Nevada Reports 1922-1923 (46 Nev.) PDF

46 Nev.
1, 1 (1922)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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APRIL TERM, 1922
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46 Nev. 1, 1 (1922) State v. McFadden
[No. 2532]
THE STATE OF NEVADA, Ex Rel. John Weber. W.E. Meyers, and R.L. Tucker,
Petitioners, v. Hon. C.J. McFADDEN, Judge of the Ninth Judicial District Court of the
State of Nevada, in and for White Pine County, Respondent.
[205 Pac. 594]
1. MandamusDetermination whether to Strike Report from Court Files Involves Judicial
Discretion.
The determination whether to strike or refuse to strike from the files of the court a report by the grand
jury involves the exercise of purely judicial functions, and was not a ministerial act, and will not be
controlled by mandamus.
2. MandamusDoes Not Lie to Control Judicial Discretion.
Mandamus will not lie to control judicial discretion or revise judicial action.
Original Proceeding in mandamus by the State, on relation of John Weber and others,
against C. J. McFadden, Judge of the Ninth Judicial District Court in and for White Pine
County. Writ denied.
A. Jurich, for Petitioners:
The report contains charges seriously reflecting upon the integrity of the three county
commissioners. The only remedy available in the lower court was a motion to expunge the
report from the record.
only remedy available in the lower court was a motion to expunge the report from the
record. Petitioners availed themselves of this remedy, but the motion was denied, and there is
no appeal from the ruling. The question resolves itself into whether or not any person,
individual, or public officer, can be charged by a court, or a branch of a court, which in this
case is a grand jury, with the commission of public offenses and have the opportunity to
defend denied them. Mandamus should issue to compel the lower court to expunge the report
from the record. In some cases, however, mandamus may be employed to correct errors of
inferior tribunals and to prevent a failure of justice or irreparable injury where there is a clear
right and there is an absence of any other adequate remedy. It may also be employed to
prevent an abuse of discretion, or an act outside of the exercise of discretion, or to correct an
arbitrary action which does not amount to the exercise of discretion. 26 Cyc. 189; In Re
Chartz, 29 Nev. 110; In Re Breen, 30 Nev. 164; Bennett v. Kalamazoo Circuit Judge, 150 N.
W. 141; Bennett v. Stockwell, 163 N. W. 482. It seems a mere perversion of language to say
that the writ will never issue to control judicial action or to compel a tribunal to act in a
particular way. Wood v. Strother, 18 Pac. 767. The mere fact that an action or proceeding
will lie, does not supersede the remedy by mandamus. The relator must only have a specific,
adequate, and legal remedy, but it must be one competent to afford relief upon the very
subject-matter of his application; and, if it be doubtful whether such action will afford him a
complete remedy, the writ should issue. State v. Wright, 10 Nev. 167; State v.
Commissioners, 22 Nev. 77.
Public offenses must be presented by either presentment or indictment. No other method is
provided by law. A report which is neither a presentment nor an indictment is in excess of
jurisdiction, and therefore not privileged. Posten v. Washington, 32 L. R. A. (N.S.) 785;
Bennett v. Kalamazoo, 150 N. W. 141; Bennett v. Stockwell, supra; Rich v. Eason, 1S0 S.W.
303; Smith v. Rector, 11 Iowa, 306; Washington Times Co. v.
Bennett v. Stockwell, supra; Rich v. Eason, 180 S.W. 303; Smith v. Rector, 11 Iowa, 306;
Washington Times Co. v. Downey, 6 Am. & Eng. Ann. Cas. 765.
Chandler & Quayle, for Respondent:
The question is not whether as an original question the report of the grand jury should be
stricken from the records of the district court, but rather whether, when the district court has
already acted on counsel's motion to strike the report from the record, this court will use the
writ of mandamus as a writ of error and issue a formal writ to compel the district court to
reverse itself. The writ of mandamus will not assume the function of a writ of error, nor will
it serve to require an inferior tribunal to act in any particular manner or to enter any particular
judgment or order. State v. District Court, 40 Nev. 163.
The question as to whether the report of the grand jury here involved does or does not
constitute a presentment is really secondary, the important point being that the lower court
was called upon to exercise its judicial discretion, which cannot be controlled by the writ of
mandamus.
By the Court, Ducker, J.:
This is an original proceeding by the state, on relation of John Weber, W.E. Meyers, and
R. L. Tucker.
Among other matters the petition relates that said petitioners are citizens of White Pine
County, Nevada, and that the two former were county commissioners of said White Pine
County during the years 1919 and 1920, while the latter now is such county commissioner
and chairman of the board; that respondent was during said years and now is the district judge
of the Ninth judicial district court of the State of Nevada, in and for said county; that during
the month of January, 1921, a grand jury was duly and regularly impaneled by the respondent,
and that on the 23d day of January, 1921, said grand jury rendered and submitted to the
respondent a report, which report was filed with the clerk of the court; that in said report
these petitioners are charged, while acting as members of the board of county
commissioners of said county, with malfeasance and nonfeasance in office, and are
further charged with having committed numerous public offenses while acting in this
capacity, and are further charged with defrauding said White Pine County of large sums of
money in connection with the building of a county hospital by said county during their
term of office, and are further charged with misapplying funds belonging to said county;
that in said report petitioners are charged, while acting as members of the board of
county commissioners of said county, with having violated various statutes of the state
concerning the duties of county commissioners, and of defrauding said county of large
sums of money; that by said report petitioners are publicly called, described, and
denounced as plunderers of the county treasury of said White Pine County; that the said
report of the grand jury, within a few hours after being filed, was published in full in three
newspapers of said county having a wide circulation therein; that shortly after said report
was filed petitioners requested respondent, in writing, to cause said grand jury to
reconvene for the purpose of considering further the charges contained in said report
concerning them, and to find either an indictment or presentment against said
petitioners, if said grand jury had evidence sustaining the said charges, or to exonerate
said petitioners therefrom; that on the 25th of February the respondent in writing advised
these petitioners that the grand jury would reconvene on the 2d day of March to consider
the matter contained in their petition; that on the date last mentioned said grand jury did
reconvene and filed their second report to respondent, but found no indictment or
presentment against petitioners, and further refused to exonerate them on the charges in
said report made against them; that on the
to the respondent a report, which report was filed with the clerk of the court; that in said
report these petitioners are charged, while acting as members of the board of county
commissioners of said county, with malfeasance and nonfeasance in office, and are further
charged with having committed numerous public offenses while acting in this capacity, and
are further charged with defrauding said White Pine County of large sums of money in
connection with the building of a county hospital by said county during their term of office,
and are further charged with misapplying funds belonging to said county; that in said report
petitioners are charged, while acting as members of the board of county commissioners of
said county, with having violated various statutes of the state concerning the duties of county
commissioners, and of defrauding said county of large sums of money; that by said report
petitioners are publicly called, described, and denounced as plunderers of the county treasury
of said White Pine County; that the said report of the grand jury, within a few hours after
being filed, was published in full in three newspapers of said county having a wide circulation
therein; that shortly after said report was filed petitioners requested respondent, in writing, to
cause said grand jury to reconvene for the purpose of considering further the charges
contained in said report concerning them, and to find either an indictment or presentment
against said petitioners, if said grand jury had evidence sustaining the said charges, or to
exonerate said petitioners therefrom; that on the 25th of February the respondent in writing
advised these petitioners that the grand jury would reconvene on the 2d day of March to
consider the matter contained in their petition; that on the date last mentioned said grand jury
did reconvene and filed their second report to respondent, but found no indictment or
presentment against petitioners, and further refused to exonerate them on the charges in said
report made against them; that on the 1st day of October, 1921, petitioners filed and
presented to respondent a motion and petition praying for an order expunging and
striking from the files of said court said report of the grand jury of January 23, 1921,
which said motion and petition were denied by respondent on the grounds and for the
reasons that the report of the grand jury was a privileged communication.
against them; that on the 1st day of October, 1921, petitioners filed and presented to
respondent a motion and petition praying for an order expunging and striking from the files of
said court said report of the grand jury of January 23, 1921, which said motion and petition
were denied by respondent on the grounds and for the reasons that the report of the grand jury
was a privileged communication.
The petition further recites that petitioners as citizens and public officers of said county
have had the respect and confidence of the people of the county and of their friends and
acquaintances, and have never heretofore been charged with violation of any law; that by
reason of said charges and the publication thereof, and the refusal of the grand jury to either
find an indictment or presentment against petitioners, thereby giving them an opportunity to
defend themselves, and the refusal of the respondent to expunge said report from the records
of his court, these petitioners, in the eyes of the public, stand convicted of serious crimes, and
they and their families are forced to submit to disgrace and humiliation; that the charges are
false and prompted by malice; that it was the duty of respondent to refuse to permit the report
to be filed, and, having ordered the same to be filed, upon ascertaining the contents thereof, it
was his duty to order the same stricken and expunged from the records; and that petitioners
have no plain, speedy, or adequate remedy at law.
The petition concludes with a prayer that this court enter an order commanding respondent
to enter an order summarily expunging and striking said report from the files of said court. A
copy of the report of the grand jury containing the charges complained of is attached to and
made a part of the petition.
Upon the application, the alternative writ of mandamus issued out of this court, and to this
writ and petition respondent filed a demurrer. The demurrer sets out four grounds, namely:
{1) That the act sought to be coerced is not ministerial act.
(1) That the act sought to be coerced is not ministerial act.
(2) That petitioners do not show a certain or clear right to have the grand jury's report
expunged.
(3) That the refusal of respondent to make its order to expunge the report was a part of
respondent's judicial functions and in the exercise of his judicial discretion.
(4) That the petition shows that respondent has already heard, considered, and acted, and
the manifest purpose of this proceeding is to review or correct such conclusion and action.
1, 2. Counsel for respondent insist that mandamus is not a proper remedy in this case, and
we agree with their contention. Whether it was respondent's legal duty under the facts stated
in the petition to grant the motion cannot be inquired into in this proceeding. The act sought
to be reviewed and reversed was not a ministerial act. The power to strike or refuse to strike
the report from the files of the court involved the exercise of purely judicial functions. It is a
rule of general acceptance that mandamus will not lie to control discretion or revise judicial
action. 18 R.C.L. 297-299; High's Extraordinary Legal Remedies (3d ed.) pp. 31, 32, 169,
174. This rule is well settled in this state. State v. Curler, 4 Nev. 445; State ex rel. Hetzel v.
Board of Commissioners of Eureka County, 8 Nev. 309; Hoole v. Kinkead, 16 Nev. 217;
State v. Curler, 26 Nev. 347, 67 Pac. 1075; State v. District Court, 40 Nev. 163, 161 Pac. 510.
In the latter case this court recognized the general acceptance of the rule in the following
language:
It needs no citation of authority to support the well-established rule that the writ of
mandamus will not assume the function of a writ or error, nor will it serve to require the
inferior tribunal to act in a particular manner or to enter any particular judgment or order. On
the contrary, it serves only to compel the doing of some act which it is the clear, legal duty
of the lower court in some way to do."
some act which it is the clear, legal duty of the lower court in some way to do.
The present case does not fall within the class of cases decided by this court in which it
was held that that general rule did not apply; as State v. Murphy, 19 Nev. 89, 6 Pac. 840, in
which it was held that the rule had no application to the determination of preliminary
questions relating to the settlement of a statement on motion for a new trial, or Floyd v.
District Court, 36 Nev. 349, 135 Pac. 922, 4 A.L.R. 646, and Roberts et al. v. Second Judicial
District Court, 43 Nev. 332, 185 Pac. 1067, in which cases it was determined that mandamus
was a proper remedy to compel a district court to assume jurisdiction and try a cause on
appeal, when it has erroneously decided that it had no jurisdiction.
In the present case no preliminary question was involved, nor did the court decline to
proceed to determine the matter presented by the motion. On the contrary, it entertained the
motion, and made its order refusing to strike the report of the grand jury from the files of the
court. We cannot now, under the rule stated, issue the writ of mandate to review the judgment
of the lower court. We are aware, and counsel for petitioners by citation has pointed out, that
in some jurisdictions mandamus has been employed to control discretion and revise judicial
action, but the decisions to this effect are contrary to the great weight of authority. Of this
character in the case of Bennett, Pros. Atty., v. Kalamazoo Circuit Judge, 183 Mich. 200, 150
N.W. 141, Ann. Cas. 1916e, 223, cited by counsel for petitioners, in which the writ of
mandamus was issued to expunge from the records of the circuit court a report of a grand jury
assailing the official conduct of a prosecuting attorney. In High's Extraordinary Legal
Remedies (3d ed.) the author comments on the exceptional scope given to the writ of
mandamus in the jurisdiction of Michigan. At page 196 he says: "A similar departure from
the well-established rule denying the writ for the correction of errors, which are ordinarily
redressed by writ of error or appeal, is noticeable in Michigan.
A similar departure from the well-established rule denying the writ for the correction of
errors, which are ordinarily redressed by writ of error or appeal, is noticeable in Michigan.
The cases illustrative of this departure from the general doctrine seem to rest in part upon the
theory that the granting of a mandamus to direct the action of a subordinate judicial tribunal is
the appropriate exercise of a supervisory judicial control, and is in the nature of appellate
action, and in part upon the absence or inadequacy of other legal remedies.
There is nothing in any of the decisions of this court cited or discussed by counsel for
petitioners at variance with the general rule which prevents the issuance of the writ of
mandamus to review and correct judicial acts. In State ex rel. Torreyson v. Board of County
Commissioners, 22 Nev. 263, 38 Pac. 668, the writ was denied because the petitioner had
another adequate remedy at law. The plain implication of the language used in the opinion is
that, even though the petitioner was otherwise entitled to the writ, it could not issue because
the relief sought could be obtained by means of another remedy at law. The language
employed does not mean that the writ will issue in all cases where no other adequate remedy
is available. The case of State v. Wright, 10 Nev. 167, has no bearing upon the question of the
propriety of the writ in the present case. The case of State v. Commissioners of Lander
County, 22 Nev. 71, 35 Pac. 300, also cited and discussed by counsel for petitioners, does not
sustain his contention.
The general rule that the writ of mandamus will not issue to control discretion or revise
judicial action, was recognized in that case, but it was held that the questions concerning
which it was claimed the board of county commissioners must exercise judgment or
discretion were merely preliminary ones to the main question of whether it was their duty to
allow the claim. The reference in the latter decision to the tests adopted in Wood v.
Strother, 76 Cal.
adopted in Wood v. Strother, 76 Cal. 545, to determine the propriety of a writ of mandate,
namely, whether the determination of the tribunal sought to be coerced, was intended by law
to be final, and if not whether there was any other plain, speedy and adequate remedy at law,
was merely a suggestion.
The principle recognized and applied in State v. Murphy, supra, was declared to be
decisive of the question presented in State v. Commissioners of Lander County.
The decisions cited wherein matter held to be contemptuous of this court has been ordered
stricken from its files and from the records of the district court, are not at all in point, even
upon the main question which petitioners seek to have determined in this proceeding, that it is
their legal right to have the report of the grand jury stricken from the files of the court.
Certainly the principles involved in those cases are not applicable to the question presented
here. As stated by counsel for respondent, the rules governing contempt of court are very
different from the rules governing the issuance of a writ of mandamus, and there is no
analogy between them.
The writ must be denied, and it is so ordered.
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46 Nev. 10, 10 (1922) Jones v. Golick
[No. 2526]
C.C. JONES, Respondent, v. CHARLES GOLICK
and S.L. KOVACHEVICH, Appellants.
[206 Pac. 679]
1. HighwaysEvidence Held to Show Negligence in Operating an Automobile.
In an action for damages, resulting from an automobile collision, evidence held sufficient to sustain a
finding a negligence on the part of defendant in driving and managing his automobile.
2. Master and ServantOne Loaning His Automobile to Brother-In-Law Held Not Liable for
Injuries Inflicted; Family.
Where K. and his family lived with his mother-in-law and brother-in-law sharing the household
expenses but not supporting them, and K. loaned his automobile to his brother-in-law, who damaged
another automobile in a collision, there was no liability on the part of K., the brother-in-law not being a
member of the family of K., since a family must have a head upon whom its other members are
wholly or partially dependent.
3. Damages$415.30 Held Not Excessive for Injuries to an Automobile.
A judgment for $415.30 for injuries to an automobile held not excessive, though only $270 was
expended for repairs; the evidence amply showing other damages.
4. Appeal and ErrorQuestion Calling for Opinion Held Not Prejudicial.
Allowance of a question calling for the opinion of a witness is harmless error, where the court could
draw conclusions as to the information sought from other evidence.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by C.C. Jones against Charles Golick and S.L. Kovachevich. From a judgment for
plaintiff, defendants appeal. Affirmed as to defendant Charles Golick and reversed as to
defendant S.L. Kovachevich.
Augustus Tilden, for Appellants:
The accident was due, in substantial part at least, to the irregular driving of plaintiff's son,
by which the cause of action is defeated; and said irregular driving was the sole proximate
negligent cause of the accident, and renders plaintiff answerable in damages to defendant
Kovachevich.
and renders plaintiff answerable in damages to defendant Kovachevich. It is not within the
province of any court to guess between the irregular driving and defendant's peril, and declare
that one rather than the other, or one more than the other, was responsible for the accident.
Judgments cannot be based upon assumptions, or upon conclusions reached by guess,' but
must be sustained by facts shown by the evidence or admitted by the party to be bound.
Richards v. Vermilyea, 42 Nev. 294. Where the testimony leaves the matter uncertain, and
shows that any one of half a dozen things may have brought about the injury, for some of
which the employer is responsible, and for some of which he is not, it is not for the jury to
guess between these half-dozen causes, and find that the negligence of the employer was the
real cause, when there is no satisfactory foundation in the testimony for that conclusion.
Patton v. Railway Co., 179 U.S. 658.
The evidence fails to show that defendant's peril was independent of plaintiff's irregular
driving. The credibility of the witness is not in question, but the credibility of his testimony
is. These terms are by no means equivalent. Without the slightest reflection upon the integrity
of standing of the witness, his testimony fails to win belief apart from any considerations
definitely affecting the personality of the witness. Moore v. Rochester M. Co., 42 Nev. 175.
Plaintiff's angling course was the result of his negligent failure seasonably to discover
defendant's approach, which failure was the sole proximate negligent cause of the accident. If
the court cannot say that either car was at fault, the rule is that if, in the prosecution of a
lawful act, an accident, which is purely an accident, arises, no action can be maintained for a
resulting injury. Walsh v. Railway, 8 Nev. 10.
The issue of negligence should be generally decided by the jury and not be disposed of by the
judge as a matter of law. Huddy, Automobiles, 5th ed., sec. 267.
Defendant Kovachevich is not answerable for the negligence, if any, of defendant Golick.
Huddy, Automobiles, 5th ed., sec. 623, et seq.; 5 Am. Law Rep. 226; 10 Am. Law Rep. 1449;
Mogle v. Scott Co., 144 Minn. 173.
An opinion as to the care or negligence of a person causing an injury, or of the person
injured thereby, in the performance of the act causing or contributing to the injury is
inadmissible. Similarly, an opinion as to the practicability of performing such act without
injury is inadmissible either on the issue of primary or contributory negligence, and so is an
opinion as to the sufficiency of the precautions taken to avoid an injury. 8 Ency. Ev., p. 955.
Boyd & Curler and B.V. Curler, for Respondent:
The issues are as to who was responsible for the accident, the amount of damage sustained
by the innocent party, and the coresponsibility of defendant Kovachevich.
A judgment on conflicting evidence will not be set aside under any circumstances if
supported by substantial evidence. Welland v. Williams, 21 Nev. 230; Craw v. Wilson, 32
Nev. 385; Vietti v. Nesbitt, 22 Nev. 390; Palmer v. Culverwell, 24 Nev. 114; Crawford v.
Crawford, 24 Nev. 410; Barnes v. W.U.T. Co., 27 Nev. 438; Ford v. Campbell, 26 Nev. 578;
Dixon v. Miller, 43 Nev. 280.
The real theory upon which the liability of the owner of a car rests is that, where an
automobile is provided for the pleasure of the owner's family, the business of the owner in
such a case is the furnishing of pleasure to his family, and the driver is acting for him within
the scope of the business when he is driving the machine for such purpose, and the head of
the family is responsible. Birch v. Abercombie, 74 Wash. 493; King v. Smythe, 140 Tenn.
225. The fact that during business hours the machine was used in the business of the owner
does not in any sense afford an exception to the general rule.
to the general rule. Dennison v. McNaughton, 228 Fed. 401.
The evidence is amply sufficient to justify the amount of the judgment.
This action grows out of an accident in which an automobile owned by respondent was
struck by an automobile belonging to appellant Kovachevich. Respondent recovered damages
in the court below. Judgment was entered in favor of respondent and against appellants
jointly and severally in the sum of $415.30. From the judgment and order denying a motion
for a new trial, this appeal is taken.
At the time of the accident respondent's son Elmer was driving his car, and appellant
Charles Golick, a brother-in-law of Kovachevich, was driving the latter's car.
1. The court found that the accident was caused by the negligent driving of the appellant
Golick, and the first question we are called upon to determine is whether there is sufficient
evidence to sustain this finding. Appellants contend that the accident was due solely to the
negligent driving of respondent's son. They further contend that, under any aspect of the
evidence, the matter of negligence is left so uncertain that it is impossible for a court to assign
the blame to one driver rather than the other. The version of the conditions surrounding the
accident, and the way in which it happened given by the witnesses testifying on behalf of
respondent, the lower court, of course, had a right to believe. If the substance of this version
is sufficient to sustain that finding of the trial court, we cannot disturb it, even though there is
other substantial evidence which contradicts this version.
The accident happened on the 10th of August, 1920, between 8 and 9 o'clock, p.m., at a
point on a road about three miles westerly from the city of Reno. The exact spot of the
accident is a matter of dispute in the evidence.
the evidence. According to the version of appellants' witnesses, it happened on a small bridge
which extends diagonally across the road. The testimony of respondent's witnesses places it at
a point about 8 1/2 feet west of the bridge.
Respondent's automobile was traveling on the road in a westerly direction, and the other
machine in the opposite direction. In the vicinity of the scene of the accident, the road is
comparatively straight from a point about 400 feet westerly from the bridge, to a point about
400 feet easterly from the bridge. There is a curve in the road at each of these points. A
person in an automobile after it had rounded either curve could see an automobile after it had
rounded the opposite curve and along this stretch of the road. The version of the affair as
given by respondent and his witnesses is substantially as follows: Respondent testified that he
went to scene of the accident the next morning at about 7:30 or 8 o'clock, and as to
observations and measurements made by him there. He found his automobile in a damaged
condition a short distance west of the bridge. From measurements made by him, the rear end
of the car was 18 inches north from the main traveled north wheel-track of the road. From the
left front wheel of the car across the road to the southern boundary thereof, the distance, as
measured by respondent, was 10 1/2 feet, and beyond this was a ditch running near the south
side of the road. The right front wheel was between 2 and 3 feet east of a telephone pole
which stood near a fence on the north side of the road. At a point opposite the rear end of the
car, the distance from the southern road-track south to the bank of the ditch was about one
foot, making a clearance of about 9 1/2 feet between the rear end of the automobile and the
ditch on the other side of the road. According to measurements made by respondent, the
bridge was about 15 1/2 feet wide. The main traveled rut of the road on the north side of the
bridge was about 4 1/2 or 5 feet from the north edge of the bridge.
Respondent testified that he traced the track of the right-hand wheels of his car back from the
car across the bridge to where they left the road between the bridge and the culvert; that the
track turned out of the road to the north between the culvert and the bridge and continued out
of the road, crossing the bridge at a distance of about one foot from the north end of the
bridge where the track came into it, and at a distance of about 3 or 4 inches from the north
end of the bridge where the track left it.
Respondent's son Lester testified that he went to the scene of the accident on the morning
of the 11th of August; that he was there three times on that day; that he was there with his
father at about lunch time and took some measurements; that apparently the front end of the
car had been moved, shoved over off the road for a distance of 16 or 17 inches from the
north wheel-track; that the rear end apparently had not been moved, because the spokes of
the hub were sticking down into the ground; that the measurements showed that respondent's
car was 8 1/2 feet west of the bridge; that the distance from the body of the car in the rear to
the south side of the road was 10 feet and 3 or 4 inches; that the distance from the right front
wheel of respondent's car to the telegraph pole was 2 feet and 4 inches; that the wheel was in
a southeasterly direction from the pole; that the distance from the pole to the south side of the
road was 17 feet and 6 or 7 inches, and from the pole to the ditch bank was 19 1/2 feet; that
on the first trip to the car witness traced the track of the right-hand wheel of respondent's car
across the bridge; that it was about 14 inches from where the track came onto the bridge from
the east to the north end of the bridge, and from where it left the bridge on the west side it
was about 3 or 4 inches to the north end of the bridge.
Respondent's son, Elmer Jones, testified substantially as follows: That he was going on
19 years of age; that he had driven an automobile for at least three years and was driving
his father's car on the night of the accident; that there were three other boys riding in the
car at the time; that during the evening he had been driving between 15 and 20 miles an
hour and was driving at that rate as he approached the bridge where the accident
occurred; that he was slowing down for the bridge to about 12 miles an hour when he
reached the culvert; that he could not tell how fast he was going when he crossed the
bridge, but he was slowing down all the time; that he was slowing down at the culvert
when he first observed appellant's car coming around the corner west of the bridge; that
he estimated the speed of the oncoming car at that time to be about 35 miles an hour;
that he started to turn his car out of the road as soon as he saw the other car, and the
nearer it came the more he turned out; that he turned out to give the road, as the other
car was coming faster then he was; that there was room enough for the two cars to pass
on the bridge with about a foot between them; that he crossed the bridge on the north
part of it and had reached a point about S or 10 feet to the west of the bridge, when the
car driven by Golick collided with respondent's car; that before the car driven by Golick
reached respondent's car it turned to the right and then quickly swung to the left
diagonally across the road; that respondent's car was out of the road on the north or right
hand side, with the lights pointing out towards the field on that side, and the left-hand
wheel was about 1S inches out of the rut when the car was struck; the Kovachevich's car
did not seem to slow up any; that when respondent's car was struck the back end of the
car did not move and the front end was slung into the road; that appellant's car was
carried sideways to the bride and stopped directly on top of it and across the road at the
same angle; that he was out to the scene of the accident the next day or the day
afterwards; that the car had
as follows: That he was going on 19 years of age; that he had driven an automobile for at least
three years and was driving his father's car on the night of the accident; that there were three
other boys riding in the car at the time; that during the evening he had been driving between
15 and 20 miles an hour and was driving at that rate as he approached the bridge where the
accident occurred; that he was slowing down for the bridge to about 12 miles an hour when
he reached the culvert; that he could not tell how fast he was going when he crossed the
bridge, but he was slowing down all the time; that he was slowing down at the culvert when
he first observed appellant's car coming around the corner west of the bridge; that he
estimated the speed of the oncoming car at that time to be about 35 miles an hour; that he
started to turn his car out of the road as soon as he saw the other car, and the nearer it came
the more he turned out; that he turned out to give the road, as the other car was coming faster
then he was; that there was room enough for the two cars to pass on the bridge with about a
foot between them; that he crossed the bridge on the north part of it and had reached a point
about 8 or 10 feet to the west of the bridge, when the car driven by Golick collided with
respondent's car; that before the car driven by Golick reached respondent's car it turned to the
right and then quickly swung to the left diagonally across the road; that respondent's car was
out of the road on the north or right hand side, with the lights pointing out towards the field
on that side, and the left-hand wheel was about 18 inches out of the rut when the car was
struck; the Kovachevich's car did not seem to slow up any; that when respondent's car was
struck the back end of the car did not move and the front end was slung into the road; that
appellant's car was carried sideways to the bride and stopped directly on top of it and across
the road at the same angle; that he was out to the scene of the accident the next day or the day
afterwards; that the car had not been moved from where it was left after the accident.
afterwards; that the car had not been moved from where it was left after the accident.
On cross-examination as to the speed of his car, the witness testified as follows:
Q. Did you go at the rate of 20 miles an hour until you reached the culvert? A. No, I was
going about the same rate of speed.
Q. Still 20? A. Well, I don't know whether it was 20 or 15.
Q. You swear it was not 25? A. I know it wasn't 25.
Q. Swear solemnly that it wasn't 25? A. No, I don't like to.
Q. Would you swear it wasn't 30 miles an hour? A. I wouldn't like to.
Q. Would you swear it was not 35 miles an hour? A. Yes, I would.
Q. Anywhere between 30 and 35 miles an hour you wouldn't like to swear? A. No, I am
pretty sure it wasn't.
With reference to the direction taken by the car in going over the bridge, the witness
testified as follows on cross-examination:
Q. Then, when you got down here to make the bridge you had to make it at an angle? A. I
didn't have to make it at an angle.
Q. Didn't you take it on that angle? A. I took it on that angle, yes.
Melvin Curtis, a witness on behalf of respondent testified substantially as follows: That he
was 17 years old and had driven a car frequently since 1917 and had also driven a truck; that
he had driven or ridden in a car sufficiently to have an idea of the rate of speed a car was
going; that on the night of the accident he was riding in respondent's car and was sitting on
the rear seat on the left-hand side; that they had not been traveling more than 20 miles an hour
that evening; that they were directly over a little culvert about 50 feet from the bridge, when
he first observed Kovachevich's car coming around the bend, possibly 300 feet or more
west of them; that respondent's car was going 7 or S miles an hour when it crossed the
bridge; that Jones turned his car to the right when a little past the culvert and had
traveled possibly S or 10 feet beyond the bridge when the accident occurred; that the rear
end was then S or 10 feet past the bridge; that when the oncoming car got within about
25 feet of respondent's car it turned to the right, and, coming about 20 feet, turned
diagonally across the road and struck respondent's car; that at the time of the impact
respondent's car was off to the right of the road; that it was to the right of the right-hand
wheel-track of the road going west, and the lights of the car were pointing out over the
field to the north of the road; that Kovachevich's car struck respondents car a glancing
blow, a severe blow; that it was severe enough to throw the witness nearly over into the
front seat; that the front part of Golick's car and the rear part of respondent's came
together; that when he got out the front wheels of respondent's car were about on the
north wheel-track of the road; that it was jacked up and pushed over out of the road; that
when Kovachevich's car glanced off of respondent's car it skidded sideways up on the
bridge and stopped, fronting north just about parallel with the bridge; that witness had
been driving that road a good deal and knew the culvert was there.
Kovachevich's car coming around the bend, possibly 300 feet or more west of them; that
respondent's car was going 7 or 8 miles an hour when it crossed the bridge; that Jones turned
his car to the right when a little past the culvert and had traveled possibly 8 or 10 feet beyond
the bridge when the accident occurred; that the rear end was then 8 or 10 feet past the bridge;
that when the oncoming car got within about 25 feet of respondent's car it turned to the right,
and, coming about 20 feet, turned diagonally across the road and struck respondent's car; that
at the time of the impact respondent's car was off to the right of the road; that it was to the
right of the right-hand wheel-track of the road going west, and the lights of the car were
pointing out over the field to the north of the road; that Kovachevich's car struck respondents
car a glancing blow, a severe blow; that it was severe enough to throw the witness nearly over
into the front seat; that the front part of Golick's car and the rear part of respondent's came
together; that when he got out the front wheels of respondent's car were about on the north
wheel-track of the road; that it was jacked up and pushed over out of the road; that when
Kovachevich's car glanced off of respondent's car it skidded sideways up on the bridge and
stopped, fronting north just about parallel with the bridge; that witness had been driving that
road a good deal and knew the culvert was there.
Charles Patterson, a witness on behalf of respondent, testified that he was 19 years of age
and had had considerable experience in driving automobiles; that he was familiar with the
road where the accident happened and was riding on the rear seat of respondent's automobile
on the right-hand side at the time of the accident; that the car had not been driven over 20
miles an hour on that night; that he first noticed Kovachevich's car coming around the turn
about 300 or 400 feet west of the culvert; that the Jones car was then just passing the culvert,
which was about 40 to 50 feet east of the bridge; that when they crossed the culvert Jones
slowed the car down and turned to the right to let the other car pass; that when they
crossed the bridge respondent's car was going from 5 to 6 miles an hour; that
respondent's car was from 7 to S feet west of the bridge when the accident happened;
that when he first observed Kovachevich's car it was coming, in his judgment, at the rate
of from 30 to 35 miles an hour; that witness did not notice the speed of Kovachevich's car
at the time of impact, but it struck respondent's car an awful blow and knocked the front
wheels into the road; that just prior to the impact the lights of respondent's car were
pointing out towards the field; that after the accident the front part of the car was jacked
up and moved off the road about 1S inches; that before it was moved the left front wheel
was about 1 1J2 feet inside the north wheel-track of the road; that the left wheel in front
was just off the north wheel-track; that, when witness got out of the car, Kovachevich's
car was standing lengthwise with the bridge.
feet east of the bridge; that when they crossed the culvert Jones slowed the car down and
turned to the right to let the other car pass; that when they crossed the bridge respondent's car
was going from 5 to 6 miles an hour; that respondent's car was from 7 to 8 feet west of the
bridge when the accident happened; that when he first observed Kovachevich's car it was
coming, in his judgment, at the rate of from 30 to 35 miles an hour; that witness did not
notice the speed of Kovachevich's car at the time of impact, but it struck respondent's car an
awful blow and knocked the front wheels into the road; that just prior to the impact the lights
of respondent's car were pointing out towards the field; that after the accident the front part of
the car was jacked up and moved off the road about 18 inches; that before it was moved the
left front wheel was about 1 1/2 feet inside the north wheel-track of the road; that the left
wheel in front was just off the north wheel-track; that, when witness got out of the car,
Kovachevich's car was standing lengthwise with the bridge.
Lawrence Bernasconi, a witness on behalf of respondent, testified that he had ridden in
cars a great deal; that he was riding in the Jones car on the evening of the accident; that
respondent's car was not going over 20 miles an hour a quarter of a mile from the place where
the accident happened; that he first saw the Kovachevich car that evening when it collided
with respondent's car; that respondent's car was then 8 or 10 feet west of the bridge and off to
the right of the main road; that Jones slowed his car down to take the bridge, and it was going
between 6 and 7 miles an hour when it crossed the bridge; that after the collision the left front
wheel was in the right rut of the main road going west, the north rut; that after the accident
Kovachevich's car was on the bridge parallel with it, facing towards the north; that the front
end of the car was about 14 inches from the north end of the bridge, and the hind end of the
car about the same distance from the south end of the bridge; that the car was in the
center of the bridge; that immediately after the accident he had a conversation with
Golick in which the latter said he did not see the bridge.
distance from the south end of the bridge; that the car was in the center of the bridge; that
immediately after the accident he had a conversation with Golick in which the latter said he
did not see the bridge.
This evidence is sufficient to justify the finding of the court below that Golick was
negligent in driving and managing the car, and that his negligence was the cause of the
accident. According to this version, both drivers had ample opportunity to see each other's car
while they were approximately 400 feet apart, and over the entire distance. Jones immediately
turned out of the road to the right and commenced to slow down. He crossed the bridge on the
right-hand side and near the northern edge of it at a low rate of speed. According to witness
Curtis, the car was traveling about 7 or 8 miles an hour when it crossed the bridge. According
to witness Patterson, it was going at the rate of about 5 or 6 miles an hour. Witness
Bernasconi also testified that the car was traveling 5 or 6 miles an hour when it crossed the
bridge. All of this testimony placed respondent's car a distance of from 7 to 10 feet west of
the bridge when the accident happened, and clear out of the main traveled ruts of the road on
the north side. The actual measurements as testified to by respondent and his son Lester place
the rear end of the car 8 1/2 feet west of the bridge, and the right-hand hind wheel 18 inches
north of the north wheel-rut of the road. Obviously, as respondent's car was to the north of the
main traveled part of the road, there was ample room for the other car to pass, even though it
kept all of the road. Moreover, the measurements, as testified to by respondent, show that
there was a clearance of about 9 1/2 feet between the rear end of his car and the ditch on the
south side of the road, and that the distance from the left front wheel to the southern boundary
of the road was 10 1/2 feet. This testimony is closely corroborated by respondent's son Lester.
It appears from respondent's evidence that young Jones could not have turned to the right
much further without incurring the danger of colliding with the telegraph or telephone pole.
or telephone pole. As soon as he rounded the west curve, Golick had an opportunity to see
respondent's car and to slow down. But, notwithstanding this, he was going at a high rate of
speed when his car struck respondent's car. With all of the road clear before him and some
space to spare, he was going so fast that, when he saw the ditch before him and turned back
into the road, he was unable to manage his car and go through without striking respondent's
car. These are legitimate inferences which the trial court had a right to draw from
respondent's evidence. True, the version given by the witness who testified on behalf of
appellants is diametrically opposed to respondent's evidence in several respects, and
exonerates Golick from all blame, and attributes negligence to the driver of respondent's car.
We will not attempt to detail this testimony, for to do so would unnecessarily extend this
opinion. Counsel for appellant concedes the rule that, where there is substantial evidence to
support the finding of the lower court, this court cannot disturb it. This court cannot pass
upon the credibility of witnesses, for this is exclusively the function of a trial court by jury.
By reason of the applicability of these rules of law, the theory of counsel for appellants
that the evidence leaves the question of negligence so uncertain that the trial court was not
justified in attributing negligence to one driver rather than the other cannot be accepted as the
doctrine of the case.
In support of this theory, if we do not misapprehend counsel, it is urged that according to
the testimony of Elmer Jones his car angled across the bridge; that this made it necessary for
Golick to turn out to the right, where he was confronted by a ditch; that in order to avoid this
peril he was forced to turn back into the road, which made the accident unavoidable. True,
Elmer Jones made the following rather indefinite statement on cross-examination. I took it
an an angle, yes, when referring to the manner in which the car went over the bridge. But the
testimony of respondent and his son Lester, as to the observations they made, showed the
angle was very slight.
his son Lester, as to the observations they made, showed the angle was very slight. From the
respondent's observations it appears that the track made by the right wheel of his car came
onto the bridge from the east at a distance of about one foot from the north end of the bridge,
and left it about 3 or 4 inches from the north edge of the bridge. His son Lester places these
distances at about 14 inches on the east side, and 3 or 4 inches on the west side. If the trial
court credited this testimony, it would have been justified in concluding that there would have
been ample room for Golick to have driven his car safely over the bridge if he had managed it
properly, even if the cars had met at this point, as claimed by witnesses for appellants. The
theory that the trial court could not, under any view of the evidence, legitimately fix the
blame on one driver rather than the other, also loses sight of the fact that the evidence of
respondent tends to prove that at the time of the accident Elmer Jones was driving at a very
low rate of speed, while Golick was driving fast.
2. It is next contended on the part of appellant Kovachevich that, though he was the owner
of the car in use at the time of the accident, which resulted in injuries to respondent's car,
since the car was being used and driven by one to whom he had loaned it, he is not liable. In
view of the manner in which the case is presented on this appeal, as to the liability of
Kovachevich, we need only to consider the question as to whether or not the appellant,
Golick, who was driving the car, was a member of the family of the appellant Kovachevich.
The undisputed evidence shows that Kovachevich was, at the time of the accident, engaged in
business and that he used the car in question in his business during the hours from 8 a.m. to 6
p.m., and for the pleasure of himself and family at other times. It is also undisputed that
appellant Kovachevich, together with his wife and 19-year-old child, lived in the same house
with his mother-in-law and her three unmarried children; they divided the expense thus
incurred.
unmarried children; they divided the expense thus incurred. It is also undisputed that
appellant Golick, shortly before 6 o'clock in the evening, asked appellant Kovachevich if he
(Golick) could have the use of the car on the evening of the accident, if Kovachevich did not
intend to use it; that Kovachevich responded that he would consider it, and later, about 7
o'clock when Golick again asked about the car, Kovachevich told him to take it. Was Golick
a member of the family of Kovachevich? The word family is a word of great flexibility, and
when used in a statute or written instrument it must be given an interpretation in keeping with
the idea sought to be expressed; but we do not think the word can be given such a wide
meaning in the circumstances of this case as to make appellant Golick a member of
Kovachevich's family. Kovachevich contributed nothing to the support of any of the persons
residing in the house, except for his child's, his wife's, and his own. So far as it appears, he
was in no way legally or morally under obligations to contribute to their support, and
certainly they received none from him. The mere fact that they resided in the same house and
shared the household expenses is no more an evidence that the mother-in-law and her
unmarried children are members of Kovachevich's family, than it is that he is a member of the
mother-in-law's family. There must be something more than mere residing together to
constitute them members of the family of the other. Kovachevich, so far as the evidence goes,
owed no duty whatsoever to provide the Golick family with the use of an automobile, and on
the particular occasion loaned it for the evening. We think the definition of family which
fairly states the rule applicable to this character of a case is given in the case of Sheehy v.
Scott, 128 Iowa, 551, 104 N. W. 1139, 4 L.R.A. (N.S.) 365, where it is said:
To constitute one or more persons, with another, living together in the same house, a
family, it must appear that they are being supported by that other in whole or in part, and
are dependent on him therefor, and, further, that he is under a natural or moral obligation
to render such support."
appear that they are being supported by that other in whole or in part, and are dependent on
him therefor, and, further, that he is under a natural or moral obligation to render such
support.
In the case of Moredock v. Moredock (C.C.) 179 Fed. 163, the words his family were
construed to mean his children. Words and Phrases, Corpus Juris, and other works contain
citation to many cases wherein the word family is defined, but no two of them are alike.
While the word is one of great flexibility, we think it may be said that the underlying
principle running through the mass of authorities, is that there must be a head to a family,
upon whom the other members are wholly or partially dependent. 25 C.J. 664.
Such is not the situation in the instant case.
3. As to the contention that the judgment is excessive, we need only to say that we think it
is not sustained. At least, there is ample evidence to support the findings and judgment as to
the amount of damages, and we would be trenching upon the prerogative of the trial court
were we to reverse the judgment on this account. True it is that the repair bill was only $270,
but there is ample evidence of other damages sustained.
4. It is urged that the court erred in overruling appellants' objection to the following
question asked of Melvin Curtis:
Mr. Curtis, was or was not there room enough for the defendant to have crossed that
bridge, in his car, without coming in contact with the Jones car?
The question was answered in the affirmative. It was objected to as calling for the opinion
of the witness. If we assume that it was error to allow the question, still it was not one of
which appellants can complain. As the conditions surrounding the accident were all in
evidence and the court could therefore draw its own conclusion as to whether Golick could
have crossed the bridge without striking respondent's car, we think that it is improbable that
the court was at all influenced by the witness's answer to the question. Perceiving no
prejudicial error other than that pointed out, it is ordered that the trial court modify its
judgment heretofore entered so as to render judgment in favor of appellant Kovachevich,
and, as so modified, it is ordered that the judgment be affirmed.
it is ordered that the trial court modify its judgment heretofore entered so as to render
judgment in favor of appellant Kovachevich, and, as so modified, it is ordered that the
judgment be affirmed.
____________
46 Nev. 25, 25 (1922) State v. District Court
[No. 2541]
THE STATE OF NEVADA, Ex Rel. MELVIN F. PHILLIPS, Petitioner, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County
of Washoe, and the HON. GEORGE A. BARTLETT, Judge of said Court, Respondents.
[207 Pac. 80]
1. MandamusIssues Only if Relator Has Legal Right to Have Court Do What It Refuses to
Do.
Before the supreme court will issue a writ of mandamus to an inferior tribunal, relator must, under
Rev. Laws, 5695, establish facts sufficient to show that he has a legal right to have something done which
the inferior tribunal has refused to to.
2. MandamusDecision on Motion for Leave to Sue as Pauper Cannot Be Reviewed by
Mandamus.
The judge of the lower court before whom an action was pending had jurisdiction to hear a motion for
leave to sue as a poor person, and his decision that upon the showing made plaintiff had failed to bring
himself within the rule of the common law was a judicial act which cannot be reviewed by writ of
mandamus.
Original petition for mandamus by the State, on the relation of Melvin F. Phillips, against
the Second Judicial District Court of the State of Nevada in and for the County of Washoe
and another. Petition denied, and proceeding dismissed.
J.W. Dignon (McCarran & Mashburn, of Counsel), for Petitioner:
Mandamus is the proper remedy. The rule that mandamus will not lie to control judicial
discretion does not apply to an act which the petitioner has a right to have performed, and
which the judicial officer should perform; and where preliminary questions require
adjudication. State ex rel. Keane v. Murphy, 19 Nev. S9
19 Nev. 89; 18 R.C.L. 126; Wood v. Strother, 18 Pac. 767; Keller v. Hewett, 41 Pac. 871;
Hensley v. Superior Court, 44 Pac. 232; Holtum v. Grief, 78 Pac. 11.
Nor does it require the citation of authority to the proposition that even where discretion
is vested, if that discretion under the facts can be legally exercised in but one way, mandate
will lie to compel the inferior tribunal so to exercise it. Newlands v. Superior Court, 154
Pac. 829. When a discretion is abused and made to work injustice, it is admissible that it
shall be controlled by mandamus. Illinois S.D.E. v. People, 123 Ill. 227; State v. Adcock,
121 Am. St. 681.
Petitioner is a pauper. The showing made was uncontradicted. Counter-affidavits which
merely set up an affirmative defense are insufficient. Kahn v. Singer Mfg. Co., 42 N.Y.S.
461. Evidence that plaintiff is of sufficient physical ability to labor for and acquire means to
prosecute or defend is not sufficient to show that he should not be allowed to sue as a poor
person. Kerr v. State, 35 Ind. 288; Stevens v. W.U.T. Co., 90 Pac. 799; McNamara v. Nolan,
34 N.Y.S. 178; Kruegel v. Johnson, 93 S.W. 483.
Although an attorney takes a case on a contingent fee, or otherwise acquires an interest in
the suit, plaintiff nevertheless may be permitted to sue in forma pauperis. 15 C.J. 234.
Geo B. Thatcher, for Respondents:
Mandamus will not lie. A writ of mandamus will not assume the function of a writ of
error, nor will it serve to require an inferior tribunal to enter any particular judgment or order.
State v. District Court, 40 Nev. 163; Hoole v. Kinkead, 16 Nev. 217; Humboldt County v.
Churchill County, 6 Nev. 31.
Where a controversy is heard and determined upon facts presented, mandamus will not issue
to disturb, reverse, or review the decision, even though the decision be erroneous. State v.
District Court, supra; Hoole v. Kinkead, supra; Floyd v. District Court, 36 Nev. 349; Hardin
v. Guthrie, 26 Nev. 246; Cahill v. Superior Court, 7S Pac.
Kinkead, supra; Floyd v. District Court, 36 Nev. 349; Hardin v. Guthrie, 26 Nev. 246; Cahill
v. Superior Court, 78 Pac. 467.
Applications for leave to sue in forma pauperis are not to be encouraged. Ordinarily the
granting thereof is largely a matter of discretion with the court. 15 C.J. 236. Where an
attorney takes the case on a contingent fee, or otherwise acquires an interest in the suit,
plaintiff will not be permitted to sue as a poor person without also showing that his attorney is
a poor person. Esquibel v. Atchison R.R. Co., 206 Fed. 863; Boyle v. Great Northern
Railroad, 63 Fed. 539; Feil v. Wabash R. Co., 119 Fed. 490. It is inconsistent to permit
plaintiff to sue as a poor person when he has parted with an interest in the claim. Joyce v.
Cooper, 49 N. Y. Super. 115. This rule is entirely consistent with all the statutes and with the
common law. L.R.A. 1918b, 313; Brinkley v. Louisville & N. R. Co., 95 Fed. 345.
The common law of England has been adopted, in so far as it is not repugnant to or in
conflict with the constitution and laws of the United States and of the State of Nevada, and
the common law of England includes the statutes. 11 Henry VII, chap. 12; 23 Henry VIII,
chap. 15. This does not apply, however, where statutes have been repealed or modified by the
legislature. At common law jurors were not entitled to compensation; the right is purely
statutory, and in the absence of statute cannot be recovered. Also, it is competent for the
legislature to require such services without compensation. Neely v. State, 4 Baxt. (Tenn.)
174; Birch v. Phelan, 159 Pac. 209; Hilton v. Curry, 56 Pac. 784; Phillips v. Eureka Co., 19
Nev. 348. The common law has been modified in this respect. Rev. Laws, 2001, 2013.
By the Court, Sanders, C.J.:
Melvin F. Phillips, a citizen of this state, sued Thomas Ginocchio and D.F. Capps, police
officers of the city of Reno, to recover the sum of $10,000 as damages for his alleged
unlawful arrest and imprisonment.
alleged unlawful arrest and imprisonment. Upon the request of plaintiff the court set the case
for trial before a jury on the 17th day of January, 1922. Thereafter, on, to wit, the 12th day of
that month, the plaintiff made a motion for leave to further prosecute his action in forma
pauperis. His motion was based on his affidavit, stating, in addition to his declaration of
poverty, that he had a good and meritorious cause of action, and had been so advised by his
attorney, and that no person, other than himself, had any interest in the prosecution of his
action. The motion came on to be heard upon the pleadings and oral testimony of plaintiff and
his attorney in support of his affidavit. The court denied the motion, whereupon plaintiff
moved for an order to vacate the setting of the case for trial before a jury, and asked that the
court refrain and desist from taking any further proceeding in the case until such time as
plaintiff could sue out of the Supreme Court of the State of Nevada a writ of mandamus
commanding the presiding judge to permit him to further prosecute his action as a pauper.
This motion was also denied, whereupon plaintiff made application to this court for a writ of
mandamus. Upon consideration of his petition for the writ, this court made an order
commanding Hon. George A. Bartlett, as judge of the district court of Washoe County, to
refrain and desist from any further proceeding in the action of Melvin F. Phillips against
Thomas Ginocchio and D.F. Capps, and to permit plaintiff to further prosecute his action
without the payment of legal fees, or show cause before this court on the day fixed by its
order why he should not do so.
1. The question is whether a writ of mandamus may be predicated upon such a return. The
rule established by a number of decisions of this court relative to cases in which the writ of
mandamus may issue is that before the relator can obtain the writ he must establish sufficient
facts to show that he has a legal right to have something done by the inferior tribunal which it
has refused to do.
has refused to do. Rev. Laws, 5695; State v. Wright, 10 Nev. 174.
2. The return does not show that the judge refused or denied to the petitioner the right to
further prosecute his action as a poor person, but that in the judgment of the court, upon the
showing made, plaintiff had failed to bring himself within the rule of the common law, if the
same, as contended for by petitioner, prevails in this jurisdiction. As the judge had the power
to hear the motion, his determination upon the hearing thereof was necessarily a judicial act.
It is difficult to perceive how mandamus will lie to review his action. To grant the writ would
be in effect to review a judicial decision, which is not the function of mandamus.
It is argued that the ruling complained of was such a flagrant abuse of discretion as that it
amounts to the petitioner being precluded from the enjoyment of his legal right to further
prosecute his action as a poor person. Adopting the language of this court as used in State v.
District Court, 40 Nev. 163, 161 Pac. 510, the respondent assumed jurisdiction, entertained
the motion, heard the evidence in support of petitioner's contention, and rendered a
determinative judgment based upon the showing made, and either a correct or incorrect
interpretation of the law applicable to the specific question in furtherance of which the
showing was made. In that case McCarran, J., asked:
What more could the lower court do if the writ were to issue now? Would it reverse its
judgment entered upon the showing made? Would it take a different view of the law arising
upon the case? Is it the function of the writ of mandate to review errors of discretion or
judgment and reverse decisions based thereon?
Speaking for the court, the learned judge said:
An answer to such query is found in the established principles of law applicable to the
function of this extraordinary writ, which my be stated thus: The acts or duties, the
performance or nonperformance of which rests in whole or in part on the discretion or
judgment of the inferior tribunal, board, or officer, will not be required by the writ of
mandamus."
which rests in whole or in part on the discretion or judgment of the inferior tribunal, board, or
officer, will not be required by the writ of mandamus.
The question underlying this proceeding is whether, in the absence of statute, the petitioner
has the right to proceed with the prosecution of his action in the district court without the
payment in advance of the legal fees. We merely state the question in order that it may not be
thought by our conclusion that we decide it.
Our conclusion is that return to the order to show cause does not show facts upon which a
peremptory writ will lie.
The petition for the writ is therefore denied, and the proceeding dismissed.
____________
46 Nev. 30, 30 (1922) Smith v. North Am. Accident Ins. Co.
[No. 2516]
ETTA M. SMITH and GEORGE F. SMITH, as Her Husband, Respondents, v. NORTH
AMERICAN ACCIDENT INSURANCE COMPANY (a Corporation), Appellant.
[205 Pac. 801]
1. InsuranceGeneral Allegation of Performance of Condition Precedent Is Sufficient against
Demurrer.
In an action on an accident insurance policy, a general averment that plaintiff had done all things
necessary to perfect her claim against the defendant and had demanded payment, which the company
refused to make, is sufficient pleading of performance of the conditions precedent as against a general
demurrer.
2. InsuranceParties to Accident Policy Can Stipulate what Representations Shall Be
Material without Making Them Warranties.
The law does not forbid parties to a contract for accident insurance, as it does in life insurance, to
determine what fact or representations shall be deemed material, and that may be done without putting
the representations on a footing with warranties.
3. InsuranceWhether Parties Have Made Statements in Application Material to Risk is
Question for Court.
Whether the parties to an accident insurance contract have made statements in the application, which
became a part of the policy, material to the risk, is a question of law for the court to be determined by an
interpretation of the contract, resolving any doubt in favor of the insured.
4. InsuranceMateriality of Representations Depending on Inferences from Facts Is for the
Jury.
Where the determination of the materiality of representations or statements in an application for
insurance depends upon inferences to be drawn from facts and circumstances proved, the question of
materiality is one for the jury.
5. InsurancePutting Representations in Form of Answers to Questions Indicates They are
Material.
Where the statements in an application for accident insurance are in the form of written answers made
to written questions, the form indicates that the parties deem the matter inquired about to be material.
6. InsuranceApplication for Accident Insurance Held to Make Representations as to Disease
Material.
Where an application for accident insurance contained statements in the form of answers to questions
which the parties stipulated should bar recovery under the policy if the statements were false and were
material to the acceptance of the risk or the hazard assumed, or made with intent to deceive, the false
answer that applicant was not afflicted with tuberculosis was material as a matter of law, and defeats
recovery on the policy.
7. InsuranceApplicant Must Fairly Answer Questions.
An applicant for accident insurance should observe the utmost good faith, deal honestly and fairly
with the company as to all material facts inquired about in the application as to which he had or should be
presumed to have had knowledge, and make a full answer without evasion, suppression, a
misrepresentation, or concealment of material facts.
8. InsuranceIssuance of Policy Waives Incomplete Answer in Application.
Where a question appears on the face of an application for insurance not to be answered at all or to be
incompletely answered, and insurer issues policy without further inquiry, it thereby waives the
incompleteness of, or failure to, answer.
9. InsuranceQuestion as to Diseases Not Mentioned Held to Include Specific Diseases Not
Completely Disclosed.
Where one question in an application for accident insurance inquired about several diseases and was
answered merely by a statement as to certain disability, a subsequent question, as to whether the applicant
had any disease except as therein stated, was not limited to diseases not included in the preceding
question, so as to render the policy valid on the theory that the answer to the former questions was
incomplete only and that the negative answer to the latter question was correct, though applicant was
suffering from one of the enumerated diseases.
Appeal from Second Judicial District Court, Washoe County; Edward F. Lunsford, Judge.
Action by Etta M. Smith and her husband against the North American Accident Insurance
Company. Judgment for plaintiffs, and defendant appeals. Reversed. Petition for rehearing
denied.
Frederick L. Berry, for Appellant:
The judgment should be reversed. This is a case where the applicant deliberately misled
the insurer; and, although juries and courts are not favorably inclined toward insurance
companies, where a flagrant injustice has been done, due and faithful consideration should be
given to the facts and the law applicable thereto.
The application for insurance being considered as a part of the policy, it follows that the
policy will be avoided where the applicant has made in his application false statements as to
matters material to the risk, such as the mental and physical condition of the applicant, his
state of health, his age, occupation, salary or earning capacity, or the existence vel non of
other insurance. 1 C. J. 420. Where a copy of the application is set out in the policy, it is the
duty of the insured to know that the representations therein contained, and which constitute
the inducement for the issuance of the policy, are true. Bonewell v. North American A.I.
Co., 167 Mich. 274. Representations are distinguishable from warranties; the latter must be
literally fulfilled. Van Cleave v. Union Gas Co., 82 Mo. App. 668.
Where the insurer is insuring against injury and death by accident, the physical endurance
and resistance of the applicant becomes most material. As a matter of law, a
misrepresentation as to age is so far material that it bars the right of recovery. 2 Joyce, Ins., 2d
ed., par. 1992; U.B.M.A. Soc. v. White, 100 Pa. St. 12; Hunt v. S.C.C.F., 64 Mich. 671.
Suppression of the facts constitute a fraud on the part of the applicant, which is and
continues to be enforced and voidable. Maddox v. S.M.L. Ins. Assn., 6 Ga. App. 681;
Westphal v. Metropolitan L.I. Co., 151 Pac. 169; 3 Joyce, Ins., par.
Pac. 169; 3 Joyce, Ins., par. 2002; Conn. Ins. Co. v. Trust Co., 112 U.S. 250.
If representations are calculated to mislead or deceive, they are material. Babbit v. L.L. &
G. Ins. Co., 66 N. C. 70; 3 Joyce, Ins. 3d ed., sec. 1896; Hoffman v. Legion of Honor, 35 Fed.
252. What is material to the risk must be truly represented. Tyree v. Virginia F. & M. Ins.
Co., 55 W. Va. 63; Nicoll v. Amer. Ins. Co., Fed. Cas. 10259. A positive representation of a
material fact must be full and true, and if it is evaded and not full and complete and materially
untrue, the policy is avoided. 3 Joyce, Ins., 2d ed., par. 1927. Moses v. Delaware Ins. Co.,
Fed. Cas. 5782; Carpenter v. Amer. Ins. Co., Fed. Cas. 2248; Storey v. Union Ins. Co., 15
Am. Dec. 634.
The test is, Did the fact represented or misrepresented operate to induce the insurer to
accept the risk? If it offers a false inducement, whereby the insurer is misled or deceived, the
representation or misrepresentation is material. 3 Joyce, Ins. 2d ed. 1892; Haapa v.
Metropolitan L.I. Co., 150 Mich. 467.
Where a copy of the application is set out in the policy, it is the duty of the insured to
know that the representations therein contained, and which constitute the inducement for the
issuance of the policy, are true. 1 C.J. 420; Bonewell v. North American A.I. Co., 167 Mich.
274; Maryland Casualty Co. v. Morrow, 52 L.R.A. (N.S.) 1213.
Sardis Summerfield, for Respondent:
In all contracts of insurance where the statements contained in the application for
insurance which are material to the risk of hazard or assumed by the insurer are made the
basis of the contract of insurance the interrogative statements of the insurer are as much a part
of the contract of insurance as are the statements in reply thereto. It is undoubtedly
competent for the parties to decide for themselves and beforehand what facts or
representations shall be deemed material, and when they have so agreed, the agreement
precludes all inquiry upon the subject."
when they have so agreed, the agreement precludes all inquiry upon the subject. Gerhauser
v. N.B. & M. Co., 7 Nev. 174; Phoenix Ins. Co. v. Raddin, 30 U.S.L. Ed. 646; 1 Bacon, L. &
A. Ins., 4th ed., sec. 263; 2 Clement, Fire Ins. 21; 3 Joyce, Ins., 2d ed., 3086.
Where materiality has not been fixed by contract, or where or when it is not obvious from
an inspection of the pleadings or from the undisputed evidence, it is a question for the jury to
determine. Insurance Co. v. Zeitinger, 48 N. E. 179; Lander v. Safety Ins. Co., 42 Atl. 916;
Davis v. AEtna Ins. Co., 39 Atl. 902; Boesk v. Ins. Co., 78 N. Y. Supp. 748; Garrison v. Ins.
Co., 28 Atl. 8; Conn Ins. Co. v. Colo. Co., 116 Pac. 154; 2 Clement, Ins. 21; 5 Joyce, Ins.
6067.
Where upon the face of the application a question appears to be not answered at all, or to
be imperfectly answered, and the insurer issue a policy without further inquiry, they waive the
want or imperfection in the answer, and render the omission to answer more fully
immaterial. Phoenix L.I. Co. v. Raddin, 120 U.S. 183; AEtna L.I. Co. v. France, 91 U.S. 23;
Manhattan L.I. Co. v. Willis, 60 Fed. 242; Hall v. People's Ins. Co., 6 Gray, 185; Carson v.
Jersey Ins. Co., 54 N.J.L. 300; Armenia Ins. Co. v. Paul, 106 Pa. St. 520; Lorillard Ind. Co. v.
McCullough, 21 Ohio St. 176.
If the insured fairly states or represents an honest opinion or belief, it is not such
misrepresentation as will void the policy, when the statement does not amount to a warranty.
2 Clement, Ins. 20; Mutual Ins. Co. v. Gordon, 12 N. E. 747; Susquehanna Ins. Co. v. Staats,
102 Pa. St. 525; Fisher v. Crescent Ins. Co., 33 Fed. 544.
There can be no concealment predicated on an unanswered question in a written
application, accepted by the insurance company, or if in making inquiries the company does
not question the insured upon the specific matter or as to matter not covered by an
incomplete, ambiguous or uncertain answer. 2 Clement, Ins.
Ins. 5; Parker v. Otsego Ins. Co., 62 N. Y. Supp. 190; Short v. Homes Ins. Co., 90 N. Y. 16;
Clawson v. Citizens' Ins. Co., 121 Mich. 591. Warranties are not favored in law. Masons
Union Co. v. Brodemon, 50 N.E. 493; Modern Woodmen v. Shyrock, 12 Cush. 416; Daniels
v. Hudson Ins. Co., 12 Cush. 416; Vose v. Eagle Ins. Co., 6 Cush. 47.
A policy of accident insurance must, if possible, be so construed as to give effect to all of
the language used. Unless a statement amounts to a warranty, the general rule is that a policy
of accident insurance is not avoided by a false or erroneous statement not material to the risk.
Statements by the insured in his application, whether regarded as warranties or merely as
representations, should be given a reasonable interpretation, and not be strictly construed
against the insured in order to defeat the policy. The materiality or truth of the statements in
the application is usually a question for the jury to determine. Statements in the application
expressing the applicant's understanding of what will be the effect of the insurance are
statements of law and not of fact, and hence cannot control the legal construction of the
policy afterward issued and accepted. It is well settled as a general rule that a policy of
accident insurance is to be liberally construed as against the insured, although strictly
construed against the insurer. 1 C .J. 397-518.
By the Court, Sanders, C. J.:
This action was brought to recover $1,878 on an accident insurance policy for the death of
A. C. Webb, who, while in the performance of his duties as a mail-carrier in the employ of
the United States postal service, on the 14th day of February, 1920, sustained an injury on an
elevator being operated in the Odd Fellows Building, in the city of Reno, which injury
necessitated the amputation of his left foot, below the knee. The operation was performed on
the day after the injury, and within a few hours thereafter the insured died.
The complaint alleges the making of the policy; that the plaintiff Etta M. Smith is the
daughter of the insured, and the beneficiary (her husband, George F. Smith, is made a party
pro forma); the consideration paid for the policy; the agreement to pay the principal sum of
$1,700, the sum of $25 for the surgical operation, and the further sum of 1 per cent of the
principal amount for each consecutive month for which the insurance should be carried
without default in the payment of the annual premium, and not exceeding 60 per cent of said
principal sum; that the plaintiff had caused to be done all things necessary to perfect her claim
and claims against the defendant for the recovery of the benefits accruing by reason of the
contract of insurance; that the benefits accruing from the 1 per cent of the principal sum
amounted to $153; that she demanded from the defendant payment of the amounts specified,
a total of $1,878, which was refused; that the defendant owed her said sum, and she demands
judgment therefore.
1. The defendant demurred to the complaint, upon the ground that it is not a sufficient
pleading of conditions precedent, in that it does not appear therefrom that a request or
demand was ever made upon the defendant for the sum for which judgment is demanded. The
general averment that the plaintiff had done all things necessary to perfect her claim and
claims against the defendant, and the general averment of a demand and refusal of the
company to pay, makes the complaint entirely sufficient as against a general demurrer. Rev.
Laws, 5071; Richards v. Travelers' Ins. Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455.
The defendant by its third amended answer admits the issuance of the policy, which bears
date of the 12th day of May, 1919, and to avoid its payment set up numerous defenses,
averring that both by misrepresentation of facts, stated in the application and policy to be true,
and by concealment of facts material to the risk, the policy was avoided; and for further
answer denies that the death of the insured was the result of any bodily injuries or injury,
effected, directly and independently of all other causes, through external, violent, and
accidental means; but in this connection avers that the death of the insured was caused
directly and proximately by the disease of active pulmonary tuberculosis, with
arteriosclerosis, from which the insured was suffering at the time he received the injury
stated in the complaint, that necessitated the amputation of his left foot, below the knee.
risk, the policy was avoided; and for further answer denies that the death of the insured was
the result of any bodily injuries or injury, effected, directly and independently of all other
causes, through external, violent, and accidental means; but in this connection avers that the
death of the insured was caused directly and proximately by the disease of active pulmonary
tuberculosis, with arteriosclerosis, from which the insured was suffering at the time he
received the injury stated in the complaint, that necessitated the amputation of his left foot,
below the knee. The plaintiff interposed a demurrer to the defenses, and for demurrer, among
other grounds, alleged that the defense that the insured suppressed, concealed, and
misrepresented facts material to the risk in answer to question 14 of the application shows
that said answer was imperfect and incomplete, and that it became and was the duty of the
insurer to inquire further of the insured with respect to the disease of tuberculosis, and that,
having issued the policy, it waived said imperfections or incompleteness of the answer, and
that therefore the defenses do not state facts sufficient to constitute a defense. The demurrer
was overruled. The correctness or incorrectness of the ruling is not before us. Any argument,
therefore, upon it must be ignored. The plaintiff replied, and for reply denied each and all of
the new matter contained in the answer. A trial before a jury resulted in a judgment in favor
of the plaintiff for the sum demanded in the complaint, and the cause is brought here upon
appeal from said judgment, as well as from an order denying to the defendant a new trial.
Upon the trial the defendant introduced in evidence the application and policy. The
opening words of the policy are as follows:
In consideration of the agreements and statements contained in the application, a copy of
which is indorsed hereon and made a part of this contract, the policy fee of $5 and prem.
of $5 and prem. $2.10, the payment of the premium of two and 10/100 * * * dollars on or
before the first day of June, 1919, and the further payment of the last mentioned sum on or
before the first day of each month thereafter, _______ does hereby insure the person
(hereinafter called the insured) whose name appears after the words signature of applicant' in
said copy of application, by occupation postal service mail-carrier, using bicycle in class C of
said company, subject to the agreements, limitations and provisions of this policy, promises
to pay benefits as hereinafter set forth for loss caused by accidental means, as follows:
Principal sum first year _____ dollars ($1,700.00).
Monthly accident indemnity _____ dollars ($70.00).
The questions and answers in the application, material to the controversy here, are as
follows:
I hereby apply for insurance in the North American Accident Insurance Company and for
that purpose make the following statement:
1. Do you understand that the insurance, if granted, is to be based upon the following
statements and that the falsity of any statement herein shall bar the right to recovery if any
such statement is material either to the acceptance of the risk or the hazard assumed by the
company or made with intent to deceive? Yes.
2. What is your full name? Alonzo C. Webb. * * *
3. What was your age at last birthday? 51 years.
4. * * *
5. * * *
6. * * *
7. * * *
8. * * *
9. Are you carrying or have you applied for any other accident, health or life insurance,
except as herein stated? No.
10. Have you ever been insured in the company, except as herein stated? No, ex. No.
1252229 canc. by this.
11. Has any application ever made by you for accident, health or life insurance been
declined, or any accident or health policy issued to you been canceled or renewal refused,
12. (a) Have you ever at any time received indemnity for accident or illness disability,
(b) Have you ever been refused indemnity for accident or illness disability, except as
herein stated? No.
13. * * *
14. Have you ever been ruptured or suffered the loss of a hand, foot, or eye; had diabetes,
kidney disease, tuberculosis, syphilis, paralysis, varicose veins or any sickness or disorder of
the brain, heart, spine or nervous system or any bodily or mental infirmity, except as herein
stated? 4 toes left foot gone.
15. Are your habits of life correct and temperate, and are you in sound and healthy
condition mentally and physically, except as herein stated? Yes.
16. * * *
17. Have you now or have you had during the past year any local or constitutional
disease, except as herein stated? No.
18. Have you received medical or surgical attention within the past two years, except as
herein stated? No.
19. * * *
20. Are the foregoing answers true and complete? Yes.
After the evidence was closed, the plaintiff submitted to the court a series of instructions,
and asked that the jury be charged as therein indicated, which request was granted, over the
protest and exception of the defendant. The defendant also delivered to the court a series of
instructions, seven in number, that were refused, and exception taken. The instructions given
and deemed material for the proper determination of the appeal are as follows:
Instruction No. 3. The jury is instructed that unless it is satisfied from the evidence that
Webb's answer to question No.
unless it is satisfied from the evidence that Webb's answer to question No. 14 of this
application for insurance was of substantial importance to defendant, and operated as an
inducement to defendant, in executing and delivering its policy of insurance, or that Webb's
answer to said question was made by him with intent to deceive defendant, it should find for
plaintiff upon that issue, regardless of whether Webb had or did not have any disease,
ailment, or disability named or included in said question No. 14.
Instruction No. 6. The jury is instructed that the words any local or constitutional
disease,' contained in question No. 17, in Webb's application to defendant for insurance, does
not include any disease, ailment, or disability named or included in question No. 14 in said
application, but that, on the contrary, any and all of said diseases, ailments, or disabilities are
not included in said question No. 17.
Instruction No. 7. If you believe that A. C. Webb executed the application alleged for
insurance herein alleged and that defendant believed the answers therein were true and
complete, and because thereof, and in reliance thereon, executed a policy of insurance as
herein alleged, and that said answers or any of them were false to the knowledge of A. C.
Webb at the time made, or that in making said answers said Webb wilfully, knowingly, and
deliberately concealed and suppressed information asked for in said application, and the said
false answers or said suppression or concealment was material either to the acceptance of the
risk or the hazard assumed by the company or made with intent to deceive the company, then
plaintiff cannot recover, and your verdict should be for the defendant. In determining whether
or not any answer or concealment or suppression, if such there be, is materially false, you are
to determine whether a reasonable, careful, and intelligent man would have regarded the fact
alleged to be false or suppressed or concealed as substantially increasing the chances of the
loss insured against in said alleged contract of insurance.
