinbefore been taken care of. As to assignment one, we
find, upon a consideration of the whole record, that the evidence is amply sufficient to
establish the guilt of defendant.
Defendant complains of the rapidity with which the jury reached its conclusion in this
case, and assigns as a reason therefor that the jury were incensed because counsel for
defendant attempted to criticize certain conditions which were permitted to exist in the city of
Reno; he attempts to set up this matter by way of affidavit, and insists that because no
answering affidavits were filed the matter should be taken as true. The statement of the
defendant relative to this matter is purely a conclusion having no evidentiary value, therefore
no answering affidavits were necessary. It is entirely probable that the jury had no difficulty
in reaching a verdict because of the convincing character of the evidence, rather than because
of a resentful state of mind.
ÐÐÐÐ59 Nev. 320, 332 (1939) Skidmore v. StateÐÐÐÐ
14. Defendant contends that the jury disregarded the instruction of the court to the effect
that if the evidence could be reconciled either upon the theory of innocence or of guilt, the
law requires that the theory of innocence must be adopted. We do not think so. They were
amply justified in adopting the theory of guilt, from the evidence adduced.
No prejudicial error appearing, the judgment and order appealed from are affirmed.
1. Mines and Minerals.Before forfeiture of a mining claim can be declared for failure to do assessment work, it must clearly be
established that assessment work has not been done.
2. Statutes.
Penalties and forfeitures are not favored, unless plainly expressed.
3. Mines and Minerals.Located mining ground is not subject to relocation until after forfeiture or abandonment.
4. Mines and Minerals.In action for restitution of certain unpatented mining claims wherein defendants asserted title to claims by
adverse possession, evidence sustained finding of trial court that defendants' possession of claims was
interrupted by owners' performance of annual labor on claims and filing of notices of intention to hold
claims.
5. Mines and Minerals.In action by mining corporation for restitution of unpatented mining claims, claimed by defendants under
adverse possession, finding of trial court that one of defendants occupied claims for sole purpose of protecting interest of a stockholder in mining corporation and not to protect any interest of his own was
of reinstatement, it would be assumed that delivery thereof was had after reinstatement. Comp. Laws, sec.1808; Stats. 1931, c. 219, amending Stats. 1925, c. 180, secs. 1—4.
13. Deeds.A deed is not valid for any purpose until delivery.
Appeal from Eighth Judicial District Court, Lincoln County; Wm. E. Orr, Judge.
Action by the Tempa Mining & Milling Company against E. K. Porter and Henry
Diefendorf for the restitution of certain unpatented mining claims. From a judgment for the
plaintiff, defendants appeal. Affirmed.
Julian Thruston and George E. Marshall, for Appellants:It is admitted in the pleadings and at the trial that the plaintiff corporation forfeited its
charter to the State of Nevada on the first Monday in March 1931 for failure to pay its
corporate dues to the State of Nevada. Therefore, the deed of August 19, 1932, wherein
Tempa Mining and Milling Company conveyed its claims to Carder and Klinefelter is a
nullity and has no force or effect whatsoever. Pursuant to section 1664 N. C. L. the
corporation continues for a period of three years, and, pursuant to section 1808 N. C. L., the
board of directors shall hold the property of said corporation in trust. Therefore, only the
board of directors, as trustees, could pass title. Crossman v. Vivienda Water Company, 89 P.
335.
In order for the company to have conveyed the property on August 19, 1932, it would firsthave been necessary to have held a directors' meeting authorizing the sale, and nowhere in the
record does it appear that such a meeting was held. This is necessarily so because the officers
only have such powers as are delegated by the board of directors. This is particularly true
where all of the property of the corporation is conveyed, under sections 27 and 37 of the
The deed of October 23, 1936, attempting to convey the property from H. W. Baugh back
to Tempa Mining and Milling Company, was executed six days prior to the time that thecorporation was reinstated, and at that time it was absolutely dead and could not either own or
hold property, could not receive or convey property. It had no officers, agents, board of
directors, trustees, or any other way in which it could act in any capacity whatsoever.
“Occupation and adverse possession of a mining claim shall consist in holding and
working the same, in the usual and customary mode of holding and working similar claims in
the vicinity.” South End Mining Co. v. Tinney, 22 Nev. 19, 35 P. 89. Defendant Diefendorf
testified that he erected his monuments, found a discovery of ore in place, and did the
location work on the claims in question. It was also testified without contradiction that
defendants had claimed to be the owners of the claims since 1927. Under section 8510 N. C.
L., an open notorious entry and holding for a period of five years is sufficient to constitute anadverse possession upon which to base a title to real estate, and the only distinction in the law
with reference to mining claims is that the time is shortened from five years to two years (sec.
8508 N. C. L.).
Jo G. Martin, for Respondent:
No authority is cited by appellants to the effect that while under forfeiture of its charter a
defunct corporation is under such disability that annual labor cannot be done so as legally to
protect its mining claims for the stockholders or anyone in privity of interest with them. We
submit such authority is necessary to support the theory of appellants, and we have been
unable to find such authority.
It is the contention of respondent that the deed of August 19, 1932, was made “to disposeof and convey” the corporate property under the circumstances set forth LQVHFWLRQ1&
Company, while dated six days before reinstatement of the corporation, was not recorded
until six days after the reinstatement, and might, for all that appears in the record, have been
delivered after the corporation had been restored to full standing.
The testimony of Diefendorf himself, taken with that of Carder, and the checks and
receipts showing expenditures for the property by the Tempa Company, make a very clear
showing that when the defendant Diefendorf came on the property to initiate his claim of title,the annual labor of the owner had been done for the year ending July 1, 1926, and the ground
was not open to legal occupancy by anyone else than the owner, and not open to relocation.
Diefendorf was clearly a trespasser. Atkins v. Hendree, vol. II, Morrison's Mining Reports, p.
328. Further, the record and the exhibits show either assessment work for the respondents or
the filing of the statutory notices of intention to hold in the years when labor was not
required, covering each and every year involved.
The evidence shows that whatever tenancy existed on the part of the appellants was
interrupted by the respondent at will and without hindrance in each year when annual labor
This is an appeal from the district court of the Eighth judicial district of the state of
Nevada, in and for Lincoln County, from a judgment in favor of the plaintiff (respondent
here) and against the defendants (appellants). The parties will be referred to, for conveniencesake, as in the court below, as “plaintiff” and “defendants.”
The action was brought for the restitution and possession of certain unpatented mining
claims in Lincoln County, Nevada. The defense of the defendants was forfeiture and
abandonment; failure to do the required amount of assessment work in the years 1931 and
1932; the revocation of the corporate charter of plaintiff for failure to pay its corporate dues
or fees to the State of Nevada; and title and possession of the defendant Diefendorf through
actually holding and working said mining claims openly and notoriously by reason of location
and possession.
It appears from the record that the Tempa, Spring and Unity lode mining claims were
located by Tempa Rafferty, in the Eagle Valley Mining District, Lincoln County, Nevada, in
July 1921, and thereafter recorded in the office of the recorder of Lincoln County, Nevada, on
the 8th day of August 1921; on the 17th day of May 1922, the locator, Tempa Rafferty,
deeded said claims to the Tempa Mining & Milling Company, a California corporation, and
in March 1926, the Tempa Mining & Milling Company, a California corporation, deeded the
said mining claims to the Tempa Mining & Milling Company, a Nevada corporation; that
thereafter, on the 18th day of August 1932, the Tempa Mining & Milling Company, a Nevada
corporation, deeded said claims to J. A. Carder and F. O. Klinefelter; that on the 24th day of
bearing date the 23d day of October 1936, H. W. Baugh deeded to the plaintiff here, Tempa
Mining & Milling Company, a Nevada corporation, the said mining claims, this latter deed
being placed of record on the 3d day of November 1936, in the office of the recorder of
Lincoln County, Nevada.
The trial court found, and there is substantial evidence for such finding, that during all of
the years in which said claims were successively held by the plaintiff and by the partiesholding under the deeds aforementioned annual labor and expenditures in the amount of more
than one hundred dollars for each of said claims was performed and expended on said
property by the plaintiff and persons in privity with the plaintiff for the benefit of said mining
claims in those years in which said labor and expenditures were required by law, and that in
such of those years as notices of intention to hold said claims were required to be given and
filed that such notices were by the then owners duly given and filed.
1. “Before forf eiture of a mining claim can be declared for failure to do annual
assessment, it must be clearly established.” Strattan v. Raine, 45 Nev. 10, 197 P. 694, 200 P.
533.
2. “Penalties and forfeitures are not favored, unless plainly expressed.” State ex rel. Millerv. Harmon, 35 Nev. 189, 127 P. 221, 223, Ann. Cas. 1914c, 891.
3. It is the settled law of the land that located mining ground is not subject to relocation
until after forfeiture or abandonment. Farrell v. Lockhart, 210 U. S. 142, 146, 28 S. Ct. 681,
52 L. Ed. 994, 16 L. R. A. (N. S.) 162.
The defendants claim to have entered into the right and possession of said claims on or
about the 15th day of March 1927 by location in the name of defendant Diefendorf, for failure
upon the part of the plaintif f company to have performed its annual assessment work for the
year 1926; and defend their action, further, on the ground that the plaintiff had no authority in
or otherwise, to deed or convey said property to the said Carder and Klinefelter, above
mentioned, other than and only through its board of directors, acting as trustees, and not
otherwise, and that said deed of conveyance, as mentioned, is, on its face, a corporate deed
executed by the president and secretary of the corporation after the corporation had forfeited
its charter to the State of Nevada; and further defends upon the ground that the plaintiff was
wholly unable to accept the deed above mentioned from H. W. Baugh, reconveying said
property, on the 23d day of October 1936, because the date of the conveyance is prior to the
reinstatement by the authorities of the State of Nevada of the plaintiff corporation; and,
further, that for a period of more than two years prior to the commencement of the action thedefendants had been in the actual and peaceful possession of said mining claims, and since
the date of location had performed the necessary work to hold said mining claims, and by
working the same openly and notoriously during said period of time.
4. The trial court further found that while the defendant Diefendorf entered upon said
claims in the year 1927, and thereafter did certain work thereon, the occupancy, holding, and
working of said claims by the said Diefendorf did not continue openly, adversely, and
notoriously for a period of two years thereafter, but was interrupted and broken by the coming
upon the said claims by the owners thereof for the purpose of performing, and by the
performance by them, of the annual labor required by law; and, further, that the entry or
occupancy made by the defendant Diefendorf for the years 1927, 1928, 1929, 1930, 1932,1933, and 1934 was interrupted and broken in each of said years either by the performance of
annual labor by the owners or the filing by them of the notices of intention to hold required by
law.
5. The trial court further found that in the month of March 1927, and for some time prior
thereto, and up to and including the time of trial, Mrs. Tempa Rafferty ZDVDVWRFNKROGHURI
property and not to initiate or to protect any interest of his own. Upon all of these findings the
trial court was amply justified from substantial evidence in the record.
6. It has long been the practice of this court that where there is substantial evidence to
justify the findings of a trial court such findings will not be disturbed. With this thought in
mind, the only point to be determined, as we see it, by this court is the ruling of the lower
court in admitting in evidence the deed from Tempa Mining & Milling Company to Carderand Klinefelter under date August 19, 1932, at a time when the corporation's charter had been
forfeited, and the deed made by H. W. Baugh to the plaintiff corporation October 23, 1936,
the deed being dated prior to the reinstatement of the corporation. The pleadings admit, and
the evidence substantiates the admission, that the plaintiff had forfeited its charter for failure
to pay its corporate dues to the State of Nevada on the first monday in March 1931. Was the
deed then issued by the corporation to Carder and Klinefelter valid?
Section 1664 N. C. L. 1929 provides: “Remain Bodies Corporate For Three Years. All
corporations, whether they expire by their own limitation, or are otherwise dissolved, shall
nevertheless for the term of three years from such expiration or dissolution be continued as
bodies corporate for the purpose of prosecuting and defending suits by or against them, and
of enabling them gradually to settle and close their business, to dispose of and convey their
property, and to divide their capital stock, but not for the purpose of continuing the business
for which said corporation shall have been established.”
7. Webster defines “limitation” as being an “Act of limiting; a restriction of power; a
qualification,” and so this section of the statute above quoted, taken from the generalcorporation law of the state, passed and approved March 21, 1925, Stats. 1925, c. 177, p. 287,
was in full force and effect for approximately a year prior to the date of the deed from the
California corporation to the Nevada corporation. So far as we can find, this section has not
been repealed or amended.
The legislature of 1925 also passed an act, approved March 21, 1925, Stats. 1925. c. 180,
on the same day that the above-mentioned corporation act was passed, providing, among
other things, for all corporations to file annually with the Secretary of State of the State of
Nevada a list of their officers and directors and designating a resident agent, providing for a
fee therefor, a penalty for the violation thereof, and for the reinstatement of corporations
whose charters have been forfeited under existing or pre-existing laws. This act was in 1931,c. 219, page 408, amended so as to include the filing of a certificate of acceptance by the
resident agents. It must be conceded that this act is a revenue act and also a police power act.
Section 5, being section 1808 N. C. L. 1929, sets forth the fact that corporations shall forfeit
their charters for failure to meet the tax and penalties prescribed by the act. The part relied
upon here by the defendants reads as follows: “In case of forfeiture of the charter and of the
right to transact business thereunder, all the property and assets of the defaulting domestic
corporations shall be held in trust by the directors of such corporation as in case of insolvent
officers of the corporation. In case the assets are distributed they shall be applied as follows:”
It is the defendant's contention that this section of the statute must be construed in pari
materia with section 1664 N. C. L., above quoted, and that, therefore, the deed issued by the
officers of the corporation unto Carder and Klinefelter is of no force or effect and title could
not have passed except in a deed by the board of directors, acting as trustees under the
last-mentioned act.
There is nothing in the record, so far as we have been able to ascertain, as to the
authorization, if any, by resolution of the board of directors, or otherewise, for the plaintiff
company to execute and deliver its deed of conveyance to Carder and Klinefelter. The deed is
signed by one E. A. Feutherstone, vice president, and E. E. Mason, secretary-treasurer. These
same parties, as the same officers of the California corporation, deeded to the Nevada
corporation, “Plaintiff's Exhibit 3,” and it must be assumed that they had ample and sufficient
authority and execute such deeds upon behalf of the corporation. At any rate, no member
interested in either of the corporations, it must be understood, so far as the record here
discloses, has questioned the validity of the authorization for the execution and delivery of
the deeds. It is in evidence that the plaintiff corporation had great difficulty selling stock inorder to secure funds to carry on during the years of the depression, and Mr. Mason, as
secretary-treasurer, testified that the deed from the corporation to Carder and Klinefelter was
given for the purpose of protecting the stockholders and saving for them the property.
8. The evidence also discloses that one Everett Hackett performed the annual assessment
work upon the claims in question for the year ending July 1, 1929, and the year ending July 1,
1930, and as part compensation received part of the mill upon said premises, and Mr. Mason,
as secretary-treasurer, stated that this was agreed among the board of directors. Mr. E. E.
Mason, as secretary-treasurer of the corporation, made affidavit DQGSURRIRIODERUIRUWKH \HDUHQGLQJ-XO\IRUWKH\HDUHQGLQJ-XO\DQGIRUWKH\HDUHQGLQJ-XO\ DQGWKHVHDQQXDOSURRIVRIODERUDQGWKHDPRXQWH[SHQGHGXSR QWKHFODLPVDUH
and proof of labor for the year ending July 1, 1926, for the year ending July 1, 1927, and for
the year ending July 1, 1928, and these annual proofs of labor and the amount expended upon
the claims are corroborated by very substantial testimony in the nature of canceled checks,
etc. It would appear, therefore, from a careful reading of the evidence, that the trial court
properly assumed that the plaintiff corporation, in the first instance, acting by and through its
officers, did those things required by law to be done in order to protect the title to the claims,and later, as such officers, carried out the purport and intent of section 1664 N. C. L. 1929,
above quoted. The signatures to documents and the impress of the corporate seal on such
documents carry with it the presumption that the officer was authorized to perform the act in
question, and where a person is clothed with a title such as vice president or secretary of a
corporation he has apparent authority as the agent of the corporation to act.
We are convinced from a reading of the record that the vice president and secretary, acting
as such, were doing only those things permitted by statute after the plaintiff company had
forfeited its charter, and it must be assumed from the state of the record that they had such
authority from the corporations and the board of directors thereof.
“It is a general rule that a person acting publicly as an officer of a corporation is presumed
rightfully to be in office, and so far as the rights of third persons are concerned, his title to theoffice can not be inquired into collaterally.” 14a C. J., 1839.
9. “As a general rule the authority of an officer or agent to do a particular act or make a
particular contract may be questioned only by the corporation, its stockholders or creditors,
and where they do not raise an objection, another third person can not do so or question the
validity of the particular act or contract, except such third persons who may be injured
10. Nothing in the record here to the contrary, it must be assumed, therefore, that the act
of the vice president and secretary in executing the deed to Carder and Klinefelter had the full
consent and authorization of the directors acting for the corporation and its stockholders. The
defendants here had ample notice of the intention of Carder and Klinefelter, and later H. W.
Baugh, to hold said mining claims, in the first instance by and through the records of the
recorder's office of Lincoln County, and in the second instance by the actual possession and
entry upon said claims by themselves and their agents to do the necessary assessment work
required by law. The authority must have been delegated by the directors in the first instance,or later ratified by them. In other words, they, as vice president and secretary, did only the
things permitted by section 1664, by disposing of the property within the three-year period of
limitation prescribed by the statute.
11. We do not see the necessity, under the circumstances, for a construction of section
1808 N. C. L. in pari materia with section 1664 N. C. L. It is true that the corporation,
plaintiff here, at the time of the execution of the deed to Mr. Carder and Mr. Klinefelter was
dead for all purposes, except that under the authority of section 1664 it had a right for a
The reviewing court will not disturb an order granting new trial when there is a conflict in evidence upon
some material issue, or substantial error is committed, or when, though evidence appears to fully support
the verdict, there is not a conclusive preponderance of evidence in favor of the verdict or other cogent
reason for reversing the order. Stats. 1937, c. 32, sec. 3.
4. Appeal and Error.The reviewing court will not disturb an order granting new trial where there is a material conflict in
evidence and plaintiff's positive evidence sustains his claim; when the weight of evidence does not clearlypreponderate against the ruling; ZKHUHWKHHYLGHQFHLVFRQIOLFWLQJDQGWKHWULDOFRXUWLVQRW
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ÐÐÐÐ59 Nev. 345, 346 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
where the evidence is conflicting and the trial court is not shown to have abused its discretion. Stats. 1937,
c. 32, sec. 3.
5. Appeal and Error.The reviewing court will not disturb an order granting new trial where trial court is of the opinion that
evidence, taken in connection with newly discovered evidence, is insufficient to support the judgment, and
there is a substantial conflict in evidence, or where, though there is evidence sufficient to support the
verdict under rule applicable where motion for new trial has been denied, reviewing court cannot say that
trial court abused its discretion. Stats. 1937, c. 32, sec. 3.
6. New Trial.A verdict cannot be set aside by trial court where no irregularity or error whatever is shown, and the
verdict or decision is in accordance with and justified by the evidence.
7. Negligence.Whenever a question of contributory negligence arises upon a state of facts in regard to which reasonable
men might differ, it ought to be submitted to the jury.8. New Trial.
District courts ought always to use great caution in exercising power to set aside verdicts on ground of
insufficiency of evidence, but should set aside verdicts where there is a clear preponderance of evidence
against them, where they are clearly satisfied that evidence is insufficient to sustain the verdicts, or where,
after weighing the evidence, they think injustice has been done. Stats. 1937, c. 32, sec. 3.
9. New Trial.In action against construction company for injuries suffered in automobile accident, allegedly caused by
negligence in giving signal to automobile to proceed on road which was dangerous while under
construction, evidence on negligence in giving signal and contributory negligence in proceeding on the
road held to authorize setting aside verdict for defendant and granting new trial. Stats. 1937, c. 32, sec. 3.
10. Appeal and Error.
The reviewing court is not limited to consideration of reasons stated by trial court in granting new trialupon ground of insufficiency of evidence to justify verdict, and is not bound by such reasons. Stats. 1937,
c. 32, sec. 3.
11. Appeal and Error.Though trial court's opinion on granting new trial may be examined, on appeal, it is the order, not the
opinion, from which the appeal is taken, as affecting scope of reviewing court's consideration. Stats. 1937,
First: That the decision of the trial court based solely upon Mr. Wood's signal, is error;
Second: That, if Wood's signal was in fact given, it was not the proximate cause of the
accident;
Third: That under the issues submitted at the trial and under the pleadings defendant was
entitled to a verdict, in that the evidence was overwhelmingly to the effect that the shoulderdid not give way;
Fourth: That the physical facts show that it was an impossibility for the accident to have
happened as claimed by the plaintiff;
Fifth: That the plaintiff himself was guilty of contributory negligence, in that his partner,
and driver, drove the car over the embankment;
Sixth: That there is no showing that the defendant was negligent in any respect, and that
the defendant acted through its agents as reasonable men would under the circumstances;
Seventh: That there is no showing that the defendant, through its agents, knew, or should
have known, that the shoulder would give way, in the event the court finds it did give way;
Eighth: That the plaintiff and defendant had equal knowledge of the facts and, under the
most favorable construction for the plaintiff that can be given the evidence, the accidentwould be held to be unavoidable;
Ninth: That the instructions were favorable to the plaintiff and that, as a matter of law, the
evidence justified the jury's verdict for the defendant; and
Lastly: That the evidence preponderates in favor of the defendant, and that the court erred,
as a matter of law, in granting a new trial upon the grounds stated in his decision, or upon any
other grounds.
ÐÐÐÐ59 Nev. 345, 349 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
H. R. Cooke, for Respondent:
If the order granting a new trial is right, it is immaterial that the judge assigned a wrong
reason. There is no requirement that a trial judge in such an order must decide all issues and
all contentions.
The order granting a new trial is of itself a finding against defendant as to its claim of
contributory negligence, because the order recites: “The evidence to the mind of the Court
establishes the fact that they proceeded with due caution, not at a rapid rate of speed.”
The testimony of plaintiff and his witnesses is undisputed that but for the Wood signaltheir car would never have been at the point where the roadway gave way.
While the general verdict for defendant might imply that the jury found that the Wood
signal was given to Whiting and not to plaintiff, the fact is that the jury could have
disbelieved all testimony (Wood's included) on that point, and have brought in the identical
verdict that was brought in.
The undisputed fact is that Wood ran his bulldozer blade over the area of the road where
the accident happened, just a few minutes before the accident. Under such conditions it is
obvious that any knowledge of plaintiff as to road conditions before the bulldozer leveled and
smoothed off the surface would be immaterial for any purpose.
The very act of their proceeding on is fairly persuasive evidence that the occupants of the
Grich car neither saw nor knew of danger. Sec. 9047.07 N. C. L.
Only defendant's foreman, Wood, could have any knowledge of the actual condition of the
roadbed after the bulldozer blade had smoothed it.Defendant, by its foreman, Wood, in effect represented to plaintiff, by the signal to
proceed onward, that the road there was in a reasonably safe and passable condition.
Where evidence is conflicting, an order of the trial FRXUWJUDQWLQJDQHZWULDOZLOOQRWEH
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ÐÐÐÐ59 Nev. 345, 350 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
court granting a new trial will not be disturbed in the absence of a clear abuse of discretion.
Goldfield Mohawk Mng. Co. v. Frances-Mohawk Mng. & L. Co., 35 Nev. 423, 129 P. 315.
Viewed in the most favorable light to defendant, the evidence here is conflicting. We contend
that the evidence strongly preponderates on the side of the plaintiff.
OPINION
By the Court, Taber, C. J.:
The parties will sometimes be referred to as plaintiff and defendant. In the court below
appellant was defendant, and respondent plaintiff.
In December 1935 appellant entered into a contract with the State of Nevada for thegrading and repairing of a section of public highway, approximately five miles in length, in
the vicinity of Virginia City. At the time of the accident hereinafter mentioned appellant,
pursuant to said contract, was working on said highway about one mile southerly from said
city. On April 19, 1936, and for some time prior thereto, plaintiff, his partner and
brother-in-law Frank Putzell, and George Krasevac, nephew of Putzell and an employee of
the partners, were and had been working a mine situated near said highway, and about three
miles southerly from said city. These men, for a considerable period of time prior to said 19th
day of April, had been traveling back and forth between Virginia City and the mine several
times practically every day. About five o'clock in the afternoon of said day they were
returning from the mine to Virginia City in Krasevac's automobile, a 1929 Ford roadster, the
car in which they regularly made their trips between Virginia City and the mine. When they
reached a point a short distance from where the accident happened, they stopped the car
because defendant's scarifier, with bulldozer in front driven by Kenneth Wood, was
approaching from the opposite direction. They remained there several minutes until Mr.
ÐÐÐÐ59 Nev. 345, 351 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
after approaching to within a short distance of them, turned his equipment onto a pioneer road
just above the old highway, which defendant was grading, leveling, and widening. After
proceeding about fifty feet on said pioneer road, Mr. Wood, who was then f acing towards
Virginia City, turned part way around in his seat, faced the three men sitting in said roadster
and made a signal with his left arm and hand. Appellant claims that this signal was given to
Mr. Whiting, another of its employees. Respondent, on the other hand, maintains that the
signal was made to him and his companions. In any event, just after said signal was given,
Krasevac, who was driving, started the car and proceeded some fifty feet or more, when the
car left the road, and after moving down the steep hillside a short distance, overturned a
number of times, resulting in serious personal injuries to plaintiff. When the Wood signal was
given and when the accident occurred, Mr. Whiting, in charge of a caterpillar with Le
Tourneau scraper attached, was north of Mr. Wood in the direction of Virginia City, while
plaintiff and his companions were to the south of him.
Plaintiff alleged that his injuries were caused by defendant's negligence. This was denied
by defendant, who also alleged that plaintiff was guilty of contributory negligence, and that
his said negligence was the proximate cause of the injuries. A jury trial was had in
department No. 2 of the Second judicial district court, Washoe County, resulting in a general
verdict for the defendant. Plaintiff moved for a new trial, which was granted, and the present
appeal is from the order granting plaintiff a new trial.
In rendering its decision granting plaintiff a new trial, the trial court said in part:
“The facts of this case are that on the day when this accident occurred the employees of thedefendant in the action were working upon the road at the point where the accident occurred
and were cutting down the hillside above the roadbed and were scraping the dirt and URFN
ÐÐÐÐ59 Nev. 345, 352 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
rock that came from the cut above off from the highway onto the bank, widening the road.The evidence establishes, I think without any contradiction that the plaintiff, who was riding
with the other two parties in the car that went over the grade, came to a point on the grade a
short distance from where the accident occurred. That they then saw Mr. Wood, who was an
employee of the defendant and who was in charge of the construction of that road, coming
along toward them with a tractor, a bulldozer, and pushing the rock and dirt from the place
where it had been deposited by cutting above, or rather, from the inner side to the outer side
“The evidence establishes, I think, that the parties in the car stopped and that Mr. Wood
proceeded to a point near them and he turned from the roadway and went up on a road above
that was used for the purpose of cutting the bank. And that when he got upon the bank he
turned and faced the parties in the car and made a sign with his arm, waving it, which they
construed to be a direction to proceed. I think Mr. Wood said that he did not make that to the
parties in the car. But it was the same sign that he had used previously when he directed thesesame parties to proceed over the road while it was in the process of construction, and he
admitted that he was facing the parties in the car when he made the sign, and he illustrated
upon the stand the method in which he made the sign and that method which he indicated
could not be construed as anything else but a direction to the parties in the car to proceed.
“The evidence, to the mind of the Court, establishes the fact that they proceeded with due
caution, not at a rapid rate of speed, and that when they reached this point just before they
stopped the car, the car slid over the grade, two of the parties jumping from the car, and the
plaintiff in this action being carried down the hill by the car and injured.
“While there was considerable conflict of testimony in the case, it appears to the mind of
the Court that in the JL YLQJRIWKDWVLJQDOWKHHPSOR\HHFKDUJHGZLWKWKHGXW\RIGLUHFWLQJ
WUDIILFRYHUWKHURDGZDVJXLOW\RIQHJOLJHQFH
ÐÐÐÐ59 Nev. 345, 353 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
giving of that signal the employee charged with the duty of directing traffic over the road was
guilty of negligence. And under all the authorities cited the Court is of the opinion that the
parties driving the car had a right to act upon that signal. That it was in effect a declaration to
them, ‘Proceed, the road is safe,' and that there was nothing in the character of the road at thatparticular time to warn them of the situation, as they had been going over it for days.”
Following said decision, a written order granting a new trial was filed, from which we
quote the following: “Wherefore, and it appearing to the Court that there was a manifest
disregard by the jury of the instructions of the Court and that the evidence is insufficient to
justify the verdict and that said judgment and verdict is against law, * * *”
The main subjects of controversy are these: (1) The testimony of Kenneth Wood; (2) the
condition of the highway at and near the point of the accident, and in particular, whether there
was a sof t shoulder at that point which gave way under the weight of the roadster; (3) whether
the car in which plaintiff was riding stopped just before leaving the road, or was driven across
and off the highway without stopping.
Kenneth Wood, who was in defendant's employ at the time of the accident but not at the
time of the trial, was called as a witness by plaintiff, and the important part of his testimony
was as follows:
“Q. What kind of signals did you give? Just indicate to the jury. A. I gave a signal to Mr.
Whiting to come through.
“Q. What kind of a motion of your hand? Indicate to the jury, if you will, what kind of a
motion of the hand you gave? A. Would be a circle (indicating).
seen, testified that he gave that signal to Mr. Whiting. Mr. Whiting did not give any testimony
as to whom the Wood signal was given. The one signal was all that was given either by Wood
or anyone else. It is not contended by defendant that any stop or warning signal was given to
the three men in Krasevac's car. Witnesses Harker, Putzell, Krasevac and Grich testified that
it had been customary for Wood to make stop and go signals to themselves and other persons.
With reference to the condition of the highway at and near the place of the accident,plaintiff's complaint alleges that “the old road bed of said road at said point became covered
to a depth of about 2 feet with soft dirt, loose rock and crumbling gravel, placed thereon by
defendant in its work of grading, leveling and widening the road bed preparatory to later
completion of the grading thereof and by then hard-surfacing the new road bed.” Answering
the foregoing allegation, defendant in its amended answer “denies that at the time and place
mentioned in the said complaint the old roadbed of said road became covered to a depth of
about two feet with soft dirt, and/or loose rock, and/or crumbling gravel or to any depth in
excess of a few inches.”
Respondent relies chiefly upon the following testimony as showing the condition of the
highway and of the shoulder along its outer edge:
Frank Putzell, who was riding on the inside (right-hand side) of the roadster, testifying inbehalf of plaintiff, said in part: The dirt (on the roadway) was awful soft and yieldy; “we felt
the soft dirt yielding”; the fill was made up of gravel and soil—a good deal of rock, fine
gravel mixed in; “this soft shoulder kind of gave, as it did the car started sliding forward but
didn't turn over immediately * * * this soft first started to yield * * * the dirt was soft
material. * * * As we approached it there we felt the car gradually giving in the soft material
* * * it is a porphyry formation so it would make it a soft material * * * the dirt kind of
crumbled there
* * * the shoulder did slide away ,GRQWNQRZWKHUHDSSUR[LPDWHO\PD\EHLQFKHVRILW
LWJUDGXDOO\VOLGDZD\
ÐÐÐÐ59 Nev. 345, 356 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
I don't know there approximately maybe 18 inches of it * * * it gradually slid away. * * *
After the accident there was quite a depression there, about a foot but none before the
accident. * * * The wheel sunk into the material, the tire cut into the material 8 inches or a
foot * * * it was on the shoulder side of the roadway”; defendant's bulldozer would scrape off
from the opposite bank and the material would go off outside of the road; the fill of loose
material on the road was about 2 to 3 feet deep; he could feel that there was a lot of soft
material there, figured around 2 feet; as they drove along they felt the wheels keep giving on
the soft material; it was very hard to drive on; he knew they had a lot of loose fill there
several times; the bulldozer would work some of the dirt over the edge of the roadway; there
was a lot of soft material; they were traveling in low gear; the road was very soft; the wheels
sank 3 or 4 inches into it; the fill was about half soil and half rock.
Kenneth Wood, hereinbefore mentioned, testified that his bulldozer gouged up material,
ran it off the side of the bulldozer and dumped it over the side.
Ernest Harker testified in behalf of plaintiff that he passed over the road on the morning of
the day of the accident; that defendant was operating scrapers and bulldozers; that it was all
on loose fill; that “you would get stuck in the soft dirt”; that the fill was over the old roadway;
that the fill was smoothed up so you could drive over it; that within the week next preceding
the accident there were several times when the road was so bad that it couldn't be traveled atall; that he made a number of complaints to the highway department, as well as to Gus Olson,
defendant's superintendent; that “it got there towards the end it was practically useless to
make complaints unless you went down and saw Mr. Mills (assistant engineer of the highway
department), and then they would fix it a day, and it would be back in the same fix again.”
(Mr. Harker was interested in WZRPLQHVRQHR IZKLFKZDVWKDWLQZKLFKSODLQWLIIDQG
ÐÐÐÐ59 Nev. 345, 357 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
two mines, one of which was that in which plaintiff and Frank Putzell were interested and at
which George Krasevac was employed. He rode back and forth between these mines and
Virginia City in Krasevac's roadster.)
George Krasevac testified in behalf of plaintiff that he was the driver of the Ford roadster
at the time of the accident; that there was a fill at the point where the car went off; that this
fill was of freshly built dirt; that it was smoothed over; looked like it had been packed, but it
was false; just a bunch of loose dirt and rocks; some of this loose material caved with him as
he jumped out of the car onto it; that 2 or 3 feet of dirt gave way; there was a new fill; more
of a fill in the evening of the day of the accident than when he went over the road in themorning; that defendant's employees cut out the bank and put it out on the shoulder; there
was about 2 feet of shoulder; that this was all filled in by dirt muck; where the car went over,
the shoulder sloughed and gave way; that the fill was 2 or 3 feet deep, as he judged; that the
fill was 3 or 4 feet deep on April the 19th; that it was soil, clay, dirt and some rock; that there
was no powder used on that part of the road; that about half of the fill where the car went off
had been put in there some time during the day; that it wasn't necessary to dig holes to see the
depth of the fill—one could see where the old road was exposed; that he saw defendant's
employees building it up from time to time; he could not see the old road at the time the
accident took place.
Mike Grich, plaintiff, who was sitting in the middle of the seat of the roadster between
Krasevac and Putzell, testified that he was over the road in the morning of the day of the
accident and had no trouble; in the evening when they returned, the road looked smooth till
they came to the turn; that they didn't know the road was so soft; the surface looked all right;
that the soft dirt caused the car wheels to give way; that when the car stopped, it was about 2
feet from the edge; that if WKHEDQNKDGQRWJLYHQZD\WKHFDUZRXOGQRWKDYHJRQHRYHULW WKDWWKHFDUZDVIHHWIURPWKHRXWHUHGJHMXVWEHIRUHLWZHQWRIIWKDW:RRGDQG GHIHQGDQWVFUHZOHYHOHGRIIWKHURDGDQGSXWGLUWGRZQWKHKLOOZKHUHWKHFDUWXUQHGWKDW WKHROGU RDGEHGDWWKLVSRLQWZDVDOOFRYHUHGRYHUZKHQWKH\FDPHXSLQWKHHYHQLQJ
ÐÐÐÐ59 Nev. 345, 358 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
the bank had not given way the car would not have gone over it; that the car was 2 feet from
the outer edge just before it went off; that Wood and defendant's crew leveled off the road
and put dirt down the hill where the car turned; that the old roadbed (at this point) was all
covered over when they came up in the evening; that it was covered with dirt and gravel; that
the road was soft; the car pulled harder; he didn't take notice how deep the fill was.
Mark Amodei, witness for the defendant, and an employee of the state highway
department at the time of the accident, testified that the shoulder (of the new road) was built
out about 3 1/2 to 4 feet at the time of the accident; the shoulder was built out not over a foot
beyond the shoulder of the old road.Gus Olson, defendant's superintendent at the time of the accident, testified in behalf of
defendant that the fill was “4 to 6 or 7 inches maybe.”
Roy Allen Bishop testified in behalf of plaintiff that he resided some fifteen years near the
point where the accident occurred; that on the day of the accident he came up with a sick man
and got out of the car about 100 feet east of the point where the accident occurred and walked
on west towards Virginia City; that it looked too narrow to go by there (with a car).
W. J. Stack testified in behalf of plaintiff that he lived in Gold Hill 54 years; that in April
1936 he was prospecting the area several miles easterly of Gold Hill where the highway on
which the accident happened was under construction; that the highway was in very bad shape;
that on the day of the accident there was a fill, at the point where the car later went off, 2 1/2feet thick; that you could see what fill had been put in by seeing the old roadbed; that the
material was soft; was over his shoe tops; was a kind of porphyry—decomposed porphyry;
that defendant's employees were building up the old road grade; that there was about 2 feet of
dirt on top of the old road; that he would judge that there ZDVIHHWRIPDWHULDORQWKHROG
and prior to the time of the accident; Gus Olson, superintendent for defendant corporation at
said time; Herbert Whiting, employee of defendant at said time; Herbert Whiting, Employee
of defendant at said time, but not at the time of the trial; Guy Isbell, independent competing
contractor and member of Isbell Construction Company, who was near by at the time of the
accident, and who testified that he was there that day for the purpose of investigating the
operation of some of the defendant's special equipment work; and Joseph L. Moser, employeeof defendant at the time of the trial, but not so employed at the time of the accident.
Appellant further points out that Frank Putzell, one of plaintiff's witnesses hereinbefore
mentioned and one of the three men in the roadster, testified in part as follows:
“A. Well, I don't know whether any of the shoulder really slid off. None of the shoulder
slid off.
“Mr. Griswold: (Q) Then what did slide off? A. Well, the side just gave in that soft
material, yielding material, a certain depression there, a depression there. I don't think at no
time any of this earth gave way.”
Appellant further directs our attention to the fact that both plaintiff's and defendant's
witnesses testified that Mr. Isbell, who was on the Virginia City side of the point where the
accident occurred, backed his car some 300 feet along the highway and to within a shortdistance of the place where the car went off the road.
Appellant also refers to the uncontradicted testimony that Kenneth Wood with his
equipment went over the place where the accident happened just a few minutes before it
occurred.
ÐÐÐÐ59 Nev. 345, 360 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
Mr. Whiting, on cross-examination, testified in part as follows:
“Q. There wasn't anything about their car that particularly attracted you attention? A. Yes,
sir, there was.
“Q. There was? A. Yes.
“Q. You were very much interested in that way? A. I was. Not to any great extent. I was
interested due to the fact that it was customary for me to come down and clean the road for
any traffic and I watched them particularly to see if they were getting through without my
having to come down and clean the road for them, as I did previously.
“Q. You were a little apprehensive that the road might not be in condition for them to go
through and that is why you took a particular interest? A. Yes, sir.“Q. And you had customarily cleaned the road for them and for other cars, had you? A.
Yes, sir.
“Q. What do you call cleaning the road, just what work was that? A. Well, it just meant a
trip over the road, they had to go through with a scraper, dragging a scraper and picking up
any loose material and leave them as much of a hard surface as it was possible.
“Q. That was under instructions, I take it, from your superiors? A. Yes, sir.
“Q. To keep the road open for traffic to the public? A. Yes, sir.
“Q. And besides doing the work of scraping down and moving dirt as you say, you also
had this job of keeping a watch on cars and knowing that the road was all right; if it was not,
then to scrape it so it would be all right? A. Yes, sir.”
Putzell, Krasevac and plaintiff all testified that just a few seconds before the car left the
highway, the driver had brought it to a stop; and it was further testified by one or more of them that as the car was brought to a stop the driver turned off the ignition. The reason
assigned by these witnesses for stopping the car was WKDWMXVWEHIRUHGRLQJVRWKH\KDG
ÐÐÐÐ59 Nev. 345, 361 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
that just before doing so, they had observed that the road ahead was blocked and made
impassable by large rocks. Plaintiff's complaint alleges that when the three men had started
the car up after stopping the first time, they proceeded about 75 feet, “at which point they
were able to see beyond the bend aforesaid and that the road was there impassable and closed
by reason of an accumulation of large rocks and boulders left thereon by defendant in its said
grading work, and plaintiff's automobile stopped. * * *” Defendant's answer “admits that the
road at a point beyond the bend mentioned in said complaint was impassable and closed by
reason of an accumulation of large rocks and boulders left thereon, and by reason of
machinery working thereon.” Defendant, in its said answer, denies that the roadster was
brought to a stop just before going off the highway.
In behalf of defendant, Mr. Whiting testified in part as follows:
“Q. Now what happened then? A. Well, it just run up to the bank and the thing thatimpresses it on my mind is when the front wheel, the left front wheel left the grade, went over
the grade. * * *
“Q. Did their car keep in the middle of the road or the outside of the road, or the inside of
the road, from the point where you saw them start up to the point where they went off the
grade, or could you tell? A. Drove from a point near the middle of the road to the outside in a
quartering direction, as near as I saw.
“Q. They were when they started up about the middle, is that right? A. Somewhere
approximately near the middle, yes.
“Q. And as they drove on and before they went off they got a little closer to the outer
edge? A. Yes, sir.
“Q. Can you state as a fact, from your own knowledge, and what you saw, whether their
car stopped just before it went off the grade? A. I can.
“Q. You can? A. Yes, sir.
“Q. Did it? A. It did not.
Mr. Isbell was not an eyewitness to the accident, but ZDVQHDUE\DWWKHWLPHDQGUHDFKHG
ÐÐÐÐ59 Nev. 345, 362 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
was near by at the time and reached the scene of the accident a few minutes after it occurred.He testified in part as follows:
“Q. State what you saw in the way of tracks on the road? A. Do you wish me to state
where—
“Q. Yes, right there where the accident occurred. A. Well, the tracks showed the track was
going straight over the edge of the road, single track off the road. Just showed a single track
off the road.
“Mr. Griswold: (Q) What do you mean by single track? A. Well, just showed where the
car went straight off?”
Mr. Moser, one of defendant's employees at the time of the accident was not an
eye-witness to the accident itself, but the defendant's superintendent, within a very short time
after the accident, sent him with a truck to the place where it occurred. Mr. Moser testified in
part as follows:
“Q. At the place where this car went off the shoulder will you just tell the Court in your
own words what you saw there at that place? A. I didn't see anything except small imprints on
the edge of the bank like tires going over where the car left the bank.
“Q. Was there any caving or slipping away there? A. No, just two marks like ordinary tire
marks. * * *
“Q. Now, adjacent to the place where that car went off that shoulder did you notice
anything else up there on the bulldozer road? A. Nothing only just the tire marks on the fresh
bulldozer road where they had been working.
“Q. Did you notice whether or not there were any tracks on the bulldozer road that lined inwith the tracks that went off the shoulder? Do you recall any thing about that? If so, tell the
jury. A. The tracks there that myself and three or four other men looked at they didn't show
from the shoulder of the bulldozer cut, but they showed on the shoulder of the road that was
being built in a kind of a line at an angle to where the WUDFNVKDGJRQHRYHUWKHEDQNZKHUH
WKHFDUFDWDSXOWHGWKHUH
ÐÐÐÐ59 Nev. 345, 363 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
tracks had gone over the bank, where the car catapulted there.
“Q. How much difference was there between those tracks on the bulldozer road and the
tracks where they went over the shoulder? A. Oh, approximately thirty feet, I would say,
maybe more; possibly forty, they were on an angle.
“Q. Will you tell the jury in your own language what the situation was there at the place
where the bulldozer road and the old road came together? What is the situation as to how that
was? A. Well, I would say like a road from any part would be, came along from a level and
sloped up over this hump where the bulldozer was working up here.
“Q. Was there any jumpoff on the old road at that place at all, or was it a gradual—A. You
mean from the top where the bulldozer was working?
“Q. No, what I am asking is this: the old road is going along this (indicating); the bulldozer
could come in and tap it—A. Yes.“Q. Where that took place what was the condition there? A. Just a slight slope up like any
ordinary grade would be on any road?
“Q. No jumpoffs on it at all in the old road? A. No, I don't think so.
“Q. What was the situation as to whether there was a jumpoff up on the side and on the
bulldozer road? A. Yes, there was a jumpoff there.
“Q. Will you state where the tracks were with reference to that particular point? A. I
imagine about three or four feet up on the bulldozer road. * * *
“Q. and you followed those tracks down where they went across that dirt? A. Followed
them across to what I call the road where the bulldozer was working and across the edge of
the bulldozer road and across the edge of the old road and apparently lined together, and
apparently, we thought, were made by the car that had catapulted over the bank, from theposition of the car.
ÐÐÐÐ59 Nev. 345, 364 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
“Q. You say that they crossed the road at an angle, the traveled portion of the road? A.
Yes.
“Q. At about what angle? A. Oh, I would say about a 45-degree angle.“Q. So that it would appear that the fellow who made those tracks had driven almost
straight across, not quite so, but at an angle as you have just stated? A. That is true. * * *
“Mr. Cooke: (Q) Can you indicate by the use of those cars, or in any way you want to, how
those tracks appeared upon the ground out there when you said you saw those tracks on the
evening of April 19th, 1936? Can you indicate upon the model about how they would appear
with reference to the point you have already established here, the junction or the toe of the
bulldozer road? A. B would be the toe or the junction of the bulldozer road. That was the
point, when I came up to this, to the track, my track, the old road, the traffic, there were
several machines behind me. The marks that we saw or that I looked at on what was known
as the bulldozer road was directly in front of my track, my truck, what is known as the frontend was standing approximately I think here (indicating). The tracks laid at an angle as
though to lead into the old road, but could not be traced into the old road, and the next one, as
I remember, were here and were traced on the bank at an angle approximately like this
(indicating).
“Q. Set the little car down there and use it to indicate the angle at the point—A. I would
say at an angle of about like that (indicating).
“Q. That is what you mean when you say about 45 degree? A. Yes. The tires or tracks that
on the trial; when it clearly appears that plaintiff failed to make a case against defendants, that
the evidence entitled defendants to judgment, and it is not claimed that any error or
irregularity occurred at the trial; when there is a conclusive preponderance of evidence in
favor of the verdict; when the weight of evidence clearly preponderates against the ruling of
the trial court; or when the trial court has abused its discretion in granting the new trial.
3-5. On the other hand, this court will not disturb such an order of the trial court: whenthere is a conflict in the evidence upon some material issue, or substantial error shown to
have been committed on the trial; when, though the evidence appears to this court to fully
support the verdict, there is not a conclusive preponderance of evidence in favor of the
verdict, or other cogent reason for reversing the order granting a new trial; where there is a
material conflict in the evidence, and the positive evidence of the plaintiff sustains his claim;
when the weight of evidence does not clearly preponderate against the trial court's ruling;
where the evidence is conflicting, and the trial court is not shown to have abused its
discretion in granting a new trial; where the trial court is of the opinion that the evidence
adduced at the trial, taken in connection with newly discovered evidence, is insufficient to
support the judgment, and a review of the evidence discloses that there is a substantial
conflict in the evidence; or when, though there is evidence sufficient to support the verdictunder the well-established rule applicable in case the motion for a new trial has been denied,
this court cannot say that the trial court, in granting a new trial, manifestly abused the
discretion reposed in it by the statute.
ÐÐÐÐ59 Nev. 345, 367 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
In State of Nevada v. Yellow Jacket Silver Mining Co., 5 Nev. 415, this court said: “Theweight of evidence against the verdict need not be so decided and great to authorize the nisi
prius Judge to set aside a verdict as is required by the Appellate Courts.” So, in Treadway v.
Wilder, 9 Nev. 67: “It must be borne in mind that the nisi prius courts in reviewing the
verdict of juries are not subject to the rules that govern appellate courts. They may weigh the
evidence, and if they think injustice has been done grant a new trial where appellate courts
should not or could not interfere.”
In Phillpotts v. Blasdel, 8 Nev. 61, the court says that in favor of the order granting a new
trial, “we must assume every fact which the district judge finds a clear preponderance of
evidence for and which we cannot find a clear preponderance against.”
The Nevada cases are in line with the generally accepted rules obtaining throughout theUnited States. 5 C. J. S., Appeal and Error, sec. 1673, pages 792-796; 3 Am. Jur. 455, 456; 4
C. J. 904, 905.
6-8. Appellant directs our attention to the rule that a verdict cannot be set aside by a trial
court where no irregularity or error whatever is shown, and the verdict or decision is in
accordance with and justified by the evidence. Scott v. Haines, 4 Nev. 426. Also to the rule
that whenever a question of contributory negligence arises upon a state of facts in regard to
which reasonable men might differ, it ought to be submitted to the jury. Solen v. Virginia &
T. R. Co., 13 Nev. 106. We are in accord with these rules, and we also approve the rule that
district courts ought always to use great caution in the exercise of the power to set aside
verdicts of juries on the ground of insufficiency of the evidence to justify such verdicts. Solen
v. V. & T. R. Co., supra; Albion Mining Co. v. Richmond M. Co., 19 Nev. 225, 8 P. 480. But
no authority has been cited holding that the verdicts of juries are final, and the rules above
stated do not conflict with the rule that trial courts should set aside verdicts where in theiropinion there is DFOHDUSUHSRQGHUDQFHRIHYLGHQFHDJDLQVWWKHPZKHUHWKHVFDOHRI
ÐÐÐÐ59 Nev. 345, 368 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
a clear preponderance of evidence against them; where the scale of evidence which leansagainst the verdict very strongly preponderates; where they are clearly satisfied in their
judgment that the evidence is insufficient to sustain the verdicts; or where, after weighing the
evidence, they think injustice has been done. State of Nevada v. Yellow Jacket Mining Co.,
supra; Phillpotts v. Blasdel, supra; Treadway v. Wilder, supra; Goldfield Mohawk Mining
Co. v. Frances-Mohawk mining and Leasing Co., supra. Nor are the rules stated in the first
part of this paragraph in conflict with those hereinbefore laid down regarding the province of
appellate courts on appeal from orders of trial courts granting new trials on the ground of
insufficiency of evidence to justif y the verdicts.
The rule that the trial court may not merely substitute its opinion or judgment for that of
the jury has no application where that court is satisfied that an injustice has been done andthat the evidence clearly preponderates against the verdict.
Appellant contends that the trial court granted a new trial for the sole reason that the signal
given by Wood constituted negligence on the part of defendant. Appellant complains that the
trial court failed to determine the other issues, and in particular that the court did not pass on
the question of contributory negligence. Appellant refers us to that sentence in section 3 of
the 1937 new trials and appeals act (Stats. of Nevada 1937, chap. 32, p. 54) which reads:
“The court or judge granting or refusing a new trial may state, in writing, generally, the
grounds upon which the same is granted or refused.” It is argued that although this provision
may not make it mandatory that the trial court state the grounds for granting or refusing a new
trial, yet if that court does state the grounds upon which its opinion is based, they are
all-embracing and the order must stand or fall upon those particular grounds. Citing 46 C. J.438, sec. 513, n. 14.
9, 10. In rendering its decision granting a new trial W KHORZHUFRXUWVDLGLQWHUDOLDWKDW XQGHUWKHWHUPVRIGHIHQGDQWVFRQWUDFWZLWKWKHVWDWHGHIHQGDQWDJUHHGWKDWLWZRXOG
ÐÐÐÐ59 Nev. 345, 369 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
the lower court said, inter alia, that under the terms of defendant's contract with the state,
defendant agreed that it would keep the road open for public traffic; that the signal given by
Mr. Wood, which he illustrated upon the stand, could not be construed as anything else but adirection to the parties in the car to proceed; that the evidence, to the mind of the court,
established the fact that the parties in the car proceeded with due caution, not at a rapid rate of
speed, “and that when they reached this point just before they stopped the car, the car slid
over the grade”; that in giving the signal Wood, who was charged with the duty of directing
traffic over the road, was guilty of negligence; that the parties driving the car had a right to
act upon that signal; “that it was in effect a declaration to them, ‘Proceed, the road is safe',
and that there was nothing in the character of the road at that particular time to warn them of
the situation, as they had been going over it for days”; that “while the court is reluctant to set
his judgment up against the judgment of the twelve men who were called as jurors, under the
decision of the State of Nevada when a motion is made upon the ground that the verdict is notsustained by the evidence it becomes the duty of the Court if he is not satisfied with the
verdict and believes the verdict is contrary to the evidence, to grant a new trial.” From the
foregoing it is clear that the ground upon which the new trial was granted was insufficiency of
the evidence to justify the verdict, and that Wood's signal was not the only reason for the trial
court's order. The causes for which a verdict may be vacated and a new trial granted are set
forth in the statute, and one of them is “Insufficiency of the evidence to justify a verdict or
other decision, or that it is against law.” The signal given by Wood was not a statutory
“cause” for granting the new trial; it was merely one of the facts which satisfied the trial court
that the evidence was insufficient to justify the verdict. That the court did not overlook the
question of contributory negligence is indicated by the statement WKDW³WKH\SURFHHGHGZLWK
ÐÐÐÐ59 Nev. 345, 370 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
that “they proceeded with due caution, not at a rapid rate of speed, and that when they
reached this point just before they stopped the car, the car slid over the grade.” We do not
understand the law to be that when a trial court, in granting a new trial upon the ground of insufficiency of the evidence to justify the verdict, states certain reasons for making its order
upon that ground, this court is limited to a consideration of such reasons only. 5 C. J. S.,
Appeal and Error, sec. 1464, pages 88-92. This court, in reviewing the order granting a new
trial, is not confined to the reasons given by the trial court in rendering its decision granting
such order. Schnittger v. Rose, 139 Cal. 656, 73 P. 449. Nor is this court bound by such
assigned reasons of the lower court. Tweedale et al. v. Barnett, 172 Cal. 271, 156 P. 483.
11, 12. While the opinion of the trial court on granting a new trial may be examined
(Schnittger v. Rose, supra), it is the order, not the opinion, from which the appeal is taken.
Clohan v. Kelso, 42 Cal. App. 67, 183 P. 349. One of the grounds for granting the motion in
the instant case was that the evidence was insufficient to sustain the verdict. If the motion was
properly granted on this ground, it is immaterial whether the trial court was in error in
granting the new trial on other grounds. 5 C. J. S., Appeal and Error, sec. 1464, pages 88-91.
13, 14. To appellant's contention that the testimony of plaintiff's own witnesses shows thathe was guilty of contributory negligence, it is a sufficient answer that in this case there was a
sharp conflict of evidence on every controlling factual issue, so the question of contributory
negligence was, in the first instance, a question for the jury. As was said by the supreme court
of Oklahoma in Shreve v. Cornell, 182 Okl. 193, 77 P.(2d) 1, 3: “In setting aside the verdict
for insufficiency of the evidence, the trial court does not commit an error of law unless there
is a total failure of evidence to support the cause or defense of the party in whose favor the
new trial is granted. A. & A. Taxicab Co. v. McCain [179 Okl. 492, 3
ÐÐÐÐ59 Nev. 345, 371 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
66 P.(2d) 17], supra. Here the evidence was conflicting. Therefore, the court's ruling thereon,
that the same was insufficient, involved no question of law.”
But appellant maintains that the evidence taken altogether shows so clearly that plaintiff
was in fact guilty of contributory negligence, that it was an abuse of discretion for the trial
court to set aside the verdict. In support of this contention appellant points to the testimony of
plaintiff's own witnesses tending to show the very bad condition of the road, one of said
witnesses testifying it was so bad that pedestrians would walk on the side of the hill rather
than on the road. Appellant claims further that the car was not stopped just before it left thehighway, but that the driver lost control and drove it over the embankment—this fact being
corroborated by Mr. Whiting's testimony that Mr. Putzell, just after the accident, said that he
told that fool Krasevac not to drive off that bank; that Wood with his bulldozer and scarifier
had just gone over the part of the road where the accident took place, so that plaintiff and his
companions had a road twelve feet wide to travel over, making it wholly unnecessary for
them to travel so near its outer edge; that plaintiff had equal knowledge with defendant of all
the facts and conditions obtaining at the time of the accident; and that the testimony of Mr.
Wood that he made his signal to Mr. Whiting, not to the three men in the car, is binding upon
plaintiff, as Mr. Wood was plaintiff's witness.
As against appellant's contention that plaintiff was clearly guilty of contributorynegligence, respondent points out that the condition of the road, like all roads under
construction, changed not only from day to day but at times even from hour to hour; that one
trip alone with the bulldozer could easily transform a safe roadway into an unsafe one; that
the passing of the bulldozer blade over the rough uneven surface smoothed it down so that it
looked solid and safe; that any knowledge plaintiff had as to road conditions before the
bulldozer leveled and smoothed off the surface would be LPPDWHULDOWKDWZKLOHWKHURDG
ÐÐÐÐ59 Nev. 345, 372 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
immaterial; that while the road near the outer edge appeared safe, it was unsafe in fact, with
nothing to warn plaintiff of the unsafe condition; that Krasevac and his companions would
not have driven over this part of the road if they had known of the soft shoulder, or if Wood
had not given them the signal; that Mr. Whiting, one of defendant's witnesses, testified that
running such equipment as that of Mr. Wood over the road would leave “fairly smooth
surface for the cars to travel on”; that plaintiff and his companions had been traveling over
this new highway several times a day for some two months, and would naturally expect the
road to be safe, unless they received a stop or warning signal; that plaintiff and hiscompanions were traveling near the outer edge of the road because the inner portion of it was
impassable; and that Putzell did not make any such statement about telling Krasevac not to
drive off the road as that attributed to him by Mr. Whiting.
While it is true that defendant offered substantial evidence tending to show that plaintiff
was guilty of contributory negligence, it is also true that plaintiff offered substantial evidence
tending to show that he was not guilty of such negligence; and after a careful review of all the
evidence we find ourselves unable to say, under the rules laid down in previous decisions of
this court, that by a clear preponderance of the evidence plaintiff was guilty of contributory
negligence, and that such negligence was clearly the, or a, proximate cause of plaintiff's
injuries.15, 16. With reference to appellant's contention that plaintiff is bound by the testimony of
Mr. Wood to the effect that his signal was made to Mr. Whiting and not to the three men in
the roadster: Respondent takes the position that Wood was an employee of defendant at the
time of the accident and that his actual hostility as a witness to plaintiff is made manifest by
his testimony, particularly where, in answer to the question, “What kind of signals did you
give?” he replied, “I gave a signal to Mr. Whiting to come through.” (The italics are WKH
FRXUWV
ÐÐÐÐ59 Nev. 345, 373 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
the court's.) If, however, it be conceded that plaintiff is bound by the testimony of Mr. Wood
that he made his signal to Mr. Whiting, it does not by any means follow that all other
evidence regarding this particular question must be disregarded. Plaintiff was entitled to show
by other independent competent testimony that the signal was made to the three men in the
car. 70 C. J. 795, n. 50; 70 C. J. 1156, sec. 1341. The trial court, in passing on the motion to
grant a new trial, had the right to consider the positive testimony of the other witnesses that
the signal was made to the three men in the car; the relative positions of Mr. Wood, Mr.
Whiting and said three men; the fact that the roadster, after stopping the first time, did not
start up again until Mr. Wood's signal was given; and the fact that no stop or warning signal
was given.Appellant maintains that it would be physically impossible for the accident to have
happened as was testified to by plaintiff and his witnesses. But this was a disputed question of
fact regarding which there was a substantial conflict in the evidence, and this court, after a
consideration of all the evidence concerning this particular question, is not prepared to say it
clearly preponderates in showing that the accident could not have happened as testified to by
plaintiff and his witnesses.
17. Finally, appellant strongly urges upon this court that there is no showing in the
evidence that defendant could or should have anticipated the accident as the natural and
probable consequence of Wood's signal. No one, of course, would contend that if defendant's
negligence was the proximate cause of plaintiff's injuries, such negligence was intentional;
but if Mr. Wood's signal was made to the men in the car, or was given in such manner aswould naturally lead them to believe that it was a signal for them to proceed, then, in the
absence of a stop or warning signal, it would seem clear that it was incumbent on the
defendant to know that the road was in such condition as to make it safe for plaintiff to travel
over it.
ÐÐÐÐ59 Nev. 345, 374 (1939) Nevada Rock & Sand Co. v. GrichÐÐÐÐ
As we are unable to say that the trial court abused its discretion in vacating the verdict and
granting a new trial, the order appealed from must be, and is hereby, affirmed.
____________
ÐÐÐÐ59 Nev. 374, 374 (1939) Dondero v. TurrillasÐÐÐÐ
FIORO NICOLA DONDERO and ZIDI DONDERO, as Executors of the last Will andTestament of Arcangelo Dondero, and EMILIA PARMIGIANO, Formerly Mrs. Emilia
Dondero, and DOMINICO PARMIGIANO, Her Husband, Appellants, v. FELIX
TURRILLAS and AGUEDA TURRILLAS, His Wif e, and JOHN DOE and RICHARD
1. Husband and Wife.The amendment to the conveyance act providing that conveyance by married woman should have same
effect as if she were unmarried and may be acknowledged in the same manner establishes a purpose to
emancipate married women from the encumbrances with which they had been surrounded in the disposition
of their separate property and evidenced intention to place married women on same footing, with same freeagency as to disposition of their separate property, as enjoyed by unmarried women in relation to their
property. Comp. Laws, secs. 1476, 3386-3388.
2. Husband and Wife.Amendment to conveyance act providing that conveyance by married woman should have same effect as
if she were unmarried, and might be acknowledged in the same manner, repealed by implication provisions
of prior statutes under which acknowledgment of conveyance by married woman of her separate property
was required to make a conveyance effective. Comp. Laws, secs. 1476, 3386-3388; Stats. 1909, c. 195,
secs. 5, 6.
3. Statutes.Repeals of statutes by implication are not favored.
4. Husband and Wife.An agreement by married woman to lease her separate SURSHUW\ZDVQRWYRLGEHFDXVHRIIDF W
ÐÐÐÐ59 Nev. 374, 376 (1939) Dondero v. TurrillasÐÐÐÐ
estate proceedings, notwithstanding fact that, under stipulation, the lower court was enabled to take judicial
notice of such proceedings.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Fioro Nicola Dondero and another, as executors of the last will and testament of
Arcangelo Dondero, deceased, and others, against Felix Turrillas and others for restitution of certain premises, wherein defendants answered and asked that the plaintiffs be required to
perform in accordance with an alleged agreement for a lease. From an adverse judgment and
order, the plaintiffs appeal. Affirmed.