Instruction No. 10. The jury is instructed that, in order for the defendant to prevail in any
of its affirmative defenses to plaintiff's complaint, it must satisfy your mind by preponderance
of proof that A. C. Webb, in his answer to any question propounded to him in the application
for insurance, which defendant claims entitles it to avoid payment, must be not only false, but
must also be material to the acceptance of the risk or hazard assumed by defendant or made
by Webb with an intent to deceive defendant.
In this connection the jury is instructed that by the word material,' as used in this
instruction and in said application for insurance, is meant such answers to interrogatories in
the application as were of substantial importance to defendant as an inducement to it in
executing and delivering the policy of insurance.
In other words, in order for the jury to find for the defendant upon the ground that Webb
falsely answered the interrogatory in the application about his age, you must be satisfied from
the evidence, not only that his answer was false, but also that it was of substantial importance
to the defendant and operated as an inducement to defendant to execute and deliver its policy
of insurance, or that Webb made a false answer to the interrogatory with the intention thereby
to deceive defendant; and in this connection the jury is further instructed that any answer of
Webb to any other interrogatory which defendant complains was false and material to the risk
assumed by the company, or made by Webb with an intent to deceive it, is subject to the
foregoing definition of legal principles.
The main defense relied upon to avoid payment of the policy was that the insured, at the
time he made his application was suffering from a pronounced case of pulmonary
tuberculosis with arteriosclerosis, that he knowingly misrepresented his true physical
condition, and deliberately, and with intent to deceive, suppressed and concealed from the
company facts material to be disclosed to enable the company to estimate the risk and to
determine the propriety of assuming the risk.
The evidence, without conflict, shows that the insured had tuberculosis in both lungs; and
he had been treated twice in St. Helena (Calif.) sanitarium for tuberculosis, the last visit being
from June to July, 1918, less than one year preceding the application for the insurance, which
bears date on the 12th day of May, 1919. The proof shows that the insured had also entered
said sanitarium in January, 1915, and been treated for tuberculosis. It appears that the insured
had lost a brother and a sister from tuberculosis, and that he had changed his occupation from
that of school-teacher to that of mail-carrier with the expectation of better enabling him to
resist the ravages of the disease. The testimony shows that he had been fully informed of his
tubercular condition by physicians who had treated him from time to time, and had been
informed by them that he was suffering also from a pronounced case of arteriosclerosis; and it
is further shown that he had been a sufferer therefrom for the last six years prior to the date of
the application for insurance, and he at the time thereof had a fibroid condition in his right
lung.
If the position of appellant be clearly understood, it is its contention that the vice
underlying instructions No. 3, No.6, and No. 10, in so far as they relate to and have any
bearing upon the materiality of the risk, is that by said instructions it was made the province
of the jury, under the guise of determining whether the statements of the insured were
materially false or untrue with respect to tuberculosis, to find that the disease of tuberculosis
was not a bodily infirmity material to be disclosed, which upon a reasonable interpretation of
the contract the court could see that the parties themselves regarded as material to be
disclosed to enable the insurer to judge of the risk to be undertaken.
2. Counsel for respondent concedes that the law does not forbid parties to contract for
accident insurance, as in life insurance, to determine what facts or representations shall be
deemed material, and that this may be done without putting the representations on a
footing with a warranty.
representations shall be deemed material, and that this may be done without putting the
representations on a footing with a warranty. Gerhauser v. N.B. & M. Ins. Co., 7 Nev. 174.
3-5. It must be conceded that whether or not the parties have made the statements in the
application, made a part of the policy, material to the risk, is a question of law for the court,
to be determined by an interpretation of the contract; and, in case of doubt as to their intent, to
resolve such doubt in favor of the insured. Gerhauser v. N.B. & M. Ins. Co., supra. The rule is
well established that, if the materiality of the representations or statements depends upon
inferences to be drawn from facts and circumstances proved, the question of materiality is one
for the jury. A different rule, however, applies where the statements are in the form of written
answers made to written questions. In such case the parties, by putting and answering the
questions, have indicated that they deem the matter inquired of material. May on Insurance,
sec. 185; Cooke on Insurance, sec. 17; 3 Joyce on Insurance (2d ed.) sec. 1912; 14 Ruling
Case Law, p. 1022, sec. 202.
Chief Justice Taft, then circuit judge, in the case of Penn Mutual Life Ins. Co. v.
Mechanics' Savings Bank & Trust Co., 72 Fed. 413, 19 C.C.A. 286, 38 L.R.A. 33, states the
rule to be thus:
The question of the materiality of a fact in respect to which false statements have been
made is always for the jury, unless the answers in the application are expressly made the basis
of the contract; and even in the latter case the question is for the jury where the statute
declares that innocent misrepresentations in relation to matters not material to the risk shall
constitute no defense.
In McEwen v. New York Life Ins. Co., 23 Cal. App. 694, 139 Pac. 242, the judgment was
reversed upon the ground that the trial judge had submitted to the jury the issue of the
materiality of the questions claimed to have been falsely answered.
the issue of the materiality of the questions claimed to have been falsely answered. The court,
in the course of its opinion, says:
Conceding that by reason of this statute [Civ. Code, sec. 2573] the rule laid down in May
on Insurance, section 185, and followed by the courts of many states, is inapplicable, we are,
nevertheless, of the opinion that under the statute the materiality of the representations was a
question of law for determination of the court and not the jury.
6. In AEtna Life Insurance Co. v. France, 91 U.S. 510, 23 L. Ed. 401, it is held that, when
an insurance policy contains the clause that if the answers and declarations made by the
insured are false, the policy shall be void, all the statements contained in the proposal must be
true or the policy will be void, and that the materiality of such statements is removed from the
consideration of the jury by the agreement of the parties. But it is argued that in the case at
bar the parties by their contract did not stipulate as to what should constitute materiality; and
where such be the fact, and it is not obvious from undisputed evidence that the statements are
material, the question of materiality is one of fact, and, that question in the present case
having been determined by the jury upon conflicting evidence it is no longer a question of law
(citing cases). Taking the most favorable view of the contract to the insured, it is manifest
that the parties themselves understood that the insurance, if granted, was based upon the truth
of the statements made in the application, and that the falsity of any statement therein should
bar the right to recover, if any such statement was material to the acceptance of the risk or the
hazard assumed by the company or made with intent to deceive. Where the contract itself
does not stipulate the effect that a particular false statement or representation shall have on
the contract, or where it stipulates merely that the misrepresentation or suppression of a
material fact shall avoid it, it may be conceded that the fact misrepresented or suppressed
must have been material as an inducement to enter into the contract; and, as the
materiality must be shown by matters outside the terms of the contract, it is a question of
fact.
inducement to enter into the contract; and, as the materiality must be shown by matters
outside the terms of the contract, it is a question of fact. But in the case at bar it is manifest
that the parties stipulated that the effect of any false statement barred recovery, and the
hypotheses if material to the risk, etc. does not take the case out of the rule established by the
authorities hereinabove cited.
It is manifest that the defendant deemed the information as to tuberculosis or any bodily
infirmity of the applicant material to be disclosed; and it put the direct question, Have you
ever * * * had * * * tuberculosis * * * or any bodily or mental infirmity, except as herein
stated? It is obvious that it was material that the assured should answer the question
truthfully.
The parties themselves having stipulated that the effect of any false statement material to
the risk should bar a recovery, the statements are, as a matter of law, material. Gerhauser v.
N.B. & M. Ins. Co., supra.
7. It is argued that, the question of materiality having been submitted to the jury upon
conflicting evidence, we are precluded from disturbing the verdict. The difficulty with this
position is that there is no conflict whatsoever in the evidence as to the tubercular condition
of the insured. At the time he made application for the insurance, he was suffering from
tuberculosis and arteriosclerosis. Question 14, Have you ever * * * had * * * tuberculosis *
* * or any bodily or mental infirmity, except as herein stated? and question 15, * * * And
are you in sound and healthy condition mentally and physically, except as herein stated?
show that it was a condition precedent to a valid contract that the insured should observe the
utmost good faith and deal honestly and fairly with the company in respect to all material
facts inquired about, and as to which he had or should be presumed to have had knowledge,
and make a full, direct, and honest answer, without evasion or fraud, and without suppression,
misrepresentation, or concealment of material facts which the parties themselves deemed
material to be disclosed.
facts which the parties themselves deemed material to be disclosed. Moulor v. American Life
Ins. Co., 111 U.S. 346, 4 Sup. Ct. 466, 28 L. Ed. 447.
It was clearly within the province of the jury to decide whether the insured had
tuberculosis or any other bodily infirmity or affliction that amounted to tuberculosis; but it
was not within the province of the jury, under the guise of determining whether the insured's
statements were materially false or untrue in particulars material to the risk, or whether the
insured had suppressed or concealed facts material to the risk, to find that tuberculosis was
not a disease material to be disclosed to enable the insurer to estimate the risk proposed, and
determine upon the propriety of entering into the contract. Campbell v. New England Mutual
Life Insurance Co., 98 Mass. 406.
The instruction submitted to the jury, not merely whether the statements in question were
untrue, and not merely whether the insured had intentionally suppressed his tubercular
condition, but also whether the statement as to that condition was material to be disclosed to
enable the insurer to estimate the risk, and to determine upon the propriety of entering into
the contract, being erroneous, the verdict should be set aside.
8. It is argued that the answer to question 14, 4 toes left foot gone, being true, it did not
conceal or mislead the company, and that, if the insurer desired further information or a more
complete answer, it was its duty to request the same. Counsel for respondent says that, as a
matter of fact, question 14 contains sixteen questions, and that the applicant answered only
one, and that was answered truthfully; hence there was no concealment or misrepresentation,
and the insurer could not have been misled. We think it a well-recognized rule that, where
upon the face of the application a question appears not to be answered at all, or to be
incompletely answered, and the insurer issues a policy without further inquiry, it waives the
incompleteness of or failure to answer, as the case may be, and renders the failure to
answer more fully immaterial.
be, and renders the failure to answer more fully immaterial. Phoenix Life Ins. Co. v. Raddin,
120 U.S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644; 3 Joyce on Insurance, sec. 1870.
9. It is also insisted by counsel for appellant that the trial court committed prejudicial error
in giving instruction 6, and refusing to give defendant's requested instruction submitting to
the jury the consideration of applicant's answer to question 15. Both contentions go to be
same legal question, and we will dispose of them both by consideration of instruction No. 6,
above quoted. By this instruction the court took from the consideration of the jury the
truthfulness of the answer given by the applicant to question 17; and by refusing to give
defendant's requested instruction, above mentioned, it declined to submit to the jury a
determination of the truth of applicant's answer to question 15. The theory of the court in
taking from the consideration of the jury the truthfulness of the answer to the two questions
mentioned is that the two questions in question did not cover the ailments specified in
question 14. Counsel's position seems somewhat anomalous. He says the applicant answered
only one of the sixteen distinct questions embraced in what is designated in the application as
question 14, and since applicant answered only one of them, and answered it correctly, that
the insured cannot be presumed to intend answers to questions 15 and 17 to cover any of the
diseases specifically mentioned in question 14. We do not take this view. The company had
its reasons for submitting the questions in the form in which it did, and each of them called
for a truthful answer.
It may be that the purpose of submitting the questions in the form presented was to
determine if any conflicting statement would be made. Had the applicant in answering
question 14 stated that he was not afflicted with, and had not been afflicted with, tuberculosis,
it would not have been necessary for the applicant to restate such fact in answer to questions
15 or 17, as such answers would have been made unnecessary by the phrase, "except as
herein stated," incorporated in the question, and it is clear the the purpose of the phrase
quoted was to obviate a restatement of a fact in answer to a question which had already
been stated; it could contemplate nothing else.
by the phrase, except as herein stated, incorporated in the question, and it is clear the the
purpose of the phrase quoted was to obviate a restatement of a fact in answer to a question
which had already been stated; it could contemplate nothing else. This is demonstrated by the
form of questions 9, 10, 11, 12a, and 12b which contain the same phrase.
For the reasons given the judgment is reversed.
On Petition for Rehearing
Per Curiam:
Rehearing denied.
____________
46 Nev. 48, 48 (1922) Smith v. Odd Fellows Bldg. Ass'n
[No. 2515]
GEORGE F. SMITH, as Administrator of the Estate of Alonzo Carlton Webb, Deceased,
Respondent, v. THE ODD FELLOWS BUILDING ASSOCIATION (a Corporation),
Appellant.
[205 Pac. 796]
1. Appeal and ErrorErrors Not Urged in Brief are Presumed To Be Abandoned.
Errors which were assigned, but not urged in appellant's brief, are presumed to have been abandoned.
2. CarriersEvidence Held to Sustain Verdict Finding Negligence in Construction of Elevator
Shaft.
Evidence that an elevator shaft was constructed with the casing of the doors at each floor projecting
into the shaft, leaving no clearance between them and the cage where it was open, as the result of which a
passenger's foot was caught between the floor of the cage and the projection and crushed, held to justify
inference of negligence of the owner of the building.
3. CarriersOwner of Building Operating Passenger Elevator Is Common Carrier of
Passengers Owing Duty to Use Utmost Care and Diligence.
The owner of a building operating therein passenger elevators is a common carrier of passengers, and
as such, in the maintenance, inspection, and operation of its elevator and elevator shaft, owes the duty to
use the utmost care and diligence for the safety of its passengers.
46 Nev. 48, 49 (1922) Smith v. Odd Fellows Bldg. Ass'n48
4. NegligenceContributory Negligence for Jury.
When the question of contributory negligence arises upon a state of facts in regard to which
reasonable men might honestly differ, it is a question for the jury.
5. CarriersEvidence Held Not to Show Conclusively Contributory Negligence of Elevator
Passenger.
Evidence held not to show as a matter of law that a passenger in an elevator was contributory
negligent in permitting his foot to project beyond the floor of the cage so as to be crushed between the
floor and the projection into the shaft.
6. NegligenceContributory Negligence Affirmative Defense.
Contributory negligence is an affirmative defense which must ordinarily be specially pleaded and
proved by a preponderance of the evidence.
7. EvidenceMortality Tables Inserted in Revised Laws, Are Competent Evidence of Life
Expectancy.
In an action for death caused by defendant's negligence, where the expectancy of life of decedent was
material as bearing upon the amount of damages, the American Table of Mortality, published as an
appendix to the Revised Laws, is competent evidence; its insertion in the Revised Laws being a sufficient
warrant of its authenticity.
8. EvidenceFact that Decedent Was Not Insurable Risk Does Not Render Mortality Tables
Inadmissible.
The fact that decedent at the time he was injured was suffering from diseases which shortened his
expectancy of life and made him a noninsurable risk affects only the weight, and not the competency, of
the American Table of Mortality as evidence of his life expectancy.
9. DeathAllegation of Damages Held Sufficient.
In a complaint by the administrator for death caused by negligence, which alleged that decedent left
surviving him a widow and three children, two of which were minors, an allegation that the estate was
damaged by his death was equivalent to a general allegation of damage and could not have misled
defendant, which was presumed to know that the measure of damages would be based upon pecuniary
loss to the kindred named in the complaint.
Action by George F Smith, as administrator of the estate of Alonzo Carlton Webb,
deceased, against the Odd Fellows Building Association. Judgment for plaintiff, and
defendant appeals. Affirmed. Petition for rehearing denied.
Frederick L. Berry, for Appellant:
The deceased was guilty of contributory negligence as a matter of law and fact. The law
imposes upon a person sui juris the obligation to use ordinary care for his own protection, the
degree of which is commensurate with the danger to be avoided. Caroll v. Electric Co., 84
Pac. 389; Dufour v. C. P. R. R. Co., 7 Pac. 769; Patne v. Oakland T. Co., 113 Pac. 1074.
Ordinarily, negligence is a question of fact, but where undisputed evidence is such that only
one inference can be drawn, it is one of law. Jacobson v. N. W. P. Ry. Co., 166 Pac. 3;
Shortino v. S. L. & U. R. Co., 174 Pac. 860; Murray v. S. P. Co., 169 Pac. 675; Steggell v. R.
R. Co., 167 Pac. 237; Williams v. Pacific E. R. Co., 170 Pac. 423; Fildew v. S. & N. W. Co.,
177 Pac. 866; Lynch v. Pacific E. R. Co., 164 Pac. 20. The only danger from the operation of
this elevator, which the evidence disclosed, was that of impact between the passenger and the
closed door or side of the shaft while the car was moving. The danger was obvious to a
person of ordinary discretion and intelligence. No one but a child of tender years could fail to
know and appreciate the risk of such a contact, or could fail to be guilty of contributory
negligence if he permitted himself to suffer from it. Shallaberger v. Fisher, 5 L.R.A. 250.
One riding on an elevator as a passenger must exercise ordinary care for his own safety. Ilardi
v. C.T.T. Co., 172 Pac. 763.
Under the law of Nevada, no recovery can be had herein for damage to the estate of
deceased, because this is an action created by statute, conferring upon heirs and dependents as
individuals a right of action for pecuniary damage suffered by them. The estate of the
deceased was not interested. The jury in every such case may give such damages, pecuniary
and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary
injury resulting from such death to the kindred as herein named. Rev.
Laws, 5648. Christensen v. Floriston P. & P. Co. 29 Nev. 552. Only such damages can be
recovered as the statute authorizes; and in the absence of an express provision authorizing a
different rule, the only damage allowed is the probable value of the life to those in whose
behalf the action is brought. Lange v. Schoettler, 115 Cal. 388.
It is settled that the action authorized by this section is one solely for the benefit of the
heirs by which they may be compensated for the pecuniary loss suffered by them by reason of
the loss of their relative. The money recovered constitutes no part of the estate of the
deceased; and where the action is brought or the money recovered by the personal
representative of the deceased, such personal representative is acting solely as a trustee of the
beneficiaries or the heirs on account of whom the recovery is had. In Re Riccomi's Estate,
197 Pac. 97; Salmon v. Rathjens, 152 Cal. 294; Simoneau v. Pacific Co., 159 Cal. 494;
Robinson v. U.S. Gas & Elec. Co., 194 Pac. 42; Ruiz v. Santa Barbara Co., 164 Cal. 188;
Webster v. Norwegian M. Co., 137 Cal. 399. The estate of the deceased has no interest or
claim, but the heirs have a right which inheres in them as individuals. So far as the estate of
the deceased is concerned, the action abated upon his death; his estate acquired no interest or
right to commence an action for the benefit of the estate. Tann v. W. P. Ry. Co., 178 Pac.
971; Bank v. Arcata & M. R. Co., 125 Cal. 364; Munro v. R. R. Co., 84 Cal. 515; Railway
Co. v. Morris, 26 Ill. 400; Marx v. Reisenger, 169 Pac. 247; Early v. Pacific E. Ry. Co., 167
Pac. 513; Slaughter v. Goldberg, Bowen & Co., 147 Pac. 92.
The experience tables of mortality are inadmissible as evidence tending to establish
probable duration of life where the individual was at the time of the accident shown to have
been afflicted with a definite chronic disease of several years standing, or in any class of
uninsurable risks. They were irrelevant, incompetent, and immaterial in the case, and had
not application thereto, being intended only to serve as a guide of the probable duration
of life under normal conditions.
and immaterial in the case, and had not application thereto, being intended only to serve as a
guide of the probable duration of life under normal conditions.
Sardis Summerfield and Leroy Pike, for Respondent:
This court will not consider assignments of error not urged in appellant's brief, they being
presumptively abandoned or waived. Candler v. Ditch Co., 28 Nev. 164; Gardner v. Gardner,
23 Nev. 213; Allison v. Hagan, 12 Nev. 42.
The common law did not authorize damage suits because of death from wrongful act, and in
all the states they are sanctioned only by express statutes. The right of action for the negligent
killing of a person is an asset of the estate and warrants the appointment of an administrator.
Peers v. Nevada P., L. & W. Co., 119 Fed. 400; Christensen v. Floriston Co., 29 Nev. 552;
Forrester v. S. P. Co., 36 Nev. 247; 1 L.R.A. (N.S.) 885.
It being stare decisis in Nevada that the right of action for the negligent killing of a person
is an asset of the estate, the resultants become a part of decendent's estate until distributed as
provided by law. It is no concern of appellant to whom the damages are distributed.
Satisfaction of the judgment would be a complete bar to any other action in any other court
upon the same subject-matter. Forrester v. S. P. Co., supra.
The measure of damages is the loss to the heirs, and courts must follow their own statutes
in regard thereto. The words personal representative mean administrators or executors.
Tiffany, Death by Wrongful Act, par. 109.
Standard mortality tables are admissible in death actions for damages. Such is the general
rule. Tiffany, supra, sec. 174; Rev. Laws, p. 2114. Such tables are not conclusive, but are,
under the authorities, admissible in evidence and properly considered in connection with all
the other evidence in computing the probable expectancy of life.
with all the other evidence in computing the probable expectancy of life.
The jury in every such action may give such damages, pecuniary and exemplary, as they
shall deem fair and just, and may take into consideration the pecuniary injury resulting to the
kindred as herein named. Rev. Laws. 5648. Other courts sustain the rule. McIntyre v. New
York Co., 37 N. Y. 287; Dickens v. N. Y. C. Co., 1 Abb. Dec. 504; Annas v. Milwaukee Co.,
30 N. W. 282; McKeigue v. Jamesville, 31 N. W. 298.
The law exacts a very high degree of care and prudence in the operation of passenger
elevators; not less than that required in the operation of railway passenger trains. The law is
also well established that a railroad acting in the capacity of a common carrier of passengers
is bound to use the utmost care and diligence for the safety of the passengers, and is liable for
any injury to a passenger occasioned by the slightest negligence against which human
prudence and foresight should have guided. Murphy v. S. P. Co., 31 Nev. 125; Webb on
Elevators, 2d ed., sec. 7. However, although there are no cases upon the point, it seems that
reason favors the exacting of greater caution on the part of those who carry vertically, since
they incur the great danger of opposing the inexorable law of gravitation. Idem, p. 3.
This action was instituted by the respondent as administrator of the estate of Alonzo
Carlton Webb, deceased, to recover damages for the death of the deceased, alleged to have
been caused by the negligence of the appellant. The action was tried before a jury and verdict
rendered for the respondent for the sum of $8,500. From the judgment entered in accordance
with the verdict and the order denying a motion for a new trial, this appeal is taken.
The accident in which the deceased sustained the injuries which resulted in his death
happened in an elevator owned and operated by appellant in the Odd Fellows Building in
the city of Reno, Nevada, on the 14th day of February, 1921.
injuries which resulted in his death happened in an elevator owned and operated by appellant
in the Odd Fellows Building in the city of Reno, Nevada, on the 14th day of February, 1921.
The deceased was a mail-carrier, and on that day, and for a long time prior thereto, his duties
required him to deliver mail to the occupants of the building and to collect outgoing mail. The
elevator was an electric passenger elevator with two doors or openings, and was operated by
an employee of the appellant. On the morning of the 14th of February, 1921, the said Webb
entered the elevator on the ground floor for the purpose of entering the building on his usual
rounds in delivering and collecting mail. On the ascent of the elevator his left foot was caught
between the floor of the elevator and a projection on the south side of the elevator shaft
beneath the second floor of the building. The foot was crushed to such an extent that
amputation of a portion of the foot became necessary, and on the following day death ensued
from the effect of the injury and shock.
1. Forty-four errors are assigned, a number of which are not urged in appellant's briefs.
The latter must be presumed to have been abandoned. We have considered and determined
adversely to appellant all of the errors urged in its briefs, but will discuss only those which
appear to be the most important.
2. Appellant's negligence is foreclosed by the verdict of the jury, at least as to the faulty
construction of the elevator shaft by means of which Webb's foot was caught and crushed.
Counsel for appellant practically conceded this on the oral argument, and we do not perceive
how, under the evidence, he could have assumed any other position. The evidence is
undisputed that on the south side of the elevator shaft, the side on which the accident
happened, there was a horizontal square-edge wooden casing from four to five inches in
width just below the floor level of the second floor. The casing projected into the elevator
shaft at least seven-eighths of an inch. According to some of the witnesses, it projected into
the shaft for a distance of 1 1J2 inches.
of 1 1/2 inches. The same condition existed beneath all of the upper floor levels. The
clearance between the edge of the elevator and the projection is given by one witness as
one-half of an inch. Another witness testified that there were 1 1/2 inches of clearance. The
elevator had no door to enclose it. So, accepting any of the distances given as correct, it is
obvious that the projection beneath the floor landings made a condition of danger to one
ascending in the elevator whose foot or arm or clothing might protrude over the edge of the
elevator floor. That this dangerous construction could have been easily obviated by making
the door casings flush with the wall of the shaft, or by placing bevel boards beneath the
horizontal part of the projections so that an object extending over the floor of the elevator
would be pushed back into the elevator when it came in contact with the bevel board, appears
from the testimony.
3. On this phase of the case the court instructed as follows:
The jury is instructed that at the time decedent, A. C. Webb, sustained the injury
described in plaintiff's complaint, defendant was a common carrier of passengers and as such
in the maintenance and inspection of its elevator and elevator shaft and in its operation of said
elevator at said time was bound to use the utmost care and diligence for the safety of its
passengers therein, and was and is liable for any injury to a passenger occasioned by its
slightest negligence, against which human prudence and foresight should have guarded.
The jury is instructed that a passenger elevator is a dangerous instrumentality unless
properly constructed and managed, and that there is no employment where the law demands a
higher degree of care and diligence that in the construction and operation of such elevators.
The jury is instructed that the operator of a passenger elevator is bound to avail himself of
such new inventions and improvements known to him, which will contribute materially to
the safety of his passengers whenever the ability of such improvements has been
thoroughly tested and demonstrated, and their adoption is within his power, so as to be
reasonably practicable.
contribute materially to the safety of his passengers whenever the ability of such
improvements has been thoroughly tested and demonstrated, and their adoption is within his
power, so as to be reasonably practicable.
Applying this rule of law to the case, the jury is further instructed that if it believes from
all the evidence in the case that defendant knew, or reasonably should have known, before the
alleged injury to Alonzo C. Webb, that the square-edged horizontal projection immediately
below each floor level in the elevator shaft, if such condition then existed, should be so
beveled as to materially guard the safety of the feet of passengers therein, and having time
and failing so to do, and such failure being the proximate cause of the alleged injury to said
A. C. Webb, then, the jury so believing, it should find in favor of plaintiff upon such issue.
These instruction were not objected to, and they correctly declare the law applicable to the
facts established by the testimony. 9 R. C. L. 1237, 1238; Webb on Elevators (2d ed.) pp. 4-7,
and cases cited; Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St.
Rep. 175. The jury were justified under the instructions of the court in inferring negligence on
the part of the appellant, and their verdict cannot be disturbed on this ground.
4. Appellant contends that respondent's intestate was guilty of contributory negligence
which was the proximate cause of his injuries, and that the trial court erred in denying its
motion for a nonsuit on this ground. Whenever the question of contributory negligence arises
upon a state of facts in regard to which reasonable men might honestly differ, it ought to
be submitted to the jury. Solen v. V. & T. R. R. Co., 13 Nev. 106; Bunting v. Central
Pacific Railroad Co., 14 Nev. 351; Weck v. Traction Co., 38 Nev. 285,; 149 Pac. 65;
Crosman v. Southern Pacific Co., 44 Nev. 286, 194 Pac. 839.
In Konig v. N. C. O. Ry., 36 Nev. 209, 135 Pac. 151, this court said: "It is only where the
plaintiff's case conclusively discloses negligence on his part that such disclosure may be
taken advantage of by defendant in authorizing the court to advise a verdict for him.
It is only where the plaintiff's case conclusively discloses negligence on his part that such
disclosure may be taken advantage of by defendant in authorizing the court to advise a verdict
for him. If, however, the evidence only tends to show, or only raises an inference of,
contributory negligence, the question should properly go to the jury to be determined like any
other question of fact. The mere suspicion of negligence arising from the plaintiff's case will
not warrant the court in taking such action. On the contrary, the inference of negligence on
the part of the plaintiff must be so strong as to be unavoidable and conclusive. Where some
evidence disclosed during the plaintiff's case merely tends toward the conclusion of
contributory negligence, but lacks that cogency to make it conclusive, then it merely raises a
question for the jury and should be submitted to the jury.
5, 6. The only fact established by the evidence from which an inference of contributory
negligence can be drawn is that the injured man's foot extended over the edge of the floor of
the elevator. How it came to be in that position does not appear from respondent's evidence,
nor is it shown by appellant's evidence. The operator was the only person in the car besides
Webb at the time the accident happened. When Webb entered the elevator and took a position
about two feet from the south side of the elevator, the operator went to the control box and
started and was operating the car. His back was turned towards Webb, and he did not see him
again until his attention was attracted by the injured man's screams. Mr. Worron, a witness for
respondent, gave testimony to the effect that Webb was seated in a chair in the elevator when
his foot was caught. He testified, in substance, that he was on the second floor near the
elevator shaft when his attention was directed to the elevator by the cries of the injured man;
that the elevator was then about on a level with the second floor; that the elevator went on up
out of sight and directly returned to the second floor, where the injured man was taken from
the elevator; that Webb was seated on a chair or stool on the south side of the elevator
about two feet from the opening in the elevator when the attention of the witness was
first directed to it, and was seated in the same position with his left foot outside of the
elevator when it returned to the second floor.
the injured man was taken from the elevator; that Webb was seated on a chair or stool on the
south side of the elevator about two feet from the opening in the elevator when the attention
of the witness was first directed to it, and was seated in the same position with his left foot
outside of the elevator when it returned to the second floor. The testimony of this witness as
to the elevator going to the third floor and beyond and as to Webb being seated in a chair in
the elevator when he sustained his injuries, is in conflict with the testimony of the operator in
this regard, and, of course, presented a question for the jury. But the point we wish to
emphasize is that it does not affirmatively appear from the evidence that Webb's carelessness
contributed to his injuries. The fact that a portion of his foot extended over the edge of the
elevator floor is not incompatible with respondent's claim that he was exercising ordinary
care at the time of the accident. It is merely susceptible as an inference of carelessness. There
is no direct evidence on this point. And in this connection is must be remembered that
contributory negligence is an affirmative defense which must ordinarily be specially pleaded
and proved by a preponderance of the evidence. The jury, therefore, had a right to consider all
the circumstances bearing upon the question in the light of the rule as to the burden of proof.
Appellant cites Beidler v. Branshaw, 200 Ill. 425, 65 N. E. 1086, as a case in point
favorable to its contentions. This case is somewhat similar to the present case. In this case the
injured man's heel was caught between the floor of the elevator and an iron lintel in the shaft.
In the course of his employment during the year prior to the injury, he had worked for a
considerable portion of the time loading and unloading materials near the door which opened
into the elevator and above which the lintel projected into the shaft. He had passed up and
down the elevator repeatedly during that time. By reason of these facts it was assumed in the
prevailing opinion that he was aware of the dangerous construction and fully appreciated
consequences to himself if any part of his body should project over the north edge of the
car.
in the prevailing opinion that he was aware of the dangerous construction and fully
appreciated consequences to himself if any part of his body should project over the north edge
of the car. We cannot apply this reasoning in the present case and say that Webb, on account
of his frequent use of the elevator, knew of the slight projections which extended into the
shaft and that they were not supplied with safety devices for the protection of passengers. We
cannot say that these things should have been observed and the danger appreciated by one
following the occupation of a mail-carrier and doubtless unacquainted with the construction
of elevator shafts. Besides, in considering the value of Beidler v. Branshaw as an authority, it
must not be overlooked that it is the rule in Illinois, in an action of this kind, that the burden
of proof is on the plaintiff to prove that his intestate was not guilty of contributory negligence.
Blanchard v. Lake Shore R. Co., 126 Ill. 416, 18 N. E. 799, 9 Am. St. Rep. 630. Moreover,
two of the justices dissented in that case and declared the question presented by the evidence
to be one of fact for the jury, and not of law for the court. We are in accord with this view,
and for all of the reasons given cannot regard the case as an authority to be followed.
Quimby v. Bee Building Co., 87 Nev. 193, 127 N. W. 118, 138 Am. St. Rep. 483, is cited
and discussed by appellant. In this case a boy of 12 years of age got his foot caught between
the floor of the elevator and a floor landing that projected into the shaft and was injured. A
verdict finding the defendant guilty of negligence was affirmed on the ground that it had not
properly warned and safeguarded the boy while a passenger in his elevator, regardless of the
question of whether or not there was negligence in its construction. It is argued that the
language of the decision indicates that if the boy had been a person of mature years, he would
have been held guilty of contributory negligence. Be that as it may, the case does not
formulate any rule favorable to appellant.
favorable to appellant. It is not what is said or intimated in an opinion but what is decided
that is of importance. We are of the opinion that the question whether the deceased exercised
ordinary care was for the jury to decide, and we see no good reason to hold that the verdict is
contrary to the evidence.
7. The appellant insists that the court erred in admitting in evidence the American Table of
Mortality published in Appendix B at page 2114, vol. 2, of the Revised Laws of Nevada. The
table was offered to prove Webb's expectation of life. The insertion of the table in the volume
containing the Revised Laws by the compilers is a sufficient warrant for its authenticity. The
injured man's expectancy of life was material as bearing upon the amount of damages
sustained, and we see no error in the admission of the table in evidence. As stated in 19 R. C.
L., p. 216:
Mortality tables consist of summarized statistical information on a matter of general
interest. They are, therefore, impartial and disinterested, and are so nearly in the nature of
exact science or mathematical demonstration as to be credible and valuable. Consequently the
uniform practice of the courts is to receive them in evidence in cases where such is
applicable. While they are not conclusive, and are far from satisfactory evidence, they are
admitted from necessity, because they are the best guide obtainable to the establishment of a
material but necessarily uncertain fact, the natural duration of the individual life.
8. The specific objection, however, is that the mortality table was inapplicable in this case,
as the evidence showed that for several years prior to his death Webb had been afflicted with
tuberculosis and arteriosclerosis. It is urged that Webb was therefore not an insurable risk,
and that, as the American Table of Mortality is based on insurable lives of healthy persons, it
could have no tendency to prove his expectancy of life, and its admission in evidence must
have had some influence on the extent of the verdict. The following statement found in 19 R.
C. L., p.
found in 19 R. C. L., p. 217, formulates the correct rule:
While the probative effect of mortality tables may be impaired or destroyed, they are not
rendered inadmissible by evidence of disease or ill health on the part of the person to whom
they are applied, or that he was engaged in a hazardous employment, or that he was not an
insurable risk.
See, also, 17 C. J. 1355, 1356.
In Broz v. Omaha Maternity and General Hospital Assn., 96 Neb. 648, 148 N. W. 575,
L.R.A. 1915d, 334, which was an action for damages for death resulting from negligence, on
the question of the admissibility of mortality tables where it was conceded that the deceased
had been suffering from a mental disorder of such nature that he could never fully recover and
his chances of a partial recovery were none too good, the court said:
Proof that the person whose expectancy of life is under consideration conforms to the
standards of health and vigor adopted in compiling mortality tables is not essential to their
admissibility. Evidence of disease or of ill health or of hazardous employment may impair or
destroy the probative effect of tables of expectancy of life, but does not make them
inadmissible.
The court cites a line of cases in support of the rule announced. In Arkansas Midland R.
Co. v. Griffith, 63 Ark. 491, 39 S. W. 550, cited on this point, the court said:
The question is whether we can still make the tables of service in making the calculation,
notwithstanding it is shown that plaintiff's condition and health were below the average, and
that, in fact, he was not a insurable risk. This is an element of uncertainty that must
necessarily be found in the case of one of feeble health and not insurable, in all cases, whether
we call to our aid the mortality tables or not. When we do so, however, when, by reason of
enfeebled physical condition, the standard tables re not strictly applicable on that account,
yet are more or less efficient aids in arriving at an approximation of the truth, and that is
the best that can be hoped for after all."
account, yet are more or less efficient aids in arriving at an approximation of the truth, and
that is the best that can be hoped for after all.
On the same point, the court, in Deer v. Suckow Co., 60 Ind. App. 277, 110 N. E. 700,
said:
The fact that one is shown to be in poor health does not affect the admissibility of the
tables, but goes merely to its force and weight.
To the same effect is Greer v. Louisville R. R. Co., 94 Ky. 169, 21 S. W. 649, 42 Am. St.
Rep. 345. In fact, the consensus of judicial opinion on the subject is that evidence of disease
or ill health does not render mortality tables incompetent as evidence tending to show
expectancy of life, but goes only to its weight. We are of the opinion that there was no error
in the admission of the tables in evidence. It is unnecessary to discuss any of the other
objections raised by appellant to the admission or rejection of evidence. We are satisfied that
there was no error committed in these respects, at least of a prejudicial nature.
9. Appellant contends that the action contemplated by the statute is one which is created
for the benefit of the persons designated therein, and is not an action wherein the estate can be
damaged; and that, as the only damage alleged in the complaint is damage to the estate, the
demurrers and motions thereto should have been sustained. The objection is technical. The
statute gives the right of action to the personal representative of the individual injured, and
was therefore properly brought by the respondent as administrator of the estate of the
deceased. Had the damage been alleged to have been sustained by the plaintiff as
administrator instead of by the estate, the averment would not have been objectionable, and
the difference does not go to the substance of the allegation. The former was the form of the
allegation in Peers v. Nevada Power, Light and Water Co. (C.C.) 119 Fed. 400, a case arising
in this state and prosecuted under the statute involved here. Judge Hawley, who wrote the
opinion, considered the objections urged against the allegation to be without merit.
objections urged against the allegation to be without merit. On his point the court said:
The objections urged against the fifteenth averment in the complaint, that plaintiff, as
administrator of the estate of Wells, hath sustained damages,' are untenable. They are purely
technical, and apply only to the form and not the substance of the averment. The death of
Wells did not damage J.V. Peers individually, and there is no claim that it did. The action is
not brought by him individually, but in his representative capacity as administrator of the
Wells estate. Under the express provisions of the statute, the action must be brought by the
representative of the deceased, and he alone is entitled to recover damages, if any, resulting
from the death of Wells by the wrongful act of the defendantnot for his own individual
benefit, but for the benefit of those to whom the damages recovered are to be distributed as
provided for in the second section of the act. The averment in question follows approved
forms in such cases (1 Estee, Pl. sec. 1841), and must be construed as having precisely the
same meaning as if the words hath sustained damages' had been left out, and in lieu thereof
the words, brings this action to recover from defendant $40,000 damages for the death of the
deceased.'
A general allegation of damages is sufficient in an action of this kind. The statute under
which this action was prosecuted is in derogation of the common law, at which an action for
damages for the death of a person by wrongful act was not maintainable. The first statute to
authorize an action of this kind was the English Act of 1841 (9-10 Vict., c. 93), commonly
known as Lord Campbell's Act, and as pointed out by Judge Hawley in Peers v. Nevada
Power, Light and Water Co., supra, has served as a model upon which most of the statutes of
the various states of the Union have been enacted. In the first cast in England in which the
point as to a proper averment of damages was raised, it was held that special allegation of
damages was unnecessary.
Chapman v. Rothwell, El. Bl. & El. Q.B. 168. In respect to damages the declaration alleged:
And the plaintiff as administrator as aforesaid claims 200.
It is interesting to note that Lord Campbell, the author of the act, was chief justice when
this decision was rendered. In this country the decided weight of authority sustains the rule
that a general allegation of damage is sufficient in an action this kind. Peers v. Nevada Power,
Light and Water Co., supra; Korrady v. Ry. Co., 131 Ind. 261, 29 N. E. 1069; Haug v. Great
Northern Ry. Co., 8 N. D. 23, 77 N.W. 97, 42 L. R. A. 664, 73 Am. St. Rep. 727; Peters v.
Southern Pacific Co., 160 Cal. 48-67, 116 Pac. 400; 17 C. J. 1292. The allegation in the
complaint before us amounts to a general allegation of damages and is in our opinion
sufficient. The appellant was sufficiently advised by the complaint as to what it would have to
meet on the question of damages. The complaint alleged the death of respondent's intestate
occasioned by the negligence of the appellant, and that he left surviving him a widow and
three children, two of which are minors, and that, by reason of such negligence resulting in
the infliction of injury and death upon the intestate, his estate hath suffered damage.
Appellant knew, or was presumed to know, that the measure of damages would be based
upon the pecuniary loss to the kindred named in the complaint, and could not, therefore, have
been misled by the allegation of damages to the estate.
There is nothing in Christensen v. Floriston Pulp and Paper Co., 29 Nev. 552, 92 Pac. 210,
cited and discussed by appellant, that is opposed to the views we have expressed. No question
of pleading was involved in that case. The language of the court quoted by appellant dealt
merely with the measure of damages. The California cases cited are not in point.
The judgment is affirmed.
Per Curiam:
Rehearing denied.
____________
46 Nev. 65, 65 (1922) State v. Moore
[No. 2531]
THE STATE OF NEVADA, on the Relation of LEONARD B. FOWLER, the Duly Elected,
Qualified and Acting Attorney-General, Appellant, v. GLADYS M. MOORE, Otherwise
Known as Gladys M. Fairbanks, and O.E. MOORE, Otherwise Known as Owen E.
Moore, Respondents.
[207 Pac. 75]
1. Appeal and ErrorOrder Revoking Order for Publication of Summons and Quashing
Service Is an Appealable Order.
An order of the lower court revoking and annulling an order for publication of summons and quashing
service thereof is an appealable order.
2. Attorney-GeneralOffice Has All Powers Belonging to It at Common Law Besides Those
Conferred by Statute.
The office of attorney-general has all the powers belonging to it at common law and, in addition,
those conferred by statute.
3. DivorceLaw of Marriage and Divorce as Administered by Ecclesiastical Courts Is a part
of common law, except as altered by statute.
The law of marriage and divorce, as administered by the ecclesiastical courts, is a part of the common
law of this country, except as altered by statute.
4. DivorceAttorney-General Is Unauthorized to Intervene in Divorce Suit; Interest.
The attorney-general has no power to intervene in a divorce suit or to bring an independent action to
set aside a decree of divorce for fraud or collusion, either under the common law, or under the state
statutes, including Rev. Laws, 4133, giving the attorney-general the right to commence suit or make a
defense where he deems it in the interest of the state; for the word interest must be taken in its
common acceptation as relating to the interest of a party in the ordinary sense of the word.
5. DivorceThe Court Represents the State's Interest in Divorce Proceedings.
In divorce cases the court represents the state's interest throughout the proceedings, either in the
presence of a statute authorizing some law officer to appear or in the absence of such statute.
Appeal from First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Suit by the State of Nevada, on the relation of Leonard B. Fowler, duly elected, qualified,
and acting Attorney-General, against Gladys M.
46 Nev. 65, 66 (1922) State v. Moore
Attorney-General, against Gladys M. Moore, otherwise known as Gladys M. Fairbanks, and
O.E. Moore, otherwise known as Owen E. Moore, to set aside a decree of divorce, and, from
an order revoking and annulling any and all service of summons by an order of publication
issued, the relator appeals. Order affirmed. Petition for rehearing denied.
Leonard B. Fowler, Attorney-General, Robert Richards, Deputy Attorney-General, and
Homer Mooney, Deputy Attorney-General, for Appellant:
The order appealed from is an appealable order. An order quashing personal service of
summons, made on a nonresident defendant while within the state, is a final order from which
an appeal will lie. Rev. Laws, 5325; Tiedmann, v. Tiedmann, 35 Nev. 259.
The action at bar is not an action in personam, but one in rem or quasi in rem. The defendants
are tied to the record in the divorce action, which is impeached by appellant, and which under
the law is in the custody of the district court. The record there is in rem, and the status of the
rem is attacked; and while the conclusion of the court herein may affect the defendants, it will
do so only incidentally, indirectly, and secondarily. A judgment rendered and duly entered in
this state annulling a marriage is to be deemed a res remaining within the jurisdiction. * * *
This jurisdiction cannot be denied without rendering the courts powerless to get rid of
judgments which fugitives have procured from them by fraud. Everett v. Everett, 47 N. Y.
Supp. 994.
Authority for the order for publication of summons is statutory. The statutes apply to all
actions, whether in law or equity. The provisions are general, covering any actions that may
not be otherwise provided by law, and it is upon them that the order and service herein
attacked by respondents are based. The constructive service of summons upon respondents,
the action being in equity to vacate a decree of divorce on the ground of fraud, is sustained
by statute and decision law.
46 Nev. 65, 67 (1922) State v. Moore
the ground of fraud, is sustained by statute and decision law. Rev. Laws, 5026, 5027; Everett
v. Everett, supra.
The complaint states a cause of action, although it is not verified. But it is not verified,
* * * which said cause of action is fully set forth in the complaint * * * and which complaint
is hereby referred to and made a part of this affidavit.' * * * We are of opinion that the
affidavit in question properly showed the existence of a cause of action against the
defendant. Pratt v. Stone, 25 Nev. 371.
It may be true in the abstract that a valid decree of divorce may be obtained in the State of
Nevada by the filing of a complaint under oath to the district court of the county in which the
defendant may be found, but it is not true as a general proposition. The provision must be
read with substantive law, laying down premises upon which a valid decree may be
predicated, and to the extent that decision law interprets and confirms the proposition. Hood
v. State, 56 Inc. 263; People v. Dawell, 25 Mich. 247; House v. House, 25 Ga. 473; Barber v.
Root, 10 Mass. 260; Hanover v. Turner, 14 Mass. 227; Lyon v. Lyon, 2 Gray, 367; Chase v.
Chase, 6 Gray, 157; Smith v. Smith, 13 Gray, 209; Shannon v. Shannon, 4 Allen, 134; Leith
v. Leith, 39 N.H. 20; Pawling v. Bird's Exrs., 13 Johns. 192; Borden v. Fitch, 15 Johns, 121;
Vischer v. Vischer, 13 Barb. 640; McGiffert v. McGiffert, 31 Barb. 69; Todd v. Kerr, 42
Barb. 317; Kerr v. Kerr, 41 N. Y. 272; Maguire v. Maguire, 7 Dana, 181; Ditson v. Ditson, 4
R.I. 87; Smith v. Smith, 4 Greene (Iowa) 271; Thompson v. State, 28 Ala. 12; Parrish v.
Parrish, 32 Ga. 653; Litowich v. Litowich, 19 Kan. 451, 455.
The fact of residence is essential; the legislature has not the power to provide for judicial
divorce for the inhabitants of a foreign power. The principle dominating the subject is that
the marriage relation is so interwoven with public policy that the consent of the parties is
impotent to dissolve it contrary to the law of the domicile."
46 Nev. 65, 68 (1922) State v. Moore
parties is impotent to dissolve it contrary to the law of the domicile. Andrews v. Andrews,
188 U.S. 14; Merritt v. Merritt, 40 Nev. 385; Smith v. Smith, 19 Neb. 706; State v. Fleak, 54
Iowa, 429; Hardy v. Smith, 136 Mass. 328; State v. Arrington, 25 Minn. 29.
The state is vitally interested in the marriage relation, and in suits attempting to regulate or
dissolve it, not in the same sense as the parties thereto, but because the relation affects society
as a whole, its welfare and continued well-being. While it is true the members of society, in
their individual capacities, may not interfere in such relation and suits, the state, as the
custodian of their welfare and general well-being, has the right to do so. The interest need not
be a pecuniary one, nor of any tangibility, but one based upon general public order and sound
public policy. The present situation is stronger as inducing sovereign intervention, as there
subsists in the record the added element of subjects of a foreign jurisdiction, in defiance of
state sovereignty, entering into consummating a fraudulent plan, scheme and undertaking,
through false testimony, deceit and imposition upon a court of record. People v. Dawell,
supra; Hood v. State, supra; Andrews v. Andrews, supra.
A divorce cannot be had except in that court upon which the state has conferred
jurisdiction, and then only for those causes and with those formalities which the state has by
statute prescribed. * * * Marriage being a status based upon public necessity and controlled
by the sovereign will for the benefit of society at large, its dissolution cannot be effected by
the mere act or consent of the parties, and the state may intervene by its prosecuting officer or
through a power vested in the court itself to prevent such dissolution, where it should not be
decreed, although the part against whom the suit is brought may not object thereto. 14 Cyc.
577; Helmes v. Helmes, 52 N. Y. Supp. 734; Robertson v. Robertson, 178 Mo. App. 478;
Yeager v. Yeager, 43 Ind.
46 Nev. 65, 69 (1922) State v. Moore
Yeager v. Yeager, 43 Ind. App. 313; People v. Case, 211 Ill. 279; Jones v. Jones, 58 Or. 311;
Hancock v. Hancock, 55 Fla. 680.
The facts of the case, as pleaded in the complaint, are admitted. There is the admission, not
only of the nonresidence of each of the parties, but of the detailed scheme under which the
court was imposed upon and deceived. Succinctly, the record shows a fraudulent and
collusive judgment as between the parties themselves; a fraudulent and collusive judgment as
against the state, constituting an invasion and violation of its sovereignty, and which concerns
the people as a whole, and a fraudulent and collusive judgment affecting the sovereignty of
the state in an action in the trial of which there were not, and could not be, any real adversary
parties. The fraud or perjury was both intrinsic and extrinsic; and even where the fraud is
intrinsic only, collusive divorce decrees will be annulled. Application for divorce must be
denied upon the ground of collusiona course which makes it unnecessary to consider the
other proofs in the case. * * * It is sufficient * * * to say that such practice must receive the
most severe condemnation. The position this decision must leave the parties in is a question
with which the court has nothing whatever to do. It must pronounce against fraud, collusion,
and imposition at all times and under all circumstances, leaving the guilty parties to take
whatever consequences flow from their wrong. Stowell v. Stowell, 30 N. Y. Supp. 201; E.B.
v. E.C.B., 8 Abb. Pr. 45; Graham, v. Graham, L.R.A. 1917b, 405; Winder v. Winder, 86 Neb.
495; McDonald v. McDonald, 175 Mo. App. 175; Gentry v. Gentry, 67 Mo. App. 552;
Carney v. Carney, 116 Am. St. 80; Holmes v. Holmes, 63 Me. 420; Cassell v. Cassell, 120 Ill.
377; Sanford v. White, 132 Fed. 535; Wickersham v. Comerford, 96 Cal. 439; Peyton v.
Peyton, 28 Wash. 299.
Equity will restrain the enforcement of a judgment which was unjustly obtained by means
of a conspiracy or fraudulent collusion.
46 Nev. 65, 70 (1922) State v. Moore
or fraudulent collusion. This rule is applied where the conclusive agreement was between the
plaintiff and the judge, between plaintiff and his attorney and defendant's attorney, between
plaintiff and one of the defendants to the prejudice of another, between the parties to the
action to the injury of a third person having an interest in the property of a suit. 23 Cyc.
1027; Sanford v. White, supra, Whiting v. Taylor, 8 Dana (Ky.) 403; Wright v. Muller, 59
Am. Dec. 438; Largley v. Bartlett, 18 Mont. 273; Decatur v. Pullen, 129 Ala. 638; U.S. v.
Throckmorton, 98 U.S. 65.
The authority of the attorney-general is plainly and specifically conferred by statute.
Whenever the governor shall direct, or in the opinion of the attorney-general, to protect and
secure the interest of the state, it is necessary that a suit be commenced or defended in any
court, it is hereby made the duty of the attorney-general to commence such action, or make
such defense; and such actions may be instituted in any district court in the state or in any
justice court of the proper county. Rev. Laws, 4133. Furthermore, his rights and duties are
more extensive than the statute; he may exercise the power which inheres in him by virtue of
his office. In view of the attitude of the legislature, and its evident purpose of reestablishing
the supreme authority of the state in reference to this subject, the contention that the
attorney-general has no authority to prosecute the action does not require extended
discussion. The office of attorney-general * * * is vested by the common law with a great
variety of duties in the administration of the government. The duties are so numerous and
varied that it has not been the policy of the legislatures of the states of this country to attempt
to enumerate them. Where the question has come up for consideration, it is generally held
that the office is clothed, in addition to the duties expressly defined by statute, with all the
power pertaining thereto at common law. * * * From this it follows that, as chief law officer
of the state, he may, in the absence of some express legislative restriction to the contrary,
exercise all such power and authority as public interest may from time to time require.
46 Nev. 65, 71 (1922) State v. Moore
some express legislative restriction to the contrary, exercise all such power and authority as
public interest may from time to time require. He may institute, conduct, and maintain all
such suits and proceedings as he deems necessary for the enforcement of the laws of the state,
the preservation of order, and the protection of public rights. State v. Robinson, 112 N. W.
269; Ex Parte Young, 209 U.S. 123; Respass v. Commonwealth, 131 Ky. 812;
Attorney-General v. Shrewsbury B. Co., L.R. 21 Ch. Div. 752; Georgetown v. Alexandria
Canal Co., 12 Pet. 91; People v. Oakland Water Co., 118 Cal. 234; People v. Vanderbilt, 26
N. Y. 293.
The attorney-general, by virtue of his office alone, has the power to institute the action in
controversy. That such a power should reside somewhere, and that the United States should
not be more helpless in relieving itself from frauds, impostures, and deceptions than the
private individual, is hardly open to argument. U.S. v. San Jacinto Co., 125 U.S. 273. The
legislature itself cannot deprive the attorney-general of his common-law powers. The
attorney-general is vested with many powers and duties, and these appertain to his office
under the constitution. He cannot be deprived of these common-law functions by the
legislature, but new duties may be imposed. Fergus v. Russell, 270 Ill. 304; People v.
McCullough, 254 Ill. 9.
In a matrimonial action the state has an interest as well as the parties, and regardless of
any lack of diligence on the part of the defendant, and even regardless of her own desires,
where it is plain that a divorce has been procured by deceit practiced upon the court and by
wrongful acts of one of the plaintiff's agents, the court should, in the interest of the public,
unhesitatingly set aside the decree. Bauley v. Bauley, 190 N.Y.S. 129; Franklin v. Franklin,
40 Mont. 348; People v. Case, 89 N. E. 683; Smith v. Smith, 19 Neb. 711.
Respondents confuse the forum in which marital causes were administered in England
with the law applicable to the causes themselves.
46 Nev. 65, 72 (1922) State v. Moore
applicable to the causes themselves. The jurisdiction of the forum was in the ecclesiastical
courts, but the law administered was the common law. Worthington v. District Court, 37 Nev.
212. It emanated from ecclesiastical authority, which was not a sovereignty, yet it was
adopted and administered as common law by virtue of the sovereignty of England, the only
sovereignty in the land. The law of marriage and divorce, as administered by the
ecclesiastical courts, is a part of the common law of this country, except as it has been altered
by statute. Wuest v. Wuest, 17 Nev. 217. When this became a part of the common law, all
the common-law powers of the attorney-general attached thereto. Crump v. Morgan, 1 Ired.
Eq. (N. C.) 91; Intro. Blackstone Comm.
Gavin McNab and P.A. McCarran (Nat Schmulowitz and Gray Mashburn, of Counsel), for
Respondent:
The appeal should be dismissed, the orders made by the court below not being appealable.
The statute makes a clear distinction between an order and a judgment of the court. Every
direction of a court or judge made or entered in writing and not included in a judgment is
denominated an order. Rev. Laws, 5362. A judgment is the final determination of the rights
of the parties in the action or proceeding. Rev. Laws, 5238. It is within the power of the
legislature alone to prescribe the cases that are appealable. 3 C. J. 279; John v. Paullin, 231
U. S. 583. There must be a final judgment before an appeal can be taken. Keyser v. Taylor, 4
Nev. 435; Meadow v. Dodds, 6 Nev. 261; Phillips v. Welch, 11 Nev. 189; Kapp v. Kapp, 31
Nev. 70. Orders quashing the service of summons or vacating an order for the publication of
summons are nonappealable. Winn v. Carter D.G. Co., 43 S. W. 436; Orland v. Agr. Ins. Co.,
14 Atl. 669; Persinger v. Tinkler, 51 N. W. 299; Lewis v. Barker, 65 N. W. 778; Brown v.
Rice, 46 N. W. 489; Collins Co. Bank v. Hughes, 152 Fed. 414; Tatum v. Geist, S2 Pac. 902;
Reynolds v. Bank, 71 Pac.
46 Nev. 65, 73 (1922) State v. Moore
Tatum v. Geist, 82 Pac. 902; Reynolds v. Bank, 71 Pac. 847; Honorine M. & M. Co. v.
Tallerday, 85 Pac. 626.
A valid decree of divorce may be obtained in the State of Nevada by the filing of a
complaint, under oath, to the district court of the county in which the defendant shall be
found. Rev. Laws, 5838. This language is clear and unambiguous. The courts cannot give to
a legislative act a meaning different from that implied by the words it contains. State v.
McClear, 11 Nev. 39; State v. Parkinson, 5 Nev. 15; Ex Parte Boyce, 27 Nev. 299. Their
function is to determine the intention of the legislature from the words used, in accordance
with adopted rules of statutory construction. Ex Parte Pittman, 31 Nev. 43.
Jurisdiction may be acquired in the court of a county when either of the five different states
of fact is shown to exist. * * * The length of residence of either of the parties was immaterial
so far as being essential to invest the court with jurisdiction. If the suite was brought in the
county where the defendant resided or was found, the length of residence of the plaintiff was
likewise immaterial. Tiedemann v. Tiedemann, 35 Nev. 259. The divorce statute has been
further construed by the appellate court. Merritt v. Merritt, 40 Nev. 385, 160 pac. 22;
Aspinwall v. Aspinwall, 40 Nev. 55; Wade v. Wade, 41 Nev. 533. The question of residence
is one to be determined by the trial court. Blakeslee v. Blakeslee, 41 Nev. 243; Walker v.
Walker, 45 Nev. 105, 198 Pac. 433; Grant v. Grant, 38 Nev. 185.
In general, the party aggrieved by a decree of divorce is the only party who can attack it in
any way. Elliott v. Wohlfrom, 55 Cal. 384. A judgment thus rendered can be attacked only
upon motion or by appeal and by the parties in interest. Estate of Newman, 75 Cal. 213. It is
not error to refuse to exercise the power to set aside a judgment or decree at the instance of a
mere stranger whose rights are not at all affected by the judgment or decree. Tyler v.
Aspinwall, 73 Con. 493; Foster v. Mansfield Co., 146 U.S. SS; AEtna Co. v.
46 Nev. 65, 74 (1922) State v. Moore
Foster v. Mansfield Co., 146 U.S. 88; AEtna Co. v. Aldrich, 38 Wis. 107; Drexel's Appeal, 6
Pa. St. 272; Robinson v. Stevens, 63 Vt. 555; Smith v. Hall, 68 Conn. 651; Black on
Judgments, secs. 317, 359.
Presenting fabricated evidence or perjured testimony upon a trial, where the falsity might
or should have been exposed and refuted, is not such fraud in obtaining a judgment or decree
as will warrant it nullification. U.S. v. Throckmorton, 98 U.S. 61; Vance v. Burbank, 101
U.S. 514; U.S. v. Gleason, 90 Fed. 778; Nelson v. Meehan, 155 Fed 1; Duckworth v.
Duckworth, 35 Ala. 70; Scott v. Penn, 68 Ark. 492; Poco v. Cohn, 91 Cal. 129; Donovan v.
Miller, 12 Idaho, 600; Ames v. Snider, 55 Ill. 498; Riley v. Murray, 8 Ind. 354; Cottle v.
Cole, 20 Iowa, 481; Bleakley v. Barclay, 75 Kan. 462; Gusman v. Hearsey, 28 La. Ann. 709;
Maryland Steel Co. v. Marney, 91 Md. 360; Greene v. Greene, 2 Gray, 361; Miller v. Morse,
23 Mich. 365; Lieber v. Lieber, 239 Mo. 1; Demeritt v. Lyford, 27 N. H. 541; Wilson v.
Anthony, 72 N. J. Eq. 836; Woodworth v. Van Buskirk, 1 Johns. Ch. 432; Michael v. Bank,
84 Ohio St. 370; Brown v. Trent, 36 Okl. 239; Friese v. Hummel, 26 Or. 145; Latimer v.
Dean, 31 Pittsb. L. J. (N.S.) 192; White v. White, 86 Atl. 552; Robinson v. Robinson, 77
Wash. 663.
The law of England covering divorce is the ecclesiastical and not the common law, and
therefore jurisdiction rests entirely upon statute. Burtis v. Burtis (N.Y.) Hopkins Chancery,
557. There must be a legislative enactment to declare the jurisdiction before any tribunal can
exercise it. Perry v. Perry, 2 Paige, 501; Willard, Eq. Jur. 655; Worthington v. District Court,
37 Nev. 212. The attempt of the attorney-general to have a decree of divorce annulled upon
the grounds of alleged perjury does not come under any of the subdivisions of his powers and
duties under the common law. People v. Minor, 2 Lans. (N.Y.) 396.
The attorney-general has no power, authority, or right to intervene in an action for divorce,
nor to bring an independent action to set aside a decree of divorce granted by a court of
the state.
46 Nev. 65, 75 (1922) State v. Moore
an independent action to set aside a decree of divorce granted by a court of the state. Through
its attorney-general, the state is a mere volunteer in this controversy, having no right to assert
nor duty to perform; the attorney-general labors under no responsibility, and the state has no
legal, equitable nor remedial interest in the matter.
Every action shall be prosecuted in the name of the real party in interest, except as
otherwise provided. Rev. Laws, 4986. The exception covers actions prosecuted by
executors, administrators and trustees of express trusts. Rev. Laws, 4987. No cause of action
exists in favor of the state. People v. Haggin, 57 Cal. 579. While the government, or public,
occupies, without being mentioned in the pleadings, the position of a third party (2 Bishop
M. D. & S. 220), there is no provision under our laws for the representation of the so-called
third party in divorce actions. The court or the judge represents the public, in that he is
charged with the responsibility of exercising constant watchfulness over the public interest
in the cause. It is the conscience of the court that must be satisfied, not merely as between
the parties of record, but as between them and the community. * * * And he looks after those
interests as far as his other functions of administering judicial justice permit. The interest of
the state in a divorce proceeding cannot be regarded as reaching the dignity of an interest
equal to that of a party; it does not mean that it is a party to the action in any ordinary sense
of the word. 2 Bishop M. D. & S. 222, 223, 275; Ex Parte Sheldon, 44 Nev. 368, 193 Pac.
967; Bancroft v. Bancroft, 178 Cal. 359; Rehfuss v. Rehfuss, 169 Cal. 86; Devoe v. Superior
Court, 140 Cal. 476; Grannis v. Superior Court, 146 Cal. 245; Lee v. Lee, 19 Wash. 355;
People v. Pacheco, 29 Cal. 210. When a statute gives a cause of action and designates the
persons who may sue, none but the persons designated have the right to bring an action. 30 R.
C. L. 664.
In the absence of specific legislation, the attorneygeneral has neither right, power nor
authority to bring an independent action to set aside a decree of divorce.
46 Nev. 65, 76 (1922) State v. Moore
general has neither right, power nor authority to bring an independent action to set aside a
decree of divorce. In England it was found necessary to adopt a special act of Parliament in
order to give the king's proctor the right in intervene in a divorce action. Hunter v. Hunter, 93
L.T.R. (N.S.) 451; Alexandre v. Alexandre, 23 L.T.R. (N.S.) 268; Hudson v. Hudson, 1 P. &
D. 65; Latour v. Latour, 10 H. of L. Cas. 585. Originally no jurisdiction existed in the
common-law courts to grant divorces. Worthington v. District Court, 37 Nev. 212. If the
common-law courts had no jurisdiction over divorces, obviously the attorney-general would
have no right under the common law to intervene.
The constitution of the state provides that the attorney-general shall perform such duties
as may be prescribed by law. * * * In the absence of a statute authorizing him to act or appear
for the state, the attorney-general is powerless to do so. Railroad Tax Cases, 136 Fed. 233.
Where a statute, either expressly or by reasonable intendment, forbids the exercise of
powers not expressly conferred upon the attorney-general, a grant by statute of certain powers
operates to deprive him of those powers belonging to him under the common law. Cosson v.
Bradshaw, 160 Iowa, 296; State v. Seattle Co., 28 Wash. 488; Julian v. State, 23 N. E. 690;
Hord v. State, 79 N. E. 916; Parker v. State, 18 L.R.A. 567.
The interest of the state (Rev. Laws, 4133) means that the state must have a legal and
substantial interest, either as a plaintiff or defendant, in the controversy; it must have some
pecuniary interest in the subject of the action; an interest substantial, as distinguished from a
mere interest as a spectator, or that which depends upon the broad, general and ephemeral
ground of the well-being of public society and sound public morality. 20 R.C.L. 662; 20
Stand. Ency. Proc. 895; 30 Cyc. 21. The effect of a want of remedial interest is far reaching.
46 Nev. 65, 77 (1922) State v. Moore
is far reaching. 30 Cyc. 31. In the absence of statute, the judge hearing a divorce case
assumes that the public is a party, not in the sense of either asking or opposing the divorce. 2
Bishop M. D. & S. 223; Baxter's Executors v. Baxter, 10 Atl. 814; Dix v. Mercantile Co., 22
Ill. 272; Shoemaker v. Board, 36 Ind. 175.
This is a suit to set aside a decree of divorce.
The appellant's opening brief contains a concise statement of facts, which, with some
slight changes, we will adopt.
The respondents, Gladys M. Moore, as plaintiff, on the 1st day of March, 1920, filed in the
district court of the First judicial district of the State of Nevada, in and for Douglas County, a
complaint against O.E. Moore, as defendant, for divorce, and thereupon summons was issued,
which said summons and complaint on said last-named date were served upon said O.E.
Moore in Douglas County by the sheriff thereof. On the 2d day of March, 1920, said O.E.
Moore, through his attorneys, caused to be filed to said complaint his answer upon the merits,
to which said answer there was annexed his power of attorney to said attorneys, executed
before the clerk of said court on said 1st day of March, 1920. Thereafter, on the 2d day of
March, 1920, said action was tried and decided by said court, and pursuant thereto findings
were filed and decree of divorce was entered in favor of plaintiff and against the defendant.
On the 16th day of April, 1920, Leonard B. Fowler, the duly elected, qualified, and acting
attorney-general of the State of Nevada, filed in the first Judicial district court of the State of
Nevada, in and for the county of Douglas, in behalf of the state, a complaint against Gladys
M. Moore, known as Gladys M. Fairbanks, and O.E. Moore, known as Owen E. Moore,
defendants, and thereupon summons was issued in said action, which said complaint prayed
for judgment and decree in favor of plaintiff and against defendants in said action; that the
decision, findings of fact, and conclusions of law, and said decree in said action entitled
Gladys M.
46 Nev. 65, 78 (1922) State v. Moore
of plaintiff and against defendants in said action; that the decision, findings of fact, and
conclusions of law, and said decree in said action entitled Gladys M. Moore, plaintiff, v. O.E.
Moore, defendant, as aforesaid, be declared, adjudged, and decreed to be and to have been
made, filed, and entered therein without and in derogation of the jurisdiction of said court,
and, accordingly, that the same and each of them were at all times and now are null, void, and
of no force and effect whatsoever; that the same and each of them be annulled, vacated, set
aside, and held for naught; and that plaintiff be granted and awarded such other and further
relief as may be agreeable to equity. The complaint is unverified.
Thereafter, on the 28th day of April, 1920, the appellant, by and through its relator, filed in
said action his affidavit for an order for the publication of the summons so issued, and
thereupon the court signed an order for the publication thereof, and pursuant to said order, on
the 3d day of May, 1920, in the county of Los Angeles, State of California, said summons,
together with a certified copy of said complaint, was personally served upon Gladys M.
Moore, known as Gladys M. Fairbanks, by a deputy sheriff in the county of Los Angeles,
State of California.
And thereafter, on the 11th day of June, 1920, said Gladys M. Moore, known as Gladys M.
Fairbanks, caused to be served and filed in said district court her motion and notice of motion
for an order, judgment, and decree, vacating, annulling, and declaring void said order for the
publication of summons, and quashing the service of summons upon her, which said motion
was heard by the court on the 27th day of November, 1920, and thereupon argued and
thereafter briefed by respective counsel; and theretofore having been submitted, said motion
on the 25th day of June, 1921, was decided by the court in favor of said Gladys M. Moore,
respondent herein, and in accordance with said decision the court entered its order as follows:
"It is the order of this court that the order for publication of summons heretofore made in
this cause be and the same is hereby revoked and annulled and any and all service of
summons made upon the defendants or either of them by reason of said order for
publication is hereby quashed and set aside."
46 Nev. 65, 79 (1922) State v. Moore
It is the order of this court that the order for publication of summons heretofore made in
this cause be and the same is hereby revoked and annulled and any and all service of
summons made upon the defendants or either of them by reason of said order for publication
is hereby quashed and set aside.
To which said order the plaintiff duly excepted, and it is from this order that this appeal is
prosecuted.
1. The main question involved is the power or authority of the attorney-general of the
State of Nevada to institute and maintain this action. On account of the importance of this
question we will deal with it directly, passing by all other contentions made by the
respondents, except the objection that the order appealed from is not an appealable order. We
deem this objection settled adversely to respondents in the case of Tiedemann v. Tiedemann,
35 Nev. 259, 129 Pac. 313, and hold that the order of the lower court revoking and annulling
the order for publication of summons and quashing the service thereof is an appealable order.
2. The attorney-general contends that, as the chief law officer of the state, he is
empowered to intervene in its behalf in a divorce suit, and is likewise empowered, on relation
of the state, to maintain the present action to vacate and set aside the decree in the case of
Moore v. Moore. He claims that the office of the attorney-general was clothed with this
power at common law, and that, as it is a constitutional office in this state, it retains all of its
common-law powers and duties.
He contends further that his authority in this respect is also derived from the statute.
We are in accord with his contention that the office of attorney-general in this state has all
of the powers belonging to it at common law, in addition to those conferred by statute; but we
are of the opinion that the attorney-general had no power to intervene in a divorce suit, or to
bring an independent action to set aside a decree of divorce on behalf of the government
under the common law.
46 Nev. 65, 80 (1922) State v. Moore
Prior to 1858, and from a very remote period in England, the ecclesiastical tribunals had
exclusive jurisdiction over divorce, except that divorces a vinculo matrimonii were
occasionally granted by special acts of Parliament during that time.
3. The common law which we received in this country from England was the common
law as it existed when this jurisdiction still belonged to the ecclesiastical courts, and it has
been held by this court that the law of marriage and divorce, as administered by the
ecclesiastical courts, is a part of the common law of this country, except as it has been altered
by statute. Wuest v. Wuest, 17 Nev. 217, 30 pac. 886.