Morley Griswold, George L. Vargas and George L. Sanford, for Appellants:
A married woman must acknowledge a lease of her separate property. The origin and
history of the necessity of acknowledgements on instruments by married women is found in 1
C. J., p. 761, sec. 25, and in 1 C. J. S., p. 787. As the Nevada statute was copied from
California, and copied with the construction of California law (Minden Butter Mfg. Co. v.
District Court, 57 Nev. 29, 56 P.(2d) 1209), we examine the California statutes upon this
particular point. The origin and history of the California law is exhaustively discussed in 1
Cal. Jur. at p. 270. Section 1093 of the Civil Code of California, as amended in 1895, is our
sec. 3388 (see also sec. 1476 N. C. L.). Section 3386 N. C. L. is California's Civil Code 178.
California's Civil Code sec. 1187 is identical with sec. 1476 N. C. L. The old California Civil
Code, sec. 1186 was our section 22 of the act of 1861, repealed in 1909. California's Civil
Code, sec. 1191 was our section 23 of our act of 1861. Thus we see that when the case of
Loupe v. Smith, 123 Cal. 491, 56 P. 254, was decided in 1899 on an 1894 contract, the
California Code provisions were the same as our present code provisions, and when the
Nevada amendment of ZDVSDVVHGLWZDVVXEVHTXHQWWRWKHGHFLVLRQLQWKH/RXSHY6PLWKFDVH
ÐÐÐÐ59 Nev. 374, 377 (1939) Dondero v. TurrillasÐÐÐÐ
1909 was passed, it was subsequent to the decision in the Loupe v. Smith case. A reading of
that case discloses that similar arguments were made to the California court that were made to
the trial court in the instant case, and that the supreme court of California disposed of the
question adversely to the ruling of the trial court in this case.
The estate of a deceased person, or executors thereof, cannot execute a lease of the
property of the estate by the act of but one of the two coexecutors, unless the other one be out
of the state or under a disability. Section 9632 N. C. L. The court will note that both of the
executors were present in Reno, Washoe County, Nevada, on January 15, 1938, at the time
the letter was written.
The letter itself did not purport to close the deal. It provides for the drawing and, of course,
the resultant signing of a lease. It clearly shows that the terms of the lease were to be worked
out by the attorney who was to prepare the lease. As the letter was not delivered, was not
addressed to Mr. Turrillas, was not signed by one of the principals of the Dondero estate, was
not signed by one of the coexecutors, it certainly cannot be considered to be a binding
agreement.
The lower court decreed specific performance of lease that was entirely different than was
understood by appellants in their proposed lease or as understood by the respondent in his
proposed lease, and not similar to the letter herein discussed.The letter is not a memorandum of a contract for a lease. It expresses no consideration for
the promise, and is not subscribed by the party by whom the lease or sale is to be made. Secs.
1527 and 1529 N. C. L.
W. M. Kearney and Rober Taylor Adams, for Respondents:
It clearly appears from appellants' brief that their contention that Mrs. Parmigiano's
agreement has no YDOLGLW\EHFDXVHKHUVLJQDWXUHZDVQRWDFNQRZOHGJHGEHIRUHDQRWDU\LV
EDVHGVROHO\DQGHQWLUHO\XSRQVHFWLRQVDQG1&/
ÐÐÐÐ59 Nev. 374, 378 (1939) Dondero v. TurrillasÐÐÐÐ
validity because her signature was not acknowledged before a notary is based solely and
entirely upon sections 3386, 3387, and 3388 N. C. L. Those three sections are no longer
effective or enforced, having been repealed by the amendments of 1909 to the act on
An analysis of the statutes of Nevada in the various fields of the law touching upon
married women reveal a constant tendency towards their emancipation. The amendments of
1909 to the act on conveyances completed the emancipation of married women with reference
to their dealings with their separate property, by dispensing with the necessity of an
acknowledgement by a married woman in order to give validity to her conveyances. If we areto give the effect intended to section 1476 N. C. L. and permit a married woman to deal with
her separate property as if she were unmarried, she cannot be restricted by the provisions of
sections 3386 to 3388 N. C. L. The ruling in the California case of Loupe v. Smith was
changed by statute in 1895.
The rule is that any requirement for joint activity of executors is entirely for the purpose of
securing the exercise of discretion and judgment of both executors. It is submitted that it is
obvious from the facts that there was activity by both executors in this case, and a joint
exercise of their discretion and judgment. We say that section 9632 N. C. L. does not require
nor is it intended to require any signature by an executor. Its requirement is only for activity
by both.
The evidence shows that the memorandum was delivered to Turrillas, even though such isnot a necessary requirement of law. It is apparent from the memorandum itself, as well as
from the testimony, that a final agreement had been reached, subject only to being void if the
money were not paid on Monday, and there is no question that the money was paid. The
contract was binding even though it was intended to have a written memorial of the contract
in final form. Restatement of Contracts, sec. 26.
ÐÐÐÐ59 Nev. 374, 379 (1939) Dondero v. TurrillasÐÐÐÐ
We agree with the trial court that the agreement was sufficiently clear and definite to be
specifically enforced. The terms are contained in two papers, one the memorandum, and the
other the old lease referred to in that memorandum. The lease decreed by the court expresses
the agreement of the parties.
The requirements of the statutes of frauds have been met. As shown by the evidence, Fioro
Dondero was acting for the estate, Zidi Dondero, and himself when he signed his name to the
memorandum. On the following Monday Zidi Dondero, knowing all the terms of the
agreement, ratified and agreed with it. The law is definitely settled that when one signs his
name to an instrument, parol evidence may be introduced to explain for whom he is acting;and when it appears that he was acting for himself and another, both are bound.
OPINION
By the Court, Orr, J.:
Appellants brought an action in the Second judicial district court of the state of Nevada,
asking restitution of certain premises hereinafter described. Respondents answered and asked
ÐÐÐÐ59 Nev. 374, 380 (1939) Dondero v. TurrillasÐÐÐÐ
years, the premises known as the Commercial Hotel, consisting of lots and buildings thereon,
at 207-209 N. Center street, Reno, Nevada. Subsequent to the making of the lease Arcangelo
Dondero and Emilia Dondero were divorced, and Arcangelo Dondero conveyed a one-half
interest in the premises to Emilia Dondero, and she now holds such half interest. Later Emilia
Dondero married Dominico Parmigiano; they are now husband and wife. Arcangelo Dondero
died in 1931 and left by will his undivided one-half of said property to his sons, Fioro and
Zidi, as a life estate for and during their lives, and then to their sons, if any. The will named
Fioro and Zidi as executors. They qualified and remain as executors of the estate.
The lease of 1926 was in 1931 assigned to The Northern, Inc., a corporation. And said
lease was in 1936 extended to February 1, 1938, a period of twenty months. The extension
was given by Fioro and Zidi Dondero, executors of the Arcangelo Dondero Estate, for aone-half interest, and by Emilia Dondero Parmigiano for the other one-half interest.
For some months just prior to the time the extension was to expire, appellants and
respondents discussed the question of a further renewal or a new lease. As the time for the
expiration drew near, Turrillas became concerned and was insistent that an agreement be
reached or a renewal refused, and in case of a refusal, that such be made in sufficient time to
allow him to remove his fixtures and other property from the premises.
On the 15th day of January 1938 Zidi Dondero and Mrs. Parmigiano talked to Turrillas,
and later in the day Mrs. Parmigiano telephoned Fioro Dondero, who is a resident of Carson
City, to come to Reno. Upon the arrival of Fioro in Reno he met his mother and they went to
the home of Zidi and had a discussion with him. Later that evening Fioro and Mrs.
Parmigiano went to the premises occupied by Turrillas, at which time the question of the new
lease was discussed. As a result of the conference, a certain writing was made by Fioro'RQGHURDQGVL JQHGE\)LRURDQG0UV
ÐÐÐÐ59 Nev. 374, 381 (1939) Dondero v. TurrillasÐÐÐÐ
Dondero and signed by Fioro and Mrs. Parmigiano, and this writing was delivered to Turrillas
with the understanding that the said writing was to be, on Monday, the 17th, delivered to
Morley Griswold. The agreement is as follows:
“January 15, 1938.
“Morley Griswold
“Attorney at Law
“Reno, Nevada.
“Dear Morley:
“We have reached an agreement on this lease of the building at 207 and 209 North Center
Street and the one story bldg in the rear, for a term of ten years, beginning on February 1,
1938. The rental shall be at the rate of $350.00 per month for the first five years and $400.00
per month for the last five years of the term of the lease. Felix Turrillas the party who is to
rent the premises is to pay you on Monday January 17, 1937 the sum of Nineteen Hundred
fifty & no/100 ($1950.00) Dollars. Of which sum $350.00) is to apply as rental for the month
of February 1938 and sixteen Hundred & no/100 ($1600.00) is to apply as security of thelease and is to be applied to the last four months of the term of the lease if the terms and
provision of the lease are faithfully performed and if not faithfully performed the said sum of
sixteen hundred dollars shall be forfeited to the lessors. Some of the provisions of the lease
are to be as follows. Felix Turrillas is to make permenant improvements to the premises
during the next few months; to include a new front and removal of the posts in the ground
floor and place substantial beams and to raise the ceiling to its former level to the extent of
about 2 to 3 inches. In other words, at the time some of the old posts in the ground floor were
removed the ceiling dropped at the rear end of the building to the extent of about 2 to 3
inches. The improvements are to be made in in good substantial and ZRUNPDQOLNHPDQQHU
S ODQVWREHPDGHE\DFHUWLILHGDUFKLWHFWDSSURYHG
ÐÐÐÐ59 Nev. 374, 382 (1939) Dondero v. TurrillasÐÐÐÐ
workman like manner; plans to be made by a certified architect & approved. Felix is to close
the deal Monday, January 17, 1937 by placing in your hands the ($1950.00) above specified.
If this sum is not paid then the option is void and of no value. You draw up the lease papers
on about the same order of the old lease, the one made by my father and mother a copy of
which I will mail to you special delivery Sunday January 16, 1938. Felix has agreed to makeimprovements at his own expense and therefor any such improvements are to remain the
property of the lessors. We are to be privileged to place a non liability notice on the building
& etc. My mother and Felix Turrillas will be at your office on Monday January 17, 1938 to
close the deal. Trusting I have made this matter clear I remain
The testimony further discloses that Fioro, at the time of signing the memorandum,
represented that he was acting for his brother and his coexecutor, Zidi. This was testified to
by Felix Turrillas, Frank Normandy, and Louis Sarasua, and they also testified that the
statement was made in response to a query made by Turrillas as to the whereabouts of Zidi.
The testimony is to the effect that upon the making of such inquiry Fioro produced from hispocket a writing which he stated to be a power of attorney from his brother Zidi. The paper
was read by Turrillas and returned to Fioro. The witnesses Normandy and Sarasua did not
read the writing, but heard the statements of Fioro. Turrillas testified that he had read the
writing and that it stated: “Whatever you, Fioro Dondero, and my mother, Mrs Parmigiano,
agree with Felix Turrillas is O. K.” Turrillas testified that there were two copies of the
memorandum hereinabove set out, one was handed to Turrillas, and the other was retained by
Fioro, to be by him sent to Mr. Griswold.
ÐÐÐÐ59 Nev. 374, 383 (1939) Dondero v. TurrillasÐÐÐÐ
On Monday, January 17, 1938, Turrillas, Zidi Dondero, and Mrs. Parmigiano met at the
office of Mr. Griswold and had a conference with him, at which time the question of drawing
up a form of lease was discussed. Mr. Griswold testified that he at the time had in his
possession a letter from Fioro Dondero, he, Fioro, not being present; which said letter,
according to the memory of Mr. Griswold, gave instructions as to Fioro's desires in the
preparation of a form of lease. The $1,950 mentioned in the memorandum was by Turrillas
delivered to a stenographer in Griswold's office on Monday morning January 17, 1938. Mr.
Griswold, being busy at the time, informed the parties that he would draw a lease within afew days and would advise them when the draft was ready.
About four weeks later Turrillas received a form of lease from Griswold, which he,
Turrillas, refused to sign because he did not believe it conformed to the memorandum and the
terms contained in the old lease and conversations had with Fioro and Zidi Dondero and Mrs.
Parmigiano. Later Mr. Kearney, acting for Turrillas, prepared a form of lease, which was
submitted to appellants and which they refused to sign.
In their opening brief appellants present eleven points. Respondent, in his reply, condenses
these to six. We like the more ultimate compression of the issues into the three points
appellants have made in their closing brief, and will endeavor to dispose of the questions as
therein stated.First it is contended by appellants that a married woman must acknowledge her agreement
to lease her separate property.
The first legislative enactment in Nevada touching upon acknowledgments by married
women was in 1861, and reads as follows:
“Section 1. Conveyances of lands, or of any estate or interest therein, may be made by
deed, signed by the person from whom the estate or interest is intended to SDVVEHLQJRI ODZIXODJHRUE\KLVODZIXODJHQWRUDWWRUQH\DQGDFNQRZOHGJHGRUSURYHGDQGUHFRUGHG
ÐÐÐÐ59 Nev. 374, 384 (1939) Dondero v. TurrillasÐÐÐÐ
pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved,
and recorded, as hereinafter directed.
“Sec. 2. A husband and wife may, by their joint deed, convey the real estate of the wife in
like manner as she might do by her separate deed, if she were unmarried.
* * * * *
“Sec. 19. A married woman may convey any of her real estate by any conveyance thereof,
executed and acknowledged by herself and her husband, and certified, in the manner
hereinafter provided, by the proper officer taking the acknowledgement.
“Sec. 20. No covenant, express or implied, in any such conveyance, shall bind such
married woman or her heirs, except so far as may be necessary effectually to convey, from
such married woman and her heirs, all her rights and interest expressed to be conveyed in
such conveyance.
“Sec. 21. Any officer authorized by this act to take the proof or acknowledgement of any
conveyance whereby any real estate is conveyed, or may be affected, may take and certify the
acknowledgment of a married woman to any such conveyance of real estate.
“Sec. 22. No such acknowledgment shall be taken, unless such married woman shall be
personally known, to the officer taking the same, to be the person whose name is subscribed
to such conveyance as a party thereto, or shall be proved to be such by a credible witness; nor
unless such married woman shall be made acquainted with the contents of such conveyance,
and shall acknowledge on an examination, apart from and without the hearing of her husband,that she executed the same freely and voluntarily, without fear or compulsion, or undue
influence of her said husband, and that she does not wish to retract the execution of the same.
“Sec. 23. The certificate shall be in the form heretofore given, and shall set forth that such
married woman ZDVSHUVRQDOO\NQRZQWRWKHRIILFHUJUDQWLQJWKHVDPHWREHWKHSHUVRQ
recognized a disability on the part of a married woman, and plainly evidences an intention to
place married women on the same footing, with the same free agency as to the disposition of
her separate property, as enjoyed by unmarried women in relation to their property. The
legislation was responsive to and in accordance with an enlightened public opinion
recognizing the intelligence and independence of married women, discarding the view
theretofore existing that by taking the marriage vow a married woman lost much of theintelligence and all of the independence which had been hers prior to that time; or, if she did
not lose those attributes, they became suspended during coverture. An examination of the act
of 1909 as amended clearly demonstrates that the object was to completely emancipate
married women in the disposition of their property, and in reading that act WKHSXUSRVHDQG
UHVXOWVDUHFOHDU
ÐÐÐÐ59 Nev. 374, 387 (1939) Dondero v. TurrillasÐÐÐÐ
the purpose and results are clear. But, say appellants, you cannot resolve this question alone
on the act of 1909 as amended; there still exist sections 3386 to 3388 N. C. L. which can and
should be read in connection with the amendatory act of 1909, and if those sections be so read
and the necessary meaning given them, then a married woman would be required to
acknowledge her conveyance in order to give it effect. In urging this construction appellants
rely strongly upon the case of Loupe v. Smith, 123 Cal. 491, 56 P. 254. The California law
prior to 1891 contained the usual so-called safeguards relative to conveyances by married
women. In 1891 certain amendments were made. Stats. 1891, p. 137. Section 1186, providing
for a separate examination, was repealed; and section 1191, providing the form of the
certificate, was repealed; section 1093 was left, and reads as follows: “No estate in the realproperty of a married woman passes by any grant purporting to be executed or acknowledged
by her, unless the grant or instrument is acknowledged by her in the manner prescribed by
sections eleven hundred and eighty-six and eleven hundred and ninety-one.” Section 1187
read as follows: “A conveyance by a married woman has the same effect as if she were
unmarried, and may be acknowledged in the same manner, except as mentioned in the last
section; but such conveyance has no validity until so acknowledged.” The California
legislature amputated from section 1187 the words: “except as mentioned in the last section;
but such conveyance has no validity unless so acknowledged.” The California court
amputated from section 1093 the words: “in the manner prescribed by sections eleven
hundred and eighty-six and eleven hundred and ninety-one.” And the court then took the
remaining portions of the two sections, read them together, and found a meaning therein.
Appellants ask us to bring over from the act of 1873 section 3386 to 3388 and read them in
connection with section 1476 N. C. L., harmonize them, and give them HIIHFW
ÐÐÐÐ59 Nev. 374, 388 (1939) Dondero v. TurrillasÐÐÐÐ
effect. We could do this and a meaning would be found. Our operation, however, would be by
grafting rather than amputation. But we conclude that the grafted sections would sap from the
1909 act the legislative intent and purpose and leave said act, in part at least, as a judicially
constructed reversion to the antiquated theory of the incompetence of married women. If we
give the effect to the different sections appellants contend for, there remains a requirement of
a mere form of acknowledgment by married women. What purpose could be accomplished by
such construction? It would furnish none of the protection theretofore sought to be afforded,
namely the prevention of compulsion or receiving the husband's consent. It would do violence
to the plain intent of section 2 of the act of 1909, in that the conveyance of a married woman
would not have the same effect as that of an unmarried woman until she had acknowledged it,
something which the legislature did not say and clearly something which it did not intend.
Appellants contend that in adopting their theory we would not change the effect of the
conveyance, but merely the form. We think the equality intended by the legislature went both
to form and effect.
2. Many cases have been cited by respondents wherein language similar to that used insection 2 of the act of 1909 has been held to impliedly repeal any requirement for an
acknowledgment by a married woman. The following cases so hold, and while in some
instances the statutes are different, the reasoning remains the same and supports the
contention of respondents that the act of 1909 as amended repeals by implication sections
3386, 3387, and 3388 N. C. L., and such is our opinion: 1 C. J. 769, par. 41; 1 C. J. 825, par.
151; Criscoe v. Hambrick, 47 Ark. 235, 1 S. W. 150; Roberts et ux. v. Wilcoxson & Rose, 36
Ark. 355; Miller v. Fisher et al., 1 Ariz. 232, 25 P. 651; Charauleau v. Woffenden, 1 Ariz.
243, 25 P. 652; Knight v. Lawrence, 19 Colo. 425, 36 P. 242; Stewart v. Weiser /XPEHU&R
HWDO
ÐÐÐÐ59 Nev. 374, 389 (1939) Dondero v. TurrillasÐÐÐÐ
Lumber Co. et al., 21 Idaho 340, 121 P. 775; Knudsen v. Lythman, 33 Idaho 794, 200 P. 130,
131; Knight v. Paxton, 124 U. S. 552, 8 S. Ct. 592, 31 L. Ed. 518; Munger v. Baldridge, 41
Kan. 236, 21 P. 159, 13 Am. St. Rep. 273; Morris v. Linton, 61 Neb. 537, 85 N. W. 565;
Linton v. Cooper, 53 Neb. 400, 73 N. W. 731; Adkins v. Arnold, 32 Okl. 167, 121 P. 186;
Hayes v. Frey et al., 54 Wis. 503, 11 N. W. 695; Jenkins v. Pittsburg & C. R. Co., 210 Pa.
134, 59 A.823; Bailey v. Cooney et ux., 284 Pa. 508, 131 A. 480; Ball v. Bullard, 52 Barb.,N. Y., 141.
3-5. In reaching the above conclusion we have given due attention to the rule that repeals
by implication are not favored. But to our minds there is such inconsistency and repugnancy
between the statutes as to preclude the presumption against an intention to repeal. As has
been said, this inconsistency and repugnancy arises between the plain intent of the legislature
to strike out all impediments to as free exercise of the right to convey by a married woman as
if she were unmarried, and the retention of an impediment if sections 3386 to 3388 N. C. L.
are given effect. Since 1909 the conveyance by a married woman of her separate property has
not required an acknowledgment to make it effective.
Zidi Dondero, one of the executors, did not sign the memorandum heretofore mentioned.
Appellants contend that section 9632 N. C. L. required the signature of both of the executors
in order to make the memorandum effective. Said section reads as follows: “When all thepersons named as executors or executrixes shall not be appointed by the court, such as shall
be appointed shall have the same authority to perform every act and discharge every trust
required by the will, and their acts shall be effectual for every purpose as if all had been
appointed, and should act together. When there are two executors or administrators the acts of
one alone shall be valid if the other is absent from the state, or IRUDQ\FDXVHLVODERULQJ XQGHUDQ\OHJDOGLVDELOLW\DQGZKHQWKHUHDUHPRUHWKDQWZ RWKHDFWRIDPDMRULW\VKDOO
EHVXIILFLHQW´
ÐÐÐÐ59 Nev. 374, 390 (1939) Dondero v. TurrillasÐÐÐÐ
for any cause is laboring under any legal disability, and when there are more than two, the act
of a majority shall be sufficient.”
It is conceded that at the time of the execution of the memorandum Zidi Dondero, one of
the executors, was present in the State of Nevada and was not at the time under disability.
6. We believe the rule to be that the requirement in the statute for joint activity means the
joint exercise of discretion and judgment; and while such statute forbids the delegation by one
coexecutor to another of such power, when a coexecutor has exercised such discretion and
judgment in a given matter, he can authorize his coexecutor to perform acts necessary to carrythe purpose determined upon into effect. The following cases sustain that view: Nelson v.
Carrington, 4 Munf. 332, 18 Va. 332, 6 Am. Dec. 519; Ward v. Koenig, 106 Md. 433, 67 A.
236; Becker v. Nat. Bank, Tex. Civ. App., 286 S. W. 889.
7. The trial court found that Zidi Dondero was an active participant in the negotiations
leading up to the execution of the memorandum; that is, that he had on different occasions
talked to Turrillas, and that on the day that the memorandum was signed, Mrs. Parmigiano
telephoned to Carson City asking Fioro to come to Reno for the purpose of consultation
relative to the execution of a lease; and that upon the arrival of Fioro in Reno, he, Fioro, and
Mrs Parmigiano went to the home of Zidi and had a conversation with him, later going to the
Northern for the purpose of conferring with Turrillas; that at that time Fioro represented to
Turrillas that he was acting for and on behalf of Zidi. Also the trial court found—and there is
in the record substantial evidence to sustain such finding—that Zidi had exercised the
judgment and discretion vested in him by the statute, that he was aware of the proposals
which had been made, and that in signing the memorandum Fioro acted not only for himself
but for Zidi and for the estate.
8. Appellants complain as to the character of the HYLGHQFHSURGXFHGWRHVWDEOLVKWKLV
I LQGLQJEXWZHVHHQRYDOLGUHDVRQZK\WKHFRQVHQWRIDQH[HFXWRUQRWVLJQLQJFDQQRWEH
ÐÐÐÐ59 Nev. 374, 391 (1939) Dondero v. TurrillasÐÐÐÐ
evidence produced to establish this finding, but we see no valid reason why the consent of an
executor not signing cannot be shown by means other than his actual signature to a document.
Proof of participation and consent in the making of the agreement, and the delegation of
authority to sign for him, can be shown and demonstrated by acts and conduct, without
recourse to an instrument in writing. True, the latter method is more satisfactory, being
instantly apparent; but proof of the exercise of judgment and participation in and consent to
the contract is the ultimate question to be determined, and competent proof establishing such
fact is to be considered, though it may not be the most concrete and conclusive that could
have been made available.
Appellants draw attention to the similarity of the California statute and the Nevada statute
before it was amended to read in its present form. Formerly the Nevada statute authorized the
delegation of authority if given under seal, and the california statute authorizes the delegation
of power from one executor to another in writing. In the amendment of the Nevada law the
legislature dropped the provision for the delegation of power, and appellants contend that the
significance of such omission in the amended statute is that the law of Nevada now requires
coexecutors, under a situation as exists in this case, to act in all particulars. However, we
believe that the position of appellants is too inclusive; they are correct in their assertion that
both must act, but that requirement, as we have pointed out, is confined to the exercise of
judgment and discretion. In the case of Roe v. Smith, 42 Misc. 89, 85 N. Y. S. 527, the head
note reads: “Where two executors were authorized by will to sell the lands of the estate astrustees, a written, unsealed agreement, purporting to be that of such executors, signed by one
only of them, who had been authorized by the other executor to act for him in signing the
contract, is enforceable.”
In the opinion the court states:
“The one being authorized by the other, his signing ELQGVERWKWKHFRQWUDFWQRWEHLQJ
XQGHUVHDO
ÐÐÐÐ59 Nev. 374, 392 (1939) Dondero v. TurrillasÐÐÐÐ
binds both, the contract not being under seal. It is the same as the case of an agent signing his
own name instead of that of his principal to an executory contract; the principal is bound, and
oral evidence to prove that he authorized the agent to sign is not excluded by the statute of
frauds. Briggs v. Partridge, 64 N. Y. 357, 21 Am. Rep. 617.
“The rule that delegated authority involving the exercise of judgment and discretion cannot
be redelegated is not in the way. The trust authority to agree to sell was not delegated; no
exercise of judgment and discretion was delegated; only the formal signing was delegated
after the terms of the contract had been agreed upon.”
See, also, Mobley v. Mobley, 149 Md. 401, 131 A. 770; Mechem on Agency (2d ed.), par.
315. I.
9. Appellants next contend that the letter to Morley Griswold as their attorney, signed byMrs. Parmigiano and Fioro Dondero, is not a contract between them and the third party, who
did not sign. The parties had been negotiating for some time concerning a new lease, and, as
hereinbefore stated, on the evening of January 15, 1938, Fioro was acting for Zidi. The
memorandum was sufficient without the signature of Turrillas. The letter and its reference to
the old lease contains the terms of the bargain. Williston on Contracts, p. 1664, states: “So a
letter written by the party to be charged to his own agent, or to any other third person, is
sufficient if it contains the terms of the bargain.” Citing many cases and Restatement of
Contracts, par. 209, illustration 1.
The reference made to the restatement reads:
“It is not essential to the validity of a memorandum under the statute that the writing shall
have been made as a memorandum of a contract.“Illustration: 1. A and B enter into an oral contract by which A promises to sell and B
promises to buy a specific automobile for $2,000. A writes and signs a letter to his friend C,
containing an accurate statement RIWKHFRQWUDFWZKLFKKHKDVPDGH
ÐÐÐÐ59 Nev. 374, 393 (1939) Dondero v. TurrillasÐÐÐÐ
of the contract which he has made. The letter is a sufficient memorandum to charge A.”10. As indicated above, the writing need not be made to the other party to constitute a
memorandum. The general rule is stated in 27 C. J. 301, par 386, as follows: “A letter or
telegram sufficient as to contents and signature to constitute a memorandum satisfying the
statute of frauds, or a part of such memorandum if more than one writing is involved, is
adequate for this purpose, even though it is not intended for, addressed, delivered or known to
the other contracting party. Where the party sought to be charged has admitted the contract in
writing over his signature, the statute is complied with, no matter to whom the writing may
have been addressed. The writing is equally corroborative whether it passes between the
parties to the contract or between one of them and another person.”
In the case of Riddle State Bank v. Link, et al., 78 Or. 498, 153 P. 1192, the name of onewas signed to an agreement of purchase; two others were in fact purchasers with him, but
were not mentioned in the agreement. Parol evidence was held admissible to show that the
other two were parties. At page 1193 of 153 P. the court stated: “The parol evidence tending
to show that the written contract executed by Link was in fact the contract of all three, was
properly admitted.”
See, also, Smith v. Campbell, 85 Or. 420, 166 P. 546; Blomquist v. Jennings, 119 Or. 691,
250 P. 1101, 1103; Lewis v. Aronow, 77 Mont. 348, 250 P. 146, 148.
It is contended by appellants, basing their statement upon the diverse terms of a proposed
lease furnished by Mr. Griswold, acting for appellants, and a proposed lease furnished by Mr.
Kearney, acting for respondents, that the court found a lease differing in terms from the
understanding had by either of the parties. Doubtless the terms incorporated by Mr. Griswold
and Mr. Kearney in their proposed leases were influenced by statements made to them by
their clients. But the court found the terms of the lease which it ordered, from an XQELDVHG FRQVLGHUDWLRQRIWKHHYLGHQFHSUHVHQWHG
ÐÐÐÐ59 Nev. 374, 394 (1939) Dondero v. TurrillasÐÐÐÐ
unbiased consideration of the evidence presented. All the terms were contained in the
memorandum and by reference to the old lease.
It is contended also that the memorandum was merely preliminary and that it was
contemplated by the parties that something yet was to be done, that further conferences were
to be had. But the trial court further found from substantial evidence that on the evening of
January 15, 1938, the parties reached an agreement, and that the essential terms thereof were
embodied in the memorandum and in the reference to the old lease.
Much of their controversy revolves about the claim of appellants that respondents were to
place in the hotel a heating system, and it is also deducible from the evidence that this heating
system would cost in the neighborhood of $10,000. It is rather surprising to us, as it must
have been to the trial court, that, if this was to have been one of the terms, it was overlooked
in the provisions incorporated in the memorandum. That would have been one of the most
important items under consideration, involving as it did such a large sum, and would have
been foremost in the minds of Fioro and Mrs. Parmigiano that evening.And, again, as to the conference had in Mr. Griswold's office, the trial court in its decision
makes the very pertinent observation that the evidence does not disclose a serious
disagreement at that time, and that the conference was on a friendly basis. Certainly if an
expenditure such as the installation of a heating plant was insisted upon, it could well be
expected that the relations at the said meeting would not have been so harmonious.
The memorandum and its reference to the old lease is, to our minds, sufficient to satisfy
the statute of frauds. Sections 1529 and 1530 N. C. L., the Nevada statute of frauds, read:
Ҥ 1529. Every contract for the leasing for a longer period than one year, or for the sale of
any lands, or any interest in lands, shall be void, unless the contract, RUVRPHQRWHRU
evidence that employee's injury was caused by negligence of fellow employee supported presumption of
employers' negligence, arising from statute, since under statute employer was responsible for negligence of
coemployee. Comp. Laws, sec. 2680 et seq.
5. Workmen's Compensation.In employee's action for injury against employer who declined to come within compensation act, whether
one whose negligence caused employee's injury was an employee of defendants, so that defendants would
be responsible for such negligence, would be determined by common-law rule, and not by definition of “employee” contained in compensation act. Comp. Laws, sec. 2688.
6. Master and Servant.While contract of service must be supported by lawful consideration, it is not essential that there be a
promise of payment of wages, and hence employer may be liable for employee's wrongful act,
notwithstanding employee was serving without pay.
ÐÐÐÐ59 Nev. 396, 397 (1939) Reeder v. PincoliniÐÐÐÐ
7. Workmen's Compensation.
In action by butcher against employers who had declined to come within compensation
act for severe cut on finger necessitating amputation at second joint, presumptions of
employers' negligence and that their negligence was proximate cause of his injury,
arising from statute, together with plaintiff's testimony that injury occurred as result of
negligent manner in which 14-year-old boy, who was also employed by defendant,
handed him a steak knife, constituted substantial evidence supporting judgment for
plaintiff. Comp. Laws, sec. 2680.
8. Damages.
$1,000 to butcher for cut on right index finger severing tendons and necessitatingamputation at second joint held not excessive.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by William Reeder against Bruno Pincolini and Guido Pincolini for injury
sustained by plaintiff in course of his employment by defendants. From judgment for plaintiff
and from order denying defendants' motion for new trial, defendants appeal. Affirmed.
W. M. Kearney and Robert Taylor Adams, for Appellants:
It clearly appears from the record that the sole cause of plaintiff's injury was his own
negligence. The testimony shows this, and it is admitted by the trial court in its oral opinionthat there was only a presumption of negligence of the appellants because of the statute. The
testimony is sufficient to rebut the presumption.
It is the theory of both appellants and respondents in this case that the statute does not
impose an absolute liability on the employer, but imposes a liability based on negligence,
there being in certain instances, such as this case, a rebuttable presumption that the employer
was negligent. We feel that the trial court misapprehended the effect of the statute.
The evidence shows that Elmer Pincolini was not entitled to recover any moneys by reason
ÐÐÐÐ59 Nev. 396, 398 (1939) Reeder v. PincoliniÐÐÐÐ
case of State v. Nevada Industrial Commission, 55 Nev. 343, 34 P.(2d) 408, this court stated
that inasmuch as the petitioner would not have been entitled to enforce payment for his
services from his alleged employer, the court concluded that a contract of hire did not exist
and that the petitioner was not an employee under the act.
Even if the court had made a finding that Elmer was an employee, which it did not, such is
entirely irrelevant unless it also appears that there was a casual connection between annegligence of the coemployee and the injury suffered by the respondent. And it has appeared
by positive testimony in this case that no negligence on the part of Elmer or the appellants,
with reference to the injury itself, was shown.
Under the requirements of the law, legal damages have not been proved at all, and
certainly not to the extent alleged and allowed.
Harold O. Taber and Bruce R. Thompson, for Respondent:
Respondent has established beyond all possibility of successful contradiction the following
essential elements of his case:
(1) The relation of employer and employee;
(2) Injury to respondent arising out of and in the course of the employment;
(3) Damages as a result of the injury;
(4) Rejection of the Nevada Industrial Insurance Act by the appellants.
Having alleged and proved these facts, respondent is entitled to the benefit of the statutory
presumptions provided for by sec. 2680 N. C. L., which are: (1) That the appellants were
negligent; and (2) that the negligence of appellants was the proximate cause of the injury.
Respondent asserts that the statutory presumptions attach to every act for which the
employer may be legally liable, and may be availed of by an employee injured by the act of a
coemployee. As Elmer Pincolini is not claiming benefits as an employee under the Nevada,QGXVWULDO,QVXUDQFH$FWWKHGHILQLWLRQRIHPSOR\HHLQWKDWDFWGRHVQRWDSSO\WRKLP
ÐÐÐÐ59 Nev. 396, 399 (1939) Reeder v. PincoliniÐÐÐÐ
Industrial Insurance Act, the definition of employee in that act does not apply to him. Under
the common law definition of employee, it is unnecessary that a person in service be paid
compensation in order that his master be responsible for his tortious acts. The statutory
presumptions are a material part of respondent's cause of action against appellants for their
negligence and lack of ordinary care in employing Elmer Pincolini, a boy fourteen years old,
without experience in the use of butcher shop equipment, whose incompetent and unskillful
conduct resulted in respondent's injury.
The testimony of respondent's witnesses and the statutory presumptions of negligence andproximate cause are substantial evidence supporting the judgment, and the supreme court will
not disturb the decision of the trial court.
Respondent's pain, suffering and loss of dexterity have not been overcompensated.
Chancellor v. Hines Motor Co. (Mont.), 69 P. (2d) 764.
OPINION
By the Court, Orr, J.:
This is an appeal from a judgment awarding respondent $1,000 as damages for an injury
sustained by him in the course of his employment by appellants, also from an order denying
appellants' motion for a new trial.Appellants were the proprietors of an establishment known as the Reno Public Market,
situate in the city of Reno, Nevada. Respondent was employed in the said establishment as a
butcher and as a clerk. His duties were to wait on customers in both the grocery and meat
departments of the store and to assist in keeping the show case stocked with cut steaks.
On the 25th day of August 1936 respondent was engaged in cutting steaks for the show
case. He finished cutting one piece of meat, took it to the ice box, DQGSLFNHGXSDQRWKHU
ÐÐÐÐ59 Nev. 396, 400 (1939) Reeder v. PincoliniÐÐÐÐ
and picked up another. When respondent left for the ice box he laid the steak knife he had
been using on the meat block, and upon his return he noticed it was not there, but was being
used by Elmer Pincolini, a boy of the age of about fourteen years. Elmer was using the knife
to bone meat, which said use was contrary to instructions issued by appellants, special knives
being provided for that purpose. Respondent demanded the knife from the boy. Elmer handed
the knife to respondent, and as respondent took hold of it the boy drew it back, which resulted
in respondent sustaining a deep cut on his right index finger. As a result of said injury,
respondent's finger became stiff, the tendons having been severed. In February 1937, upon the
advice of a surgeon, respondent had the finger amputated at the second joint. Respondent
testified that his efficiency as a butcher had been impaired by reason of the loss of the two
joints of his finger, and that he had suffered pain as a result of the injury.
In this case appellants are deemed to have rejected the provisions of the Nevada industrial
insurance act, Comp. Laws, sec. 2680 et seq., by reason of their failure to give the Nevada
industrial commission a notice in writing of their election to accept the act.
Appellants base most of their argument upon the assumption that the trial court accepted
ÐÐÐÐ59 Nev. 396, 402 (1939) Reeder v. PincoliniÐÐÐÐ
growing out of the negligence of the employer, and that such negligence was the proximate
cause of the injury; and in such case the burden of proof shall rest upon the employer to rebutthe presumption of negligence.”
1. It will be noted that by reason of the statute respondent entered the case fortified by
certain presumptions arising therefrom, to wit: That the appellants were negligent; and that
the negligence of the appellants was the proximate cause of the injury to respondent.
All that was necessary for respondent to allege and prove were the following essential
elements of this case:
(1) The relation of employer and employee;
(2) Injury to respondent arising out of and in the course of his employment;
(3) Damages as the result of the injury:
(4) Rejection of the Nevada industrial insurance act by appellants.2. Much of the argument of appellants is concerned with the assertion that the
presumption of negligence arising from the statute is not absolute but places the burden on
the employer of rebutting such presumption. Respondent admits such to be the force and
effect of the statute, and we take the same view. Hunter v. Colfax Consolidated Coal Co., 175
Iowa 245, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917d, 15 Ann. Cas. 1917e, 803.
3, 4. Appellants contend that the trial court made its determination of this case in favor of
respondent on the mistaken theory that the presumptions arising from the statute gave
respondent an absolute right to recover, irrespective of whether or not the employer was
negligent. In this we think appellants are in error. Appellants base their contention upon the
statement of the trial court to the effect that aside from the presumptions arising from the
statute respondent had not produced evidence showing negligence on the part of appellants.We say that aside from the presumptions arising from the statute respondent was under no
duty to produce evidence showing negligence on the part of appellants, XQOHVVWKHHYLGHQFH SURGXFHGLQWKHFDVHUHEXWWHGWKHSUHVXPSWLRQV
ÐÐÐÐ59 Nev. 396, 403 (1939) Reeder v. PincoliniÐÐÐÐ
unless the evidence produced in the case rebutted the presumptions. The trial court did notsay that the evidence produced by respondent, considered together with the presumptions
arising from the statute, which are evidence in his favor, does not constitute substantial
evidence supporting the judgment. But whether or not the trial court had such an idea in mind
we have no difficulty in so deciding. With the rejection of the testimony offered in support of
appellant's theory, the presumptions stand unrebutted and are supported by respondent's
testimony. Our consideration of the evidence leads to the conclusion that respondent's
testimony standing alone shows negligence on the part of appellants. Elmer Pincolini was
employed by appellants and was a coemployee of respondent. Section 2680 N. C. L., in
addition to raising the presumptions heretofore considered, takes from the employer the
defenses of contributory negligence, assumption of risk, and the fellow servant doctrine. The
negligence of a coemployee is attributable to the employer and the employer is responsible
therefor. This must be so, unless the great majority of employees are to be left without the
benefit of the statute, for the reason that by far the largest employers of labor, corporations,act only through their employees, and negligence, other than that of the injured employee,
would necessarily be that of a coemployee. O'Brien v. Las Vegas & T. R. Co., 9 Cir., 242 F.
850; Balen v. Colfax Consolidated Coal Co., 183 Iowa, 1198, 168 N. W. 246; Meyer v.
Postal Telegraph-Cable Co., 196 Iowa, 165, 194 N. W. 273.
5, 6. Appellants seek to have the question of whether Elmer Pincolini was an employee of
appellants determined by the definition contained in section 2688 N. C. L., and contend that it
was not proved that the boy was entitled to recover any money “by reason of employment on
an express or implied contract of hire.” The boy is not claiming benefits under the act and the
definition does not apply to him. Measured by the common ODZUXOHWKHHYLGHQ FHFOHDUO\
HVWDEOLVKHV(OPHUWRKDYHEHHQDQHPSOR\HH
ÐÐÐÐ59 Nev. 396, 404 (1939) Reeder v. PincoliniÐÐÐÐ
law rule, the evidence clearly establishes Elmer to have been an employee.
“The receipt of a stated wage is not essential to create the relation of master and servant,
and it may exist, although the servant neither expects, nor is entitled to, any compensation.”
39 C. J. 36, sec. 6.
“While the contract of service must be supported by a lawful consideration, it is notessential that there be a promise of payment of wages. Although no compensation be paid the
relation of master and servant may yet exist. Hence the employer may be liable for the
employee's wrongful act, notwithstanding the fact that the employee was serving without
pay.” 18 R. C. L. 495.
“It is not necessary that a formal or express employment on behalf of the master should
exist, or that compensation should be paid by or expected from him. It is enough to render the
master liable if the person causing the injury was in fact rendering service for him by his
consent, express or implied.” Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N. W.
144, 146.
See, also, Napier v. Patterson, 198 Iowa, 257, 196 N. W. 73; Haluptzok v. Great Northern
Ry., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739.
7. We think a casual connection between the employment of this young boy of immature
judgment, prone to indulge in playful pranks, without regard to or appreciation of lurking
danger, placing him in a position of having access to and the use of dangerous instruments,
such as the steak knife is shown to be, and the resulting injury to respondent, is apparent.
Hence a presumption of negligence on the part of appellants in the hiring of the boy arises
from the statute, and this presumption has not been rebutted.
Nev. 430, 4 P. 1082; 8 Cyc. p. 38; In re McCarty, 154 Cal. 536, 98 P. 540.
We submit that the Lutz case is erroneous and is not supported by any of the decisions
quoted in support of it, and is flatly contradicted by the statements contained in the Nevada
cases of Phillips v. Welch, supra, and Strait v. Williams, supra.
Since the court had the power and jurisdiction to impose a sentence for a period of
twenty-five days, a sentence of thirty days in no way deprives the petitioner of any substantialright herein entitling him to have such sentence declared null and void.
OPINION
By the Court, Taber, C. J.:
On the 3d day of August 1937 in Dept. 2 of the Second judicial district court, Washoe
County, applicant's wife, Marcella Steeves, was awarded a decree of divorce against him, said
decree including the following provision: “That the defendant pay to the plaintiff the sum of
Twenty-five ($25.00) Dollars per month for the support and maintenance of said minor child,
Patricia Helen Steeves, said payments to commence on the 1st day of September, 1937, and
to be paid upon the first day of each and every month thereafter, until the further order of thisCourt.”
On the 12th day of January 1938 said Marcella Steeves applied to the trial court for an
order directing applicant (sometimes hereinafter referred to as defendant DQGDVSHWLWLRQHU WRVKRZFDXVHZ K\KHVKRXOGQRWEHSXQLVKHGIRUFRQWHPSWDQGLQVXSSRUWRIVDLG DSSOLFDWLRQSUHVHQWHGKHUDIILGDYLWRUZKLFKDFRS\RIVDLGGHFUHHZDVPDGHDSDUW VHWWLQJIRUWK³WKDWWKHGHIHQGDQWLVDQDEOHERGLHGPDQDQGLVFDSDEOHRIHDUQLQJ VXIILFLHQWWRSD\IRUWKHVXSSRUWRIVDLGPLQRUFKLOGWKDWVLQFHWKHHQWU\RIWKH'HFUHH DIRUHVDLGWKHGHIHQGDQWKDVIDLOHGQHJOHFWHGDQGUHIXVHGWRSD\WKHSODLQWLIIDQ\RIWKH PRQH\GLUHFWHGWREHSDLGLQVDLG'HFUHHH[FHSWWKHVXPRI7ZHQW\WKUHH'ROODUV WKDWWKHUHLVQRZGXHRZLQJDQGXQSDLGRQVDLG'HFUHHIURPWKH'HIHQGDQWWR
WKH3ODLQWLIIWKHVXPRI2QH+XQGUHG7ZR'ROODUV
ÐÐÐÐ59 Nev. 405, 408 (1939) Steeves v. District CourtÐÐÐÐ
and as petitioner) to show cause why he should not be punished for contempt, and in support
of said application presented her affidavit, or which a copy of said decree was made a part,
setting forth “that the defendant is an able-bodied man, and is capable of earning sufficient to
pay for the support of said minor child; that since the entry of the Decree aforesaid, the
defendant has failed, neglected, and refused to pay the plaintiff any of the money directed tobe paid in said Decree, except the sum of Twenty-three Dollars ($23.00); that there is now
due, owing, and unpaid on said Decree from the Defendant to the Plaintiff the sum of One
Hundred Two Dollars. ($102.00).”
Pursuant to said application and affidavit, an order was issued on said 12th day of January
1938 directing petitioner to appear at four o'clock p. m., January 19, 1938, and show cause
why he should not be punished as for contempt for his refusal and misconduct in failing to
obey said decree. Said show cause order was personally served on petitioner in Washoe
County on said 12th day of January 1938. He failed to appear or show cause as directed by
said order, and on January 20, 1938, a writ was issued out of said district court directing the
sheriff to attach petitioner. Pursuant to said writ petitioner was taken into custody on the 4th
day of June 1939 and three days later a hearing was had, at the conclusion of which petitioner
was ordered confined in the county jail for thirty days for violation of said show cause order.June 10, 1939, petitioner applied to this court for a writ of certiorari, and the return to the
writ was heard on July 7, 1939.
Petitioner contends that the show cause order of January 12, 1938, was wholly void and in
excess of the district court's jurisdiction, because: (1) The affidavit upon which it was based
failed to allege as a fact that petitioner was able to comply with the decree requiring him to
make payments, nor did said affidavit allege facts from which such ability could be
payments required of him. He may have had property, but totally insufficient for the demands
made upon him; and he may have been employed as stated, and yet all the money coming
from VXFKHPSOR\PHQWPD\KDYHEHHQVSHQWDQGPRUHRYHUOHJLWLPDWHO\DQGSURSHUO\
VSHQW
ÐÐÐÐ59 Nev. 405, 410 (1939) Steeves v. District CourtÐÐÐÐ
such employment may have been spent, and moreover, legitimately and properly spent. It
should be stated that the affidavit on which the contempt proceeding was started did not
allege the petitioner's ability to make the payments required of him, or such facts that such
ability might be properly inferred therefrom.
“The affidavit showed no more than did the finding, and the affidavit itself is
jurisdictional. See the following: Comp. Laws 1900, sec. 3564; Adams v. Haskell, 6 Cal. 316,
65 Am. Dec. 517; Ex Parte Spencer, 83 Cal. 460, 23 P. 395, 17 Am. St. Rep. 266; Galland v.
Galland, 44 Cal. [475] 478, 13 Am. Rep. 167; Ex Parte Cottrell, 59 Cal. [420] 421; Ex Parte
Gordan, 95 Cal. 377, 30 P. 561; Ex Parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11 Am.
St. Rep. 207; State ex rel. Olson v. Allen, 14 Wash. 684, 45 P. 644; Phillips v. Welch, 12
Nev. [158] 164; Batchelder v. Moore, 42 Cal. [412] 414; 9 Cyc. 38; Young v. Cannon, 2 Utah
[560] 594.”
If we follow the Lutz case, we must hold that the affidavit in the instant case is fatally
defective, and that the order to show cause is likewise void. Cline v. Langan, 31 Nev. 239,
101 P. 553.
1. We are satisfied that the Lutz case, insofar as it holds that in a case of this kind the
affidavit must show defendant's ability to pay, is unsound, and in that respect it is herebyexpressly overruled. State ex rel. Cook v. Cook, 66 Ohio St. 566, 64 N. E. 567, 58 L. R. A.
625; State ex rel. Grover v. Grover, 158 Or. 635, 77 P.(2d) 430; State ex rel. Murphy v.
Second Judicial Dist. Court, 99 Mont. 209, 41 P.(2d) 1113; Bice v. Bice, 138 Wash. 598, 244
P. 1000; In re McCarty, 154 Cal. 534, 98 P. 540; Ex Parte Von Gerzabek, 63 Cal. App. 657,
219 P. 479; Armijo v. Armijo, 29 N. M. 15, 217 P. 623; In re Rasmussen, 56 Cal. App. 368,
205 P. 72; 13 C. J. 66, n. 98; 17 Am. Jur. 510, nn. 1, 2.
In our opinion the correct rule is well stated in State ex rel. Cook v. Cook, supra [66 Ohio
St. 566, 64 N. E. 568, 58 L. R. A. 625]: “Was the complaint sufficient in law? The specific
objection is that it does not allege WKDWLWZDVWKHQLQWKHSRZHURIWKHGHIHQGDQWWRSHUIRUP
WKHDFWWKDWLVSD\WKHPRQH\
ÐÐÐÐ59 Nev. 405, 411 (1939) Steeves v. District CourtÐÐÐÐ
that it was then in the power of the defendant to perform the act; that is, pay the money. We
are of opinion that the objection is not good. The order of the trial court fixing the amount of
the alimony to be paid was an imperative order. It was made, presumably, after due inquiry
into the defendant's financial condition, and was fixed at an amount which the court found
was reasonable, and that the defendant would be able to pay. It being shown, therefore, that
the defendant had not obeyed the order of the court, a prima facie case, at least, had been
made that he was in contempt, provided the failure to satisfy a final decree for alimony couldbe made the basis of a proceeding in contempt. It followed that the burden was upon the
defendant to show that it was not in his power to obey the order, and, if this be so, then it
would also follow that the complainant was not required to allege such want of ability in the
complaint. Nor is this an unreasonable requirement. The defendant's financial condition and
ability to pay were peculiarly within his own knowledge. They could not be known with the
same certainty to the complainant, nor could she easily produce evidence to maintain the
proposition were the burden of proof placed upon her. Hurd v. Hurd, 63 Minn. 443, 65 N. W.
728; Andrew v. Andrew, 62 Vt. 495, 20 A. 817; Holtham v. Holtham, 6 Misc. 266, 26 N. Y.
S. 762.”
In State ex rel. Murphy v. Second Judicial Dist. Court, supra, the supreme court of
Montana said [99 Mont. 209, 41 P.(2d) 1115]: “* * * the affidavit was sufficient to chargecontempt, for it shows the decree for alimony, default in payment, and the amount due the
plaintiff, and it was not necessary that the affiant show the defendant's ability to pay,
nonability being a defense by which the defendant may purge himself of the apparent
contempt. In re McCarty, 154 Cal. 534, 98 P. 540.”
In Bice v. Bice, supra, the supreme court of Washington stated the rule in the following
language [138 Wash. 598, 244 P. 1001]: “The rule is well settled that the jurisdictional
affidavit, in contempt proceedings VXFKDVWKHVHQHHGQRWLQDGLYRUFHSURFHHGLQJDOOHJH WKHSUHVHQWDELOLW\WRSD\´
ÐÐÐÐ59 Nev. 405, 412 (1939) Steeves v. District CourtÐÐÐÐ
such as these, need not in a divorce proceeding allege the present ability to pay.”
Section 8941 N. C. L. 1929 provides that: “The following acts or omissions shall be
deemed contempts: * * * 3. Disobedience or resistance to any lawful writ, order, rule, or
process issued by the court or judge at chambers.” No contention is made in this case that the
provision of the divorce decree ordering petitioner to make alimony payments is unlawful or
invalid.
It is provided in section 8943 N. C. L. 1929 that when the contempt is not committed in
the immediate view and presence of the court or judge at chambers, “an affidavit shall be
presented to the court or judge of the facts constituting the contempt * * *.” According to the
Lutz case, defendant's ability to pay is one of the “facts constituting the contempt” which
must be set forth in the affidavit; but we think that defendant's inability to pay is a matter of
defense, and that in a case of this kind it should not be necessary, in order to confer
jurisdiction, that the affidavit allege defendant's ability to make the alimony payments ordered
in the decree. Such will be the rule after the publication of this opinion.
2. This court will not, except for very cogent reasons, overrule one of its own decisions,
either in whole or in part; but, as said in Linn v. Minor, 4 Nev. 462, “if a decision be clearly
incorrect, and no injurious results will be likely to flow from a reversal, and especially if it be
injurious and unjust in its operation, it is, it seems to us, the imperative duty of the court to
reverse it.” In order to appreciate the unjust and injurious operation of the rule requiring theaffidavit, in cases of this kind, to allege defendant's ability to pay, it is only necessary to
consider a case where the trial court in granting a decree of divorce to a plaintiff wife
incorporates in the decree a provision adjudging that defendant pay plaintiff a certain amount
of money each month as permanent alimony; shortly afterwards the defendant departs from
the state, for parts unknown; UHPDLQLQJRXWRIWKHVWDWHIRUD\HDU²KLVZKHUHDERXWV
ÐÐÐÐ59 Nev. 405, 413 (1939) Steeves v. District CourtÐÐÐÐ
remaining out of the state for a year—his whereabouts unknown to plaintiff—he then returns
to the state, having in the meantime failed to make the alimony payments, and plaintiff learns
of his return. If the plaintiff then wishes to have the defendant cited for contempt, must she,
on the one hand, file an affidavit including an allegation that defendant had been able to make
the payments, thus perjuring herself, or, on the other hand, launch an investigation, resulting
in both expense and delay, in an effort to ascertain where defendant had been and whether he
had been able to make the alimony payments theretofore decreed by the district court? Before
such an investigation could be completed, the defendant may have again departed the state inthe hope of avoiding the process of the court. In such a case, it is our opinion that the plaintiff
can confer jurisdiction on the trial court in contempt proceedings by filing an affidavit
showing the divorce decree and the failure of defendant to make the alimony payments
therein adjudged to be made.
3. In his brief, and in oral argument at the hearing, petitioner contended that if the Lutz
case should be overruled insofar as it requires the affidavit in contempt proceedings to allege
defendant's ability to pay, our overruling decision should not be retrospective in its operation
as applied to the instant case. This contention is based upon the idea that as the contempt
proceedings are quasi-criminal, it would be unfair and unjust to petitioner to punish him for
contempt for failing to appear in response to the order to show cause, because at that time the
Lutz case had not been overruled or modified by any later decision of this court. We have
carefully considered the article cited by petitioner in the June 1939 issue of the Journal of the
American Judicature Society (vol. 23, No. 1, pp. 32-34) entitled “Sensible View of Stare
Decisis Gains Ground” and the authorities therein mentioned, as well as others, including:
People ex rel. Rice v. Graves, 270 N. Y. 498, 200 N. E. 288; People ex rel. Rice v. Graves,
ÐÐÐÐ59 Nev. 405, 414 (1939) Steeves v. District CourtÐÐÐÐ
Div. 128, 273 N. Y. S. 582; Continental Supply Co. v. Abell, 95 Mont, 148, 24 P.(2d) 133;Montana Nat. Bank v. Yellowstone County, 276 U. S. 499, 48 S. Ct. 331, 72 L. Ed. 673;
Mitchell v. People, 76 Colo. 346, 232 P. 685, 40 A. L. R. 566; State v. Longino, 109 Miss.
125, 67 So. 902, Ann. Cas. 1916e, 371; People v. Tompkins, 186 N. Y. 413, 79 N. E. 326, 12
L. R. A. (N.S.) 1081; Hill v. Atlantic & N. C. R. Co., 143 N. C. 539, 55 S. E. 854, 9 L. R. A.
(N. S.) 606; State v. Bell, 136 N. C. 674, 49 S. E. 163; 14 Am. Jur. 345-347, sec. 130; 15 C.
J. 960, 961, sec. 358.
It is to prevent injustice that exceptions have been made to the general rule. The question,
therefore, we are now called upon to decide is whether it will work an injustice to petitioner if
the general rule be applied in his case. The record discloses that petitioner filed an appearance
and waiver in the divorce action. It does not appear that he was represented by an attorney at
the trial. The affidavit in the contempt proceedings was filed January 12, 1938, and petitioner
was ordered to appear on the 19th day of January 1938 and show cause why he should not be
punished for contempt. The show cause order was served on petitioner personally in Washoe
County on January 12, 1938. Petitioner not only failed to obey the order to show cause, but,
as shown by his own petition, he was absent from the state on the 19th day of January 1938.
The attachment was issued January 20, 1938, but petitioner was not taken into custody until
more than sixteen months thereafter. It was only after being arrested and taken before the
court that petitioner attempted to justify his conduct by citing the Lutz case in his defense. It
is possible that petitioner's absence from the state was in all respects bona fide; but we must
take the record as it has come before us, and the fact that he departed from the state between
the day when he was served with the order to show cause and the day said order required hisappearance in court, and the further fact that the sheriff did not execute the attachment until
June 4, LQGLFDWHLQWKHDEVHQFHRIDQ\H[SODQDWLRQWKDWKLVSXUSRVHLQGHSDUWLQJ IURPDQGUHPDLQLQJZLWKRXWWKHVWDWHZDVWRHVFDSHSXQLVKPHQWIRUFRQWHPSWE\SODFLQJ
KLPVHOIEH\RQGWKHMXULVGLFWLRQRIWKHWULDOFRXUW
ÐÐÐÐ59 Nev. 405, 415 (1939) Steeves v. District CourtÐÐÐÐ
1939, indicate, in the absence of any explanation, that his purpose in departing from and
remaining without the state was to escape punishment for contempt by placing himself
beyond the jurisdiction of the trial court. It is true that petitioner did return to Washoe
County, and this is a circumstance in his favor; but taking into consideration all the facts and
circumstances as shown by the record, there is little from which we can conclude that he was
relying on the decision in the Lutz case when he failed to appear in response to the order to
show cause. It is the court's opinion, therefore, that the general rule should apply in this case.
4. Petitioner, after being adjudged guilty of contempt, was ordered confined in the county
jail for a period of thirty days. It is conceded that this was five days in excess of the period
authorized by the statute. Section 8950 N. C. L. 1929. This, however, does not require a
reversal or annulment of the trial court's order.
It is ordered and adjudged that the order of the trial court that petitioner be confined in the
county jail of Washoe County, State of Nevada, for the period of thirty days because of hisviolation of the order to show cause be, and the same is hereby modified, by reducing the
term of confinement in said county jail from thirty days to twenty-five days. In all other
respects the order, judgment and proceedings of the trial court are affirmed, and petitioner is
ordered remanded to the custody of the sheriff of Washoe County.
____________
ÐÐÐÐ59 Nev. 416, 416 (1939) City of Reno v. District Court
ÐÐÐÐ
CITY OF RENO, A Municipal Corporation, Petitioner, v. THE SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Washoe,
WILLIAM McKNIGHT, Judge of Said Court, and CHARLES REEL and ALVIN RAE,
Respondents.
No. 3245
November 21, 1939. 95 P.(2d) 994.
1. Municipal Corporations.A district court's judgment setting aside a judgment of the municipal court of Reno finding defendants
guilty of a violation of a municipal ordinance was reviewable by certiorari in the supreme court.
2. Torts.“Peaceful picketing” is a lawful means of labor union activity, since in “peaceful picketing” there is an
entire absence of fraud, violence, or anything of an intimidating nature, and it is characterized by peaceful
persuasion for the promotion of a lawful purpose.
3. Torts.If picketing in a labor dispute goes beyond the allowable area of peaceful persuasion and assumes the
form of intimidation, threats of violence, or impedes traffic, or interferes with the free use of property, or
involves trespass or fraud, it is unlawful.
4. Statutes.The construction of a statute by the courts of one state before its enactment by the legislature of another
state, though not conclusive, is very persuasive.
5. Municipal Corporations.The rule that the construction of a statute by the courts of one state before its enactment by the legislature
of another state, though not conclusive, is very persuasive, had no application to a situation where the city
of Reno, Nevada, adopted an ordinance of the city of Indianapolis, Ind., after a decision of the supreme
court of Indiana, holding the ordinance constitutional, since the application of the doctrine would substitute
ÐÐÐÐ59 Nev. 416, 418 (1939) City of Reno v. District CourtÐÐÐÐ
of Nevada, in and for the County of Washoe, against William McKnight, Judge of the Court,
and Charles Reel and Alvin Rae to review a judgment of the Second Judicial Court holding
unconstitutional an ordinance of the city of Reno under which Charles Reel and Alvin Rae
were found guilty in the municipal court of the city of Reno. Judgment affirmed in part
and annulled in part. (Dysart, District Judge, dissenting in part.)
Douglas A. Busey, City Attorney, for Petitioner:
Under the 1939 amendment to sec. 9231 N. C. L., certiorari lies in this case, for it is the
exact type of case contemplated by the express language of the statute, and the writ shouldissue under the language of the statute itself, without consideration of any other question. But
if it is necessary to find that the district court has acted in excess of its jurisdiction, before
certiorari will issue in this case, then, under all the Nevada cases, the California rule and the
weight of authority, it has acted in excess of its jurisdiction. It has the power to pass upon the
constitutionality of the ordinance involved and thus to determine its own jurisdiction, since its
jurisdiction arises from the ordinance. But it has not the power to erroneously hold the
ordinance unconstitutional and thus arbitrarily divest itself of jurisdiction.
The cases cited by respondents to the effect that peaceful picketing will not be restrained
by injunction are not applicable in any sense upon the question of whether or not the city
ordinance is unconstitutional in that it interferes with the right of personal liberty, the right of freedom of speech, and the right of free assemblage.
The ordinance has been held constitutional, as against the very objections made by the
respondents in this case, in the case of Thomas v. Indianapolis, 195 Ind. 440, 145 N. E. 550,
35 A. L. R. 1194. That case is binding upon this court for the reason that it construes the
ordinance later adopted by the city of Reno, and under the rules laid down by our supreme
court the decision of the Indiana court construing the ordinance later adopted in 5HQRLVWKH
business is a tort which will be restrained by injunction where necessary to prevent
irreparable injury.
Picketing is not and never has been a constitutional right, and hence may be prohibited by
statute or ordinance. Oakes on Organized Labor and Industrial Conflicts, sec. 330, p. 463.