4. By an act of Parliament passed in 1857, and by its provisions made effective in 1858,
known as the Matrimonial Causes Act, the jurisdiction of the ecclesiastical courts over
divorce was transferred to a court established by the same act and called The Court for
Divorce and Matrimonial Causes, 20 and 21 Vict. c. 85.
Subsequently, in 1860, this act was amended so as to permit the queen's proctor, under the
direction of the attorney-general, and by leave of the court, to intervene in divorce suits for
the purpose of preventing collusion. 23 and 24 Vict. c. 144. This amendment is, of course, no
part of the common law received in this country, and, even if it were, it would not enable the
attorney-general to intervene, for obviously it only invests the attorney-general with discretion
to direct another officer to intervene. If the attorney-general was authorized under the
common law of England to intervene in divorce suits, it is evident that the act of 1860
divested him of this power and conferred it upon another. But, notwithstanding an extensive
research, aided considerably by the able and exhaustive briefs of counsel, we have been
unable to find any evidence of authority on the part of the attorney-general to participate on
behalf of the government in divorce suits in the ecclesiastical courts having been exercised or
claimed in England. If there is any decision recognizing or declaring such right, either in
England or in this country, it has escaped our attention, and the attention of the lower
court, and counsel as well.
46 Nev. 65, 81 (1922) State v. Moore
such right, either in England or in this country, it has escaped our attention, and the attention
of the lower court, and counsel as well.
The decisions from the different states of the Union which hold that the office of
attorney-general is clothed with all its common-law powers do not generally attempt to
specify them. In People v. Miner, 2 Lans. (N.Y.) 396, however, the court enumerates a
number of the common-law powers of the attorney-general, and it is to be noted that the right
claimed does not appear in this enumeration. Nowhere in the excellent works of Mr. Bishop
and Mr. Nelson on Marriage and Divorce, or in any of the books of the law-writers on this
subject which we have examined, has power of this character been stated to belong to the
attorney-general, at common law. Some of the states, for example, Washington, Oregon,
Indiana, and Kentucky, have adopted legislation authorizing and requiring the district
attorneys of the respective states to appear and defend in divorce suits, in so far as it may be
necessary to prevent fraud and collusion. This legislation in itself indicates a conviction in
these states that without it the state could not intervene in divorce suites by any of its law
officers, either under the common law or by statute. In this regard the attorney-general insists
that the duties and powers granted district attorneys by such legislation are cumulative only,
and independent of the duties and powers of the attorney-general of the several states derived
from constitutional, statutory, and common-law sources. If the power exists under the
common law, or under some general statute, why has it never been exercised, either in
England or this country? It is urged that there has never been such a flagrant case as this
before. This is a broad statement, but it seems to us that a power so potential for the
preservation of the general welfare ought to be exercised whenever there is reasonable ground
to believe that there is an attempt to dissolve the marriage relation contrary to public policy.
While it is within the range of possibility, it is still highly improbable that, during all the
years in which an aggrieved spouse could obtain a judicial separation or a dissolution of
the marriage bonds under the laws of England or of this country, the authority of the
attorney-general over divorce suits has remained dormant for want of a proper occasion
to call it into activity.
46 Nev. 65, 82 (1922) State v. Moore
still highly improbable that, during all the years in which an aggrieved spouse could obtain a
judicial separation or a dissolution of the marriage bonds under the laws of England or of this
country, the authority of the attorney-general over divorce suits has remained dormant for
want of a proper occasion to call it into activity.
The power of a law officer of the state to intervene in its behalf in a divorce suite, if it
exists at common law, has been of no benefit to the public either in this country or in
England, the home of the common law. As no evidence of any rule of the common law, or
practice of the ecclesiastical courts connecting the attorney-general of England with authority
in divorce suits on behalf of the government can be found, we must hold that such power
does not exist, and it remains to be determined whether it has been conferred on the
attorney-general of this state by statute. We must also answer this question in the negative.
There is no special statute in this state conferring authority on any law officer to intervene in
divorce suits, as in the states mentioned.
Section 4133 of the Revised Laws of Nevada is the statute which it is asserted empowers
the attorney-general with the authority he claims over divorce suits. There is no other statute
which gives any ground for argument in this regard. The section reads:
Whenever the governor shall direct, or in the opinion of the attorney-general, to protect
and secure the interest of the state, it is necessary that a suit be commenced or defended in
any court, it is hereby made the duty of the attorney-general to commence such action, or
make such defense; and such actions may be instituted in any district court in the state, or in
any justice court of the proper county.
The basis of the attorney-general's claim of power conferred by this statute rests in the
peculiar nature of a divorce suit, presenting as it does a triangular aspect as to parties. The
state, or sovereign, is deeply concerned in maintaining the integrity and permanence of the
marriage relation, on which depends so much the happiness of the people and the
progress of civilization.
46 Nev. 65, 83 (1922) State v. Moore
the marriage relation, on which depends so much the happiness of the people and the progress
of civilization.
In every enlightened government, said the court in Noel v. Ewing, 9 Ind. 37, it
[marriage] is preeminently the basis of civil institutions and thus an object of the deepest
public concern. In this light marriage is more than a contract. It is not a mere matter of
pecuniary consideration. It is a great public institution, giving character to our whole civil
polity.
Speaking of this interest of the state in Campbell's case, decided in Maryland in 1829,
Chancellor Bland said:
A contract of marriage is, in many respects, so highly important in its nature as not only
to involve the interests and happiness of the immediate parties, and to require the free consent
of a man and woman who have a perfect bodily and mental capacity to contract; but it is a
contract to which society is a party, and in which it has a deep interest. 2 Bland, 209, 235, 20
Am. Dec. 360, 376.
In the Supreme Court of the United States, the court, speaking through Mr. Justice Field,
said:
Other contracts may be modified, restricted, enlarged or entirely released upon the
consent of the parties. Not so with marriage. The relation once formed, the law steps in and
holds the parties to various obligations and liabilities. It is an institution, in the maintenance
of which in its purity, the public is deeply interested, for it is the foundation of the family and
of society, without which there would be neither civilization nor progress. Maynard v. Hill,
125 U.S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654.
The foregoing excerpts of decisions deflect the universal judicial view of the importance
of the marriage relation to the state. This court has expressed the same view. Danforth v.
Danforth, 40 Nev. 444, 166 Pac. 927; Ex Parte Sheldon, 44 Nev. 268, 193 Pac. 967.
While the state, from considerations of public policy, is unquestionably interested in
maintaining the marriage status, we do not think an interest in this sense is comprehended
within the meaning of the general statute on which the attorney-general relies.
46 Nev. 65, 84 (1922) State v. Moore
is comprehended within the meaning of the general statute on which the attorney-general
relies. In the first place, no authority has been cited, and we feel safe in asserting that none
can be found, construing this, or any similar statute, as conferring authority on the
attorney-general in divorce cases. In the State of Michigan a statute defining the general
duties of the attorney-general of that state reads:
The attorney-general shall prosecute and defend all actions in the supreme court, in which
the state shall be interested, or a party; and shall also, when requested by the governor, or
either branch of the legislature, appear for the people of this state in any other court or
tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a
party, or interested. 1 Howell's Mich. Statutes (2d ed.) sec. 612.
Yet, notwithstanding this statute, the Supreme Court of Michigan has determined in Baugh
v. Baugh, 37 Mich. 59, 26 Am. St. Rep. 495, that none but the parties can intervene in a
divorce suit. This was a suit in which the infant children of divorced parties, by their maternal
grandmother, filed a bill to set aside the divorce and to have a second marriage of the father
declared null and void. The court said:
The jurisdiction over divorce is purely statutory, and the legislative authority has not seen
fit to allow any but the parties to intervene in such suits. The husband and wife are the only
persons recognized as parties. * * * It is for the legislature to determine to what extent public
policy requires the power of intervention to be vested in any but the parties to divorce suits.
* * * In the meantime the courts have no right to sanction any such intervention. It is
expected of all divorce courts that they will be vigilant in examining the circumstances of all
cases before them, and not allow any decree without a full scrutiny. The means furnished for
this purpose are adequate for most cases.
46 Nev. 65, 85 (1922) State v. Moore
It is a most natural conclusion to reach that, if the legislature had intended to confer upon
the attorney-general a power so great as to enable him to intervene in any divorce suit, it
would have expressed it purpose in a special statute and would not have included it in such a
general term as interest of the state. Moreover, wherever the power has been specially
conferred upon a law officer of any state, it has been expressly or impliedly limited by the
statute. Lee v. Lee, 19 Wash. 355, 53 Pac. 349; De Foe v. De Foe, 88 Or. 549, 169 Pac. 128,
172 Pac. 980.
But in the instant case, if the attorney-general's contention should be recognized, his right
to intervene or bring an independent action to set aside a decree of divorce is, by this general
statute, less restricted than that of an ordinary party in interest. One who is a party in the
ordinary sense of the word is not given the right to intervene in an action under any general
statute, but by special statute, limiting the time of such intervention, and outlining the
procedure. When the legislature has been careful to make special provisions for intervention
in cases of pecuniary importance, how can it be inferred that it intended to bestow upon the
attorney-general, by the general statement, interest of the state, in section 4133, the right to
intervene or attack a divorce decree, at his option, when the consequences might far transcend
any pecuniary considerations?
That the district attorneys of the counties of the state have not construed this statute as
conferring authority upon the attorney-general to appear for the state in divorce proceedings
may be inferred from the fact that they have never deemed it improper to represent a husband
or wife in a divorce proceeding. We apprehend that the district attorneys would not have
assumed this position in opposition to the state's interest, if they were of the opinion that in
such a suit they might at any time be confronted by the chief law officer of the state
representing its interests. The spectacle of these different law officers arrayed for and
against the state in a divorce suit would be anomaly of unusual absurdity; yet not at all
improbable under the attorney-general's contention.
46 Nev. 65, 86 (1922) State v. Moore
these different law officers arrayed for and against the state in a divorce suit would be
anomaly of unusual absurdity; yet not at all improbable under the attorney-general's
contention.
As far as we can inform ourselves, the present attorney-general is the first one to construe
the statute as conferring authority on that official in divorce suits. If, as he contends, it clothes
him with authority, is it not his duty to investigate every divorce suit brought in any of the
seventeen jurisdictions in this state, to the end that fraud and collusion be not practiced on the
court? Under the present state of the law, could this duty be effectively performed? No
provision of law is made for the service of summons in a divorce suit upon the
attorney-general. The clerks of the district courts, in whose offices divorce suits are filed, are
under no legal obligation to give him notice of the filing of such a suit. Is it not reasonable to
assume that, if the legislature had intended to charge the attorney-general with any duty in
divorce suits, it would have provided some method of giving him notice of the filing of such
a suit, to enable him to effectively discharge his duty?
The word interest, as employed in section 4133, must be taken, in its common
acceptation, as relating to the interest of a party in the ordinary sense of the word, and, as so
construed, cannot be held to include the peculiar interest which the state has in the matter of
granting a decree of divorce.
Section 4133 names the general duties of the attorney-general, and is merely a statutory
expression of his common-law powers, which, as we have seen, does not embrace the power
asserted.
It would result in an unwarranted extension of this opinion to analyze the cases cited and
discussed by the attorney-general which he claims support his contention that he can maintain
this action in the name of the state. The decisions referred to have no analogy with the present
case. In these decisions the attorney-general's right to maintain the particular action was
sanctioned either by virtue of his common-law powers, or by statute.
46 Nev. 65, 87 (1922) State v. Moore
sanctioned either by virtue of his common-law powers, or by statute. In United States v. San
Jacinto Tin Co., 125 U.S. 273, 8 Sup. Ct. 850, 31 L. Ed. 747, quoted from extensively, in
which the authority of the attorney-general of the United States to initiate and control the
suite was upheld, a property right of the government was, in effect, alleged to be prejudiced
by the fraud of its own officers. It must be readily recognized that the government's interest in
a suit of this kind is extremely dissimilar to the interest of the state in a suit for divorce.
5. But notwithstanding the fact that the legislature has not empowered the
attorney-general or the district attorneys to appear for the state in divorce suits, its interest is
not therefore unrepresented. In divorce suits the court represents the state's interests
throughout the proceedings, either in the presence of a statute authorizing some law officer to
appear, or in the absence of such a statute. Yeager v. Yeager, 43 Ind. App. 313, 87 N. E. 144.
In Danforth v. Danforth, supra, this court said:
As said in Ribet v. Ribet, 29 Ala. 348, actions of this nature are of a triangular sort, and
such a cause is never concluded as against the court, and it may and usually does satisfy its
conscience regardless of the pleadings.
Again, in Ex Parte Sheldon, 44 Nev. 268, 193 Pac. 967, it was said:
The court represents this interest of the state in divorce actions, and is in duty bound to
scrutinize the testimony and proceedings with more care than in ordinary civil actions, to the
end that collusion of the parties may not effect a dissolution of the marriage relation, when
the real facts of the case, if known, would forbid it.
It is a doctrine of general acceptance that the court represents the interest of the state in
divorce suits. Baugh v. Baugh, supra; Powell v. Powell, 80 Ala. 595, 1 South. 549; Rehfuss v.
Rehfuss, 169 Cal. 86, 145 Pac.
46 Nev. 65, 88 (1922) State v. Moore
Pac. 1020; People v. Case, 241 Ill. 279, 89 N. E. 638, 25 L.R.A. (N.S.) 578; Yeager v.
Yeager, 43 Ind. App. 313, 87 N. E. 144; 2 Bishop on Marriage, Divorce and Separation, secs.
496, 498, 663. In the work cited last above, the eminent law-writer says:
The judge, sitting in a divorce cause, deems himself under a sacred obligation to look
after the interests of all who cannot be present, yet who may be prejudiced by the sentence
prayed. And establishing the justice of the plaintiff's complaint, not merely as between the
parties of record, but as between them and the community, including persons specially
interested yet not before the court, is what is frequently termed satisfying the conscience of
the court. Section 496.
Again, in section 663, Mr. Bishop says:
The public, which we have seen to be a party in all divorce suits, occupies a unique
position, sometimes embarrassing to the court. It does not ordinarily appear by counsel, and
when without counsel does not plead. As against this party, when only thus represented by
what is called the conscience of the court, the plaintiff is entitled to the decree on his case
being duly and fully proved. But this party, unlike the others, never loses a right by laches;
and so, whenever a defense comes out in the evidence, whether alleged or not, it is fatal to the
proceedings. A maxim in these suits, therefore, is that a cause is never concluded as against
the judge; and the court may, and to satisfy its conscience sometimes does, of its own motion,
go into the investigation of facts not contested by pleadings.
And in section 664, he says:
The limit to the right of the public to be protected while thus disregarding the just and
common practice of the court cannot be precisely defined by rule. The judge, keeping in view
the precedents, with his conscience' always awake, shall see that while the record parties are
not deprived of the justice of the law, the public good, which suffers from every dishonest
divorce, and from every one not as well within the spirit of the statute as its terms, is not
sacrificed.
46 Nev. 65, 89 (1922) State v. Moore
public good, which suffers from every dishonest divorce, and from every one not as well
within the spirit of the statute as its terms, is not sacrificed. A rule more exact than this does
not appear to be in the nature of the case possible.
It is evidently the opinion of Mr. Bishop that the duty of the court to represent the state's
interest in divorce suits is exclusive, except in those states where the prosecuting officer is
charged by statute with a like duty, for in section 498 he sates:
It (a divorce suit) affects in a special way the interests of the entire community, and the
separate private interests of a considerable number of third persons not nominally parties. For
the protection of those interests, the judge assumes that the public is a party, not in the sense
of either asking or opposing the divorce, but as seeking justice for itself and for all interested
private persons who are not before the court; and he looks after those interests as far as his
other functions of administering judicial justice permit. In a few of the states, the prosecuting
officer appears in the divorce cause for the protection of those interests, but such is not the
common course in our tribunals. (The italics are ours.)
It is contended by the attorney-general that the allegations of the complaint charging that
the divorce suit was entered and the decree obtained in pursuance of a fraudulent and
collusive scheme concocted and consummated by the respondents and those acting with
them, whereby the jurisdiction of the court was wrongfully invoked, are admitted by the
motion to the order for publication and service of summons, and therefore manifest, and
appalling injustice will be permitted against the sovereign state, if he be not allowed to
maintain this action in its behalf. Be that as it may, we cannot legislate a remedy. Until the
legislature acts and empowers the attorney-general, or other officer, to represent the state's
interest in divorce suits, the duty must remain where it has been always exclusively lodged,
in the court sitting in the cause.
46 Nev. 65, 90 (1922) State v. Moore
must remain where it has been always exclusively lodged, in the court sitting in the cause. As
said in Baugh v. Baugh, supra:
In the best circumstances justice will sometimes miscarry, but this is not peculiar to
divorce cases, and it will not do to resort to unauthorized measure to redress legal misfortunes
or wrongs. It would not be desirable, in order to get rid of some unjust judgments, to destroy
the force of judgments generally, and allow them to be attacked by third parties where the
legal rules which have been established to determine their effect have not permitted it.
As the attorney-general had no authority to institute this action, it follows that the order
appealed from should be affirmed.
It is so ordered.
Per Curiam:
Rehearing denied.
____________
46 Nev. 91, 91 (1922)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1922
____________
46 Nev. 91, 91 (1922) Burns Int'l Detective Agency v. Doyle
[No. 2523]
THE WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY,
INCORPORATED, Appellant, v. GEORGE DOYLE, ED. MILLARD, and E. C. HAIR,
Respondents.
[208 Pac. 427]
1. Grand JuryStatute Authorizing Challenge to Jurors Was Intended to Secure Unbiased
Investigation.
Rev. Laws, 7005, permitting a challenge to an individual grand juror for personal bias, and section
7009, providing that, if such challenge is allowed, the grand juror cannot be present during or take part in
the consideration of a charge against the individual, were intended to insure persons under investigation
the consideration of their case so far as possible by those who are in no way biased, and definitely
establishes that as the public policy of the sate.
2. Grand JuryObjection Must Be Made at Time of Impaneling if Facts Are Known.
Objections to qualifications of a grand juror under Rev. Laws, 7005, must be interposed at the time
the grand juror is impaneled, though one indicted by a grand jury, who has not had previous opportunity
to do so, or did not learn of the fact till it is too late, may move to set aside the indictment upon a ground
for which a challenge might have been interposed.
3. ContractsTendency to Situation Contrary to Public Policy Invalidates.
A contract which tends to produce a situation contrary to public policy is void whether or not in a
particular case it has produced that result.
4. Grand JuryEmployment by Members of Detectives to Investigate Particular Crimes Is
Contrary to Public Policy.
A contract whereby members of the grand jury employed a detective agency to produce evidence
regarding particular crimes which were to be investigated by the grand jury is contrary to public policy,
since the grand jury employing the detectives are thereby biased or prejudiced in favor of the evidence
procured by their employees.
Appeal from Ninth Judicial District Court, White Pine County; E.J.L. Taber, Judge.
Action by The William J. Burns International Detective Agency, Incorporated, against
George Doyle and others. Judgment for defendants when plaintiff declined to amend after
demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.
G.F. Boreman, for Appellant:
Admitting the expenditure of money or the incurrence of the obligation, there may or may
not exist in the mind of the juror a state of bias in reference to the case under consideration by
him; or it may exist in the mind of one and not in that of another; or it might be of such slight
a nature as should properly be disregarded. A person shall not be disqualified as a grand juror
by reason of such opinion, if it satisfactorily appear to the court, upon his declaration under
oath, or otherwise, that he will, notwithstanding such opinion, act impartially and fairly. Rev.
Laws, 7005. Grand jurors are under solemn obligation, imposed by their oath, diligently to
inquire into all infractions of the criminal law which may be given to them in the charge or
may come to the knowledge of any of the members, or of which they can obtain legal
evidence. Rev. Laws, 7012, 7020, 7027, 7028.
The contract as pleaded is complete and independent, and if its validity be upheld it
disclosed under the allegations a clear and indisputable liability upon the part of the
respondents. They should not be permitted to hide behind the legal curtain of public policy
in order to escape liability for their just obligation.
escape liability for their just obligation. The contract should not be lightly set aside, unless for
fraud or upon considerations of public policy of the gravest nature. Public policy is a very
unruly horse, and when you once get astride it you never know where it will carry you.
Richardson v. Mellish, 2 Bingham, 229. If there is one thing more than another which public
policy requires, it is that men of full age and competent understanding shall have the utmost
liberty of contracting, and that contracts when entered into freely and voluntarily shall be held
good an shall be enforced by courts of justice. Printing Co. v. Sampson, 19 Eq. Cas. L. R.
462; Diamond Match Co. v. Roeber, 106 N. Y. 473.
It is not contrary to public policy for grand juries or prosecuting officers to avail
themselves of the services of detectives who are not officers of the law, or of the evidence
thereby secured, in the detection and prosecution of offenders. At the present day hardly a
criminal case of note is brought to trial without the assistance of such operatives, and many
states, by statutory enactment, permit their employment, even by the district attorney who
files the information. Thiel Detective Co. v. Tuolumne County, 173 Pac. 1120.
Chandler & Quayle, for Respondents:
The alleged agreement is contrary to public policy, and is therefore void. It is a part of the
public policy of this state, as expressed in its statutes, that a grand juror shall be impartial.
Rev. Laws, 7005; Parus v. District Court, 42 Nev. 229; State v. Williams, 35 Nev. 276. The
statute requires the same state of mind on the part of a grand juror as of a trial juror. Rev.
Laws, 7009, 7150. A grand juror is required to make oath that he will present no persons
through malice, hatred, or ill will. Rev. Laws, 7012, 7013. The right of an accused person to
challenge an individual grand juror is a substantial right. State v. Bachman, 41 Nev. 197. "It
is the duty of the judiciary to refuse to sustain that which is against the public policy of
the state, when such public policy is manifested by the legislation or fundamental law of
the state."
It is the duty of the judiciary to refuse to sustain that which is against the public policy of
the state, when such public policy is manifested by the legislation or fundamental law of the
state. 6 R.C.L. 709; People v. Chicago Co., 130 Ill. 268.
A grand jury has no authority to employ detectives, even when the regularly constituted
peace officers fail to cooperate with the grand jury. Aside from the question of public policy,
the grand jury itself has no power to make such a contract or to bind the county thereon.
Woody v. Peairs, 170 Pac. 660. The complaint does not allege any express contract with the
grand jury, and such contract cannot be implied. Burns v. Holt, 164 N. W. 590. The
complaint fails to allege an obligation binding on the county, or with an authorized county
official, and shows no approval of the claim by the board of county commissioners. Rev.
Laws, 1508-1510, 1523-1525.
By the Court, Coleman, J.:
This action was instituted to recover an amount alleged to be due and owing the plaintiff
from the defendants under a contract claimed to have been entered into for the performance of
certain services in the procuring of evidence for submission to the grand jury of White Pine
County, of which the defendants were members. The complaint alleges, among other things:
That the grand jury was desirous of procuring the aid and services of plaintiff * * * for
the purpose of assisting said grand jury in * * * obtaining evidence of certain alleged criminal
offenses * * * and requested plaintiff to furnish its aid * * * to said grand jury for the purpose
of making investigation of certain alleged criminal matters and offenses alleged to have
occurred within said county, and of aiding said grand jury in obtaining proofs or evidence in
respect thereof.
To the complaint a general demurrer was filed, and, after consideration thereof, the trial
court sustained the same. Plaintiff declined to amend, judgment was rendered in favor of the
defendants, and plaintiff has appealed.
Two points are presented in support of the contention that the complaint does not state a
cause of action: First, that the contract pleaded in the complaint is against public policy, and
hence void. We need not consider the other contention.
1. Is the contract pleaded against public policy? Section 7005 of the Revised Laws of
1912 provides that a challenge may be interposed to an individual grand juror where a state of
mind exists on his part in reference to the case which will prevent his acting impartially and
without prejudice to the substantial rights of a party. By section 7009 it is provided that, if a
challenge to an individual grand juror is allowed he cannot be present during, or take part in,
the consideration of a charge against an individual. The rights thus secured to one under
investigation are substantial in their nature. State v. Bachman, 41 Nev. 197, 168 Pac. 733. If
we can accurately divine the purpose of these provisions of our statute, it is to assure persons
under investigation the consideration of their case, as far as possible, by those who are in no
way biased. Such is the public policy of the state, as definitely established by statute.
2. Counsel for appellant has presented the case very strongly, but we think the sounder
view is opposed to his contention. It is urged that bias is a state of mind to be shown and
made to appear as any other fact. In this connection it is also urged that, even where a juror is
biased, if it appears to the court that notwithstanding such bias the juror can act impartially
and fairly, the court will not disqualify him. Rev. Laws, 7005. Basing the contention upon the
foregoing assertions, it is insisted that, if an indictment should be returned, based upon
evidence unearthed by a detective who pursued his investigation pursuant to such a
contract as the one pleaded, it must be set aside, if the position of respondents is sound,
because of the means employed in ferreting out the facts.
upon evidence unearthed by a detective who pursued his investigation pursuant to such a
contract as the one pleaded, it must be set aside, if the position of respondents is sound,
because of the means employed in ferreting out the facts. We think counsel's premise is an
erroneous one. It was long ago settled that our statute fixes the disqualifications of a grand
juror (State v. Millain, 3 Nev. 409, 424); it has also been decided that objections to the
qualifications of a grand juror can be made only at the time and in the manner contemplated
by statute (McComb v. District Court, 36 Nev. 417, 136 Pac. 563); and our statute clearly
contemplates that a person held to answer to the grand jury must interpose his challenge to a
grand juror at the time it is impaneled.
It is true that one indicted by a grand jury, who has not had previous opportunity to do so,
may move to set aside the indictment upon the ground for which a challenge might have been
interposed. Conceding the correctness of the contention that bias is a state of mind to be
shown, and that the court must determine if such bias exists as to disqualify a grand juror, we
are still of the opinion that the contention of counsel cannot be sustained. One who is indicted
by grand jury composed of persons who have financed the building up of a case against him,
and who are biased, might not learn of the facts until it is too late to raise the question of bias
in any manner or at any time.
3. We think, since it is the public policy of this state, as declared by statute, that one
whose conduct is being investigated by a grand jury is entitled to have the investigation made
by unbiased grand jurors, the sole question for us to determine is the force and effect of the
contract pleaded. In this connection we may well direct attention to the thought expressed in
King v. Randall, 44 Nev. 118, 190 Pac. 979, 13 L.R.A. 730, to the effect that a contract which
tends to produce a situation contrary to public policy, whether or not in a particular case it
produces that result, is void.
4. Would such a contract as that pleaded tend to defeat the general purpose of our statute
to afford every person whose conduct is being inquired into an inquisitorial body free from
bias and prejudice? As will appear by reference to the quotation from the complaint, it is
charged that the plaintiff was employed to investigate certain alleged criminal offenses. * *
* The allegation negatives the idea that plaintiff was employed to investigate the
commission of crimes generally, but that its activities were limited to particular offenses. The
inference deducible from this language is that it was especially desirable to fix the liability for
certain offenses. That purpose was so earnestly desired that the defendants were willing to
obligate themselves for a large outlay. Is it possible for frail human nature to lend its support
to the ferreting out a crime without being influenced in reaching a conclusion as to the guilt
or innocence of the party? We think not. Would any one be so audacious as to say that a
detective who has been active in investigating an alleged crime could be an impartial grand or
petit juror? The inquiry suggests the answer. One who furnishes the money to induce the
activity of a detective in such an inquiry is but slightly, if any, less liable to be prejudiced. In
fact, the detective is working for the reward, and is paid for his services, regardless of results,
whereas the one who puts up the money to induce the activity of the detective is in a position
to use his influence to get the results he hopes for. His only reward is in finding a victim. Is
he likely to be impartial toward the one who is the fruit of his own activity? A knowledge of
human nature answers, No. The experiences of the ages answer, No. The words of St.
Luke, Where your treasure is, there will your heart be also, state a truism. An agreement on
the part of grand jurors to finance an investigation of a particular offense inexorably
prejudices them as impartial and unbiased members of the grand jury. Such a contract not
only tends to create prejudice, but, unless the persons so agreeing are superhuman, it is safe
to say that it in fact has that effect.
agreeing are superhuman, it is safe to say that it in fact has that effect.
In the case of Wm. J. Burns I. D. Agency v. Holt, 138 Minn. 165, 164 N. W. 590, the point
here under consideration was urged, and, though not squarely decided, the intimation of the
court is strongly in accord with the view we have taken. Said the court:
We shall not now stop to inquire and determine whether a contract made by a grand juror
or grand jury to finance an investigation of crimes through detective agencies is void as
against public policy. It is enough to suggest that for grand jurors to personally finance
criminal investigations is so at variance with the evident purpose of their work, under the
theory of our criminal procedure and the practice of modern jurisprudence, that no contract so
to do should be implied from the fact that reports were received and made use of by the grand
jury, or from the fact that its foreman requested the same or any other service from outsiders.
The foreman has no express or implied authority to incur expense for which the jury or the
individual members will be liable. Moreover, the finding of an indictment calls for the
judgment of fair-minded, unprejudiced men. It is against the general consensus of opinion
that ordinary men can act fairly and impartially when their purse has been placed on one side
of the scale.
Holding the views expressed, the judgment must be affirmed.
It is so ordered.
Ducker, J.: I Concur.
Sanders, C. J., concurring:
This is an appeal from a judgment dismissing a complaint upon demurrer. According to its
averments, the plaintiff, The William J. Burns International Detective Agency, is a New York
corporation, organized and engaged in the business of doing general detective work for hire.
for hire. The defendants, George Doyle, Ed. Millard, and E. C. Hair, were, at the time stated
in the complaint, members of a regularly impaneled grand jury in the district court for White
Pine County, the defendant Doyle being its foreman. On or about the 23d day of March, 1917,
said grand jury, through its foreman, requested plaintiff to furnish its aid, assistance, and
services to said grand jury for the purpose of making investigations of certain alleged
criminal matters and offenses which had occurred within its jurisdiction, and of assisting it in
obtaining proofs or evidence in respect thereof, and of making reports to said grand jury of its
investigations with respect thereto.
It is alleged that, pursuant to said grand jury's request, and in consideration that plaintiff
would furnish its aid, assistance, and services, as aforesaid, to said jury, the defendants, on
the date mentioned, promised, agreed, and guaranteed that plaintiff would be paid and should
receive for its aid and services the sum of $9 per day for each detective, agent, and employee
of plaintiff who should be engaged in doing detective work in respect to the criminal offenses
under consideration and investigation by said grand jury, and likewise the expenses of each
operative so employed from the time of leaving the office of plaintiff until his return.
It is alleged that, pursuant to the request of said grand jury and the defendants, and in
consideration of the latter's said promise and guaranty, the plaintiff furnished and rendered its
aid and services in and about such investigations whenever requested by said grand jury, and
that it did aid and assist that body in obtaining proof and evidence in respect to the criminal
matters then under its investigations, and furnished said grand jury with complete reports of
all such investigations made by plaintiff. The total amount alleged to be due and owing for its
aid and services is $2,383.90, for which plaintiff demands judgment against Doyle, Millard,
and Hair.
The meaning I attribute to the cause of action is that plaintiff was employed by said grand
jury, through its foreman, for the purposes stated. The right of plaintiff to recover, if it exists,
is, in my opinion, predicated solely upon the validity of plaintiff's employment. If, therefore,
the grand jury of White Pine County is not in law authorized to employ plaintiff to aid and
assist it in its investigations of criminal offenses, or to hire a person to procure evidence to be
used before it, it would seem to follow that defendants' promise or guaranty of a specified
amount per day under and by virtue of its employment is without consideration. So the
question for determination is not whether the defendants' promise or guaranty is in
contravention of public policy, but whether a grand jury, duly impaneled, is authorized by the
general law or statute to employ a detective agency to aid and assist in its investigations of
certain criminal offenses, or to furnish evidence with respect thereto to be used in making
presentment or indictment.
The question is new in this jurisdiction, and, after most diligent research, I have been
unable to find in the decisions of other courts any precedent for such a contract of
employment by a grand jury, for the reason, I assume, that the method of procedure adopted
by the grand jury, in the exercise of its inquisitorial powers, is most extraordinary and
unusual.
It is deemed proper to state that an impression widely prevails that grand juries, in the
exercise of their inquisitorial powers, may assume the role of prosecutors in their
commendable earnestness and zeal to bring to light for examination, trial, and punishment
violators of public authority, our constitution and laws. But such is not the law. Grand juries
are not prosecutors. It is pointed out in a leading text on criminal procedure that, when liberty
is threatened by excess of authority, then a grand jury, irresponsible as it is, and springing
from the body of the people, is an important safeguard of liberty. If, on the other hand, public
order and the settled institutions of the land are in danger from momentary popular
excitement, then a grand jury, irresponsible and secret, partaking, without check, of the
popular impulse, may, through its inquisitorial powers, become an engine of oppression
and of great mischief to liberty as well as to order.
order and the settled institutions of the land are in danger from momentary popular
excitement, then a grand jury, irresponsible and secret, partaking, without check, of the
popular impulse, may, through its inquisitorial powers, become an engine of oppression and
of great mischief to liberty as well as to order. In the time of James II the grand jury was
called into existence to serve as a barrier against oppressive state prosecutions. Under our
government the only valid basis upon which the institution of grand juries rests is that they
are an independent and impartial tribunal between the prosecution and the accused, and it is
the duty of the courts to refuse to tolerate any practice which conflicts with this independence
and impartiality. 2 Wharton's Crim. Prac. (10th ed., Kerr) sec. 1295.
Grand juries, it has been said, are high public functionaries, standing between accuser
and accused. They are the great security to the citizens against vindictive prosecution, either
by government or political partisans, or by private enemies. In their independent action the
persecuted have found the most fearless protectors; and in the record of their doings are to be
discovered the noblest stands against the oppression of power, the virulence of malice and the
intemperance of prejudice. These elevated functions do not comport with the position of
receiving individual accusations from any source, not preferred before them by the
responsible public authorities, and not resting in their own cognizance sufficient to authorize
presentment. Nor should courts give unadvisedly aid or countenance to any such
innovations.
These high ideals are condensed in a solemn obligation to be administered to the foreman
and taken by all the members of the grand jury before entering upon the discharge of their
duties. It is true that in the discharge of their oaths they are required to make diligent inquiry
into all offenses committed and triable within their jurisdiction, of which they have and can
obtain legal evidence. But I am of the opinion that, in the exercise of their inquisitorial
powers, they are not required, neither are they empowered, to employ third parties to aid,
assist, and participate in the prosecution of their trust, outside of those public officers
upon whom the law imposes the duty.
the exercise of their inquisitorial powers, they are not required, neither are they empowered,
to employ third parties to aid, assist, and participate in the prosecution of their trust, outside
of those public officers upon whom the law imposes the duty. It is true they must inquire of
all offenses, but not by procuring by stealth and chicanery witnesses to become public
informers, but by sending for persons in the manner provided by law, who might, in the
opinion of the grand jury, be most likely to possess evidence relative to the matters under
investigation.
Furthermore, to countenance such a method as here employed of making presentments or
indictments would introduce a flood of evils, disastrous to the purity of the administration of
criminal justice and subversive of all public confidence in that body. It would tend to destroy
the independence and impartiality of the grand jury and increase the danger it was intended to
avert. I act more in conformity with a wise and equal administration of the criminal law by
refusing to tolerate any innovation or practice that would bring the grand jury system into
contempt.
I concur in the affirmance of the judgment.
____________
46 Nev. 103, 103 (1922) Ex Parte Weinroth
[No. 2557]
In the Matter of the Application of LOUIS WEINROTH for a Writ of
Habeas Corpus.
[207 Pac. 1103]
1. Criminal LawIndeterminate Sentence for Receiving Stolen Goods Held Proper.
Under Rev. Laws, 6648, providing that a person convicted of receiving stolen goods shall be
imprisoned for a term not exceeding five years, and section 7260, as amended by Stats. 1913, c. 199,
Stats. 1915, c. 158, and Stats. 1921, c. 176, authorizing indeterminate sentences limited only by the
minimum and maximum terms of imprisonment provided for the offense when no fixed period of
confinement is imposed by law, and, where no minimum term is fixed, authorizing the court to impose a
sentence of not less than one or more than five years, the court was authorized to give a defendant
convicted of receiving stolen goods an indeterminate sentence of not less than one year, as section 6648
fixed only the maximum punishment.
Original application for a writ of habeas corpus on behalf of Louis Weinroth. Refused.
A. Grant Miller, for Petitioner:
Petitioner was convicted under section 6648 of the Revised Laws of the crime of receiving
stolen goods. Said section provides a fixed term of imprisonment, and is controlling in that
respect. The lower court had no authority in law and nor jurisdiction to impose the sentence
complained of, the acts of 1915 and 1921 not being applicable. Petitioner should be
discharged.
L.D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney,
for Respondent:
The petition should be dismissed and petitioner remanded to custody. The sentence is
valid. Petitioner was prosecuted for receiving stolen goods, under the provisions of section
6648 of the Revised Laws, which provides a penalty of a term not exceeding five years.
The statutes relating to indeterminate sentences properly apply. They provide that the court
shall direct confinement for a term not less than the minimum nor greater than the
maximum, and that where no minimum is specified it shall be fixed at not less than one
year.
confinement for a term not less than the minimum nor greater than the maximum, and that
where no minimum is specified it shall be fixed at not less than one year. The trial judge fixed
the minimum, and the petitioner therefore stands sentenced to a term of not less than one nor
more than five years. Rev. Laws, 7260; Stats. 1913, p. 274; Stats. 1915, p. 192; Stats. 1921, p.
265.
Under the indeterminate-sentence law, the trial court has no discretion in passing sentence,
other than to fix the minimum or maximum where not specified. Other than the exercise of
this discretion, the statute itself fixed the sentence. Ex Parte Melosevich, 36 Nev. 67; People
v. Nowarky, 254 Ill. 146; State v. Lockard, 144 N. W. 601; State v. Gaunt, 98 Kan. 186; In
Re Hamilton, 188 Mich. 499.
Upon the conviction of Louis Weinroth of the offense of receiving stolen goods, he was
sentenced under and by virtue of the indeterminate-sentence law to confinement in the state
prison for a term of not less than one year, where he has been confined for some months past
by a commitment issued out of the Second judicial district court of this state in and for
Washoe County, wherein he was tried and convicted.
In his petition for a writ of habeas corpus, addressed to this court, he alleges that his
confinement and detention by the warden of the state prison is illegal, in that the judgment or
sentence pronounced against him is entirely unlawful, illegal, and void, for the reason that the
statute which defines the offense of receiving stolen goods prescribes the only punishment
that can be imposed by law for that offense.
In the exercise of our original jurisdiction in such matters, we issued the writ to inquire
into the legality of the sentence; there being no question raised as to the court's jurisdiction of
the offense and of the petitioner.
The precise question before us is whether the court had jurisdiction to pronounce the
particular sentence and order petitioner's commitment.
had jurisdiction to pronounce the particular sentence and order petitioner's commitment.
The statute (Rev. Laws, 6648), which defines the offense of receiving stolen goods,
provides that the person charged shall upon conviction, be imprisoned in the state prison for
a term not exceeding five years, or by a fine not exceeding one thousand dollars, or both.
The indeterminate-sentence law (Rev. Laws, 7260), as amended (Stats. 1913, p. 275; Stats.
1915, p. 192; Stats. 1921, p. 265), provides, inter alia:
Whenever any person shall be convicted of any felony for which no fixed period of
confinement is imposed by law and where a judgment of confinement is rendered, the court
shall, in addition to any fine or forfeiture which he may impose, direct that such person be
confined in the state prison for an indeterminate term limited only by the minimum and
maximum term of imprisonment prescribed by law for the offense of which such person shall
be convicted; and where no minimum term of imprisonment is prescribed by law, the court
shall fix the minimum term in his discretion at not less than one year nor more than five
years, and where no maximum term of imprisonment is prescribed by law, the court shall fix
such maximum term of imprisonment. * * *
The lower court manifestly based its authority to pronounce the sentence upon the
assumption that the minimum punishment prescribed by law for the offense of receiving
stolen goods (a felony) is indeterminate, or, in other words, that no fixed minimum period of
confinement in the state prison is imposed for the offense. And it is argued by counsel for the
state that, as no minimum term of imprisonment is prescribed by the statute making it a
felony to receive stolen goods, the sentence of petitioner to imprisonment in the state prison
for a term of not less than one year is entirely legal. In this counsel are correct. It is true the
maximum punishment for such offense is prescribed, but the minimum is not fixed.
the minimum is not fixed. It is our view that the indeterminate-sentence law, among other
things, was designed and enacted to cover and include statutes which fix the maximum
punishment, but fail to prescribe the minimum; and to accomplish its purpose it expressly
provides that:
Where no minimum term of imprisonment is prescribed by law, the court shall fix the
minimum term in his discretion at not less than one year nor more than five years.
But is argued by counsel for petitioner that upon every reasonable intendment the statute
(section 6648) must be construed or interpreted as fixing the minimum punishment for the
offense of receiving stolen goods at one day's imprisonment in the state prison, and the court
therefore exceeding its jurisdiction in sentencing the petitioner for a term of not less than one
year in the state prison. The statute (section 6648) fixes only the maximum punishment, and
we are of the opinion that the sentence is entirely legal. Therefore the petitioner must be
remanded to the custody of the warden of the state prison, there to remain until otherwise
legally discharged.
____________
46 Nev. 107, 107 (1922) Dahlquist v. Nevada Industrial Comm'n
[No. 2527]
HILMA DAHLQUIST, Respondent, v. NEVADA INDUSTRIAL
COMMISSION, Appellant.
[206 Pac. 197; 207 Pac. 1104]
1. Master and ServantWoman Marrying Employee after Injury Held Not a Dependent
within Compensation Act.
Under Workmen's Compensation Act, sec. 26, providing that dependency shall be determined as of
the date of the accident to the employee, irrespective of any subsequent change in conditions, a woman
who married a man on the day after he was injured would not be a dependent and entitled to the
compensation provided in section 25.
2. MarriageEvidence Held to Establish Common-Law Marriage.
Evidence that deceased and plaintiff lived together as man and wife, that deceased had introduced
plaintiff as his wife, and that people who knew them understood that they were man and wife, held
sufficient to prove common-law marriage.
3. MarriageActs of Husband Held Not to Overcome Positive Evidence of Common-Law
Marriage.
When there is positive evidence of the existence of a common-law marriage at a certain date, the fact
that the parties at a later date entered into a ceremonial marriage, and that the husband stated, when
seeking employment, that he was unmarried, does not disprove the existence of the common-law
marriage.
1. Master and Servant-Compensation Suit against Industrial Commission Original Proceeding
Not Tried De Novo on Issue Relied on Before Commission.
Since there is no appeal from a ruling of the industrial commission, but the suit for compensation
brought against the commission in the district court is an original suit, plaintiff can rely in the district
court on a common-law marriage with the deceased employee, though her claim before the commission
was based on a ceremonial marriage, there being in such case no trial de novo in the technical sense,
which signifies that there had already been a trial before some tribunal, and that the trial de novo was not
before a court upon an original hearing, but on appeal.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by Hilma Dahlquist against the Nevada Industrial Commission. Judgment for
plaintiff, and defendant appeals. Affirmed. Petition for rehearing denied.
Leonard B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General, for
Appellant:
Respondent married the deceased the day after the accident which resulted in his death.
She cannot recover on the ground that she is the statutory wife of decedent, having become
such after the accident or injury, and before the commission she relied exclusively upon her
rights, if any, flowing from said statutory marriage; and the record shows that she alleged
through her attorney that she had other evidence or information, which she was given full and
fair opportunity to offer, but of which she did not avail herself. The following persons shall
be conclusively presumed to be totally dependent for support upon a deceased employee: 1. A
wife upon a husband whom she has not voluntarily abandoned at the time of the injury. * * *
Questions as to who constitute dependents * * * shall be determined as of the date of the
accident or injury to the employee, and their right to any death benefit shall become fixed as
of such time, irrespective of any subsequent change in conditions. Workmen's Comp. Act,
sec. 26; Kuetbach v. Ind. Comm., 166 Wis. 378, 165 N. W. 302.
Respondent has impliedly abandoned her claim to compensation based upon the theory
and ground that she is the statutory wife. At the trial she adduced evidence, and no other
evidence, attempting to prove that she was the common-law wife of the deceased at the time
of the injury and for two years prior thereto, without ever having submitted such evidence to
the commission, having had an opportunity so to do. The commission had the jurisdictional
right in the first instance to have presented to it and to pass upon the evidence, if any, relating
to the common-law marriage, as the burden to sustain respondent's claim before the
commission was upon her. She cannot be heard to complain if her case was rightly decided
against her by the commission upon the sole and only ground advanced before it. Respondent
will not be permitted in law to advance in this court an entirely new and independent
ground and theory for recovery, especially where she has refused to permit the
commission to pass thereon.
advance in this court an entirely new and independent ground and theory for recovery,
especially where she has refused to permit the commission to pass thereon. There is no issue
so far as the evidence is concerned, it being absolute and conclusive in favor of the appellant.
Any attempt to contradict the evidence could not be successful, it being in writing, and
emanating from respondent and her counsel. An award of compensation cannot be sustained
without proof of the essential prerequisite imposed by the statute. * * * Except in those cases
in which dependency is conclusively presumed, the burden of proof of dependency is on a
person claiming as such. Corpus Juris, Workmen's Comp. Acts, sec. 112, p. 115;
Englebretson v. Ind. Acc. Comm., 151 Pac. 421; Employers v. Ind. Acc. Comm., 151 Pac.
423; Tirre v. Bush T. Co., 158 N. Y. Supp. 883; Int. H. Co. v. Ind. Com., 147 N. W. 53; In Re
Fierro, 111 N. E. 998. There was no legal proof before the commission that the deceased and
the claimant at the time of the accident and prior thereto were husband and wife by virtue of
statute or common law, and the commission was without power to award compensation
therefor.
May a claimant put his case before the commission, deliberately state it in part, or
erroneously, get an expected rejection, and then go to court and present his case properly and
get judgment, thus substituting the courts for the commission? If he may do so in any case, he
may never do so in matters of jurisdiction, and the so-called common-law marriage was a
matter of jurisdiction. As a rule, plaintiff cannot set up for the first time on appeal a cause of
action or ground of recovery not relied upon or brought up in the lower court. 3 C. J. 694.
The parties are restricted to the theory on which the cause was prosecuted or defended in the
court below. 3 C. J. 718; People v. Tax Comm., 136 N. Y. App. Div. 156; Union C. Assn. v.
Kansas, 252 Mo. 508; Buck v. Canty, 121 Pac. 929.
The evidence shows no common-law marriage. The parties cohabited, but not on any
agreement then and there to become husband and wife.
parties cohabited, but not on any agreement then and there to become husband and wife. The
evidence shows a meretricious relation in its inception, which is presumed to continue; a
statutory marriage, but no common-law marriage ever subsisting between the respondent and
the deceased. Marriage, Essentials at Common Law, 26 Cyc. 836-840.
Harry Dunseath and R.M. Hardy, for Respondent:
In determining questions as to who constitute dependents, and the extent of their
dependency, the laws in all the states do not, in the remotest degree, refer to or include the
surviving wife, dependent husband, or children under eighteen years of age, they being in a
class conclusively presumed to be dependent from the date of the death from accident of
the deceased employee. In all other cases only shall dependency be determined in
accordance with the facts existing at the date of the injury. Crockett v. International Ry. Co.,
176 App. Div. 45, 162 N. Y. Supp. 357; Radley v. Le Ray Paper Co., 214 N. Y. 32, 108 S. E.
65, L.R.A. 1915e, 1199. A widow who was married to her husband after he received the
injury causing his death may maintain an action. They had been living together for some
seven years, since the death of his first wife. * * * After the accident they were married.
Whether, as was urged by the learned counsel for defendants, the marriage took place to
enable the plaintiff to bring suit against the defendant company, or, as is more charitable to
suppose, to sanction by religious ceremony the union which has existed for many years, * * *
can only be a matter of conjecture. The fact remains that at the time of the death * * *
plaintiff was his lawful wife and after his death was his widow. * * * This is the only
condition that she is required to fulfill in order to recover. Gross v. Electric Traction Co., 36
Atl. 424.
The district court had jurisdiction. Appellant questioned this jurisdiction, but was overruled.
State ex rel. Brown v. Nevada I. Comm., 40 Nev. 226. The commission was well aware of
the fact that a common-law marriage existed.
The commission was well aware of the fact that a common-law marriage existed. For
nearly two years the decedent had held respondent out to the world as his wife. The statutory
marriage was performed at the urging of well-meaning friends. A subsequent ceremonial
marriage is not inconsistent with a prior common-law marriage, and it does not necessarily
overcome the presumption thereof which arises from matrimonial cohabitation, the
declaration and conduct of the parties, and their reputation. Betsinger v. Chapman, 88 N. Y.
488; Starr v. Peck, 1 Hill, 270. An implied contract of marriage is as binding and effective as
one expressed in words or spread upon parchment. Adgar v. Ackerman, 115 Fed. 124; Davis
v. Prior, 112 Fed. 274; Maryland v. Baldwin, 112 U.S. 490; Meister v. Moore, 96 U.S. 76; 26
Cyc. 436; White v. White, 82 Cal. 427; Sharon v. Sharon, 75 Cal. 1. The law does not
require a formal introduction by the husband of the woman as his wife to each member of the
social circle into which they go. It is sufficient if his conduct is such as to justify her reception
in such circle as his wife. White v. White, supra.
We will refer to the parties as they were designated in the trial court.
Paragraph 1 of the complaint alleges the creation of the defendant, Nevada Industrial
Commission, under and by virtue of the provisions of an act of the legislature approved
March 15, 1913 (Stats. 1913, p. 137), as amended (Stats. 1915, p. 279; Stats. 1917, p. 436;
Stats. 1919, p. 305). The complaint also alleges that one Alfred Dahlquist, while employed by
the Tonopah Belmont Development Company, which had elected to avail itself of the terms
of the act mentioned, on the 2d day of February, 1920, received injuries resulting in his death;
that on or about March 1, 1918, plaintiff became the common-law wife of said Alfred
Dahlquist; that thereafter, on February 3, 1920, a ceremonial marriage was entered into
between them; that she had filed with the defendant her claim for compensation under the
terms of the act mentioned, had done and performed all other things required of her by
said act, and that her said claim had been rejected.
filed with the defendant her claim for compensation under the terms of the act mentioned, had
done and performed all other things required of her by said act, and that her said claim had
been rejected. The complaint concludes with a prayer for relief.
An answer was filed denying the allegation of a common-law marriage, admitting that the
plaintiff had filed with the defendant a claim for compensation as the widow of the deceased,
but alleging that said claim was based upon a ceremonial marriage between plaintiff and
Alfred Dahlquist entered into on February 3, 1920, the day following that upon which he had
been injured. The answer admits the rejection of the claim, but alleges that it was rejected
because it appeared from the claim itself that the marriage between plaintiff and the deceased
had been entered into after the injuries had been sustained.
The action was tried to the court, which filed a written opinion, and ordered findings to be
prepared favorable to the plaintiff. Judgment was rendered accordingly; hence this appeal.
1. Counsel for defendant present two contentions: First, that there was no common-law
marriage; and, secondly, that the ceremonial marriage having been entered into after the
injuries had been sustained by Dahlquist, plaintiff does not come within the provisions of the
act. In determining the latter contention we must, of course, look to the intention of the
legislature as it is expressed in the act. Counsel for plaintiff contends that she comes within
the provisions of the act, and relies to sustain his position chiefly upon the case of Crockett v.
International Ry. Co., 176 App. Div. 45, 162 N.Y. Supp. 357. We do not think this case is
controlling. It turned upon the point that the wife, who had married the deceased after the
injury, did not fall within the class designated as dependents, but that she was entitled to
recover because of the legal and moral responsibility of the husband to support the wife. The
New York act does not read as does ours, and hence the authority is no guide to us. Our
statute provides in express language the terms upon which a wife shall be entitled to
contribution it reads:
in express language the terms upon which a wife shall be entitled to contribution it reads:
Sec. 25. Every employee in the employ of an employer within the provisions of this act,
who shall be injured by accident arising out of and in the course of employment, or his
dependents, as hereinafter defined, shall be entitled to receive the following compensation:
If the injury causes death, the compensation shall be known as a death benefit, and shall
be payable in the amount and to and for the benefit of the persons following:
1. Burial expenses, not to exceed one hundred and twenty-five ($125) dollars, in addition
to the compensation payable under this act.
2. To the widow, if there is no child, thirty per centum of the average wage of the
deceased. This compensation shall be paid until her death or remarriage with two years'
compensation in one sum upon remarriage.
3. To the widower, if there is no child, thirty per centum of the average wage of the
deceased, if wholly dependent for support upon the deceased employee at the time of her
death. This compensation shall be paid until his death or remarriage.
Section 26 reads:
The following persons shall be conclusively presumed to be totally dependent for support
upon a deceased employee:
1. A wife upon a husband whom she has not voluntarily abandoned at the time of the
injury. * * *
Questions as to who constitute dependents and the extent of their dependency shall be
determined as of the date of the accident or injury to the employee, and their right to any
death benefit shall become fixed as of such time, irrespective of any subsequent change in
conditions. Stats. 1917, c. 233.
Hence we see that, under section 25 of our statute, to be entitled to compensation, in case
of the death of the injured person, the one claiming such compensation must be a dependent
as defined in section 26.
must be a dependent as defined in section 26. By this section it is provided that a wife who
has not at the time of injury voluntarily abandoned her husband shall be conclusively
presumed to be a dependent, and, in determining who constitutes a dependent, we must look
to the relationship existing at the date of the accident or injury, irrespective of any subsequent
change. This language is plain and unequivocal; nothing could be more clearly put. In fact,
apparently through a superabundance of precaution, the legislature, after saying that the
question of dependents shall be determined as of the date of the accident or injury, to
reinforce that idea, and to put its expression beyond all cavil, provided that such should be the
case irrespective of any subsequent change in conditions.
In view of this unequivocal language, why should we grope around for some theory upon
which to base an interpretation squarely contrary to that expressed? There is no room for
interpretation of the language used. Rules of interpretation are resorted to only where doubt
exists as to the idea sought to be expressed. We are confronted with no such situation. It is
clear that plaintiff cannot recover because of her ceremonial marriage. This view finds
support in the case of Kuetbach v. Industrial Commission, 166 Wis. 378, 165 N. W. 302,
L.R.A. 1918f, 476. Indeed, we think plaintiff's counsel must have taken this view upon the
trial, since no evidence was offered by him as to the ceremonial marriage.
2. This brings us to a consideration of the case as made by the plaintiff relative to the
alleged common-law marriage. It is said by defendant that no common-law marriage has been
established by the evidence, the main point to sustain this contention being couched in the
following statement in the brief:
The parties cohabited, but not on any agreement then and there to become husband and
wife.
This, of course, was a question of fact to be determined by the lower court. There is very
little conflict in the evidence, and it is our duty to sustain the judgment if there is
sufficient competent evidence to justify it.
in the evidence, and it is our duty to sustain the judgment if there is sufficient competent
evidence to justify it.
It appears that the plaintiff and the deceased were born in Finland, and that the former had
not been in this country a great while when she met the deceased. In giving her testimony, as
appears from the transcript, she was somewhat at a disadvantage in expressing herself. She
testified:
That after she had known the deceased a about two months * * * he says to me it is too
lonesome him living all alone. We find out that we got deep love for each other. He says, It
is too lonesome living alone.' I say, too, I feel too lonesome without him; he say nothing on
earth can separate us. * * * I say to him I got old sickly mother in old country where I always
have to send little I make living to her. He says to me that can't come between us, that matter,
because he is husky man and can make living for our both and little amount we can send it
always in your sickly mother in Finland. * * * After that he says to me, Let's go live together
in this house just like the man and wife, because that only way we get enough money to buy
our own home.' And I am satisfied with that. We are living together. He says, Now we are
man and wife.'
There is in the record of evidence of several witnesses, nearly all of whom were foreign
born, and evidently natives of Finland, who testified that the deceased had introduced the
plaintiff to them as his wife. Several of the witnesses testified that he frequently alluded to
her as Mama, and that they understood that the parties were man and wife. With the
witnesses alluded to, it is evident that Mama was of especial significance. The evidence
shows also that the deceased and plaintiff went to live at the Argyle House, in Goldfield,
some months after the alleged marriage, and that he registered as Alfred Dahlquist and
wife, and that in the circle in which the parties moved they were accepted as man and wife.
3. Two circumstances are relied upon by the defendant to overthrow the case made by
plaintiff of a common-law marriage, namely, the ceremonial marriage and the statement by
the deceased when seeking employment that he was unmarried, and in case of accident that
the plaintiff (naming her by her maiden name) be notified. As to the first of these
circumstances, it is very evident from the testimony of Mrs. Harrington that she was entirely
responsible for the ceremonial marriage; that she talked the plaintiff into it. Considering the
fact that plaintiff is a foreigner, but little acquainted with the customs of this country, we do
not think that any significance can be attached to the fact of the ceremonial marriage. At most
it may be said to have been but a precautionary step on the part of plaintiff. Just what
prompted the statement of the deceased, as contained in his application for employment, we
cannot say. However, it is but a circumstance, which could not nullify a marriage contract
theretofore entered into, had there been one, and which of itself does not warrant a finding
contrary to that made by the court.
Without further considering this question, we may say that the trial court heard the oral
testimony, observed the demeanor of the witnesses upon the stand, and, in view of the fact
that many of them were foreigners, was in a far better position than we are to determine the
existence of a common-law marriage. On the whole case, we do not feel justified in
disturbing the finding of the court.
4. The learned attorney-general criticizes certain language of the trial court as expressed in
his written opinion:
I consider these facts incidents of the situation that arises under our law permitting
common-law marriage, which seems very convenient. Under it people may be married or
unmarried, as is most convenient. They never need any divorce, no matter what happens.
Such a marriage would never support a prosecution for bigamy. No doubt many common-law
marriages in this and other states simply fade away when the man takes a fancy to
another woman or the woman to another man."
and other states simply fade away when the man takes a fancy to another woman or the
woman to another man.
We agree most heartily with counsel that such is not the law. We can approve of no such
standard. A marriage, whether of common-law or ceremonial character, is the consequence of
a contractual relationship. In the one case it is the result of present assent, between parties
capable of contracting marriage, followed by subsequent cohabitation as husband and wife,
and the holding out to the world of each other as such. Such a marriage has all the binding
force of a ceremonial marriage; and one who enters into such a marriage without being
divorced may, during the lifetime of such a common-law spouse, be guilty of bigamy, as we
held by this court in State v. Zichfeld, 2 Nev. 304, 46 Pac. 802, 34 L.R.A. 784, 62 Am. St.
Rep. 800.
We think the rights, obligations and liabilities of those entering into a common-law
marriage have been clearly established by this court in the following cases: Parker v. De
Bernardi, 40 Nev. 361, 164 Pac. 645; Clark v. Clark, 44 Nev. 44, 189 Pac. 676, 194 Pac. 96.
However, in this case the formal findings of the court sustain the judgment, and the evidence
warrants the findings.
It is said that the plaintiff should not prevail because she relied upon the ceremonial
marriage before the commission, but upon the common-law marriage in the court, in view of
the rule to the effect that a question not raised in the lower court will not be considered on
appeal generally. 3 C. J. 694, et seq. We do not think this rule is applicable to the situation
confronting us. There was, and could have been no appeal from the ruling of the commission.
The action of the district court was an original proceeding in a court of record, the complaint
alleging a common-law marriage, and the case being tried upon that theory. The defendant
was not misled in the trial court, and, so far as we see, no substantial injustice has been done
in the matter. The reasons leading to the adoption of the rule invoked are sound, and the
rule itself is a most wholesome one, but it has no application to the instant case.
reasons leading to the adoption of the rule invoked are sound, and the rule itself is a most
wholesome one, but it has no application to the instant case.
A very earnest petition for a rehearing has been filed. It appears that the only conclusion
reached in our former opinion complained of is the last one stated in the opinion. In the
petition for a rehearing counsel quote in full our views expressed on that point, and then
observe:
We declare that this question is a vital question, not in so much as its decision affects the
respondent or appellant in the instant case, but because, if the quoted language is carried to its
logical analysis, it is a mandate to any and all claimants to ignore the act and its requirements
in establishing, or attempting to establish, jurisdictional conditions precedent before the
commission prior to prosecuting an action de novo upon a rejected claim, and because, if the
quoted language is not carried to its logical analysis, it leaves the commission without judicial
guidance in administering the act establishing and creating it.
Counsel then ask this question:
But does the court intend by its opinion and decision that the trial de novo does not
contemplate that the jurisdictional conditions precedent provided for in the act need be
fulfilled by the claimant to an award before the commission?
We may say that we are entirely satisfied with the disposition made of the question urged
upon or consideration in the petition, and would not deem it necessary to file this response to
the petition but for the fact that we wish to make it clear that we do not intend to convey any
idea save that definitely expressed in the opinion. We are of the opinion that the point
suggested by the query quoted was not before us, and we do not understand that we decided it
in our former opinion.
Upon the oral argument we asked counsel the question:
Is there anything in the act which provides that when a claim is presented and a hearing
had (before the commission) and its determination entered, as to the method of procedure
thereafter?
To which counsel replied:
No more than the blanket statement, and the Brown case, that the commission may sue
and be sued.
Council seem to base their entire argument upon the theory that the case in the district
court, wherein the judgment was rendered which was appealed to this court, was tried by that
court de novo. Since the term de novo means anew, it may be that, literally speaking, the
trial in that court was de novo; but in legal parlance the term de novo signifies that there
had already been a trial before some tribunal, and that the trial de novo was not before a court
upon an original hearing, but upon appeal, whereas this case was originally instituted in the
district court. We are sure that learned counsel are well aware of the terms of section 1, art. 6,
of our constitution, and of the holding in Ormsby County v. Kearney, 37 Nev. 314, 142 Pac.
803, and followed in V. L. & S. Co. v. District Court, 42 Nev. 1, 171 Pac. 166, wherein it was
held that the legislature had no authority to create a tribunal with judicial powers, other than
as provided in the section of the constitution mentioned, from which an appeal might be taken
to the district court in this state.
We have not been cited to any provision of the Workmen's Compensation Act (Stats.
1913, c. 111, as amended by Stats. 1915, c. 190, Stats. 1917, c. 233, and Stats. 1919, c. 176)
authorizing an appeal from the commission to the court, nor do we understand that it is
contended that there can be such an appeal. If there can be no such appeal, we are at a loss to
know how there can be a trial de novo before that court of a matter considered by the
commission. There is absolutely no connection between the proceeding before the
commission and that before this court, nor, as appears from the answer of counsel to the
query propounded during the oral argument, is there any contention that there is.
the oral argument, is there any contention that there is. Counsel relies upon the following
authorities to sustain their position: Englebretson v. Ind. Acc. Comm., 170 Cal. 793, 151 Pac.
421; Employers v. Ind. Acc. Comm., 170 Cal. 800, 151 Pac. 423; Tirre v. Bush T. Co., 172
App. Div. 386, 158 N. Y. Supp. 883; Int. H. Co. v. Ind. Comm., 157 Wis. 167, 147 N. W. 53,
Ann. Cas. 1916b, 330; In Re Fierro, 223 Mass. 378, 111 N. E. 957. We do not think any of
these cases is in point. It appears that the first case mentioned was a proceeding in certiorari
under the provisions of the Workmen's Compensation Act. Just how it can be authority in
this case we are unable to see. The second case was before the court, as appears from the
preliminary statement, on a writ of review. We are not informed as to the authority of the
court in such matters, but it is very evident that the situation was entirely unlike that
presented here. The case of Tirre v. Bush T. Co., supra, was one in which an appeal was taken
from the award of the commission. Such is not the case before us. The case of Int. H. Co. v.
Ind. Comm., supra, was one which was on review by the court pursuant to express legislative
authority, and the last case mentioned was before the court on appeal. In each of these cases it
appears that the court was authorized to review the proceedings had before the commission.
In the case before us the court reviewed nothing; it merely determined a suit commenced
before it. There was no connection between the proceedings before the commission and the
court proceeding. We fail to see wherein any of the cases mentioned is an authority in point.
The petition is denied.
____________
46 Nev. 121, 121 (1922) State v. Douglass
[No. 2542]
THE STATE OF NEVADA, Ex Rel. NICK ABELMAN, Relator, v. W.J. DOUGLASS,
HENRY SCHMIDT, C.F. WITTENBERG, FRANK T. DUNN, and W.H. THOMAS, as
Members of the County License Board, County of Nye, State of Nevada, Respondents.
[208 Pac. 422]
1. MandamusObjections to Validity of Statute Raised, but Not Discussed By Counsel,
Considered Waived.
In original mandamus proceeding in the supreme court involving the validity of a statute, objections
to the statute raised, but not discussed by counsel, must be considered waived.
2. StatutesValidity of Portions of Statute Relating to Subject-Matter Embraced in Title
Held Not Affected by Invalidity of Other Portions.
Validity of act of 1921 (Stats. 1921, c. 120), in so far as it provides for issuance of licenses for
different kinds of business conducted in unincorporated cities and towns, held not affected by provision
of the act designating territory outside of incorporated and unincorporated cities and towns as against
contention that the provision as to such territory is violative of Const. art. 4, sec. 17, requiring the
subject of an act to be expressed in the title, because the title of the act referred merely to
unincorporated cities and towns of the state, since even if the provisions as to such territory are void,
because the subject-matter is not embraced within the title, the invalidity thereof does not affect portions
relating to unincorporated cities and towns; the valid portions being severable from the invalid portion.
3. StatutesStatute May Be Valid as to One Portion, Notwithstanding Invalidity of Other
Portions Severable from the Valid Portion.
A statute may be constitutional in part and unconstitutional in part, and if the valid portion is
severable from that which is invalid it may stand.
4. StatutesPart of Statute Expressed in Title Valid, while Parts Not so Indicated are Void.
If a statute is broader than its title, the part expressed in the title is valid, while the parts not indicated
thereby are void.
Original proceeding in mandamus by State of Nevada, on the relation of Nick Abelman
against W.J. Douglass, and others, as members of the County License Board of Nye County,
State of Nevada.
Board of Nye County, State of Nevada. Judgment for relator.
Hugh Henry Brown and Walter Rowson, for Relator:
There is neither violation of nor conflict with the constitutional provision regarding the
title of statutes. Const. Nevada, art. 4, sec. 7.
For all practical purposes, the statute in question is clear in its application to businesses
established and maintained in unincorporated towns and cities. The intention of the
legislature, when not in conflict, with the constitution, its to govern in the construction of
statutes. State v. Boerlin, 38 Nev. 39. A construction or application should be avoided
which sacrifices substance to mere matter of form. Ferro v. Bargo M. Co., 37 Nev. 139;
Brown v. Davis, 1 Nev. 409; Maynard v. Johnson, 2 Nev. 25; Sawyer v. Dooley, 21 Nev.
390; Roney v. Buckland, 4 Nev. 45; Gibson v. Mason, 5 Nev. 283; Odd Fellows Bank v.
Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Dayton, 10 Nev. 155.
Words in the body of the act should be interpreted in their relation to the title, as well as in
their relation to the context. The title of a statute may be considered for the purpose of
construction. Torreyson v. Board, 7 Nev. 19; Sutherland, Stat. Constr. 278, 288; Sweeney v.
Karsky, 25 Nev. 197; Ex Parte Siebenhauer, 14 Nev. 365.
The title of an act should be liberally construed to sustain legislation. Sutherland, Stat.
Constr. 96, 101.
In any event, the statute is good in part and applicable to the case at bar. Statutes may be
void in part and not void in toto. If a statute is broader than its title, the part within the title
can stand, while the parts not indicated thereby must be denied effect. Bobel v. People, 64
Am. St. 77.
L. B. Fowler, Attorney-General, Robert Richards, Deputy Attorney-General, and Frank T.
Dunn, District Attorney, for Respondents: The title of the act indicates legislation for
unincorporated cities and towns, while the body of the act seeks to legislate for all
territory outside of incorporated cities and towns.
The title of the act indicates legislation for unincorporated cities and towns, while the body
of the act seeks to legislate for all territory outside of incorporated cities and towns. The
conflict between the body of the act and the title of the act is such that it cannot be judicially
changed, the only remedy being in the legislature. Respondents have the legal right to raise
the defense that the statute involved is unconstitutional. Hindman v. Boyd, 42 Wash. 17;
State v. Candland, 36 Utah, 406; 12 C. J. 765, notes 90, 92.
In 1921 the legislature passed an act entitled:
An act to create a county license board, to regulate the issuance and revocation of licenses
for billiard halls, dancing halls, bowling alleys, theaters, and soft-drink establishments in
unincorporated cities and towns of this state. Stats. 1921, c. 120.
In the body of the act it is provided that
Any person wishing to engage in any business mentioned in the title, outside of an
incorporated city or town, shall first make application, by petition to the license board, as
provided in section 2 of this act, of the county in which he proposes to engage in any such
business for a county license of the kind desired, and file the same, with the required license
fee, with the county license collector, who shall present the same to said license board at its
next regular meeting, and said board may refer the petition to the sheriff, who shall report
upon the same at the following regular meeting of the board, which board shall then and there
grant or refuse the license prayed for; provided, that the sheriff may, in his discretion, grant a
temporary permit to such applicant, valid only until the next regular meeting of said board.
Sec. 2. The board of county commissioners, the sheriff, and the district attorney of the
county shall constitute such license board in the respective counties of this state.
Sec. 3. Such board is hereby authorized, empowered, and commissioned to act, for the
purposes of this act (without * * * compensation) as a license board to grant or refuse licenses
upon the business herein mentioned, and to revoke the same whenever there is, in the
judgment of the board, sufficient reason for such revocation. A majority vote of the license
board shall govern the granting or refusing of any such license, or the revocation of the
same.
The relator petitioned the license board of the county of Nye for a county license to engage
in the business of conducting a soft-drink establishment in the town of Tonopah, an
unincorporated town, situated in said county, and filed his petition, together with the required
license fee of $75, with the duly authorized license collector of said county. The license
collector presented the petition to the board, which refused to take any action either granting
or refusing a license to relator, and still retains the amount of the license fee in the sum of
$75. In response to relator's request and demand for a license, he was informed by the board
that it would take no action, either granting or refusing him a license, unless the court should
compel such action.
The relator brings mandamus in this court to compel the said board to issue him a license
to conduct the business mentioned in his petition. An alternative writ was issued out of this
court, to which respondents answered, alleging with other matters, that the act of 1921 is in
direct conflict with certain portions of two former acts of the legislature. It is also alleged in
the answer that the board has no power or authority to act as a county license board, for the
reason that said act of 1921 is in direct violation of and in conflict with section 17 of article 4
of the constitution of the State of Nevada; and that said act is unconstitutional for the reason
that the body of the act is broader than the title of the act, in that the title of the act provides
for the regulation, issuance, and revocation of licenses for certain businesses in
unincorporated cities and towns of the State.
of Nevada, while the body of the act provides for the regulation, issuance, and revocation of
licenses for certain businesses outside of an incorporated city or town.
1. The first two objections as to the conflict of the act with other acts of the legislature
were not discussed by counsel for respondent, and consequently must be considered waived.
That part of section 17 of article 4 of the constitution of the State of Nevada which it is
claimed the act offends provides:
Each law enacted by the legislature shall embrace but one subject, and matters properly
connected therewith, which subject shall be briefly expressed in the title.
2. Although the act provides for the issuance of licenses for different kinds of business
conducted in different localities, namely, in unincorporated cities and towns and other places
outside of an incorporated city and town, there is but one subject in the act, and that is the
subject of licenses. Consequently the act cannot be declared invalid as embracing more than
one subject, contrary to the express inhibition of the constitution. It is true that this subject is
restricted in the title to unincorporated cities and towns, and to this extent the body of the act
is broader than the title. Nevertheless, it cannot be said that the subject is not briefly
expressed in the title.
3. It is a firmly established principle of law that a statue may be constitutional in part and
in unconstitutional in part, and, if the valid portion is severable from that which is invalid, it
may stand. The rule stated has been given effect by the decisions of this court. State v.
Eastabrook, 3 Nev. 180; Turner v. Fish, 19 Nev. 295, 9 Pac. 884; State v. Commissioners of
Humboldt County, 21 Nev. 235, 29 Pac. 974. In the last case cited the court quotes
approvingly from Cooley's Constitutional Limitations, p. 177:
Where a part of the statute is unconstitutional, that fact does not authorize the courts to
declare the remainder void also, unless all the provisions are connected in subject-matter,
depending on each other, operating together for the same purpose, or otherwise so
connected together in meaning that it cannot be presumed the legislature would have
passed the one without the other.
der void also, unless all the provisions are connected in subject-matter, depending on each
other, operating together for the same purpose, or otherwise so connected together in meaning
that it cannot be presumed the legislature would have passed the one without the other. The
constitutional and unconstitutional provisions may even be contained in the same section, and
yet be perfectly distinct and separable, so that the first may stand, though the last fall.
In the State of Indiana an act was passed entitled:
An act to amend the first section of an act entitled An act concerning licenses to vend
foreign merchandise, to exhibit any caravan, menageries, circus, rope and wire dancing,
puppet show, and legerdemain.'
There was a provision in the act requiring concerts to be licensed. The act came under
consideration in State v. Bowers, 14 Ind. 195, and the court held that it was not
unconstitutional as containing more than one subject, but held also that the provision
requiring concerts to be licensed was void.
4. The general rule is that if a statute is broader than its title, the part expressed in the title
is valid, while the parts not indicated thereby are void. Unity v. Burrage, 103 U.S. 447-458,
26 L. Ed. 405; Richie v. People, 155 Ill. 98, 40 N. E. 454, 29 L. R. A 79, 46 Am. St. Rep.
315; Fidelity Ins. Co. v. Shenandoah Valley R. Co., 86 Va. 1, 9 S. E. 759, 19 Am. St. Rep.
858; Shivers v. Newton, 45 N. J. Law, 469; People v. Briggs, 50 N. Y. 553; Harper v. State,
109 Ala. 28, 19 South. 857; Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670; Wisner v.
Monroe, 25 La. Ann. 598; Dorsey's Appeals, 72 Pa. 192; Cooley's Constitutional Limitations
(7th ed.) p. 211.
True, some of the constitutions of the foregoing states have declared that this shall be the
rule; but the declaration was unnecessary, as the general rule would have required the same
declaration from the courts. Cooley's Constitutional Limitations (7th ed.) p. 211.
This rule was recognized by this court in State v. Trolson, 21 Nev. 419, 32 Pac. 930, in
which it was said:
It is a well-established rule of construction that if the act is broader than the title, that part
of the act indicated by the title will stand, while that portion of the act not indicated by the
title must be rejected.
We are of the opinion that that portion of the body of the act which designates territory
outside of incorporated and unincorporated cities and town is severable from that part of the
act expressed in the title, namely, unincorporated cities and town, and that the latter makes a
complete and valid act, even though the former may be void as not coming within the
purview of the title.
But we are not put to the necessity of determining whether the former portion is
constitutional or not. The reason and the rule are well expressed in 6 R. C. L. 122:
In view of the established custom of judicial tribunals of avoiding the determination of
questions as to the constitutionality of statutes except when necessary in deciding litigated
cases, the courts will decline as a rule to decide whether a particular provision of a statute is
unconstitutional, when they are of the opinion that, if such provision is in fact involved, it
may be severed from the remaining provisions of a statute, the validity of which alone is
necessarily before the court.
See State v. Commissioners of Humboldt County, supra, to the same effect.
Relator has regularly applied for a county license to engage in the business of conducting a
soft-drink establishment in an unincorporated town, and is entitled to receive such license.
Let the writ of mandate issue.
____________
46 Nev. 128, 128 (1922) State v. Kelso
[No. 2566]
THE STATE OF NEVADA, Ex Rel, FRED W. FALL, Petitioner, v. S.T. KELSO, County
Clerk of Mineral County, Nevada, Respondent.
[208 Pac. 424]
1. MandamusCounty Commissioners' Order Districting County Not Judicial in Character.
An order of a board of county commissioners dividing the county into election districts, not being
judicial in character, cannot be reviewed by certiorari, so that mandamus is proper.
2. ElectionsCounty Commissioners' Order Districting County of No Effect, Statutory
Requirement Being Violated.
A purported order of the county commissioners dividing a county into three election districts, one of
which contained more than half of the county's voters, was of no effect, where the record did not show
that 20 per cent of the qualified electors petitioned for such a division as required by Rev. Laws, 1531,
especially since the statute also required each district to contain as near as may be one-third of the
county's voters.
3. Constitutional LawStatute Not Declared Unconstitutional unless Necessary.
It is the policy of the court not to declare a statute unconstitutional unless necessary.
Original application for writ of mandamus by the State of Nevada, on the relation of Fred
W. Fall, against S.T. Kelso, County Clerk of Mineral County. Writ issued.
Wm. Forman, for Petitioner:
The writ should issue. The order of the board of county commissioners in dividing the
county into commissioner districts was without authority of law and is void.
The proposed division followed certain survey lines, without regard to the provisions of
the statute as to including certain precincts and wards wholly within one district.
Furthermore, no regard was had for the requirement that each district contain as near as may
be one-third of the voting population of the county. A board of county commissioners is a
creature of the statute, and as such its powers are expressly granted by statute and must
be exercised only in conformity therewith.
46 Nev. 128, 129 (1922) State v. Kelso
statute, and as such its powers are expressly granted by statute and must be exercised only in
conformity therewith. State v. Washoe County, 6 Nev. 104; State v. Commissioners, 22 Nev.
15; Godchaux v. Carpenter, 19 Nev. 415; Swift v. Commissioners, 6 Nev. 97; State v. Board,
12 Nev. 19.
J.H. White, District Attorney, for Respondent:
Mandamus will not lie to review, regulate, revise or annul the official discretion or
judgment of a board of county commissioners after they have once heard, considered and
finally exercised their discretion and judgment, even though the same be erroneous or
excessive. State v. Boerlin, 30 Nev. 473; 18 Am. & Eng. Ency. Law, 735.
As near as may be does not mean as near as may be possible or as near as may be
practicable. The words are directory and advisory only, leaving it within the discretion of the
court to reject any subordinate provision in the statute, which in their judgment would
unwisely encumber the administration of the law or tend to defeat the ends of justice.
Railroad Co. v. Horst, 93 U.S. 291; Beardsley v. Littell, 2 Fed. Cas. 1185; Phelps v. Oaks, 29
L. Ed. 888; Potter v. Robinson, 40 N.J. L. 117; Bank v. Thompson, 50 N. E. 1089.
This is an original proceeding in mandamus.
The petition alleges all the essential facts to entitle petitioner to seek, as a candidate for
short-term commissioner of Mineral County, a nomination on the Republican ticket at the
ensuing primary election; that he made out his declaration of candidacy for nomination on the
Republican ticket for said office, to be voted for at such primary election, and tendered the
same to the respondent for filing, together with the legal fee therefor; that the respondent
refused, and still refuses, to file the same, and will refuse to place the name of petitioner upon
said primary election ballot; that respondent gives as his reason for such refusal the action of
the board of county commissioners of Mineral County in adopting a resolution at its recent
session dividing said county into three commissioner districts, by which the Mina precinct,
in which petitioner resides, was placed in commissioner district No.
46 Nev. 128, 130 (1922) State v. Kelso
the board of county commissioners of Mineral County in adopting a resolution at its recent
session dividing said county into three commissioner districts, by which the Mina precinct, in
which petitioner resides, was placed in commissioner district No. 2, to which district was
assigned the office of county commissioner for the long term, to be elected at the general
election to be held in November, 1922. The statute (Rev. Laws, 1531) under which said board
of county commissioners presumed to act reads:
Whenever twenty per cent or more of the qualified electors of any county in this state
shall petition the board of county commissioners of their county to that effect, it shall be the
duty of the county commissioners of such county, on or before the first Monday in July
preceding any general election, to divide the county into three districts, to be known as
Commissioner Districts.' Such division shall be made to conform to the established
boundaries of election precincts or wards, and each and every election precinct or ward shall
be wholly within one of the commissioner districts herein provided for. Each commissioner
district shall embrace, as near as may be, one-third of the voting population of the county, to
be determined by the vote cast at the last general election, and shall consists of adjoining
precincts; provided, that in case not more than three election precincts or wards exists in the
county, then each election precinct or ward shall constitute a commissioner district.
1, 2. It is objected that mandamus is not available, for the reason that certiorari affords the
petitioner an adequate remedy. Our statute provides, and this court has repeatedly held, that
certiorari lies only to review a judicial order. It is not even suggested that the order districting
the county is judicial in character; it clearly is not. The point is not well taken.
We do not deem it necessary to consider the various points made. It has been repeatedly
held that the board of county commissioners exercises but limited and special powers {Lyon
County v. Ross, 24 Nev. 102
46 Nev. 128, 131 (1922) State v. Kelso
special powers (Lyon County v. Ross, 24 Nev. 102, 50 Pac. 1; First Nat. Bank v. Nye County,
38 Nev. 134, 145 Pac. 932, Ann. Cas. 1917c, 1195), and that when the power to do a certain
thing is questioned, the record must show affirmatively all the facts necessary to give
authority to perform the act complained of (Godchaux v. Carpenter, 19 Nev. 415, 14 Pac.
140). The case last cited was one wherein was questioned the action of a board of county
commissioners in establishing a road. The statute conferring upon a board of county
commissioners authority to establish highways authorizes such action when a petition signed
by a majority of the taxpayers of the road district, according to the last previous assessment
roll, is presented. It did not appear from the minutes of the meeting of the county
commissioners at which the board sought to establish the road that the petition was so signed.
It was held that the action of the board was irregular, and it was set aside; the court saying:
It must appear affirmatively from the records of the board that the board found as a fact
that a majority of the resident taxpayers of Willow Point road district, according to the last
previous assessment roll,' had signed the petition. What the board did find is, that said
petition was signed by a majority of the resident taxpayers of said Willow Point road district.'
It was not found that a majority of the resident taxpayers of the road district, according to the
last previous assessment roll, had signed it. The board found that a majority of the then
resident taxpayers of the road district had signed the petition, while the statute required a
majority according to the last previous assessment roll.
The general rule is stated in 15 C. J. 466, as follows:
More specifically, it is held that, as county boards are bodies with special and limited
jurisdiction, all facts necessary to give jurisdiction must affirmatively appear on the record of
the proceedings.
In the instant case it does not appear from the record of the meeting of the board that the
so-called petition was considered by the board, or that it was even presented to it.
46 Nev. 128, 132 (1922) State v. Kelso
of the meeting of the board that the so-called petition was considered by the board, or that it
was even presented to it. There is no allusion whatever to any petition having been presented.
Under the authority of the Carpenter case, we must hold that the so-called order of the board
in establishing commissioner districts is without force.
The board of county commissioners, in districting the county, also ignored the clear
provision of the statute that each commissioner district must contain, as near as may be,
one-third of the voting population of the county, to be determined by the vote cast at the last
general election. It appears that one of the commissioner districts sought to be created has
within its boundaries considerably more than one-half of such voting population. As we have
pointed out, it is settled law in this state that a board of county commissioners must act
strictly in accordance with the requirement of the statute; and, as said in Lyon County v.
Ross, supra:
When the law prescribes the mode which they must pursue, in the exercise of these
powers it excludes all other modes of procedure.
We think the board of commissioners should be at least as strict in adhering substantially
to the provision to which we have just alluded as in the mode of procedure. The legislature
had good reasons for requiring that the districts should each have, as near as may be,
one-third of the population. By the words as near as may be, the legislature sought to give
the commissioners some latitude; but it was not contemplated that the true spirit of the act,
which was to require such a districting of the county as would give to each district
substantially one-third of the population of the county, should be violated.
If the board can so ignore the clear spirit of the statute as to so district the county that one
of the districts shall have in it more than one-half of the voters of the county, might it not,
with equal propriety, so divide it that one district will have two-thirds or threefourths of such
voters?
46 Nev. 128, 133 (1922) State v. Kelso
fourths of such voters? The provision in the statute thus violated is one of substance, and
cannot be ignored.
3. Since it is the policy of the courts not to declare a statute unconstitutional unless
necessary, we decline to express any opinion as to the constitutionality of the statute in
question, since the writ sought must issue for the reason given.
Let the writ issue as prayed.
____________
46 Nev. 133, 133 (1922) State v. Justice Court
[No. 2514]
THE STATE OF NEVADA, Ex Rel. GEORGE THATCHER, Sr., and GEORGE
THATCHER, Jr., Whose True Name Is Geo. B. Thatcher, Respondents, v. JUSTICE
COURT OF RENO TOWNSHIP, WASHOE COUNTY, STATE OF NEVADA, and
SIDNEY C. FOSTER, as Justice of Said Court, Appellants.
[207 Pac. 1105]
1. CertiorariJurisdiction of Court Is Limit of Inquiry upon Certiorari.
The limit of inquiry upon certiorari is the question of the jurisdiction of the court.
2. Justices of the PeaceCopy of Complaint Served on Defendant Must Be Certified as
Being a True Copy in order to Give Court Jurisdiction to Enter Default Judgment.
Where the copy of complaint served personally on defendant was not certified by the justice or the
attorney for plaintiff to be a true and correct copy of the complaint on file in the justice court, the justice
acquired no jurisdiction, and hence had no power or authority to render a default judgment against
defendant.
3. Justices of the PeaceWant of Process Cannot Be Waived.
The rule that, where one against whom a judgment has been rendered by default without a valid
service of process appears to ask that the default be set aside and for leave to answer on the merits, he
thereby waives want of process, does not apply where the copy of the complaint served on defendant was
not certified as being a true copy of the complaint on file in the justice court.
4. Election of RemediesRemedies Held Not Inconsistent.
That defendant in an action in a justice court appeared and asked that the default judgment against
him be set aside on the ground of inadvertence and excusable delay did not preclude him from setting up
in a certiorari proceeding that the justice was without jurisdiction to render the judgment because of
invalid process, as there was nothing inconsistent between the remedies.
5. Election of RemediesOne Must Resort to One of Two Inconsistent Remedies to
Constitute an Election.
The very essential of election is that a party must resort to one of two inconsistent remedies.
6. EstoppelOne Must Have Changed His Position to His Detriment by Conduct of the
Other Party.
An essential to the invoking of the doctrine of estoppel is that a party has, by the conduct of the other
party, been induced to change his position to his detriment.
Appeal from Second Judicial District Court, Washoe County; Edward F. Lunsford, Judge.
Certiorari proceeding by the State of Nevada, on the relation of George Thatcher and
others, against the Justice Court of Reno Township, Washoe County, and Sidney C. Foster,
Justice. Judgment for petitioners, and respondents appeal. Affirmed.
Augustus Tilden, for Appellants:
The contents of the answer to the petition for the writ of certiorari stand as the admitted
facts in this case. Petitioners lost their remedy by certiorari, by lapse of time and laches, in
that they speculated on the result of their motion for relief from the judgment on the grounds
of inadvertence and excusable neglect before making application for the writ, and by said
speculation put appellant to the trouble and expense of defending said application for relief;
by applying to the justice court for relief from the judgment, and pursuing said application to
a decision, they conclusively elected to affirm the validity of the judgment; by moving on the
two specific grounds of inadvertence and excusable neglect, they waived and abandoned all
other existing grounds, and estopped themselves to set up the invalidity of the judgment.
Petitioners cannot claim that the justice court did not have jurisdiction to hear their
application for relief because the process was void. Their appearance brought them within
the jurisdiction of the court for all future proceedings. Woodman v. Anderson, 73 Pac. 536.
The rule that one may affirm or disaffirm a contract, but may not do both, applies to
remedies. Moore v. Mfg. Co., 42 Nev. 164; Piper v. Railroad, 75 Atl. 1041. It is not
competent to a party to assent to a proceeding in the court below, take his chances of success,
and upon failure come here and object that the court below had no authority to take the
proceeding. Mays v. Fritton, 20 Wall. 414; Sentines v. Ladew, 140 N. Y. 463; Gamble v.
Silver Peak, 35 Nev. 319; Grant v. Grant, 38 Nev. 185; Crosby v. Mfg Co., 23 Nev. 70; Scott
v. Day, 142 Pac. 625.
The remedy actually pursued by petitioners presupposed the validity of the judgment.
Wharton v. Harlan, 9 Pac. 727; Perry v. District Court, 42 Nev. 284. This was necessarily a
waiver of its invalidity. When waived it is no longer an element in the case. National Bank
v. Trust Co., 227 Fed. 526.
An election, once made between coexisting remedies which are inconsistent, is not only
irrevocable, * * * but it is also conclusive and constitutes an absolute bar in any action, suit,
or proceeding based upon a remedial right inconsistent with that asserted by the election. 20
C. J. 38. Petitioners' waiver of invalidity is necessarily implied by their election of a remedy
based on validity; but waiver operates even without the presence of the element of
repugnancy. Stating of two grounds is a waiver of all other grounds, whether or not
repugnant. Fowler v. Casualty Co., 124 Pac. 479. Waiver of invalidity is in legal effect the
precise equivalent of full validity. 3 Elliott, Contracts, sec. 2050. Estoppel to deny validity is
in legal effect the precise equivalent of full validity. Allen v. Hance, 118 Pac. 527. Some
consistency is necessary to the validity of legal proceedings. In Re Meyer, 131 N. Y. Supp.
27.
Laches plus detriment equals estoppel. 16 Cyc. 152. Election plus detriment equals
estoppel. 20 C. J. 4. Waiver plus detriment equals estoppel. 16 Cyc. 805. That a party
seeking relief in equity from a justice's judgment has been guilty of negligence, laches, or
delay in protecting his rights, is good ground for the refusal of relief. 24 Cyc. 607. If private
injustice will result from granting the writ [of certiorari] after the delay, it will ordinarily be
refused. 11 C. J. 147.
Expenditures and labor incurred in resisting petitioners' application to the justice court for
relief from the judgment constitutes that detrimental change of position which ripens waiver
and election into estoppel. Bigelow, 6th ed. pp. 696, 790. Expenditures in litigation may as
reasonably constitute the basis of an estoppel as any other expenditures. Meister v. Birney,
24 Mich. 435; Myers v. Byars, 12 South. 430.
Hoyt, Norcross, Thatcher, Woodburn & Henly, for Respondents:
This is an appeal from a judgment granting a writ of certiorari by the district court,
reviewing the judgment of the justice court of Reno township, wherein Augustus Tilden was
plaintiff and George Thatcher, Sr., and George Thatcher, Jr., were defendants. The complaint
was not certified by the justice, nor by any other person, as being a true copy. It was admitted
in the certiorari proceedings that no service had been made of a certified copy of the
complaint.
Failure to certify the complaint deprives the justice court of jurisdiction. There is no denial
on the part of appellants that there was an absolute absence of jurisdiction on the part of the
Reno justice court to enter judgment against the defendants in that court. Martin v. Justice
Court of Elko Township, 44 Nev. 140, 190 Pac. 977. A void judgment is, in reality, no
judgment at all. It is a mere nullity. * * * It is supported by no presumptions, and may be
impeached in any action, direct or collateral. Black on Judgments. A void judgment, "being
worthless in itself, all proceedings founded upon it are equally worthless."
void judgment, being worthless in itself, all proceedings founded upon it are equally
worthless. Freeman on Judgments, par. 117. A judgment rendered by a court having no
jurisdiction, either of the parties or the subject-matter, is a mere nullity, and will be so held
and treated whenever and for whatever purposes it is sought to be used or relied on as a valid
judgment. 23 Cyc. 681; State v. Bates, 61 Pac. 905.
The justice court had no jurisdiction to review the judgment on the question of
jurisdiction. Being a creature of statute, its sole power was limited to the right to relief from a
judgment taken through excusable neglect, as expressly conferred. Rev. Laws, 5742; Wiemer
v. Southerland, 15 Pac. 849; Simmons v. Justice Court, 59 Pac. 296; Shaw v. Rowland, 5
Pac. 146.
The doctrine of election of remedies has no application unless there has been an election
between two inconsistent remedies. The courses pursued by petitioners are not inconsistent
with each other. The parties to the proceeding in the justice court are equally charged with a
knowledge of the law. Both plaintiff and defendant are presumed to know that the judgment
rendered was a void judgment. A void judgment is, however, efficacious until its execution is
restrained. Pitkin v. Burnham, 87 N. W. 160.
The doctrine of estoppel has no application to the instant case, as respondents failed to
successfully maintain their motion for leave to defend. Successful maintenance of a prior
claim or position is essential before the doctrine of estoppel can be urged in judicial
proceedings. 21 C. J. 1223; Strathleven Co. v. Baulch, 249 Fed. 214; Davis v. Wakelee, 156
U.S. 681.
Per Curiam:
This is an appeal from a judgment rendered in a proceeding in certiorari and from an order
denying a new trial therein.
The undisputed facts are that Augustus Tilden obtained a judgment by default against
relators in the justice court of Reno township for their failure to appear, answer, or demur.
justice court of Reno township for their failure to appear, answer, or demur. Seventeen days
after the rendition and entry of the judgment, the relators moved in said justice court to have
the judgment set aside and vacated, upon the ground of inadvertence and excusable neglect.
The justice denied the motion, and thereafter they sued out a writ of certiorari to review the
judgment. Upon the return to the writ and the answer of Augustus Tilden to the petition
therefor, the reviewing court decided and held the judgment to be void for want of
jurisdiction. Counsel for appellant asserts that the judgment is against the law, and that the
evidence is insufficient to support the judgment.
1. The rule is so well established that the limit of the inquiry upon certiorari is the
question of the jurisdiction of the court, that it should never again be questioned, directly or
indirectly, in this jurisdiction. Ignoring, then, all errors of law and the insufficiently of
evidence except in so far as they relate to the question of jurisdiction, we shall inquire
whether the return shows that the justice court exceeded its jurisdiction.
2. It is conceded that the copy of the complaint served personally upon relator was not
certified by the justice or the attorney for plaintiff to be a true and correct copy of the
complaint on file in the justice court. The reviewing court, upon the authority of Martin v.
Justice Court of Elko Township, 44 Nev. 140, 190 Pac. 977, held this to be a jurisdictional
requirement, and that the justice was without jurisdiction, power, or authority to render the
judgment.
3. Counsel for appellant does not question this authority, but invokes the rule that it one
against whom a judgment has been rendered by default without a valid service of process
appears to ask that the default be set aside and for leave to answer on the merits, he thereby
waives the want of process. It is not for want of process that relators attack the judgment, but
for the failure of the plaintiff or the justice to comply with what the court held in the Martin
case to be a jurisdictional requirement of the statute.
This court, in Iowa M. Co. v. Bonanza M. Co., 16 Nev. at page 73, said:
There is a marked, and in many respects, important and substantial distinction, between
defects in practical proceedings, which constitute mere irregularities, or such as render the
proceeding a total nullity and altogether void. Where the proceeding adopted is that
prescribed by the practice of the court, and the error is merely in the manner of conducting it,
such an error is an irregularity, and may be waived by the laches or subsequent acts of the
opposite party; but where the proceeding is altogether unwarranted, totally dissimilar to that
which the law authorizes, then the proceeding is a nullity, and cannot be made regular by an
act of either party.
We are not disposed to change the rule thus adopted. Sustaining the rule are: Baskins v.
Wylds, 39 Ark. 347; Southern B. & L. Assn. v. Hallum, 59 Ark. 583, 28 S. W. 420; Correll v.
Greider, 245 Ill. 378, 92 N. E. 266, 137 Am. St. Rep. 327; Mills v. State, 10 Ind. 114; Osborn
v. Cloud, 21 Iowa, 238; Boals v. Shules, 29 Iowa, 507; Mayfield v. Bennett, 48 Iowa, 194;
Godfrey v. Valentine, 39 Minn, 336; 40 N. W. 163, 12 Am. St. Rep. 657; Roberts v. Railway
Co., 48 Minn. 521, 51 N. W. 478; Spencer v. Court of Honor, 120 Minn. 422, 139 N. W. 815;
McGuinness v. McGuinness, 72 N. J. Eq. 381, 68 Atl. 768; Yorke v. Yorke, 3 N. D. 343, 55
N. W. 1095. And see Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708.
4, 5. We do not think there is any ground for the contention that there was such an
election of remedies as precluded the prosecution of this proceeding. The very essential of
election is that a party must resort to one of two inconsistent remedies. Robertson v.
Robertson, 43 Nev. 50, 180 Pac. 122, 187 Pac. 929. There is nothing inconsistent between the
remedy resorted to in the justice court and in this proceeding.
6. As to the contention of estoppel, we need only say that an essential to the successful
invoking of the doctrine of estoppel is that a party has, by the conduct of the other party,
been induced to change his position to his detriment.
the other party, been induced to change his position to his detriment. Sharon v. Minnock, 6
Nev. 377. There has been no change of position on the part of appellant, such as
contemplated by the law.
____________
46 Nev. 140, 140 (1922) Dechert v. Dechert
[No. 2535]
DOROTHY PARSONS DECHERT, Respondent, v.
JAMES FLANAGAN DECHERT, Appellant.
[205 Pac. 593]
1. DivorceModification of Decree Held Authorized.
Where decree of divorce provided that it might be modified as to allowance to wife and child, the
court had authority subsequently to modify it upon a proper showing.
2. Appeal and ErrorAppeal Not Considered upon Evidence in Absence of Bill of
Exceptions.
Where there is no bill of exceptions in the record on an appeal from an order denying a motion to
change the terms of a decree of divorce so as to disallow an item for the support of a child, the appeal
cannot be considered upon the evidence under Stats. 1915, c. 142, sec. 6, p. 165.
Suit by Dorothy Parsons Dechert against James Flanagan Dechert. From an order made
after final decree granting plaintiff a divorce, and making an allowance for her support and
for the support of a minor child, defendant appeals. Affirmed.
Vernon A. Vrooman (Harrison Clark, of Counsel), for Appellant:
The court below, by reserving generally the right to amend the decree as to the money
provision, did so far all purposes involving changing conditions, substantial justice, and
established legal principles; and, if appellant established the affirmative of any one of the
grounds of his motion, it was error on the part of the court to deny the motion, and the order
should be reversed. Sistare v. Sistare, 218 U.S. 1; Van Horn, v. Van Horn, 196 Am. Dec. 472.
Appellant pursued the proper remedy to secure a modification to the decree. 19 C.J. 359; 1
R.C.L. 947.
Neither the taking of a bill of exceptions nor the filing of an assignment of errors is
necessary. The statute relative thereto is merely directory. Stats. 1915, c. 142. The order now
before this court for review is one made upon the affidavit of appellant. The provisions of
the last preceding section shall not apply to appeals taken from an order made upon affidavits,
but certified copy of such affidavits and counter-affidavits, if any, shall be annexed to the
order in place of the bill of exceptions mentioned in the last section. Idem, secs. 11, 12. On
hearing of the motion there was no objection of any evidence introduced, and no exception to
any incident of the hearing. The one error which appellant seeks to have remedied is the order
itself, which is deemed excepted to. An order or decision from which an appeal may be
taken are deemed to have been excepted to. Rev. Laws, 5318; Stats. 1915, c. 208, p. 321. No
question has been raised as to this being an appealable order, and as such it is deemed
excepted to. Ballard v. Purcell, 1 Nev. 342; State v. Murphy, 29 Nev. 248, 88 Pac. 335. An
appeal may be taken from any special order made after final judgment. Rev. Laws, 5329;
Smith v. Wells Estate Co., 29 Nev. 411; Weinrich v. Porteus, 12 Nev. 102; Rev. Laws, 5356;
Gray v. Harrison, 1 Nev. 502.
Cheney, Price, Hawkins & Lunsford, for Respondent:
False testimony or fraud respecting matters in issue does not justify a collateral attack
upon the judgment or its review in any manner than by a motion for a new trial. U.S. v.
Throckmorton, 98 U.S. 61. The maxim that fraud vitiates every proceeding must be taken,
like other general maxims, to apply to cases where proof of fraud is admissible. But where the
same matter has been either actually tried, or so in issue that it might have been tried, it is not
again admissible; the party is estopped to set up such fraud, because the judgment is the
highest evidence, and cannot be controverted."
admissible; the party is estopped to set up such fraud, because the judgment is the highest
evidence, and cannot be controverted. Green v. Green, 2 Gray, 361; 15 Stand. Ency. Prac.
321.
The appeal should be dismissed or the order appealed from affirmed. There is no bill of
exceptions, nor any assignment of errors. It was discretionary with the lower court to grant or
refuse to grant the motion to modify the judgment, and there is nothing in the record to show
an abuse of that discretion. This is an appeal entered after trial on the merits. Coffin v.
Coffin, 40 Nev. 345. There having been a hearing on the merits, it is indispensable that there
should have been filed, in due season, an assignment of errors.
This is an appeal from an order made after a final decree granting the plaintiff a divorce
and making an allowance for her own support and for the support of a minor child.
Something more than a year after the decree mentioned had been entered, a motion was made
to change its terms so as to disallow the item of $100 per month for the support of the child.
Four grounds are stated in the motion in support thereof, namely: (1) That counsel for the
defendant was instructed by the defendant not to consent to the allowance by the trial court of
the item complained of; (2) that the said item so allowed by the court is in violation of the
terms of an agreement made between the parties, prior to the trial of the case, settling the
question of allowance for the wife and child; (3) that it is in violation of the terms of a certain
trust deed executed by the defendant to secure a compliance with the terms agreed upon in
said agreement settling the question of allowance for the wife and child; and (4) that the
plaintiff committed a fraud upon the court.
1, 2. The court, after a full hearing on the motion, denied the same; hence this appeal. A
motion has been interposed to affirm the judgment, for the reason that there is no bill of
exceptions in the record.
interposed to affirm the judgment, for the reason that there is no bill of exceptions in the
record. The decree of divorce provides that it may be modified as to the allowance mentioned,
and hence the court would have authority to modify it upon a proper showing (Sweeney v.
Sweeney, 42 Nev. 431, 179 Pac. 638); but there is a wide difference between the modification
of a decree in respect to such a matter upon the ground of changed conditions of the parties
and the entry of a different decree. This is an application to change the decree itself, and not
to modify it because of changed conditions of the parties, or either of them. As to the first
ground of the motion, it is not even here contended that the attorney who appeared for the
defendant at the trial of the case violated his instructions. The query naturally arises whether
the court, upon an application of this kind, can revamp its decree and enter a different one;
also, whether the court is bound by an extrajudicial agreement of the parties as to an
allowance for a minor child. But we do not think we can consider the appeal upon its merits.
From the very nature of the applicationthat is, of the grounds thereofto change the terms
of the decree, it is apparent that no reliance can be based upon the record proper to sustain it,
since none of the matters relied upon appear therefrom, or could appear therefrom; hence
these matters must be brought to our attention, if at all, by a duly settled bill of exceptions.
The purpose of the bill of exceptions is to bring into and make a part of the record the
evidence taken and relied upon at the trial of a case. Unless the evidence is made a part of the
record by a duly settled bill of exceptions, it cannot be considered by this court. This being an
appeal from an order made after final judgment, the fill of exceptions must be settled as
pointed out in Stats. 1915, sec. 6, c. 142, p. 165, which may be either by stipulation of the
parties, or order of the trial judge or of the court. There is no bill of exceptions in the record
on appeal in this matter; hence we cannot consider the appeal upon the evidence.
cannot consider the appeal upon the evidence. Corcoran v. Dodge, 45 Nev. 406, 204 Pac. 879,
and cases cited therein.
No error appearing from the record proper, it is our duty to affirm the order appealed from.
It is accordingly so ordered.
____________
46 Nev. 144, 144 (1922) Christensen v. Valdemar No. 12
[No. 2477]
N. B. CHRISTENSEN, Appellant, v. VALDEMAR No. 12 OF THE DANISH SOCIETY OF
CALIFORNIA AND NEVADA (a Corporation), Formerly Known as Valdemar No. 12
of the Danish Society Dania, and a Fraternal Organization, Respondent.
[197 Pac. 688]
1. Landlord and TenantLandlord's Complaint Held Not to State Cause of Action.
Complaint by landlord, alleging lease to defendant lodge containing condition that lessee remodel the
premises for lodge purposes, and that a statement of expense of remodeling be signed by both parties and
attached to lease, such sum to be credited on the rent as it accrues, and that if lessor terminated lease on
three months' notice he should pay lessee any balance of remodeling expense and alleging the signing and
attachment of such statement and service of notice to terminate the tenancy, but demanding a statement of
balance due on the remodeling account and praying for an accounting and termination of the lease, did
not state a cause of action, as the prior statement fixed the remodeling expenses.
Action by N. B. Christensen against the Valdemar No. 12 of the Danish Society Dania of
California and Nevada, formerly known as Valdemar No. 12 of the Danish Society Dania, a
fraternal organization. From judgment for defendant, plaintiff appeals. Affirmed.
Sardis Summerfield, for Appellant:
Claiming that the defeasance contingency had occurred, appellant gave the required
three months' notice to respondent to terminate its tenancy, demanding a statement of
the amount it claimed to be due, in order that appellant might pay said amount if correct.
occurred, appellant gave the required three months' notice to respondent to terminate its
tenancy, demanding a statement of the amount it claimed to be due, in order that appellant
might pay said amount if correct. Respondent refused to answer said notice in any respect.
Appellant has done everything possible to terminate the tenancy. The subject-matter of the
action embraces all transactions had because of the conditions of the lease. Any counter-claim
existing at the time of the commencement of the action, if within the permissive provisions of
our statute, is a matter of defense, to be pleaded by respondent. Rev. Laws, 5047, 5048. Any
such counter-claim is a cause of action arising out of the transaction set forth in the
complaint as the foundation of the plaintiff's claim, and is necessarily connected with the
subject of the action. Lapham v. Osborne, 20 Nev. 176.
The written notice served upon respondent by appellant, and the former's indicated
unwillingness to accept it, in legal effect amounted to a tender and a refusal to accept. Lynch
v. Postelthwait, 12 Am. Dec. 495; Moynahan v. Moore, 77 Am. Dec. 486. A plea of tender is
sufficient, although the money is not brought into court. Loughborough v. McNevin, 74 Cal.
256; Kortwright v. Cady, 21 N. Y. 343; Miller v. Cox, 96 Cal. 346.
A primary rule of construction of such written instruments as the lease in question is that
of giving effect and meaning to every part of the instrument, each clause being considered
separately, and each separate part being viewed in the light of other parts. Gibson v. Bozy, 28
Mo. 478; Collins v. Lavelle, 44 Vt. 230; McCoy v. Fahrney, 182 Ill. 60; Uhl v. Ohio River
Railroad Co., 51 W. Va. 106.
Brown & Belford, for Respondent:
The action of the trial court in sustaining the demurrer to the complaint was not only
entirely proper, but any other interpretation of the complaint than that placed upon it by the
court would have been to read into the pleading elements urged for the first time on
appeal.
the pleading elements urged for the first time on appeal. Two contingencies must exist in
order to confer upon the plaintiff the right of possession of the premises: First, legal
authorization of gambling; second, reimbursement of defendant for remodeling and refitting
of the lodge rooms. The complaint contains no allegation either of reimbursement or of offer
to reimburse; and, while the lower court did not pass upon the question of gambling, it has
not been legally authorized in this state. Rev. Laws, 6518.
This appeal was taken upon the judgment roll alone. We will refer to the parties as they
were designated in the trial court.
Plaintiff pleaded the execution of an agreement on September 5, 1911, between one
Dreyer and the defendant, wherein the said Dreyer leased unto the defendant the upper story
of certain premises, upon the condition that the lessee should, at its own expense, remodel,
improve, and make suitable such premises for lodge purposes. It is provided in the agreement,
which is made a part of the complaint, that upon the completion of such improvements the
total cost thereof should be embodied in a statement, to be verified and signed by both parties
to said agreement, and to be attached thereto and become a part thereof. The complaint pleads
as a part of the agreement a statement which is signed by said Dreyer and the trustees of the
defendant, showing items expended, aggregating $1,873.35. By the terms of the agreement of
lease, the monthly rental is fixed at $10, which sum is to be credited each month upon the
amount so expended in remodeling the premises, until the entire amount of the expenditure is
consumed. The agreement recites the enactment by the legislature of a statute making it
unlawful to gamble in the State of Nevada, and it is agreed that the lease shall run until the
full sum so expended by the lessee is consumed in the payment of rent at $10 per month,
unless gambling should sooner become "legally authorized," in which event the lessor
might terminate the lease by giving the lessee three months' notice and paying in cash
the difference between the amount paid as rental and the sum so expended by the lessee
in remodeling and improving the premises.
is consumed in the payment of rent at $10 per month, unless gambling should sooner become
legally authorized, in which event the lessor might terminate the lease by giving the lessee
three months' notice and paying in cash the difference between the amount paid as rental and
the sum so expended by the lessee in remodeling and improving the premises. The agreement
is made binding upon the grantees and assigns of the respective parties. It is alleged that the
plaintiff is now the owner of the premises in question.
It is also averred that on May 5, 1920, a written notice was served upon the defendant by
the plaintiff, notifying it that gambling had been legally authorized in the State of Nevada,
and that the lease mentioned would terminate August 6, 1920; demanding a statement of the
amount due from plaintiff to defendant as the balance due upon the expenditures made in
remodeling the premises, that payment thereof might be made; and also demanding
possession of the premises on August 6, 1920. The defendant refused to consider the lease as
canceled, to furnish a statement, or to surrender possession of the premises. The complaint
prays that a decree be entered directing an accounting, adjudging that the lease be terminated
and forfeited, and for general relief.
A general demurrer was filed to the complaint, and, upon its being sustained, plaintiff
declining to amend, judgment was entered in favor of the defendant; hence this appeal.
The only question for determination is: Does the complaint state a cause of action? It is the
contention of the defendant that the complaint shows that the amount of the expense incurred
by the defendant in remodeling the building was agreed upon by the lessor and lessee on
November 20, 1911, to be the sum of $1,873.35, and that it was the duty of the plaintiff to
allege the payment or tender to defendant of the difference between that sum and the sum
paid by defendant as rentals, at the rate of $10 per month from September 5, 1911; and,
failing so to do, the complaint does not state a cause of action.
as rentals, at the rate of $10 per month from September 5, 1911; and, failing so to do, the
complaint does not state a cause of action. It is also contended by the defendant that gambling
has not been legalized in this state.
It is contended by the plaintiff that the gross amount to be liquidated does not appear
from anything contained in the lease to be limited to the amount in the statement attached to
the lease, and that the plaintiff could not be charged with knowledge of additional
expenditures made by the defendant; and hence it is insisted that the complaint is good.
The position taken by the plaintiff is untenable. The lease clearly provides that the lessee
might remodel and improve the upper story of the premises in question. This language is
used several times in the lease, and it is clear from these words and the context that the
improvements to be made were limited to those made in the progress of the remodeling, and
that all of such expenditures should be listed in the statement to be attached to the lease, and
which was approved and attached thereto. By rendering the itemized statement the defendant
expressly recognized that the modeling and improving contemplated by the lease had been
completed on November 11, 1911. The approving and attaching of the statement is of itself
an interpretation by the parties to the lease to the effect that it contained all of the items
chargeable, or that could be chargeable, on account of improving and remodeling by the
lessee. There is a wide difference between expenses incurred in making improvements and in
remodeling and those incurred in making repairs. Repairs were not contemplated by the
parties. If the expenses to be listed in the statement and approved by the parties, as
contemplated by the lease, were not limited to those incurred in remodeling, we are a loss to
know at what time it was intended by the parties that such statement should be approved and
attached to the lease. If we accept the theory of counsel for plaintiff, remodeling and
improving may continue through all time, and a perpetual lease be created by the acts of
the defendant, unless gambling becomes, or has become, lawful.
ing may continue through all time, and a perpetual lease be created by the acts of the
defendant, unless gambling becomes, or has become, lawful. It hardly seems probable that the
lessor could have intended the making of such a freak contract. It appears from the language
of the lease that the sole purpose of attaching the statement was to enable the parties,
immediately after the completion of the work of remodeling, to determine from the lease
itself how long it would run; or, in case gambling should become legalized, and the lease
terminated because thereof, the amount that the lessor would have to pay to effectuate its
cancellation. No other reasonable interpretation can be placed upon the lease.
Plaintiff's brief suggests other points concerning the matter of which we have disposed, but
we doubt if his counsel, so learned and experienced, can be serious in their presentation. At
any rate, they do not deserve consideration in this opinion.
As to the contention that gambling is legally authorized in Nevada, we might ask: What
is meant by the provision relative to when gambling shall be legally authorized? Does it
mean that gambling shall be authorized to the extent that a gambling debt may be a valuable
consideration to sustain a contract, or in the sense that one shall not be subject to criminal
prosecution for gambling or operating a gambling game? Does it mean gambling as it existed
prior to the antigambling law of 1909? Does it mean gambling to a limited extent only? In
answering the last question, we might have to determine whether gambling was legally
authorized in any instance or to any extent at the time the lease was executed. If the last
suggestion should be answered in the affirmative, can it be said that the contract in question is
ambiguous? These questions, among others, might have to be disposed of if at any time we
are compelled to pass upon the contention that gambling is legally authorized in the state.
However, since the complaint does not state a cause of action, as pointed out, it is not
necessary to dispose of the contention that gambling is now "legally authorized."
action, as pointed out, it is not necessary to dispose of the contention that gambling is now
legally authorized.
It is ordered that the judgment appealed from be affirmed.
____________
[No. 2551]
N. B. CHRISTENSEN, Respondent, v. VALDEMAR No. 12 OF THE DANISH SOCIETY
OF CALIFORNIA AND NEVADA (a Corporation), Formerly Known as Valdemar No.
12 of the Danish Society Dania, and a Fraternal Organization, Appellant.
[208 Pac. 426]
1. Landlord and TenantIn Construing Clause of Lease, Uses and Purposes to which
Premises Has Been Put Must Be ConsideredGambling.
Where a lease, executed after taking effect of the antigambling law in 1909 (Stats. 1909, c. 205),
provided that, if gambling should ever become legally authorized in the state, the lessor or his assigns
might regain possession on complying with certain conditions, in view of the amendment of the
antigambling act in 1915 (Stats. 1915, c. 284), so as to permit playing certain gambling games where the
deal alternates, and no percentage is taken, and since the word gambling includes a wide range of
games, in construing the lease, the law as it existed prior to the adoption of the antigambling law and the
uses and purposes to which the premises had been put must be taken into consideration in determining
whether gambling had been legally authorized, as contemplated by the parties.
2. GamingGambling Defined.
Playing poker for money or something of value is gambling. Gambling may cover a wide range of
games.
Action by N. B. Christensen against Valdemar No. 12 of the Danish Society of California
and Nevada. From judgment for plaintiff, defendant appeals. Reversed and remanded.
Brown & Belford, for Appellant:
In view of the present condition of the law on the subject, there has been no legal
authorization of gambling, as provided in the lease; and until there is such legal authorization
the tenancy of the appellant cannot be terminated. The court must construe the meaning and
effect of the provision in the lease: If gambling should be legally authorized in this state. If
subsequent to 1911, and during the term of the lease, the legislature should legally authorize
gambling, so that it might be conducted publicly, pursuant to such authorization, respondent
was to have the right to reimburse the Danish society for its expenditures and resume
possession of the premises. It was incumbent upon the plaintiff to show, clearly and
explicitly, that there had been such a modification of the laws since 1911 as to legally
authorize gambling; that there has been a restoration of conditions as they existed prior to the
execution of the lease, so that the property might be used for gambling purposes. Under the
statute this could not be done. Rev. Laws, 6510, 6520.
In construing statutory provisions, judges make use of their knowledge of state history in
ascertaining the mischief for which the legislature has sought to provide relief. The
construction of statutes is aided in the same way, by judicial knowledge as to what shall be
considered, in view of historical facts, to have been the intention of the parties. 16 Cyc. 869.
All doubts must be resolved in favor of the lessee. 24 Cyc. 915. In case of doubt as to the
meaning of a lease or contract, it must be construed most strongly against the lessor and in
favor of the lessee. Younger v. Moore, 103 Pac. 224.
Sardis Summerfield, for Respondent:
If gambling was legally authorized in this state when respondent made his tender and
demanded possession of the leased premises, the judgment of the lower court should be
affirmed. In 1909 the legislature passed a comprehensive antigambling law.
comprehensive antigambling law. Stats. 1909, p. 307. In 1911 its provisions were
incorporated in the Revised Laws, sec. 6518-6522. In view of the possibility that in the future
the same power that enacted the antigambling law might legalize gambling, the proviso in the
lease was agreed upon by the contracting parties in a form not only mutually binding upon
them, but also upon their respective successors in interest; and in 1915 this possibility became
a reality. Stats. 1915, p. 462. In the same year the legislature enacted an elaborate
horse-racing gambling bill. Stats. 1915, p. 23. Betting on horse-racing is gambling. 12 R.C.L.
p. 718.
Under the Reno charter act, passed by the legislature and approved by the governor, the
power to license gambling was delegated to the city council. Stats. 1903, p. 184; Stats. 1921,
p. 50. To fix, impose and collect a license tax on and to regulate gambling games. Reno
charter, art. XII, sec. 10. The municipal ordinances and the state statutes are from a common
source of authority. One class presents it in a delegated, and the other in a direct, form, but it
is the power of the state which speaks in both. McQuillin, Mun. Ord., pp 17, 18; State v.
Reno T. Co., 41 Nev. 425. Valid municipal ordinances have the same force and effect as if
they had been passed directly by the legislature. N.O. Water-Works v. New Orleans, 164 U.S.
471.
1. This action grows out of the lease described in a case of the same title reported in 46
Nev. 144. The complaint pleads the execution on September 5, 1911, by one Dreyer of a
contract of lease with the defendant of the upper story of certain premises situated in Reno,
Washoe County, Nevada, and the transfer thereafter of the property by Dreyer to the plaintiff,
subject to the terms of the lease. The lease contains a provision that the lessor, or his assigns,
might, upon certain conditions, if gambling should be legally authorized in this state,
become entitled to the possession of the premises. It is also averred that, pursuant to an
amendment to the city charter of Reno, as adopted by the state legislature, the city
council has authority "to fix, impose, and collect a license tax on, and to regulate * * *
gambling games," and that the city council had adopted an ordinance providing for the
licensing of the games of poker, stud poker, five hundred, solo, and whist, and that the
conditions mentioned in the lease had been complied with by the plaintiff.
also averred that, pursuant to an amendment to the city charter of Reno, as adopted by the
state legislature, the city council has authority to fix, impose, and collect a license tax on,
and to regulate * * * gambling games, and that the city council had adopted an ordinance
providing for the licensing of the games of poker, stud poker, five hundred, solo, and whist,
and that the conditions mentioned in the lease had been complied with by the plaintiff. Other
averments are contained in the complaint, but in the view we take of the case it is not
necessary to prolong this opinion by reciting them.
An answer was filed denying certain allegations of the complaint, among others, that
gambling had been legally authorized in this state. There is contained in the answer certain
affirmative allegations, wherein it is charged that for some time prior to the making of the
lease public gambling had been conducted on the premises, for profit; that the games so
conducted included roulette and faro; that prior to the execution of said lease the legislature
of the state had by statute prohibited the conducting of said games in this state, and had made
it unlawful to operate gambling games. It is further averred that, in view of the conditions
growing out of the enactment of the antigambling act, Dreyer induced the defendant to
become a tenant of the premises in question. Other allegations tending to maintain
defendant's theory are contained in the answer, but what we have alluded to will suffice for
the purpose of the case.
A demurrer was filed to the affirmative matter pleaded in the answer, which was sustained
by the court. This ruling is assigned and urged as being prejudicial error. We think the court
erred in sustaining the demurrer. The determination of the controversy which has arisen
depends entirely upon the construction which is to be ultimately given to the words in the
lease, if gambling should be legally authorized in this state. Counsel for respondent says
that, since the legislature in 1915 amended the law so as to permit the playing of poker, stud
poker, five hundred, solo, and whist, when the deal alternates and no percentage is taken,
and betting upon horse-racing, in view of the city ordinance of Reno, gambling has been
legally authorized in this state.
stud poker, five hundred, solo, and whist, when the deal alternates and no percentage is taken,
and betting upon horse-racing, in view of the city ordinance of Reno, gambling has been
legally authorized in this state.
Prior to 1909 a person might conduct a public gambling-house and operate numerous
games of chance, or gambling games, for profit, by procuring a license and paying a fee
therefor. Stats. 1885, p. 12; Cutting Comp. Laws, 1263. In 1909 the legislature enacted a rigid
antigambling law (Stats. 1909, c. 205) which interdicted all of the well-known gambling
games, such as were then operated in the public gambling-houses of the state. The law was in
effect at the time the lease in question was entered into. In 1915 (Stats. 1915, c. 284) the
legislature amended the antigambling act so as to permit the playing of poker, stud poker, five
hundred, solo, and whist, where the deal alternates and no percentage is taken. Pursuant to
this amendment and the provision of the city charter of Reno, the city council adopted an
ordinance licensing the games just enumerated when they are not conducted for a percentage
and when the deal alternates.
2. As said by counsel for respondent, the pivotal question ultimately to be determined in
this case is: Has gambling been legally authorized in this state? He says that betting on glove
contests and horse-races is gambling. This may be true; and playing poker for money or
something of value is gambling. It is also true that gambling may cover a wide range of
games; probably men might gamble on a game of marbles or casino. Assuming that counsel's
contention that betting on a horse-race is gambling, could it be said with reason that, had
gambling on horse-races alone been legalized in this state, it would justify the termination of
the lease in question? Counsel for respondent says it would, notwithstanding the fact that
gambling on horse-racing might not in the least affect the business carried on upon the
premises in question, or the value of the property, in any way.
In view of the fact that the word gambling includes a wide range of games, some of which
might not in the least affect the value of the property or its productivity, it seems only
reasonable that the parties in entering into the lease, by using the word gambling, must have
attached to it a meaning which can be arrived at by considering not only the law as it existed
prior to the adoption of the antigambling law, but the uses and purposes to which the
premises had been putindeed, all of the facts and circumstances throwing light upon the
situation. We think the correct rule applicable to the situation is expressed in Hoffman v.
AEtna F. Ins. Co., 32 N. Y. 405, 88 Am. Dec. 337, where it is said:
The matter in hand is always presumed to be in the mind and thoughts of the speaker,
though his words seem to admit a larger sense; and therefore the generality of the words,
used, shall be restrained by the particular occasionciting Powell on Contracts, 389; Van
Hagen v. Van Rensselaer, 18 Johns. [N. Y.] 423.
Again:
Words should not be taken in their broadest import, when they are equally appropriate in
a sense limited to the object the parties had in view.
In Anderson v. Mutual L.I. Co., 164 Cal. 713, 130 Pac. 726, Ann. Cas. 1914b, 903, the
court gave expression to the following:
But, in construing any writing, the usual definition of a single word is not a conclusive
test of the meaning to be attributed to it in the connection in which it is found. We must
endeavor to ascertain, from an examination of the entire instrument, read in the light of the
circumstances surrounding its execution, the sense in which the parties employed the
particular phrase in question.
The Supreme Court of New Jersey, in Chism v. Schipper, 51 N.J. Law, 1, 16 Atl. 316, 2
L.R.A. 544, 14 Am. St. Rep. 668, quotes approvingly the following from an opinion by
Gibson, J.:
The best construction is that which is made by viewing the subject of the contract as the
mass of mankind would view it, for it may be safely assumed that such was the aspect in
which the parties themselves viewed it."
would view it, for it may be safely assumed that such was the aspect in which the parties
themselves viewed it.
What we have said as to the interpretation to be put upon the word gambling applies
with equal force to the words legally authorized.
The court having erred in its ruling upon the demurrer to the affirmative matter pleaded in
the answer, it is ordered that the judgment be reversed, and the case remanded for further
proceedings in accordance with the views herein expressed.
____________
46 Nev. 156, 156 (1922) Goodrich v. Stevens
[No. 2534]
ELLIOT GOODRICH, Et Al., Respondents, v. THERON STEVENS and JOHN S. COOK &
CO. (a Corporation), Appellants.
[208 Pac. 431]
1. Public LandsExcessive Amounts Exacted as Fees for Attorney by Trustee under Statute
for Relief of Inhabitants on Public Lands Held by Him Under a Constructive Trust.
Where one who, by virtue of being district judge was ex officio town-site trustee for execution of a
trust arising under federal statute for relief of inhabitants on public lands, fully executed the trust, but
under mistake as to his power demanded and received too great an amount from those for whom deeds
were obtained, as fee for the attorney, he holds the excess, not under such trust, but as trustee under a
constructive trust, his liability for which is directly to those who made the excess payments; so such funds
may not be ordered paid to his successor as judge, as his successor as trustee under the original trust.
Appeal from the Seventh Judicial District Court, Esmeralda County; C. J. McFadden,
Judge.
Action by Elliott Goodrich and others against Theron Stevens and another. From an
adverse judgment and an order denying a motion for new trial, defendants appeal. Reversed.
E. Carter Edwards, for Respondents:
The subject-matter of the action being a trust, and the remedy being the enforcement of
the execution of the trust and an accounting therein, to fill a vacancy in the trust caused
by the absence of the trustee from the state for more than ninety consecutive days, the
jurisdiction is exclusively in equity.
the remedy being the enforcement of the execution of the trust and an accounting therein, to
fill a vacancy in the trust caused by the absence of the trustee from the state for more than
ninety consecutive days, the jurisdiction is exclusively in equity. When the question is one of
common or general interest of many persons, or when the parties are numerous and it is
impracticable to bring them all before the court, one or more may sue or defend for the
benefit of all. Rev. Laws, 5001. Trusts and trustees, accountings therein and thereby, and
injunctive relief, are subjects of exclusive equity jurisdiction. 2 Pomeroy's Eq. Jur., sec. 987.
Trustees who have the possession of trust property, under the terms of the instrument
creating the trust, are chargeable in their accounts with the whole of the estate committed to
them; and they have not fully accounted until the whole estate is finally disposed of, and they
will remain subject to be called to account until this is done and the trust is fully executed and
the trustees are entitled to their discharge. 39 Cyc. 468, 469; McAdoo v. Sayre, 78 Pac. 874.
John F. Kunz, for Appellant:
It is conceded by the pleadings that the appellant is an involuntary trustee. Plaintiff has a
plain, speedy and adequate remedy at law, based upon the amount overcharged by the
appellant, upon an action as for money had and received. The only ground for complaint, and
the only cause of action set up, is an overcharge. The record admits the overcharge, and
shows an affirmative action upon the part of appellant to secure a modification of the
injunction to permit him to repay the excess. So far as the execution of the trust is concerned,
it has been executed, and the only grievance of which plaintiff can complain is the overcharge
made for the lots for which he applied. The same allegation would be good against a thief
who had actually stolen the money, and assuredly it cannot be said that a demand upon one
who it is alleged has wrongfully taken and wrongfully holds money constitutes an equitable
action to enforce a trust."
money constitutes an equitable action to enforce a trust. Austin v. Wilcoxen, 149 Cal. 24, 84
Pac. 417.
The action cannot be maintained by plaintiff of behalf of himself and all others similarly
situated. It should be carefully observed that this provision does not create any new rights of
action, nor enlarge any of those now existing. The suit cannot be sustained by one as the
representative of many others who really sue in his name, unless it could have been
maintained if all these many others had been regularly joined as co-plaintiffs, or unless it
could have been maintained by each one of them suing separately and for himself. Pomeroy's
Rem. & Rem. Rights, sec. 390; Carey v. Brown, 58 Cal. 180; Donovan v. Stevens, 179 Cal.
32, 175 Pac. 400.
This is an appeal from a judgment and amended judgment in favor of respondents, by
which the present district judge of the Seventh judicial district court of the State of Nevada, in
and for Esmeralda County, is declared to be the successor of the appellant, Theron Stevens, as
trustee of the Goldfield and South Goldfield town sites, Esmeralda County, Nevada, and
directing the latter to account to the former as such trustee and turn over to him all moneys
and funds pertaining to his trust. A temporary injunction issued on the filing of the complaint
was made permanent. An appeal is also taken from an order of the court denying a motion for
a new trial.
According to the allegations of the amended complaint, the respondents are residents of
the town of Goldfield, county of Esmeralda, State of Nevada, and brought this action in their
own right and behalf, and on behalf of all other persons similarly situated, in respect to the
matters and things alleged, who may desire to take advantage thereof.
The appellant, Thereon Stevens, since the 1st day of August, 1911, and up to the time of
the filing of the complaint, was a resident of the city of San Diego, State of California, and
prior to said time was a resident of the town of Goldfield, county of Esmeralda, State of
Nevada.
of California, and prior to said time was a resident of the town of Goldfield, county of
Esmeralda, State of Nevada. For about two years prior to and until the 1st day of January,
1911, said Stevens was one of the district judges of said court. The defendant John S. Cook &
Co. is a corporation, conducting a general banking business in Goldfield. The appellant, prior
to the 19th day of June, 1909, and until the 1st day of January, 1911, by virtue of his office as
district judge, was ex officio trustee for the inhabitants, citizens, and occupants of the town
site of Goldfield, county and state aforesaid, under and in pursuance of an act of Congress of
the United States, entitled An act for the relief of the inhabitants of cities and towns upon the
public lands, approved March 2, 1867 (14 Stat. 541), and also under an act of the legislature
of the State of Nevada (Stats. 1869, c. 28) entitled An act prescribing rules and regulations
for the execution of the trust arising under an act of Congress entitled An act for the relief of
inhabitants of cities and towns upon the public lands,' approved March 2, 1867, approved
February 20, 1869, together with all of the acts amendatory thereof and supplemental thereto.
Since the 1st day of January, 1911, the appellant has assumed and still assumes the right to
discharge and execute said trust, under the act of the legislature of the State of Nevada above
mentioned.
On the 19th day of June, 1909, in the execution of said trust, and as such judge and trustee,
the appellant entered, at the United States land office at Carson City, Nevada, for the use and
benefit and on behalf of the occupants and inhabitants thereof as the town site of Goldfield
and South Goldfield, certain tracts of land particularly described. On the 18th day of
November, 1909, patents for said lands were issued by the Untied States to appellant, judge
and trustee aforesaid, for the use and benefit of said inhabitants and occupants, which patents
were thereafter delivered to appellant and by him duly recorded. On the date of said entry
respondents were the sole owners, in sole possession of and entitled to the possession of
certain lots of land forming part of the tracts of land entered by and patented to the
appellant.
respondents were the sole owners, in sole possession of and entitled to the possession of
certain lots of land forming part of the tracts of land entered by and patented to the appellant.
Upon consideration of applications duly made appellant held and decided that respondents
were entitled, under the statutes of the United States and of the State of Nevada, to deeds, or a
deed, to the premises possessed by them as aforesaid, and advised them that a deed covering
all of said lots would be delivered to them upon their paying to appellant, as fees,
commissions, or other charges, the following amounts respectively: $9.50 for single lots,
conveyed by one deed, and $7.50 for all lots additional to the first, when more than one lot
was conveyed in a single deed.
It is alleged that respondent Elliott Goodrich paid the following amounts for his lots: For
lot 5, block 45, the sum of $9.50; for lot 4, block 49, the sum of $7; for lot 16, block 67, the
sum of $9.50being the total amount of $35.50 ($26) for all of said lots. The sums, so
demanded of respondent by appellant, before the delivery of said deeds, are, it is alleged, in
large part illegal, excessive, and more than appellant was entitled to charge and demand by
law; that the maximum amount which appellant was entitled in any event to demand Elliot
Goodrich was $5.50 for the first lot, and $3.50 for each of said additional lots included in said
deed, being in any event not exceeding $16 in the case of Elliott Goodrich, for said entire
deeds, and that the amount so demanded was in excess of that allowed by law in the case of
Elliott Goodrich, in the sum of $19.50. It is alleged that respondents, not as willing or
voluntary payments upon their part, but solely because such payment was positively
demanded and insisted upon by appellant as a prerequisite to the delivery of said deeds, and
because otherwise respondents would, by the wrongful act of the appellant, have been
deprived of evidence of their title to said lands, paid to appellant, in the case of Elliott
Goodrich, the sum of $35.50, and a like amount in the case of respondents and all other lot
owners receiving trustee deeds.
dents and all other lot owners receiving trustee deeds. Appellant, on the 15th day of February,
1910, delivered said deeds to respondent Elliott Goodrich, which he thereupon immediately
recorded.
It is alleged that subsequently the Supreme Court of the State of Nevada in certain
decisions held that the maximum amount that appellant could charge a lot owner for all
purposes connected with the delivery of a deed was the sum of $5.50 for the first lot and
$3.50 for each additional lot included in said deed. Subsequently to the decisions of the
supreme court, the respondent made a demand upon the appellant for a refund of the amount
received by him in consideration of the issuance of respondent's deeds, in accordance with the
law of the case as laid down by the supreme court. Upon such demand, the appellant
repeatedly admitted that in view of such decisions his said charges to respondent for the
delivery of said deeds were, to the extent of all amounts above $5.50 for the first lot, and
$3.50 for each additional lot, illegal and improper, and further expressed his willingness and
desire to refund to respondents and to all other person likewise situated all amounts so in
excess of law paid to him for town-site deeds, conditional only upon the dismissal from the
files of said district court an action then and now pending, entitled J. P. Camou v. Theron
Stevens, James Donovan, et al. In further answer to said demand of respondents, appellant
assured the agents and attorneys of the former that the funds received by him from the lot
owners of the town site of Goldfield had been preserved intact, and were being held as a trust
fund, and would be so held until all matters connected therewith were finally disposed of, and
further assured said agents and attorney that the pendency of the Camou case was all that
stood in the way of an immediate settlement of said matters, and that settlement would at any
time be made upon the dismissal of said case. Respondents have personal knowledge of the
fact that, aside from their own lots, as herein before referred to, at least 118 lot owners of said
town site, owning and claiming at least 230 lots, were required by appellant to pay for
said lots before delivery of their deeds the same relative amount or amounts charged to
and demanded of respondents, and that the aggregate of the amounts so demanded of
and paid by said persons for said lots was about the sum of $2,195, and that in respect to
said other persons and lots said appellant is under like legal obligation to repay the
excess so demanded and received.
owning and claiming at least 230 lots, were required by appellant to pay for said lots before
delivery of their deeds the same relative amount or amounts charged to and demanded of
respondents, and that the aggregate of the amounts so demanded of and paid by said persons
for said lots was about the sum of $2,195, and that in respect to said other persons and lots
said appellant is under like legal obligation to repay the excess so demanded and received.
It is further alleged that in addition to the persons and lots last mentioned the appellant
demanded and received a like illegal and unlawful amount for the delivery of deeds of 2,373
town lots of said town site, and to all of which the appellant is legally responsible for the
return to said lot owners of the amounts so illegally collected, and that the total amounts
received was about $24,728.50, all of which was illegal except at the rate of $5.50 for a first
lot and $3.50 for each additional lot included in deeds.
Prior to his change of residence from the town of Goldfield to the said city of San Diego,
Calif., appellant deposited with the defendant John S. Cook & Co., in the name of Theron
Stevens, as trustee, about the sum of $14,000, and that upon his change of residence, as
aforesaid, that sum, or about that sum, remained on deposit with the said banking company,
subject to the check or draft of appellant. Since his change of residence from Goldfield to San
Diego, and from time to time, and in varying amounts, appellant withdrew, by check, draft, or
otherwise, from said trust fund, so originally on deposit in said bank, upwards of $9,000
thereof, so that there remained at the time of the filing of the complaint only about $5,000 in
the county of Esmeralda. It is alleged that it is the intention of the trustee to further draw
checks or drafts on said deposit fund and remove the same from the jurisdiction of this court
and from the State of Nevada. Appellant is not the owner of any real or personal property in
the State of Nevada, and the only part or parcel of the proceeds of the sale of said town lots
still remaining within said county of Esmeralda, State of Nevada, is the sum on deposit in
the banking house of said defendant, John S. Cook & Co., and if the balance is permitted
to be withdrawn, the respondents and all lot owners similarly situated will be absolutely
without any legal or effective remedy for the recovery from said appellant of the amounts
of money so illegally demanded and received by him from them upon the delivery of said
deeds.
of said town lots still remaining within said county of Esmeralda, State of Nevada, is the sum
on deposit in the banking house of said defendant, John S. Cook & Co., and if the balance is
permitted to be withdrawn, the respondents and all lot owners similarly situated will be
absolutely without any legal or effective remedy for the recovery from said appellant of the
amounts of money so illegally demanded and received by him from them upon the delivery of
said deeds.
Appellant has ceased to be a resident of the State of Nevada and of the Seventh judicial
district or any other place or places in which his duties were or are to be exercised, and has
ceased to discharge his duties as such trustee for a greater period than three months, which
cessation was not caused by sickness, or absence from the state as provided by law. Appellant
has been absent from the state for a greater period than ninety days immediately preceding the
filing of the complaint, to wit, continuously from August 18, 1911, to the date of filing
thereof.
It is alleged that appellant is an involuntary trustee for all the funds and moneys so held by
him in said bank due and owing by him to lot owners for excess payments. It is also alleged
that the Hon. J. Emmett Walsh is the successor in the office of district judge of Theron
Stevens, and that as such successor has full power and authority to assume and complete the
execution of said town-site trust, under the laws of the United States and of the State of
Nevada, and has the power, upon an accounting being made by him of the funds and moneys
of said town-site trust, to make all necessary orders for the distribution of said fund to and
among those legally entitled thereto, and to give such notices to lot owners residing in
Esmeralda County, or the State of Nevada, or residing out of the State of Nevada, or
deceased, as are fit and proper, and to make such disposition of any part of said funds and
moneys that shall remain unclaimed or uncalled for, after due notice is given to lot owners as
aforesaid.
Judgment is asked that the court declare said office of trustee formerly held by appellant to
have been vacated, and that a vacancy now exists therein, and that to fill the vacancy so
existing said court and the judge thereof assume said trust and complete the execution
thereof, under the town-site statutes of the United States and of the State of Nevada; that
pending the final hearing of this action the appellant be restrained and enjoined from in any
manner, by check, draft, bill of exchange, order, or other paper, or instrument, withdrawing or
attempting to withdraw from the custody of the said defendant the said John S. Cook & Co.
any further or other sums of money whatsoever, and also from in any manner disposing or
attempting to dispose of said funds on deposit in said bank, and that the defendant John S.
Cook & Co. be likewise restrained; that an order of this court be made directing appellant to
segregate the funds held by him on deposit in the bank of John S. Cook & Co., Goldfield,
Nevada, and in the American National Bank at San Diego, Calif., and by such segregation
show the part he holds as involuntary trustee, and the part he held as town-site trustee,
immediately before he departed from the State of Nevada, and made his residence in the city
of San Diego, State of California, as aforesaid; that an order of court be made, directing
appellant to account as involuntary trustee for all the moneys he holds collected from lot
owners as excess payments, and for general relief.
The defendant Theron Stevens filed an answer, containing, in substance, the following
denials and allegations: Denies that, as trustee, he was entitled to demand and receive for lots
conveyed to the plaintiff Goodrich a sum not to exceed $16, and denies that the sum
demanded by him was in excess of that allowed by the law, denies that he, either individually
or as trustee, demanded any payment of any sum of money, or insisted upon such payment by
the plaintiff Goodrich, and denies that the purchase price of his lots was not willingly and
voluntarily paid by the plaintiff Goodrich, and that by any wrongful act of the trustee the
said plaintiff would have been deprived of the evidence of his title.
willingly and voluntarily paid by the plaintiff Goodrich, and that by any wrongful act of the
trustee the said plaintiff would have been deprived of the evidence of his title. The answer
denies that a demand was made upon the said trustee for a refund of any sum whatever by the
plaintiff Goodrich, or his agents or attorneys, and denies that he, at any time, assured the
agents or attorneys of said plaintiff that any sum held by him would be preserved intact as a
trust fund. The answer admits that said trustee stated to the attorney for the plaintiff Goodrich
that so much of the funds as was claimed to be illegally collected from the lot claimants was
held as a trust fund, and would continue to be so held as a trust fund until the issues raised in
a certain suit then pending in the district court of Nevada, in which one J. P. Camou was
plaintiff and the said Theron Stevens, as trustee, and James Donovan, were defendants, could
be finally disposed of, and the answer alleges that said case has not been determined; denies
that the plaintiff Goodrich has personal knowledge of the fact that 118 lot owners of said
town site were, by the trustee, required to pay for said lots the same relative amounts as
charged and demanded of plaintiff Goodrich, and denies that the said trustee is under any
legal obligation to pay the excess so demanded or received, and that the said trustee
demanded or received any sum whatever from the lot claimants in excess of the fees paid him
as trustee of said town sites; the said defendant Theron Stevens further denies that as trustee
he demanded or received a like or illegal or unlawful amount for the delivery of deeds to
2,373 town lots of said town site, and that he is legally responsible for the return of any sum
whatever to said lot owners; denies that the defendant Theron Stevens received about the sum
of $24,728.50 on said lots, or any sum whatever, except such portion of the fund collected as
he was legally entitled to receive; denies that the plaintiff Goodrich is or will be deprived of
an effective remedy for the recovery from the said defendant of any sum of money that
may be due him.
remedy for the recovery from the said defendant of any sum of money that may be due him.