Lloyd V. Smith, for Respondents:There being a constitutional provision in the State of Nevada providing for the separation
of powers of government (art. 3, sec. 1), chapter 108, Stats. 1939, is unconstitutional and void
insofar as it attempts to confer jurisdiction upon this court to determine the constitutionality
of the city ordinance where the question presented to the court is a moot one. 15 C. J. p. 785,
secs 78 and 79, nn. 32–37.
The right to peaceably picket and assemble is a lawful exercise of our liberty and of the
right to speak freely, as guaranteed by our constitutions, state and federal. Art. XIV, sec. 1,
Constitution of the United States; art. I, secs. 1, 9, and 10, Constitution of Nevada.
The Nevada legislature has recognized the constitutional guarantees of the right to
peaceably assemble, in enacting section 10482 N. C. L., which was construed by this court in
State v. Hennessy, 29 Nev. 320, 90 P. 221. Also in Branson v. I. W. W., 30 Nev. 270, 95 P.354, this court refers to the aforementioned statute and by implication indicates that where the
acts done are peaceable they will not be enjoined.
In the case of American Steel Foundries v. Tri-City Central Trade Council, 257 U. S. 184,
the supreme court of the United States, is an opinion written by Chief -XVWLFH7DIW
UHFRJQL]HGWKHULJKWWRSHDFHDEO\SLFNHWDQGVXFKULJKWKDVEHHQJHQHUDOO\XSKH OG
ÐÐÐÐ59 Nev. 416, 420 (1939) City of Reno v. District CourtÐÐÐÐ
Justice Taft, recognized the right to peaceably picket, and such right has been generally
upheld.
The language contained in section 2 of the ordinance definitely makes it a criminal offense
for any person to peaceably observe (thereby infringing upon the person's liberty) those who
are still working for the employer, or to communicate with them or to persuade them to join
their ranks in a lawful, economic struggle. It prevents making known the facts of a labor
dispute, thereby violating the right of free speech. It would make it illegal for any person to
attempt to influence would-be employees from entering the premises of another for the
purpose of securing employment therein.
Section 4 of the ordinance is unconstitutional for the same reasons as section 2, and, in
addition, for the reason that it makes it illegal for persons to assemble in the vicinity of the
premises of another for the purpose of inducing others to refrain from entering such premises
or negotiating with the owner thereof, as that right is guaranteed by art. I, sec. 1, of the
Nevada constitution. The right freely to assemble together to consult for the common good
guarantees to all the right to assemble where and when desired and to consult with others for
ÐÐÐÐ59 Nev. 416, 421 (1939) City of Reno v. District CourtÐÐÐÐ
picket the premises of Berg & Hansen, Inc., a Nevada corporation, said premises being
situated at 315 East street in said city, county and state, and the approaches thereto, for the
purpose of inducing others to refrain from entering such premises, and from patronizing,
transacting business with and negotiating with the said owner, Berg & Hansen, Inc., and
Lindley & Co., occupant of such premises.”
In a second count it was alleged: “That at said time and place the said defendants, in
association and agreement with Charles Rowan, H. A. Anderson, and John Ferrari, didassemble, congregate and meet together in the vicinity of the premises being situated at 315
East street in said city, county and state, and upon the streets, approaches, and places adjacent
thereto, for the purpose of inducing others to refrain from entering such premises and from
patronizing, transacting business with and negotiating with the said owner thereof, Berg &
Hansen, Inc., and Lindley & Co., occupant of such premises.”
Ordinance 480, omitting title, reads:
“Section 1. Whoever shall watch, beset or picket the premises of another, where any
person is employed, or any approach thereto, or any place or approach thereto, where such
employee lodges or resides, for the purpose of inducing any such employee, by compulsion,
threats, coercion, intimidation, or by any act of violence, or by putting such employee in fear,to quit his or her employment or to refrain from seeking or freely entering into employment,
shall, upon conviction thereof, be fined in any sum not less than Ten Dollars, ($10.00), nor
more than Three Hundred ($300.00) Dollars to which may be added imprisonment not
exceeding sixty (60) days in the City Jail.
“Section 2. Whoever shall watch, beset or picket the premises of another, or any approach
thereto for the purpose of inducing others to refrain from entering such premises, or from
patronizing, transacting business with or negotiating with the owner or occupant of VXFK
The respondents were tried and found guilty in the municipal court and a fine of $10 was
assessed to each. They appealed to said district court and the case was submitted upon an
agreed statement of facts. The district court held the ordinance unconstitutional and set aside
the judgment of the municipal court. The facts stipulated upon which the case was submitted
in the district court, are as follows:
“It is hereby stipulated by and between the respective parties hereto, acting by and throughtheir attorneys, that the facts upon which the above-entitled criminal action is hereby
submitted to the Court for its decision, are as follows:
“That Berg & Hansen, Inc., is a Nevada corporation and is the owner of the premises
situated at 315 East Street, in Reno, Washoe County, Nevada. That Lindley & Co. is the
occupant of said premises. That a large warehouse is situated on the premises and Lindley &
Co. conducts a wholesale grocery business at said warehouse; that at least 90% of the
merchandise handled by the said Lindley & Co. is purchased outside of the State of Nevada
and thereafter brought into Nevada for resale, and that a portion of the merchandise sold by
the said Lindley & Co. is sold outside of the State of Nevada. That said warehouse has four
large doors in its f ront on East Street which doors constitute the business entrance to the
warehouse and the principal approaches to the warehouse from East Street run to these doors.That groceries and supplies in truck loads are unloaded and loaded at these doors and the
trucks engaged in such unloading and loading use the aforesaid approaches to said doors from
East Street. That many trucks load and unload at said doors and use said DSSURDFKHVHYHU\
ordinance, as a matter of law, is constitutional. Sections 2 and 4 of said ordinance which
respondents were charged with violating prohibit picketing in any form. Respondents contend
that the ordinance which forbids such picketing is unconstitutional and void because:
1. It infringes upon the right of personal liberty as guaranteed by our state and federal
constitutions.
2. It is an unreasonable and oppressive restriction of freedom of speech.3. It restricts the right freely to assemble.
2. I am of the opinion that peaceful picketing is a lawful means of labor union activity.
This conclusion is induced from the fact, as I understand it, that in peaceful picketing there is
an entire absence of fraud, violence, or anything of an intimidating nature. It is characterized
by peaceful persuasion for the promotion of a lawful purpose.
The conviction that peaceful picketing for such a purpose is lawful, is strengthened in my
mind by the further fact that its lawfulness is sustained by the great weight of modern
authority. People v. Harris, 104 Colo. 386, 91 P.(2d) 989, 122 A. L. R. 1034, and cases cited
in that opinion. In addition many other cases might be cited to that effect. Among these are:
Empire Theatre Co. v. Cloke et al., 53 Mont. 183, 163 P. 107, L. R. A. 1917e, 383; Citizens'
Co. v. Ashville Typographical Union, 187 N. C. 42, 121 S. E. 31; Goldfield Consol. MinesCo. v. Goldfield Miners' Union No. 220, C. C., 159 F. 500; Lisse v. Local Union No. 31, 2
Cal. (2d) 312, 41 P.(2d) 314; Ex Parte Lyons, 27 Cal. App. (2d) 293, 81 P.(2d) 190.
Following the case of Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260, 157 N. E.
130, cited in People v. Harris, supra, the court of appeals in Busch Jewelry Co., Inc., et al. v.
United Retail Employees Union, Local 830 et al., 281 N. Y. 150, 22 N. E. (2d) 320, 321, said:
“Organized labor has the rights of free speech, peaceful picketing and collective
bargaining.”
The judicial notion, sometimes expressed, that there FDQEHQRVXFKWKLQJDVSHDFHIXO
ÐÐÐÐ59 Nev. 416, 427 (1939) City of Reno v. District CourtÐÐÐÐ
can be no such thing as peaceful picketing, is subscribed to by few courts, and repudiated by
many. “The doctrine,” said the court in George B. Wallace Co. v. International Ass'n of
Mechanics, 155 Or. 652, 63 P.(2d) 1090, 1095, “that picketing is necessarily a species of coercion and intimidation is dogma long since discarded.” Goldfinger v. Feintuch, 159 Misc.
806, 288 N. Y. S. 855.
The proposed final draft No. 6, Restatement of Torts, Group No. 3, American Law
Institute, p. 99, section 24, contains the f ollowing concerning picketing:
“(1) As used in this Chapter, ‘fair persuasion' means argument, exhortation or entreaty
addressed to a person without, (a) threat of physical harm or economic loss, or (b) persistent
molestation or harassment, or (c) material and fraudulent misrepresentations.”
“(2) Picketing at or near another's place of business for the purpose of persuading third
persons, in accordance with the standards stated in subsection (1), to adopt a course of
conduct towards his business is a form of fair persuasion of the third persons if access to the
place of business is not materially obstructed thereby.”
The foregoing paragraphs were finally adopted without change at the 1939 annual meeting
of the institute, and will appear as above quoted in the forthcoming bound volume.In the explanatory notes to said section 24, appearing at pp. 203–204 of said proposed final
draft, it is said:
“The case (peaceful picketing as a legitimate form of fair persuasion) has been strongly put
in Schuster v. International Association of Machinists, 293 Ill. App. 177, 12 N. E.(2d) [50],
57: ‘It has been repeatedly held that where an employer refuses to employ union labor, labor
organizations may freely publish in their own official organs and other newspapers, in
pamphlets or circulars, or by means of radio, the fact that such employer is unfair to
organized labor. Then, why is it not just as lawful for a labor union to make publication RI
ÐÐÐÐ59 Nev. 416, 428 (1939) City of Reno v. District CourtÐÐÐÐ
of the employers' unfairness by signs carried peaceably by a member or members of the
interested union in the vicinity of the place of business of the employer?
“‘It is a matter of common knowledge that many of our well known industrialists and large
employers of labor almost daily condemn in the public press the alleged iniquities of
organized labor. * * * There is no legal means available to restrain such publicity. Yet when alabor union in a modest way, and utilizing perhaps the only means available which it can
afford, seeks to present by signs carried on the person of one or more of its members the truth
concerning an employer who refuses to recognize or deal with the union, it is strenuously
urged that the employer is entitled to relief from a court of equity to prohibit the display of
such signs in front of his place of business.'”
In Senn v. Tile Layers Protective Union, 222 Wis. 383, 268 N. W. 270, 273, 872, the court
in holding the picketing lawful under the state statute had this to say of the lawfulness of
picketing in general:
“Courts, though differing as to the allowable scope, pretty generally agree that picketing is
a legitimate means of economic coercion, if it is confined to persuasion and is free of
molestation or threat of physical injury or annoyance.”
It was declared in Bayonne Textile Corp. v. American Federation of Silk Workers, 116 N.
J. Eq. 146, 172 A. 551, 559, 92 A. L. R. 1450:
“Picketing is lawful if it does not have an immediate tendency to intimidation of the other
party to the controversy, or to obstruct free passage such as the streets afford, consistent with
the right of others to enjoy the same privilege. * * *” Citing Keuffel & Esser v. International
Ass'n of Machinists, 93 N. J. Eq. 429, 116 A. 9; American Steel Foundries v. Tri-City C. T.
“The plaintiff having determined to operate its business as a nonunion concern, and having
refused to employ union labor, may not reasonably expect, nor has it the right to expect, the
latter's business and support; and, furthermore, it has no legal right to prevent a lawful
publicity of its actions in this behalf of union labor. It necessarily follows that, if plaintiff has
a legal grievance in this case, it rests only in the method and manner of the distribution of the
cards aforesaid. The La France Case, supra [La France Electrical Construction & Supply Co.v. International Brotherhood of Electrical Workers, 108 Ohio St. 61, 140 N. E. 899], and the
McCormick Case, supra [McCormick & Fisher v. Local Union No. 216 Hotel and Restaurant
Employees, 13 Ohio Cir. Ct. R., N. S., 545], clearly define the line of demarcation between
what is lawful and what is not lawful in this respect. If the methods adopted do not intimidate
or coerce, and are without violence, they are lawful. When they involve abuse, violence,
intimidation, or coercion, they are unlawful. * * * It is shown that the acts complained of are
causing the plaintiff a substantial loss in its business and profits. This fact furnishes no basis
for judicial interference, for the plaintiff had no vested property right in the business so lost to
it. This is so for the reason that, while it had a legal right to determine its course of action, it
must be held to have considered in that connection the influence of union labor on the public,
and the benefit of its support and patronage. These are factors in the situation it was bound toconsider. It chose to reject union labor and to employ non-union labor at lower wages and
longer hours of service. It was bound to know that it could not legally prevent publicity in
respect to its action. Whatever financial loss it now suffers is therefore due to causes of its
own making, DQGZLWKLQLWVFRQWUROZKLFKLWPXVWEHKHOGWRKDYHDQWLFLSDWHG´
ÐÐÐÐ59 Nev. 416, 431 (1939) City of Reno v. District CourtÐÐÐÐ
and within its control, which it must be held to have anticipated.”
The foregoing expressions are fairly typical of the great weight of judicial opinion that
peaceful picketing is lawful.
3. While the net result of better reasoned judicial opinion is to that effect, it is universally
held that if picketing goes beyond the allowable area of peaceful persuasion and assumes the
form of intimidation, threats of violence, or impedes traffic, or interferes with the free use of
property, or involves trespass or fraud, it is unlawful.
Petitioner contends that as the ordinance before us, as adopted, is the ordinance of the city
of Indianapolis, the decision in Thomas v. Indianapolis, 195 Ind. 440, 145 N. E. 550, 35 A. L.
R. 1194, prior to its adoption here, that it is constitutional, must be the construction given itby this court.
4, 5. We are referred to several decisions of this court in support of the position. These
decisions adhere to the rule that where a statute has received a judicial construction and is
afterwards adopted by another state it will be presumed to have been enacted with that
construction placed upon it. The presumption is not conclusive; it is, however, very
persuasive. Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49. But the rule has no application
here. The argument in support of it presumes a doctrine which, if allowed, would substitute
the supreme court of Indiana as a tribunal to determine the grave question of whether the
ordinance before us transgresses the constitution of Nevada, in the place of the supreme court
of this state.
6. Counsel confuses construction, that is, the function of a court to ascertain the scope and
meaning of a statute with the duty of determining its validity when laid along side of
constitutional guaranties. The rule contended for is applicable only in a case of construction.14 Am. Juris. 300; Williams v. State, 81 N. H.
ÐÐÐÐ59 Nev. 416, 432 (1939) City of Reno v. District CourtÐÐÐÐ
341, 125 A. 661, 38 A. L. R. 490; Boyd v. C. C. Ritter Lumber Co., 119 Va. 348, 89 S. E.
273, 275, L. R. A. 1917a, 94.
The contention made by petitioner's counsel was disposed of in Boyd v. C. C. Ritter
Lumber Co., supra, in the following explicit language:
“The statute under which this proceeding is had was taken, it seems, from a statute of the
state of Kentucky, which was held constitutional and valid by the Court of Appeals of that
state prior to the passage of the act under consideration, namely, Chesapeake Stone Co. v.
Moreland [126 Ky. 656], 104 S. W. 762, 16 L. R. A. (N.S.) 479; and it is insisted here for the
defendant in error that when a constitutional provision is ordained, or a statute enacted by
another state, and it is ingrafted into the Constitution or statutes of this state, and prior thereto
such constitutional provision or statute had received judicial construction by the courts of
such other state, then it is to be presumed that the lawmaking power of this state intended that
the constitutional provision or statute should be given the same construction in this state that
it was given in the state from which it was taken. This principle of construction, however,applies only to the construction of constitutional provisions and statutes, and has no relation,
as the authorities hold, to the question of whether or not a statute is constitutional and valid.
In other words, the Legislature, by enacting a statute which has been held constitutional and
valid by the courts of another state, cannot deprive the courts of this state of the right to
determine for themselves the question of the constitutionality of such statute.”
It may be conceded in conformity with counsel's contention that the city council of Reno in
adopting the Indianapolis ordinance as its own, intended to adopt it with the stamp of
approval by the Indiana supreme court and intended it to be constitutional. But whether it is
so in fact is properly the subject of determination by the courts of this state.
ÐÐÐÐ59 Nev. 416, 433 (1939) City of Reno v. District CourtÐÐÐÐ
7, 8. Sections 2 and 4 of the ordinance do not seek to merely regulate picketing, as by
limiting the number of pickets, specifying the number of paces they must be separated from
each other, requiring them to remain on the outer half or other fractional part of the sidewalk,
limiting the size of the banner which may be carried, forbidding picketing under
circumstances claimed to be unlawful, tortious, or inequitable, or containing other regulations
designed to reasonably control picketing. They go beyond regulation. They are a sweeping
prohibition of any form of picketing, irrespective of its nature, purpose or number of pickets,
and constitute an interdiction of all activities and free speech sought to be exercised in theform of peaceful picketing. The federal constitution guarantees freedom of speech, U. S. C.
A. Const. Amend. 1. In the fourteenth amendment it is declared: “nor shall any State deprive
any person of life, liberty or property, without due process of law.” The due process clause in
the fourteenth amendment is a prototype of the due process clause in our constitution. Art. 1,
section 8. In Art. 1, section 9, it provides: “Every citizen may freely speak, write and publish
its sentiments on all subjects, being responsible for the abuse of that right; and no law shall be
passed to restrain or abridge the liberty of speech or of the press.” Notwithstanding these
guaranties, the exercise of these rights is not absolute. They may be regulated under the police
power of the state. Liberty regulated by law is a fundamental of our democratic government.
However, neither freedom of speech nor liberty of action may be suppressed under the guise
of regulation. They are not subject to the exercise of arbitrary power. Any annoyance or lossof business caused to an employer by lawful picketing does not warrant the exercise of the
police power of the state. By the weight of authority loss of business to an employer in such
an economic contest is damnum absque injuria. George B. Wallace Co. v. International Ass'n
of Mechanics, supra; People v. Harris, supra; Exchange Bakery & Restaurant v. Rifkin,VXSUD6HQQY7LOH/D\HUV3URWHFWLYH8QLRQ866&W/(G
ÐÐÐÐ59 Nev. 416, 434 (1939) City of Reno v. District CourtÐÐÐÐ
supra; Senn v. Tile Layers Protective Union, 301 U. S. 468, 57 S. Ct. 857, 863, 81 L. Ed.
1229.
In the New York case it was held [245 N. Y. 260, 157 N. E. 133]: “Resulting injury is
incidental and must be endured.”
In Senn v. Tile Layers Protective Union, it was said:
“It is true that disclosure of the facts of the labor dispute may be annoying to Senn
[employer] even if the methods and means employed in giving the publicity [picketing] are
inherently unobjectionable. But such annoyance, like that often suffered from publicity in
other connections, is not an invasion of the liberty guaranteed by the Constitution. [Citation].
It is true, also, that disclosure of the facts may prevent Senn from securing jobs which he
hoped to get. But a hoped-for job is not property guaranteed by the Constitution. And the
diversion of it to a competitor is not an invasion of the constitutional right.”
9. Such annoyance or loss does not warrant the exercise of the police power of the state,
and it is well settled that such inherent power is not available for the protection of an
individual or class of individuals, but for the protection of the community. It may not be
As stated by Judge Farrington, speaking for the Court in Goldfield Consol. Mines Co. v.
Goldfield Miners' Union No. 220, C. C., 159 F. 500, 515:
“It is too clear to require a citation of authorities that the Legislature has no power to
restrict the exercise of a constitutional right, unless the interests of the public, as
distinguished from the interests of the individual, or of a class of individuals, demand suchrestraint. The act so forbidden by the Legislature must be detrimental to the public welfare,
and the health, safety, or morals of the community to justify such interference.”
10. That the city may, in the exercise of its police power, regulate the methods of publicity
as well as the use of the streets, is conceded. Senn v. Tile Layers Protective Union, 301 U. S.
468, 57 S. Ct. 857, 81 L. Ed.
ÐÐÐÐ59 Nev. 416, 435 (1939) City of Reno v. District CourtÐÐÐÐ
1229. But it cannot, under the cloak of regulation, prohibit such means or such use. It cannot
make criminal an innocent act when no interference is had with public health, safety, comfort
or welfare. 16 C. J. S., Constitutional Law, sec. 195, p. 564.
11. The theory on which it is sometimes said that the government, either by the legislature
or a municipality, may enact valid legislation against all picketing, is that this means of
publicity, however it may be confined to peaceful persuasion, tends to provoke disorder and
impedes traffic. On this account it is declared the exercise of the police power is justified to
suppress it. I cannot agree with the idea that peaceful persuasion in the form of picketing has
any such tendency. As said in Exchange Bakery & Restaurant v. Rifkin, supra; such
“‘picketing' connotes no evil.” The doctrine that it does connote such evil consequences asdisorder or street obstruction, as previously pointed out, has long since been discarded.
“In practice,” says the writer on the Constitutionality of Anti-Picketing Ordinances in the
Yale Law Journal, volume 48, page 314, “dangers to the public peace arising from picketing
activities can be adequately controlled by an effective police administration.”
In Hague v. Committee for Industrial Organization, 307 U. W. 496, 59 S. Ct. 954, 964, 83
L. Ed. 1423, Mr. Justice Roberts wrote:
It [the ordinance involved] does not make comfort or convenience in the use of the streets
or parks the standard of official action. It enables the Director of Safety to refuse a permit on
his mere opinion that such refusal will prevent ‘riots, disturbances or disorderly assemblage.'
It can thus, as the record discloses, be made the instrument of arbitrary suppression of freeexpression of views on national affairs for the prohibition of all speaking will undoubtedly
‘prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be
made a substitute for the duty to maintain order LQFRQQHFWLRQZLWKWKHH[HUFLVHRIWKH
ÐÐÐÐ59 Nev. 416, 436 (1939) City of Reno v. District CourtÐÐÐÐ
in connection with the exercise of the right.” (The italics are mine.)
12. I may also add that the prohibition of personal liberty cannot be made a substitute for
the duty to maintain order in connection with the exercise of the right. Moreover, thecontention that the suppression of peaceful picketing is necessary because its tendency is to
incite disturbances and obstruct the free use of the streets, and is therefore inimical to the
public welfare, is not a very flattering commentary on the efficiency of the police system of a
city; for picketing assignments are ordinary carried out in quarters under police supervision,
and not in isolated places.
It is largely upon the false premise, as I see it, that peaceful picketing had a tendency “to
give rise to contentions and argument that often result in bloodshed and riot,” that the court in
Thomas v. Indianapolis, supra, held that the ordinance in question here was a reasonable
exertion of the police power and therefore free from the objection that it violated
constitutional guaranties of personal liberty. For this reason it lends no strength to thepresumption in favor of the constitutionality of the ordinance.
The case of Hardie-Tynes Mfg. Co. v. Cruise, et al., 189 Ala. 66, 66 So. 657, 661, also
relied on by petitioner, inclines to the same doctrine. Besides the constitutional feature was
not much urged upon the court, as appears from the following statement:
“It is suggested by counsel for respondents that our construction of section 6395, as being
an inhibition of picketing even where threats or violence are not used, renders it
unconstitutional. No intimation is offered as to what provision of the Constitution is thereby
offended, and we can think of none.”
Pierce v. Stablemen's Union, Local No. 8760, 156 Cal. 70, 103 P. 324; Moore et al. v.
Cooks', Waiters' & Waitresses' Union No. 402, 39 Cal. App. 538, 179 P. 417; A. R. Barnes &
Co. v. Chicago Typographical Union No. 16, 232 Ill. 424, 83 N. E. 940, 14 L. R. A. (N. S.)1018, $QQ
ÐÐÐÐ59 Nev. 416, 437 (1939) City of Reno v. District CourtÐÐÐÐ
13 Ann. Cas. 54; Ex Parte Stout, 82 Tex. Cr. R. 183, 198 S. W. 967, L. R. A. 1918c, 277; St.
Germain v. Bakery & Confectionery Workers Union, 97 Wash. 282, 166 P. 665, 667, L. R. A.
1917e, 824, are also cited by petitioner. It is to be observed, that since the decisions abovenoted were rendered there has been considerable change in the legislative and judicial
viewpoint as to labor controversies. As stated in Local Union No. 26, National Brotherhood
of Operative Potters v. Kokomo, 211 Ind. 72, 5 N. E. (2d) 624, 628, 108 A. L. R. 1111:
“Formerly the courts were inclined to disapprove collective bargaining, striking, and
picketing upon the part of employees. However, the past few years have witnessed a decided
change in public opinion, legislative enactments, and judicial construction.”
This lately prevalent trend of legislative and judicial treatment in labor disputes is noted in
Columbia Law Review, vol. 48, and in the same article, at pages 1527 and 1528, the case of
labor's right to picket free from governmental restraint is strongly stated as follows:
“Although it is exceedingly difficult to extract from the cases a standard for predicting the
fate of regulations yet to be tested, it is most desirable that the nature of the right to picket be
clearly defined. Fortunately, such a crystallization has begun. In Senn v. Tile Layers
[Protective] Union [supra], the United States Supreme Court for the first time identified theright to picket with the right of free speech. Mr. Justice Brandeis wrote for the majority in
that case: ‘Clearly the means which the statute authorizes—picketing and publicity—are not
prohibited by the Fourteenth Amendment [U. S. C. A. Const.]. Members of a union might,
without special statutory authorization by a state, make known the facts of a labor dispute, for
freedom of speech is guaranteed by the Federal Constitution. * * * In declaring such picketing
permissible, Wisconsin has put this means of publicity on a par with advertisements in the
press.' Early this year (1938) the Supreme Court also emphatically denied the authority of a
ÐÐÐÐ59 Nev. 416, 438 (1939) City of Reno v. District CourtÐÐÐÐ
to limit freedom of speech by restricting the right to distribute leaflets. (Lovell v. City of
Griffin, 303 U. S. 444 [58 S. Ct. 666, 82 L. ed. 949]). It is plain that picketing and leaflet
distribution raise highly similar municipal problems. Both involve the possibility of impeding
traffic and both involve considerations as to the propriety of using the streets for the purpose
of presenting to the public one's point of view. These recent cases lend substance to the hope
that picketing is to be afforded the protection of the Fourteenth Amendment in a manner
paralleling the guarantee of the right to distribute leaflets.”Freedom of the press and freedom of speech are the same, being distinguished only in the
form of utterance. 16 C. J. 628.
Long since the rendition of any of the decisions heretofore mentioned on which petitioner
relies, including Thomas v. Indianapolis, supra, the supreme court of the United States, in
May 1937, identified the right to picket with the right of free speech. Two years after the
United States court announced that doctrine, the supreme court of Colorado, in the case of
People v. Harris, 104 Colo. 386, 91 P.(2d) 989, 992, 122 A. L. R. 1034, declared
unconstitutional and void a statute of that state forbidding peaceful picketing. The
attorney-general of that state joined with counsel for the defendant in urging the invalidity of
the statute. It is to be noted also that the court pointed out that Alabama was the only otherstate out of the forty-eight states in the Union that had a similar statute.
In the Colorado case the defendant, Harris, was charged in the lower court with violating
the anti-picketing statute. He pleaded not guilty, waived a jury trial and the case was
submitted on a stipulation of facts. He was adjudged not guilty and discharged. The case
came before the supreme court on a writ of error sued out by the people. There, as here, the
court was confronted with a provision of criminal law which did QRWUHJXODWHEXWSURKLELWHG
ÐÐÐÐ59 Nev. 416, 439 (1939) City of Reno v. District CourtÐÐÐÐ
not regulate, but prohibited peaceful picketing. The facts stipulated revealed that such was the
nature of the picketing. The court cited many authorities to show that the lawfulness of such
picketing was sustained by the great weight thereof. In this connection the court said:
“No legal injury of any kind resulted to any person because of his picketing activities. That
the employer has the right to refuse to pay union wages and maintain union standards is
conceded. Correspondingly, labor has the right to decline to carry on any business relation
with such an employer. Any loss which occurs in such economic controversies is damnum
absque injuria.”
It also said:
“It is contended that section 90, supra [the statute outlawed], is valid as a reasonable
exercise of the police power. If this section, instead of prohibiting peaceful picketing, could
be so construed as to be only a reasonable regulation thereof, the contention would be sound;
but it prohibits all peaceful picketing. Any legislative exercise under the police power which
violates any right guaranteed by the national or state Constitutions is invalid. In re Morgan,
26 Colo. 415, 58 P. 1071, 47 L. R. A. 52, 77 Am. St. Rep. 269; Lovell v. City of Griffin,
supra. 12 C. J. 938, 939. ‘Freedom is the general rule, and restraint the exception.' Wolff
Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 534, 43 S. Ct. 630, 632, 67 L. Ed.
1103, 27 A. L. R. 1280. It cannot be successfully maintained that guaranties of freedom of
speech are less important than guaranties relating to property.”
The court finally concluded:
“Whatever our individual views may be on economic controversies, such as are involvedhere, we cannot consent to legislative invasion of constitutional guaranties to the extent for
which contention is made in this case. The line of demarcation between police power and
constitutional guaranties is not always well defined. Where DODZVXFKDVVHFWLRQKHUH
The Colorado case is squarely in point with the instant case and is buttressed with ample
authority. It reflects the modern view that peaceful picketing is lawful and is immune from
legislative interdiction by reason of constitutional guaranties.
In an earlier opinion, the supreme court of Missouri in City of St. Louis v. Gloner, 210
Mo. 502, 109 S. W. 30, 31, 15 L. R. A. (N. S.) 973, 124 Am. St. Rep. 750, declared void anordinance of St. Louis which in effect prohibited peaceful picketing. The ordinance provided
in part that any person or persons “who shall lounge, stand or loaf around or about or at street
corners or other public places, in the day or night time * * * shall be deemed guilty of a
misdemeanor.” The testimony disclosed that defendant was engaged in peaceful picketing.
The court said:
“While the city has the undoubted right, under its charter, to regulate the use of its streets,
it has no right to do so in a way that interferes with the personal liberty of the citizen as
guaranteed to him by our constitution and laws.”
The court quoted approvingly the following from one of its former decisions:
“They [pickets] are free men, and have a right to quit the employ of plaintiffs whenever
they see fit to do so, and no one can prevent them; and whether their act of quitting is wise orunwise, just or unjust, it is nobody's business but their own, and they have a right to use fair
persuasion to induce others to join them in their quitting.”
ÐÐÐÐ59 Nev. 416, 441 (1939) City of Reno v. District CourtÐÐÐÐ
It was finally declared:
“Our conclusion is that the ordinance is unconstitutional and invalid, because it infringesupon the right of personal liberty, and is unreasonable and oppressive.”
Counsel for petitioners, as well as the court, in Ex Parte Stout, supra, seeks to discount the
effect of the foregoing decision because the ordinance did not in terms prohibit picketing. The
distinction sought to be made is not apparent. The court outlawed the ordinance because
when applied to the facts of the case, it prohibited peaceful picketing. Its term embraced a
prohibition of such picketing.
Counsel for petitioner also seeks to discount the case of Senn v. Tile Layers Protective
Union, supra, as an authority favorable to the view that the ordinance is unconstitutional. He
says: “It clearly appears from that case that the state may regulate picketing in the exercise of
police power.” This may be conceded, but we have an ordinance before us which, in sections2 and 4 thereof, does not regulate, but prohibits peaceful picketing.