As a further and affirmative defense to said complaint the answer alleges certain formal
allegations concerning the defendant's position as district judge, his application as trustee for
patents to the lands referred to, and certain other and sundry matters as heretofore stated. In
addition, however, the answer affirmatively sets forth that included in the sum of $9.50 per
lot was the sum of $3.45 per lot, which was assessed against the same as attorney's fees to pay
one James Donovan for services in representing the lot claimants, and that in the judgment of
the trustee the said fee was reasonable and was proper to be taxed under and by virtue of
section 7 of the acts of the legislature of the State of Nevada, as herein referred to; that when
the deed were ready for delivery for defendant, as trustee, set a notice to several claimants,
stating that deeds would be delivered upon the payment of the fees and charges so assessed;
that the original plaintiff in this action, Elliott Goodrich, had filed upon and deeds were
prepared for four lots in said town site, and said plaintiff Goodrich received the notice
aforesaid; that on the 16th day of February, 1910, the said Goodrich paid to the said trustee
the sum of $35.50, being the sum which had been assessed upon his said land, and a deed was
delivered by the said trustee to the said Goodrich; that at the time of payment and delivery of
deed the said Goodrich offered no objection whatever to the amount of charge, and at no time
until the beginning of this action was defendant aware that said Goodrich was in any manner
dissatisfied with the amount of the fees and charges so collected, and that the said Goodrich
paid said sum voluntarily and willingly, and seemed to be satisfied that the charges were
reasonable and just; that at the said time neither the legality nor the reasonableness of the fees
and charges so assessed against said lots was questioned by any person or persons, and that
all amounts had been paid freely and voluntarily and without objection; that on the 22d
day of February, 1910, this defendant, as such trustee, paid to James Donovan, as
attorney's fees, $1,000, which was his portion of the fees and charges which had been
collected to said date, being the sum of $3.45 per lot, and answer further alleges that if
the plaintiff Goodrich in this action had a valid claim against any one for the refund of the
said sum of $3.45 per lot, it is against the said James Donovan, who received the money
that was paid to the trustee by the said Goodrich with full knowledge of the facts and
without any objection.
all amounts had been paid freely and voluntarily and without objection; that on the 22d day of
February, 1910, this defendant, as such trustee, paid to James Donovan, as attorney's fees,
$1,000, which was his portion of the fees and charges which had been collected to said date,
being the sum of $3.45 per lot, and answer further alleges that if the plaintiff Goodrich in this
action had a valid claim against any one for the refund of the said sum of $3.45 per lot, it is
against the said James Donovan, who received the money that was paid to the trustee by the
said Goodrich with full knowledge of the facts and without any objection.
For a further and third defense the answer alleges that the district court of the Seventh
judicial district of the State of Nevada, in and for the county of Esmeralda, has no jurisdiction
of the subject-matter of this action. The prayer is that the action be dismissed and the
injunction dissolved.
So far as the record discloses, the trial court made no findings, but filed a written opinion,
and ordered judgment in substance as heretofore indicated.
It is contended that the court was without jurisdiction to render such judgment, and in that
contention we concur. An examination of the written opinion of the trial judge reveals that
the theory upon which he rendered judgment was that appellant, in relation to the payments
made to him for deeds to town lots in excess of the statutory charges, was a town-site trustee,
and, having absented himself from the state for more than the statutory period of ninety days,
it was lawful for the incumbent judge to assume said trust and execute it. This is a mistaken
theory. An examination of the statutes alleged in the amended complaint under which
appellant acted in the capacity of town-site trustee, in the light of the facts of this case, reveals
that nothing remains to be done by him in pursuance of that trust. The trust has been fully
executed. In administering it, appellant demanded and received the excess payments under
the mistaken notion that it was lawful for him to do so.
under the mistaken notion that it was lawful for him to do so. His acts in this respect were not
done in pursuance of his duties or authority as a town-site trustee, and were null and void.
Notwithstanding the entire good faith of the appellant in exacting payments for deeds to
town-site property beyond the amounts allowed by law, he has nevertheless come wrongfully
into the possession of funds belonging to others. He has obtained title to property which it is
inequitable for him to hold, and becomes therefore, by operation of law, a trustee of the
money so gained and held for the benefit for the persons who would otherwise have it. The
same equitable principle is involved as was applied by the Supreme Court of California in
Donovan v. Stevens, 179 Cal. 32, 175 Pac. 400, in which case this appellant was declared and
held to be an involuntary trustee for the inhabitants of Goldfield and South Goldfield.
In California, trusts are divided by statute into voluntary and involuntary trusts. Under this
classification the former are express trusts, and the latter implied trusts. In the case, supra,
Donovan had acted as an attorney for the occupants of the lands embraced within the town of
Goldfield in procuring a patent for said lands, under a contract by which they agreed to pay
him $10 per lot. The appellant, as town-site trustee, deeming the amount excessive, submitted
the question of a proper fee to four arbitrators, who determined that the value of Donovan's
services was $3.45 per lot. This amount was apportioned and assessed by the appellant
against each lot. The court was of the opinion that the arbitration was not the making of a new
contract between the attorney and his alleged clients, but merely the fixing of an amount
which the trustee recognized as a just compensation, and which he believed he had the power
to asses under the statute.
He was mistaken in this, said the court, and collected too great a sum of money. This
makes him an involuntary trustee as to the excess, not for plaintiff, but for the inhabitants
of Goldfield and South Goldfield."
involuntary trustee as to the excess, not for plaintiff, but for the inhabitants of Goldfield and
South Goldfield.
This decision is squarely in point in the present case as to the character of the trust
impressed upon the funds held by appellant and belonging to lot owners. We have in this state
no such statutory division of trusts, but under well-established principles the trust which
appellant holds falls within the classification of involuntary trusts. It is a constructive trust,
entirely independent of the trust which was imposed upon him by the statute, and is raised by
the circumstances under which he received and holds the funds. There is no statutory
requirement or other rule of law requiring him as a trustee of a constructive trust to account or
turn over the trust funds in his possession to the district judge of said district.
Counsel for respondents in his brief sets out a number of grounds of equity jurisdiction
upon which he claims this action is based, and discusses them at length. It is sufficient to say
these principles, while correct in the abstract, are not applicable in this case, and cannot be
invoked to uphold the judgment in this case. The court was without authority to render it.
Appellant's liability runs to the lot owners, and cannot be relieved by payment to another.
This liability he appears willing to discharge. In fact, at the time of the trial of the case
counsel for appellant offered to permit judgment to be entered in favor of respondents for the
rebate to which they were entitled, which was not accepted.
The judgment is reversed.
Sanders, C. J.: I concur.
Coleman, J., did not hear the argument in this case nor participate in the consideration and
determination thereof.
____________
46 Nev. 170, 170 (1922) Barrett v. Franke
[No. 2537]
MINNIE B. BARRETT, and Her Husband, C.H. BARRETT, Respondents, v. F.F. FRANKE,
as Administrator of the Estate of James C. Lofthouse, Deceased; A.W. LOFTHOUSE,
GEORGE LOFTHOUSE, RALPH LOFTHOUSE, PAUL LOFTHOUSE, CHARLES
LOFTHOUSE, Mrs. MARTHA EVERETT, Mrs. VICTORIA TANNEHILL, and Her
Husband, F.M. TANNEHILL; Mrs. LOTTIE FRANKE, and Her Husband, F.F.
FRANKE; LIZZIE SANFORD, and Her Husband, IRVIN SANFORD; AUGUSTINO
MUSSI, JOHN MUSSI, NATHANIEL MUSSI, Et Al., Appellants.
[208 Pac. 435]
1. Husband and WifeEquitable Right Acquired Before and Perfected After Marriage
Creates Separate and Not Community Property.
In the absence of a showing that any part of the purchase price was paid with community funds,
property to which one spouse acquires an equitable right before marriage is separate property, though
such right is not perfected and part of the purchase price not paid until after marriage; and in any event
the property would be a community only in the proportion that the purchase price is contributed by the
community.
2. Husband and WifeSeparate Property Presumed to Retain that Character.
The right of the spouses in their separate property is as secure as the right in their community, and,
where property was once of a separate character, it is presumed to retain that character until there is some
direct evidence to the contrary, and the mere fact that part of its purchase money was paid after marriage
is not sufficient to show the payment was from community funds.
3. Husband and WifeBurden Is Upon Party Claiming Separate or Community Property to
Overthrow Presumption of its Established Character.
Property acquired during coverture presumably belongs to the community, the burden being on the
party claiming it as separate property to overthrow this presumption and establish his claim by clear
proof; and, conversely, the burden is upon the party claiming a community to show that the purchase
price of property of a separate character was paid out of the community funds.
4. Husband and WifeProfits from Separate Property Managed by Both Spouses Belong to
Its Owner.
The profits from separate property which accrue mainly from the property, rather than the joint efforts
of the husband and wife, or either of them, belong to the owner of the property, although the labor and
skill of both may have been given to its management.
5. Husband and WifeJoinder of Both Spouses in Land Contract Not Evidence of
Community Interest.
That both spouses joined as grantors in a contract to sell lands, which recited that payment was to be
made to both, does not estop the husband from asserting that the land is separate property, and, since at
most it merely indicates the husband's belief or opinion as to the character of the property, is little or no
evidence of a community interest, as the character of the property is, under Rev. Laws, 2155, 2156, 2168,
and 2169, determined by the time and manner in which it is acquired.
6. Husband and WifeCommingling of Funds such as to Establish Community Interest Not
Shown by the Fact that Spouses Carried Joint Bank Account.
The mere fact that their bank account is carried in the name of both spouses is not sufficient to show a
commingling of funds such as to establish the character of real estate as either separate or community
property, where it was paid for by drawing on the bank account.
7. Husband and WifeProceeds from Sale of Land Purchased Before, and Paid for Partly
After, Marriage, Held Not to Be Community Funds.
A husband initiated a right to acquire land and made part payment thereon prior to marriage and
acquired complete title to and sold the land during coverture, and also during coverture purchased two
tracts of land for the payment for which moneys received from the sale of the first tract were applied.
There was no evidence that community funds or separate funds of the wife or their commingled funds
entered into the payment of the two tracts, other than that the wife rendered the husband household
services when living upon the tract sold, and no evidence of profits from this land while jointly managed
by husband and wife. Held, that the two tracts were the husband's separate property, notwithstanding both
spouses joined in the agreement to sell the first tract and the wife assisted in its management, since the
wife had not discharged the burden of showing that property separate in character was paid for with
community or her separate funds.
Appeal from the Eighth Judicial District Court, Churchill County; Thomas F. Moran,
Judge.
Action to quiet title my Minnie B. Barrett and C.H. Barrett, her husband, against F.F.
Franke, administrator, and others. From a judgment and order overruling motion for new trial,
defendants appeal. Reversed and remanded.
A.L. Haight, for Appellants:
The property in controversy became the separate property of James C. Lofthouse through
the initiation of the title thereto by him prior to his marriage, in the absence of a showing that
community funds were employed in its purchase. As a general rule, the character of title to
property as separate or community depends upon the existence or nonexistence of the
marriage at the time of the incipiency of the right by virtue of which the title is finally
extended. 5 R.C.L. 833. Property purchased by a contract entered into before marriage, but
not fully paid for until after marriage, will generally be separate property, especially where
the balance due is not paid for with community funds. 21 Cyc. 1641.
To show any community interest in the property, the burden is on the plaintiffs to
affirmatively prove that the payments made on the purchase price during coverture where
made with community funds. Medlenka v. Downing, 59 Tex. 32; McDougal v. Bradford, 80
Tex. 558; Morgan v. Lones, 22 Pac. 253.
The property having been purchased with a portion of the proceeds of Lofthouse's separate
property, it became his separate property, continued so to be until the time of his death, and
thereupon descended to his heirs at law. In Re Pepper's Estate, 112 Pac. 62.
Cooke, French & Stoddard, for Respondents:
The property of J. C. Lofthouse in controversy was community property, and the judgment
of the lower court should be affirmed. It was acquired after marriage, and before divorce, and
is therefore prima facie community property. Rev. Laws, 2156; In Re Williams Estate, 161
Pac. 741; Hill v. Gardner, 77 Pac. 808. It is not necessary to prove that property is the
product of the joint effort of husband and wife; if it is acquired after marriage, it belongs
to the community.
is not necessary to prove that property is the product of the joint effort of husband and wife; if
it is acquired after marriage, it belongs to the community. Lake v. Bender, 18 Nev. 361, 4
Pac. 711. A deed to either spouse during the coverture presumptively makes community
property. 21 Cyc. 1645. In cases of doubt, the presumption is always in favor of property
being community property. 21 Cyc. 1650; Meyer v. Kinzer, 12 Cal. 247; Cooke v. Bremond,
86 Tex. 636.
There was a voluntary commingling of separate with community funds. Dimmick v.
Dimmick, 30 Pac. 547; In Re Buchanan's Estate, 154 Pac. 129. Funds belonging to either
party individually, on marriage, when commingled with community property so that they
cannot be traced and segregated therefrom, become community estate. Reid v. Reid, 44 Pac.
564; Brown v. Lockhart, 71 Pac. 1086; Ballinger on Community Property, sec. 167; In Re
Warner's Estate, 140 Pac. 583; Laws v. Ross, 194 Pac. 465.
In the absence of a showing as to the nature or extent of an interest, equity will presume it
was an equal interest, because it is a favorite maxim of equity that equity presumes an
equality of interest. 21 C. J. 206-209. Tenants in common are presumed to hold an equal
interest when deed or other title paper to them is silent as to the extent of their interests. 38
Cyc. 74; Keuper v. Mette, 88 N. E. 218; In Re McConnell, 197 Fed. 438; Campau v. Campau,
5 N. W. 1062; Tuppela v. Mining Co., 267 Fed. 753; Commonwealth v. Bracken, 32 S. W.
609; Johnson v. Jackson, 114 S. W. 260; 30 Cyc. 693.
Joint deposit of moneys in bank is tacit admission that such moneys belonged to husband
and wife in equal shares; it is a strong circumstance indicating joint ownership. 7 C. J. 640;
O'Connor v. Dunnigan, 143 N.Y.S. 383. Joint deposit payable to either party, with possession
of pass-book, is strong evidence of ownership of interest in deposit in the party having
possession of pass-book. 3 R.C.L. 155; Mack v. Bank, 50 Hun, 477; Metropolitan Bank v.
Murphy, 31 L.R.A. 454.
This is an action to quiet title to three tracts of land situate in Churchill County, Nevada.
The trial court found that the respondent Minnie B. Barrett was the owner, in the
possession, and entitled to the possession, of an undivided half-interest in two of said tracts of
land, and of an undivided 82/100 interest in one of said tracts. Judgment was entered
accordingly. From the judgment and an order overruling a motion for a new trial, this appeal
is taken.
Respondent Minnie B. Barrett was formerly the wife of said James C. Lofthouse. They
intermarried November 8, 1908, and were divorced December 1, 1916. The question
presented to trial court for determination was whether the property involved was community
or separate property, and it was on the ground that the property belonged to the community
that the foregoing finding was made. Is the evidence sufficient to support the finding?
Prior to his marriage and on July 9, 1907, James C. Lofthouse entered into a written
agreement with one Warren W. Williams, for the purchase of property known as the Moore
ranch, for the price of $8,766, payable in annual installments of $1,461 plus interest; the first
installment being payable on the 2d day of January, 1908. Thereafter, on March 31, 1910,
Williams executed a deed granting the property to Lofthouse. On April 1, 1910, Lofthouse
and his wife entered into a written agreement with one Moore for the sale of this property for
the sum of $20,000, the last installment of which was paid June 1, 1911. Subsequently, and
prior to the divorce, two of the tracts of land affected by this action were purchased. James C.
Lofthouse died intestate February 15, 1918, without having parted with title to the lands
affected by this action. The necessary conclusion to be drawn from the facts stated is that
Lofthouse initiated a right to acquire the Moore ranch previous to his marriage by his contract
with Williams, which was developed into a complete title subsequently to his marriage.
which was developed into a complete title subsequently to his marriage.
It is contended by counsel for appellants that, as the title to this property was initiated
before marriage, and that as the evidence fails to disclose that any community funds, or
separate funds of the wife, were used in its purchase, it was therefore the separate property of
the husband. He further contends that, as the evidence shows that after the balance due
Williams on the purchase price of the property had been discharged, certain of the moneys
received from Mr. Moore on account of the sale of the Moore ranch were invested by
Lofthouse in two of the tracts of land involved in this action, such property thereby became
his separate property, which, upon his death, vested in his heirs at law. As to the third tract, it
is contended that, as title to it was initiated prior to his marriage, it falls within the rule stated
in the first contention, and is therefore separate property.
1. We are of the opinion that the rule of law asserted is well established and is applicable
to the facts of this case. It is thus stated in 5 R. C. L. 834:
Property to which one spouse has acquired an equitable right before marriage is separate
property, though such right is not perfected until after marriage. Thus property purchased by
one spouse before marriage is separate property though the deed therefor is not executed and
delivered until after marriage, and this is true although a part of the purchase price is not paid
until after marriage, in the absence of a showing that any part of the balance was paid with
community funds. In any event it would be community property only to the extent and in the
proportion that the purchase price is contributed by the community.
In Guye v. Guye, 63 Wash. 340, 115 Pac. 731, 37 L. R. A. (N.S.) 186, the husband had
acquired an equitable interest in a lot of land prior to his marriage. A deed to this property
was executed to him nearly one year after his marriage.
year after his marriage. The appellant, his surviving wife, based her claim of a community in
the land on the fact that the deed to the same passed after her marriage with Guye, and the
presumption arising from the manner in which business is ordinarily conducted that the
purchase price was paid at the time the deed was delivered. The court was of the opinion that
the evidence showed that some part of the purchase price had been paid prior to marriage, and
stated that had it been shown that the balance of the purchase price had been paid with
community funds after the marriage, and it might well be that under the doctrine of former
rulings of the court, the property would have been community property to the extent and in
the proportion that the consideration is furnished by the community, the spouse supplying the
separate funds having a separate interest in the property in proportion to the amount of his or
her investment; but clearly the entire property could not be community property. But, said
the court, there is no evidence in the record that community funds entered into the purchase
price of the property. Therefore, for the want of some rule with which to measure such
interest, if for no other, the court cannot hold that the community had any interest in this
property.
2. Speaking of the degree of proof necessary in such cases, the court said:
Moreover, the right of the spouses in their separate property is as sacred as is the right in
their community property, and when it is once made to appear that property was once of a
separate character, it will be presumed that it maintains that character until some direct
evidence to the contrary is made to appear.
In Medlenka v. Downing, 59 Tex. 33, it was held that the fact that a portion of the
purchase money for the land in question was paid after a second marriage was not sufficient
evidence that the money so paid was the community property of the parties to the second
marriage.
3. This court, in Lake v. Bender, 18 Nev. 361, 4 Pac.
711, 7 Pac. 74, laid down the rule that property acquired during coverture presumably belongs
to the community; the burden being on the party claiming it as separate property to overthrow
this presumption and establish this claim by clear and satisfactory proof. We perceive no
sound reason why the same rule of evidence should not be applied when a party undertakes to
show that the purchase price of property of a separate character was paid out of community
funds. Examining the evidence in the light of this rule, it does not appear that any community
funds, or separate funds of the wife, were used in the purchase of the Moore ranch.
It appears from the evidence that shortly after her marriage, the respondent Mrs. Barrett
had about $875, which was her separate property. Soon after the marriage she and her
husband moved to the Moore ranch, and she remained there for about two years. She did the
cooking and housework and other general work, and raised chickens and turkeys and made
butter. Later on they moved to another smaller ranch, where she did about the same character
of work. From this place they moved into the town of Fallon, and she kept roomers and
boarders.
4. It is the contention of respondents that the profits from farming the Moore ranch were
largely the fruits of Mrs. Barrett's labor, and were used in paying the purchase price of the
property. In Lake v. Bender, supra, this court held that the profits of separate property which
accrued mainly from the property, rather than the joint efforts of a husband and wife, or either
of them, belong to the owner of the property, although the labor and skill of both may have
been given to the business. It is unnecessary to determine what effect this principle could
have in this case, for there is not evidence that there were any profits from the Moore ranch
during the time the husband and wife were managing the property and before full payment
was made to Williams. Hay was raised on the ranch, and it appears that there is a credit on the
purchase price of hay in the sum of $546.70.
of hay in the sum of $546.70. But this credit was given only four days after the marriage.
There is also a credit made January 18, 1908, by a mortgage taken from one Paul Lofthouse
on his house for the sum of $1,000. It is urged by respondents that this was a loan by Paul
Lofthouse to James C. Lofthouse and was subsequently repaid to the former from community
funds. There is no substantial evidence upon which to base this contention. The nature of the
transaction is entirely speculative. The fact established, however, is that it was a payment on
the purchase price before marriage. As a matter of fact, the major part of the purchase price to
Williams and interest thereon in the sum of $7,562.51 was paid on June 4, 1910, and out of
the proceeds of the sale of the property to Moore. There is no evidence that the moneys
belonging to Mrs. Barrett were used in paying for the property. The only evidence as to the
use of the latter funds is found in the testimony of Mrs. Barrett's mother. When asked
concerning the disposition of these moneys, she said: She bought stuff for the house, and
clothes, and one thing another.
5. The lower court, as appears from its written decision, which we find in the record, was
of opinion that certain matters contained in the agreement for the sale of the Moore ranch to
Moore strongly tend to show that Lofthouse recognized that the property affected by the
agreement was community property. Respondents also stress this point. The recitals in the
agreement which they claim have this effect are, substantially, that the husband and wife
joined in the agreement to sell; that payment was to be made to both parties; that deposit of
money to the credit of the parties of the first part or either of them shall be equivalent to the
payment of any installments; that said parties of the first part agree to pay all taxes and
assessments that shall be taxed or assessed on said premises; that in case of default in
payments, all previous installments shall be and remain the property of the said first parties;
that if the parties of the first part fail in certain respects enumerated in the contract, or if
their title prove incumbered or otherwise not marketable, the party of the second part
may recover any and all installments paid or may sue for specific performance, or for
perfect title or for damages.
if the parties of the first part fail in certain respects enumerated in the contract, or if their title
prove incumbered or otherwise not marketable, the party of the second part may recover any
and all installments paid or may sue for specific performance, or for perfect title or for
damages. Counsel for respondents argue this point at length, and earnestly contend that the
clauses mentioned are of great weight, and might well be held to constitute an estoppel. They
do not, in our opinion, include the necessary elements of estoppel, and as evidence are of
little, if any, force. It is not unusualin fact, it is the general rulefor a purchaser of
property to require both spouses to join in the conveyance or contract of sale. Any careful
lawyer or conveyancer will advise such a requirement to a prospective purchaser, regardless
of whether the property affected is community or separate.
The effect of such a transaction as bearing upon the character of property, whether
community or separate, was under consideration in Guye v. Guye, supra, and upon the
question the court said:
Nor do we think the fact that the spouses have joined in mortgaging property sufficient
evidence on which to found a claim that the property mortgaged is community property.
While the statute allows a husband or wife to sell and encumber his or her separate property,
yet no prudent purchaser or mortgagee will ever take the separate deed or mortgage of a
married man or married woman even when the other spouse sits by and disclaims interest.
Such a deed or mortgage always requires explanation in subsequent dealings with the
property whenever either of them forms a part of the chain of title, rendering the property less
easy of disposition that it otherwise would be. The fact that both spouses joined in the
encumbrances put on the property in this instance is, therefore, little or no evidence that the
property was community rather than separate property.
Respondents do not contend that the recitals of the agreement or other evidence show a
gift of the husband to the community, but, as previously stated, maintain that the recitals
show a recognition by him of her interest in the property. We cannot say that these recitals
amount to such a recognition. At the most they merely indicate his belief or opinion as to the
character of the property. The opinion of either spouse as to whether property is separate or
community is of no weight whatever. Its character, in these respects, is determined by the
time and manner in which it is acquired. Sections 2155, 2156, 2168, 2169, Revised Laws of
Nevada. On the effect of the opinion of a spouse as evidence of the separate or community
character of the property, the court, in Re Pepper's Estate, 158 Cal. 619, 112 Pac. 62, 31
L.R.A. (N.S.) 1092, said:
Whether the property was community or separate, was a question of law, depending on
the manner and time of its acquisition. The opinion of Pepper [the husband] on this legal
question was entitled to no weight.
6. The evidence does not disclose any commingling of funds, as insisted by respondents.
Mrs. Barrett's separate funds were disposed of in the manner heretofore indicated, as shown
by the testimony of her mother, and the mere fact that the account with the Churchill County
Bank was carried in the name of Mr. and Mrs. J. C. Lofthouse is not sufficient to sustain this
contention. It appears that the wife sometimes paid the men who worked upon the ranch, and
this manner of carrying the account in the bank is entirely consistent with the theory that it
was for the convenience of both parties in checking upon the account.
7. A portion of the proceeds of the Moore ranch are clearly traceable to and constitute the
full purchase price of two of the tracts of land affected by this action. As the Moore ranch was
the separate property of J. C. Lofthouse, these two tracts of land therefore, under a
well-established principle, also became his separate property.
well-established principle, also became his separate property. The third piece of land involved
was the separate property of J. C. Lofthouse, for the same reasons given as to the Moore
ranch. Title to it was initiated by Lofthouse prior to his marriage, by a contract of sale. Part of
the purchase price was also paid before marriage, and there is no evidence that any separate
funds of the wife or any community funds were used to complete the purchase.
The judgment of the lower court is reversed, and the case remanded.
____________
46 Nev. 181, 181 (1922) In Re Lavendol's Estate
[No. 2539]
In the Matter of the Estate of IRVING C.
LAVENDOL, Deceased.
GRACE H. THOMPSON, Appellant, v. ALICE W. LAVENDOL and LEONARD L.
LAVENDOL, Respondents.
[209 Pac. 237]
1. Executors and AdministratorsInsurance Whose Annual Premiums Do Not Exceed $500
Exempt, and Properly Set Aside, Notwithstanding Gift Thereof by Will.
Under Rev. Laws, 5288, as amended by Stats. 1920-21, p. 22, providing that all money from life
insurance which at the annual premium paid shall not exceed $500 is exempt from execution, and Rev.
Laws, 5957, providing that a judge may, in administering an estate, set apart for the use of the family of
the deceased, all personal property exempt by law from execution, and that the property so set apart shall
not be subject to administration, where the only property left by a decedent was the proceeds of life
policies whose annual premium did not exceed the specified amount, setting such proceeds apart for the
use of decedent's wife and minor son was proper, notwithstanding his will bequeathing it to another,
executed in pursuance of section 6202, providing that every person over the age of 18 years of sound
mind may dispose of his property by will.
2. StatutesIn Case of Ambiguity, Construction Adopted Should Accord with Intent and
Meaning of all Statutes on the Subject Under Consideration.
If there by any ambiguity of indefinite expressions found in statutes, it is incumbent on the courts to
adopt that construction which best accords with the true intent and meaning of all the statutes touching
the subject under consideration.
3. Executors and AdministratorsStatutes Securing Rights of Family of Deceased in
Insurance on Life of Decedent To Be liberally Construed.
Rev. Laws, 5957, providing that during the administration of an estate the court may set apart for the
use of the family of the deceased all personal property exempt by law from execution, and section 5288,
as amended by Stats. 1920-21, p. 22, providing that all proceeds from life insurance at the annual
premium paid to not exceed $500 shall be exempt from execution, create a new right and confer a special
privilege, and will be liberally construed, where proper case arises for which a statute makes provision.
4. Executors and AdministratorsAllowance for Support of Widow Out of Estate May Be
Made Only when Exempt Property Set Apart by Law Is Not Sufficient.
Under Rev. Laws, 5958, providing that if the whole property exempt by law is set apart, and is not
sufficient for the support of the widow, child, or children, the court shall make allowance out of the estate
for their support during the settlement of the estate, the court may not make an allowance, unless the
whole property set apart by law is not sufficient for the support of the widow, child, or children.
In the Matter of the Estate of Irving C. Lavendol, Deceased. From a judgment denying
petitions of Leonard L. Lavendol and Alice White Lavendol, respectively the son and widow
of Irving C. Lavendol, deceased, asking that money from insurance on the life of the deceased
be set apart to them, the named petitioners appeal; and from a judgment that the will of the
deceased created a trust in favor of Leonard L. Lavendol, Grace H. Thompson appeals.
Remanded, with directions. Petition for rehearing denied.
Ayers & Gardiner, for Appellants:
A will must be construed so as to carry out the intention of the testator, and, when this
intention is ascertained, the will is entitled to a liberal construction to carry out that intention.
The court should put itself in the position of the testator when he wrote the will, and all the
circumstances which surrounded the testator are admissible for that purpose. 40 Cyc.
1386-1388, 1392, 1393.
The trust is sufficiently definite. Colton v. Colton, 127 U.S. 300. The intention of the
testator expressed in his will shall prevail, it is consistent with the rules of law. Smith v.
Bell, 31 U.S. 68.
The power of testamentary disposition of property, as conferred and defined by the
statute, is not paramount, but is subordinate to the authority conferred upon the probate court
to appropriate the property for the support of the family of the testator, and for a homestead
for the widow and minor child or children, as well as for the payment of debts of the estate.
Sulzberger v. Sulzberger, 50 Cal. 385. It seems to be generally held that the statutory
allowances must come from all the property belonging to the decedent, notwithstanding
specific or general bequests elsewhere; that the widow's allowance or claim to exempt
property takes precedence over the claims of legatees and distributees, and of all other claims
against the estate of her deceased husband, except expenses of administration, last illness,
funeral charges, and tax liens. 18 cyc. 386, 387; Miller v. Steppen, 32 Mich. 194; Glenn v.
Gunn, 88 Mo. App. 442.
It is within the power of the legislature to declare what property shall be exempt, and we
think the language of the statute is too plain to call for controversy. Flood v. Libby, 80 Pac.
533; Coats v. Worthy, 17 South. 606; Dreyfus v. Barton, 54 South. 254.
Decedent is presumed to have known the law; to have known the provision that proceeds
of insurance payable to his estate would go to the widow and minor as property exempt from
execution. There can be no question that, as the statute was in force at the time of the taking
out of the policy, the intention of the deceased must be presumed to have been that his heirs
should take the money. Such being the case, the money at no time became a part of the estate
of the deceased, or subject to the claims of his creditors. Farmers' State Bank v. Smith, 162
N. W. 303.
H.V. Morehouse, for respondents:
The provisions of the will do not create a trust. Grace H. Thompson is not created a trustee
by the will, but she is the sole legatee, and the gift is made to her without any restrictions. A
will must be construed according to the intent of the testator. It is plain that testator intended
that Grace H. Thompson should take the whole estate as her own. It will be agreed on all
sides that where the intention of the testator is to leave the whole subject, as pure matter of
discretion, to the good will and pleasure of the party enjoying his confidence and favor, and
where his expressions of devise are intended as mere moral suggestions to excite and aid that
discretion, but not absolutely to control and govern it, there the language cannot and ought
not to be held to create a trust. Hunt v. Hunt, 11 Nev. 442. In order to make him a trustee it
must appear that the testator intended to impose an imperative obligation upon him, and for
that purpose used words which include the exercise of discretion or option in reference to the
act in question. Estate of Marti, 61 Pac. 964; McDuffie v. Montgomery, 128 Fed. 105. No
trust can be implied merely from words indicating the motive which induced the gift.
Randall v. Randall, 25 Am. St. 373; Pomery Eq. Jur. 3d ed. vol. 3, sec. 1016; Floyd v. Davis,
138 Am. St. 133; Foose v. Whitmore, 82 N. Y. 405; Ellis v. Ellis, 15 Ala. 296; Burns v.
Burns, 137 Fed. 781.
If there is any doubt whether a testator intended words of advise or recommendation to
narrow an otherwise free and unfettered devise or bequest, the courts incline in favor of the
absolute title to the devisee or legatee. Orth v. Orth, 145 Ind. 184; Burrett v. Marsh, 126
Mass. 213.
In order to create a precatory trust, the words used must be such that it will appear
therefrom that they were intended in an imperative sense, and that both the subject and the
object of the recommendation or wish are certain. McDuffie v. Montgomery, 128 Fed. 105;
Mills v. Newberry, 112 Ill. 123; Warner v. Bates, 98 Mass.
Mass. 274; Bristol v. Austin, 40 Conn. 438; Hughes v. Fitzgerald, 60 Atl. 694; Bohon v.
Barrett, 79 Ky. 378; Young v. Egan, 10 La. Ann. 415; Know v. Know, 59 Wis. 172.
The words sole beneficiary exclude all other beneficiaries or benefits under the will, and
destroy any idea of a trust. Boyle v. Boyle, 152 Pa. St. 108; In Re Parcell, 138 Pac. 708;
Carter v. Strickland, 165 N. C. 69.
The insurance policy is no part of the will, and cannot be used to modify or explain the
intent of the testator in his will. In construing a will, effect is to be given to the intention of
the testator as disclosed in the will, and not that manifested by some other paper not a part of
the will or by previous declaration. Zimmerman v. Hafer, 32 Atl. 316.
In order to create a precatory trust, the words must be such that it will appear from them
that they were intended in an imperative sense, and that both the subject and the object of the
recommendation or wish is certain. 106 Am. St. 506, note; McDuffie v. Montgomery, 128
Fed. 105; Creuwys v. Colman, 9 Ves. 323; Bland v. Bland, 2 Cox Ch. 349; Knight v. Knight,
3 Beav. 179; Flint v. Hughes, 6 Beav. 342; Fox v. Fox 27 Beav. 301; Warner v. Bates, 98
Mass. 274. Precatory words must be essentially imperative in their character or use to create a
trust. Bristol v. Austin, 40 Conn. 438; Hughes v. Fitsgerald, 60 Atl. 694; Bohon v. Barrett, 79
Ky. 378; Young v. Egan, 10 La. Ann. 415.
Irving C. Lavendol died testate in Reno, Washoe County, in July, 1920, leaving a widow,
Alice White Lavendol, and a minor son, Leonard L. Lavendol, the issue of this marriage with
his said wife, which occurred at Hoboken, N. J., in December, 1906. At the time of his death
the deceased lived separate and apart from his family, and had so lived since July, 1919,
apparently because of domestic differences. He was possessed at the time of his death of a
personal estate which consisted, according to his last will and testament, which bears date on
the 1Sth day of May, 1920, of life insurance, payable to his estate, some cash, and
personal effects.
bears date on the 18th day of May, 1920, of life insurance, payable to his estate, some cash,
and personal effects. The second and last clauses of his will read as follows:
SecondThat in view of the fact that my wife whom I believe to be lawfully wedded to
me, Alice White Waller, has caused me much mental and physical suffering and has obtained
a court order for separate maintenance, I hereby make my good friend Grace H. Thompson, of
New York City, State of New York, my sole beneficiary, knowing that she will make proper
provision for my son Leonard Lawrence Lavendol.
Lastly, I hereby nominate and appoint Grace H. Thompson the executrix of this my last
will and testament, to serve without bonds, and hereby revoke all former wills by me made.
Grace H. Thompson, because of her nonresidence, was unable to qualify as executrix of
the estate, and upon her request J. O. Sessions, the public administrator of Washoe County,
petitioned the district court of that county that the will of the deceased be admitted to probate,
and that letters testamentary with the will annexed issue to him. Such was the order.
The life insurance of the deceased consisted of four policies in the Penn Mutual Life
Insurance Company, each of which was payable to himself, or to his executors,
administrators, or assigns, aggregating the sum of $7,500. The insurance company, for its
own protection, refused to pay the insurance, and the administrator commenced a friendly suit
against the company in the district court of Washoe County, which resulted in the moneys
accruing from each of said policies being paid over into the lands of the administrator, which,
when collected, amounted to the sum of $6,660.66. The inventory filed by the administrator
shows that this amount of money constituted all the property of the deceased that had come to
his knowledge or into his possession. We therefore assume that, aside from these moneys,
the estate is insolvent.
moneys, the estate is insolvent. It appears that a claim against the estate was filed, which, if
allowed, more than covers the insurance.
Grace H. Thompson petitioned said district court, sitting as a court of probate, to order the
administrator with the will annexed to pay over to her the moneys accruing from the
insurance as her sole and separate property, free from the claim or claims of any person or
persons whomsoever, subject, however, to the provisions of the will of her testator. The
administrator answered her petition, and demanded that she be put to her proof of its
allegations. The widow and minor child of the deceased petitioned the court, asking that all
the moneys accruing from the insurance on the life of the deceased be set apart to them, for
their use and benefit, one-half to the widow and the remainder to the child. These petitions
came on to be heard together before said court, sitting a a probate court, and, upon a full
hearing, the prayers of both petitions were denied, and the court decided that the will of Irving
C. Lavendol created a trust in favor of his minor child. Both the widow and child appeal to
this court from so much of said ruling as denies their petition asking that the moneys accruing
from said life insurance be set apart to them as members of the family of the deceased, and
Grace H. Thompson appeals from so much thereof as hold and decides that the will of the
deceased created a trust in favor of his minor child, Leonard L. Lavendol.
We have endeavored to so group the several steps taken in the proceeding a to make the
questions involved in the cross-appeals intelligible. The only question really properly before
us is that raised by the appeal of the widow and minor child. We very much doubt that a
contest for the proceeds of the insurance could have been inaugurated by Grace H. Thompson
in the probate court.
1. The petition of the widow and minor child to have set apart to them, as exempt from
administration, the insurance as aforesaid, is based upon two provisions contained in our
civil practice act {sections 5957 and 52SS, Rev. Laws).
the insurance as aforesaid, is based upon two provisions contained in our civil practice act
(sections 5957 and 5288, Rev. Laws). Section 5957 reads as follows:
Upon the return of the inventory or at any time thereafter during the administration, the
court or judge, of his own motion, or on application, may set apart for the use of the family of
the deceased all personal property which is exempt by law from execution, and the homestead
as designated by the general homestead law not in force, whether such homestead has
theretofore been selected as required by said law or not, and the property thus directed to be
set apart shall not be subject to administration.
Section 5288 (Stats. 1920-21, p. 22) reads as follows:
The following property is exempt from execution, except as herein otherwise specially
provided: * * *
14. All moneys, benefits, privileges, or immunities accruing or in any manner growing
out of any life insurance, if the annual premium paid does not exceed five hundred dollars,
and if they exceed that sum a like exemption shall exist which shall bear the same proportion
to the moneys, benefits, privileges, and immunities so accruing or growing out of such
insurance that said five hundred dollars bears to the whole annual premium paid. * * *
2. It is incumbent upon courts, if there be any ambiguity or indefinite expressions found in
statutes, to adopt that construction in which best accords with the true intent and meaning of
all the statutes touching the subject under consideration. There are other provisions in the
local laws concerning exempt property that might throw some light, if in doubt, upon the true
intent and meaning of the sections under consideration, but we think the sections speak so
plainly their meaning that it would be but to confuse and to extend unnecessarily this opinion
to discuss them.
3. Speaking generally, these statutes are not declarative of any common-law principle, but
are enabling acts, creating a new right and conferring a special privilege, and, to secure the
exemption intended, the statute must be conformed to; but a liberal construction will be
given to secure the relief intended, where a proper case arises for which the statute
makes provision.
and, to secure the exemption intended, the statute must be conformed to; but a liberal
construction will be given to secure the relief intended, where a proper case arises for which
the statute makes provision. See 2 Joyce on Insurance, sec. 879, where the statutes of the
several jurisdictions relative to the exemption and disposition of money which may accrue
from life insurance are reviewed and discussed.
The lower court, whose decision is before us, seems to have regarded the will of the
deceased as being paramount to the provisions of the statutes, for the reason that, since the
insurance was payable to the estate of the deceased and the policies were his property, it was
separate property, and therefore subject to his unlimited testamentary disposition. There is no
doubt that the deceased might have regarded the policies as his own, but the mere fact that
they were bequeathed does not establish the character of the property. The statute (Rev. Laws,
5288) does not discriminate between separate and community property, or between persons
dying testate and those dying intestate. Its language is that all moneys, benefits, privileges, or
immunities accruing or in any manner growing out of any life insurance, if the annual
premiums do not exceed $500, shall be exempt from execution, and by virtue of Rev. Laws,
5957, the court is authorized and empowered, of its own motion or on application, to set apart
such moneys for the use of the members of the family of the deceased.
In the Estate of Brown, 123 Cal. 399, 59 Pac. 1055, 69 Am. St. Rep. 74, the court, in
discussing a provision of the code of civil procedure of California similar to that of section
5288 of our Revised Laws, remarks:
What chance is there for the construction of the law? It simply says that moneys accruing
upon an insurance policy issued upon the life of the judgment debtor are exempt, if the annual
premiums paid do not exceed five hundred dollars.
The difference between the California statute and ours (section 5288) is that the latter
provides that, if the premiums exceed $500, a like exemption shall exist, which shall bear
the same proportion to the moneys so accruing or growing out of such insurance that said
sum bears to the whole annual premium paid.
the premiums exceed $500, a like exemption shall exist, which shall bear the same proportion
to the moneys so accruing or growing out of such insurance that said sum bears to the whole
annual premium paid. In this case the annual premiums do not exceed $500. We do not
perceive how the exemption could be more plainly expressed. But the question is: Does this
exemption exist only in favor of a judgment debtor?
Counsel for Grace H. Thompson takes the position that section 5288 applies only where
the insurance is payable to the wife, child, or children of the insured. In support of this
proposition we are cited to cases from jurisdictions whose statutes makes express mention of
beneficiaries. Our statute does not. Therefore the cases are not in point.
The most material question in the case is: What, if any, are the conditions and limitations
on the power to bequeath personal property exempt by law from execution? The fact that
Grace H. Thompson petitioned the court, sitting in probate, that the insurance money be
decreed to her as her sole and separate property, free from the claims of all persons
whomsoever, indicates that she believes it to be within the power of a testator to create an
exemption in favor of his legatee superior to that created by law. It is argued by her counsel
that, since by our statute concerning wills (Rev. Laws, 6202) every person over the age of a
18 years, of sound mind, may by last will dispose of his or her estate, real and personal, and
the deceased having disposed of his insurance (his property) by his last will and testament,
and that instrument having been admitted to probate without contest, the probate judge was
without power or authority to set apart said moneys as against the directions of the will. This
puts the will above the law. The probate of the will is no valid objection to setting apart for
the use of the family personal property exempt from execution. The exemption is an
independent, special privilege.
It is held in Re Miller, 121 Cal. 353, 53 Pac. 906, that money received by the
administrator from a policy of insurance upon the life of the decedent, which by its terms
was made payable to his administrator, was the property of the deceased in his lifetime,
and belongs to his estate, and where the annual premiums did not exceed $500 the
money collected from such policy is exempt from execution, and is properly set apart to
the widow as such.
money received by the administrator from a policy of insurance upon the life of the decedent,
which by its terms was made payable to his administrator, was the property of the deceased in
his lifetime, and belongs to his estate, and where the annual premiums did not exceed $500
the money collected from such policy is exempt from execution, and is properly set apart to
the widow as such. It is held that testamentary provisions cannot, of themselves, interfere
with the statutory right of the widow and children to support out of the estate. Estate of
Whitney, 171 Cal. 755, 154 Pac. 855. Hence a will disposing of all of testator's estate and
making no provision for the widow cannot affect her right to the statutory allowance. 24
Corpus Juris, 253, sec. 813. Speaking upon this point in Estate of Whitney, supra, the court
says:
The right of testamentary disposition, and the right of beneficiaries to take under the will,
are alike statutory, and are both subject to the power of the court having jurisdiction of the
estate to make a provision for the support of the widow (or minor children) out of the
estateciting In Re Estate of Bump, 152 Cal. 274, 92 Pac. 643.
The presumption is that the deceased executed his will with knowledge that his power of
disposition was limited and subordinate to the statutes. The property set apart is analogous to
a probate homestead, which may be carved out of property specifically devised. Estate of
Huelsman, 127 Cal. 275, 59 Pac. 776; Estate of Whitney, supra. It will be observed that
section 5957 concludes:
The property thus directed to be set apart shall not be subject to administration
thereby clearly manifesting the intention that the members of the family of a person
having made a will and one dying intestate should be alike entitled to the benefit of the
statute.
4. It is urged that there is a difference between the terms allowance and exempt from
execution, as used in the statute.
used in the statute. It is only where the whole property set apart by law is not sufficient for the
support of the widow, child, or children that the court is authorized to make an allowance out
of the estate of the deceased. Rev. Laws, 5958. The exempt property comes first, and the
allowance, is necessary, follows.
We have given careful consideration to the opposing arguments of counsel, and careful
study to all the statutes touching the subject of exemptions, and do not hesitate to resolve that
it is in best accord with the true meaning and intent of the plain, positive, and explicit
language of the statute that all moneys accruing from any insurance, where the annual
premiums do not exceed $500, must be set apart, on application, for the benefit of the family
of the decedent.
The order will be that this cause be remanded, with directions to the lower court to
distribute the moneys accruing from the insurance on the life of Irving C. Lavendol, deceased,
in the hands of J. O. Sessions, administrator with the will annexed, as provided by statute, in
accord with the views herein expressed.
It is so ordered.
Per Curiam:
Rehearing denied.
____________
46 Nev. 193, 193 (1922) State v. Jepsen
[No. 2571]
THE STATE OF NEVADA, EX REL. F. E. BROCKLISS, Petitioner, v. H.C. JEPSEN,
County Clerk of Douglas County, Respondent.
[209 Pac. 501]
1. ElectionsHeading for Nonpartisan Candidate Groups on Primary Election Ballots Stated.
Under the primary election act of 1917, sec. 12, subd. (e), as amended by Stats. 1920-21, c. 248,
providing for grouping candidates on primary ballots under their respective offices, and that each group
shall be preceded by the words Vote for one or Vote for two, according to the number to be
nominated, the statute providing no different instructions for nonpartisan offices, and section 22
providing that for nonpartisan offices, where only one person can be elected, the two receiving the most
votes shall be nominees, the words Vote for two should precede each group of at least three
nonpartisans, where but one can be elected.
2. StatutesWhere Language is Plain, There Is No Room for Construction.
Where the language of a statute is plain and the meaning unmistakable, there is no room for
construction, and the courts may not search for the meaning beyond the statute itself.
Original proceeding. Mandamus by the State, on the relation of F.E. Brockliss, to
command H. C. Jepsen, as County Clerk of Douglas County, to have certain primary election
ballots printed. Peremptory writ issued against respondent.
George S. Brown, H.R. Cooke, and A. D. Ayres, for Petitioner.
Robert Richards, for Respondent.
By the Court, Callahan, District Judge:
The petition prays for a peremptory writ of mandamus, commanding H. C. Jepsen, as
county clerk of Douglas County, to cause to be printed sample ballots which, after the
designation for the offices of justice of the supreme court and regent of the University of
Nevada, shall have printed thereon the words Vote for two, and to cause the official ballots
which are used at said primary election to be printed in the same manner.
said primary election to be printed in the same manner. A general demurrer was interposed to
the petition.
There were three candidates for the nomination for each of those offices, all of which are
nonpartisan under the law, and the sole question is: Shall the names of each group of
candidates be preceded by the words Vote for one or Vote for two. On account of the
short period of time allowed by law in which the sample ballots and official ballots had to be
printed, an immediate decision was necessary, and it was stipulated that the court might
render its decision forthwith and write an opinion later. It was thereupon decided that the
demurrer should be overruled and the petition granted, requiring the defendant to preceded
the names of each group of candidates referred to in the amended petition with the words
Vote for two.
1. In the year 1917 (Stats. 1917, c. 155) the legislature passed a new primary election act,
which has since been amended (Stats. 1921, c. 248) in some respects. In brief, and so far as
applicable to the point, it provides for political parties, and that such political parties may, at
the primary election, nominate candidates for public offices. Such political parties are
partisan organizations, whose members are allowed to participate, at the primary election, in
the nomination of their respective party candidates for political offices. The act provides that
all judicial offices and school offices are nonpartisan offices, and the names of candidates for
nonpartisan offices shall appear alike on the ballots of each political party, without any party
designation or party name thereafter. Therefore, when a partisan elector approaches the polls
to vote at any primary election, he is handed a partisan ballot of the party with which he
affiliates, as shown by his registration, on which ballot there appears the names of all of his
party candidates for nomination by that party, and also the names of all nonpartisan
candidates in which there is a contest for nomination. If the voter is registered for the primary
without a declaration of party affiliation, he is given a ballot containing only the names of
the nonpartisan candidates, among whom there is a contest for nomination.
he is given a ballot containing only the names of the nonpartisan candidates, among whom
there is a contest for nomination.
Section 22 of the act provides that 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 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 the positions to be filled, who receive the highest number
of votes at the primary shall be declared the nominees of their party. In 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. 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. It is therefore clear that each partisan organization which complies with the primary
act has the right to nominate one partisan candidate for each political position to be filled at
the general election, but as to nonpartisan offices it is also clear that the whole of the
registered electors who vote at the primary have the right to nominate two candidates for each
nonpartisan position to be filled at the general election.
Subdivision (e) of section 12 of the act as amended, which is substantially the same as it
was when the act was originally adopted, state what instructions shall be placed on the
primary ballot whether the candidate be partisan or nonpartisan. So far as it is applicable to
the point at issue, it provides that the names of the candidates shall be grouped on the primary
ballots according to the office for which they are candidates, and the names in each group
shall be preceded by the designation of the office for which the candidate seeks nomination
and the words Vote for one' or Vote for two' or more, according to the number to be
nominated."
two' or more, according to the number to be nominated. The statute provides no different
instructions for a nonpartisan office; consequently the words Vote for one' or Vote for two'
or more, according to the number to be nominated, apply alike both to partisan and
nonpartisan candidates, and the statute means that each group of names of candidates on the
primary ballots shall be preceded by the words Vote for one or Vote for two, or more,
according to the number to be nominated by the political party or body nominating candidates
for the office or position to be filled. If the candidates are partisan, and but one person can be
elected to that office at the general election, then each political party can nominate but one
candidate for that office; but if the candidates are nonpartisanthis is, if they are seeking the
nomination for a nonpartisan office, and but one person can be elected to that office at the
general electionthe law clearly provides that two persons may be nominated for that office
by the electors as a whole, who vote at the primary election. Since there were three candidates
for the nomination for each of the nonpartisan offices to be filled, mentioned in the amended
petition, and since two candidate were to be nominated for each of those offices, under the
expressed language of the legislature, it follows that the words Vote for two should precede
the names of each group of candidates mentioned in the amended petition.
2. Where the language of a statute is plain and unambiguous, and its meaning clear and
unmistakable, there is no room for construction, and the courts are not permitted to search for
its meaning beyond the statute itself. 25 R. C. L. 957, 958.
Ducker, J.: I concur.
Coleman, J.: I Concur.
Sanders, C. J., being disqualified, Callahan, District Judge, participated in the
consideration of this case, pursuant to designation by the Governor.
____________
46 Nev. 197, 197 (1922) Rahbeck v. Jepsen
[No. 2570]
P. K. RAHBECK, Petitioner, v. H. C. JEPSEN,
County Clerk of Douglas County, Respondent.
[209 Pac. 502]
Original proceeding. Petition for mandamus by P. K. Rahbeck, directed against H. C.
Jepsen, as County Clerk of the County of Douglas. Judgment for petitioner as prayed.
Geo. B. Thatcher and B. F. Curler, for Petitioner.
Robert Richards, for Respondent.
By the Court, Callahan, District Judge:
This proceeding is of the same character and grows out of a similar state of facts as in
State ex rel. Brockliss v. Jepsen, this day decided. The two matters were argued as one and it
was stipulated that the opinion and judgment in the Brockliss case would control in this.
Upon authority of that case, the demurrer filed to the petition is overruled, and judgment is
hereby rendered in favor of the petitioner, as prayed.
Coleman, J.: I concur.
Sanders, C. J., being disqualified, Callahan, District Judge, participated in the
consideration of this case, pursuant to designation by the Governor.
____________
46 Nev. 199, 199 (1922)
REPORTS OF CASES
Determined By
THE SUPREME COURT
of the
STATE OF NEVADA
__________
October Term, 1922
__________
46 Nev. 199, 199 (1922) State v. Streshley
[No. 2574]
THE STATE OF NEVADA, Ex Rel. H. A. KEARNS, Petitioner, v. LENA E. STRESHLEY,
County Clerk of Lander County, Nevada; O. P. ADAMS, AND WM. L. WATSON,
Respondents.
[209 Pac. 712]
1. ProhibitionIf Return to Order to Show Cause Sets up Admitted or Undisputed Facts, it
Is Sufficient, though Not Formal Pleading.
In complying with an order to show cause, if the return sets up an admitted or undisputed fact which
defeats the application for the writ of prohibition, it is sufficient, though not a formal pleading in the
nature of an answer.
2. CountiesPurported Order Districting County of No Effect, where Record Does Not Show
Compliance with Statute.
A purported order of the county commissioners dividing a county into commissioner districts was of
no effect, where the record did not show that the board acted on a petition signed by qualified electors, or
that they constituted 20 per cent of the electors, as required by Rev. Laws, 1531.
3. CountiesThat District Attorney Advised that County Could Be Districted Held Not to
Estop Third Persons from Urging that Record Did Not Show Compliance with Law.
Where, in application for writ of prohibition, commanding the county clerk to refrain from printing
names of candidates for commissioners on the official election ballot, the fact that the district attorney
presumably advised the commissioners that the county could be districted did not estop the third persons
from urging on defense on the show-cause order that the commissioners' record did not show a
compliance with Rev. Laws, 1531.
4. Appeal and ErrorAttorneys Must State points in Arguments in Printed Briefs.
It is the duty of attorneys to state their points and arguments in their printed briefs.
5. ProhibitionFormal Answer to Application Not Required by Code.
The requirement of a formal answer to an application for a writ of prohibition is not within
contemplation of Civ. Code, sec. 767 (Rev. Laws, 5709), and Rev. Laws, 5699.
6. PleadingAnswer Sufficient, if Setting up Affirmative Matter which in Law Defeats the
Cause of Action.
It is not necessary that an answer shall formally admit or deny allegations of the complaint; but, if it
sets up affirmatively matter which in law defeats the cause of action, it is sufficient.
Original proceeding in prohibition by the State of Nevada, on the relation of H.A. Kearns,
against Lena E. Streshley, County Clerk of Lander County, and others. Writ denied, and
proceeding dismissed. Petition for rehearing denied.
James D. Finch, for Petitioner:
The object of the act as amended was to divide the counties into commissioner districts in
order that the various sections might have representation, and particularly that the different
sections should rotate in the election of the long-term commissioner. Any other construction
of the act would be ridiculous.
The intention of the legislature controls the courts, and when such intent is manifest it is to
be carried out. Maynard v. Newman, 1 Nev. 271; Thorpe v. Schooling, 7 Nev. 15; State v.
Ross, 20 Nev. 61; Brown v. Davis, 1 Nev. 409; Maynard v. Johnson, 2 Nev. 25.
In interpreting doubtful statutes, the primary object is to ascertain the intent of the legislature,
which is to be gathered, first, from the language of the statute, next from the mischiefs
intended to be suppressed, or the benefits to be attained. Brown v. Davis, 1 Nev. 409;
Maynard v. Johnson, 2 Nev. 25.
The meaning of the words used in a statute is disclosed by examining the context, and
ascertaining the reason and spirit of the law and the causes which induced it.
reason and spirit of the law and the causes which induced it. Absurd construction should
be avoided. State v. Dayton and Virginia Tollroad Co., 10 Nev. 155; Ex Parte Siebenhauer,
14 Nev. 365.
Courts may extend, modify, or restrict meaning of the words used in a statute so as to meet
evident policy of the act. Ex Parte Siebenhauer, 14 Nev. 365.
We do not know of any express statutory provision for demurrer to return to writ of
prohibition, or other mode of questioning its sufficiency; however, this is often done by
motion to quash return. 111 Am. St. Rep. 975, citing People v. District Court, 23 Colo. 466,
48 Pac. 500; State v. Elkin, 130 Mo. 90, 30 S. W. 333, 31 S. W. 1037.
Cantwell & Springmeyer, for Respondents:
A board of county commissioners is a body of limited and statutory powers, and may
exercise their powers only when and as defined and permitted by statute. When the power of
a board of county commissioners to do any particular act is questioned, the record must show
affirmatively all facts necessary to give authority to perform that act. Being compelled by
statute to keep a record of their proceedings, the minutes of the board constitute the record of
their official acts. All facts, then, upon which their authority to do a particular act rests, must
affirmatively appear in their minutes, or other orders relative thereto are void.
Jurisdiction to divide a county into commissioner districts is acquired by a board of county
commissioners only when a petition is before them, which is signed by 20 per cent, or more,
of the qualified electors of the county; the fact that such a petition is before them, and that it
contains the signatures of the necessary proportion of the qualified electors, must be shown
by their minutes, and not by the mere recitals of the petition; their minutes must show it
affirmatively as a fact found by them. 15 C. J. 466; State v. Ormsby Co., 6 Nev. 95; Johnson
v. Eureka Co., 12 Nev. 28; Godchaux v. Carpenter, 19 Nev. 415; State v. Kelso, 46 Nev.
12S
Godchaux v. Carpenter, 19 Nev. 415; State v. Kelso, 46 Nev. 128.
This is an application for a writ of prohibition, directed to the respondent, Lena E.
Streshley, as county clerk of Lander County, commanding her to refrain from causing to be
printed on the official election ballot of said county, to be voted at the ensuing general
election, to be held November 7, 1922, the names of O. P. Adams and William L. Watson, or
any other name than that of relator, as candidate for the office of long-term commissioner of
said county.
The application is based upon the allegation that the board of county commissioners,
pursuant to statute (Rev. Laws, 1531), at a meeting duly held on July 2, 1906, divided said
county into three commissioner districts, designating them as First district, Second district,
and Battle Mountain district, and directed that the long-term commissioner be elected at the
election to be held November 6, 1906, from the Battle Mountain district and the short-term
commissioner from the Second district; that at subsequent elections for county commissioner
in said county a long-term commissioner has been elected from each of said districts
alternately; that the long-term commissioner whose term expires at the end of the present year
was elected from the Battle Mountain district, and that at the ensuing general election the
long-term commissioner should be elected from the First district. It is further alleged that the
relator is the only qualified elector of the First district, who has been nominated for long-term
commissioner of said county, but that one O. P. Adams, a qualified elector of Battle
Mountain district, and William L. Watson, a qualified elector of the Second district, have
been nominated for the office of long-term commissioner; also that the respondent, Streshley,
is threatening to have printed, and, unless the writ sought issues, will have printed, for the
ensuing general election, upon the ballot to be voted at said election, the names of said
Adams and Watson as candidates for said office of long-term commissioner.
ballot to be voted at said election, the names of said Adams and Watson as candidates for said
office of long-term commissioner.
Upon the presentation of the petition an alternative writ was issued, directing respondent
Streshley to omit from the ballot to be printed the names of said Adams and Watson, or show
cause why they should be printed upon said ballot as candidates for long-term commissioner
of Lander County. To the said writ a return has been filed, to which is attached as an exhibit a
copy of the petition filed with the board of county commissioners, praying for the dividing of
said county into commissioner districts, together with a certified copy of the minutes of the
meeting of the board at which the purported action dividing the county into commissioner
districts was taken.
1. It is the contention of relator that the action of the board of county commissioners in
making the order dividing the county into commissioner districts is valid, and that no one is
eligible to be elected for the long term except a qualified elector of the First district; also that
the return is neither an answer to the petition nor a demurrer thereto, and hence this court
must direct the issuance of the peremptory writ as prayed.
We cannot agree with this conclusion. In complying with the show-cause order, we do not
think the return of the respondent needs to be a formal pleading in the nature of the answer. If
it sets up an admitted or undisputed fact, which defeats the application, it is sufficient. In this
instance the return contains, as stated, a certified copy of the proceedings of the board of
county commissioners. It contains some other matters, among which is an allegation that the
district attorney of Lander County had advised the respondent county clerk that she must
cause the names of the respondents Adams and Watson to be printed upon the ballot, but this
allegation can in no way affect the sufficiency of the return.
2. This brings us to a consideration of the question: Does the record of the board of
county commissioners, as duly certified, show a valid division of the county into
commissioner districts?
Does the record of the board of county commissioners, as duly certified, show a valid division
of the county into commissioner districts? The return shows that at a meeting of the board of
county commissioners, held April 3, 1905:
The petition of citizens asking to have the county divided into commissioner districts was
presented to the board and action postponed for further consideration.
It also appears from the said return that there was a meeting of the board of county
commissioners on July 2, 1906, the minutes of which show the following entry:
On motion of H. R. Lemaire, duly seconded and carried, it was ordered that Lander
County be divided into three commissioner districts, to be known as the Battle Mountain
commissioner district, the First commissioner district, the Second commissioner district.
Then follows a description of the territory comprising each district, and a provision that
the long-term commissioner to be elected at the ensuing election be elected from the Battle
Mountain commissioner district. This is all that appears from the record of the meetings in
question. There was no finding that the signers of the petition were qualified electors, or that
they constituted 20 per cent of such electors. So far as appears from the record, 50 per cent of
the signers of the petition may have been transients.
What we said in the very recent matter of State ex rel. Fall v. Kelso, 46 Nev. 128, 208,
Pac. 424, must necessarily control. In that case, following former decisions of this court, we
adhered to the well-established rule that a board of county commissioners exercises limited
and special powers, and that, when the power of such a board to do a certain thing is
questioned, the record must show affirmatively all the facts necessary to give authority to the
board to act. The statute in question in the present proceeding requires 20 per cent or more of
the qualified electors of a county must petition the board of county commissioners to divide
the county, to give it power to take such action.
county, to give it power to take such action. In keeping with the rule recognized in the case
mentioned, it must affirmatively appear from the record that the board of county
commissioners found as a fact that 20 per cent of the qualified electors of Lander County
signed the petition.
3. Counsel also contends that the respondents should be estopped from urging the defense
interposed. The theory advanced in the opening brief to sustain this contention is rather novel.
It is said that, since the district attorney in 1905 presumably advised the county
commissioners that the county could be divided into commissioner districts, and now advises
that the action taken is illegal, respondents would seem to be estopped. This is the sole theory
presented to sustain the contention. True, in the reply brief our attention is directed to the case
of Coleman v. People, 7 Colo. App. 243, 42 Pac. 1041, and Ashley v. Board of Supervisors,
60 Fed. 55, 8 C. C. A. 455. As to the advice of the district attorney, we may say there is
nothing before us to indicate what advise the district attorney gave in 1905; but, assuming
that he advised as suggested, it is very evident that the advise given recently was based
entirely upon our opinion in the Fall case, supra. In any event, no advice of the district
attorney can operate to estop a third party. We may say that neither of the cases mentioned is
in point, since the facts in those cases were dissimilar from those in the instant case.
Finally it is said by counsel for petitioner:
We earnestly submit that the case of State v. McCullough, 3 Nev. 202, at page 222, is
absolutely decisive of this case and entitles the relator to the peremptory writ on the
pleadings.
It is not pointed out wherein that case is controlling. We are not favored with counsel's
theory as to its application. It pertained to a private corporation, and no point therein decided
applies to the situation here presented, so far as we can see.
Other matters are discussed in the brief, but it is unnecessary to dwell upon them.
unnecessary to dwell upon them. To prolong this opinion would be a work of supererogation.
The writ prayed for should be denied, and the proceeding dismissed.
It is so ordered.
4. In the petition for a rehearing, counsel for petitioner takes exception to the comment
made in the last paragraph of the opinion of the court in reference to the case of State v.
McCullough, 3 Nev. 202, and expresses regret that time did not permit of an oral argument. It
is our observation that it is much better for attorneys to clearly and concisely express their
views in their written briefs. Besides, it is the duty of attorneys to state their points and
arguments in their written briefs, that opposing counsel may have an opportunity to answer.
It is now contended that the case mentioned was cited as an authority to the point that there
should have been an answer to the petition in the case. We could never have presumed so,
either from what was said in the brief or from its position therein. So far as appears from the
order of arrangement in the brief of the points presented, that question has been fully covered,
and the matter of estoppel taken up, and two or three pages devoted to it; the brief concluding
with the quotation.
5. It is now insisted that we erred in our former statement of the law as to the necessity of
a formal answer to the petition, and our attention is directed to the case of Piper v. Gracey, 11
Nev. 223, to support that view. In this connection, it may be observed that the court in that
case correctly stated that the proceedings in mandamus were controlled by the express
provisions of the civil practice act of this state, as it pertained to pleadings in civil actions. A
similar provision is incorporated in our present code. Rev.
Laws, 5699. We do not see, however, what that has to do with prohibition proceedings under
our code provision relative thereto as it now stands. Section 767 of the civil code (Rev. Laws,
5709) provides that the writ of prohibition issues upon affidavit. It says nothing about its
issuing upon a complaint such as is contemplated in an ordinary civil action. The next section
merely provides that the party to whom the writ is directed shall show cause why he should
not be absolutely restrained from further proceeding. It does not say that cause shall be shown
by an answer, or in what manner it shall be shown.
6. It is evident that it was the intention of the legislature that the return to the writ might
be informal in character. It is the substance of the return that is of consequencenot its form.
But, had the code provided that cause should be shown by answer, we think the return in this
case sufficient. It is not necessary that an answer, even in a civil suit, shall either formally
admit or deny the allegations of a complaint. If it sets up affirmatively matter which in law
defeats the cause of action pleaded in the complaint, it is good. The return in this matter does
that.
Counsel renews his objections to the position taken by the court in adhering to the view
expressed in State v. Kelso, 46 Nev. 128, 208 Pac. 424, in which we followed the rule
enunciated in Godchaux v. Carpenter, 19 Nev. 415, 15 Pac. 140. The line of reasoning urged
upon us by counsel is not without force, but it was rejected by this court in the Carpenter
case, supra, which case is in line with the overwhelming weight of authority, as shown by the
citations in 15 C. J. 466.
As to the question of estoppel, we are satisfied with what was said in our former opinion.
It is ordered that the petition for rehearing be denied.
Sanders, C. J., did not participate.
____________
46 Nev. 208, 208 (1922) Virden v. Smith
[No. 2555]
E. D. VIRDEN, Respondent, v. GEORGE D. SMITH, JOHN MADISON GRAY, F.W.
INGRAM, and NEVADA INDUSTRIAL COMMISSION, Appellants.
[210 Pac. 129]
1. Master and ServantCompensation Act Liberally Construed.
The workmen's compensation act is remedial legislation, and should be liberally construed.
2. StatutesPresumed to Operate Prospectively and Not Retroactively.
Statutes are presumed to operate prospectively only, and will not be construed retrospectively, unless
such meaning is imperatively expressed, or the legislative intent cannot be otherwise satisfied.
3. Master and ServantCompensation Act Amendment, Increasing Disability Benefits, Not
Retroactive.
Stats. 1921, c. 161, amending Stats. 1917, c. 233, increasing benefits for disabilities, is not
retroactive.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Upon denial of E. D. Virden's application to the Nevada Industrial Commission for
additional allowance for disability, he brought action against the Commission. From a
judgement in his favor, the Commission appeals. Judgement reversed.
L. B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General, for
Appellants:
The insurance act amendment creates new rights, and therefore can cover only new cases,
and cannot affect past cases either in favor of or against injured workmen or the Nevada
Industrial Commission. Riggs, v. Lehigh Portland Cement Co., 131 N. E. 231.
The rule relating to retroactive or retroactive and prospective legislation is well settled,
particularly in this state. Wildes v. State, 43 Nev. 393.
Claimant's rights were fixed, not by the common law, but by virtue of the statute as is
subsisted at the time of the accident. This constituted a contract. The legislature could not
decrease the award, then why should it be contended that it might increase it?
it be contended that it might increase it? Amendments to compensation acts may act
retroactively only when they affect the procedure, but not when they interfere with substantial
rights. Kuen v. L. V. Co., 110 Atl. 731; Rosh v. I. P. Co., 170 N. W. 532; People v.
McGovetty, 270 Ill. 610.
Where the amendments affects substantive rights of the parties it has no retroactive
effect. Schnieder's Compensation Law, vol. 2, sec. 577, and cases there cited.
Mack & Green, Charles H. Burritt and E .C. Short, for Respondent:
We concede that it cannot be held, and it is not necessary to be held, that the statute is
retroactive in its operation. No claim is made for additional allowance, except since the
amendment became effective. It follows that the cases cited by the attorney-general are not
applicable to the case at bar. The cases of Hansen v. Flynn, 183 N. Y. Supp. 213; Caldwell v.
Bedford Co., 126 N. E. 439; Moran v. Robers, 168 N. Y. Supp. 410, and Boyer v. Crescent
Factory Co., 78 South. 596, only go to the extent of holding that the question of dependency
shall be determined as of the time of the accident. This is not different from the rule
provided by subdivision b of section 26, Stats. 1917, p. 446.
Riggs v. Lehigh Co., 131 N. E. 231, is not in point under our statutes. It holds that the
condition of dependency must be determined as of the date of the award, while our statutes
fix it with the date of the injury.
Section 21a (Stats. 1913, p. 145) permits the commission to increase or decrease the rates
above provided.
Workmen's compensation acts should be liberally construed. Appeal of Hotel Bond Co.,
93 Atl. 245, 89 Conn. 143; Kennerson v. Thames Towboat Co., 94 Atl. 372, 89 Conn. 367, L.
R. A. 1916a, 436; Coakley v. Coakley, 102 N. E. 930, 216 Mass. 71, Ann. Cas. 1915a, 867;
Young v. Duncan, 166 N. E. 1, 218, Mass. 346; Winfield v. N. Y. C. R. R. Co., 153 N. Y. S.
N. Y. C. R. R. Co., 153 N. Y. S. 499; Milwaukee v. Miller, 144 N. W. 188, 1 Ann. Cas.
1915b, 847, McAlester Colliery Co. v. State Ind. Com., 204 Pac. 630; Mulkhall v. Nashen
Mfg. Co., 115 Atl. 449; Industrial Com. of Colorado v. State Compensation Fund, 203 Pac.
215. We think these cases show that Riggs v. Lehigh Co., supra, is not in point, and commend
the case of Talbot v. Ind. Ins. Com., 183 Pac. 84, to the consideration of the court.