In Senn v. Tile Layers Protective Union, supra, the constitutionality of state anti-injunction
legislation, designed to prohibit judicial interference with peaceful picketing, was declared,
and the intimation that such picketing is protected by the constitutional guaranty of free
speech is too plain to be misunderstood.
In Ex Parte Lyons, 27 Cal. App. (2d) 293, 81 P.(2d) 190, 193, it was declared: “In this
state the right to peacefully picket rests upon the constitutional guaranty of the right of free
The ordinance on its face, in sections 2 and 4, is obviously adapted to protect the employer
from annoyance and incidental loss of business rather than to protect the public in
maintaining its peace and the unobstructed use of the streets. But such annoyance and loss in
a labor dispute are not tortious nor do they constitute an invasion of any constitutional rights.
Senn v. Tile Layers Union, supra. These sections bear no reasonable DQGVXEVWDQWLDOUHODWLRQ WRWKHSURPRWLRQRIWKHSXE OLFVDIHW\KHDOWKPRUDOVJHQHUDOZHOIDUHIRUZKLFKWKH
H[HUFLVHRIWKHSROLFHSRZHUPD\EHLQYRNHG
ÐÐÐÐ59 Nev. 416, 442 (1939) City of Reno v. District CourtÐÐÐÐ
and substantial relation to the promotion of the public safety, health, morals, general welfare,
for which the exercise of the police power may be invoked.
13, 14. I am of the opinion that sections 2 and 4 of the Reno city ordinance No. 480 areunconstitutional and void, in that they invade the constitutional guaranties of the due process
of law clauses of the federal and state constitution, and of section 9 of article 1 of the state
constitution guaranteeing free speech and forbidding the state to pass any law to restrain or
abridge the liberty of speech. The other sections of the ordinance being separable are not
affected by the invalidity of sections 2 and 4.
I deem it unnecessary to pass on the other objections of respondents to the ordinance.
As Chief Justice Taber concurs in these views:
It is ordered that the judgment of the lower court, insofar as it adjudges said sections 2 and
4 of said ordinance unconstitutional and void, be, and the same is hereby, affirmed.
It is further ordered that said judgment, insofar as it adjudges other parts of the ordinanceunconstitutional and void, be, and the same is hereby, annulled.
Taber, C. J., I concur.
Dysart, District Judge, dissenting in part:
I concur in the majority opinion of my learned associates to the extent that this court has
jurisdiction to determine, by certiorari, the question presented, but I am forced to dissent as to
that part of the majority opinion which holds sections 2 and 4 of the ordinance in question to
be unconstitutional.
In determining the primary question before the court, namely, whether the ordinance under
consideration is constitutional or unconstitutional, it is well to keep in mind the
well-recognized rule of law, which prevails in most jurisdictions, and particularly the rule
which prevails in this state, namely: ³:KHQDVWDWXWHRURUGLQDQFHLVDVVDLOHGDVEHLQJ
ÐÐÐÐ59 Nev. 416, 443 (1939) City of Reno v. District CourtÐÐÐÐ
“When a statute (or ordinance) is assailed as being unconstitutional, every presumption is
in favor of its validity, all doubts must be resolved in its favor, and, unless it is clearly inderogation of some constitutional provision, it must be sustained.” Vineyard Land & Stock
Co. v. District Court, 42 Nev. 1, 171 P. 166.
In the case of Thomas et al. v. City of Indianapolis et al., 195 Ind. 440, 145 N. E. 550, 552,
35 A. L. R. 1194, where the court had under consideration the identical ordinance that we
here have under consideration, and in considering sections 2 and 4 of said ordinance, and in
holding said ordinance to be constitutional, used the following language:
“The word ‘picketing,' as used in this ordinance, has a well-defined meaning. It has been
defined as the maintenance of an organized espionage upon the works or places of business of
an employer and those going to and from them, and it has been remarked that the word
‘picket' is borrowed from the nomenclature of warfare, and is strongly suggestive of a hostileattitude toward the individual or corporation against whom a labor organization has a
grievance. * * *
“The courts, in the cases last cited, assert generally that there can be no such thing as
peaceful picketing, and that no matter what the declared intention of the persons so engaged
may be, the inevitable result is to create turmoil, disturbances, and breeches of the peace. It is
probable that the city council, which passed the ordinance in question, took the latter view,
and believed that all picketing was inimical to the peace and good order of the public, and
that the public welfare would best be subserved by prohibiting all picketing in the manner
described in the ordinance.”
It will be noted that many of the cases cited, and quoted from in the majority opinion,
contain such expressions as: “Picketing is lawful if it does not have an immediate tendency tointimidation of the other party to the controversy.” Since picketing, in any form, is “strongly
suggestive of a hostile attitude toward WKHSHUVRQRUSHUVRQVSLFNHWHG´LWIROORZVWKDW
Ann. Cas. 66, that individual rights are “subordinate to the greater obligation not to injure
others.” This rule was also followed and quoted with approval in the case of Branson v.
Industrial Workers of the World, 30 Nev. 270, at page 296, 95 P. 354.
In the case of Senn v. Tile Layers Protective Union Local No. 5 et al., 301 U. S. 468, 57 S.
Ct. 857, 862, 81 L. Ed. 1229, cited in the majority opinion, Mr. Brandeis, speaking for the
court, and in holding a Wisconsin statute to be constitutional, which legalized so-called“peaceful picketing” used the following language:
“The state may, in the exercise of its police power, regulate the methods and means of
publicity as well as the use of public streets.”
He then continued by saying that such regulation, “is not an invasion of the liberty
guaranteed by the Constitution.” I find nothing in the Senn case, supra, holding a statute or
ordinance prohibiting so-called “peaceful picketing” to be a violation of any of the liberties
guaranteed by the constitution.
This court, in a number of decisions, has held the rule in effect to be: that where a
legislative body has adopted a statute (or ordinance) of another state, the act of adoption
raises the presumption that such legislative body making the adoption enacted the statute (or
ordinance) in the light of the construction that had been placed upon such statute (orordinance) in the parent VWDWH
ÐÐÐÐ59 Nev. 416, 445 (1939) City of Reno v. District CourtÐÐÐÐ
state. While this court is not bound thereby, yet it is persuasive and should be followed unless
some substantial reason requires the application of another rule. Ormsby County et al. v.
Kearney et al., 37 Nev. 314, at page 371, 142 P. 803; O'Brien et al. v. Trousdale et al., 41Nev. 90, at page 102, 167 P. 1007; In re Walker River Irrigation District, 44 Nev. 321, at page
332, 195 P. 327; Menteberry v. Giacometto, 51 Nev. 7, at page 14, 226 P. 49; Hard v.
Depaoli et al., 56 Nev. 19, at page 30, 41 P.(2d) 1054. Applying the foregoing rule, I am of
the opinion that greater weight should be given to the opinion in the Thomas case, supra, than
many of the decisions from other jurisdictions relied upon in the majority opinion.
Being in accord with the authorities which hold any form of picketing to be an
infringement upon the personal rights of others, I am therefore of the opinion that the city of
Reno was within its constitutional rights in passing the ordinance in question.
Orr, J., having disqualified himself, the Governor designated Honorable James Dysart,
Judge of the Fourth Judicial District, to sit in his stead.
had no proper place in record on appeal and could not be considered by the supreme court in case which
was before the supreme court without bill of exceptions. Comp. Laws, sec. 11061.
9. Criminal Law.Motions of accused for order permitting him to apply to trial judge to correct minutes of trial court in
respect to ground of accused's objection to jurisdiction of trial court, made at beginning of trial, for
permission to supply the place of a written motion for new trial, and to show ground thereof, and motion
suggesting diminution of record, which were made months after case was originally briefed, orally arguedand submitted for decision and then only after supreme court had called for briefs concerning its power to
consider number of alleged errors in view of unsatisfactory condition of record, ZHUHGHQLHGZKHUH
so as to avoid the statutes of limitations. The information therefore does not state facts
sufficient to constitute a public offense which could be prosecuted and a conviction had
thereon.
The proceedings on the arraignment of the defendant were a flagrant violation of the
statutes, affecting the substantial rights of the defendant, and constituted prejudicial error.
Section 10886 N. C. L. provides, among other things, that the defendant shall have at least
one day for a reasonable time in which to procure counsel before arraignment, and that he
shall have at least one day in which to plead to the information. The record discloses that the
defendant did require time to secure counsel and objected to the entering of a plea until such
time as he had the benefit of counsel. The action of the trial court in this respect was
unreasonably arbitrary and in disregard of the plain provisions of the statutes governing
criminal procedure.
It was error for the trial court to grant a change of venue from Mineral County, on the
statement of mere conclusions that a fair and impartial jury could not be obtained in that
county, and thus deprive the defendant of the substantial right, guaranteed by law, to be tried
in the district or county where the offense was alleged to have been committed.
The disqualification of the trial judge by an application and affidavit for a change of judge
on account of the prejudice of the judge against the defendant, and which was afterwards
granted by the same judge, disqualified the judge ab initio from exercising jurisdiction in any
manner in the cause after the application was made. His only jurisdiction and power in the
matter was to grant the change of judge, and permit a judge to whom the case was assigned topass upon a change of venue and all other matters vital to the defendant.
It was error for the trial court, before the cause proceeded to trial, to deny defendant's
objection to the jurisdiction of the court and to the trial of the cause in Nye County, upon the
ground that it was not the SURSHUSODFHIRUWULDO
ÐÐÐÐ59 Nev. 445, 449 (1939) Wood v. StateÐÐÐÐ
proper place for trial. Section 8569 N. C. L. provides that charges of misconduct of a public
officer in office shall be tried in the county where he discharged the duties as such officer.
Appellant also contends that the judgment and conviction in this case violates the
constitutional provision prohibiting the imposition of unreasonable fines and cruel and
unusual punishment. For an offense that could not be more than a mere neglect,
unaccompanied by motive or corrupt intent, a fine of $500 is imposed, and in addition thereto
the court in its judgment also ordered the removal of the defendant from a public office,
which is a valuable right and amounts to a property right of which the defendant could not be
deprived without due process of law.
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General; and N. E. Conklin, for Respondent:
It is clear from section 10722 N. C. L. that the statute of limitations does not commence torun until the discovery of the offense. Under the allegations of the information in this case,
the offenses complained of were not discovered until on or about the month of July 1937.
There being no bill of exceptions or testimony before this court, appellant's contention that
the allegations in the information as to the offenses being committed in a secret manner are
unsupported by any statement of facts cannot be determined.
An examination of the record shows that arraignment was continued at least three times
because of the unavoidable absences of def endant's attorney. It likewise appears from the
statement of the special deputy attorney-general during the arraignment that the case was
postponed five times at the request of the defendant. The record discloses that the first
continuance because of the absence of defendant's counsel occurred on April 8, 1938, with
the arraignment finally being held on April 22, 1938. It is thus clear from the record WKDWWKH
GHIHQGDQWKDGHPSOR\HGFRXQVHO
ÐÐÐÐ59 Nev. 445, 450 (1939) Wood v. StateÐÐÐÐ
that the defendant had employed counsel. The matter of continuing with the arraignment
under the above circumstances was within the sound discretion of the court, and no
substantial right of the appellant being prejudiced, such discretion was not abused.The provisions of sections 10913 to 10918 N. C. L. being complied with, the motion for a
change of venue being addressed to the sound discretion of the court, and no abuse of such
discretion appearing, the court was within its rights in granting the change.
Our researches disclose no statute requiring the disqualification of a judge in a criminal
action.
Section 8567 N. C. L., cited in support of appellant's argument that this action should have
been tried in the place where the cause arose, applies to civil actions.
The judgment and sentence pronounced by the court was proportionate to the nature of the
offense for which the appellant was tried and convicted.
OPINION
By the Court, Taber, C. J.:
Appellant was convicted of neglect of duty in that, as district attorney, he received and had
in his possession and custody certain county money which he failed and neglected to pay into
the treasury of Mineral County, it being his duty to pay over the same as aforesaid. He was
sentenced to pay a fine of $500 and was removed from office.
He has appealed from the judgment of conviction and from an order denying a new trial.
The notice of appeal reads as follows: “The defendant above named, Fred L. Wood, hereby
appeals from the judgment of conviction rendered in the above entitled matter on the 22nd
day of June, 1938, and from the order denying a motion for new trial heretofore entered in the
above entitled case. This appeal is taken from the judgment and the whole thereof, upon the
following grounds, WRZLW
ÐÐÐÐ59 Nev. 445, 451 (1939) Wood v. StateÐÐÐÐ
to-wit: 1. That the court misdirected the Jury in matters of law, and has erred in the decision
of questions of law arising during the course of the trial: 2. That the verdict is contrary to law
and evidence.”
The grounds upon which appellant asks a reversal are: (1) That the third count of the
information, being that under which he was convicted, does not state facts sufficient to
constitute a public offense; (2) that the information shows on its face that any offense
attempted to be alleged therein was barred by the the statute of limitations; (3) that appellant
was denied the right to be represented by counsel at his arraignment; (4) that appellant was
denied his statutory right to be allowed at least one day in which to answer the information;
(5) that appellant was denied the assistance of counsel when the state's motion for change of
venue was heard and granted; (6) that the affidavits upon which the motion for change of
venue was based stated mere conclusions, and were insufficient to vest the court with
jurisdiction to order such change; (7) that appellant was deprived of his right to at least one
day's notice after the entry of his plea before the hearing of the state's application for a change
of venue; (8) that the appellant, under the statute, was entitled to be tried in Mineral County;(9) that the trial judge who presided at the time of appellant's arraignment and at the time of
the state's application for change of venue was heard and granted, erred in not disqualifying
himself when the application and affidavit for change of judge on account of prejudice
against the defendant was first made; (10) that the sentence imposed upon appellant violates
the constitutional provisions prohibiting the imposition of unreasonable fines and cruel and
unusual punishment. Const. art. 1, sec. 27.
1. The record on this appeal is in a very unsatisfactory condition. There is no bill of
exceptions, and we are therefore limited to a consideration of the record of the action, which,
under the statute, sec. 11061 N. C. L. 1929, is made up of the following papers: “1. A copy RI
of the minutes of any challenge which may have been interposed by the defendant to the
panel of the grand jury, or to any individual grand juror, and the proceedings thereon; 2. The
indictment or information and a copy of the minutes of the plea or demurrer; 3. A copy of the
minutes of any challenge which may have been interposed to the panel of the trial jury, or of
any individual juror, and the proceedings thereon; 4. A copy of the minutes of the trial; 5. A
copy of the minutes of the judgment; 6. The decision of the court upon matters of law deemedexcepted to, if such decision is in writing, and a copy of the minutes showing any decision
deemed excepted to; 7. Any written charges given or refused by the court, with the
endorsements thereon; 8. The affidavits and counter affidavits, if any, used on the hearing of
a motion for a new trial; 9. The bill of exceptions, if any, when settled, shall be attached to
the foregoing and become a part of the record.” In the instant case many papers are included
in the record which have no proper place therein.
It does not appear, from the record of the action, that the sufficiency of the information
was questioned in the trial court. The claim that the information shows on its face that any
offense attempted to be alleged therein was barred by the statute of limitations, is set up for
the first time in appellant's opening brief on appeal. The contention that the information does
not state facts sufficient to constitute a public offense because it does not show that defendantviolated any duty imposed by law, was presented for the first time on the oral argument in this
court. Neither of these contentions was urged in the trial court by way of demurrer, motion in
arrest of judgment or otherwise.
2. In State v. Hughes, 31 Nev. 270, 102 P. 562, the court said: “Where, however, the
sufficiency of an indictment is questioned for the first time upon appeal, it will not be held
insufficient to support the judgment, unless it is so defective that by no construction, within
the reasonable limits of the language used, can it be said WRFKDUJHWKHRIIHQVHIRUZKLFKWKH
GHIHQGDQWZDVFRQYLFWHG´
ÐÐÐÐ59 Nev. 445, 453 (1939) Wood v. StateÐÐÐÐ
to charge the offense for which the defendant was convicted.”
The prosecution in the case at bar was based upon the alleged failure of the defendant to
turn over to the county certain county moneys which had been entrusted to him as district
attorney. The first count in the information alleged that said failure was in violation of his
duty and trust, willful, unlawful, felonious and with intent to steal. The second count charged
that said failure was unlawful, willful, felonious and with intent to cheat.
The third count, under which defendant was convicted, reads as follows: “Informant
alleges: That the defendant, Fred L. Wood, on or about the fifth day of October, 1933, and
prior to the filing of this Information, at the County of Mineral, State of Nevada, he, the
defendant Wood, being then and there, and at all of the times herein mentioned, a public
officer, to-wit, the duly elected, qualified and acting District Attorney in and for the County
of Mineral, State of Nevada, was guilty of, and did neglect the duties imposed upon him as
such officer, in this: That said Wood, as such officer, did receive and have in his possession
and custody the sum of two hundred and seventy three and 40/100 dollars, paid unto him by
the Tonopah and Goldfield Railroad Company, as a portion resulting from a compromise of
delinquent taxes due and owing from said Company to the County of Mineral, State of
Nevada, and which moneys were then and there the property of and was due to and payable
unto the said County of Mineral. That on, or about the fifth day of October, 1933, said Wood
was then and there guilty of neglect of duty, in that, he failed and neglected to pay theaforesaid moneys into the treasury of the County of Mineral, State of Nevada, and the said
moneys being then and there moneys and property of said County, and it being his duty to pay
over the same as aforesaid.”
Each count alleged that the offense was committed in a secret manner, and remained secret
until about July
ÐÐÐÐ59 Nev. 445, 454 (1939) Wood v. StateÐÐÐÐ
1937. The information also charged that the offenses set out in all three counts “grew out of,
arose from and emanated from the same state of facts and offense and at the same time.”
Section 2084 N. C. L. 1929 provides that: “The district attorney may be indicted for a
misdemeanor in office, or neglect of duty, and be punished by fine not exceeding one
thousand dollars, or by removal from office, or by both such fine or removal from office, said
fine to be paid into the county treasury for county purposes.”
3. An indictment for any misdemeanor must be found within one year after its
commission. Section 10721 N. C. L. 1929. But section 10722 N. C. L. 1929 provides that: “If
a felony or misdemeanor is committed in a secret manner, an indictment for the same must be
found within the periods of limitation prescribed in the two last preceding sections after thediscovery of the offense; provided, that if any indictment found within the time thus
prescribed is defective so that no judgment can be given thereon, another prosecution may be
instituted for the same offense within six months after the first is abandoned.”
4. Appellant contends that the allegation that the offense was secretly committed is a mere
conclusion of law, and that from the very nature of the offense the matters charged were
necessarily facts within the knowledge of the public officials. He further urges that count
three does not show that defendant violated any duty imposed by law. This contention, made
for the first time in oral argument on this appeal, was elaborated upon in a later brief filed in
response to a request by the court for briefs on entirely different questions. The information is
not perfectly drawn, but we find no fatal defect in count three, and under the rule announcedin State v. Hughes, supra, we hold that neither of the attacks made on that count is well taken.
5. Appellant contends that he was denied the right to be represented by counsel at his
arraignment. The WULDOFRXUWVPLQXWHVRI$SULODUHLQSDUWDVI ROORZV³3ODLQWLII
trial court's minutes of April 22, 1938, are in part as follows: “Plaintiff represented in court
by N. E. Conklin, Special Deputy Attorney General. Defendant in Court without Counsel.
The matter of the arraignment having been set for this time, the Court stated that it wouldproceed with the arraignment at this time. The Defendant entered his objection to any
proceeding at this time as he was not represented in Court by Counsel. Objection overruled
and an exception noted to the Defendant. An Information having been filed herein against the
Defendant, the Clerk was directed to read the same to the Defendant. The Information was
read, the Defendant admitted that Fred L. Wood was his true name, and a certified copy
thereof was handed the Defendant. Upon being asked to enter a plea to the said Information,
the Defendant declined to enter any plea at this time. The Defendant refusing to enter a plea, a
plea of not guilty was entered by the Court to both counts as contained in the Information.
The Defendant renewed his objection which was overruled by the Court and an exception
noted unto the Defendant.”Other court minutes in the record show that defendant did have counsel; that on April 8,
1938, on defendant's motion based on unavoidable absence of his attorney, the arraignment
was continued until April 12; that on April 12, on motion of defendant, again based on
absence of his counsel, the arraignment was continued until April 18; and that on April 18,
the arraignment was again postponed until April 22, and the clerk was directed to notify
counsel. It will thus be seen that before April 22 there had already been three continuances.
Under these circumstances, there being nothing else before us, it will be presumed that the
trial court exercised a sound discretion in proceeding with the arraignment.
6. It is claimed by appellant that he was denied his statutory right to be allowed at least
one day to answer the information. Section 10886 N. C. L. 1929, provides that if on the
arraignment the defendant requires it, he PXVWEHDOORZHGDUHDVRQDEOHWLPHQRWOHVVWKDQ
RQHGD\WRDQVZHUWKHLQIRUPDWLRQ
ÐÐÐÐ59 Nev. 445, 456 (1939) Wood v. StateÐÐÐÐ
must be allowed a reasonable time, not less than one day, to answer the information.
Defendant, who was not only a licensed attorney, but a district attorney, did not require of the
court that he be allowed a reasonable time to plead. He stood on his general objection to anyproceedings being had in the absence of his counsel.
7. Furthermore, with respect both to the arraignment in the absence of counsel and
defendant's not being allowed at least one day to answer the information, the record is silent
as to any step taken by defendant for the purpose of setting aside the trial court's action in
these particulars. It would have been within that court's discretion to allow defendant to
withdraw the plea of not guilty, for the purpose of demurring or moving to set aside the
following proceedings just before the jury box was filled for voir dire examination: “A. J.
Maestretti, Esq., objects to further proceedings in this case on the ground that this Court has
no jurisdiction. N. E. Conklin, Esq., presents argument. The Court: The objection to the Courtproceedings to this trial will be overruled. The Court feels that this is a matter that should
have been taken care of at the time the application for the change was made.”
The minutes for June 21, while the trial was in progress, contain the following: “Mr.
Maestretti renews motion as to further proceedings in this case upon all the grounds and
authorities offered in his motion at the beginning of this trial. The Court: Motion will be
denied.”
The minutes of June 23 include the following: “The Defendant, Fred L. Wood, being
asked by the Court if he had any legal cause to show why judgment should not be pronounced
answered he had no comment to offer. At this time A. J. Maestretti, Esq., moves the Court for
a new trial. The Court: The motion for a new trial will be denied and the Defendant is given
an exception to the ruling of the Court.”8. Copies of the notice of motion and motion for change of venue, and of the affidavits in
support of the motion, are included in the record on appeal, but have no proper place therein
and cannot be considered. The court minutes do not show the ground or grounds upon which
defendant objected to the court's proceeding with the hearing of the motion, nor his ground or
grounds of objection to the order changing the place of trial. The record shows nothing
whatever done by defendant to set aside said order, until the beginning of the trial in Nye
record affirmatively shows that a motion for new trial was made, but the grounds of the
motion nowhere appear, and there is no bill of exceptions.
9. On August 12, 1939, appellant applied to this court for an order permitting him to apply
to Honorable James Dysart, who presided at his trial, to correct the minutes of the trial court
in respect to the ground of the objection of appellant to the jurisdiction of the court made atthe beginning of the trial, also near the close of the State's case when said objection was
renewed, and further for permission to supply the place of a written motion for a new trial,
and to show the grounds thereof. An amended and supplemental motion suggesting
diminution of the record was filed August 24, 1939. These motions were made months after
the case was originally briefed, orally argued and submitted for decision, and then only after
the court had called for briefs concerning its power to consider a number of alleged errors in
view of the unsatisfactory condition of the record. Aside from the question whether the court
can lawfully grant the orders applied for in these motions (State v. Hunter, 48 Nev. 358, 232
P. 778, 235 P. 645), no good reason appears for the long delay in making them, and we think
it would not be exercising proper discretion to grant them. They are hereby denied.10-12. The eighth, ninth, and tenth grounds urged for reversal are wholly without merit.
The judgment and order appealed from are affirmed.
On Petition for Rehearing
March 6, 1940.
1. Appeal and Error.
Petition for rehearing must be denied where point upon which it is based is raised for
the first time in the petition.
2. Appeal and Error.
Rule that questions raised for first time on petition for rehearing will not be considered
Gary Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General.Petition for rehearing denied.
OPINION
By the Court, Taber, C. J.:
Section 2078 N. C. L. 1929, being section 9 of an act concerning district attorneys (Stats.
of Nevada 1865, p. 386), provides that the district attorney “shall, on the first Mondays of
May, August, and November, in each year, file in the office of the county treasurer an account
in writing, certified by oath, of all moneys received by him in his of ficial capacity during the
preceding three months, and shall, at the same time, pay it over to the county treasurer.”The third count of the information under which appellant was convicted is set forth in full
in our original opinion (Wood v. State, 59 Nev. 445, 96 P.(2d) 441. Appellant contends that
even if all the allegations of this count be taken as literally true, it fails to state facts sufficient
to constitute a public offense, for the reason that the statute did not require him to pay the
moneys in question into the treasury until November 1933.
The respondent takes the position that said objection was waived by failure to demur in the
trial court. The state also claims that, aside from the question of waiver, said third count does
state facts suff icient to constitute a public offense. The further contention is made by the state
that section 2078 N. C. L. 1929 does not apply to accounting of tax moneys by district
attorneys. In support of this last proposition respondent cites Statutes of Nevada 1933, chap.
171, p. 235; section 6439 N. C. L. 1929, and section 6469 N. C. L. 1929.1. The petition must be denied for the reason that the point upon which it is based was
raised for the first time on petition for rehearing. The contention that the WKLUGF RXQWGRHVQRW
third count does not state facts sufficient to constitute a public offense was not made at all inthe trial court. It was made for the first time on appeal, and then only in oral argument after
the briefs had been filed. At that time appellant's objection to the sufficiency of the third
count was based solely upon the ground that it was not the duty of district attorneys, nor was
there any statute authorizing them, to collect taxes or receive tax money. After an adverse
decision affirming the judgment and order appealed from, appellant now for the first time
makes the contention that the third count does not state sufficient facts for the reason that,
under the statute, it was not his duty to pay money into the treasury at the time he is alleged to
ÐÐÐÐ59 Nev. 460, 461 (1939) Jones Ex Rel. v. District CourtÐÐÐÐ
cause shown, to modify provisions in decree with respect to custody of minor children before and after
rendition of final decree and at any time during minority of children. Comp. Laws 1929, sec. 9462.
3. Courts.Where a conflict existed between a statute, permitting the modification of provisions in a divorce decree
with respect to custody of minor children at any time during minority of such children and district court
rule requiring that a motion to vacate or modify a judgment must be made within six months after renditionthereof, the statute controls. Comp. Laws 1929, sec. 9462; District Court Rules, rule 45.
An original proceeding in prohibition by the State of Nevada, on the relation of Marjorie
B. Jones, against the Second Judicial District Court of the State of Nevada in and for the
County of Washoe, Department 1 thereof, and the Honorable Edgar Eather, District Judge
presiding pro tempore, and others. Alternative writ quashed, and proceedings dismissed.
The statute upon which respondent relies (sec. 9462 N. C. L.) for a continuing jurisdiction
to modify the decree, expressly limits and restricts the jurisdiction of the court to change the
custody of children to definite periods of time, namely: at the commencement of the action,
while it is pending, or upon the entry of the judgment and decree of divorce. No jurisdictional
power is delegated or authorized subsequent to the making and entry of the decree. Under thewell-known doctrine of expressio unius est exclusio alterius (“the expression of one thing is
the exclusion of another,” 25 C. J. 220, n. 17), the court, without a reservation in the decree,
lost jurisdiction at the expiration of six months.
Rule XLV of the district court prohibits the modification of all forms and characters of
judgments unless application therefor be made within six months after judgment. This
honorable court has given this rule the force of a statute, has in many instances invoked it,
and has applied it to divorce judgments and decrees. The UXOHLVQRWLQFRQIOLFWZLWKDQ\
a well-established SULQFLSOHWKDWWKHWULDOFRXUWKDVDFRQ WLQXLQJMXULVGLFWLRQWRPRGLI\WKH
GHFUHH
ÐÐÐÐ59 Nev. 460, 463 (1939) Jones Ex Rel. v. District CourtÐÐÐÐ
principle that the trial court has a continuing jurisdiction to modify the decree. Fleming v.
Fleming, 58 Nev. 179, 72 P.(2d) 1110. It is true that in the Fleming case there was an express
reservation of jurisdiction in the decree. From the decision of the court, however, it does not
appear that the court gave consideration to that fact, but, on the contrary, seemed to base its
conclusions upon section 9462 N. C. L. and decisions from other jurisdictions.
No express reservation of jurisdiction was made in the decree of divorce discussed in the
case of Aseltine v. District Court, 57 Nev. 269, 62 P.(2d) 601, involving an application for
reduction in alimony. This court held, in substance, that by reason of the fact that the
agreement which had been merged into the decree contemplated a change in its provisions in
the event there was a change in conditions, the court had the power to entertain the motion for
modification of the decree.
OPINION
By the Court, Taber, C. J.:
In June 1936 Allan Jones and Marjorie B. Jones, at that time husband and wife, entered
into a “Property Settlement Agreement” which included the following provisions regarding
their minor child, Theodore A. Jones: “The wife shall have the custody and control of the said
child and of his education until he attains the age of twenty-one years without anyinterference whatever on the part of the husband. The wife agrees that she will, so long as she
receives the payments provided for herein, properly maintain, care for and educate the said
child and subject only to this agreement she may expend the said payments in accordance
with her uncontrolled discretion. It is agreed that the husband shall have the right to visit the
said child at reasonable times. Furthermore, the parties agree to endeavor to arrange YDFDWLRQ
SHULRGVGXULQJZKLFKWKHFKLOGPD\EHZLWKWKHKXVEDQG
ÐÐÐÐ59 Nev. 460, 464 (1939) Jones Ex Rel. v. District CourtÐÐÐÐ
vacation periods during which the child may be with the husband. It is further agreed that the
child may not be removed from the United States of America without the written consent of
the husband.”
In July 1936 in Dept. No. 1 of the Second judicial district court, Washoe County, said
Marjorie B. Jones was awarded a decree of divorce from said Allan Jones, the decree
containing the following provisions: “Further ordered, adjudged and decreed, that the written
agreement entered into by plaintiff and defendant, dated June 6, 1936, settling any and all
property rights between them, providing that plaintiff have custody of child, and also with
reference to the support, maintenance and education of the minor child of the parties by the
defendant is hereby approved, adopted and confirmed by this Court, and the parties hereto are
directed to carry out the provisions of said agreement.”In June 1939 said Allan Jones noticed a motion in said district court for an order changing
and amending the portion of the decree of divorce hereinbefore quoted. Thereafter, in the
same month, said Marjorie B. Jones appeared specially for the purpose of attacking the
jurisdiction of the district court to hear said motion.
After a hearing, the district court decided that it had jurisdiction to hear and determine the
motion. Petitioner then applied to this court for a writ of prohibition.
District court rule XLV reads as follows: “No judgment, order, or other judicial act or
proceeding, shall be vacated, amended, modified, or corrected by the court or judge
rendering, making, or ordering the same, unless the party desiring such vacation, amendment,
modification, or correction shall give notice to the adverse party of a motion therefor, within
six months after such judgment was rendered, order made, or action or proceeding taken.”Section 9462 N. C. L. 1929 provides: “The court, in granting a divorce, shall make such
disposition of, and SURYLVLRQIRUWKHFKLOGUHQDVVKDOODSSHDUPRVWH[SHGLHQWXQGHUDOOWKH
to be taken, or removed, by, or at the instance of, the other party, out of the country, or
concealed within the same, it shall be the duty of the court, or of such judge in vacation,
forthwith to order such child to be produced before him, and then to make such disposition of
the same, during the pendency of the suit, as shall appear most advantageous to such child,
and most likely to secure to it the benefit of the final order to be made in its behalf; and all
such orders may be enforced, and made effectual, by attachment, commitment, and requiringsecurity for obedience thereto, or by other means, according to the usages of courts, and to the
circumstances of the case; provided, the court, upon good cause shown, may change the
custody of such minor children, if they should be satisfied that such change will be for the
welfare of such children.”
It is contended by petitioner that, as the motion for modification was noticed nearly three
years after rendition of the judgment, the district court is without jurisdiction to hear and
determine it, by reason of the provisions of said rule XLV.
1. Petitioner also relied upon the rule that, after final decree of divorce, there can be no
change in the award of alimony, or in the provisions for the support of minor children, unless
the right to make such changes is reserved by the court in its decree, or is given by statute.
Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638. She takes the position that the district courtdid not UHVHUYHMXULVGLFWLRQWRPRGLI\WKHSURYLVLRQVRIWKHGHFUHHUHODWLQJWRWKHFXVWRG\
ÐÐÐÐ59 Nev. 460, 466 (1939) Jones Ex Rel. v. District CourtÐÐÐÐ
reserve jurisdiction to modify the provisions of the decree relating to the custody of the minorchild by approving, adopting and confirming the written agreement of June 1936, and that
neither section 9462 N. C. L. 1929 nor any other statute confers upon the trial court the right
to make such modifications. Said section 9462 is interpreted by petitioner as limiting and
restricting the jurisdiction of the district court to change the custody of children to definite
periods of time, namely, at the commencement of the action, while it is pending, or upon the
entry of the judgment and decree of divorce.
Respondents' contentions are: (a) That under the provisions of section 9462 of the Nevada
Compiled Laws of 1929 there is a statutory reservation of jurisdiction permitting a change of
the custody of said child, which said reservation gives the court granting the decree a
continuing jurisdiction over the said child during its minority; (b) that the decree as to the
custody of the minor child was not final, for the reason that the provisions of paragraph 6 of
the agreement, supra, which agreement was merged into the decree, plainly indicate an
unfinished determination by the court as to the custodial rights of the father during vacation
periods.
2. This is the first time the court has been called upon to decide the first (a) of
respondents' said contentions. We have given careful consideration to the provisions of
section 9462 N. C. L. 1929, and are satisfied that the proviso at the end of that section confers
Petitioner seems to take the view that our decision in this case (59 Nev. 460, 96 P.(2d)
1096) in effect reverses rules heretofore laid down by this court, and which have EHHQLQ
IRUFHIRUWKLUW\\HDUV
ÐÐÐÐ59 Nev. 460, 468 (1939) Jones Ex Rel. v. District CourtÐÐÐÐ
been in force for thirty years. But this court, a little over eight years ago, in an opinion written
by Chief Justice Coleman, took pains to say that: “We do not wish to be understood as
holding that a decree might not be modified as to the custody of children even if the authority
to do so were not reserved. On this point we express no opinion.” Elsman v. Elsman, 54 Nev.
20, at page 30, 3 P.(2d) 1071, at page 1072.
In the case of Silva v. Second judicial district court in and for Washoe County, 57 Nev.
468, 66 P.(2d) 422, the court did not pass on the question whether a district court can modify
a divorce decree, insofar as it relates to the custody of minor children, in a case where
jurisdiction to do so is not reserved in the decree.
1, 2. Counsel contends that we have overlooked well-established rules, including our own
decisions, relative to the construction of provisos in statutes. We have not overlooked the
general rule that the operation of a proviso is usually confined to the clause or distinct portion
of the enactment which immediately precedes it. But, as stated in 59 C. J. at pp. 1088, 1089,
“The cardinal rule that, in construing statutes, the court must ascertain and give effect to the
legislative intent applies to the construction of provisos.” See, also, 59 C. J. 1090, sec. 640,citing State ex rel. Pittson v. Beemer, 51 Nev. 192, 272 P. 656; 25 R. C. J. 986, n. 18.
3. Section 9462 N. C. L. 1929 was quoted in full in the original opinion. The first clause
provides for the disposition of the minor children at the time of granting the divorce. To
construe the proviso as being limited in its operation to the portion of said section following
the first clause would be unreasonable because: First, such construction would make the
proviso mere surplusage; second, it would authorize a change of custody of the minor
children only when they are too young to dispense with the care of the mother or other female
and have been or are likely to be taken or detained from her, or when they have been or are
likely to be taken or UHPRYHGE\RUDWWKHLQVWDQFHRIRQHRIWKHSDUWLHVRXWRIWKHFRXQWU\
RUFRQFHDOHGZLWKLQWKHVDPH
ÐÐÐÐ59 Nev. 460, 469 (1939) Jones Ex Rel. v. District CourtÐÐÐÐ
removed by or at the instance of one of the parties out of the country, or concealed within the
same. Except under these particular circumstances the trial court would thus be left without
power, under the statute, to change the custody of minor children at the commencement or
during the pendency of the suit. As the first clause of the section provides for the disposition
of the minor children at the time of granting the divorce, the only reasonable interpretation of
the proviso is to hold that it empowers the district court, upon good cause shown, to change
the custody of the minor children after as well as before the decree, at any time during theminority of such children. Whether the death of one or both of the parents would make any
change in this rule is a question not presented in this case.
The petition for rehearing is denied.
____________
ÐÐÐÐ59 Nev. 469, 469 (1940) State v. Hilbish, et. al.ÐÐÐÐ
THE STATE OF NEVADA, Respondent, v. TILLMAN
HILBISH and EDDIE DAVIS, Appellants.
No. 3288
January 3, 1940. 97 P.(2d) 435.
1. Criminal Law.The evidence necessary to corroborate accomplice's testimony need not in itself be sufficient to establish
guilt, but it will satisfy statute if it tends to connect accused with commission of the offense. Comp. Laws,
sec. 10978.
2. Criminal Law.Evidence, furnished by witnesses other than accomplices, which tended to connect defendants with theft
of truck tires and tubes without aid of accomplices' testimony, was sufficient corroboration of accomplices'
testimony to support conviction for grand larceny. Comp. Laws, sec. 10978.
3. Criminal Law.Under statute providing that when two or more persons shall be included in same charge, court may, at
any time before defendants had gone into their defense, on application of district attorney, direct any
defendant to be discharged, that he may be a witness for state, district attorneys' motion is addressed to
discretion of court. Comp. Laws, sec. 10967.
ÐÐÐÐ59 Nev. 469, 470 (1940) State v. Hilbish, et. al.ÐÐÐÐ
4. Criminal Law.The use of words “any defendant” and “a witness” in statute providing that when two or more persons
shall be included in same charge, court may, at any time before defendants have gone into their defense, on
application of district attorney, direct any defendant to be discharged, that he may be a witness for state,
does not show that it was intended that no more than one defendant could be discharged under statute.
Comp. Laws, sec. 10967.
The word “any” may have reference to more than one or to many, and is frequently used in its
enlarged and plural sense as meaning “some,” or an indefinite number and quantity, one or more, as the
case may be.
5. Criminal Law.
The statute providing that when two or more persons shall be included in same charge, court may, at anytime before defendants have gone into their defense, on application of district attorney, direct any
defendant to be discharged, that he may be a witness for state, does not require trial court to take evidence
on hearing of the motion. Comp. Laws, sec. 10967.
6. Criminal Law.Order discharging two of defendants from information, pursuant to statute, was not abuse of discretion,
although no evidence was taken on hearing of district attorney's motion for such order, where record
disclosed that district attorney made proper showing on the motion. Comp. Laws, sec. 10967.
7. Criminal Law.Where several defendants were charged with theft of truck tires and tubes under same information, and
two of defendants were discharged from information, pursuant to statute, defendants who were not
discharged could not complain of trial court's failure to assign counsel to represent defendants who were
discharged, or to require defendants who were discharged to be entered of record as their own counsel.
Comp. Laws, sec. 10967.
Appeal from Sixth Judicial District Court, Humboldt County; W. D. Hatton, Judge
Presiding.
Tillman Hilbish and Eddie Davis were convicted of grand larceny, and they appeal.
Affirmed.
J. W. Dignan, for Appellants:
The arraignment of all of the defendants jointly was in violation of the law, as provided by
ÐÐÐÐ59 Nev. 469, 471 (1940) State v. Hilbish, et. al.ÐÐÐÐ
N. C. L., in that the defendants Bridges and Larkin were required to either have counsel
assigned to their defense, or they were required to represent themselves in person and of record. And the court erred in arraigning the said defendants Bridges and Larkin and
accepting a plea of not guilty to the information, while the said defendants were
unrepresented of record in open court, either by counsel or in person.
While section 10967 N. C. L. makes it discretionary with the court in the granting or
refusal of a motion of the district attorney that one of two or more joint defendants be
discharged, no court has a right to exercise its legal discretion unless or until there is some
legal evidence submitted upon which the court's exercise of discretion is based. There was
nothing upon which the court's ruling on the district attorney's motion is this case could be
based.
We suggest that there is no logical, legal, or reasonable answer to the proposition that any
attempt to so interpret section 10967 N. C. L. that more than one joint defendant may be
dismissed under it will fall of its own weight. Had the legislature intended that any number of
defendants jointly charged could be discharged on the mere motion of the district attorney,granted by the court arbitrarily, without any evidence, reason, or excuse, it could have easily
said so, and would have said so if that was the intention. It would have made it read “any
defendants,” changed the word “he” to the word “they,” the word “witness” to “witnesses,”
and then in the statute itself commanded the court to arbitrarily grant the motion, by using the
word “must,” instead of “may.”
There is not one scintilla of legal evidence in the record which, in itself and without the aid
of the testimony of the accomplices, tends to connect the defendants Hilbish and Davis with
the commission of the offense charged. And there must be before a legal conviction can be
had. Section 10978 N. C. L.
ÐÐÐÐ59 Nev. 469, 472 (1940) State v. Hilbish, et. al.ÐÐÐÐ
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General, and Merwyn H. Brown, District Attorney, for Respondent:
There is no legal requirement that in the event a defendant declines counsel a formal entry
must be made by the clerk of the court requiring the defendant to represent himself in person.
But even assuming that Bridges and Larkin were deprived of counsel, how were any
constitutional rights of the defendants Hilbish and Davis violated, they being represented bytwo lawyers at the trial? Unless Hilbish and Davis were deprived of some constitutional or
legal right, they cannot now complain.
In this case two or more persons were included in the same charge, and before any of the
defendants had gone into their defense an application was made by the district attorney to
discharge two of the defendants, that they might be witnesses for the state. Every requirement
of the statute (sec. 10967 N. C. L.) was complied with by the state, and the court properly
exercised its judicial discretion. People v. Gilbert, 78 P.(2d) 770, 783, n. 22; People v. Dillon
(Cal.), 229 P. 974, at p. 981, n. 11; People v. Frahm (Cal.), 290 P. 678, at p. 681, nn. 3-5.
The rule of law found by our own supreme court, and which represents the weight of
authority, is well stated by the supreme court of California in the case of People v. Viets, 250P. 588, as follows: “The corroborating evidence is sufficient if it, of itself, tends to connect
the defendant with the commission of the offense, although it is slight, and entitled, when
standing by itself, to but little consideration.” In the case now before the court, testimony
which tended to corroborate that of the accomplices was given by six other witnesses for the
The appellants were convicted of grand larceny and have appealed from the judgment and
order denying WKHLUPRWLRQIRUDQHZWULDO
ÐÐÐÐ59 Nev. 469, 473 (1940) State v. Hilbish, et. al.ÐÐÐÐ
their motion for a new trial. They will sometimes be referred to hereinafter by their names.
The errors assigned are as follows:
“1. The court erred in failing to assign counsel to represent the defendants Bridges and
Larkin, or to require said defendants to be entered of record as their own counsel.
“2. The court erred in granting the motion of the District Attorney for an order of dismissal
of the information and all charges against the defendants, Bridges and Larkin.
“3. The court erred in overruling the motion of the defendants, Hilbish and Davis, to set
aside the verdict and grant a new trial, particularly upon the ground and for the reason, that
there was no sufficient corroborative evidence introduced by the state connecting, or tending
to connect, Hilbish and Davis, or either of them, with the commission of the crime alleged in
the information.”
They will be considered in the reverse order.
During the year 1938 the Dodge Construction Company, Inc., was engaged in the
construction of a highway from the town of Paradise Valley, Humboldt County, Nevada, to a
point about eight miles south of said town. The company had established a road construction
camp about three miles south of the town near the highway under construction. On October
23, 1938, the highway had been practically completed and the company was getting ready toabandon the camp. On the afternoon of that day a large number of its automobile truck tires
and tubes kept in the camp were loaded upon a dump truck and secured thereon by wires.
During the following night seven of these tires and five tubes were stolen from the truck. On
the next morning the superintendent of the company, Frank Dunn, discovered the theft and
informed the officers. The stolen tires and tubes were found by them at a place over what is
known as Hinkey Summit, some distance north of Paradise Valley. They were found through
information furnished by Larkin, who had admitted complicity in the theft, DQGLPSOLFDWHG
%ULGJHVDQGDSSHOODQWV
ÐÐÐÐ59 Nev. 469, 474 (1940) State v. Hilbish, et. al.ÐÐÐÐ
and implicated Bridges and appellants. They were all arrested and jointly informed against for
the crime. Larkin and Bridges, who had been discharged from the information by the court on
motion of the district attorney, testified in behalf of the state.
From the undisputed evidence it appears the Hilbish, at the time of the theft and for about
two years prior thereto, lived in the town of Paradise Valley. He kept a saloon, and during the
summer of 1938 ran a small restaurant and pool hall in connection therewith. Davis was
working for the Dodge Construction Company when the theft was committed and was living
at the construction camp. He had been working there since July or August of that year. He
was well acquainted with Hilbish and frequently visited his place of business. Bridges andLarkin were transients who stopped around Hilbish's place during the summer. The latter and
they entered into an agreement for cutting and hauling wood, and pursuant thereto had
established a camp in Lye Canyon beyond Hinkey Summit. They were cutting and hauling
cottonwood. Hilbish had purchased a Dodge truck for hauling the wood. Some wood was
hauled in the truck from the other side of Hinkey Summit to Paradise Valley about October
18.
The prosecution established by the testimony of Bridges and Larkin that they agreed to and
did join in stealing the tires and tubes on the night of October 23, 1938, loading them onto the
Dodge truck driven by Hilbish, taking the property over Hinkey Summit and secreting it near
the wood camp.
According to the testimony of Bridges, Hilbish came into the kitchen of his place on theevening of October 22 and made the proposal to Bridges and Larkin to steal the tires and
tubes. On the following evening he and Hilbish went to the construction camp in the latter's
car and saw Davis. Hilbish asked him “if he was ready to go,” and Davis said, “Yes.” The
three then came in the car to Paradise Valley, and on the way Hilbish and 'DYLVWDONHGRYHU
WKHZD\WKHWKHIWFRXOGEHDFFRPSOLVKHG
ÐÐÐÐ59 Nev. 469, 475 (1940) State v. Hilbish, et. al.ÐÐÐÐ
Davis talked over the way the theft could be accomplished. Davis said the tires had been
loaded on a truck and were to be taken to Fallon the next morning. He had loaded them
himself and had loaded them in such a way that the new tires could be unloaded very easily.
As they were wired on, a pair of pliers would be needed to cut the wires. When they reached
town the witness told Larkin to get the pliers. He did so and the four returned to the
construction camp in the same car—a Pontiac coupe. Before starting Davis said: “How about
the money?” Hilbish said: “I have thirty-five dollars in my pocket here.” Davis replied, “Now
here, none of that, it is fifty dollars.” Hilbish said: “I can drive around and get some money
around at my house.” He drove around to the house and went in. He came back in a few
minutes and all four went in the car to the vicinity of the construction camp. Davis then went
into the camp to see if it were safe to proceed. Finding no one about, Bridges was posted as a
sentinel while Davis and Hilbish unloaded the tires from the truck. Hilbish rolled them up an
old road about two hundred feet and placed them in the sagebrush near the old highway.
Bridges took two boxes of tubes to the same place. Hilbish then paid Davis $50, and the latter
returned to the construction camp. Hilbish and Bridges then took the tubes over to the new
highway and the former tore a piece of cardboard off one of the boxes and stuck it up on the
edge of the new highway as a marker. Larkin came up in a few minutes in the Pontiac coupe,
and the three returned to Hilbish's place of business. Shortly after two o'clock in the morning
they returned to the place on the new highway where the marker had been placed, Larkin
driving the Pontiac coupe, accompanied by Bridges, and Hilbish driving the Dodge truck.
After they reached the vicinity of the construction camp Larkin parked the Pontiac couple and
he and Bridges got into the Dodge truck. They jumped off at the cardboard marker and wentover to the old highway and UROOHGWKHWLU HVRYHUWRWKHQHZKLJKZD\DOVREULQJLQJWKHUHVW
RIWKHWXEHV
ÐÐÐÐ59 Nev. 469, 476 (1940) State v. Hilbish, et. al.ÐÐÐÐ
rolled the tires over to the new highway, also bringing the rest of the tubes. Shortly afterwards
Hilbish drove up with the Dodge truck, and the tires and tubes were loaded onto it. The truck
was headed towards Winnemucca while the stolen property was being loaded. It was then
taken to a place near the wood camp as heretofore stated.
On the evening of October 24 the witness saw Davis and Hilbish I the yard back of the
latter's building and heard a conversation between them. Hilbish turned to Bridges and said:
“Davis said we had to move those tires from the wood camp tonight; that the officers are
going to be up there and search tomorrow morning.” Davis said: “Yes, by all means you have
to move them from there tonight if they are hid in the wood camp.” Hilbish, Larkin and
Bridges went to the wood camp that night and moved the tires and tubes to the place where
they were finally found by the officers.
Larkin in his testimony corroborated Bridges in the main.
Appellants were witnesses in their defense and denied any participation in or knowledge of the stealing of the tires and tubes. The testimony of Bridges and Larkin, as we have seen,
shows to the contrary. A conviction cannot be had on the testimony of an accomplice. It must
be corroborated by other evidence which alone tends to connect the defendant with the
commission of the crime. Section 10978 N. C. L.
Is there evidence in the record, aside from the testimony of the accomplices, which has
such tendency?
Clifford Cuff, a witness for the prosecution, testified that he was working for the Dodge
Construction Company on the highway work during September and October 1938. He was
acquainted with the road camp and knew that quite a few tires were kept behind and around
the shop. In the early part of October he made a trip to Winnemucca with Davis. While there,
about 4 o'clock in the afternoon of that day, he had a conversation with Davis in which the
latter made him a proposition in UHJDUGWRVWHDOLQJWKRVHWLUHVDQGWROGKLPDWUXFNZRXOG
regard to stealing those tires and told him a truck would be needed; and that he could sell the
tires, but it would take a little time. The witness testified further that on the evening of
October 23, 1938, at about 7 o'clock he was at Hilbish's place in Paradise Valley; that Hilbish
left there at that time and returned about nine-thirty or ten o'clock, acting nervous and excited.
George McCain testified that during the months of September and October he was
employed by the Dodge Construction Company on the Paradise job and was living at the
camp. Lew Banks and he lived in the same bunk house. On an occasion between the 11th and
23d of October when he and Davis were working together on the highway Davis told him that
he knew where he could sell those tires by the shop for $50 apiece. During that week witness
and Davis went to Hilbish's saloon several times and on more than one occasion while they
were there witness observed Davis and Hilbish taking in a small room off the kitchen,
without a light. About 7 o'clock on the evening of October 23, when witness was in the bunk
house at the construction camp. Hilbish drove up in a car and Davis went out and got in the
car and left with him.
Witnesses for the prosecution, Deputy Sheriff Frank Mendiola, Frank Dunn, and H. E.Baxter, testified that on the morning of October 24 they found a water and oil leak at a point
on the new highway where tires had been loaded, which leaks apparently came from a car or
truck which was headed south towards Winnemucca. The witnesses also found some
cottonwood bark at that place. The witness Baxter found there a piece of cardboard. This
piece of tube box was similar to a piece of cardboard found by another witness at the same
place. Baxter measured the distance and angle of the oil and water leak. Later he saw the
Dodge truck belonging to Hilbish in Paradise Valley and saw the water leaking out of it, and
the oil leak. After the truck was moved Baxter measured the distance and angle of the water
and oil leak and found the measurements identical with WKRVHKHKDGPDGHRQWKHKLJKZD\
ZKHUHWKHWLUHVZHUHORDGHG
ÐÐÐÐ59 Nev. 469, 478 (1940) State v. Hilbish, et. al.ÐÐÐÐ
those he had made on the highway where the tires were loaded.
The witness Mendiola also testified that on the morning of October 24 he went down the
road a ways below the camp to where the old road turns off into a gravel pit and found where
a car had been driven in and backed out onto the main highway. The tracks were fresh. On the
following day he went over Hinkey Summit and found Hilbish, Bridges and Larkin there. TheDodge truck was there. He examined the tracks made at the camp by the Dodge truck and
found the tracks made by the front tires of the truck identical with those he found below the
Dodge camp.
The testimony of Cuff and McCain indicates that Davis, shortly prior to the theft, had in
mind the stealing of the tires. He only needed a truck, according to Cuff. This requisite to the
consummation of the crime seems to have been supplied by Hilbish, who had the needed
truck. The circumstances tend to show that this truck was employed to transport the stolen
property from the vicinity of the construction camp to the vicinity of the wood camp. The
agreement in distance and angle between the oil and water leaks found near the scene of the
crime, with the leaks on the Hilbish truck; the agreement between the front tire tracks freshly
made below the construction camp and the tire tracks made by the front tires of the Hilbish
truck at the wood camp; the truck used for hauling cottonwood a few days before the theftand the piece of cottonwood bark at the place where the evidence tends to show the tires and
tubes were loaded, all forms a chain of circumstances which points to the Hilbish truck as the
means employed to convey the stolen property to a place of concealment. True, as contended
by appellants' counsel, there is no corroborative evidence which directly shows that Hilbish
was driving it on the expedition, but he was the owner of it and in possession of it for some
time prior to and on the night of the crime. He WKHUHIRUHKDGWKHRSSRUWXQLW\WRGULYHLW
ÐÐÐÐ59 Nev. 469, 479 (1940) State v. Hilbish, et. al.ÐÐÐÐ
therefore had the opportunity to drive it. Opportunity standing alone would be of no
consequence, but taken in connection with all the other circumstances, was something the
jury could consider in reaching its conclusion. Another circumstance the jury could consider,
was that Hilbish's testimony that he was at home at eight-thirty p. m. and remained there the
rest of the night of October 23, is flatly denied by Cuff's testimony that on the evening of that
day he was in the former's saloon and saw Hilbish leave his saloon at about 7 o'clock p. m.
and return to the saloon between 9 o'clock and 10 o'clock that night, in a nervous and excited
condition.
1. As to Davis, in connection with his statement to cuff and McCain indicating intentionto steal the tires, the jury had a right to consider his opportunity to do so, and formulate the
plan with Hilbish. He visited the latter's place of business every night and on occasions
testified to by Cuff, was in private consultation with him in a room without a light. These
circumstances, though weak in probative value, were relevant. The evidence necessary to
corroborate an accomplice need not in itself be sufficient to establish guilt. It may be slight in
probative effect, yet its weight is for the jury, and if it tends to connect the accused with the
commission of the offense, it will satisfy the statute. People v. Viets, 79 Cal. App. 576, 250
P. 588; State v. Streeter, 20 Nev. 403, 22 P. 758.
2. On the whole the evidence in this case furnished by witnesses other than the
accomplices and without the aid of the testimony of the latter, tends to connect the appellantswith the commission of the offense. This is sufficient corroboration. State v. Seymour, 57
Nev. 35, 57 P.(2d) 390.
3. There was no error in granting the motion of the district attorney and discharging
Bridges and Larkin from the information. The motion and order were made pursuant to
section 10967 N. C. L. which provides: “When two or more persons shall be included in theVDPHFKDUJHWKHFRXUWPD\DWDQ\WLPHEHIRUHWKHGHIHQGDQWVKDYHJRQHLQWRWKHLU GHIHQVHRQWKHDSSOLFDWLRQRIWKHGLVWULFWDWWRUQH\RURWKHUFRXQVHOIRUWKHVWDWHGLUHFW
ÐÐÐÐ59 Nev. 469, 480 (1940) State v. Hilbish, et. al.ÐÐÐÐ
same charge, the court may, at any time before the defendants have gone into their defense,
on the application of the district attorney or other counsel for the state, direct any defendant to
be discharged, that he may be a witness for the state.”
The motion was made in apt time, as was the order that followed. Appellants had not gone
into their defense. The district attorney intended to and did use Bridges and Larkin as
witnesses for the state. Under the statute such a motion is addressed to the discretion of the
court.
4. The contention that because of the words “any defendant” and the words “a witness” in
the section, it was intended that no more than one defendant could be discharged, and it was
therefore error to discharge two, is without merit. The authorities cited in support of this
contention do not sustain it. In People v. Gilbert, 26 Cal. App. (2d) 1, 78 P.(2d) 770, 783,
more than two persons had been indicted. Section 1099 of the Penal Code of California is
identical with said section 10967 N. C. L. During the trial and before the defendants had gone
into their defense, the court, on application of the district attorney, made the order discharging
two of the defendants that they might be called as witnesses for the people. While the point
does not seem to have been made that the court was without power to discharge more than
one defendant, the order of the lower court was upheld, and the appellate court said: “* * *
the court, on application of the district attorney, pursuant to the provisions of section 1099 of
the Penal Code, made an order discharging the defendants * * *.”
We discern no logical reason why, if more than two persons are charged with crime thelegislature should deem it proper that only one should be entitled to the immunity of the
statute.
The word “any” may have reference to more than one or to many, and has been frequently
used in its enlarged and plural sense as meaning “some,” or an indefinite number and
quantity, one or more, as the case may be.
ÐÐÐÐ59 Nev. 469, 481 (1940) State v. Hilbish, et. al.ÐÐÐÐ
3 C. J. 231. We are satisfied that it was intended in that sense.
5, 6. It is contended that because the court took no evidence on the hearing of the motion
its action was arbitrary and therefore erroneous. The taking of evidence was unnecessary. The
statute does not require it. People v. Dillon, 68 Cal. App. 457, 229 P. 974, 975. The record
discloses that the district attorney made a proper showing on the motion. The discretion of the
court was properly exercised in granting the motion.
taking, detaining, or injuring personal property must be commenced within three years.
In this case the plaintiff could have waived the tort and sued on contract. However, there
must be an express waiver of the tort, and there is nothing in the complaint from which such a
waiver may be inferred.
It will be noted from the record that after a receiver had been appointed by the court, at the
instance of Warren, and after the receiver had retained possession of the property of thedefendants for five months, Warren then discharged the receiver, without any order of court,
or any court proceeding whatever, and assumed all the responsibilities of the receiver for a
period of about eight months. The court found that the defendants were damaged by the act of
Warren in, maliciously and without probable cause, and bringing and prosecuting the action
against these defendants, causing a receiver to be appointed to take possession of their
property, and then taking the property from the receiver.
We contend that attorney's fees may be allowed as damages in cases of malicious
prosecution, whether criminal or civil.
OPINION
By the Court, Ducker, J.:
Plaintiff has appealed from a part of the judgment.
The allegations of his complaint show the execution and delivery on or about June 1,
1927, of a real and chattel mortgage of ranching property by W. M. DeLong and Mabel
DeLong to plaintiff and the Winnemucca State Bank & Trust Company, a corporation, for the
purpose of securing the payment of the former's promissory notes in the principal sum of
$36,000; the subsequent assignment, prior to the commencement of this DFWLRQRIWKH
action, of the mortgage by the corporation to plaintiff; the foreclosure thereof, in which
plaintiff obtained an order of sale of all of the property described in the mortgage and that the
proceeds thereof be applied in satisfaction of the judgment in favor of plaintiff, which
judgment was in the sum of $56,529.44. The complaint further shows the sale of all of thereal and personal property then remaining and in existence subject to the lien of mortgage for
the sum of $25,000, which was applied to and credited in partial payment of said judgment
and decree of foreclosure in favor of plaintiff, and leaving a balance in the sum of
$31,573.59, due and unpaid on said mortgage.
The charging part of the complaint herein is as follows: “That during the life of the said
mortgage and while the lien thereof, in favor of the plaintiff was in full force and effect upon
and against all of the property of the said mortgagors, and prior to the commencement of the
action for the foreclosure thereof on the 16th day of November, 1935, the said defendants,
above named, jointly and severally took, purchased, used, consumed and converted to their
own use certain of the said mortgaged property with full notice and knowledge of the
existence of the said mortgage lien thereon, consisting of hay, grain, feed and pasture,
including the use and occupation of all of the ranch premises of the mortgagors, and with the
continual use and occupation of all of the water rights and range rights belonging thereto,without the permission, consent or knowledge of the mortgagees, of the value of Eight
Thousand Dollars in lawful money of the Untied States, no part of which sum has been paid
to the plaintiff, and the whole thereof is now due, owing and unpaid from the said defendants
to the plaintiff.”
The defendants, who are bothers and sister, answered, admitting all of the complaint
alleged as matter of inducement, and denying all of the said charging part of the complaint,
save and except they admitted their NQRZOHGJHRIWKHH[LVWHQFHRIWKHPRUW JDJH7KH\
knowledge of the existence of the mortgage. They further answered by setting up an
affirmative defense to the effect that they paid plaintiff for the hay, grain, feed and pasture,
etc., alleged to have been purchased and consumed by them under an agreement with plaintiff
to exchange therefor certain labor of the defendants in connection with the mortgaged
property.
For a further defense defendants alleged that all claims of plaintiff against defendants for a
period prior to three years from the date of the filing of the plaintiff's complaint are barred by
the provisions of chapter 4, section 8524, subdivision 3, Nevada Compiled Laws 1929.
In addition the defendants set up nine counterclaims. Plaintiff demurred to all of said
defenses upon the ground that none constituted a defense to plaintiff's cause of action. The
demurrer was overruled. The defenses were denied in plaintiff's reply. The action was tried by
the court without a jury. The court found that defendants took, purchased, used, consumed
and converted to their own use during the years 1927 to 1934, inclusive, hay and pasture
under the mortgage to plaintiff, the value of which was the sum of $4,194.60. In this
connection the court further found that this action was brought on October 7, 1936, and thatno recovery could be had by plaintiff against the defendants for the hay and pasture taken and
used for the first six years, because his action was subject to the statute of limitations pleaded
by defendants. The value of the hay and pasture taken and used by them in the years 1933 and
1934 was found to be the sum of $1,457, and due and owing to the plaintiff by the
defendants.