On the 20th day of July, 1918, the respondent, whose employers had accepted the
provisions of an act of the legislature of this state known as the workmen's compensation act
(Stats. 1911, c. 111), sustained injuries in the course of his employment, which resulted in
permanent and complete paralysis of both legs, from the hips downwards. On that date
respondent's employees notified the Nevada Industrial Commission of the accident and
resulting injures, which made an award to respondent of $50 per month, pursuant to the rate
then fixed by said act for such cases. The provision under which the rate was fixed read as
follows:
Permanent total disability: In cases of total disability adjudged to be permanent,
compensation of fifty per cent (50%) of the average monthly wage, but not less than twenty
dollars ($20) per month nor more than fifty dollars ($50) per month during the life of the
injured person. Stats. 1917, p. 443.
This compensation has ever since been paid. on March 22, 1921, the act was amended so
that this provision reads as follows:
Permanent total disability: In cases of total disability adjudged to be permanent,
compensation of sixty (%60) per cent of the average monthly wage, but not less than thirty
($30) dollars per months nor more than sixty ($60) dollars per month during the life of the
injured person; provided, in cases of permanent total disability, if the character of the injury is
such as to render the workman so physically helpless as to require the services of a
constant attendant, an additional allowance of thirty {$30) dollar per month may be made
so long as such requirements shall continue, but such increase shall not obtain or be
operative while the workman is receiving hospital care under or pursuant to the
provisions of section 23 of this act."
render the workman so physically helpless as to require the services of a constant attendant,
an additional allowance of thirty ($30) dollar per month may be made so long as such
requirements shall continue, but such increase shall not obtain or be operative while the
workman is receiving hospital care under or pursuant to the provisions of section 23 of this
act. Stats. 1921, p. 239.
On or about the 9th day of July, 1921, the respondent applied to the Nevada Industrial
Commission for the allowance of an additional $30 per month pursuant to the
nurse-allowance provision of the amendment. The application was denied by the commission.
An action was instituted by the respondent against the commission in the district court which
resulted in a judgment in favor of the formerthat he recover from the latter the sum of $30
per month from and after the 28th day of March, 1921, and for so long as his condition
required for him the attendance and services of a practical nurse. Hence this appeal by the
officers constituting the commission.
1, 2. There is no controversy as to the facts, but merely as to the application of the
amendment and its validity, if intended by the legislature to act retroactively. Appellants
contend that it is prospective in its operation, and, further, that if it is retroactive in its
operation, it impairs the obligation of a vested agreement entered into as an award pursuant to
statute, and therefore violates constitutional inhibitions. Although the workmen's
compensation act is in derogation of the common law, it is remedial legislation, and should
be liberally construed to effectuate its purpose. This class of legislation, however, constitutes
no exception to the general rule. It is deemed prospective and not retroactive in its operation.
The rule of construction in this regard is of strict application. Milliken v. Sloat, 1 Nev. 573. It
was recently applied by this court in Wildes v. State, 43 Nev. 388, 187 Pac. 1002:
There is always a presumption, said the court in that opinion, quoting approvingly from
United States v. Heth, 3 Cranch, 399, "that statutes are intended to operate prospectively
only, and words ought not to have a retroactive operation unless they are so clear, strong,
and imperative that no other meaning can be annexed to them, or unless the intention of
the legislature cannot be otherwise satisfied.
Heth, 3 Cranch, 399, that statutes are intended to operate prospectively only, and words
ought not to have a retroactive operation unless they are so clear, strong, and imperative that
no other meaning can be annexed to them, or unless the intention of the legislature cannot be
otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a
statute. If all the language of a statute can be satisfied by giving it prospective action only,
that construction will be given it.
3. This declaration of the rule is in harmony with established principle, and, keeping it in
mind, we can find nothing in the language of the amendment, considered singly or in
connection with the wording of the entire act, to indicate any legislative intent to give the
amendment retroactive effect.
Respondent concedes that the amendment is prospective, but contends that the action of
the lower court in awarding him a nurse allowance of $30 per month from the date of its
enactment give the amendment no retroactive operation. We think it does. Respondent's
injuries were sustained prior to its enactment, and his right to compensation was determined
in accordance with the statute then in force. The amendment empowered the commission to
award a larger compensation during the life of an injured person, and prevented it from
making the award as low as the minimum fixed by the state amended. In addition the nurse
allowance, which respondent claims, was provided. Clearly these changes are not formal, but
substantial. They pertain to no matters of procedure. They concern the right and not the
remedy. If the amendatory statute be construed so as to entitle the respondent to recover under
its nurse-allowance provision from the date of enactment, the effect of the statute is to enlarge
the right he had at the time he received the injures.
The case of Talbot v. Industrial Insurance Commission, 108 Wash. 231, 183 Pac. 84, is
cited in respondent's brief, and declared to be conclusive of the inquiry on this appeal.
this appeal. It was also referred to by the trial court in its written decision, and considered
directly in point. In Talbot v. Industrial Insurance Commission the facts were substantially the
same as in the case under consideration. The injured person was totally disabled, and at all
times since his injury had been so physically helpless as to require the services of a constant
attendant. The commission awarded him compensation under the existing law, and refused to
award him an increased monthly allowance under an amendment similar to the one in
question. The trial court reversed the commission's refusal to award the increased allowance
claimed, and held that the injured person was entitled thereto, but only from the date of the
going into effect of the amendment. The supreme court held that this ruling did not give the
amendment a retroactive effect contrary to the intention of the legislature. The case is
squarely in point, and supports respondent's position, but we are not able to reach the same
conclusion in the case before us. No reasoning as to the construction placed upon the
amendment, or statement of the rule employed by which the legislative intent was
ascertained, appears in the opinion in Talbot v. Industrial Insurance Commission. It is also to
be observed that upon a rehearing in that case, only a majority of the court adhered to the
original opinion. 108 Wash. 234, 187 Pac. 410. Our construction of the amendment before us
leads us to an opposite conclusion.
As we are of the opinion the judgment of the lower court gives the amendment a
retroactive effect contrary to legislative intent, it must be reversed.
It is so ordered.
____________
46 Nev. 214, 214 (1922) Ex Parte Todd
[No. 2559]
In the Matter of the Application of O.M. TODD
For a Writ of Habeas Corpus.
[210 Pac. 131]
1. CarriersOperation without Certificate of Public Service Commission Not a Crime, but
Renders Carrier Subject to Penalty.
Where a common carrier has violated Stats. 1919, c. 109, sec. 36 1/2, by failing to obtain a certificate
from the Public Service Commission, such violation does not constitute a crime; section 35, imposing a
penalty, being applicable instead of section 41, punishing violation of the act by fine.
2. CarriersSection of Act Regulating Public Utilities, Punishing its Violation, Held Not in
Conflict with Another Section, Applied to Carrier Operating without Certificate.
Stats. 1919, c. 109, provides for the regulation of public utilities and creates a Public Service
Commission. Section 41 punishes by fine any violation of the act, where no punishment or penalty is
provided therefor. Section 35 imposes a penalty, as provided in section 11, for a violation of any
provision of the act for which a penalty is not provided. Section 36 1/2 makes it illegal to operate as a
common carrier without having obtained the certificate from the Public Service Commission, but fixes no
punishment therefor. Held, that section 41, expressly excepting from its provisions all violators of the act
where a penalty is provided, is not in conflict with section 35 in its application to section 36 1/2.
3. StatutesPenal Statutes Strictly Construed, Legislative Intent Governing.
Penal statutes are to be strictly construed, but the intention of the legislature must govern in their
construction.
4. StatutesPenal Statute Strictly Construed, where Legislative Intention in Doubt.
If the language of a statute is unambiguous, or its intention clear, there is no room for construction,
but where the intention of the legislature is in doubt, a penal statute must be construed strictly.
5. StatutesIn Case of Doubt Criminal Statute Construed Not to Apply.
In case of doubt, a criminal statute must be construed not to apply to an act claimed to be in violation
thereof.
Original proceeding. Application of O. M. Todd for writ of habeas corpus. Petitioner
discharged.
John F. Kunz, for Petitioner:
Section 11 of the act of March 28, 1919, provides for a penalty to be recovered by a civil
action upon the complaint of the Public Service Commission.
46 Nev. 214, 215 (1922) Ex Parte Todd
complaint of the Public Service Commission. The same penalty is provided for violation of
section 13 and also section 15. Section 21 specifically makes a violation thereof a
misdemeanor and fixes the penalty at a greater sum. For violation of section 31 the special
penalty provided for the violation of section 11 is provided, and finally the general provision
is inserted in section 35 for the violation of any provision for which a penalty was not fixed,
and which fixes it the same as in section 11.
The section relied upon (section 41) does not declare the omission to procure a certificate a
misdemeanor or a public offense, that being done only in sections 21 and 9.
It is therefore contended that if section 41 makes the provisions of section 35 nugatory, it
is still a penalty to be recovered by civil action as prescribed in section 11, and not a
punishment for a criminal offense. Since section 35 prescribes the penalties of section 11 for
any violation of which a penalty has not been provided, then section 41 must be treated
simply as mere surplusage.
The violation of the statute did not give the district court jurisdiction, in that it was not a
gross misdemeanor or any other criminal offense, but the facts adduced at the preliminary
hearing to establish probable cause for the violation of the public utility act, if the violation of
section 36 1/2 is criminal, and which facts the information must follow, show that the
petitioner was not a common carrier, and not subject to the jurisdiction of the commission as
set out in section 7 of the act.
Section 35 clearly provides the penalty as against a public utility for a violation where no
special penalty is provided, and section 41 provides a penalty against any other person or
persons violating the act.
Before any proceedings could be brought against petitioner, the commission, under section
9, must pass upon the adequacy and sufficiency of the services rendered by the bus company.
46 Nev. 214, 216 (1922) Ex Parte Todd
L. D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney
of Washoe County, for Respondent:
This prosecution is brought under an act entitled, An act defining public utilities, etc.
(Stats. 1919, p. 182), creating the Public Service Commission and giving it jurisdiction over
public utilities.
Section 41 of the act provides that a violation thereof shall be punished by a fine of not
less than $500 or more than $1,000. This establishes such violation as a gross misdemeanor
within the provisions of Rev. Laws, 6266. If a civil liability were intended, it would have
been stated by the lawmakers as a penalty to be recovered in a civil action. 16 C. J. 68.
Sections 41 and 35 are in conflict, and the rule of statutory construction that all portions of
a statute must be reconciled, if possible, cannot be applied. Such is also true of sections 11,
13, 15, 21, and 24.
Section 41 controls over section 35 because it is last in arrangement. 36 Cyc. 1130; Ex
Parte Hewlett, 22 Nev. 333, 40 Pac. 96; Ex Parte Smith, 33 Nev. 466, 111 Pac. 930. And
because the history of the act shows the legislative intent. Stats. 1907, p. 73; Rev. Laws,
4576; Stats. 1911, p. 322; Rev. Laws, 4515, et seq.; Stats. 1919, p. 198. In the meantime, the
State Department of Highways was created (Stats. 1917, p. 309), which for the first time
placed motor common carriers within the jurisdiction of the Public Service Commission (sec.
7), and provided a criminal prosecution for violation of the act (sec. 41). As motor common
carriers often could not respond to civil penalties, it is clearly the legislative intent that the
criminal penalty provided in section 41, Stats. 1919, should prevail, as it was the only
adequate remedy. 25 R. C. L., sec. 253.
This is an original proceeding in habeas corpus. The petitioner charges that he is illegally
restrained of his liberty by the respondent, the sheriff of Washoe County, pursuant to an
information filed in the district court of that county, charging him with being engaged in
transporting persons for hire in an automobile operated by him as a common carrier over
the highways of Nevada, beyond the limits of the city of Reno, without first having
obtained from the Public Service Commission the certificate required by that certain act
entitled:
46 Nev. 214, 217 (1922) Ex Parte Todd
pursuant to an information filed in the district court of that county, charging him with being
engaged in transporting persons for hire in an automobile operated by him as a common
carrier over the highways of Nevada, beyond the limits of the city of Reno, without first
having obtained from the Public Service Commission the certificate required by that certain
act entitled:
An act defining public utilities, providing for the regulation thereof, creating a public
service commission, defining its duties and powers, and other matters relating thereto. Stats.
1919, p. 198.
Conceding, as contended by the state, that petitioner was guilty of operating a public utility
as a common carrier, as defined in section 7 of the act, without first having obtained a
certificate as required by section 36 1/2, we do not think he is charged with a crime, and for
that reason deem it necessary to determine but one of the points urged upon us.
1, 2. Proceeding, then, upon the theory that petitioner is a common carrier, operating a
public utility in the sense contemplated by section 7 of the act, we come directly to the
question as to whether or not he is charged with a crime. This involves a consideration of
sections 35 and 41 of the act. They read:
Sec. 35. If any public utility shall violate any provision of this act or shall do any act
prohibited, or shall fail or refuse to perform any duty enjoined upon it, or upon failure of any
public utility to place in operation any rate or joint rate, or do any act herein prohibited, for
which a penalty has not been provided, or shall fail, neglect, or refuse to obey any lawful
requirement or order made by the commission or any court, for every such violation, failure,
or refusal, such public utility shall be subject to the penalty prescribed in section 11 of this
act.
Sec. 41. Any violation of the provisions of this act, where no penalty or punishment is
prescribed therefor, shall be punished by a fine of not less than five hundred {$500) dollars
or more than one thousand {$1,000) dollars."
46 Nev. 214, 218 (1922) Ex Parte Todd
($500) dollars or more than one thousand ($1,000) dollars.
It will be seen that section 35 contemplates only the levying of a penalty when a public
utility violates a provision of the statute, or does an act prohibited thereby, whereas section 41
makes such violation a gross misdemeanor. It is conceded by respondent that, but for section
41, the petitioner would not be guilty of a gross misdemeanor. Hence we are confronted with
the necessity of deciding which of the two sections is applicable to the situation presented.
By the very argument made in behalf of the respondent, it is conceded that section 35
would cover the case and make petitioner liable for a penalty recoverable in a civil action,
were it not for section 41. In other words, if section 41 were not incorporated in the act,
petitioner would be liable for a penalty. It is said, however, that, in view of the fact that
section 41 is subsequent in the order of arrangement, section 35 is ineffective, since, as it is
claimed, the two section are in conflict. Sections 11, 13, 15, 21, and 24 either prohibit or
make compulsory the doing of certain things, and fix a penalty for the violation thereof.
Section 36 1/2, which petitioner is charged with violating, makes the failure to do certain
things illegal, but fixes no penalty or punishment for noncompliance therewith. Section 35
provides that if a public utility violates any provision of the act, for which a penalty is not
provided, the person guilty thereof shall be liable for a penalty, as provided in section 11.
Section 41 provides that any violation of the provisions of the act, where no penalty or
punishment is provided therefor, shall be punished by a fine.
3, 4. In the determination of the point urged by the respondent, we must keep in mind the
ancient rule that penal statutes are to be strictly construed, but that the intention of the
legislature must govern in their construction. Ex Parte Rickey, 31 Nev. 82, 102, 100 Pac. 134,
135 Am. St. Rep. 651. Of course, if the language of a statute is unambiguous, or its intention
clear, there is no room for construction; but, where the intention of the legislature is in
doubt, a penal statute must be construed strictly.
46 Nev. 214, 219 (1922) Ex Parte Todd
is no room for construction; but, where the intention of the legislature is in doubt, a penal
statute must be construed strictly. Bearing in mind that section 35 fixes a penalty for the
violation of section 36 1/2, it must control, unless it is clearly the legislative intent that
section 41 should apply to a violation of section 36 1/2, instead of section 35. Before we can
be justified in following the contention of respondent that section 41 nullifies section 35, so
far as it might otherwise apply, we must ascertain if section 41 conflicts with section 35.
Since section 41 expressly excepts from its provisions all violators of the act where a penalty
is provided, it is not in conflict with section 35 in its application to section 36 1/2, for the
violation of which it provides a penalty.
5. In what cases it was the intention of the legislature that section 41 should apply is not
clear. It is not our duty to arbitrarily fasten its provisions upon a situation, simply because of
doubt as to the legislative intent. On the other hand, being a criminal provision, and doubt
existing, it is our duty to so construe the statute as to exclude the idea that it was intended to
apply to the situation in hand.
It is also contended that the history of the act in question, or at least section 35 thereof, is
such as justified the position of the respondent. We see nothing in the history of the act, as an
entirety, upon which the least argument can be based to support that theory. Section 35 is
substantially the same as a certain section incorporated in the railroad commission act (Rev.
Laws, 4576) and in the public service commission act (Rev. Laws, 4542), and it may be that
the section in question was taken from those statutes. But, if this be true, we do not think that
there can be any basis for the contention made. At most, we could only be expected to adopt
an interpretation put upon the section when construed as a part of the acts mentioned. The
question before us is as to whether section 35 or section 41 applies to the case in hand, and
not as to the interpretation to be put upon the section itself.
46 Nev. 214, 220 (1922) Ex Parte Todd
put upon the section itself. We think the contention is without force.
Taking these views, it is unnecessary to consider the other points made, since it follows
that the petitioner must be discharged.
It is ordered that the petitioner be discharged from the custody of the sheriff.
____________
46 Nev. 220, 220 (1922) Moore v. Humboldt County
[No. 2530]
N. P. MOORE, Appellant, v. HUMBOLDT COUNTY,
Respondent.
[204 Pac. 880; 210 Pac. 401]
1. StatutesLocal and Special Law Reducing Pay of Constable Is Not Prohibited.
Const. art. 4, sec. 20, prohibiting the enactment of local or special laws in any of the enumerated
cases, not including the creation or abolition of the office of constable nor the regulation of his salary,
and providing that nothing therein shall be construed to deny or restrict the power of the legislature to
establish and regulate the compensation and fees of county and township officers, manifestly does not
prohibit the enactment of a local and special law reducing the pay of a constable.
2. Sheriffs and ConstablesOffice of Constable Is Not Constitutional Office.
The office of constable is not a constitutional office within the rule that the legislature cannot abolish
constitutional offices.
3. OfficersLegislature Can Reduce Salaries of or Abolish Offices Not Constitutional.
An office which is not constitutional can be abolished or the salary thereof reduced by the legislature.
On Rehearing
1. StatutesOffice of Constable throughout State May Be Abolished, But Not in Single
Township Alone.
While the office of township constable, not being a constitutional office, may be abolished from the
entire system of township government, abolishment thereof from a single township contravenes Const.,
art. 4, sec. 25, guaranteeing a uniform system of township government throughout the state.
2. Constitutional LawIndirect Legislation Cannot Accomplish Purpose Not Directly
Possible.
The legislature cannot do that indirectly which it is prohibited from doing directly.
3. OfficersStatute Lowering Salary of Legislative Officer to Force Him from Office
Unconstitutional.
The legislature may reduce the salary of a legislative officer when done in good faith for public
welfare, but not for the sole purpose of legislating the officer out of office, and a statute with that purpose
is void.
4. OfficersReduction of Salary of Constable in Single Township Held Unconstitutional
Attempt to Abolish Office.
A statute reducing the salary of constable in a single township from $1,800 to $5 per year is not a
regulation within Const., art. 4, sec. 20, but an unconstitutional attempt to abolish that office by a
colorable reduction of compensation.
Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.
Action by N. P. Moore against Humboldt County. Judgment for defendant on sustaining
demurrer to the complaint, and the plaintiff appeals. Affirmed. On rehearing, reversed and
remanded (Ducker, J., dissenting).
Campbell & Robins, for Appellant:
The act of the legislature of March 28, 1921 (Stats. 1921, p. 387), reducing the salary of
the constable of Union township, Humboldt County, is unconstitutional, being violative of
the provisions requiring a uniform system of local and state government. (Const. Nev., art. 4,
secs. 20, 21, 25), and in that it attempts to destroy indirectly a constitutional office. Wolf v.
Humboldt, 105 Pac. 286. A constitutional officer cannot be legislated out of office, and what
cannot be done directly is likewise prohibited indirectly, as, for instance, by repealing all
provisions for the payment of compensation. 22 R.C.L. 580; 23 Am. & Eng. Ency. Law, 2d
ed., p. 421; Powell v. Durden, 31 S. W. 741; State v. Shreveport, 134 Am. St. Rep. 496;
Board v. Westbrook, 1 South. 352; Reid v. Smoulter, 5 L.R.A. 517; People v. Howland, 41 L.
R. A. 838.
A constable is a constitutional officer. Allor v. Wayne County, 4 N. W. 492. Where an
office existed at the time of the adoption of the constitution, and the constitution did not
abolish it, it was a constitutional office."
constitution did not abolish it, it was a constitutional office. Massenburg v. Board, 23 S.E.
998. A constitutional officer does not necessarily mean one that is created by the constitution,
or whose election or appointment is provided for specifically. State v. LaGrave, 23 Nev. 373;
State v. Douglass, 33 Nev. 82.
L.G. Wilson, District Attorney, for Respondent:
The legislature has the power, under the constitution, to fix the compensation of a
constable by a special or local law. But nothing in this section shall be construed to deny or
restrict the power of the legislature to establish and regulate the compensation and fees of
county and township officers. Const. Nev., sec. 20, art. 4; State v. Spinner, 22 Nev. 213;
State v. Fogus, 19 Nev. 247; Comstock M. Co. v. Allen, 21 Nev. 325.
The legislature has the power to abolish an office that is not a constitutional one. State v.
Tilford, 1 Nev. 201; State v. Douglass, 33 Nev. 82.
Under our constitution, the office of constable is not a constitutional one; it is created by the
legislature, and hence can be abolished by the power that created it. 35 Cyc. 1516;
Commonwealth v. Benfield, 5 Pa. Dist. R. 382.
The mere fact that the office of constable is an ancient one does not necessarily mean that
the framers of the constitution intended to make it a constitutional one. Upon the adoption of
a constitution, no official functions can be exercised otherwise than is provided by such
constitution; all existing officers cease to be such when it goes into operation, and all
vacancies occurring thereafter must be filled according to the manner prescribed in such
constitution. 8 Cyc. 763.
There is always a presumption in favor of the constitutionality of an act of the legislature;
any doubt as to its constitutionality will be resolved in favor of the act. State v. Yancy, 27 S.
W. 380.
The legislature is the sole and exclusive judge of the adequacy of compensation to be paid
any officer whose salary is not fixed by the constitution.
salary is not fixed by the constitution. Standard Oil Co. v. Graves, 162 Pac. 563; Ex Parte
Kair, 28 Nev. 436; Wesch v. Detroit, 107 Mich. 149.
This action is brought to recover an amount alleged to be due the plaintiff for services
rendered as constable of Union township, Humboldt County, Nevada, for a period of a little
more than two months. It is alleged in the complaint that at the time of plaintiff's appointment
the salary of said office was $150 per month, and that thereafter the legislature passed an act,
which was approved by the governor, fixing the salary at $5 per annum. It is also alleged that
a claim in due form was presented to the board of county commissioners for the amount
alleged to be due, and that the said board disallowed the same, and all thereof save and except
an amount admitted to be due under the terms of the act reducing the salary. The complaint
prays judgment in the amount stated in the claim presented to said board by the plaintiff. To
this complaint a demurrer was filed, upon the ground that the complaint does not state a cause
of action. The demurrer was sustained, and judgment rendered in favor of the defendant, from
which plaintiff has appealed.
While several reasons are urged in support of the contention that the act reducing the
salary is unconstitutional, they may be considered under two heads: First, that the act is local
and special, and violative of the express provisions of the constitution; and, secondly, that the
office of constable is a constitutional one, and cannot be abolished by the legislature, and that
the act is, in effect, an abolition of the office. We will take up these questions in the order
named.
1. There is no ground for the first contention. Article 4, section 20, of the constitution,
which is the provision imposing an inhibition against the enactment of local or special laws,
reads:
The legislature shall not pass local or special laws in any of the following enumerated
casesthat is to say [enumerating the cases]."
in any of the following enumerated casesthat is to say [enumerating the cases].
The creation or abolishing of the office of constable is not one of the cases mentioned, nor
is the regulation of the salary of a constable one of the enumerated cases which come within
such inhibition. On the other hand, the concluding sentence of the section mentioned
expressly provides:
But nothing in this section shall be construed to deny or restrict the power of the
legislature, to establish and regulate the compensation and fees of county and township
officers. * * *
The mere reading of this section must dispose of the contention.
2. It is most strenuously urged upon our consideration that the purpose of the act in
question was not in good faith to regulate the salary, but to so cripple the efficient
administration of the office as to result in its abolishment. A strong case is made in support of
this theory, and we are not prepared to say that there is no merit in it. However, not finding it
necessary to determine the question, we have merely given it a cursory consideration. Hence
we will assume, for the purpose of this case, without so deciding, that the contention is sound.
So assuming, we are unable to reach the conclusion that the judgment is erroneous, for the
reason that we are persuaded not only from our own independent study of the question, but
from a due regard for the expressions of this court by our worthy predecessors, that the
legislature has plenary power in the matter of abolishing the office of constable. We base this
conclusion upon the fact that the office is not created by the constitution. We might rest this
conclusion upon one of the very early decisions of this court, rendered but shortly after the
constitution had been adopted, and concurred in by one who was a member of the
constitutional convention, fresh from inspirations partaken of therein. In that decision (State
v. Tilford, 1 Nev. 240) the court said: "The constitution provides for the election of county
commissioners, county clerks, county recorders, district attorneys, sheriffs, county
surveyors, and public administrators.
The constitution provides for the election of county commissioners, county clerks, county
recorders, district attorneys, sheriffs, county surveyors, and public administrators. Such
constitutional offices the legislature could not abolish, and the incumbents would have the
right to hold until 1867. As to other county offices, the legislature is allowed by the
constitution to create or abolish them.
Accepting this decision as conclusive upon us, we must hold that the legislature can
abolish the office of constable. But we are not confined to said decision for authority in
support of this conclusion, for in State v. Arrington, 18 Nev. 412, 417, 4 Pac. 735, 739, the
court said:
* * * The framers of the constitution decided for themselves that the officers named were
necessary and should be elected by the people; but they left it to the legislature to decide as to
the necessity of additional ones, whether state, county or township. * * *
We do not question the correctness of the decisions to which we have adverted, nor do we
see how they can be questioned.
This disposes of the contention that the office of constable cannot be abolished.
3. It is not contended that an office which is not constitutional cannot be abolished or the
salary thereof reduced; nor could such contention be made by one familiar with the decisions
of this court. State v. Spinner, 22 Nev. 213, 37 Pac. 837.
The judgment is clearly right, and is affirmed.
On Rehearing
It is said that the court decided in its former opinion that the purpose of the act in question
was to abolish the office of constable of Union township. It is contended that such was the
effect of the act, and that such legislation is interdicted by article 4, section 25, of the
constitution, providing for the maintenance of a uniform county and township government
in the state.
uniform county and township government in the state. We did not decide that such was either
the purpose or effect of the act. We simply assumed such to be its effect, and acted upon that
assumption.
1. In our former opinion we held that the office of constable is not a constitutional office,
and that is can be abolished. In this we were correct, but we were not correct in holding that
the legislature could abolish the office for Union township alone. The office can be abolished,
but it must be abolished as an office in our entire system of township government. Any
statute which singles out the office of constable for a particular township and attempts to
abolish it would be void, because such an act would violate the terms of article 4, section 25,
of the constitution which guarantees to the people of the state a uniform system of township
government throughout the state. Singleton v. Eureka Co., 22 Nev. 91, 35 Pac. 833. The
people of Union township are entitled to the office of constable as much as are the people of
the other townships of the state.
2. This brings us to a consideration of the contention that the act in question, in effect,
abolishes the office of constable for Union township, and hence is void. It is said that while
the act purports to be one to reduce the salary of the constable of Union township, its purpose
and practical effect is to abolish the office; and it is contended that, since the office cannot be
abolished by an act, the clear import of which would be to abolish it, the same end cannot be
accomplished indirectly. This court has repeatedly held that what cannot be done directly
cannot be done by indirection.
Let us see if the situation confronting us brings the case within that rule. Prior to the
enactment of the statute in question, the plaintiff was getting a salary of $150 per month, or
$1,800 per year. Under the statute in question it is provided that he shall receive a salary of $5
per year, or 41 8/12 cents per month. This is a princely salary. It is surprising that the
legislature did not make plaintiff a dollar-a-year man. Whatever may have been the reason
prompting the legislative action, can it be doubted what the purpose was?
may have been the reason prompting the legislative action, can it be doubted what the
purpose was? It is evident that it was an attempt to abolish the office of the constable for
Union township.
3. This is not the first case on record in which the question has been presented. Several
times a similar question has been found its way to the highest courts of the land. In the case of
State v. City of Shreveport, 124 La. 178, 50 South. 3, 134 Am. St. Rep. 496, the court
disposed of this identical question, and in doing so reviewed, at some length, previous
decisions on the point. The deduction to be drawn from the case mentioned and those
reviewed by it is that the legislature may reduce the salary of a legislative officer when it is
done in good faith, for the public welfare, but not when the sole purpose is to legislate an
officer out of office, and that a statute enacted for that purpose is void. This view is, we think,
the correct one for us to take. It is supported by the great weight of authority, as well as by
sound reasoning; in fact, so far as we are aware, no court has decided to the contrary.
The case just mentioned was one is which the city council of the city of Shreveport
undertook to reduce the salary of the relator as city auditor from $1,500 to $300 per annum.
The court held that the city council had no authority to abolish the office of city auditor, and,
after indulging in criticism of a supposed case, said:
But what practical difference is there between such a case and one like the present,
where, as shown by the evidence, the salary is fixed so low that no competent person would
accept the office, where the ostensible fixing of the salary is a mere mask for abolishing the
office or removing the officer? Is the illegality of the action of the council to escape the vision
of the courts simply because it is masked? Are the courts to be circumvented by a plain
subterfuge?
So far as we are advised, no court has held that the reduction of the salary of a public
officer from a substantial to an absurdly nominal amount does not operate, in effect, to
abolish the office.
substantial to an absurdly nominal amount does not operate, in effect, to abolish the office.
The court in the case we have mentioned quotes from practically all of the decisions on the
point, and, in support of the position which we take, we content ourselves by directing
attention thereto and referring to the statement in Connor v. City of N. Y., 4 N. Y. Super. Ct.
355, that an office could not be virtually abolished by a colorable reduction of the
compensation, or by taking it away altogether.
4. But counsel for respondent contend that the concluding paragraph of article 4, section
20, of the constitution, gives the legislature the express authority to reduce the salary of
township officers, and hence the act is in harmony with the unqualified authorization of the
constitution. The concluding sentence of the section does reserve to the legislature the
authority to regulate the compensation of township officers; but the trouble with the act in
question is that it is not regulatory in characterit operates to abolish the salary, and, in
effect, the office. Had the legislature reduced the salary to such an amount as might be
considered regulatory, it would have been acting within the scope of the authority reserved to
that body, which it probably had, independent of such reservation.
It follows from what we have said that the judgment of the lower court must be reversed
and the case remanded for proceedings in accordance herewith.
It is so ordered.
Sanders, C. J.: I concur
Ducker, J.: I dissent.
____________
46 Nev. 229, 229 (1922) Smith v. Goodin
[No. 2500]
E. C. SMITH and E. J. AMANN, Copartners Doing Business under the Firm Name and Style
of SMITH & AMANN, Respondents, v. J. T. GOODIN, Appellant.
[206 Pac. 1067]
1. Appeal and ErrorNew Trial granted by Appellate Court, where it was Clear that Wrong
Conclusion Was Reached.
Although the evidence was conflicting and there was substantial evidence to support the judgment, the
supreme court will grant a new trial if on all the evidence it is clear that a wrong conclusion was reached.
2. BrokersIn Action to Recover for Purchasing Stock, Evidence Held Not to Support
Judgment for Plaintiffs.
In an action by brokers to recover for purchasing stock, evidence held not to support a judgment for
plaintiffs on the assumption that they did not receive a telephone order by defendant to sell the stock.
Action by E. C. Smith and another against J. T. Goodin. Judgment for plaintiffs, and
defendant appeals. Reversed and remanded. Petition for rehearing denied.
Moore & McIntosh, for Appellant:
All the evidence that the order to sell was not given is purely negative. The case is not,
therefore, within the rule that a judgment will not be disturbed when the evidence on material
issues discloses a substantial conflict. Positive testimony of a single witness should prevail
over the strictly negative' testimony of any number of witnesses, if credibility of the
witnesses is not involved and the question depends solely upon the abstract efficacy of each
species of testimony. 17 Cyc. 800, 801, 804; 22 C. J. 169. In the analysis and construction
of testimony it is elementary that, all other things being equal, positive testimony on a given
point must always predominate over negative testimony on the same point. Neiheisel v.
Foerge, 4 Redf. Surr. 328-330; Southern Pacific Co. v. O'Bryan, 45 S. E. 1000; Atlantic R.
Co. v. Newton, 11 S. E. 776; Railroad v. Dickinson, SS Ill.
Atlantic R. Co. v. Newton, 11 S. E. 776; Railroad v. Dickinson, 88 Ill. 431; F. & M. Bank v.
Trans. Co., 56 Am. Dec. 68; Reed v. Cramer, 34 Am. Dec. 204. A mere I did not hear' is
entitled to no weight, * * * and does not create a conflict of evidence justifying the
submission of the question to the jury as one of fact. Culhane v. Railroad Co., 60 N. Y. 137;
Haverstock v. Railroad Co., 32 Atl. 1128; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Coel v.
Traction Co., 133 N. W. 23; State v. Murray, 139 N. C. 540; Cable v. Paine, 8 Fed. 788;
Henze v. Railway Co., 71 Mo. 633; Johnson v. AEtna L.I. Co., 158 Wis. 56.
Stoddard & Salisbury, for Respondents:
The case falls clearly within the well-established rule of law in this state that where the
evidence is conflicting the judgment will not be disturbed, if there is substantial evidence in
the record to support it. If there is a substantial conflict in the evidence, then the duty and
responsibility of finding the facts from the evidence devolves upon the trial court, and
constitutes a question concerning which this court has nothing to do, even though we may
feel that from the whole evidence we should have come to a different conclusion. Gardner v.
Gardner, 23 Nev. 215; Dixon v. Miller, 43 Nev. 280; Allen v. Allen, 44 Nev. 243.
The term positive' has been applied in a number of cases to evidence which is direct as
distinguished from circumstantial evidence, but a more accurate use of the term is to denote
affirmative as distinguished from negative evidence. Evidence is positive where the witness
states a certain thing did or did not happen or exist, and negative where the witness states that
he did not see or know of the happening or existence of a circumstance of fact. 22 C. J. 66.
Evidence of alleged telephone conversations, even where received at all, must be regarded
by the courts with caution, and as being weak and unsatisfactory. Before such evidence can be
admitted, the identity of the person at the other end of the line must be clearly and positively
established.
and positively established. Young v. Seattle T. Co., 74 Pac. 375; Planters C.O. Co. v. W. U.
T. Co., 6 L. R. A. (N.S.) 1181; Carroll v. Parry, Ann. Cas. 1916e, 971; Williamson Co. v.
King, 158 Pac. 1142; Murphy v. Jack, 142 N. Y. 215.
This action was instituted to recover an amount alleged to be due the plaintiffs
(respondents) on account of the purchase of certain stock upon the request of the defendant
(appellant). From a judgment in favor of the plaintiffs, the defendant has appealed. We will
allude to the parties as they were designated in the trial court.
The undisputed facts are these: On March 25, 1919, the defendant employed the plaintiffs,
who were stockbrokers, to purchase for his account 2,000 shares of stock. The defendant,
who resides at Lovelock, Nevada, telephoned the order to the plaintiffs at their Reno office.
In giving the order, he directed that the stock be sent to him at Lovelock, through the bank,
with a draft attached. He had never had any business dealings with the plaintiffs prior to this
transaction, and did not know the manager of the company (to whom we will refer as the
manager), who took the order over the telephone. On the evening of the day of the order the
defendant went to Reno, and called at the office of the plaintiffs, where for the first time he
met in person and talked with the manager, being then informed that his order had been filled;
the purchase having been made on San Francisco exchange.
There is but one disputed fact in the case to which we need to allude, and that goes to the
basis of the defense. It is claimed on the part of the defendant that two days after the stock
had been purchased, as stated, he gave the plaintiffs instructions over the telephone from
Lovelock to sell the stock, credit him with the proceeds, and draw on him for the difference,
and that the plaintiffs agreed to do so. The plaintiffs deny having received such order to sell.
having received such order to sell. The lower court found for the plaintiffs, and rendered its
judgment accordingly.
1. The question to be determined is: Is the evidence sufficient to justify the finding and
decision of the court? It is said on behalf of the respondents that the evidence is conflicting,
that there is substantial evidence to support the findings and decision of the court, and hence
the judgment must, under a long line of decisions, be affirmed. The evidence is conflicting,
and there is substantial evidence to support the judgment, and it is true that it is a
well-recognized rule in this state that when the evidence is conflicting and there is substantial
evidence to sustain the judgment it will not be disturbed; but to this rule, as to nearly all
well-established rules, there is an exception, as well recognized by this court as is the general
rule, and as promptly and surely invoked and applied when applicable. We know of no better
statement of the exception that is found in the language of the court in the case of Watt v.
Nevada Central R.R. Co., 23 Nev. 154, 44 Pac. 423, 46 Pac. 52, 726, 62 Am. St. Rep. 772,
where it is said:
Notwithstanding the well-established rule which has been so often announced by this and
other courts that, where there is a substantial conflict in the evidence, the appellate court will
not disturb the decision of the court below,' there is another rule as well established and of as
binding force, both in actions at law and in equity, addressed to the conscience and judgment
of the court of last resort, which cannot be ignored without doing violence to the plain
principles of common justice in many cases, to wit: If there be no substantial conflict in the
evidence upon any material point and a verdict or decision be against such evidence upon
such point, or where the verdict or decision strikes the mind, at first blush, as manifestly and
palpably contrary to the evidence, the supreme court will direct a new trial.' Hayne, New Trial
and Appeal, sec. 288, and citations; Barnes v. Sabron, 10 Nev. 217. "The duty of the
supreme court to look into the evidence and grant a new trial 'in cases where it appears
that the evidence taken all together does not support the verdict or decision or judgment
of the court,' is made clear by Stats.
The duty of the supreme court to look into the evidence and grant a new trial in cases
where it appears that the evidence taken all together does not support the verdict or decision
or judgment of the court,' is made clear by Stats. 1893, p. 88, as authoratatively construed in
Beck v. Thompson, 22 Nev. 121. In that case the court, while recognizing the rule applicable
in case of conflict of evidence as given above, said: As already remarked, this statute (1893)
has worked an important and quite radical change, and in a proper case, without regard to
whether there are or are not findings, seems to impose upon this court the duty of reviewing
the evidence, and determining whether the final results is supported by it. This statute was
undoubtedly designed to cut through many technicalities that have so often prevented cases
from being considered upon their merits, and should be construed in the same broad spirit in
which it was enacted, but at the same time with such conservatism as will not result in the
reversal of a case where substantial justice has been done. * * * Where there is a substantial
conflict in the testimony, the appellate court should undoubtedly not substitute its judgment
for that of the trial court, and should only interfere where, upon all the evidence, it is clear
that a wrong conclusion has been reached.'
The rule thus stated was recognized at an early date in an opinion by Lewis, C. J., in Reed
v. Reed, 4 Nev. 395; and in Beck v. Thompson, 22 Nev. 109, 36 Pac. 562, it is said that the
appellate court should reverse the judgment upon the ground of insufficiency of the evidence
to sustain the judgment where, upon all the evidence, it is clear that a wrong conclusion has
been reached. Such is the well-recognized rule. 2 Hayne, New Trial and Appeal (Rev. Ed.)
p. 1640; Burch v. Southern Pacific Co., 32 Nev. 75, 104 Pac. 239, Ann. Cas. 1912b, 1116.
2. Do the facts of this case bring it within the exception? To answer this question we must
review the testimony. As we have stated, it is the contention of defendant that he gave an
order to purchase the stock on March 25 and to sell the same on March 27.
of defendant that he gave an order to purchase the stock on March 25 and to sell the same on
March 27. Plaintiffs deny that an order to sell was given. The undisputed testimony shows
that on March 25, when the order to purchase the stock was given, it was taken by the
manager. It also appears without question that on that evening defendant had a talk with the
manager in the office of the plaintiffs in Reno, and again in the Golden Hotel in Reno on
April 7. In support of the contention that on March 27 he gave the plaintiffs an order to sell
the stock, defendant testified that he went into the telephone office in Lovelock that morning
about 9 o'clock, and signified a desire to talk with the plaintiffs at their Reno office; that he
was invited into the office of the manager of the telephone company to have his talk; that very
quickly he was notified that his party was on the line, and the he at once entered into
conversation with the party at the other end of the line. He testified that he asked it it was
Smith & Amann he was talking with, and received an affirmative reply, and that he
recognized the voice at the other end of the line as that of the person with whom he had
talked when he gave the order to buy, who is admitted to be the manager. He also testified
positively that he as that time gave an order to sell the stock which he had ordered purchased
two days before, directed that he be credited with the proceeds of the sale, and that a draft be
drawn upon him for the difference. He testified also that he was informed that that would be
satisfactory.
Mrs. Dayton, an operator in the telephone office in Lovelock, testified that on March 27,
about 9 o'clock, Mr. Goodin came into the telephone office and requested a connection with
the office of the plaintiffs; that it was quickly made, and the Mr. Goodin at once began to
talk. She testified also that the office had frequent calls for Smith & Amann, that she knew
the manager's voice, and that is was he who answered the call on that morning, and with
whom Mr.
morning, and with whom Mr. Goodin talked. A charge slip of the telephone call of date
March 27, numbered 48, showing a charge for a talk between Goodin and the plaintiffs, is in
the record.
Mr. Hugh L. Thomas, the superintendent of the telephone company, testified that on the
morning of March 27 he was in his private office; that Mr. Goodin came into the telephone
office and requested a connection with Smith & Amann, and that he invited him into the
private office to talk; that shortly thereafter the operator informed Mr. Goodin that his party
was on the line; that Goodin began to talk, and that he heard him give an order to sell the
stock in question.
On behalf of the plaintiffs, four witnesses testified, namely, Mr. Smith, one of the
plaintiffs; Wm. E. Wald, Frank McCafferty, and the manager. Mr. Smith testified that he was
in San Francisco on March 27; Wald and McCafferty that they never answered long-distance
calls, that it was the duty of the manager to do so, and that they did not talk with Goodin on
March 27. The testimony of Smith may be brushed aside, as it is of no consequence in
determining the issue, since it was a physical impossibility for him to have answered the call
or to have known whether or not there was one; and the testimony of the other two witnesses
must be disregarded, because it was not their duty to answer long-distance calls, and they had
never done so according to their undisputed testimony. The only remaining witness for the
plaintiffs is the manager, who testified that the firm had had no call from Goodin on March
27, and the he had answered none from Lovelock on that morning. It thus appears that the
testimony opposed to that of Mrs. Dayton, a disinterested witness, to the charge slip for the
telephone call, to the testimony of Thomas, the superintendent of the telephone company, and
to that of Mr. Goodin, is the sole testimony of the manager that he had had no call or talk
with Goodin. The defendant is the cashier of the First National Bank of Lovelock.
Bank of Lovelock. He was interested in the outcome of the suit, but not more so than the
manager; for if it be shown that the manager failed to comply with the order of Goodin, if it
was given, it is rational to presume he would be called upon to make good the loss, and
would probably lose his position as a consequence; whereas, if the case is decided against
Goodin, the only consequence so far as he is concerned will be the financial loss. Hence there
is more likelihood, other things being equal, that the manager, rather than Goodin, would
stretch the truth. Furthermore, there stands the testimony of two disinterested witnesses, and
the charge slip, for the defendant. Mrs. Dayton testified positively that she had frequent calls
for the firm, that she knew the manager's voice and that it was he who answered the call on
March 27, and who talked with Mr. Goodin. The charge slip is indisputable evidence of the
call. Thomas testified to the call having been put in by Goodin, who was called to the
telephone to talk with the plaintiff firm, and the he heard Goodin give the order to sell. The
truthfulness of this testimony, of the testimony of Mrs. Dayton, and the evidence of the slip,
cannot well be questioned; they corroborate the testimony of Goodin.
But we do not believe that either the manager or Goodin stretched the truth. The
probability is that the manager forgot to make a note of the order to sell, and that the entire
incident escaped his mind. March 27, 1919, was during the time of a boom in Divide stocks.
The plaintiff firm was receiving many telephone calls ordering the purchase or sale of stocks,
all of which the manager answered. It is easily seen that one who was receiving and
answering many calls during the day, as was the manager, is more likely to have overlooked
the incident than was Thomas, Mrs. Dayton, who made out the charge slips, and the
defendant.
In the language of the court in Beck v. Thompson, supra, repeated in Watt v. Nevada
Central R. R. Co., supra, it is clear that a wrong conclusion was reached by the trial court.
supra, it is clear that a wrong conclusion was reached by the trial court.
The judgment is reversed and the case remanded for further proceedings in accordance
herewith.
Per Curiam:
Rehearing denied.
____________
46 Nev. 239, 239 (1923)
REPORTS OF CASES
Determined By
THE SUPREME COURT
Of The
STATE OF NEVADA
____________
January Term, 1923
____________
46 Nev. 239, 239 (1923) Postal Telegraph-Cable Co. v. Howe
[No. 2528]
POSTAL TELEGRAPHCABLE COMPANY (a Corporation), Appellant, v. A. H. HOWE,
Respondent.
[211 Pac. 358]
1. Telegraphs and TelephonesLimitation of Liability under Interstate Commerce Act
Binding on Sender without Assent.
Under Interstate Commerce Act, as amended by the act of June 18, 1910 (U. S. Comp. St., sec.
8563, et. seq.), bringing telegraph companies within the operation of the act, the sender of an unrepeated
interstate message is bound as a matter of law, without actual assent, by a provision in the company's
lawfully established tariff limiting its liability for a mistake in transmission to the amount of the usual
charge for sending the message, unless the mistake is the result of wilful misconduct or gross negligence,
as any deviation from such provision would violate the statutory requirement of equality and uniformity
of rates.
2. CourtsState Supreme Court Bound by Decision of United States Supreme Court as to
Effect of Limitation of Liability for Mistake in Transmission of Unrepeated Interstate Message.
The state supreme court must defer to the decision of the United States Supreme Court that the sender
of an unrepeated interstate telegram is bound, under Interstate Commerce Act, as amended by the act of
June 18, 1910 (U. S. Comp. St. 8563, et seq.) by a provision in the company's lawfully established tariff
limiting its liability for mistake in transmission to the usual charge for sending the message.
3. Telegraphs and TelephonesCompany Not Estopped by Agreement Violating Statutory
Requirement of Uniformity of Rates.
Under Interstate Commerce Act, as amended by the act of June 18, 1910 (U.S. Comp. St., sec. 8563,
et seq.), bringing telegraph companies within the operation of the act, a telegraph company is not
estopped by an agreement to pay a loss resulting from a mistake in transmission of an unrepeated
interstate message from asserting that its liability is limited by a provision printed on the back of the
telegram to the amount of the usual charge for sending the message, estoppel being inapplicable to a
contract which is invalid as violating the requirement of uniformity and equality of rates.
Action by the Postal Telegraph - Cable Company against A. H. Howe. From a judgment
for plaintiff in an insufficient amount, it appeals. Reversed and remanded, with directions.
Brown & Belford, for Appellant:
It is a legal proposition, fundamental in the case at bar, that where an interstate telegraphic
message is written upon a telegraph blank or form containing the usual contract, limiting, in
accordance with the established practice, rules, and regulations of the telegraph company, the
liability of the company for errors in the transmission or delivery of the message, and the
message is sent as an unrepeated message, in accordance with the form printed upon the
telegram for the sending of which the unrepeated rate is charged, the limitation of liability
contained on the printed back is lawful and fixed the limit of the responsibility of the
telegraph company in the event of a mistake and cannot be waived, or a different liability
imposed or assumed by agreement or otherwise.
Prior to the act of Congress of June 18, 1910, amending the Interstate Commerce Act,
there was a conflict of authority between the courts of various states as to the validity of the
contract in question. Some state courts followed, and others refused to follow, the ruling of
the United States Supreme Court in Primrose v. Western Union Tel. Co., 154 U.S. 1, where
the contract was considered and the limitation contained therein held to be valid.
United States Supreme Court in Primrose v. Western Union Tel. Co., 154 U.S. 1, where the
contract was considered and the limitation contained therein held to be valid.
Section 1 of the Interstate Commerce Act, as amended by the said act of June 18, 1910,
made the provisions of the Interstate Commerce Act applicable to telegraph companies
engaged in sending messages from one state to another. The provisions of section 1, with
those of sections 2, 3, and 15 of the act, constitute a specific regulation by Congress of
interstate commerce by telegraph. Congress itself has sanctioned the historic classifications of
unrepeated and repeated messages.
The validity of the classifications, and of the different liabilities attached to the different
rates, was recognized by the Interstate Commerce Commission in Clay County Products Co.
v. Western Union (commonly called the Cultura case), 44 Interst. Com. Rep. 670. This ruling
of the commission has received the sanction of the Supreme Court of the United States.
Postal Tel. Cable Co. v. Warren-Godwin Co., 40 S. C. R. 69; Postal v. Dickerson, 41 S. C. R.
60; Western Union v. Speight, 41 S. C. R. 11; Western Union v. Esteve Bros. & Co., 256 U.
S. 566.
Since the act of June 18, 1910, the courts of the country have recognized that the liability
for interstate telegraphic messages is under federal control and determined by federal law
(Nichols v. Western Union, 44 Nev. 148) notwithstanding any state statute, or previous state
policy or rule declared by the state courts. Haskell Implement Co. v. Postal, 114 Me. 277, 96
Atl. 219; Durre v. Western Union, 165 Wis. 190, 161 N. W. 755; Western Union v. Shade,
137 Tenn. 214, 192 S. W. 924; Western Union v. Spencer, 53 Okl. 398, 156 Pac. 1175;
Meadows v. Postal, 173 N. C. 240, 91 S.E. 1009; Western Union v. Foster, 224 Mass. 365,
113 N. E. 192; Western Union v. Kaufman, 162 Pac. 708; Western Union v. Boling, 91 S. E.
154; Boyce v. Western Union, 89 S. E. 109.
A waiver of the limitation of liability, or any assumption by agreement or otherwise of a
greater liability than that fixed by the telegraph contract, and the rules and regulations of the
company with regard to unrepeated messages, would constitute an unlawful discrimination
in favor of the sender of the message and be violative of the rule of uniformity and equality
required by the Interstate Commerce Act. Even if such promise were made, it would be
invalid for want of consideration, and would be an attempt to accord defendant special and
favorable treatment not generally accorded to senders of telegraph messages. Postal v.
Warren-Godwin, supra; Western Union v. Esteve Bros. & Co., supra. In the latter case, the
message was not written upon a printed blank containing any contract, but the supreme court
held the sender bound by the rules, classification, and limitation of liability enforced by the
company.
The Interstate Commerce Act forbids railroads from allowing unlawful preferences or
advantages. The principles involved are equally applicable to interstate telegraphic
communication. A. T. & S. F. Ry. Co. v. Robinson, 233 U.S. 173, 58 L. Ed. 901; Phillips Co.
v. Grand Trunk Ry. Co., 236 U.S. 662, 59 L. Ed. 774; Georgia F. & R. Co. v. Blish Milling
Co., 241 U.S. 190, 60 L. Ed. 948; C.R.I. & G. Ry. Co. v. Shroyer, 197 S. W. 773; Donohoo
Horse and Mule Co. v. M.K. & T. Ry. Co., 149 Pac. 436.
Harwood & Tippett, for Respondent:
The facts in this case differentiate it from any of the numerous cases cited by appellant,
and sustain the proposition contended for by respondent. Numerous courts, including the
Supreme Court of the United States, have held that an interstate message is controlled by the
act of Congress of June 18, 1910, but a different situation arose here. Mr. Howe, through no
fault of his own, and through the admitted fault of the telegraph company, found that he had
sold stock which he did not own, and for which no one was responsible to him.
he did not own, and for which no one was responsible to him. He could gamble or not, as he
saw fit, and it is clearly indicated in the testimony that he might have been willing to do so. It
would have been a very fortunate gamble if he had taken the chance, but there is no question
that was the situation when the error was discovered. If the telegraph company chose to stand
on its contract and let Mr. Howe speculate on his own account or close out the deal and take
the loss and make claim under the contract, well and good. That was its privilege. But,
instead of doing that, its agents and managers showed the greatest concern and said to Mr.
Howe in substance: It's our fault; we're very sorry; close out the deal at the least possible
loss, send the bill to us, and we will pay the damage. He did as requested, and sustained a
loss, and appellant is estopped now to deny its liability, as the liability arose entirely
subsequent to and independent of the contract and rested upon the principle of estoppel.
The vice of the whole thing is the premise that the contract is reasonable. The alternative
offered the patrons of the company are so unreasonable that it is practically impossible to do
business with it. It affords no consolation to a man requiring speed in telegraphic service to
be offered a repeat message rate or an insured rate. The first limits the company's liability to
fifty times the charge for the message, and the insured message rate involves details and
difficulties that make it unusable.
The principle of estoppel certainly is applicable unless Congress has the power and has in
fact used that power so as to erect a moratorium or a sort of halo of inviolate sanctity around
a telegraph company engaged in interstate commerce. If the argument of appellant based upon
the Esteve case is sound, then it matters not what promises the telegraph company's officers
may make, how reckless its employees may be, how its customers may be fooled into relying
upon its word to change their position. The answer to any one who has suffered from its
interstate service is found in the simple statement that the law does not permit it to
discriminate.
suffered from its interstate service is found in the simple statement that the law does not
permit it to discriminate. This answer involves the complete isolation of a common carrier or
telegraph company from every other obligation, liability, or consequence of its act with
relation to its customers. The federal courts are bound by this absurd rule promulgated by the
Supreme Court of the United States, but the state courts are not.
In making this argument, we have assumed to be well established several principles of law
affecting these contracts and these claims for damages, but the principles involved are so
elementary, in the sense of being fundamental, that it is more a question of logic and the
application of correct principles than it is of the citation of authorities.
By the Court, Sanders, J.:
The Postal TelegraphCable Company, a Nevada corporation, engaged in the business of
sending, receiving, and transmitting for hire telegraph and telephone messages from and to its
office located at Reno, Nevada, and to and from places in and without said state, brought this
action against A. H. Howe to recover the sum of $664.28 on account of telegrams and
long-distance telephone messages sent and received by said Howe, at his special instance and
request, during the months of May and June, 1919. The case was tried before the court
without a jury. Upon its findings of facts, the court concluded as a matter of law that the
plaintiff's claim should be reduced to $330.80, and rendered judgment for that sum. The
plaintiff appeals from said judgment, and also from an order overruling and denying its
motion for a new trial.
The facts as gathered from the pleadings and the findings, stated in narrative form, are as
follows:
The defendant was, and is now, a mining stock broker at Reno, Nevada, and transacted a
larger part of his business of buying and selling stock through one R. L. Colburn, a mining
stock broker on the San Francisco Stock Exchange.
business of buying and selling stock through one R. L. Colburn, a mining stock broker on the
San Francisco Stock Exchange. On the 12th day of April, 1919, having an order to sell certain
stocks, the defendant delivered to plaintiff, at its Reno office, a telegram written on one of its
blank forms, reading as follows:
Colburn, San Francisco: Sell five hundred Zone, one dollar; two thousand High Divide,
twenty; Buy one Grimes, twenty-four. Signed, Howe.
The plaintiff, in transmitting said message, caused the same to be transmitted or
transcribed and delivered to said Colburn so as to read twenty thousand High Divide,
twenty, instead of two thousand High Divide, twenty. Before the discovery of the mistake
Colburn sold 11,000 shares of High Divide stock, pursuant to said telegraphic order, at 20
cents per share, with the result that the defendant was oversold, or short 9,000 shares of said
stock at 20 cents per share. Immediately upon discovering the error in the order to sell, the
defendant notified plaintiff thereof, in the person of one T. H. Brown, the manager of its Reno
office, and secretary of the plaintiff corporation, who, after talking with a Mr. Hearn, the
superintendent of all its lines and business west and northwest of Denver, including Nevada
and northern California, went to defendant on the same day or the day following and stated
that he was instructed by said superintendent of the company to say that the mistake in the
telegram was clearly that of the company, and requested the defendant to close the transaction
with as little loss as possible and send the bill to the company and they would pay it. The
defendant adopted and acted upon the request of plaintiff, and closed the transaction by
buying 9,000 shares of High Divide stock7,000 at 23 cents per share, and 2,000 at 24 cents
per shareresulting in a net loss of $333.48. In the latter part of April, 1919, High Divide
advanced to as high as 30 or 31 cents per share, and thereafter declined, and at the time of the
trial of the action its market value was 4 or 5 cents per share.
action its market value was 4 or 5 cents per share. The defendant, on the 18th day of April,
made claim of plaintiff for the said sum of $333.48, which was refused.
The telegram involved is an unrepeated message, and the court finds that the charge
therefor was 69 cents. The defendant had been doing a large amount of business with
plaintiff, and his telegraph bill were running from $200 to $800 per month. The defendant, at
the time of filing his answer, offered that plaintiff might take judgment for the sum of
$330.80, and no more, with accrued costs to the time of filing the answer.
Plaintiff requested certain findings of fact, which were refused, and an exception to the
refusal taken. The requested findings included a general finding that the affirmative
allegations in plaintiff's reply to the defendant's answer and counter-claim were true. The
reply was, in substance, that the telegram was sent in accordance with the terms of the
contract printed on the back thereof, which limits the liability of the company in case of a
mistake in an unrepeated message to the amount of the usual and ordinary charge for sending
the message, which, in this instance, was 69 cents. The reply also contained allegations
respecting the meaning of the classifications into repeated and unrepeated messages and
the liability assumed for such messages, also that the message was an interstate message, and
by the act of Congress of June 18, 1910 (U. S. Com. St., sec. 8563, et seq.), the Interstate
Commerce Commission was given and had full power over the rates, charges, facilities,
classifications, and practices of telegraph companies engaged in interstate commerce, and that
by reason of said act and the premises the plaintiff was entitled to judgment for the full sum
demanded, less the sum of 69 cents.
A proposed finding denying plaintiff's purported request and assumption of liability, and
denying that plaintiff, or its agents, had made any agreement assuming to pay full amount of
defendant's loss or damage, or any amount other than that fixed by the telegraph contract for
a mistake in the transmission of an unrepeated message, was refused.
contract for a mistake in the transmission of an unrepeated message, was refused.
In view of the facts as found, and of the refused findings, it is apparent that the question
for our determination is whether, under the Interstate Commerce Act, as amended by the act
of June 18, 1910 (36 Stats. at Large, 539, 544; 4 Fed. Stats. Ann., 2d ed., p. 337), the
judgment is against the law.
1, 2. Since the amendment of June 18, 1910, to the Interstate Commerce Act, bringing
telegraph companies within the operation of that act, in cases brought against telegraph
companies in which the sole question is the amount of damages to be recovered for mistake
in the transmission of unrepeated messages, it is held that the sender is, without assent in fact,
bound as a matter of law by the provision in the company's lawfully established tariff,
limiting liability for mistake in transmission of such messages, and any deviation therefrom
would violate the statutory requirement of equality and uniformity of rates, except, of course,
where the mistake is the result of wilful misconduct or gross negligence. Western Union Tel.
Co. v. Esteve Bros. & Co., 256 U.S. 566, 41 Sup. Ct. 584, 65 L. Ed. 1094. This court is in
duty bound to defer to this decision of the supreme court. Nichols v. Western Union Tel. Co.,
44 Nev. 148, 191 Pac. 573.
If, then, the finding that the plaintiff company, through its authorized agents, on being
informed of its mistake in the transmission of the telegram, requested the defendant to close
the transaction with as little loss as possible to the company and send the bill to the company
and the company would pay it, is violative of the Interstate Commerce Act, as amended by
the act of June 18, 1910, and infringes the rule declared by the supreme court, we should be
impelled to conclude that the judgment should be reversed and the case remanded, with
directions that judgment be rendered for the full sum demanded in plaintiff's complaint, less
the sum of 69 cents, the cost of the telegram.
3. Counsel for the defendant concede the rule to be that stated in the case of Esteve Bros.
& Co., and other cases cited by counsel for plaintiff, but strongly argue that the rule is not
applicable to the situation here, and assert that the transaction between the parties as disclosed
by the findings must be governed and decided by the application of the doctrine of estoppel.
In support of this proposition we are admonished that no court, state or federal, should go to
the extent of holding that the Interstate Commerce Act, as amended, does, may, or shall stand
in the way of an equitable estoppel when the facts demand its application in the interest of
justice and right.
In 2 Page on Contracts, sec. 1094, it is said:
If the contract is invalid, as against policy or as forbidden by statute, estoppel has no
application.
In Southern R. Co. v. Lewis & Adcock Co., 139 Tenn. 37, 201 S. W. 131, L. R. A. 1918c,
976, it is held that estoppel is not applicable to a contract invalid under the Interstate
Commerce Act.
In 10 Ruling Case Law, p. 801, it is said:
Manifestly the reason underlying the limitation on the doctrine of estoppel presently
under the discussion is that, when the matter of illegality arises, the question ceases to be one
solely between the parties or between private individuals. Accordingly an estoppel is not
available to sustain a contract of carriage which is invalid under the Interstate Commerce
Act.
Justice Brandeis, in the case of Esteve Bros. & Co., declares that the act of 1910
introduced a new principle into the legal relations of the telegraph companies with their
patrons which dominated and modified the principles previously governing them. He further
said:
Uniformity demanded that the rate represent the whole duty and the whole liability of the
company. It could not be varied by agreement; still less could it be varied by lack of
agreement. The rate became, not as before a matter of contract by which a legal liability could
be modified, but a matter of law by which a uniform liability was imposed.
There is no doubt that in the case at bar the plaintiff, in assuming to pay the loss resulting
to the defendant from its admitted mistake in the transmission of the message involved,
assumed voluntarily an additional liability or obligation forbidden by the statute in the interest
of uniformity and equality of rates. Hence we are impelled to conclude that the estoppel relied
upon by counsel for the defendant in support of the judgment has no application.
The judgment is reversed, and the case is ordered remanded, with directions to the trial
court to render judgment in favor of plaintiff for the full amount demanded in its complaint,
to wit, $664.28, less the sum of 69 cents, with interest thereon, the cost of the telegram here
involved.
____________
46 Nev. 249, 249 (1923) Capurro v. Christensen
[No. 2548]
PETER CAPURRO and ADELE CAPURRO, His Wife, Respondents, v. C. J.
CHRISTENSEN, Appellant.
[209 Pac. 1045]
1. Exceptions, Bill ofCertificate to a Bill Not Complying with Statute Held Insufficient.
A certificate of a trial judge to a bill of exceptions, which fails to contain a statement that the bill of
exceptions is correct or that it contains the substance of all the material evidence relating to the points
involved, as required by Stats. 1915, c. 142, sec. 1, as amended by Stats. 1919, c. 237, is insufficient.
2. Exceptions, Bill ofInsufficiency Certificate Held Not Cured by Reference to Transcript.
Failure of the certificate of the trial judge to a bill of exceptions to state that the bill contained the
substance of all the material evidence relating to the points involved, held not cured by a reference
therein to the subjoined transcript of the testimony as part thereof, which transcript purported to be a full
statement of the testimony of the trial.
3. Exceptions, Bill ofCertificate of Trial Judge Held Not Subject to Amendment.
Where a certificate of a trial judge to a bill of exceptions fails to state that the bill is correct, the
certificate cannot be amended by obtaining from the trial judge an amended certificate and sending it to
the supreme court, accompanied with a request to attach it to the bill.
Appeal from Second Judicial District Court, Washoe County; Geo A. Bartlett, Judge.
Action by Peter Capurro and wife against C. J. Christensen. Judgment for plaintiffs, and,
from the judgment and a denial of a new trial, defendant appeals. Affirmed. Petition for
rehearing denied.
A. Grant Miller, for Appellant:
Respondent desires this court to go behind the record of the signed approval of the bill of
exceptions by the trial judge. True, the certificate omits the word correct, but the words
used, we submit, embrace the correctness. Upon discovering the omission, an amended
certificate was obtained from the trial judge and sent to the clerk of this court with a request
from that judge to the clerk of this court that it be attached to the bill of exceptions; the clerk
doubted his authority to do this. The appellant now moves this court to direct the clerk to do
so.
Section 2, Stats. 1915, p. 164, refers only to bills of exceptions taken upon the trial and not
to bills of exceptions upon appeal after judgment.
Frame & Raffetto, for Respondents:
Section 2, Stats. 1915 p. 164, and following section, as amended by section 1, Stats. 1919,
p. 440, provides manner of settling and allowing bills of exceptions, the time in which the
same must be served, allowing time for suggesting amendments, and provides that the same
shall be done by attaching a certificate to the effect that such bill of exceptions is correct,
contains the substance of all the material evidence relating to the points involved, and has
been settled and allowed.
The bill of exceptions in this case was not served within time, and consequently the court
was without jurisdiction to settle the same. There is not even contained in the bill of
exceptions the certificate of the trial judge certifying that it is correct, or that the same
contains all the material evidence. This is absolutely necessary, and without it there is nothing
upon which to predicate the appeal.
This appeal is taken from a judgment and order denying a motion for a new trial, entered
in an action which arose out of an assault alleged to have been made by appellant upon Adele
Capurro, the wife of the other respondent. Damages were claimed in the sum of $15,000. The
action was tried before the court without a jury, and damages awarded to the respondent in
the sum of $1,500. A timely motion to dismiss the appeal was made by the respondents. The
appeal and motion were submitted together. Briefly stated, the motion to dismiss is upon the
grounds that the purported bill of exceptions was not served, signed, settled, and allowed
within the time required by law, or within the time the same was extended by order of the
court; that respondents were not given anytime to suggest amendments to said purported bill
of exceptions, and have not waived the same; that the said pretended bill of exceptions is not
certified by the trial judge as correct and containing the substance of all the material evidence
necessary for the consideration of the appeal as required by law. The following certificate,
signed by the trial judge, appears in the so-called bill of exceptions sent up to this court with
the record in the case:
The foregoing bill of exceptions is hereby settled and approved as appellant's bill of
exceptions on appeal, together with the subjoined transcript of the testimony as a part
thereof.
The transcript referred to in the certificate purports to be a full, true, and correct statement
of the testimony given and proceedings had at the trial of the case, certified by the reporter.
Appellant contends that the foregoing certificate of the trial judge is sufficient. It is stated
in the brief that the word correct was omitted from the certificate, and on discovering the
omission appellant obtained from the trial judge an amended certificate and sent the same to
the clerk of the supreme court, accompanied by the request of said trial judge to said clerk to
attach it to said bill of exceptions, that the latter doubted his authority so to do, and
appellant now requests this court to direct the clerk to do so.
authority so to do, and appellant now requests this court to direct the clerk to do so.
We think the said bill of exceptions must be disregarded for the reason that it is not
properly certified by the trial judge. The certificate of the judge or court settling and allowing
a bill of exceptions in a case of this kind is prescribed in section 1 of the act of 1915, c. 142,
concerning bills of exceptions, as such section was amended in 1919 (Stats. 1919, p. 440),
and at least must be substantially complied with. It reads:
Any party to an action or special proceeding may, after the filing of the complaint, and
before trial, object and except to any ruling, decision, or order made in such action or special
proceeding, and, within ten (10) days after such objection and exception, serve and file a bill
of exceptions thereto, 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 to
the effect that such bill of exceptions is correct, contains the substance of all the material
evidence 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 be and become a part of the
record of such action or special proceeding.
This section applies to an action or special proceeding after the filing of a complaint and
before trial, but section 2 of said act makes the provision of section 1 concerning the
settlement and allowance of a bill of exceptions applicable to an action or special proceeding
in which the objections and exceptions may be taken from the time it is called for trial, and
until final judgment.
1, 2. It is to be observed that the certificate of the trial judge in this case does not contain
any statement that the said bill of exceptions is correct, or that it contains the substance of all
the material evidence relating to the point or points involved, or any words that can give the
certificate that effect.
give the certificate that effect. The reference therein to the transcript of the testimony does not
accomplish such result. This reference only serves to make the transcript of the testimony a
part of the so-called bill of exceptions. The effect of the entire certificate is merely that the
bill of exceptions has been settled and allowed. The statute, as we have seen, requires two
other essentials in the certificate before a bill of exceptions can become a part of the record.
3. As to the contention that appellant is entitled to have the certificate amended in the
manner heretofore stated, there is no authority for a proceeding of that kind. Besides, an
examination of the proposed amended certificate sent to the clerk of this court reveals that it
is also insufficient. It reads:
I hereby certify that the foregoing is hereby settled, approved and allowed as the bill of
exceptions on appeal in the above-entitled action, to wit, Peter Capurro and Adele Capurro,
his wife, plaintiffs, versus C. J. Christensen, defendant, and is correct.
One of the requirements of the statute, that a certificate to a bill of exceptions must be to
the effect that is contains the substance of all the material evidence relating to the point or
points involved, is omitted. The sole purpose of the legislature of 1919 in amending section
1 of the said act of 1915 was to make this requirement.
The judgment roll reveals no error, and, as there is no valid bill of exceptions in the record,
the judgment must be affirmed.
It is so ordered.
Per Curiam:
Rehearing denied.
____________
46 Nev. 254, 254 (1923) Scossa v. Church
[No. 2520]
IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS TO THE
WATERS OF BARBER CREEK AND ITS TRIBUTARIES IN DOUGLAS COUNTY,
NEVADA.
EUGENE SCOSSA, Appellant, v. CLARISSA CHURCH and BARBER ESTATE,
Respondents.
[182 Pac. 925; 187 Pac. 1004; 205 Pac. 518; 210 Pac. 563]
1. Waters and WatercoursesAppellate Court Confined to Issues Made by Pleadings.
In a special proceeding, under the water code, to determine rights to water, where an appeal is the first
to reach an appellate court under the procedure, the appellate court is confined to issues raised by the
pleadings.
2. Waters and WatercoursesFindings of State Engineer in Proceeding under Water Code
Are Presumed Correct.
The findings of the sate engineer, in proceedings under the water code, to determine rights to water,
though not conclusive, are entitled to a presumption of correctness and that they support the decree
entered.