The court found against defendants on three of the counterclaims, and for them on the
remaining six in the aggregate amount of $4,161.14; and that the amount of plaintiff's
of contract and a tort, so that plaintiff has a cause of action in contract without any waiver of
tort, and cases where the cause of action arises out of tort, and there is no cause of action in
contract except by virtue of the waiver of the tort. In cases of the latter character the waiver
must be averred either expressly or by the manner of stating the cause of action, for the
waiver is an indispensable element in the cause of action.”
This is essential to the end that the court may know the character of the action, and that thedefendant may not be embarrassed or misled in making his defense.
3. As stated in Knickerbocker & Nevada Silver Mining Company v. Hall, 3 Nev. 194: “As
the defense which the defendant is permitted to make may to some extent depend upon the
character of action made out by the complaint, the plaintiff should be compelled to show
clearly by his pleadings whether his action is based upon tort or contract.”
In the instant case the question is not left in doubt by the allegations of the complaint. The
defendants and the lower court construed them as stating a cause of action in tort. They were
correct in their conclusion. The trial court therefore did not err in finding that no recovery
could be had by plaintiff for the hay and pasture taken and consumed for the first six years, by
virtue of the three-year statute of limitations pleaded by defendants. In this respect the
judgment should be affirmed.The other part of the judgment appealed from is that based upon the findings in favor of
the six counterclaims.
Plaintiff contends that said counterclaims are not pleadable as such in this action because
they do not “arise out of the transaction set forth in the complaint as the foundation of the
plaintiff's claim,” nor are they “connected with the subject of the action.”
The complaint alleges the right to the possession of WKHSURSHUW\WKHUHLQDOOHJHGWRKDYH
alleged fraud and counter-claimed, claiming that, in the series of transactions, plaintiff agreed
to pay defendant further sums to protect the investments, which sums defendant advanced for
plaintiff. It was held a proper counterclaim as arising from the same transaction set up in
plaintiff's complaint. In the case referred to the court said:
“‘The term “transaction,” as used in the statute, is obviously broader than the term
“contract,” and authorizes matters to be set up as counterclaims, which could not be sopleaded as arising upon the contract relied upon by plaintiff. The cause of action arises from
the transaction set forth in the complaint when the combination of acts and events,
circumstances and defaults, upon which the rights of the parties are based, when viewed in
one aspect, result in plaintiff's right of action, DQGZKHQYLHZ HGLQDQRWKHUDVSHFWUHVXOW
IDYRUDEO\WRGHIHQGDQW
ÐÐÐÐ59 Nev. 481, 491 (1940) Warren v. DeLongÐÐÐÐ
and, when viewed in another aspect, result favorably to defendant. The transaction is not
necessarily confined by the facts stated in the complaint, but the defendant may set up new
facts, and show the entire transaction, and counterclaim upon that state of facts as the
transaction upon which plaintiff's claim is founded. 25 Am. & Eng. Ency. Law, 589.'“
4. In the case of Scott v. Waggoner, 48 Mont. 536, 139 P. 454, 455, L. R. A. 1916c, 491,
the action was based upon a lease of a hotel and was for rent and waste, to which a
counterclaim was set up for wrongful eviction and conversion of personal property. In
holding the counterclaim to be properly pleadable, the court said:
“That these provisions are designed to enable parties litigant to adjust their differences in
one action, so far as that can logically be done, and thereby to prevent multiplicity of suits, ismade plain by the further provision that, if the defendant omit to set up a counter claim in the
classes mentioned in subdivision 1 of section 6541, neither he nor his assignee can afterwards
maintain an action against the plaintiff thereon. Section 6547. For statutes so highly remedial,
a broad and liberal construction is required, in order that the purposes designed by them shall
be most completely served. * * *
“As pointed out by Mr. Pomeroy (Code Remedies, div. 6, subd. 1), the solvent of the
difficulty lies in the breadth and scope of the terms ‘transaction' and ‘subject of the action.'
The term ‘transaction' is not legal and technical, it is common and colloquial; it is therefore to
be construed according to the context and to approved usage. (Rev. Codes, sec. 8070.) As so
construed, it is broader than ‘contract' and broader than ‘tort,' although it may include either
or both; it is ‘that combination of acts and events, circumstances and defaults, which, viewed
in one aspect, results in the plaintiff's right of action, and viewed in another aspect, results in
the defendants right of action' (Pomeroy's Code Remedies, sec. 774), and it applies ‘to any
of the parties resulting in wrong, without regard to whether the wrong be done by violence,
neglect or breach of contract.'“The above definition of the term “transaction” is set forth in 1 Bancroft's Code Pleading, p.
547, with citation of additional authorities.
5. The counterclaims were properly pleaded.
6. In the former suit brought by plaintiff against William M. DeLong and Mabel DeLong,
his wife, to foreclose the mortgage, Jewell DeLong and Bill DeLong, Jr., were joined as
parties defendant. In that suit plaintiff sought and secured the appointment of a receiver. The
receiver took possession of certain personal property. Defendants here base their
counterclaims for damages upon the theory that in securing the appointment of said receiver
the plaintiff acted maliciously, unlawfully and without probable cause. The trial court
disallowed counterclaims one, two, and seven, and gave defendants judgment on theremaining six. No appeal is taken from the action of the court in disallowing one, two, and
seven. The main objection urged by plaintiff against the allowance of the counterclaims, is
that no adjudication was ever made, by any court, prior to the time of pleading said
counterclaims, that the securing of the appointment of the receiver in the foreclosure suit was
unlawful, malicious and without probable cause. The general rule is: “That a right of action
against a party wrongfully procuring the appointment of a receiver accrues to the party injured
because of such receivership, on the adjudication that the appointment was improper.” 23 R.
C. L. page 45, par. 46, note 11; note, Ann. Cas. 1915d, at page 1040.
To give a right of action, however, the adjudication need not be an express adjudication
against the propriety of the appointment.
The supreme court of Montana, in the case of Lyon v. United States Fidelity & GuarantyCo., 48 Mont. 591, 140 P. 86, 89, Ann. Cas. 1915d, 1036, makes the following pertinent
observation: “Nor does any controlling UHDVRQDVVHUWLWVHOIIRUWKHFRQFOXVLRQWKDWLQDFDVH
Z KHUHWKHULJKWIXOQHVVRIWKHDSSRLQWPHQWGHSHQGVXSRQWKHPHULWVRIWKHSODLQWLIIV
specifically adjudges the ownership of the property to be in the defendant, it seems gratuitous
to say that from this a finding against the propriety of the receivership cannot be implied or, if
implied, cannot be sufficient.”
7, 8. In the mortgage foreclosure suit the court found the personal property involved to be
the property of Jewel DeLong and Bill DeLong, Jr., which was a sufficient adjudication that
the appointment of a receiver was improper, and the taking of the property of Jewel DeLongand Bill DeLong, Jr., wrongful. Lyon v. United States Fidelity & Guaranty Co., supra. There
are four defendants in this action who were not parties to the original action, viz: Irving
DeLong, Albert DeLong, Melvin DeLong, and May DeLong Angus. The last-named parties
are shown to be part owners of the personal property involved in the foreclosure suit, and to
have suffered damages by reason of the appointment of the receiver and the taking possession
of and retention by him of said personal property. The additional defendants are in a position
to counterclaim in this suit. Stevens v. Simmons et al., Tex. Civ. App., 61 S. W. (2d) 122; St.
Johnsbury & Lake Champlain R. Co. v. Hunt, 55 Vt. 570, 45 Am. Rep. 639.
The contention of plaintiff that the counterclaims cannot be maintained because of no
adjudication as to the wrongfulness of the appointment of the receiver in the foreclosure suit,
is without merit. The judgment RIWKHORZHUFRXUWDVWRWKHFRXQWHUFODLPVWKUHHIRXUILYH
VL[DQGHLJKWLVDIILUPHG
ÐÐÐÐ59 Nev. 481, 494 (1940) Warren v. DeLongÐÐÐÐ
of the lower court as to the counterclaims three, four, five, six, and eight, is affirmed.
9. Counterclaim nine is for damages on account of attorney fees expended by defendants
in defending against the foreclosure suit. In that suit relief was granted plaintiff, as well as totwo of the defendants. It cannot be determined from the record the amount expended in
defending against the foreclosure of the mortgage, or the amount expended in the
establishment of ownership to the personal property. It appears from the findings that the
amount was paid for defending the entire action. As to the foreclosure suit, no attorney fees
could be recovered. Being thus uncertain, no recovery can be had, and the judgment is
ordered modified so as to eliminate therefrom the allowance of $750 for attorney fees. August
ÐÐÐÐ59 Nev. 495, 495 (1940) Harper v. LichtenbergerÐÐÐÐ
J. L. HARPER, Appellant, v. GEORGE W.
LICHTENBERGER, Respondent.
No. 3277
On Motion to Strike Portions of Judgment Roll
July 7, 1939. 92 P.(2d) 719.
1. Appeal and Error.
A minute order constituting a ruling on demurrer was properly a part of judgment roll. Comp. Laws, sec.8829.
2. Appeal and Error.Conclusions of law found and adopted by trial court cannot be properly included in judgment roll,
regardless of whether the appeal is taken in a case in equity or a case at law. Stats. 1937, c. 32, sec. 38;
Comp. Laws, sec. 8829.
3. Appeal and Error.
Nothing can become a part of the record of the record on appeal from final judgment unless it is a part of
the judgment roll proper or is embraced in a bill of exceptions. Stats. 1937, c. 32, sec. 38; Comp. Laws,
sec. 8829.
4. Appeal and Error.
Where trial court reached its conclusions of law from facts found by jury by its special verdict, the specialverdict was a proper part of the judgment roll. Comp. Laws, secs. 8877, 8829.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by George W. Lichtenberger against J. L. Harper. From an adverse judgment,
defendant appeals. On motion for an order striking certain portions of the judgment roll.
Motion granted in part.
Ham & Taylor, for Respondent:
Where there is a verdict of the jury there can be no finding of the court further than is
necessary to explain his conclusions of law. Obviously, in this case the conclusions of law of the trial court, upon the special verdict, were erroneously incorporated in the judgment roll.
Lindley & Co. v. Piggly Wiggly Nevada Co., 54 Nev. 454, 22 P.(2d) 355; Brearley v. Arobio,
54 Nev. 382, 12 P.(2d) 339; Marlia v. Lockwood, 54 Nev. 403, 20 P.(2d) 247; Peri v. Jeffers,
ÐÐÐÐ59 Nev. 495, 496 (1940) Harper v. LichtenbergerÐÐÐÐ
Clifford A. Jones, Roland H. Wiley and Harry T. Young, for Appellant:
This action being in equity, our contention is that the jury could be impaneled for the
purpose only of sitting in an advisory capacity to the court, and any verdict it might rendercould not be binding unless expressly adopted by the court in its findings of fact, and that
after such verdict had been adopted by the court, all proceedings, including the practice on
review, is the same as though no jury had been called in. Townsend v. Bell, 167 N. Y. 462, 60
N. E. 757; Duffy v. Moran, 12 Nev. 94; Van Fleet v. Olin, 4 Nev. 95; Low v. Crown Point, 2
Nev. 75; 21 C. J. 594, sec. 735. In the instant case the court expressly adopted the special
verdict of the jury as its own findings of fact.
OPINION
By the Court, Dysart, District Judge:Respondent moves this court for an order striking certain portions of the judgment roll,
which judgment roll constitutes the record on appeal.
Appellant gives notice that he intends to appeal and does appeal from the judgment made
and entered in the lower court on the 23d day of December 1938 without first moving for a
new trial. No bill of exceptions or statement of the case was ever filed and served. So, it
appears from the record that appellant (defendant below) has appealed upon the judgment roll
alone.
1. Respondent, by his supplemental points and authorities, concedes that the first
paragraph of his motion to strike, namely, paragraph 1 of his said motion wherein he moves
to strike the minute order appearing at page 25 of the judgment roll, is not well taken, in that
the said minute order is a ruling on demurrer and is, therefore, properly a part of the judgmentroll as provided by section 8829 N. C. L. 1929. We will, therefore, consider RQO\WKHVHFRQ G DQGODVWSDUDJUDSKRIUHVSRQGHQWVVDLGPRWLRQQDPHO\WKDWSDUWRIVDLGPRWLRQZKHUHLQ UHVSRQGHQWPRYHVWRVWULNHWKHFRQFOXVLRQVRIODZRIWKHWULDOFRXUWFRPSULVLQJSDJHV
its decision and the jury returned its special verdict. Then follows the special verdict of the
jury, including the findings of fact by the jury. Following the jury's special verdict and
beginning on page 48 of said record, which is the last page of the portion of the record which
respondent moves to strike, we find the following: “and the court having adopted said special
verdict.” The court then proceeds to find and adopt its conclusions of law, based upon the
special verdict and findings of the jury. Respondent, in his said motion to strike the portion of the record just referred to, bases said motion upon the ground: that the said portion of the
record is not “embraced in any statement of the case or bill of exceptions and that the same
are (is) not properly a part of the judgment roll and consequently cannot be considered on this
appeal.”
2, 3. Appellant, from the record as made, must rely for his appeal upon what properly
constitutes the “judgment roll.” Section 38 of the “New Trial and Appeals” act, being section
38 of chapter 32 of the 1937 session laws of the state of Nevada, found at page 66 thereof,
among other things, provides as follows: “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.” Section 8829 N. C. L. 1929 provides what shall constitute the judgment roll in civil
cases. Paragraph 1 of said section SURYLGHVZKDWVKDOOFRQVWLWXWHWKHMXGJPHQWUROOLQ
GHIDXOWFDVHV
ÐÐÐÐ59 Nev. 495, 498 (1940) Harper v. LichtenbergerÐÐÐÐ
provides what shall constitute the judgment roll in default cases. Paragraph 2 provides as
follows: “In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the
court or referee, all bills of exceptions taken and filed, and a copy of any order made ondemurrer or relating to the change of parties, and a copy of the judgment; * * *.” It will be
noted that section 8829, supra, makes no provision for including in the judgment roll the
conclusions of law found and adopted by the trial court, and since said section expressly
defines what shall constitute the judgment roll, and as it does not include the conclusions of
law, reached by the trial court, it necessarily follows that the same are no proper part of the
judgment roll. If it was the intention of the appellant to have this court review the conclusions
of law, found by the trial court, he should have included the same in a statement of the case
or, perhaps more properly, in a bill of exceptions. Nothing can become a part of the record on
appeal from the final judgment unless it is a part of the judgment roll proper or is embraced in
a bill of exceptions. See Brearley v. Arobio, 54 Nev. 382, 12 P.(2d) 339, 19 P.(2d) 432; also
Peri v. Jeffers, 53 Nev. 49, 292 P. 1, 293 P. 25, 298 P. 658.
4. Section 8777 N. C. L. 1929 defines both a general and special verdict of the jury under
our civil jury system, and as to a special verdict, provides as follows: “The special verdict
shall present the conclusions of fact, as established by the evidence, and not the evidence to
prove them; and those conclusions of fact shall be so presented as that nothing shall remain to
the court but to draw from them conclusions of law.” The trial court, in the instant case,
reached its conclusions of law from the facts found by the jury by its special verdict; and by
Where no bill of exceptions was ever made up, prepared, and filed; and no
jurisdictional question was raised, only question presented by appeal was whether
complaint stated facts sufficient to constitute a cause of action. Comp. Laws, sec. 8601;
Laws 1937, c. 32.
4. Pleading.When complaint is attacked for first time in supreme court, court will not look with
favor thereon, and will place a liberal construction upon complaint. Comp. Laws, sec.
8601.
5. Mines and Minerals.
In lessor's action to cancel mining lease and agreement, complaint alleging that lessee
failed to install ample power and pumps to unwater the underground workings within 60
days after taking possession, and failed to furnish blueprints or maps at least once every
three months as required by lease, and that lessor caused notice of forfeiture to be served
on lessee who failed to remedy causes stated in notice, stated a cause of action. Comp.
Laws, sec. 8594.
6. Appeal and Error.Where evidence was not before supreme court, court would assume that there was
ample evidence to support findings of jury.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by George W. Lichtenberger against J. L. Harper for the cancellation of a mining
lease, the appointment of a receiver, and an accounting of royalties, where in defendant filed a
demurrer. From a judgment for plaintiff, defendant appeals. Affirmed.
Clifford A. Jones, Roland H. Wiley and Harry T. Young, for Appellant:In order to allege a cause of action for the forfeiture against appellant, the complaint must
aver sufficient facts to show that appellant had substantially violated the terms and conditions
of the agreement; that notice of such violations had been served upon appellant; that more
than sixty days had elapsed after service of such notice; that appellant continued such
substantial violations, and that such violations resulted in damage to respondent. The only
statement contained in the complaint with reference to any continued violations of the WHUPV
The complaint states that the “defendant did not, as provided in said lease and agreement,
or ever or at all” do the things required by the said lease to be done. That means he did not
ever or at all do those things prior to February 8, the date of the filing of the complaint. The
complaint also alleges and counsel admits that notice to cure the forfeiture was served on
December 5, 1937, more than sixty days before the filing of said complaint, as the timewithin which he was permitted to perform expired on February 4, 1938. How could there be a
more perfect allegation with respect to the defaults than that he did not ever or at all cure the
breaches up to and including February 8, 1938?
Conclusions of law by the pleader are sufficient to support a judgment after verdict. 49 C.
J. 885.
OPINION
By the Court, Dysart, District Judge:
1. This appeal is taken upon the judgment roll, and any errors complained of, which may
be considered by this court, are such errors as appear upon the face of the judgment roll alone.Section 38 of chapter 32, 1937 session laws, p. 53; Greinstein v. Greinstein, 44 Nev. 174, 191
P. 1082. The judgment roll, which constitutes the record on appeal in the instant case,
consists of the complaint and exhibits attached, demurrer to the complaint, order overruling
defendant's demurrer, second amended answer of defendant with exhibits attached, plaintiff's
reply, special verdict of the jury, judgment, notice of appeal and undertaking on appeal.
ÐÐÐÐ59 Nev. 495, 502 (1940) Harper v. LichtenbergerÐÐÐÐ
The said record on appeal discloses: that the respondent, plaintiff below, commenced an
action in the district court of the Eighth judicial district of the State of Nevada, in and for the
county of Clark, for the cancellation of a certain mining lease and agreement, a copy of which
was attached to and made a part of the plaintiff's complaint; for the appointment of a receiver
to take possession of the mining premises involved in the said lease and agreement, and that
an accounting of the royalties, provided for in said lease and agreement, be ordered, and that
possession of the premises be restored to respondent. The case was tried by a jury, and the
jury returned a special verdict. And, based upon said verdict, the court entered its judgment
decreeing a cancellation of said lease and agreement, and restoring respondent to the
possession of the mining premises involved, and further enjoining and restraining appellant,
his attorneys, agents and employees from further interference with said premises. Appellant,
in his opening brief, relies upon four “Exceptions and Points of Error” for a reversal of the
judgment of the lower court, which are as follows:
“First: That the respondent's complaint does not state or allege facts sufficient to constitute
a cause of action for forfeiture against appellant;
“Second: That the respondent's complaint, with respect to the breaches of covenant upon
ÐÐÐÐ59 Nev. 495, 503 (1940) Harper v. LichtenbergerÐÐÐÐ
complaint of respondent state or allege facts sufficient to constitute a cause of action for
forfeiture against appellant?” for the reason that this court has recently held “That a point
made for the first time in this court will be deemed waived, unless it goes to the jurisdiction
of the court,” Parks v. Garrison, 57 Nev. 480, 67 P.(2d) 314; or to the point that the complaint
does not state facts sufficient to constitute a cause of action, Deiss v. Southern Pacific Co. et
al., 56 Nev. 151, 47 P.(2d) 928, 53 P.(2d) 332. Furthermore, the statutes of this state, after
providing the manner of taking objections to the sufficiency of a complaint, provide bysection 8601 N. C. L. 1929 as follows: “If no such objection is taken, either by demurrer or
answer, the defendant shall be deemed to have waived the same, excepting only the objection
to the jurisdiction of the court, and the objection that the complaint does not state facts
sufficient to constitute a cause of action.”
3. No bill of exceptions was ever made up, prepared and filed, in the instant action, as
required by the “New Trial and Appeals” act, being chapter 32 of the 1937 session laws, page
53. No jurisdictional question being raised, it therefore follows that the only question
presented by this appeal for the determination of this court is: “Does the complaint of
respondent state facts sufficient to constitute a cause of action for forfeiture of said lease and
agreement?”It will also be noted from the record on appeal that the lower court based its judgment of
forfeiture upon findings No. 1 and No. 16 of the jury's special verdict. Finding No. 1 was, in
effect, that appellant never installed ample power and pumps to unwater the underground
workings of the leased mining premises prior to February 5, 1938. Finding No. 16 was, in
effect, that appellant failed to furnish respondent blueprints or maps of the development work
in the said mining premises at least once every three (3) months, and that he failed to correct
such deficiency within sixty (60) days after notice thereof by respondent. The “Lease and
ÐÐÐÐ59 Nev. 495, 504 (1940) Harper v. LichtenbergerÐÐÐÐ
Agreement,” which is the subject of this action, is embraced in the record as exhibit “A,” and
is attached to and made a part of respondent's complaint. The said lease and agreement,
among other things, provides: “Lessee (appellant) agrees to install ample power and pumps to
unwater the underground workings of said premises within sixty (60) days after taking
possession of said premises and will diligently proceed with the unwatering of said
underground workings;
* * * Lessee (appellant) shall furnish lessor (respondent) blue prints or maps at least once
every three (3) months for retention of lessor, (respondent) of all development work done in
said premises; * * * Any failure on the part of lessee (appellant) to perform any of thecovenants of this lease shall be construed as forfeiture of this lease. Notice of forfeiture shall
be mailed to lessee (appellant) by lessor (respondent) in writing, by registered letter, to the
address furnished lessor (respondent) by lessee (appellant) or by personal service of said
lessee (appellant) of said notice of forfeiture. The lessee shall have sixty (60) days from date
of posting said registered letter or from date of said personal service of forfeiture to remedy
said cause or causes of forfeiture, and failing to do so this lease shall be terminated.”
It will also be noted from the record in this case, that appellant filed his general demurrer
to respondent's complaint, alleging that, “Said complaint does not allege facts sufficient to
constitute a cause of action,” and that at the time the said demurrer was called for argument,
counsel for appellant, in open court, consented that the demurrer be overruled. This, in myopinion, is equivalent to never having filed a demurrer at all. From an examination of
respondent's complaint, it is alleged, generally, that appellant, since the occupation of the
mining premises, has violated certain and numerous of the covenants continued in said lease
and agreement on his part to be kept and performed, and among a number RIWKHVSHFLDO
DOOHJDWLRQVDUHFRQWDLQHGWKHIROORZLQJ
ÐÐÐÐ59 Nev. 495, 505 (1940) Harper v. LichtenbergerÐÐÐÐ
of the special allegations are contained the following:
“(c) Defendant (appellant) did not, as provided in said lease and agreement, or ever, or at
all, install ample or any power and/or ample or any pumps to unwater the underground
workings of the said premises within sixty (60) days after taking possession of said premises:
“(d) Defendant did not, as provided in said lease and agreement, or ever, or at all, proceed
with the unwatering of said underground workings within sixty (60) days of taking possession
“(w) Defendant did not, as provided in said lease and agreement, or ever, or at all, furnish
the plaintiff (respondent) blue prints or maps at least once every three (3) months, of the
development work done in said premises.”
Then in paragraph VI of respondent's complaint is found the following allegation: “That
on the 5th day of December, 1937, in the City of Long Beach, State of California, plaintiff (respondent) caused to be served upon the defendant (appellant) a notice of forfeiture, a copy
of which is hereunto annexed, marked Exhibit ‘B'.”
The following paragraph, namely paragraph VII, of respondent's complaint, reads as
follows: “That although more than sixty (60) days has expired since the service of the notice
of forfeiture as herein set forth, the said causes of forfeiture, or any of them, have not been
remedied.”
Appellant, by his brief, contends that the provisions of the lease and agreement, upon
which the allegations of the complaint are based, are, “ambiguous and uncertain,” and
therefore cannot form a basis for the special verdict of the jury or the judgment of the court.
Appellant in his brief cites three cases to support his contention, namely, More v. Elmore
County Irrigation Co., 3 Idaho, 729, 35 P. 171; Durkee v. Cota et ux., 74 Cal. 313, 16 P. 5;and Silvers v. Grossman, 183 Cal. 696, 192 P. 534. Upon an examination of the above-cited
authorities it will be noted that demurrers, in each case, were WLPHO\ILOHGDQGSUHVHQWHGWR
Counsel for respondent contend that the rule of this court is: That a point made for the first
time in this court will be deemed waived unless it goes to the jurisdiction of the court; and
cites the cases of Parks v. Garrison, 57 Nev. 480, 67 P.(2d) 314, and Paterson v. Condos, 55
Nev. 260, 30 P.(2d) 283 (both being decisions of this court). However, we are of the opinion
that the rule contended for by respondent should be extended to include the objection, “or that
the complaint does not state facts sufficient to constitute a cause of action,” for the reason thatthis court has not only held, by recent decisions, that the objection that the complaint GRHV QRWVWDWHIDFWVVXIILFLHQWWRFRQVWLWXWHDFDXVHRIDFWLRQPD\EHUDLVHGIRUWKHILUVWWLPHRQ
DSSHDO'HLVVY6RXWKHUQ3DFLILF&RHWDO1HY3G3
ÐÐÐÐ59 Nev. 495, 507 (1940) Harper v. LichtenbergerÐÐÐÐ
does not state facts sufficient to constitute a cause of action may be raised for the first time on
appeal (Deiss v. Southern Pacific Co. et al., 56 Nev. 151, 47 P.(2d) 928, 53 P.(2d) 332;Neilsen v. Rebard, 43 Nev. 274, 183 P. 984; Nichols v. Western Union Tel. Co., 44 Nev. 148,
191 P. 573), but the statutes of this state, after providing what objections may be made to the
complaint, by demurrer or answer, section 8601 N. C. L. 1929 provides as follows: “If no
objection is taken, either by demurrer or answer, the defendant shall be deemed to have
waived the same, excepting only the objection to the jurisdiction of the court, and the
objection that the complaint does not state facts sufficient to constitute a cause of action.”
4. So, it becomes the duty of this court to determine whether or not the complaint states a
cause of action, even though the question be raised for the first time on appeal. However, in
determining said question, we must also keep in mind the established rule of this court, that
when a complaint is attacked for the first time in this court, that this court does not look withfavor thereon, and it necessarily follows that this court is bound, under such circumstances, to
place a liberal construction upon the complaint. Parks v. Garrison, and Deiss v. Southern
Pacific Co., supra.
5. Our statutes, in prescribing what the complaint shall contain, by section 8594 N. C. L.
1929, among other things, provides: “A statement of the facts constituting the cause of action,
in ordinary and concise language.” We have heretofore, in this opinion, quoted the covenants
contained in the lease and agreement to be kept and performed by appellant, and which the
jury, by their special verdict, found that the appellant had breached. We have also quoted the
allegations of respondent's complaint, alleging a breach of said covenants, upon which the
special verdict of the jury and the judgment of the lower court were based, declaring the
forfeiture of said lease and agreement in respondent's favor, which allegations, appellant
contends, are PHUHFRQFOXVLRQVRIODZ
ÐÐÐÐ59 Nev. 495, 508 (1940) Harper v. LichtenbergerÐÐÐÐ
mere conclusions of law. I am of the opinion that there is no merit to this contention, for I am
unable to understand just what other language could be employed to express more clearly a
breach of the particular covenants which the jury found to have been breached, for respondent
alleged: that the appellant did not, as provided in said lease and agreement, or ever, or at all,
install ample or any power and/or ample or any pumps to unwater the underground workings
of the said premises within sixty days after taking possession of the said premises. And as to
the allegation of failure to furnish blue prints or maps, respondent alleges that appellant did
not, as provided in said lease and agreement, or ever, or at all, furnish the respondent
blueprints or maps at least once every three months, of the development work done in said
premises. Then follow the allegations that respondent, at a certain time and place, caused a
notice of forfeiture to be served upon appellant; and that appellant failed to remedy the cause
or causes set forth in said notice.
6. I am unable to understand what further facts were necessary to inform appellant what
was intended. Certainly appellant could not have been misled as to what was intended, for, by
his answer, he not only expressly denies said allegations but, by his further and separate
answer, he expressly alleges that he did perform the very acts complained of by respondent;and the jury, by their special verdict, found in favor of respondent. I am of the opinion that
the complaint, as a whole, clearly states facts sufficient to constitute a cause of action for a
forfeiture of the lease and agreement in question. We are not here concerned with the facts, as
the evidence is not before us, and we must therefore assume that there was ample evidence to
support the findings of the jury, upon which the jury found that two of the covenants, to be
performed by appellant, had been breached; and, under the express terms of the lease and
agreement, it is provided that any failure on WKHSDUWRIDSSHOODQWWRSHUIRUPDQ\RIWKH
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ÐÐÐÐ59 Nev. 495, 509 (1940) Harper v. LichtenbergerÐÐÐÐ
the part of appellant to perform any of the covenants shall be construed as a forfeiture of the
lease.
Finding no error in the record, it is hereby ordered that the judgment appealed from be and
the same is hereby affirmed.
On Petition of Rehearing
March 7, 1940.
1. Appeal and Error.
Since only points raised for first time on appeal which can be considered are objection
to jurisdiction of court or objection that complaint fails to state facts sufficient to
constitute a cause of action, it follows that all other points raised for first time on appeal
On appeal upon judgment roll alone, record not disclosing any objection made in trial
court to special verdict, by motion for new trial or otherwise, point that it did not support
judgment was waived.
3. Appeal and Error.Rehearings are not granted as a matter of right and are not allowed for the purpose of
reargument, unless there is a reasonable probability that the court has reached an
erroneous conclusion.
Rehearing denied.
Clifford A. Jones, Roland H. Wiley and Harry T. Young, for Appellant.
Ham & Taylor, for Respondent.
OPINION
By the Court, Dysart, District Judge:
The petitioner, appellant above named, files his petition for rehearing and bases his
petition for rehearing upon two grounds which are in substance as follows:
First, that the holding in our former opinion that the insufficiency of the special verdict to
support the judgment could not be raised for the first time on appeal, ZKHUHWKHDSSHDOLV WDN HQXSRQWKHMXGJPHQWUROODORQHLVLQFRQIOLFWZLWKWKHFRQVWLWXWLRQODZVRIWKH6WDWH RI1HYDGDDQGWKHIRUPHUKROGLQJVRIWKLVFRXUWDQGVHFRQGO\WKDWWKHKROGLQJLQRXU IRUPHURSLQLRQWKDWWKHTXHVWLRQZKHWKHUWKHFRPSODLQWVWDWHVDFDXVHRIDFWLRQ ZLWK UHIHUHQFHWRWKHSDUWLFXODUEUHDFKHVRIFRYHQDQWVXSRQZKLFKWKHMXGJPHQWLVSUHGLFDWHG
ÐÐÐÐ59 Nev. 495, 510 (1940) Harper v. LichtenbergerÐÐÐÐ
where the appeal is taken upon the judgment roll alone, is in conflict with the constitution,
laws of the State of Nevada, and the former holdings of this court; and secondly, that the
holding in our former opinion that the question whether the complaint states a cause of action, with reference to the particular breaches of covenants upon which the judgment is
predicated, cannot be raised for the first time on appeal, where the appeal is taken upon the