3. InjunctionDismissal of Contempt Proceedings Founded on Injunction Proceedings Held
Not to Change Rights of the Parties under the Decree in the Injunction Suit.
Where a decree in an injunction suit had settled the rights of parties to certain water, a judgment of
dismissal of contempt proceedings founded on the injunction, in which the party cited for contempt
pleaded a prescriptive right to use the water, did not operate to change the rights of the parties, as
established by the decree in the injunction suit.
4. ContemptTest of Contempt Proceedings Is Jurisdiction to Make Order or Decree Alleged
to Have Been Violated.
A proceeding for contempt is a special proceeding, criminal in character, and the test of it is the
jurisdiction of the court to make the order or decree alleged to have been violated.
5. Waters and WatercoursesValuable Water Right Not Adjudicated as an Incidental Matter.
A valuable water right will not generally be adjudicated in a proceeding incidental to another main
cause, such as a contempt proceeding.
Appeal from First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Proceeding by Eugene Scossa against Clarissa Church and another, before the State
Engineer, to determine relative rights to waters of Barber Creek and its tributaries, in
Douglas County.
and another, before the State Engineer, to determine relative rights to waters of Barber Creek
and its tributaries, in Douglas County. On a former appeal, the cause was remanded to the
District Court for certain formal findings and for a decree settling the relative rights of the
parties. From such decree and an order overruling and denying contestant's motion for a new
trial, contestant appeals. Affirmed. Petition for rehearing denied. Second petition for
rehearing denied.
Chartz & Chartz, for Appellant:
Unless reversed or annulled or equitable or statutory grounds, in some proceeding or suit
authorized by law for that purpose, the judgment or decree of a court of competent
jurisdiction, upon the merits, concludes the parties and privies to the litigation, and
constitutes a bar to a new action or suit involving the same cause of action, either before the
same or any other tribunal 24 Am. & Eng. Ency. Law, 710-712, 781-782. It is immaterial
that the form of the second action is different from the first. Warren v. Cummings, 6 Cush.
(Mass.) 103.
It matters not the character of the proceedings in which the issues are adjudicated, but
whether they have in fact been adjudicated between the same parties or their privies. Vickers
v. Vickers, 45 Nev. 281. This general rule is demanded by the very object for which civil
courts have been established, which is to secure the peace and repose of society by the
settlement of matters capable of judicial determination. Its enforcement is essential to the
maintenance of social order. Vickers v. Vickers, 45 Nev. 281; Sherman v. Dilley, 3 Nev. 21.
Platt & Sanford, for Respondents:
A finding of fact in an equity suit supported by the evidence is conclusive on the supreme
court. Costello v. Scott, 30 Nev. 1.
A contempt for the disobedience of a decree and violation of an injunction is in the nature
of a criminal offense, and the proceeding for its punishment is in the nature of a criminal
proceeding."
violation of an injunction is in the nature of a criminal offense, and the proceeding for its
punishment is in the nature of a criminal proceeding. Ex Parte Sweeney, 18 Nev. 74; Rev.
Laws, 6305, 6368; Maxwell v. Rives, 11 Nev. 213; Ex Parte Gould, 21 L. R. A. 751; New
Orleans v. New York Mail S. S. Co., 87 U.S. 387.
A judgment in a criminal prosecution may not be pleaded as res judicata in a civil
proceeding, nor can such judgment be given in evidence in a civil action to establish the truth
of the facts on which it was rendered. 2 Black on Judgments, sec. 529; 1 Greenleaf on
Evidence, sec. 537; 2 Taylor on Evidence, sec. 1693; Mack v. Levy, 59 Fed. 458; 15 R. C. L.,
sec. 476, 477, 478.
This proceeding was commenced in the year 1914, before the state engineer, to determine
the relative rights of the parties herein, the only claimants, to the waters of Barber Creek, in
Douglas County. It culminated in a final decree in May, 1921, which adjudged to respondents
the first right to the waters of the stream and its tributaries, with a priority from the year 1852,
granting to them the use of 2 cubic feet of said waters per second throughout each year, and to
3.0436 cubic feet per second or 1,102.81 acre-feet during the irrigating season, from April 1
to October 1 of each year, for the irrigation of 202.89 acres, described in the decree according
to the legal subdivisions of the several tracts and parcels. The decree adjudged to Eugene
Scossa the second right, with a priority from the year 1886, to the use of .5 cubic feet per
second or 181.17 acre-feet during said irrigating season, for the irrigation of 33.04 acres,
subject, however, to the prior rights and uses as adjudged and decreed to respondents.
It is of that portion of the decree that gives to respondents the first, and to appellant the
second, right to the use of the waters of Barber Creek and its tributaries that appellant
complains. He bases his objections to the award made by the decree upon two grounds: One
that his right to the use of the waters of Job's Canyon Creek, found by the trial court to be
a branch or tributary of Barber Creek, is res judicata, and the other that he has a
prescriptive right to the waters of Job's Canyon Creek.
that his right to the use of the waters of Job's Canyon Creek, found by the trial court to be a
branch or tributary of Barber Creek, is res judicata, and the other that he has a prescriptive
right to the waters of Job's Canyon Creek. To make clear the legal question involved in these
contentions, a brief statement of the facts, as gathered from the findings will suffice.
In 1852 the respondents' grantors and predecessors in interest appropriated the waters of
Barber Creek and its tributaries, and used the same continuously for irrigation purposes,
except when interrupted by appellant's grantors and predecessors in interest in the years 1894,
1985 and 1896, by the erection of a flume and the excavation of a tunnel to divert the waters
of Barber Creek proper to and upon their land for irrigation purposes. In the year 1886 the
grantors and predecessors in interest of the appellant appropriated the waters of a branch or
tributary of Barber Creek, called Job's Canyon Creek, and diverted the waters of a certain
spring therein, by artificial means, to their land, located several miles below the original point
of diversion. In the year 1896 respondents' grantors and predecessors in interest brought an
action or suit to enjoin appellant's predecessors from maintaining their flume and extending
their tunnel, which was brought to trial in 1898, and resulted in a judgment and decree
establishing plaintiffs' rights to all the waters of Barber Creek and its tributaries, and
enjoining the defendants from in any manner diverting the waters of Barber Creek and
particularly the waters of a certain spring, when required by plaintiffs for irrigation and
domestic purposes, and particularly enjoining them from maintaining their flume and
extending said tunnel so as to, in any manner, interrupt or diminish the waters of Barber
Creek, or to turn the waters of that certain spring away from Barber Creek.
In 1910 the plaintiffs in the suit of 1898 filed an affidavit and obtained an order, citing the
defendants therein to appear and show cause why they should not be punished for contempt
for the violation of the decree and injunction.
be punished for contempt for the violation of the decree and injunction. The affidavit set forth
the judgment roll in the injunction suit and charged that the defendants, in the manner
specified in the affidavit, had diverted the waters of Barber Creek and its tributaries, in
violation of the decree and injunction. The defendants, after particularly denying the facts
stated in the affidavit, for a defense to the charge of contempt, admitted the diversion of the
waters, and averred that they had used the same since April 23, 1898, openly, continuously,
peaceably, and adversely to all the world, and particularly to plaintiffs all and persons and
estates represented by them, and with their knowledge. A great mass of testimony was
adduced, and the proceeding resulted in a judgment of not guilty and dismissal. The
proceeding was disposed of by an entry on the minutes of the court, to the effect that the
defendants were not guilty of contempt of court, dismissing the proceeding, and granting
counsel for defendants, upon his request, ten days in which to file cost bill.
The order of the state engineer, determining the relative rights of the claimants to the
waters of Barber Creek and its tributary, Job's Canyon Creek, was filed with the county clerk
of Douglas County, as ex officio clerk of the district court of that county, in the year 1916,
together with a certified copy of the entire proceedings, which embraced the evidence, both
oral and documentary, taken by the state engineer. Exceptions to the order of determination
were served and filed by appellant. The order of determination of the state engineer and said
exceptions constitute the pleadings in this case.
Upon the former appeal herein, the cause was remanded back to the lower court for the
purpose only of making formal findings and a decree, finally and effectually settling and
determining the relative rights of the parties in and to the waters of Barber Creek and its
tributaries.
The case comes before us now upon an appeal from the decree, and from an order
overruling and denying appellant's motion for a new trial.
1. This being a special proceeding, arising under the water code of this state, and the first
case to reach this court under that procedure, we are confined to the issues raised by the
pleadings, which, in this particular case, bring up for review all of the evidence taken before
the state engineer and that embraced in the contempt proceeding referred to above, as well as
the proceedings in the injunction suit of 1898. To read and examine these voluminous records
and from them determine whether or not the findings of the trial court are supported by the
evidence, and that the findings support the decree, places a burden upon this court both
difficult and onerous.
2. Upon the former appeal herein (43 Nev. 407, 187 Pac. 1004) we took occasion to say
that:
While the ultimate findings of the state engineer are entitled to great respect, and in
practice are not often disputed, they do not take from the court the power to grant relief to a
party whose rights the state engineer may have infringed.
The exceptions provided for in the statute give to persons aggrieved ample opportunity to
protect their rights in the proceedings before the state engineer, and we apprehend, as
intimated in our former decisions, such exceptions were allowed for that purpose. The
findings are gathered from the proceedings before the state engineer and must be read in
connection with his order, which is the complaint. The findings are entitled to the
presumption of correctness and that they support the decree. Our own examination of the
voluminous records gives no occasion to vacate the findings and to reverse the decree.
3, 4. Counsel for appellant insist that the judgment of dismissal of the contempt
proceeding is res judicata of the issues in the present proceeding, which raises the question:
Has appellant a prescriptive title to the waters of Job's Canyon Creek?
question: Has appellant a prescriptive title to the waters of Job's Canyon Creek? A proceeding
for contempt is a special proceeding, criminal in character. The test of the proceeding is the
jurisdiction of the court to make the decree or order alleged to have been violated. We are of
the opinion that the judgment of dismissal of the contempt proceeding left the parties in the
same position they were in before the proceeding for contempt was commenced, and that it in
no way abrogated or infringed upon the rights of the parties, as fixed and established by the
decree in the injunction suit of 1898. That decree is binding upon the parties until a court of
competent jurisdiction, in an appropriate action, as otherwise determined. Certainly a
proceeding in contempt is not such an appropriate action. Counsel for appellant cite, as an
authority for their position, a statement taken from our opinion in the case of Vickers v.
Vickers, 45 Nev. 281, 199 Pac. 78, which reads that:
It matters not the character of the proceeding in which issues are adjudicated, but whether
they have in fact been adjudicated between the same parties or their privies.
In using the language quoted, the court could only have had in mind an adjudication in
some proceeding wherein it had jurisdiction to make an adjudication. The language cannot be
understood as intimating that a water right can be adjudicated in a contempt proceeding, and
counsel have failed to furnish us any authority that it can be done. It is true much testimony in
the contempt proceeding tends to show that, subsequent to the decree of 1898, the waters of
Job's Canyon Creek were used by appellant's grantors, but this may have been done without
having violated the decree. Indeed, every presumption is that the waters of that stream were
used in accordance with the terms of the decree, and, until it was violated, no objection was
made to its use.
All of the testimony adduced before the state engineer, and that reviewed by the trial
court, to show that the appellant and his grantors had, since the decree of 1S9S, acquired
a prescriptive title to the waters of Job's Canyon Creek, is more or less conflicting, and we
are of the opinion that there is substantial evidence to support the conclusion reached by
the trial court that the use of the waters of said stream throughout all the years since
1S9S was in subordination to the original decree of that date and not adverse, and that
appellant's use of said waters was not inconsistent with the respondents' prior right fixed
and established by the decree of 1S9S.
and that reviewed by the trial court, to show that the appellant and his grantors had, since the
decree of 1898, acquired a prescriptive title to the waters of Job's Canyon Creek, is more or
less conflicting, and we are of the opinion that there is substantial evidence to support the
conclusion reached by the trial court that the use of the waters of said stream throughout all
the years since 1898 was in subordination to the original decree of that date and not adverse,
and that appellant's use of said waters was not inconsistent with the respondents' prior right
fixed and established by the decree of 1898.
Entertaining these views, it would serve no useful purpose for us to go through the form of
reviewing and commenting upon the testimony of the numerous witnesses.
The decree is affirmed.
Per Curiam:
5. In the petition for a rehearing, counsel say that in our former opinion we did not decide
the main question raised by appellant, namely, that of res judicata. They quote at length from
our opinion in Vickers v. Vickers, 45 Nev. 274, 199 pac. 76, and from the opinion of Mr.
Justice Field in Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195, and say it would be
a sin to disturb such harmony between the two decisions. It is neither our desire nor our
intention to disturb the harmony we sought to establish between the Vickers case and the Sac
County case. In fact, we reaffirm our desire to be in harmony with that case. We think the real
trouble lies in the misapplication by counsel of the language quoted in the Vickers opinion,
wherein it is said:
* * * A question of fact or of law, distinctly put in issue and directly determined by a
court of competent jurisdiction as a ground of recovery or defense in a suit or action between
parties sui juris, is conclusively settled by the final judgment or decree therein so that it
cannot be further litigated.
Of course, we do not know that the Supreme Court of the United States, in using the
language quoted, did not have in mind and did not intend to include contempt proceedings.
However, we are of the opinion that it did not. Nor do we think the language quoted is
susceptible of such interpretation. In any event, we did not intend by the Vickers opinion to
lay down any such rule, or to use language which might be so interpreted. In the contempt
proceeding set up as res judicata the court merely dismissed the proceeding. It made no
findings. While the inference flows from the order thus made that the court found that the
defendant in that proceeding was not in contempt, we cannot say, in view of the lack of
findings of facts by the court, just what question, either of fact or law, was determined.
Certainly it cannot be said that the purpose of the contempt proceeding was the adjudication
of water rights wherein such question was distinctly put in issue and directly determined in
the sense in which that term is used in an action to quite title to a water right. We do not
believe that any court ever contemplated that a valuable property right can be adjudicated
incidentally to a proceeding in which the adjudication of such right is not the main question
involved. To assert any other doctrine would be contrary to the rule that a man must have his
day in court.
Petition for rehearing is denied.
On Second Petition for Rehearing
Per Curiam:
Rehearing denied.
____________
46 Nev. 263, 263 (1923) State v. Williams
[No. 2545]
THE STATE OF NEVADA, Respondent, v. ELMER
WILLIAMS, Alias James P. Doyle, Appellant.
[210 Pac. 995]
1. Criminal LawAssistant Auditor Held Competent to Testify Purported Drawer of Check
Had No Account.
That the purported drawer of a check had no account at the bank may be proved by a witness who is
familiar with the books and has examined them with a view of ascertaining that fact, so that the assistant
auditor of a bank is competent to give such testimony where he first testified it was his duty to ascertain
who were the customers and depositors at the bank and that he had recently examined the books to
ascertain if the purported drawer of the check in controversy had an account.
2. ForgeryInstructions as to Effect of Proof Drawer of Check Had No Account Held Correct
Statement of Statute.
In a prosecution for forgery, instructions requiring the prosecution to prove that the purported drawer
of the check was a fictitious person, but stating that, if such drawer had no account at the bank, it was
sufficient evidence to warrant the finding he was a fictitious person, though such evidence was not
conclusive upon the jury, and they might find to the contrary, was a correct statement of crimes and
punishments act, sec. 400, defining forgery and specifying the effect to be given to proof that the drawer
of the check had no account at the bank.
3. Constitutional LawLegislature Possesses Whole Legislative Power Except as Limited by
Constitution.
The legislature possesses the whole legislative power of the people except so far as its power is
limited by the constitution.
4. Criminal LawLegislature May, within Limits, Prescribe that Certain Facts Shall Be
Prima-Facie Evidence of Main Fact.
The legislature, under its jurisdiction over rules of evidence in criminal cases, may, with some
limitations, enact that, when certain facts have been proved, they shall be prima-facie evidence of the
main fact in question.
5. Constitutional LawCriminal LawForgeryStatute Providing that Proof that Drawer of
Check Had No Account Is Sufficient Evidence He Was Nonexistent Is Valid, and Instruction Thereon Is
Proper.
Crimes and punishments act, sec. 400, providing that proof that the purported drawer of a check had
no account at the bank on which the check was drawn, should be deemed sufficient evidence to sustain an
allegation of the nonexistence of the drawer of the check, but not making such evidence conclusive of
that fact, does not deny the accused the opportunity for trial or deprive him of due process of law, and an
instruction embodying the statute does not violate Const. art. 6, sec. 12, providing that judges shall
not charge juries in respect to matters of fact.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Elmer Williams, alias James P. Doyle, was convicted of forgery, and he appeals.
Affirmed. Petition for rehearing denied.
Frame & Raffetto and T. J. D. Salter, for Appellant:
The holding of a preliminary examination or the waiver of same or the filing of an
affidavit as required by Stats. 1913, p. 293, in lieu thereof is a jurisdictional step essential to
the jurisdiction of the court.
The testimony of one not a bookkeeper, or one personally familiar with the entries, but
who merely examines the books of the bank, is not competent, since the books themselves
would not be admissible unless the proper foundation were laid under the shop-book doctrine,
which applies in criminal cases. State v. McFarlin, 41 Nev. 486.
An instruction that one of the elements of the offense required to be proven was that there
was no such person in existence as the maker of the check, with the additional statement by
the court that the fact that the maker of the check had no account in the bank was material
evidence tending to show that no such person existed, was a comment upon the evidence and
invaded the province of the jury. State v. Duffy, 6 Nev. 138.
An instruction that proof that the purported drawer of a check had no account in the bank is
sufficient evidence that the check was fictitious, though such evidence is not conclusive,
clearly charges the jury upon a question of fact and invades the province of the jury, and is
violative of article 6, section 12, constitution of the State of Nevada. State v. Duffy, supra.
Error resulting from an instruction cannot be cured by the court declaring in the same
breath the independence of the jury in determining questions of fact and the weight and
sufficiency of evidence. State v. Tickel, 13 Nev. 502; State v. Harkin, 7 Nev. 381.
It is error for the court to make remarks amounting to instructions upon the facts and
commenting on the weight and sufficiently of the evidence.
to instructions upon the facts and commenting on the weight and sufficiently of the evidence.
State v. Ah Tong, 7 Nev. 125; People v. Bonds, 1 Nev. 36.
L. D. Summerfield, District Attorney, and Harlan L. Heward, Assistant District Attorney
of Washoe County, for Respondent:
It is not necessary that the information or some other document should affirmatively show
the holding of a preliminary examination before an information may be filed. State v. Bishop
(Mo.), 133 S. W. 33.
We must presume that the examination was had before the justice in accordance with the
rule that public officers must be presumed to have performed their duty as required by law,
until the contrary appears. People v. Smith, 59 Cal. 365.
Objections to an indictment or information based on absence of any preliminary
proceedings should be made by proper motion or plea before pleading to the merits. Stone v.
State (Okl.), 155 Pac. 701, 702; Simpson v. State, 185 Pac. 117; State v. Rozell (Mo.), 225 S.
W. 931; State v. Dooms, 217 S. W. 46; Roman v. State (Ariz.) 201 Pac. 551, 552. An
objection such as that sought to be raised by appellant herein ought to be made before plea is
entered. State v. Wells, 39 Nev. 432, 436.
Where there is written evidence of a fact in issue, the writing is admittedly the best
evidence (16 C. J. 612), but the best-evidence rule does not apply when it is sought to prove
the nonexistence of the writing. 16 C. J. 612; Moore v. State, 212 S. W. 1099; Gurinsky v. U.
S., 259 Fed. 378.
The testimony of the teller of a bank on which a check is drawn that there was no such
account on the bank's books is prima-facie evidence of the fictitious character of the check.
People v. Eppinger, 38 Pac. 538, 539; People v. Terrill, 65 Pac. 303.
In determining whether an instruction or portion of a charge is erroneous or calculated to
mislead the jury, the whole charge must be taken together and considered as an entirety."
the whole charge must be taken together and considered as an entirety. State v. Donovan,
10 Nev. 36; State v. Raymond, 11 Nev. 98; State v. Pritchard, 15 Nev. 74.
It is not error to instruct that evidence of certain facts might be considered by the jury as a
prima-facie evidence of the guilt of one charged with crime; the validity of such acts has been
questioned many times, but usually upheld to be a proper exercise of the police power. State
v. Rothrock, 200 Pac. 525, 527; 8 R. C. L. 177; State v. Thomas (Ala.), 40 South 271; Woten
v. State (Fla.), 5 South. 39; State v. Beach (Ind.), 43 N. E. 949.
The cases cited by appellant, to wit: State v. Tickel, 13 Nev. 502; State v. Harkin, 7 Nev.
381; State v. Ah Tong, 7 Nev. 152, and People v. Bonds, 1 Nev. 36, deal with oral comments
upon particular facts, and do not apply in the instant case, as the court put the question
abstractly, using the word whenever. The instructions were given under the 1915 statute,
and were much milder in form than could have been given.
An information was filed in the court below against the defendant, charging him with the
crime of forgery, alleged to have been committed as follows:
* * * That said defendant on the 4th day of November, A. D. 1921, or thereabouts, and
before the filing of this information, at and within the county of Washoe, State of Nevada, did
then and there wilfully unlawfully, fraudulently, and feloniously, with the intent to defraud
one Edward Herzog, complainant herein, make, pass, utter, and publish a certain fictitious
check and instrument in writing for the payment of money, purporting to be the check and
instrument of one R. J. Dawson, when in fact there was no such individual as said R. J.
Dawson in existence, the said fictitious check and instrument being directed to and drawn
upon the California National Bank of Sacramento, Calif., and being in words and figures, as
follows, to wit: "'Sacramento, Nov. 3d, 1921. No. 104.
Sacramento, Nov. 3d, 1921. No. 104.
The California National Bank of Sacramento 90-33
Pay to the order of James P. Doyle $41.50, forty-one and 50/100 dollars. R. J. Dawson.'
when in truth and in fact the said defendant Elmer Williams, alias James P. Doyle, knew
that said check and instrument was fictitious at the time of his making, passing, uttering, and
publishing the same as aforesaid. * * *
The defendant was convicted and sentenced to the state prison for a term of not less than
one nor more that fourteen years.
1. Upon the trial the state introduced as a witness R. S. Smith, who testified, in substance,
that he was and had been assistant auditor of the California National Bank of Sacramento,
Calif.; that as such he had access to the records and books of said bank; that is was his duty,
as assistant auditor, to ascertain who were the customers and depositors at the bank and who
had funds or credits therein on which to draw checks; that its books were in daily use of the
bank at Sacramento, Calif.; that he had had occasion recently to examine said books to
ascertain if R. J. Dawson, the purported drawer of the alleged check, had an account at said
bank; and that the books did not show that said Dawson had an account at the bank. The
defendant objected to the evidence, upon the ground that it was not the best evidence of the
fact sought to be established, namely, that the purported drawer of the check had no account
at the bank.
Counsel seem to concede that a bookkeeper or teller of bank is qualified to testify that a
certain drawer of a check thereon had no account therein, but insist that an assistant auditor of
a bank is not qualified. We are not concerned with the force of the testimony, but in this
instance we are satisfied that in consideration of his duties as detailed by the witness he was
qualified to testify that the books of the bank did not show that the purported drawer of the
check had an account at the bank.
the bank. This, we are of the opinion, may be done by a witness who is familiar with the
books, and has examined the same with the view of ascertaining the fact. Strong v. State, 18
Tex. App. 19.
We conclude that there was no reversible error in the ruling on the assignment based on
Smith's evidence.
2. Upon the conclusion of the testimony, the court instructed the jury, in writing, as
follows:
You are instructed that, before you can find the defendant guilty, it is incumbent upon the
prosecution to establish by evidence beyond a reasonable doubt each of the following facts,
which are essential elements of the offense charged:
FirstThat there was not in fact any such a person as R. J. Dawson.
SecondThat at the time of uttering the check in question the defendant knew that there
was no such person as R. J. Dawson.
ThirdThat said check was passed by the defendant with the intent to defraud.
It is essential that the state establish each of the above elements by evidence establishing
beyond a reasonable doubt that each of the said elements in fact existed, and the proof of any
one of the same, in the absence of proof of the others, is insufficient. However, when a check
or other instrument in writing is drawn upon any bank, proof that the purported drawer of the
same had no account at said bank shall be considered material evidence tending to sustain the
allegation of the nonexistence of the drawer of such instrument.
In the event that you entertain a reasonable doubt as to the existence of any of the
above-enumerated facts, it is your duty to find the defendant not guilty.
The court instructs the jury that, whenever a check or other instrument in writing is drawn
upon any bank, proof that the purported drawer of the same had no account at said bank is
deemed sufficient evidence to warrant the jury in finding that the purported drawer of the
check or instrument in writing is fictitious, though such evidence is not conclusive upon the
jury, and they may find to the contrary."
though such evidence is not conclusive upon the jury, and they may find to the contrary.
The defendant challenges these instructions and complains that they are violative of
section 12, article 6, of the constitution of Nevada, which provides:
Judges shall not charge juries in respect to matters of fact, but may state the testimony
and declare the law.
Section 400 of the crimes and punishments act (Rev. Laws, 6665, as amended by Statutes
of 1915, p. 15; 3 Rev. Laws, p. 3388) reads as follows:
Every person who shall make, pass, utter, or publish, with an intention to defraud any
other person or persons, body politic or corporate, either in this state or elsewhere, or with the
like intention shall attempt to pass, utter, or publish, or shall have in his possession, with like
intent to utter, pass, or publish, any fictitious bill, note, or check purporting to be the bill, note
or check, or other instrument in writing, for the payment of money or property of some bank,
corporation, copartnership, or individual, when in fact there shall be no such bank,
corporation, copartnership, or individual in existence, the said person knowing the said bill,
note, check, or instrument in writing for the payment of money or property to be fictitious,
shall be deemed guilty of forgery, and on conviction thereof shall be punished by
imprisonment in the state prison for a term not less than one or more than fourteen years.
Whenever such note, bill, check, or other instrument in writing is drawn upon any bank, proof
that the purported drawer of the same had no account at said bank, shall be deemed sufficient
evidence to sustain the allegation of the nonexistence of the drawer of such instrument.
The instructions, considered together, are but declaratory of the rule of evidence declared
in the statute as amended, hedged about with language safeguarding the defendant's
fundamental rights. It is not complained that the instructions are not a correct statement of the
law creating the offense.
law creating the offense. If, then, we clearly interpret the position of counsel for the
defendant, it is their contention that no direction to the court or jury as to what shall be
deemed sufficient evidence to sustain the allegation of the nonexistence of the purported
drawer of a check can be given by the legislature.
3. It must be conceded that the legislature possesses the whole legislative power of the
people, except so far as its power is limited by the constitution. The power to enact such a
provision as that above quoted is founded upon the jurisdiction of the legislature over rules of
evidence in criminal cases. The question for determination, therefore, is whether the
undoubted power of the legislature to prescribe rule of evidence and methods of proof has
been illegally exercised.
4. Courts are committed to the general principle that in criminal prosecutions the
legislature may, with some limitations, enact that, when certain facts have been proved, they
shall be prima facie evidence of the main fact in question. 8 Ruling Case Law, sec. 171, p.
177.
5. In the absence of statute, it has been held that, where the accused has obtained money
from a person for a check drawn by one on a certain banking house, and it appeared that no
person of that name kept an account or had funds or credit in that banking house, it is
sufficient prima-facie evidence that the drawer was a fictitious person. People v. Eppinger,
105 Cal. 36, 38 Pac. 538; 3 Greenleaf on Ev. (16th ed), sec. 109. Here the statute under
review enacts in express terms that proof that the purported drawer of such check on a bank
had no account at said bank shall be deemed sufficient evidence to sustain the allegation of
the nonexistence of the drawer of such instrument. It is the contention of counsel that the
method of proof of the nonexistence of the purported drawer of a check, as expressed in the
instruction, pursuant to statutory authorization, amounts to a charge by the court on an
essential element of the crime, denies the accused the opportunity for a trial, and substantially
deprives him of due process of law.
of due process of law. In this we are unable to agree. The legislature, in prescribing the rule of
evidence, has taken the precaution to guard against such results by use of the language shall
be deemed sufficient evidencenot conclusivethus giving to the accused a fair
opportunity to make his defense and to submit all the facts bearing upon the issue of the
nonexistence of the purported drawer, to be weighed by the jury in connection with all the
evidence legitimately bearing upon other essential elements of the crime. The instructions
merely shape the rule of evidence into form to be considered by the jury in connection with
all the facts.
Our conclusion is that neither the statute nor the instructions are assailable on
constitutional grounds.
We find nothing in the bill of exceptions to warrant or authorize our consideration of the
assignment that the information was filed without preliminary examination of the accused, or
an affidavit as required by statute.
The judgment and the order denying the defendant a new trial are affirmed.
Per Curiam:
Rehearing denied.
____________
46 Nev. 272, 272 (1923) Warren v. Wilson
[No. 2577]
H. WARREN, Respondent, v. L. G. WILSON
Appellant.
[210 Pac. 204, 997; 212 Pac. 497]
1. ElectionsWhether Defendant in a Primary Election Contest Was a Qualified Voter Held
Not in Issue so as to Require a Finding in Relation Thereto.
Where a complaint in a primary election contest did not charge that defendant was not a qualified
elector, and the answer alleged that he was a qualified elector and was not denied by the reply, the
question was not an issue so to require a finding in relation thereto.
2. Appeal and ErrorThat Appellant's Opening Brief Was Served on Respondent Two
Hours after the Time Allowed not Ground for Dismissing Appeal.
That the opening brief of appellant was not served on respondent until two hours after the time fixed
by the court is not jurisdictional and not ground for dismissing the appeal, where respondent was in no
way injured, in view of Rev. Laws, 5358, providing that appeals should not be dismissed except for
substantial errors in proceeding.
3. StatutesDefects of Former Law and Remedy Provided by New Law Must Be
Ascertained in Arriving at Legislative Intent.
In arriving at the intention of the legislature in enacting certain statutes, the court must ascertain the
defects or evils of the former law and the remedy provided by the new law.
4. ElectionsPencil-Marked Ballots Should Be Rejected.
Under Stats. 1917, c. 155, sec. 29, providing that the general election law shall apply to primary
elections except where otherwise provided, and in view of sections 16-18 and Stats. 1901, c. 100,
requiring the voter to indicate his choice by stamping a cross or an X with the rubber stamp after the
candidates' names, ballots, on which the voter has indicated his choice by making a cross with a lead
pencil should be rejected.
5. Appeal and ErrorEvidence Not Embodied in Bill of Exceptions Cannot Be Supplied by
Order for Diminution of Record.
The rule relative to the making of an order for a diminution of the record contemplates a bringing up
of a part of the record as made in the lower court, which through oversight has not been brought up, and
does not contemplate the bringing up of evidence not embodied in a bill of exceptions.
1. Appeal and ErrorSupreme Court on Rehearing May Refuse to Consider Questions Not
Urged or Decided on Original Hearing.
Petition for rehearing may not be based on questions not urged or decided on original hearing.
2. Appeal and ErrorObjection to Bill of Exceptions and Assignment of Errors Not
Considered as Grounds for Rehearing.
Objections to bill of exceptions and assignments of errors, not urged on original hearing, may not be
considered as reason for rehearing.
3. Appeal and ErrorSupreme Court's Judgment Need Not Be in Writing.
Under Rev. Laws, 4839, requiring all opinions and decisions rendered by the supreme court to be in
writing, signed by the justices concurring therein, and to be spread at large on the records of the court
kept for that purpose,the supreme court was not required to render a written judgment.
4. Appeal and ErrorCourt on Rehearing Will Not Consider Question of Jurisdiction to
Render Judgment on Original Hearing.
The supreme court on petition for rehearing will not consider question of whether it had jurisdiction
on original hearing to render a final judgment, since a rehearing is granted for the purpose of correcting
errors made in passing on questions decided, and not for the purpose of correcting an order inadvertently
or inaptly made.
On Motion To Modify Judgment
1. Appeal and ErrorGrounds Stated in Motion to Modify Judgment, but Not Argued,
Deemed Waived.
Grounds stated in a motion to modify a judgment, but not argued, will be deemed waived.
2. Appeal and ErrorSupreme Court May Enter Final Judgment or Remand, with Directions
to Enter Judgment where Facts Are Undisputed.
Where the facts are undisputed, and the only errors are errors of law, the supreme court, on reversal,
will ordinarily render final judgment, or remand the case, with directions to enter a judgment for the
appellant, as authorized by Rev. Laws, 5359.
Appeal from Sixth Judicial District Court, Humboldt County; E. J. L. Taber, Judge.
Action by H. Warren against L. G. Wilson. From a judgment for plaintiff and an order
denying a motion for a new trial, defendant appeals. Reversed. Petition for rehearing
denied. Motion to modify judgment denied.
Campbell & Robins and J. A. Langwith, for Appellant:
The lower court erred in counting ballots marked with a lead pencil or some instrument
used as a brush. Since 1S99, when the supreme court suggested a policy to the legislature
which would remove many objections to the validity of ballots {25 Nev. 192
1899, when the supreme court suggested a policy to the legislature which would remove
many objections to the validity of ballots (25 Nev. 192, 58 Pac. 284), the legislature has
consistently enacted laws to secure the utmost secrecy of the ballot, and the courts have
uniformly enforced such policy.
If an unauthorized mark is inadvertently placed on a ballot by the voter, and is not of a
character to be readily used for a corrupt purpose, the ballot should be counted, but if it is
made deliberately, and may be used as a means of identification, the ballot should be rejected.
Sweeney v. Hjul, 23 Nev. 409, 48 Pac. 1036; James v. Stern, 44 Nev. 430.
The law requiring stamping is mandatory. To count ballots otherwise marked would nullify
the law. James v. Stern, supra.
For examples of void ballots, see State v. Baker, 35 Nev. 314; Strosnider v. Turner, 29
Nev. 347.
No ballot shall be rejected for any technical error which does not render it impossible to
determine the voter's choice (Stats. 1921, p. 395); using a pencil or an instrument as a brush is
not a technical error, but is a very substantial one, to permit which would repeal the statute
by construction.
Warren & Hawkins, for Respondent:
Stats. 1917, amending the election laws, which left out the very important word only,
clearly shows the intent of legislature to change mandatory requirement of the use of a stamp
to directory only.
A ballot shall not be rejected when the intention of the voter is clear, and where marks on
the ballot cannot be definitely shown to be intentional distinguishing marks. Stats. 1913, p.
556, sec. 26.
Notwithstanding the use of the words stamping,' stamp,' and stamped,' the provision
that no ballots shall be rejected for any technical error which does not render it impossible to
determine the voter's choice' is sufficient to permit the counting of a ballot marked with a
penciled cross."
a penciled cross. Castagnetto v. Superior Court, 209 Cal. 549.
Statutes should be liberally construed as to provisions relating to the marking of ballots, so
as not to disfranchise voters. Buckner v. Lynip, 22 Nev. 426, 41 Pac. 762; Turner v. Wilson,
154 Pac. 2; McClelland v. Erwin, 86 Pac. 283.
The is an appeal from a judgment rendered in favor of respondent, and from an order
denying appellant's motion for new trial. Both of the parties were candidates in the recent
primary election for the Democratic nomination for district attorney of Humboldt County. A
certificate of nomination was issued to appellant by the board of canvassers of the county.
A motion to dismiss the appeal was made by respondent, upon the grounds: (1) That there
is no finding by the lower court that appellant is a qualified elector of Humboldt County; (2)
that no opening brief was served upon respondent within the time fixed by order of the court;
and (3) that no bill of exceptions was taken to the orders and rulings complained of by
appellant.
1. As to the first contention, we may say there is no allegation in the complaint charging
the appellant is not a qualified elector. On the other hand, in his answer there is an allegation
that he is such qualified elector, which is not denied by the reply. The question of his
qualification is not therefore an issue in the matter.
2. The fact that the opening brief of appellant was not served upon respondent until two
hours after the time fixed by the court is not jurisdictional, and it is not contended that the
respondent was in any way injured. Rev. Laws, 5358. There is in the record a bill of
exceptions, duly settled by the trial judge. The motion to dismiss must be denied.
The trial court found that there were only two candidates in the primary election for the
Democratic nomination for the district attorneythe appellant and the respondent.
respondent. The court further found that there were 720 legal votes cast for the nomination of
a candidate for district attorney, of which if found that Warren received 361 votes and Wilson
359 votes thereby giving the former a majority of 2.
The result of the appeal depends on but one question, namely: Did the lower court err in
counting certain ballots cast for respondent, wherein the voter indicated his choice by making
a cross opposite respondent's name with a lead pencil? The lower court admitted these ballots
in evidence and counted them for respondent. If they had been rejected, it would have
followed that appellant would have been declared the Democratic nominee for district
attorney by the trial court.
3. It is contended by appellant that the pencil-marked ballots should be rejected. We think
this contention must be sustained. It is a well-recognized rule in this state that in arriving at
the intention of the legislature in enacting certain statutes we must ascertain the defects or
evils of the former law and the remedy provided by the new law. Escalle v. Mark, 43 Nev.
172, 183 Pac. 387, 5 Am. Law Rep. 1512. With this rule in mind, let us look to the history of
our legislation on the requirements as to the marking of ballots. In the year 1898 the law
provided that ballots voted in the general election should be marked with a black lead pencil.
Growing out of the general election of that year was a contest for the office of governor,
which was decided by this court, and reported under the title of State v. Sadler, 25 Nev. 131,
58 Pac. 284, 59 Pac. 546, 63 Pac. 128, 83 Am. St. Rep. 573. One of the questions determined
in that case was as to whether or not ballots marked with a blue pencil should be counted. The
court, after observing that the chief purpose of the Australian ballot system then in use was to
prevent fraud and corruption at the elections, made several allusions to the necessity of the
uniformity of paper for the printing of ballots, of the printing of the same, and of the
marking of ballots by the voters, finally saying: "We believe it proper to suggest that
certain amendments to the law as it exists will obviate many, if not all, of the objections
made to the validity of the ballots.
We believe it proper to suggest that certain amendments to the law as it exists will
obviate many, if not all, of the objections made to the validity of the ballots. It is impossible,
under the present system of marking with a pencil, to obtain uniformity in form of markings.
This difficulty can be overcome by requiring, as in other sates, that the markings shall be
made with a rubber stamp.
4. This decision was rendered at the July term, 1899, of this court, and at the ensuing
session the legislature so amended our statute as to require voters to indicate their choice of
candidates for office by stamping a cross or X * * * after the name of the person from whom
he intends to vote. * * * Stats. 1901, p. 112. The action of the legislature, following so
closely upon the recommendation of this court, can be entitled to but one interpretation, and
that is that it sought to require a uniform system of marking ballots by electors, and that such
uniform markings should be by stamping, as indicated. This conclusion is, to our minds, too
obvious to call for prolonged consideration at our hands.
A few years after this amendment, this court was called upon to pass upon an election
contest in Strosnider v. Turner, 30 Nev. 155, 93 Pac. 502, 133 Am. St. Rep. 712, wherein the
court, carrying out the theory of uniformity in the marking of ballots, held that a cross
stamped upon the ballot after the name of the candidate, but outside of the square intended for
it, should not be counted; and in the more recent case of State v. Baker, 35 Nev. 300, at page
317, 129 Pac. 452, at page 457, this court refused to count pencil-marked ballots, simply
saying: Ballots having the following defects are also rejected: Crosses made with a lead
pencil or pen. * * *
In rejecting these ballots without further comment, the court evidently concluded that the
purpose of the legislature to require that all voters should indicate their choice by stamping
the ballot was so clear that there was no room for interpretation or construction.
there was no room for interpretation or construction. And this was a reasonable view for the
court to have taken. For us now to hold otherwise would be to nullify the clear import of the
statute. If one voter may indicate his choice with a black lead pencil, another may do so with
a blue one, another with a red one, and other with pencils of as many colors as are
manufactured. Indeed, if such could be the case, why might not a voter indicate his choice in
any method peculiar to his liking. In such circumstances, what would become of the uniform
system of marking sought to be required by the legislature? Would not the clear legislative
enactment be entirely nullified? Respondent contends that the primary election law does not
require that a voter's choice shall be indicated by stamping a cross. We think this contention
cannot be sustained. Section 29 of the primary election law (Stats. 1917, p. 276) provides that
the provisions of the general election law, except where otherwise specified, shall apply;
furthermore, the primary act, in sections 16, 17, and 18, clearly indicates that the method by
which the voter shall indicate his choice shall be by stamping his ballot.
Our attention is directed to a recent opinion of the Supreme Court of California in the case
of Castagnetto v. Superior Court, S. F. No. 10,413, 209 Pac. 549, wherein that court held that
pencil-marked ballots should be counted. We decline to be controlled by that decision, for the
reasons we have given.
But respondent contends that the entire spirit of the primary and general election laws, as
expressed in different sections of the statutes to which our attention is directed, is that the
intention of the voter must control when that intention can be ascertained. In a general way,
this is undoubtedly true; but, as all statutes on this subject are in pari materia, and must be
read together, we must harmonize those provisions of the law with the provisions requiring
the uniform stamping of the ballots by the voters, at the same time upholding the provisions
requiring the voter to indicate his choice by stamping a cross opposite the name of the
party for whom he wishes to vote.
choice by stamping a cross opposite the name of the party for whom he wishes to vote.
5. We are not brought to a consideration of the evidence, and may with propriety say that
prior to the argument upon the merits a motion was made by respondent for an order for a
diminution of the record in the case so as to bring to our attention certain ballots claimed to
have been introduced in evidence upon the trial, but which are not referred to in the bill of
exceptions settled by the trial court and certified up pursuant to said bill of exceptions. The
court declined to make an order, and declines to consider those ballots, for the reason that the
rule relative to the making of an order for a diminution of the record contemplates a bringing
up of a part of the record as made in the lower court, which through oversight has not been
brought up. It does not contemplate the bringing up of evidence not embodied in a bill of
exceptions. While it is to be regretted that a portion of the evidence is not before us, that is a
matter over which we have no control. From a colloquy between counsel, we infer that
counsel for appellant sought to have certain ballots embraced in the bill of exceptions, but
that respondent, contemplating taking an appeal, desired to have such ballots embraced in a
bill of exceptions, which he desired to have settled independent of the one before us, and
therefore the court did not insist that all of the ballots which were in dispute should be made a
part of the bill of exceptions before us, if there be such ballots.
But we are confined in the consideration of the case to the ballots mentioned in the bill of
exceptions (Corcoran v. Dodge, 45 Nev. 406, 204 Pac. 879, and cases there cited), wherein
the court certifies that the bill of exceptions is allowed and approved and contains the
substance of all of the material evidence relating to the point or points involved, and that the
same is correct. Among the ballots which are made a part of the bill of exceptions are three
counted for the respondent, wherein the voter indicated his choice for respondent by marking
a cross with a lead pencil opposite the name of the respondent.
marking a cross with a lead pencil opposite the name of the respondent. From what we have
said, the pencil-marked ballots should not have been counted by the lower court for the
respondent, but should have been rejected. By rejecting these ballots, so counted for the
respondent, his vote, instead of being 361, is 358, thereby giving appellant a majority of 1.
It appears from the bill of exceptions that the trial court admitted in evidence, and counted
for the respondent, certain ballots containing numbers printed on the back thereof. Appellant
objected to the admission into evidence of these ballots, for the reason that they bore
identifying numbers. The numbers thus appearing upon the respective ballots were legally
printed thereon, but the election officers in tearing off the ballots from the stubs did not tear
along the perforated line, leaving portions of the stubs containing the numbers mentioned.
Section 46 of the general election law (Stats. 1917, c. 197), which, as we have said, is
incorporated into and made a part of the primary law, provides that
No ballots shall be deposited in the ballot-box unless the water-mark, * * * appears
thereon, and the slip containing the number of the ballot has been removed therefrom by the
inspector.
Counsel for appellant also contend that certain other ballots, which were counted by the
trial court for respondent, should have been rejected as bearing identifying marks. We do not
deem it necessary to pass upon these contentions, since appellant has a clear majority, even if
the said ballots are properly counted for respondent.
For the reasons given, the judgment and order appealed from are reversed.
Hart, D. J.: I concur.
NoteSanders C. J., being disabled from sitting in this case, Hart, District Judge, was
designated by the Governor to sit in his stead.
Respondent has filed a petition for rehearing, in which he urges five reasons why the court
should grant the petition. They are: (1) That no bill of exceptions was ever filed upon the
appeal; (2) that there is no assignment of errors; (3) that there is not a scintilla of evidence
properly before the court upon which to base any opinion upon the merits of this case; (4)
that the court was absolutely without authority to render an oral opinion in the case, and (5)
that the court was without jurisdiction to render a final judgment.
1. None of the grounds assigned as reasons why a rehearing should be granted goes to
anything urged upon the original hearing or decided by the court. It is not claimed that the
court erred on any point decided in the former opinion. This of itself is sufficient reason for
denying the petition, as has been repeatedly decided. Nelson v. Smith, 42 Nev. 302, 319, 176
Pac. 261, 178 Pac. 625.
2. But we are amazed at the contention of counsel to the effect that there is neither a bill
of exceptions nor an assignment of errors in the record. Both are in the record, and were
referred to upon the former hearing. It may be that the bill of exceptions is somewhat
informal, and that certain defects exist as to the assignment of errors, but we are not prepared
to say that this is true. At any rate, no objection was made to the assignment of errors on the
original hearing, nor was it contended that the certificate of the trial judge to the purported
bill of exceptions was defective or did not comply with the statutory requirements, nor could
there well have been. Certain contentions were made as to the bill of exceptions, preliminary
to the hearing on the merits, but no such contention as is now urged was made.
The respondent, a member of the bar of this state, of twenty-six years' standing, was in
court and was heard both as to the preliminary matters and on the merits, and he was also
represented by counsel, who was well informed as to the facts and the law of the case,
and who argued it with marked ability, which was commented upon the members of the
court when they retired for conference.
and he was also represented by counsel, who was well informed as to the facts and the law of
the case, and who argued it with marked ability, which was commented upon the members of
the court when they retired for conference. As an evidence of the preparation given to the
case, a certified copy of an opinion of the highest court of a sister state, which had not yet
been published, was furnished for our consideration.
Respondent's rights were, we think, safeguarded upon the former hearing in every way
possible. If he suffered in this court, it was because of mismanagement in the preparation of
the bill of exceptions in the lower court on the part of respondent. Such might have been the
fact, judging from a colloquy between counsel.
3. In support of the fourth reason assigned as a ground for a rehearing, our attention is
directed to section 4839, Revised Laws of 1912, which reads:
All opinions and decisions rendered by the supreme court shall be in writing, signed by
the justices concurring therein, and shall be spread at large on the records of the court kept for
that purpose.
This section has been construed upon several occasions, and its has been uniformly held
that it did not preclude the rendering of an oral judgment, but was meant to require a written
opinion in every case, even though an oral judgment be rendered in a case. One of the
conspicuous cases in which such an interpretation was put upon the provision in question was
that of In Re Winters, 40 Nev. 335, 163 Pac. 244, as is shown by the concluding paragraph of
the opinion, wherein one of the present counsel for the respondent, as chief justice,
announced the order of the court, and signed the written opinion thereafter.
4. The last point urged is that the court had no jurisdiction to render a final judgment.
Without undertaking to dispose of this contention, we may say that if it be conceded that the
contention is correct, there would be no reason for granting a rehearing. A rehearing is
granted for the purpose of correcting errors made in passing upon questions decided, and
not for the purpose of correcting an order inadvertently or inaptly made.
in passing upon questions decided, and not for the purpose of correcting an order
inadvertently or inaptly made. A court may properly decide the law of the case, and yet make
an order not in consonance with sound discretion. In such circumstances it would not be
proper to grant a rehearing, which opens up the case for a reargument of the points originally
presented and determined.
The petition is denied.
Sanders, C. J., not participating.
On Motion to Modify Judgment
This case is now before us upon an application for a modification of the judgment
heretofore rendered by this court. The case was argued on its merits, and was submitted for
consideration and determination about 4 o'clock on the afternoon of October 23, 1922. The
general election was held on November 7, 1922, at which time a district attorney was to have
been elected for Humboldt County. As appears from the original opinion in this case, the
parties hereto were opposing candidates in the primary election, held in September, 1922, for
the Democratic nomination for district attorney. In due time after the primary election the
board of canvassers issued a certificate of nomination to Wilson. In the contest proceedings
the court rendered judgment for Warren. Wilson was at the time the incumbent.
There were no candidates on any other ticket for the nomination, and whichever of the
parties hereto should receive the Democratic nomination and succeed in having his name
appear upon the ballot as a candidate for the office was sure of election in case he received
one vote. Under the law of the state, which authorizes qualified registered voters, who are
absent from the state, to cast a ballot, it was provided that they might apply to the county
clerk for a ballot not more than fifteen days before the election. To enable that officer to mail
the ballot demanded on the fifteenth day before the election, it was necessary that the
printed ballot be in his possession not later than the 23d day of October, 1922.
that officer to mail the ballot demanded on the fifteenth day before the election, it was
necessary that the printed ballot be in his possession not later than the 23d day of October,
1922. As it was, the ballot could not have been printed before the night of the 23d.
This statement shows the importance of an immediate decision of this case upon its merits.
At the conclusion of the oral argument and the submission of the case, the court announced
that it would immediately enter upon a consideration of the case and render judgment orally,
and thereafter file a written opinion, which seemed satisfactory to the parties, who, with their
attorneys, were in court, and no objection was made to that plan. The counsel who are now
active in this matter in behalf of respondent were not then in the case, and were not present.
At 9 o'clock p.m. of the day mentioned, judgment was rendered orally in favor of the
appellant, and a written opinion was filed thereafter. By the judgment it was ordered that the
judgment of the trial court be reversed, and that judgment be entered in favor of the appellant,
by the trial court.
1. While several grounds are stated in the motion, but one is argued; hence we deem the
others waived. In Re Hegarty's Estate, 45 Nev. 145, 199 Pac. 81.
2. It is said that the court had no authority or jurisdiction to direct what kind of a judgment
should have been entered in the trial court, and it is therefore said that the judgment entered
by this court is in excess of its jurisdiction, and should be modified. In support of the
contention urged, counsel cites numerous authorities, and quote, among others, 2 R. C. L. pp.
281-283, but they fail to quote as follows from page 281, R. C. L.:
Where the facts of the case are undisputed and the only errors therein are errors of law,
the court on reversal ordinarily will render final judgment or will remand the case to the
lower court with directions to enter judgment in accordance with the opinion or with specific
directions.
This, so far as we can learn, is the general rule. 2 Hayne, New Trial and Appeal (Ed. 1912)
p. 1700.
The facts in the instant case are not in question. The entire evidence consists of ballots cast
at the primary election, which are before us; hence there can be no dispute as to the evidence.
The only question for the consideration of the trial court was whether ballots having certain
marks should be counted for the appellant or the respondent. Nothing but questions of law,
concerning which the ruling of this court is conclusive, were before the trail court. The same
rule applies to the situation in hand as would apply when the only question involved is the
construction of a will or some other writing, which is that this court may draw its own
conclusions as to the legal effect of such document. Cassinelli v. Humphrey Supply Co., 43
Nev. 208, 183 Pac. 523.
By Rev. Laws, 5359, it is provided:
Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or
modify the judgment or order appealed from * * *; and may, if necessary or proper, order a
new trial, or that further action or proceedings be had in the lower court without a new trial,
and may remand the case for such further action or proceedings only. * * *
Counsel evidently overlooked this section of our statute. It seems to give this court ample
authority to make the order which it did make. This court directed the judgment to be entered
by the trial court in the following cases, among others: Shearer v. City of Reno, 36 Nev. 443,
136 Pac. 705; Earl v. Morrison, 39 Nev. 120, 154 Pac. 75; Nye County v. Schmidt, 39 Nev.
456, 157 Pac. 1073, McCarran, J., writing the opinion.
We have not undertaken to follow counsel and to answer the long brief filed, for the reason
that it totally ignores the statutory provision which we have quoted, which necessarily results
in a denial of the motion, since counsel waived the other grounds of the motion by not
discussing them.
The motion is denied.
Sanders, C. J., not participating.
____________
46 Nev. 286, 286 (1923) Read v. Pradere
[No. 2543]
JOHN T. READ, Respondent v. MARTIN
PRADERE, Appellant.
[212 Pac. 1035]
1. BrokersFindings of Employment and Extension of Time Held Authorized.
Evidence in action by broker for commissions for finding a purchaser, held to authorize the court's
conclusion that defendant entered into the contract of employment on his own account, and that he
extended the time within which sale might be made.
Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.
Action by John T. Read against Martin Pradere, Judgment for plaintiff, and defendant
appeals. Affirmed.
Boyd & Curler, for Appellant:
The sole question to be presented to this court, as shown by the statement on appeal, is the
insufficiently of the evidence to justify the decision, and that the decision is against law.
We submit that a review of the entire evidence in this case shows that whatever agreement
or consent was given by Martin Pradere was given solely for the benefit of Yribarren and
solely subject to the approval of Yribarren, and it was understood by plaintiff.
The law involved in this case is simply elementalthis is, that the signing of the original
contract by Pradere in May, 1919, shows that he was merely acting as the agent of Yribarren
and for that particular purpose.
The testimony of Yribarren, I could not read or write, and I told Martin Pradere, You
sign it,' and that Pradere signed at Yribarren's request in the presence of Read, would simply
make that instrument the contract of Yribarren and not the contract of Pradere.
McCarran & Mashburn, for Respondent:
In general it may be stated that if the broker has acted in good faith, performed his
contract, and done all the he was bound to do, and the sale with the purchaser procured
by the broker is not carried out, or falls through, owing to the defective title of the
principal, the vendor, the broker will still be entitled to his commission in the absence of
evidence showing that the broker had knowledge of such defect, or of a stipulation to the
contrary in the contract between the principal and the broker."
acted in good faith, performed his contract, and done all the he was bound to do, and the sale
with the purchaser procured by the broker is not carried out, or falls through, owing to the
defective title of the principal, the vendor, the broker will still be entitled to his commission
in the absence of evidence showing that the broker had knowledge of such defect, or of a
stipulation to the contrary in the contract between the principal and the broker. Brackenridge
v. Claridge & Payne, 43 L. R. A. 609, and cases cited.
It may be stated as a general doctrine of the law governing the question of the revocation
of a real-estate broker's agency that such agency cannot be revoked in bad faith as a device for
escaping payment of commissions. Idem.
In the absence of a stipulation in the contract to the contrary, the broker is entitled to his
commission, if, acting in good faith, he procures a purchaser willing, able, and ready to take
the property upon the terms offered by the principal, although the sale fails because of a
defect in the principal's title, of which the broker had no notice. Little v. Fleishman, 24 L. R.
A. (N.S.) 1182-1185, and cases cited.
This is an action instituted for the purpose of recovering a judgment in the sum of $1,150
as commission for services rendered in procuring a purchaser for a certain ranch. Judgment
was rendered in favor of plaintiff as prayed. Defendant has appealed from an order denying a
motion for a new trial. For convenience the parties will be referred to as they were designated
in the trial court.
There is no dispute as to the law applicable to the case, and only two questions of fact are
involved, namely: Did the defendant employ the plaintiff to procure a purchaser for the ranch
in question? and, secondly, Was the time for the finding of such purchaser extended? It is
admitted that plaintiff found purchasers ready, able, and willing to buy.
In 1915 the defendant bought the ranch mentioned, taking title thereto, which he has ever
since retained. He testified, however, that he purchased the ranch for one Yribarren, to whom
he owed some money. The seller did not know Yribarren in the transaction. However, if the
property was not purchased for Yribarren, it is evident that thereafter there was an agreement
of sale entered into between the defendant and Yribarren, the defendant holding the title to
protect himself, no doubt, until the purchase price should be fully paid.
On May 18, 1919, the defendant signed a writing agreeing with the plaintiff that, if
plaintiff found a purchaser for the property prior to June 10 of that year, he should receive as
his commission all for which the property sold in excess of $22,000. The defendant contends
that, while the agreement was signed by him, it was signed in behalf of Yribarren, which he
claims was well known to the plaintiff. He further contends that the time in which the
plaintiff was authorized to sell was not extended. In the fall of 1919 the plaintiff found parties
who were ready, able, and willing to purchase the property for $23,150, but the defendant
refused to consummate the deal.
The plaintiff testified that, after the time limit stated in the written authorization given him
by defendant to sell the property had expired, the defendant verbally notified him to continue
his efforts to find a purchaser. He also testified that, after he had induced Atcheson and
McKenzie to purchase the property for $23,150, and to put up the sum of $500, he wrote to
the defendant, who was in San Francisco, notifying him of what he had done, and that the
purchasers would make further payments upon the execution of a deed and the furnishing of
an abstract by the defendant showing a clear title to the property, and that thereafter defendant
came to Reno and assured the plaintiff that the deal would be closed.
Atcheson, one of the prospective purchasers, testified that on the day the defendant came
to Reno he had a talk with him; and Mr.
talk with him; and Mr. Atcheson testified in part as follows:
Well, I just got acquainted with him through Mr. Read, and I told him, I says, I bought
that ranch of yours down there'; and he says, That is all right.' And I says, I paid $500'; I
says, Did you get the money?' and he says, Yes.' and I says, I understand the man that is on
the ranch is going to make some troubledon't want to get off.' Well,' he said, If he make
any trouble for me, it cost him lots of money.' Well,' he said, Atcheson, you get that land all
right; I see that fellow and I don't know what he means.' Well,' I says Pradere, I am a
stranger here in Reno, and this man Read is a stranger'; and I says, You are a stranger to me';
and I says, Has Read got the authority to sell this place?' And he says, Yes, sir; whatever
John T. Read does,' he says, is all right. He attends to my business.'
The undisputed evidence shows that at the time an agreement was reached between the
plaintiff, acting as the agent for the defendant, and Atcheson and McKenzie, for the sale of
the property, $500 was deposited in bank to the credit of the defendant by Atcheson and
McKenzie; that it remained there several months, and that the defendant never offered to
return it until suit was brought for its recovery.
The defendant testified that he did not own the ranch; that it was the property of Yribarren,
and that the agreement of May 18 was signed by him in behalf of Yribarren, which, he
testified, was understood by the plaintiff. He denied having extended the time for the sale, as
claimed by the plaintiff. He testified also that, when he was notified of the deal which
plaintiff had worked up with Atcheson and McKenzie, he told the plaintiff to see Yribarren,
and that whatever was satisfactory to him would be all right.
It appears that Yribarren could sign his name, and made a practice of signing checks upon
his bank account. He testified that he instructed the defendant, in the presence of the
plaintiff, to sign the agreement of May 1S in his behalf.
presence of the plaintiff, to sign the agreement of May 18 in his behalf.
There is considerable immaterial testimony in the record, to which we need not advert. We
are of the opinion that the evidence justified the findings and judgment. The written
authorization to sell is signed by the defendant, as a party thereto. In view of the fact that
Yribarren could sign his name, it hardly seems probable that he would have asked the
defendant to sign the agreement for him. But, aside from the disputed testimony of the
parties, there is testimony of Mr. Atcheson, who is not in the least interested in the result of
the action, who testified that the defendant stated to him, after the $500 had been paid, that
the plaintiff had authority to sell the property. There is also the circumstance of the defendant
retaining the $500 cash payment for months, and until suit was brought for its recovery.
We think the trial court was justified in concluding that the defendant entered into the
contract on his own account, and that he extended the time within which the sale might be
made.
____________
46 Nev. 291, 291 (1923) Robinson v. Goldfield Merger Mines Co.
[No. 2519]
THOMAS S. ROBINSON, Appellant, v. GOLDFIELD MERGER MINES COMPANY (a
Corporation), Defendant; CATLIN & POWELL COMPANY (a Corporation), Intervener
and Respondent.
[206 Pac. 399; 213 Pac. 103]
1. CorporationsOwner of Embezzled Stock, Indorsed in Blank, Cannot Recover it from
Bona-Fide Purchaser.
The crimes and punishments act, sec. 385, providing that embezzled property shall be restored to the
owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his
right thereto, does not enable an owner to assert against a bona-fide purchaser his title to embezzled
shares of stock transferred in blank from a felon, where the owner was guilty of negligence, which was
the proximate cause of the deceit.
2. ActionOwner of Stolen Property May Maintain Action for it before Conviction of Thief.
Under crimes and punishments act, sec. 385, providing that the title to stolen property remains
in the owner, and that he may maintain an action to recover it not only against the felon, but against any
person in whose possession he may find it, an owner may maintain an action for stolen property before
conviction of the thief.
3. ActionOwner in Action to Recover Stolen Property Is Governed by Rules of Procedure
and Law Incident to Such Actions.
Under crimes and punishments act, sec. 385, giving an owner of stolen property the right to maintain
an action to recover it against the felon or against any person having possession of it, his right to recover
is controlled and governed by the rules of procedure and law incident to actions of that character.
On Rehearing
1. Appeal and ErrorRehearing Granted to Determine Grounds for New Trial Not Passed
On.
Where the effect of an order of the appellate court reversing on one ground only an order of the trial
court granting a new trial ends the case adversely to respondent, and the order of reversal is restricted to
that one ground, respondent is entitled to a rehearing to ascertain whether other grounds stated in the
motion for a new trial were well taken, where such order of reversal should not be construed as
overruling the other grounds.
2. EstoppelEvidence Held Sufficient to Show that Conversion of Stock Due to Negligence
of Owner Subjecting Him to Burden of Loss Rather than Innocent Purchaser of Stock.
Evidence held sufficient to show that the conversion of stock mailed erroneously by owner of stock to
a western broker and converted by the latter by selling to an innocent purchaser was occasioned by
owner's negligence, and to bring the case within the rule that, where a loss has been sustained, it, if
occasioned by the owner's negligence, should be borne by him instead of the innocent party.
3. EstoppelOwner Not Estopped from Denying Title of Purchaser of Stolen Goods, though
Goods Stolen as Result of Owner's Negligence.
The principle expressed in crimes and punishments act (Rev. Laws, 6650) is that a person who does
not lock up his goods, which are consequently stolen, may be said to be negligent as regards himself, but,
inasmuch as he neglects no duty which the law casts upon him, he is not in consequence estopped from
denying the title of those who may have, however, innocently, purchased those goods from the thief.
4. LarcenyIntent to Steal Must Exist at Time of Taking.
It is not larceny if the property was innocently received and the intent to appropriate was formed after
the mistake was discovered; to convict of larceny it is necessary to find that the intent to steal existed at
the time of the taking, no subsequent felonious intent sufficing.
5. LarcenyIntent to Appropriate Goods Innocently Received Held to Have Been Formed
after Goods Received.
Where stock-broker innocently received from the owner through mistake certain stocks duly indorsed
to the broker, but, instead of notifying the owner of the mistake, the broker converted it, held, the stock
being received by the broker innocently, his intent to appropriate it was a matter of law, formed after the
mistake was discovered, and hence such conversion by the broker was not larceny.
Appeal from Second Judicial District Court, Washoe County; J. Emmett Walsh, Judge.
Suit by Thomas S. Robinson against the Goldfield Merger Mines Company, in which the
Catlin & Powell Company intervened. From an order, on motion of the intervener, granting a
new trial after a decree for plaintiff against intervener, plaintiff appeals. Order reversed. On
rehearing, former judgment of reversal affirmed.
Augustus Tilden, for Appellant:
In granting a new trial, the lower court erred in holding that the common-law rule is
altered by statute. Rev. Laws, 6650. No statute is to be construed as altering the common
law, further than its words import. Shaw v. Bank, 101 U. S. 557. Conceding it to be within
the power of the legislature to make this alteration in the law if it saw fit to do so,
nevertheless such radical and far-reaching changes should only be wrought by language so
clear and plain as to be unmistakable evidence of the legislative intention. Thompson v.
Thompson, 218 U. S. 611; Standard Oil Co. v. U. S., 221 U. S. 1.
While certificates indorsed in blank are not negotiable, still they are recognized as
evidence of ownership and of authority to sell, and pass from hand to hand as freely as
currency. Safe Dept. Co. v. Hibbs, 229 U. S. 391. In view of the custom by which
certificates indorsed in blank are transferable from hand to hand, like negotiable paper, the
owners of such certificates should be required to use the utmost care and diligence in their
safe-keeping. Beckwith v. Galice Mines Co., 93 Pac. 453.
The instruction to register the letter was notice of the special importance of the certificates,
and called for special care. Joslyn v. King, 2 Am. St. Rep. 656. Intervener negligently loosed
the certificates of stock upon the public; negligently put them in the hands of those whose
known business was to pass them on to the purchasing public. One is presumed to intend the
natural consequences of what he negligently does. Gregory v. R. Co., 14 N. E. 228.
Either plaintiff or intervener must suffer from the mistake in forwarding the certificates.
As between them, the loss ought not to fall upon the plaintiff. Sonte v. Marye, 14 Nev. 362;
Cowdry v. Vandenburgh, 101 U.S. 572; Preston v. Witherspoon, 109 Ind. 457; Power Co. v.
Robinson, 52 Fed. 520; Trust Co. v. Hibbs, 229 U. S. 391; Powers v. Perry, 106 Pac. 595.
L. D. Summerfield, for Respondent:
Under the statute title to the stock did not pass. Rev. Laws, 6650. This court is not
authorized to read into the statute, by way of judicial declaration, an exception not there
found. It must be conceded that a court has not legislative powers and cannot read into a
statute something that is not within the manifest intentions of the legislature as gathered from
the statute itself. Ex Parte Pittman, 31 Nev. 43.
The question as to whether negotiable paper is excepted from the statute is not before the
court. Jones v. Nellis, 41 Ill. 482.
A purchaser of stock certificates in blank is not in any sense a bona-fide holder for value,
nor entitled to protection, nor is any subsequent purchaser of the identical certificates.
Barstow v. Savage M. Co., 64 Cal. 388; Winter v. Belmont M. Co., 53 Cal. 428; Sherwood v.
Meadow Valley M. Co., 50 Cal. 413; Bangor E. L. & P. Co. v. Robinson, 52 Fed. 520; Pratt
v. Higgenson, 119 N. E. 661. Shares of stock are not negotiable instruments. 14 C. J. 664; 8
C. J. 54.
It is another and very different proposition to maintain that a man shall forfeit his
property because he has done an act which will not be perilous unless others are guilty of
misconduct which that act does not cause. Knox v. Eden Musee Co., 148 N. Y. 441, 42 N.
E. 988. Estoppel does not apply in cases where the entrusting is not intentional or voluntary.
Bangor E. L. & P. Co., v. Robinson, supra.
This is a proceeding in equity to compel the Goldfield Merger Mines Company, a
corporation created under the laws of the State of Washington, to transfer to plaintiff, upon its
books, 2,000 shares of its capital stock, evidenced by certificates No. 6107 and No. 6108, for
1,000 shares each. Upon the filing of the complaint, Catlin & Powell Company, a corporation
created under the laws of the State of New York, upon leave, filed its complaint in
intervention, demanding that said certificates be transferred to it.
the laws of the State of New York, upon leave, filed its complaint in intervention, demanding
that said certificates be transferred to it. The defendant made no claim to the stock, but
professed its willingness to abide the decree of the court as between the rival claimants. The
court caused findings of fact to be entered in accordance with the facts stated in plaintiff's
complaint, and adjudged and decreed the plaintiff to be the owner and entitled to the
possession of the stock, and ordered the defendant to make transfer thereof to plaintiff. Upon
motion of the intervener, the court granted and caused to be entered an order for a new trial.
The appeal is taken from that order.
In April, 1915, the stock of the Merger Mines Company was actively dealt in by brokers
and the public. The plaintiff and Charles S. Sprague were copartners, doing a stock-brokerage
business under the firm name of Thomas S. Robinson & Co. U. S. Waugh & Co. were
stock-brokers at Goldfield, Nevada, and the Catlin & Powell Company were engaged in a
general brokerage business in the city of New York. The latter had had numerous prior
transactions with U. S. Waugh & Co., with whom its course of dealing was, without
exception, substantially as follows: Upon the filling of buying orders for stock, the certificates
were shipped by registered mail, with draft attached, for the purchase price, to John S. Cook
& Co., bankers at Goldfield, Nevada, with a letter of directions that, upon the payment of the
draft, the certificates be delivered to Waugh & Co.
In this instance, the Catlin & Powell Company, upon the receipt of a buying order from
Waugh & Co., purchased for them, in due course of its business, 3,000 shares of the
Reorganized Booth Mining Company. The 3,000 shares of the Merger Mines Company. The
3,000 shares of the Merger Mines stock were represented by certificates Nos. 6107, 6108, and
6110, for 1,000 shares each. All the certificates bore an assignment and power of attorney to
transfer the same on the corporate books, executed in blank.
executed in blank. The certificates were placed in what is called a draft envelope, which
had a string affixed. A sight draft for the purchase price of all the certificates was placed on
the outside of the draft envelope and tied thereon with the string, making one compact
enclosure. In this condition the certificates and draft were, with a letter of instructions, given
the stenographer of intervener, with express directions to ship the certificates by registered
mail to John S. Cook & Co.; but the stenographer, instead of registering and mailing the
enclosures to John S. Cook & Co., in accordance with the express directions, inadvertently
and mistakenly addressed the mailing envelope and registered it to Waugh & co. direct,
which in due course of mail was delivered to and receipted for by the latter. Waugh & Co.
opened the draft envelope and appropriated and converted the certificates of stock to their
own use, made no mention to John S. Cook & Co. or to the intervener of the receipt of the
enclosures, and, in due course of trade, sold to Thomas S. Robinson & Co. the certificates of
stock in controversy for value.
Prior to the institution of this suit, the intervener filed with the defendant corporation an
affidavit alleging that the certificates of stock had been stolen, and offered to indemnify the
corporation with a bond in double the value of the stock if it would issue to it new
certificates, which offer was refused.
For answer to the complaint in intervention, setting up these facts more in detail that here
stated, the plaintiff pleaded in bar or for a defense to the action in intervention that the
intervener, by its involuntary act and gross negligence, had made it possible for Waugh & Co.
to injure and deceive plaintiff, and that, by reason thereof, the intervener should be estopped
from claiming, as against plaintiff, its title to the shares of stock evidenced by said
certificates.
There is nothing in the record to show what disposition was made of the issue tendered by
the complaint, answer and reply to the complaint in intervention, except what is to be implied
from the findings and judgment in favor of plaintiff.
judgment in favor of plaintiff. The ruling of the court, upon the intervener's motion for a new
trial, in substance and effect, is that plaintiff was a bona-fide purchaser of the stock; that the
evidence tended to show that Waugh & Co. had embezzled the certificates; and that, by
reason of the statute (Crimes and Punishments Act, sec. 385, Rev. Laws, 6650), no title to the
stock could be acquired by plaintiff, and its sale and delivery was void. In passing upon the
motion, the court took occasion to say that said statute was not called to its attention upon the
trial, and had come to its notice only in the argument on the motion for a new trial, and that,
upon consideration of the statute, as applied to the undisputed facts, it was impelled to grant a
new trial.
1. The question for determination on appeal is whether section 385 of the crimes and
punishments act (Rev. Laws, 6650) infringes upon or abrogates the rule of law estopping an
owner from asserting, as against a bona-fide purchaser, his title to shares of stock transferred
in blank from a felon, where the owner was guilty of such negligence or culpable carelessness
as to be the proximate cause of the deceit. Section 385 of the crimes and punishments act
reads as follows:
All property obtained by larceny, robbery, burglary, or embezzlement, shall be restored to
the owner, and no sale, whether in good faith on the part of the purchaser, or not, shall divest
the owner of his right to such property. Such owner may maintain his action, not only against
the felon, but against any person in whose possession he may find the property.
2, 3. This section has formed a part of the crimes and punishments act since 1861. Stats.
1861, p. 67. The principle expressed therein is the outgrowth of the common law. 2
Blackstone, 449; 2 Kent, 324. It has ever been the law that a thief acquires no title to the
property which he steals, and can convey none by any sale and delivery which he may make.
Stealing continues stealing by whatever name is given it, and the owner of stolen property
may recover it from whosesoever hands he finds it. It is obvious, from the statute that an
owner may maintain an action for the restoration to him of his property before the
conviction of the felon.
that an owner may maintain an action for the restoration to him of his property before the
conviction of the felon. Newkirk v. Dalton, 17 Ill. 413. It is probable, considering that when
the statute was first enacted it was held in some jurisdictions that, before the owner could
maintain his action, he must prosecute and convict the thief, the lawmakers may have had
these decisions in mind. From the fact that the owner is, by the statute, privileged to maintain
an action for the restoration of his property, it follows that his right to recover is, and must be,
controlled and governed by the rules of procedure and law incident to actions of that
character, otherwise he might recover upon an ex parte motion, as was attempted in State v.
Burns, 27 Nev. 289, 74 Pac. 983.
The intervener having filed his complaint in the intervention, the inevitable sequence is
that plaintiff had the right to interpose such defense as would in law or equity entitle him to
be protected as against the intervener.
The result of the court's ruling on the motion for a new trial is that the statue makes a sale
of property obtained in either of the ways pointed out ab initio void. This is true where no
element enters into the transaction other than the criminal act. It was so held in the recent case
of Robertson v. C. O. D. Garage Co., 45 Nev. 160, 199 Pac. 356. But we do not perceive the
force of the court's ruling, or of the contention of the counsel for the intervener, that the
statute was intended and designed to abrogate the general law of estoppel. Conceding that the
rule of the statute is that no sale of property so obtained, whether in good faith on the part of
the purchaser or not, shall divest the owner of his right to such property, it is manifest in the
present case that the right of the plaintiff to have the stock transferred was not made to
depend upon the actual title of Waugh & Co. to the stock, or his authority to deal with Waugh
& Co. directly, but from the act of the intervener, which precluded it from disputing, as
against plaintiff, a bona-fide purchaser, the existence of the title or power which, through
negligence and carelessness, it caused or allowed to be vested in Waugh & Co., without
notice of any of the infirmities set up in the complaint in intervention. Gass v. Hampton,
16 Nev. 1S5; Stone v. Marye, 14 Nev. 362
carelessness, it caused or allowed to be vested in Waugh & Co., without notice of any of the
infirmities set up in the complaint in intervention. Gass v. Hampton, 16 Nev. 185; Stone v.
Marye, 14 Nev. 362. Undoubtedly it is the established rule that ordinarily no person can be
deprived of his ownership of property save by his own consent or his negligence. The subject
of this litigation being shares of stock, evidenced by certificates indorsed in blank, may, for
the purposes of the construction of the statute, be conceded to have been stolen, but courts
and text-writers recognize that certificates of stock have a law, an origin, and a nature
different from other kinds of securities. Their character and status, however, as between the
parties, the corporation, and the investing public are fixed and established, either by statute or
by decision. The particular rule protecting a bona-fide purchaser of certificates of stock is
based on the law of estoppel, which is condensed into the rule that, except in cases of
certificates indorsed in blank, and lost or stolen without any negligence on the part of the
owner, a bona-fide purchaser is protected. 2 Cook on Corp. (7th ed.) sec. 416. The reason for
the rule is present in the Nevada cases above cited, and is reviewed at length in National Safe
Deposit, S & T. Co. v. Hibbs, 229 U. S. 391, 33 Sup. Ct. 818, 57 L. Ed. 1241.
But it is contended that the case at bar is distinguishable from these authorities, because of
the criminal act by which the certificates were obtained from the true owner, and the force of
the statute. In Shaw v. Merchants' Nat. Bank of St. Louis, 101 U. S. 557, 25 L. Ed. 894, and
in Green v. Grigg, 98 App. Div. 445, 90 N. Y. Supp. 565, the court recognizes that, even in
cases of theft of such securities, it may be that the true owner by his negligence or
carelessness may have put it in the power of a thief to occupy the position of a true owner,
and that his negligence or carelessness may estop him from asserting his right against a
purchaser, who has been misled to his hurt by that carelessness and negligence. In Barstow v.
Savage Mining Co., 64 Cal. 388, 1 Pac. 349, 49 Am. Rep. 705, it was expressly held that a
bona-fide purchaser of stock, regularly indorsed, and stolen from the present owner,
without his fault, gets no title.
bona-fide purchaser of stock, regularly indorsed, and stolen from the present owner, without
his fault, gets no title. It was observed, in regard to the matter of negligence, as follows:
But if the purchaser from one who has not the title, and has no authority to sell, relies for
his protection on the negligence of the true owner, he must show that such negligence was the
proximate cause of the deceit.
This doctrine is quoted and approved, and supported by the authorities cited in East
Birmingham Land Co. v. Dennis, 85 Ala. 565, 5 South. 317, 2 L. R. A. 836, 7 Am. St. Rep.
73. We cannot discover upon what rule of construction the learned trial court could reach the
conclusions that the statue infringes upon or abrogates the rule of estoppel established by the
above authorities.
Whether, under the uncontradicted facts, the intervener was guilty of negligence and, if
guilty, was the proximate cause of the deceit, is not before us, and we pass no opinion upon
it. The only question considered upon the motion for a new trial was the construction and
legal effect of the statute, but for the existence of which it must be assumed the court would
have denied the motion. We therefore restrict our review to the ground upon which the order
was made. The court gave the statute an erroneous construction in extending its protection to
any and all cases, even though it may have been of the opinion in the particular case that the
owner should be estopped by reason of his negligence or carelessness from asserting his right
against a bona-fide purchaser, misled to his injury by that negligence of carelessness.
The order appealed from is reversed.
On Rehearing
1. In the former opinion the position taken was that the only question considered by the
trial court in ordering a new trial was erroneously decided, and our order of reversal was
restricted and limited to that one question. Upon petition for rehearing we were asked by
respondent to pass upon the other grounds stated in its motion for new trial, in order that
it might be informed as to whether the grounds stated therein were well taken.
respondent to pass upon the other grounds stated in its motion for new trial, in order that it
might be informed as to whether the grounds stated therein were well taken. The respondent
is entitled to know this, as the effect of the order of reversal ended the case adversely to
respondent. Upon consideration of the entire record, we conclude that the order granting a
new trial on the one question decided should not be construed as overruling the other grounds
stated in the motion. Reno Mill Co. v. Westerfield, 26 Nev. 332, 69 Pac. 899. The point was
not raised on the former hearing, and we granted a rehearing to consider the several grounds
upon which the motion for a new trial was made, namely, the insufficiency of the evidence to
support the decision, and that the decision is against law. The facts are fully stated in the
former opinion, and we shall restate only so much thereof as necessary to make clear the
errors of law now insisted upon.
2. It is admitted that the course of dealing, without exception, between Catlin & Powell
Company, brokers of New York City, and U. S. Waugh & Co., brokers of Goldfield, Nevada,
was that, upon the filing of buying orders of stock for Waugh & Co., the Catlin & Powell
Company would transmit the certificates, duly indorsed for transfer, to John S. Cook & Co.,
bankers at Goldfield, with draft attached, accompanied by a letter of instruction to deliver the
certificates to Waugh & Co. upon the payment of the draft. The certificates in controversy
were enclosed in a draft envelope, with a draft printed thereon, but not sealed, and inclosed in
a mailing envelope with a letter containing the usual directions, and delivered to the
stenographer of Catlin & Powell Company, with directions that she transmit the same by
registered mail to John S. Cook & Co. But the stenographer, by reason of her mistake and
confessed error, transmitted the inclosures, on the 22d day of April, 1915, to Waugh & Co. by
registered mail, instead of to John S. Cook & Co., contrary to the instructions as given her by
Catlin & Powell Company. The certificates, draft, and letter thus addressed were received by
Waugh & Co. in due course of mail, on the 27th day of April, 1915, as shown by the
registry receipt. On the 2Sth day of April, 1915, Waugh & Co. sold the stock represented
in said certificates to Thomas S. Robinson & Co., in the regular course of trade, for value,
and, without notifying John S.
Waugh & Co. in due course of mail, on the 27th day of April, 1915, as shown by the registry
receipt. On the 28th day of April, 1915, Waugh & Co. sold the stock represented in said
certificates to Thomas S. Robinson & Co., in the regular course of trade, for value, and,
without notifying John S. Cook & Co. or Catlin & Powell Company, passed title thereto by
delivery to Thomas S. Robinson & Co.
3. Applying the rule of negligence discussed in the former opinion to these undisputed
facts, if it can be legally determined that the certificates thus appropriated and sold by Waugh
& Co. were stolen, Thomas S. Robinson & Co. are not protected as innocent purchasers,
because the negligence or carelessness of respondent's stenographer of itself was not the
proximate cause of the theft, though it afforded an opportunity for its perpetration.
A person who does not lock up his goods, which are consequently stolen, may be said to
be negligent as regards himself, but inasmuch as he neglects no duty which the law casts upon
him, he is not in consequence estopped from denying the title of those who may have,
however innocently, purchased those goods from the thief. * * * Swan v. N. B. Australasian
Co., 2 H. & C. Reports (Eng.) 179.
This is a true and sound principle expressed in our crimes and punishments act (Rev.
Laws, 6650).
It is argued on behalf of appellant Robinson that, upon the undisputed facts, the certificates
in question were not acquired by Waugh & Co. through any criminal act, consequently the
case comes within the principle that one who, by his own neglect, is responsible for or the
cause of a loss, should bear it instead of an innocent party. Obviously, it was upon this theory
that the district court decided the case on its merits in favor of the appellant, but granted a
new trial upon the theory that the certificates were stolen. In support of the court's ruling, it is
argued on behalf of respondent that Waugh & Co. knew that Catlin & Powell Company had
no intention of delivering the certificates to them, that the delivery was a mistake, and
upon its discovery Waugh & Co. then and there formed the intention to appropriate and
retain the certificates, which was a fraud, amounting to larceny.
4. By greater weight of authority, it is not larceny if the property was innocently received
and the intent to appropriate was formed after the mistake was discovered.
no intention of delivering the certificates to them, that the delivery was a mistake, and upon
its discovery Waugh & Co. then and there formed the intention to appropriate and retain the
certificates, which was a fraud, amounting to larceny.
4. By greater weight of authority, it is not larceny if the property was innocently received
and the intent to appropriate was formed after the mistake was discovered. 18 Am. & Eng.
Ency. of Law, 481. See, also, not entitled Larceny of Money or Property Delivered by
Mistake, 52 L. R. A. 136.
In Rex v. Mucklow, 1 Moody C.C. (Eng.) 160, it was held:
That if a man takes a letter supposing that it belongs to himself, and, on finding that it
does not, appropriates to himself the property it contains, he is not answerable for larceny,
there being no animus furandi when he first received the letter.
To convict of larceny, it is necessary to find that the intent to steal existed at the time of
the taking. No subsequent felonious intent will suffice. State v. Clifford, 14 Nev. 72, 33 Am.
Rep. 526.
5. The certificates of stock, duly indorsed for transfer, and quasi negotiable, were received
by Waugh & Co. innocently, and their intent to appropriate the stock represented thereby
must, of necessity, have been formed after the mistake was discovered. In this situation we
cannot say that the conversion of the certificates was, as a matter of law, larceny.
The question of Waugh & Co.'s asserted criminal act being eliminated from the
transaction, the undisputed facts bring the case within the principle that where a loss has been
sustained, if occasioned by the plaintiff's negligence, it should be borne by it, instead of an
innocent party. North British & M. Ins. Co. v. Merchants' Nat. B., 161 App. Div. 341, 146 N.
Y. Supp. 725.
In opposition to the application of the rule of estoppel by negligence stated in the former
opinion as being applicable to the case at bar, on the authority of Bangor E. L. & P. Co. v.
Robinson, 52 Fed.
E. L. & P. Co. v. Robinson, 52 Fed. 520, it is argued that the negligence of the stenographer
of respondent was not such as to entitle appellant to the protection of the rule. The
adjudication in Bangor E. L. & P. Co. v. Robinson does not meet this case, because there is
no similarity in the special facts. As was observed in the opinion, the certificates there
involved were treated as stolen property.
The order granting a new trial must be reversed.
It is so ordered.
____________
46 Nev. 304, 304 (1923) In Re Clarke
[No. 2569]
In the Matter of the Application for the Disbarment of JOHN ROBB CLARKE as an
Attorney and Counselor at Law.
[212 Pac. 1037]
1. Attorney and ClientEvidence Insufficient to Sustain Charges of Gross Misconduct of
Attorney.
Evidence in a disbarment proceeding held insufficient to support charges that an attorney at law
requested a city solicitor to bring a criminal action to frame a third party, or induced plaintiff in a
divorce action to commit fraud on the court by testifying falsely as to his period of residence in the state
to vest the court with jurisdiction.
Original proceeding by the Las Vegas Bar Association for the disbarment of John Robb
Clarke, an attorney. Application dismissed.
Edgar L. Martin and C.D. Breeze, for informant.
F. R. McNamee and Leo A. McNamee, and Huskey & Kuklinski, for Clarke.
By the Court, Ducker, C. J.:
The application for the disbarment of John Robb Clarke was made by F. A. Stevens, an
attorney at law, in his own behalf, and also for and on behalf of the bar association of the city
of Las Vegas, Clark County, State of Nevada. Citation was issued on said application,
requiring the accused to appear before this court and show cause, if any he had, why the
certificate and license to practice law in the State of Nevada, heretofore granted to him by
this court, should not be revoked, and why he should not be disbarred and precluded from
practicing law in all the courts of the State of Nevada.
46 Nev. 304, 305 (1923) In Re Clarke
and show cause, if any he had, why the certificate and license to practice law in the State of
Nevada, heretofore granted to him by this court, should not be revoked, and why he should
not be disbarred and precluded from practicing law in all the courts of the State of Nevada.
The citation was personally served upon him in the county of Clark, State of Nevada, on the
22d day of August, 1922, and thereafter, on November 16, 1922, the matter came on for
hearing before this court. At the conclusion of the hearing we were of the opinion that the
evidence was insufficient to sustain the charges made by the informant, and entered an order
from the bench dismissing the application.
During the time mentioned in the accusation, John Robb Clarke was an attorney at law,
duly licensed by the Supreme Court of the State of Nevada to practice his profession in all the
courts of this state, and was engaged in the practice of law in said city of Las Vegas. It is
alleged that prior to the filing of the accusation, and since his admission to the practice of law
in this state, he has wilfully and maliciously conducted himself in a most ungentlemanly
manner in respect to his said profession, and has been guilty of gross misconduct in office.
The first specific allegation of misconduct in the application is substantially as follows:
On or about the month of July, 1921, the informant, F. A. Stevens, was the city attorney of
said city of Las Vegas. It is alleged that at that time and place Clarke, acting in his capacity as
an attorney at law, approached the informant, and requested him to institute and prosecute a
criminal action in the municipal court of said city against a certain person whose true name is
not known to informant; that informant, after having been fully advised as to the matter, told
Clarke that he could not institute and prosecute said criminal action, for the reason that it did
not appear to him that an offense had been committed; that Clarke then offered to associate
himself with informant and assist in the prosecution of the action; that when informant
refused this request, Clarke said to him, in words to the following effect: "Don't you ever
frame these cases with other attorneys in order to make a little extra change?"
46 Nev. 304, 306 (1923) In Re Clarke
request, Clarke said to him, in words to the following effect: Don't you ever frame these
cases with other attorneys in order to make a little extra change?
The third specific allegation is substantially as follows: That on the 24th day of May,
1922, one Harold S. Webster, through his attorney, John Robb Clarke, commenced an action
for divorce against his wife, Alice Clara Webster, by filing with the clerk of the district court
in and for said county of Clark, his verified complaint. That the cause of action as set out
therein arose outside of the State of Nevada, and, among other things, the complaint
contained the following allegation:
That plaintiff is now, and for more than six months past and immediately preceding the
commencement of this action has been continuously, an actual and bona-fide resident of the
county of Clark, State of Nevada.
That said allegation was necessary and material in order to vest the court with jurisdiction
over the subject-matter of said action; that said action came on for trial in said curt on the 4th
day of August, 1922, at 10 o'clock a.m., Clarke appearing as attorney for plaintiff, and
Webster, being sworn as a witness in said action, testified in effect that he had been an actual,
continuous, and bona-fide resident of said city, county, and state from the 12th day of
November, 1921, until the commencement of the action, save and except two or three minor
absences not to exceed more than four or five days at any one time, and also that he was
living and residing in said city of Las Vegas continuously from the said 12th day of
November, up to and including the 28th day of December, 1921, without being absent from
said city at all.
It is alleged that his testimony as to his continuous presence in said city during the
last-mentioned period of time was false and untrue, in that he did not live and reside in said
city of Las Vegas, or in the county of Clark, State of Nevada, during said period of time, or
any portion thereof; that he then and there knew that his said testimony was false and untrue,
and that Clarke did then and there know that the testimony of Webster was false and
untrue, and did wilfully and maliciously, with intent to cause Webster to attempt to
commit a fraud upon the court, procure, induce, cause, and prevail upon the latter to so
testify falsely in this respect; that all of said period of residence as testified to by Webster
was necessary in order to vest the court with jurisdiction over the subject-matter of said
action, which was then and there well known to John Robb Clarke.
46 Nev. 304, 307 (1923) In Re Clarke
did then and there know that the testimony of Webster was false and untrue, and did wilfully
and maliciously, with intent to cause Webster to attempt to commit a fraud upon the court,
procure, induce, cause, and prevail upon the latter to so testify falsely in this respect; that all
of said period of residence as testified to by Webster was necessary in order to vest the court
with jurisdiction over the subject-matter of said action, which was then and there well known
to John Robb Clarke.
There was a second allegation of misconduct in the accusation, and, as to that, counsel for
the informant stated at the beginning of the hearing that he would offer no evidence to
support it. This second allegation was therefore, upon motion, stricken from the accusation by
order of the court.
Upon the first charge the evidence is in direct conflict. But two witnesses testified
concerning it, the informant, F. A. Stevens, and the accused. The former's testimony was
furnished by deposition, and is substantially as alleged in the information. He testified that
after he had declined to institute and prosecute the criminal action at Clarke's request, the
latter said to him: Don't you ever frame these cases with other attorneys so as to make a
piece of change? to which he replied, No; we don't do that kind of business out here. No
one was present except himself and Clarke. Clarke, who was sworn as a witness in his own
behalf at the hearing, denied that any such conversation ever occurred. If Clarke made the
inquiry attributed to him and was serious in making it, we might well find that he, as an
attorney at law, had wilfully attempted to induce informant, as city attorney, to use his office
for an unlawful purpose. Such action would amount to gross misconduct warranting his
disbarment. But in view of the state of the evidence in this regard, we are unable to say that
the allegation is proven. The burden of proof was on the informant. On account of the highly
penal nature of a judgment of disbarment, affecting so adversely the whole future of an
accused, courts will not disbar on doubtful evidence, or where there is substantial conflict
in it.
46 Nev. 304, 308 (1923) In Re Clarke
not disbar on doubtful evidence, or where there is substantial conflict in it.
The evidence introduced to sustain the third allegation of misconduct was also furnished
by deposition. A brief summary of it, and of the evidence introduced by Clarke, will show
that this allegation is not sustained. The deposition of Harold S. Webster sets forth
substantially that he arrived in Las Vegas on the 30th day of December 1921, and had not
previously resided there; that on the 24th day of May, 1922, through his attorney, John Robb
Clarke, he filed a complaint for divorce against his wife, Alice Clara Webster, in the district
court in and for Clark County, alleging that he had been continuously an actual and bona-fide
resident of the county of Clark, State of Nevada, for more than six months immediately
preceding the commencement of the action; that a default was taken, and the action came on
for trial in said court on the 4th day of August, 1922, Clarke appearing as attorney for
plaintiff; that Webster was sworn as a witness, and in answer to questions propounded by his
attorney and by the court testified that he came to Las Vegas, Clark County, Nevada, on the
12th day of November, 1921; that a continuance was had until 11 o'clock, and on
cross-examination by a committee of the local bar appointed by the judge of the court, he
maintained that he had resided in Las Vegas since November 12, 1921; on the next day,
August 5, 1922, another attorney, Mr. Breeze, having been substituted in the action as his
attorney in the place of Clarke, he testified that his testimony given the day before as to his
residence commencing on November 12, 1921, was incorrect, and that it actually began on
December 30, 1921.
In reference to Clarke's connection with this false testimony Webster deposes substantially
as follows: That he first met Clarke at a dance in Las Vegas on the 31st day of December,
1921, and about the middle of the following January had a conversation with him, in which
he told Clarke that he might figure him as a prospect or client in a divorce action, and
telling him that his time would be up about the 1st of July; that about the last of
February, 1922, in Clarke's office, he employed him as his attorney in the divorce matter,
and in the conversation which ensued the former impressed it upon him that he must
have a residence of full six months before starting the action; that about the 1st of May,
1922, in Clarke's office, while he was unable to quote the exact words, Clarke said to him,
"Isn't it about time we were able to file this case?" and he replied, "I don't think we can
file yet, because I haven't been here for a sufficient time," to which Clarke replied, "Don't
you think you came about the middle of November?
46 Nev. 304, 309 (1923) In Re Clarke
a prospect or client in a divorce action, and telling him that his time would be up about the 1st
of July; that about the last of February, 1922, in Clarke's office, he employed him as his
attorney in the divorce matter, and in the conversation which ensued the former impressed it
upon him that he must have a residence of full six months before starting the action; that
about the 1st of May, 1922, in Clarke's office, while he was unable to quote the exact words,
Clarke said to him, Isn't it about time we were able to file this case? and he replied, I don't
think we can file yet, because I haven't been here for a sufficient time, to which Clarke
replied, Don't you think you came about the middle of November? If you came about the
middle of November, your six months would be up about the middle of this coming month.
Webster said that he accepted this suggestion.
He stated that Clarke knew at the time the complaint was filed, or before, that he
(Webster) was not in the city of Las Vegas from November 12 to December 30, 1921; that
they discussed the possibility of his staying at a hotel during this period, and he stated to
Clarke that that would be impossible, as there was no registration; that Clarke said, Don't
you know some friend with whom you could have stayed? He replied, I don't know of
anybody now that is in town that I knew then, except Mr. Montgomery; that Clarke then
said, Do you think Mr. Montgomery would be your witness for that period? that he replied,
I will see him and find out; that Montgomery went to see Clarke, who prepared an affidavit
for him, which stated in substance that the former knew Webster as a resident of Las Vegas
from and about the middle of November until affiant left Las Vegas; that Clarke did not
procure or induce him to testify falsely, except by way of suggestion, nor know precisely from
any statement of his that he did not come to Las Vegas on the 12th of November, 1921; that
Clarke indirectly expressed some concern as to difficulties that might arise in the trial of the
case on the question of residence, and mentioned other cases that had been put over in
the Clark County court where residence had not been sufficient; that the complaint in the
divorce action had been filed about the 1st of May, 1922, and signed by him at that time,
or about the 10th or 12th of May; that he {Webster) verified the complaint before it was
filed; that Clarke stated that he would file in a few days; that in a few days he asked
Clarke if he had filed it, and the latter said no, and upon being asked when he was going
to file it said in a few days; that on three or four occasions he asked Clarke when he was
going to file, and finally they went to the clerk's office together and filed the complaint;
that he {Webster) had a conversation with the local bar association in the district
attorney's office, and was told that the course he was about to pursuethat is, to dismiss
the case and tell the whole truth about the matterwas the only course to follow; and
that he was told that there would be no charge preferred against him.
46 Nev. 304, 310 (1923) In Re Clarke
the case on the question of residence, and mentioned other cases that had been put over in the
Clark County court where residence had not been sufficient; that the complaint in the divorce
action had been filed about the 1st of May, 1922, and signed by him at that time, or about the
10th or 12th of May; that he (Webster) verified the complaint before it was filed; that Clarke
stated that he would file in a few days; that in a few days he asked Clarke if he had filed it,
and the latter said no, and upon being asked when he was going to file it said in a few days;
that on three or four occasions he asked Clarke when he was going to file, and finally they
went to the clerk's office together and filed the complaint; that he (Webster) had a
conversation with the local bar association in the district attorney's office, and was told that
the course he was about to pursuethat is, to dismiss the case and tell the whole truth about
the matterwas the only course to follow; and that he was told that there would be no charge
preferred against him.
Clarke testified that he first met Webster at a dance in Las Vegas on the evening of
December 31, 1921, and the latter then told him that he had been in Las Vegas for some little
time and not been out before to any dance; that he was employed as Webster's attorney early
in May, 1922; that Webster seemed to be reasonably familiar with the divorce laws, and knew
that the required residence was six months; that he impressed upon Webster that residence of
six months was the one point on which he would have to have corroborative testimony and
asked him to find some one to corroborate the statement that he had been there for the full
period; that Webster suggested Montgomery, and the latter told him in the former's presence
that Webster had been in Nevada and in Las Vegas from about the middle of November; that
Montgomery made an affidavit to the effect, and he had no reason for disbelieving them; that
he drew the affidavit at Webster's request from the facts stated by Montgomery; that he told
Webster the affidavit would be worthless as evidence if the suit was contested, but, as the
latter was insistent, drew it to humor him; that they never discussed the matter of hotel
registration; that he told Webster to get a residence witness, a reputable resident of Las
Vegas, who had seen him and knew that he had been there during the six months; that
Webster had insisted on getting service of summons by publication, but after a number of
conversation finally admitted that he could locate his wife; that he {Clarke) then took the
matter up with an attorney in the town where Mrs.
46 Nev. 304, 311 (1923) In Re Clarke
the affidavit would be worthless as evidence if the suit was contested, but, as the latter was
insistent, drew it to humor him; that they never discussed the matter of hotel registration; that
he told Webster to get a residence witness, a reputable resident of Las Vegas, who had seen
him and knew that he had been there during the six months; that Webster had insisted on
getting service of summons by publication, but after a number of conversation finally
admitted that he could locate his wife; that he (Clarke) then took the matter up with an
attorney in the town where Mrs. Webster was, and had personal service made; that he may
have said to Webster, Is your time up? but if he did it was not with any intention of dating
the time back, but merely because he presumed Webster had come to Las Vegas in
November; that Webster told him on numerous occasions that he had been in Las Vegas some
time before they met, and never told him his time would be up in July; that he did not know at
the time the complaint was filed, or at the time Webster testified, that he had not been a
resident of Clark County from the 12th day of November, 1921, and believed that he was a
resident for a period of more than six months; that he based his belief upon Webster's
statements to him; that he never expressed any fear that there would be difficulty about
Webster's residence; that Mr. Maxwell testified at the trial that he had known Webster from
about the middle of November; that Webster came to Clarke's house on the night of the 4th of
August, 1922, and tried to induce the latter to leave town, saying that it would put him
(Webster) safe; that Clarke told him he did not see any reason why he should leave, and
intended to stay, and if Webster had testified falsely it was up to him to clear his own skirts in
the matter of perjury.
The testimony of Mrs. John Robb Clarke, Mrs. George Sanderson, and Mrs. Henry
Shrader was taken by deposition. The former testified that she met Webster and had a
conversation with him at the dance on the night of December 31, 1921, and in the
conversation he had led her to believe that he had been in Las Vegas for some time, but it
was the first time he had been out in society.
46 Nev. 304, 312 (1923) In Re Clarke
of December 31, 1921, and in the conversation he had led her to believe that he had been in
Las Vegas for some time, but it was the first time he had been out in society.
Mrs. Sanderson testified that she had met Webster at this dance, and he told her that he
had been in Las Vegas for a couple of months, and intended to stay a couple of months
longer.
Mrs. Shrader testified that she had met him at the dance, and he told her that he had been
in Las Vegas some time, but this was the first time he had been out to a dance.
From the foregoing synopsis of the testimony it appears that the evidence in support of the
third allegation is far weaker than that adduced to sustain the first allegation. In the first
instance there is testimony of a reputable attorney holding a responsible public office, while
in the latter evidence is furnished solely by a witness who appears to have no regard for an
oath. He admits that he knowingly verified a complaint containing materially false statements
as to his residence, and thereafter deliberately swore falsely in this respect for the purpose of
persuading the court that it had jurisdiction in his case.
His assertions that Clark knew he had not been in Las Vegas from the middle of
November, and suggested that he should commence his residence from that date and procure
a witness to corroborate him in this respect, are all denied by Clarke. There is nothing in the
record affecting his credibility. According to the testimony of three persons, two of whom at
least appear to be disinterested witnesses, Webster told them that he had been in Las Vegas
for some time prior to December 31, 1921. It is therefore not improbable that he made the
same statement to Clarke.
For the reasons given, we are of the opinion that the charges preferred have not been
sustained by the evidence.
____________
46 Nev. 313, 313 (1923) Williams v. Cordingly
[No. 2538]
R. G. WILLIAMS, Appellant, v. AGNES B. CORDINGLY, JOSEPH D. CORDINGLY,
ELLEN HENNESSY, HENNESSY DIVIDE MINING COMPANY (a Corporation),
NEVADA FIRST NATIONAL BANK OF TONOPAH (a Corporation), JOHN DOE,
and RICHARD ROE, Respondents.
[213 Pac. 105]
1. Descent and DistributionHeirs of Deceased Intestate. Locator of Unpatented Mining
Claims, Take Only Interest Possessed by Ancestor.
The estate or property of a locator of unpatented mining claims, dying intestate, descends to his heirs,
the same as any other real property or interest therein, such heirs taking precisely the same interest in the
property as the ancestor had, and have no greater or better claim than he had.
2. Mines and MineralsOne Who Entered into a Grubstake Contract with Another Not in
Writing Held Entitled to Share of Mining Claims Located by the Other, to which Heirs of Other Took
Subject.
Though Stats. 1907, c. 174 (Rev. Laws, 2475), provides that grubstake contracts are void, except as
between the parties thereto, unless recorded, and that they shall be acknowledged, and that, when
acknowledged and recorded, they shall be prima facie evidence in all courts, in cases where mining
claims are in dispute, one who entered into such contract, not in writing, with another, who subsequently
located three mining claims, had an undivided one-half interest therein, to which the heirs of the locator
deceased intestate took subject.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Suite by R. G. Williams against Agnes B. Cordingly and others. From a judgment for
defendants and an order denying a new trial, plaintiff appeals. Remanded with directions.
Wm. Forman and Wm. McKnight, for Appellant:
The statute has no application to this case, because the parties to the contract and the
parties to the action are, in the sense of the statute, the same. Being binding upon Hennessy, it
is equally binding upon his heirs. Griffin v. Wertz, 2 Ill. App. 487; Williams v. Jones, 95 N.
C. 504; Mayer v. Myers, 129 Ind. 366, 27 N. E. 740; Strough v. Wilder, 119 N. Y. 530, 23 N.
E. 1057, 7 L. R. A.
Strough v. Wilder, 119 N. Y. 530, 23 N. E. 1057, 7 L. R. A. 555.
Respondents herein occupy the place of Hennessy, take precisely the same interest he had
and subject to the same conditions and equities, and are estopped, as he was, to deny the
validity of the contract with Williams. 9 R. C. L. 87, 88.
The words the same parties include their heirs. Dishong v. Finkbiner, 46 Fed. 12, 17;
Britton v. Thorton, 112 U. S. 535, 5 Sup. Ct. 291, 28 L. Ed. 816, 819; Briggs v. Briggs, 80
Cal. 253, 22 Pac. 335.
This court has clearly recognized the distinction between mere grubstake and prospecting
agreements and joint mining adventures. Costello v. Scott, 30 Nev. 43, 72, 93 Pac. 1, 94 Pac.
222; Botsford v. Van Riper, 33 Nev. 191, 110 Pac. 710; Hornsilver Cases, 35 Nev. 447, 456,
130 Pac. 760, 134 Pac. 448; Lind v. Webber, 36 Nev. 623, 134 Pac. 461, 135 Pac. 139, 141
Pac. 458; Ann. Cas. 1916a, 1202, 50 L. R. A. (N.S.) 1046; Miller v. Walser, 42 Nev. 497,
513, 181 Pac. 497.
Property acquired in joint adventure with the profits thereof, where one party holds title, is
the property of his associates, and he holds their proportionate shares as trustee for them.
Botsford v. Van Riper, supra; Lind v. Weber, supra. And the property may be traced into
whosesoever possession it comes, except that of a bona-fide purchaser without notice. Lind v.
Weber, supra.
The defense of the statute must in some manner be claimed or insisted upon; it cannot be
invoked by the court of its own motion. 10 Stand. Proc. 78; Chicago Attachment Co. v. Davis
Co., 142 Ill. 171, 31 N. E. 438; 15 L. R. A. 754.
Cooke, French & Stoddard and W.D. Hatton, for Respondents:
The Nevada statute making grubstake contracts void except between the parties thereto
excludes every person who is not a party to that contract. Heirs of a party to a contract are
no more parties to the contract than subsequent purchasers, encumbrancers, etc.
party to a contract are no more parties to the contract than subsequent purchasers,
encumbrancers, etc. Griffin v. Wertz, 2 Ill. App. 487, cited by counsel, is not in point;
because that case merely involved the validity of an unrecorded mortgage asserted against
administrator of mortgagor. Under the Illinois statute such mortgage was valid as between the
parties, but not valid as to third persons, and the court further held that mortgagor's
administrator was not a third person. But the Nevada statute (Rev. Laws, 2474) makes an
unrecorded grubstake contract void and of no effect except between the parties to the
contract. Mayer v. Myers, 27 N. E. 740, is also not in point. Authorities discussing the law
applicable to third parties are wholly inapplicable here, because it is not third parties who
are the only ones excepted from the operation of an oral grubstake contract, but it is all
persons whomsoever who are not parties to the contract.
In Costello v. Scott, 30 Nev. 43, at p. 72, 93 Pac. 1, the court expressly held that, unless
the agreement goes beyond the mere furnishing of supplies in consideration of a participation
in the discoveries, the word partnership is improperly used and misleadingthat a
grubstake contract is simply a common venture wherein one furnishes the grub and the other
the labor, and all discoveries inure to the benefit of the parties in the proportion fixed by the
agreement; but where the venture goes further, and contemplates the working and developing
of mines or a general mining business, it is more than a grubstake contract, and constitutes a
partnership. Tested by this rule, there was no partnership, but a mere grubstake agreement.
A resulting trust, properly shown as growing out of a joint adventure, is operative as
against the heir, yet the heir is not a party to the contract in dispute. The plaintiff is not a
party to the contract in dispute, and the contract is not binding upon him personally; but the
legal title to the lots devolved upon him by descent, and is subject to the same trust while held
by him that it was subject to while held by his father."
it was subject to while held by his father. Irvine v. Campbell (Minn.), Ann. Cas. 1914c, 689,
691. In the case at bar the heirs were not parties to the alleged grubstake contract, and,
further, the contract is void for not being in writing and recorded. Therefore there can be no
resulting trust to which the interest of the heirs might be subjected.
The merit of this appeal from a judgment and an order denying a new trial turns upon
whether a statute passed in 1907 (Stats. 1907, p. 370; Rev. Laws, 2475) defeats plaintiff's
right to recover. The statute reads as follows:
Section 1. All grubstake contracts and prospecting agreements hereafter entered into, and
which may in any way affect the title of mining locations, or other locations under the mining
laws of this state, shall be void and of no effect, except between the parties to said contract or
agreement, unless the instrument shall first have been recorded in the office of the county
recorder of the county in which said instrument is made. The instrument or instruments shall
be duly acknowledged before a notary public or other person competent to take
acknowledgments. Grubstake contracts and prospecting agreements, duly acknowledge and
recorded as provided for in this act, shall be prima-facie evidence in all courts of justice in
this state in all cases wherein the title to mining locations and other locations under the
mining laws of this state are in dispute.
The assignments of error do not assail the section, but it is specified that, if the section is
applicable at all, the case at bar falls squarely within its exception, namely, * * * except
between the parties to said contract or agreement. * * * This position necessitates a review
of the case.
The action was brought to obtain judgment and decree adjudging and decreeing plaintiff to
be the owner of 250,000 shares of the capital stock of the Hennessy Divide Mining Company,
a corporation, issued to the defendants in consideration of the sale and conveyance by
them to said corporation of three lode mining claims, situate in the Gold Mountain mining
district, Esmeralda County, designated as the St.
Divide Mining Company, a corporation, issued to the defendants in consideration of the sale
and conveyance by them to said corporation of three lode mining claims, situate in the Gold
Mountain mining district, Esmeralda County, designated as the St. Patrick, St. Ignatius, and
Elberta lode mining claims. The Hennessy Divide Mining Company and the Nevada First
National Bank of Tonopah are made parties defendant, because of the injunctive relief
demanded against them. The prayer for relief was that said stock be impressed with a trust in
favor of the plaintiff, that he be adjudged to be the owner thereof, and that defendants and
their privies be required to deliver said stock to plaintiff.
Among others, the court found the facts to be as follows:
That in the year 1910, the plaintiff and one Richard Hennessy entered into an
arrangement for the location of three certain mining claims on January 1, 1911, in the
Tonopah Gold Mountain mining district, now commonly known as Tonopah Divide mining
district, in Esmeralda County, Nevada, for the joint and equal benefit of the plaintiff and said
Richard Hennessy; that, pursuant to said arrangement, the said Richard Hennessy entered
upon the public domain in said mining district thereupon discovered, located, and acquired, in
the name of Richard Hennessy, those certain lode mining locations commonly known and
designated as St. Patrick, St. Ignatius, and Elberta, a contiguous group lying adjacent to that
certain group of quartz mining locations, now commonly known and designated as the High
Divide Group.'
It is admitted that Richard Hennessy, the party referred to in this finding, died intestate in
Nye County or on about the 7th day of December, 1911, and that R. G. Williams, also
referred therein, the plaintiff herein, at all times after the death of said Richard Hennessy, up
to the year 1918, inclusive, except for the year 1912, represented said mining claims at his
own cost and expense as required by the state and federal laws of which the defendants had
knowledge.
laws of which the defendants had knowledge. The said Richard Hennessy left surviving him
as his heirs at law and next of kin the defendants Agnes B. Cordingly, a half-sister, Joseph D.
Cordingly, a half-brother, and Ellen Hennessy, a sister, who, at the time of the death of said
Richard Hennessy, and on the date of the contract entered into by him with the plaintiff in the
year 1910, resided in a foreign state. On or about the 10th day of September, 1918, when said
mining claims became marketable, Agnes B. Cordingly petitioned for letters of
administration upon the estate of said Richard Hennessy in the district court of Nye County,
and on September 21, 1918, letters were issued, and she thereupon qualified and entered upon
her duties as administratix of said estate. January 1, 1919, said administratix petitioned for a
partial distribution of the estate, including said three miming claims. February 1, 1919,
responsive to her said petition, a decree of partial distribution was made and entered in the
matter of said estate, in which said decree and said three mining claims were distributed to
said three heirs of Richard Hennessy, deceased, the defendants herein. Thereafter said heirs
and distributees sold and conveyed their right, title, and interest in said mining claims to the
said Hennessy Divide Mining Company for the consideration of 500,000 shares of its capital
stock, which was thereupon issued to them, subject to the terms and conditions of a pooling
agreement whereby said stock was deposited with said Nevada First National Bank of
Tonopah in escrow or in pool.
Upon these facts, and after an extended hearing without a jury, the court decided that
plaintiff had an interest in the stock in controversy, and ascertained that interest to be 189,281
shares of such stock; but it was of the opinion that, because the contract between the plaintiff
and Richard Hennessy was a grubstake contract, not in writing, and that the defendants, as
heirs of Richard Hennessy, were not parties thereto, under the statute above quoted, the
plaintiff could not recover, and rendered judgment for the defendants.
recover, and rendered judgment for the defendants. The judgment is demonstrably wrong.
1. That unpatented mining claims are property is not questioned. That the estate or
property of a locator of such claims, dying intestate, descends to his heirs, the same as any
other real property or interest therein, is well settled, and no rule is better established than that
heirs occupy the place of the ancestor. They take precisely the same interest in the property
which the ancestor had, and have no greater or better claim that he had. 9 Ruling Case Law,
sec. 83, p. 87.
2. Plaintiff, under his contract with the deceased, had an undivided half interest in said
mining claims, located by the deceased. Plaintiff and the deceased, in virtue of their contract,
had held the ground as tenants in common. On the death of Hennessy, his heirs succeeded to
no other nor greater rights in the property than those possessed by their ancestor. They took
subject to the right of plaintiff under the contract existing unimpaired between plaintiff and
the deceased at the time of his death. The contract, on the death of Hennessy, became equally
as binding on defendants as upon him; and in this action defendants had no better nor greater
right to disavow their ancestor's contract than he himself would have had. Their conversion of
the property acquired as heirs and distributees was dependent upon, and burdened with, the
obligation imposed by their ancestor's contract. Certainly the statute concerning grubstake
contracts and prospecting agreements was not designed to displace this rule of property or the
statute of descent and distribution, or to enlarge or diminish the principles of equity
applicable to the case in hand. Obviously the statute, wrongfully construed and applied by the
district court, was ostensibly enacted and adopted to protect bona-fide purchasers. The
doctrine of bona-fide purchaser has no application to the case. The case, in our opinion, as
made by the pleadings and proof, comes squarely within the exception contained in the
statute. It results that it should have been decided upon general principles of equity,
applicable to cases of this nature and character.
have been decided upon general principles of equity, applicable to cases of this nature and
character.
The court having decided that the plaintiff had an interest, and what that interest was, in
the proceeds of the sale and conveyance of property acquired by defendants as heirs and
distributees of Richard Hennessy, deceased, it was its duty to render judgment in favor of
plaintiff for the interest so ascertained and adjudged to be justly and rightly his.
Nothing said herein is to be taken or understood as deciding what would be the effect of
the statute were the case one between plaintiff and the Hennessy Divide Mining Company, as
grantee of the defendants.
This being an equity case, we have carefully reviewed the evidence, and we reach the
conclusion that plaintiff is entitled to and should have and recover of the defendants 189,281
shares of the capital stock of said Hennessy Divide Mining Company; and it is ordered that
the case be remanded, with directions to the court below to render and to enter its judgment
and decree in favor of plaintiff and against the defendants for said number of shares of such
stock, and for such other relief as may appear necessary for its delivery to plaintiff.
____________
46 Nev. 321, 321 (1923) In Re Hegarty's Estate
[No. 2554]
In the Matter of the Estate of DENIS HEGARTY,
Deceased.
[212 Pac. 1040]
1. WillsUndue Influence Does Not Invalidate, unless It Destroys Testator's Free Agency
and Control Disposition of Property.
The mere possession of influence and the opportunity and motive to exercise it are not sufficient to
invalidate a will on the ground of undue influence, but it must appear, either directly or by justifiable
inference from the facts proved, that the influence was exercised, so as to destroy the free agency of the
testator and control the disposition of the property under the will.
2. WillsEvidence Held Insufficient to Support Charge of Undue Influence.
Where a will was contested on the ground of undue influence of the sole beneficiary, testator's sister,
who lived in another state and visited testator at intervals, and it appeared that during testator's illness in a
hospital the sister and her husband visited him three times a day, but remained in the corridor when the
will was executed and had no knowledge of its contents, held, that the circumstances were insufficient to
support a charge of undue influence.
3. WillsUnnatural Disposition of Property Will Not Invalidate Will, in Absence of Undue
Influence.
A will cannot be impeached because the disposition of the property appears unreasonable, or the
result of an unaccountable sudden change in testator's feeling toward his relatives left out of the will; no
undue influence, as defined by law, appearing.
Proceeding to contest the will of Denis Hegarty, deceased. A determination in favor of
Catherine Coleman, proponent, and adverse to contestants was made, and from an order
denying a motion for a new trial, they appeal. Affirmed.
H. V. Morehouse and McCarran & Mashburn, for Appellants:
The rule is that a case of undue influence is made out when it is shown: That the testator
was subject to such influence; that the opportunity to exercise it existed; that there was a
disposition to exercise it; and that the result appears to be the effect of such influence.
and that the result appears to be the effect of such influence. Skrinsrud v. Schwen, 147 N. W.
370.
The testator's will should be the product and offspring of a rational self-poised and clearly
disposing mind. Gay v. Gilliam, 1 Am. St. 720; 1 Redfield on Wills, 537; Lynch v. Clements,
24 N. J. Eq. 431.
The fact of undue influence need not be proved by direct evidence, but may be inferred
from all the circumstances, and if the testamentary dispositions are unnatural or unjust, there
is an indication of undue influence. In Re Welch's Will, 91 Pac. 336; In Re Blair's Will, 16
N. Y. S. 874; Rollwager v. Rollwager, 63 N. Y. 504; Holt v. Guerginn, 156 S. W. 581.
Against the beneficiary under a will, having the testator under his control, with power to
make his will the will of testator, especially in the case where the testator has made an
unnatural disposition of his property, the law presumes undue influence. Greenwood v.
Cline, 7 Or. 17. To similar effect: Carrol v. Hause, 48 N. J. Eq. 269; Mowry v. Norman, 103
S. W. 15; Haydock v. Haydock, 33 N. J. Eq. 494; Blockman v. Edsall, 68 Pac. 792.
The most positive testimony of a beneficiary, though not impeached, may, on account of
his interest, bias, and the benefit he got under the will, be contradicted by the very fact of the
will itself. The inherent improbability of the story is sufficient to negative the testimony of
any number of witnesses. Dodge v. Post, 76 Fed. 810; Earl v. Norfolk, 36 N. J. Eq. 188-194.
He may be contradicted by the facts he states as completely as by direct adverse evidence.
Quock Ting v. U. S., 140 U. S. 417; Blankman v. Vallejo, 15 Cal. 639.
M. B. Moore and Wm. McKnight, for Respondent:
Testamentary capacity being necessary before undue influence can have any operation, its
existence will be assumed on an issue of undue influence. 28 R. C. L. 139; 40 Cyc. 1150;
Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295.
Where the evidence is conflicting on the question of undue influence, the supreme court
will not reverse a finding of the lower court that there was no undue influence, unless the
court can say that the weight of the testimony is the other way. Keegan's Estate, 139 Cal. 123,
72 Pac. 828; Compher v. Browning, 219 Ill. 428, 76 N. E. 678, 109 Am. St. Rep. 346;
McDevitt's Estate, 95 Cal. 17, 30 Pac. 101.
Undue influence cannot be established on slight and uncertain evidence. 40 Cyc. 1164.
Nor does suspicion, possibility, or guess that undue influence was used, justify setting a will
aside. 40 Cyc. 1164; Keegan's Estate, 139 Cal. 123, 72 Pac. 828-829; Nelson's Estate, 39
Minn. 204, 39 N. W. 143; Blackman v. Edsall, 68 Pac. 792.
The burden of proof of undue influence is on the contestant. 28 R. C. L. 144, sec. 98; 40
Cyc. 1150; Isom v. Canedy, 88 South. 485.
Testimony that is not improbable, and not contradicted by other credible testimony, cannot
be arbitrarily disregarded. In Re Cooper, 75 N.J. Eq. 177; Grant v. Stemler, 68 N. J. Eq. 555;
Henry v. Hall, 106 Ala. 84, 54 Am. St. Rep. 22.
Testimony of subscribing witnesses is of great weight. Massey v. Huntington, 7 N. E. 269;
Buckey v. Buckey, 18 S. E. 383.
Unnatural disposition only one element to be considered. 6. L. R. A. (N.S.) 202.
It does not devolve upon the proponent to explain away the unreasonableness of the will.
Black's Estate, 132 Cal. 392, 64 Pac. 695.
This was a contest of the will of Denis Hegarty, deceased, prior to probate. The grounds of
the contest were the mental incapacity of the deceased to execute a will and the alleged undue
influence upon the mind of the testator by Catherine Coleman, a sister and the sole
beneficiary of the testator's bounty. The contest was instituted by the surviving brothers and
sisters of the deceased, all residents of Nohoval, County Crok, Ireland.
was instituted by the surviving brothers and sisters of the deceased, all residents of Nohoval,
County Crok, Ireland. The contest was tried by the court without the assistance of a jury, and
was determined adversely to contestants.
This appeal is taken from an order denying contestants' motion made for a new trial, on the
grounds that the court's decision was contrary to the evidence and is against law. We observe
from the brief of counsel that the issue raised by the contestants as to the testator's mental
incapacity to execute a will is not insisted upon on this appeal, thus narrowing the issue to
that of the alleged undue influence exercised upon the mind of the testator by Catherine
Coleman, who is the beneficiary, executrix, and proponent of the will for probate.
Denis Hegarty, a bachelor, 62 years of age, a native of Ireland, came to the United States
more than thirty years ago and located at Reno, where, through frugal industry, he acquired
property in Reno and Sparks, Nevada, consisting of real and personal property of the
estimated value of $24,000 at the time of his death, which occurred at the Franklin Hospital,
in San Francisco, on the 21st day of January, 1920. His will was duly and legally executed on
the 15th day of January, 1920, while he was a patient in that institution. The second clause of
the instrument reads:
I devise and bequeath to Catherine Coleman, my sister, all my property both real and
personal, mixed and wheresoever located.
The last clause of the instrument reads:
I hereby nominate and appoint Catherine Coleman the executrix of this last will and
testament, to serve without any bond being required of her, and hereby revoke all former wills
by me made.
The testator left surviving three brothers and four sisters, including said Catherine
Coleman. The testator's relations with his brothers and sisters were at all times friendly and
affectionate. His sister, Catherine Coleman, had once lived for a few months in Reno, but for
the past twenty-one years had resided in San Francisco. She occasionally visited the deceased
in Reno, but only once within five years preceding his death, which visit was in July, 1919.
but only once within five years preceding his death, which visit was in July, 1919. The
deceased had been in failing health for a year or more before his death. He did not know the
cause or source of his ailment, and on January 8, 1920, he went to San Francisco for the
purpose of receiving treatment. He arrived in that city on the morning of the 9th, and went
directly to the home of his sister. On the 11th the deceased complained to his sister of a
severe pain in his side. She suggested that a physician be called, which was done, and upon
examination the physician told Mrs. Coleman that her brother had liver trouble, probably
cancer, and advised that he be taken to the Franklin Hospital, where he was taken by Mr. and
Mrs. Coleman on the 12th. He was visited there by Mrs. Coleman three times a day up to the
time of his death, and by Mr. Coleman in the evening of each day. On the 13th, the deceased
requested Mr. Coleman to bring to him a notary public, for the purpose of drawing some
papers. Coleman neglected to get a notary, as requested, and on the next evening, the 14th,
the deceased again requested that a notary be obtained for him. On the 15th Coleman
procured a notary, and on the date the will was duly executed, without the presence of Mr.
and Mrs. Coleman, who remained in the corridor near the door of the testator's ward, while
the will was being prepared and executed. Both deny that any persuasion or pressure was
brought to bear by them on the testator, or that they had any knowledge of what the will could
contain, and the evidence tends to show that the notary, who was the drafter of the will, and
the witnesses thereto, were strangers to the testator and the beneficiary. No question is made
of the mental capacity of the testator to make a will.
In the case of Abel v. Hitt, 30 Nev. 93, 93 Pac. 227, the will of the testatrix was
invalidated on the ground that the evidence was sufficient to show that the testatrix was
mentally incompetent to execute a will, and that the testatrix, in making her will, acted under
undue influence. While the court in that case did not attempt or pretend to lay down any rule
as to what in law constitutes undue influence, it is inferable from the opinion that the
conditions and circumstances attending and surrounding the preparation and execution of
a will are elements of proof to be considered in the determination of the question of
wrongful or undue influence.
law constitutes undue influence, it is inferable from the opinion that the conditions and
circumstances attending and surrounding the preparation and execution of a will are elements
of proof to be considered in the determination of the question of wrongful or undue influence.
In this case it is conceded, or must be conceded, that there is no direct evidence of undue
influence, and no evidence at all of such, other than the inference to be drawn from the
following facts: First, the opportunity for its exercise; secondly, that the instrument makes the
proponent of the will the sole beneficiary of the testator's bounty; and, third, that the will is
unnatural.
1. As to the first proposition, it is well settled that mere possession of influence and the
opportunity and motive to exercise it are not sufficient; it must appear either directly or by
justifiable inference from the facts proved, that the influence was exercised so as to destroy
the free agency of the testator and control the disposition of the property under the will. In Re
Purcell's Estate, 164 Cal. 300, 128 Pac. 932; Comm. on Wills, Alexander, sec. 593.
2. As to the second proposition, it is equally well settled that, unless the influence of the
beneficiary be unduly exercised, it is not material that the beneficiary was interested in the
will, or had better opportunity for solicitation or persuasion than the contestants. Comm. on
Wills, Alexander, sec. 593, and authorities collated in note. Upon these authorities, read in
connection with the particular facts in this case, we are of the opinion that the inference to be
drawn from the opportunity for exercising undue influence on the part of the beneficiary, and
the circumstances that the will made Catherine Coleman the sole beneficiary of the testator's
bounty, are wholly insufficient to support the charge of undue influence.
The third proposition, that the will is unnatural, is worthy of fuller discussion. There are
cases holding that an unequal or unnatural disposition of an estate does not create a
presumption of undue influence.
Kitchell v. Beach, 35 N. J. Eq. 446; Kise v. Heath, 33 N. J. Eq. 239; Ginter v. Ginter, 79 Kan.
721, 101 Pac. 634, 22 L. R. A. (N.S.) 1024; Singer v. Taylor, 90 Kan. 285, 133 Pac. 841. As
said in Singer v. Taylor, while an unnatural disposition of property may be considered in
connection with evidence of undue influence, it is ineffectual as proof, in the absence of other
evidence, that undue influence was exercised, because, in the absence of statutory restrictions,
every one has the right to dispose of his property according to his own desires.
In the present case it appears that, in the course of the preparation of the will, the testator,
in reply to a question propounded by its drafter, stated that he had other relatives in Ireland.
He was then asked, What do you want to do with the relatives in Ireland? His reply was,
To hell with the relatives in Ireland. Prior to the execution of the will, the testator was on
friendly and affectionate terms with his surviving brothers and sisters in Ireland, and it must
be conceded that the sudden change of his mental attitude toward them stands in the record
unexplained.
3. But the will cannot be impeached because the disposition of the property appears to us
to be unreasonable, or the sudden change of the testator's feelings toward his relatives
unaccountable. If the evidence in any case, when viewed from a standpoint most favorable to
the contestants, does not show undue influence as defined by law, the will is not to be
invalidated merely because of suspicion, or because it does not conform to ideas of propriety.
In Re Lavinburg's Estate, 161 Cal. 536, 119 Pac. 915; In Re Kilborn's Estate, 162 Cal. 4, 120
Pac. 762. The evidence discloses that at the time he made his will the testator was possessed
in vigorous intellect. Being capable and without restraint, it was his privilege to give or to
withhold his bounty, as he might elect.
It is argued that the influence resulting from Mrs. Coleman's kindnesses and attentions,
taken in connection with her relationship, poisoned the mind of the testators against his
brothers and sisters, just as near to him as Mrs.
testators against his brothers and sisters, just as near to him as Mrs. Coleman. The argument
is plausible, but not convincing. Influences resulting from family relationship have no taint of
unlawfulness. It is only when such an influence is unduly exerted, so as to prevent the will
from being truly the act of the testator, that the law condemns it as a vicious element of the
testamentary act. Dean v. Negley, 41 Pa. St. 312, 80 Am. Dec. 620. It is not sufficient that the
testator was influenced by the beneficiaries of the ordinary affairs of life, or that he was
surrounded by them and in confidential relations with them at the time of the execution of the
will. Nelson v. York (Okl. Sup.), 209 Pac. 425.
As the evidence in this case fails to establish undue influence, as defined by law, we are
impelled to affirm the order denying and overruling the contestant's motion for a new trial.
It is so ordered.
____________
46 Nev. 328, 328 (1923) State v. Tuck
[No. 2564]
THE STATE OF NEVADA, Appellant, v. W.L.
TUCK, Respondent.
[212 Pac. 1037]
1. Criminal LawWhere No Evidence Had Been Offered, Sustaining Objection on Ground
of Unlawful Search Held Error.
In a prosecution for violating prohibition law, sec. 7, an objection to the introduction of evidence on
the ground that affidavit for search warrant was on information and belief was improperly sustained, there
being nothing in the objection which required the court to go behind the information and to inquire as to
the unlawfulness of the search warrant or speculate as to how the state obtained its evidence, where no
evidence had been tendered.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
Proceeding by the State against W. L. Tuck. From a judgment dismissing the action, the
State appeals. Reversed.
46 Nev. 328, 329 (1923) State v. Tuck
Chas. A. Walker, District Attorney, for Appellant:
No contention that the warrant, as a warrant of arrest, is insufficient or not supported by
the proper affidavit can be raised after defendant pleaded to the information. The affidavit is
not jurisdictional. Ex Parte Murray, 39 Nev. 351.
The sufficiency of the affidavit as a basis for the warrant of arrest cannot be questioned after
defendant pleads. Ex Parte Murray, supra. The affidavit is sufficient. 17 Am. Cas. 228, and
note; Kock v. District Court, 129 N. W. 740; Dupree v. State, 119 S. W. 301. * * * It is not
necessary that the facts upon which the belief was founded should be fully set out in the
affidavit. Rose v. State, 87 N. E. 103.
H. W. Edwards, for Respondent:
The affidavit sworn to by affiant was insufficient, and the search warrant is therefore void,
and it follows that the search of defendant's premises and the seizure of his property was a
violation of his constitutional rights, and any evidence obtained by virtue of the void process
was inadmissible in evidence against defendant upon the trial.
A search warrant issued in a liquor case on an affidavit sworn to by the attorney-general
on information and belief was wholly void. State v. Paterson, 99 N. W. 67. The application
is an ex parte proceeding and is in derogation of personal liberty; the least that can be
required is that the applicant make an undoubted prima-facie case. Kappler v. Bank, 79 N.
W. 871. Evidence is required, and not merely suspicion and belief. State v. McGahey, 37
N. W. 866.
Evidence illegally obtained, in violation of a constitutional right, is inadmissible. U. S. v.
Rykowski, 267 Fed. 867; Gouled v. U. S., 255 U. S. 298; Youman v. Commonwealth, 224 S.
W. 860; People v. Mayhew, 182 N. W. 676; State v. Gibbons, 203 Pac. 390.
46 Nev. 328, 330 (1923) State v. Tuck
By the Court, Sanders J.:
The respondent, W. L. Tuck, without the advise of counsel, pleaded not guilty to an
information charging him with the violation of section 7 of the prohibition act. Stats. 1919, p.
1. A jury was impaneled and sworn to try the case. When the state called its first witness,
respondent, by his counsel, objected to any further proceedings or any evidence being offered
in support of the charge, upon the ground that the affidavit for the warrant of arrest of
respondent, praying therein for the search of respondent's premises, was not in compliance
with the statute, it being the contention of counsel that the affidavit on information and belief
was insufficient and the proceeding before the justice of the peace of Ely township No. 1,
resulting in respondent being held to answer, was void, that any subsequent proceedings were
of necessity illegal and void, and that respondent was privileged, at any stage of the trial in
the district court, to object to the offer of any evidence in support of the charge.
The district court was of the opinion that any conviction that might be had under the
information, for the reason stated in support of the objection, would be invalid, and thereupon
dismissed the case, discharged the defendant, and exonerated his bail. The state appeals from
said judgment.
The authorities are unanimous in holding that, to be available, an objection such as was
interposed must be made before the plea. State v. Wells, 39 Nev. 432, 159 Pac. 520.
Furthermore, we are of the opinion that the objection, when no evidence has been tendered in
support of the charge, did not call for a ruling in favor of the respondent and against the state.
There was nothing in the objection calling upon the trial court to go behind the information
and enter upon an inquiry as to the unlawfulness of the search warrant, or to speculate as to
how the state had procured its evidence, when no evidence had been tendered.
The judgment is reversed.
____________
46 Nev. 331, 331 (1923) State v. Cerfoglio
[No. 2501]
THE STATE OF NEVADA, Respondent, v.
A. CERFOGLIO, Appellant.
[201 Pac. 322.]
1. Criminal LawIn Absence of Bill of Exceptions Containing Evidence, Instructions
Presumed Applicable.
In view of Stats. 1919, c. 232, sec. 73, requiring the incorporation of the evidence in a criminal case
in a duly settled bill of exceptions, instructions complained of will not be considered in the absence of
such bill, though themselves a part of the record; it being presumed they were applicable to the proof.
2. Criminal LawJudgment Not Reversed for Misdirection of Jury in Absence of Bill of
Exceptions.
Since no judgment will be reversed for misdirection of the jury unless it appears, after an examination
of the entire case, that the error resulted in a miscarriage of justice, a judgment will not be reversed on
such ground, in the absence of a bill of exceptions containing the evidence; an examination of the entire
case being impossible.
A. Cerfoglio was convicted of perjury, and he appeals. Affirmed.
Frame, Morgan & Raffetto and M.B. Moore, for Appellant.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General, and L. D.
Summerfield, for Respondent.
Appellant was convicted upon a charge of perjury. Six grounds for reversal are
urgedone that the court erred in giving instructions, and the others based upon alleged
erroneous rulings on objections to the admission of tendered evidence.
1, 2. Section 73, c. 232, Stats. 1919, pp. 431, 432, provides what shall constitute the
record on appeal in a criminal case. Pursuant thereto, the only way by which the evidence in
the case can become a part of the record is to have it incorporated in a duly settled bill of
exceptions.
of exceptions. There is no bill of exceptions; hence there is nothing before the court for its
consideration. True it is that the instructions complained of are a part of the record proper, but
so far as appears they may have been given at the request of the appellant. In view of the fact
that there is no bill of exceptions before us, we must presume that the instructions were
applicable to the proof. State v. Keith, 9 Nev. 16. Furthermore, as stated in State v. Willberg,
45 Nev. 183, 200 Pac. 475, no judgment will be reversed for a misdirection of the jury unless
it appears, after an examination of the entire case, that the error complained of resulted in a
miscarriage of justice. In the absence of a bill of exceptions, there can be no examination of
the entire case.
____________
[No. 2501]
THE STATE OF NEVADA, Respondent, v. A. CERFOGLIO, Appellant.
[205 Pac. 791; 213 Pac. 102]
1. PerjuryVariance as to Date of Oral Testimony in Court Is Not Fatal.
A charge of perjury, based upon oral testimony given in open court, is not within the rule making the
date material if the charge is based on the record, so that a variance between the date as alleged and the
proof of the date on which the false testimony was given was not material, and does not invalidate the
conviction under Stats. 1919. c. 232, sec. 205.
2. Criminal LawIntent and Corrupt Motive Are Material in Perjury Prosecution and
Provable by Evidence of Other Offenses.
Under Rev. Laws, 6350, intent and corrupt motive are the very foundation of the crime of perjury, so
that, in a prosecution thereof, evidence of other offenses is admissible to show such intent and motive.
3. Criminal LawEvidence of Procuring Witnesses To Be Absent from Perjury Trial Is
Admissible.
In a prosecution for perjury, evidence that accused had induced witnesses to absent themselves from
the state at the time of the perjury trial is admissible against accused.
4. Criminal LawDefendant's Possession of Liquor Is Admissible where Perjury
Prosecution Was for Falsity of Testimony Denying Possession.
Where the testimony on which a charge of perjury was based was given in a trial defendant for
unlawful possession of liquor and consisted in his testimony that the customers brought the liquor with
them, proof that the defendant possessed the liquor was competent against him to show the falsity of his
testimony, though it also showed the commission of another offense.
5. PerjuryTestimony of Suborned Witnesses at Former Trial Held Competent.
Where defendant accused of perjury was charged with inducing two other witnesses to testify falsely
to the same facts as he testified to at his trial for violating the prohibition law, the testimony given by
those witnesses in his behalf at the former trial is admissible against him in the perjury prosecution to lay
the foundation for proof that his testimony in the previous trial was false and was given wilfully and
corruptly; the statute prescribing the conditions under which testimony taken upon the trail of a case may
be used upon a retrial not being controlling.
6. PerjuryFalsity of Testimony May Be Proved by Circumstantial Evidence.
The rule, as generally stated, that, to sustain a conviction for perjury, there must be the testimony of
two witnesses or of one witness, supported by circumstantial evidence, was adopted to prevent a
conviction for perjury based upon oath against oath, and does not preclude a conviction, where the falsity
of the testimony is proved only by circumstantial evidence.
7. PerjuryCircumstances Held Sufficient to Show Falsity of Testimony.
In a prosecution for perjury based on false testimony by defendant that his customers poured out the
brandy for themselves from a bottle they brought with them, evidence that accused was seen by witness to
have the bottle in his hand and ready to pour it out, and that another witness shortly thereafter saw the
liquor in the glasses of the customers, and was told by the defendant that it was brandy, and had some
poured into his glass by defendant, held sufficient, with evidence of subornation of other witnesses to
testify falsely to the same effect, to show that defendant's testimony was false, though no witness actually
saw him pour out the liquor.
8. Criminal LawHaving Stenographer's Notes Read Held Not Misconduct by District
Attorney Requiring Reversal.
Where defendant charged with perjury introduced evidence that a witness for the state had been
permitted to go on his own recognizance, evidently to imply that he had been so released as a reward for
his testimony, and the district attorney thereupon had the stenographer read the notes relating to such
release to show that the witness had been on bond given by defendant's partner, and had been surrendered
by the partner after he had testified for the state, the action of the district attorney, if misconduct not
justified by the defendant's act, was cured by the action of the court in striking out the testimony and
directing the jury to disregard it.
9. PerjuryEvidence Witnesses Suborned to Testify Falsely Had Not Told Accused They
Did Not See Transaction which Never Took Place Is Unnecessary.
In a prosecution for perjury, where there was evidence accused had suborned other witnesses to
testify falsely in support of his testimony, it was not necessary to require a finding that those witnesses
had not told defendant they did not see the transaction concerning which he suborned them to testify,
where the evidence showed that transaction never took place.
On Rehearing
1. PerjuryNo Conviction, where Circumstances Are as Consistent with Innocence as with
Guilt.
There can be no conviction of perjury, where the circumstances, though they create a strong
presumption of guilt, are as consistent with the theory of innocence as they are with the theory of guilt.
A. Cerfoglio was convicted of perjury, and he appeals. Affirmed. On rehearing, reversed
and remanded, with directions to dismiss.
Frame, Morgan & Rafetto and Moore & McIntosh, for Appellant:
There is a fatal variance as to the time of the offense as alleged and as stated by the
testimony. In prosecutions for perjury, the common-law rule seems to be that the time when
the crime was committed must be truly alleged in the indictment, and proved as laid. State v.
Ah Lee, 23 Pac. 424; 16 C. J. 1259; 22 Cyc. 314; 1 Wharton, Crim. Prac., sec. 177.
Evidence of other independent offenses is not admissible. State v. McFarlin, 41 Nev.
499; Commonwealth v. Shepherd, 1 Allen, 587; Mahon v. State, 79 S. W. 28; People v.
Grant, 161 N. Y. S. 718.
Attempt to show other crimes is prejudicial (16 C. J. 1144), and insinuating other
offenses (Hager v. State, 133 Pac. 263; State v. Baum, 151 Pac. 518; Nicholizack v. State,
105 N. W. 895; Herren v. People, 62 Pac. 833).
It is error to admit evidence of offense of procuring the absence of a witness. People v.
Carpenter, 68 Pac. 1027; Edelhoff v. State, 36 Pac. 630; State v. Leparage, 57 N. H. 245;
People v. Hill, 264 Ill. 638.
Admission of evidence taken at a former trial of defendant was erroneous. 16 C. J. 757,
838, 839; State v. Woods, 81 Pac. 184; Somers v. State, 113 S. W. 533; Childers v. State,
16 S. W. 903; People v. Brennan, 53 Pac. 1099; Kirby v. U. S., 174 U. S. 47.
Introduction of prejudicial evidence, or prejudicial remarks of the district attorney,
constitutes ground for reversal, even though the jury are instructed to disregard them. State
v. Rodriguez, 31 Nev. 342; State v. Irwin, 71 Pac. 609; State v. Comisford, 41 Nev. 180;
16 C. J. 1141; Watson v. State, 124 Pac. 1101.
The evidence is insufficient to support the verdict. The direct and positive testimony
required by law in perjury cases is absolutely lacking, there being corroborating facts and
circumstances that are as consistent with innocence as with guilt. 30 Cyc. 1452, 1453;
People v. Chadwick, 4 Cal. App. 63; People v. Porter, 104 Cal. 415; People v. Maxwell,
118 Cal. 50.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General, and L. D.
Summerfield, District Attorney, for Respondent.
Strict proof that the perjury charged was committed on the day alleged is not essential,
save when necessary to identify the record, deposition, or affidavit in which the oath was
taken. 30 Cyc. 1441; Dill v. People, 36 Pac. 229. The common-law rule requiring a
definite allegation as to time has been changed by statute.
allegation as to time has been changed by statute. Rev. Laws, 7051, 7055, 7066; 21 R. C.
L. 275; Matthews v. U. S., 161 U. S. 500; State v. Perry, 117 Iowa 463; State v. Fulason,
79 Me. 117; Keater v. People, 32 Mich. 484; People v. Hoag, 2 Park. Cr. 9; State v. Clark,
2 Tyler (Vt.) 277.
Proof of independent offenses is admissible. 30 Cyc. 1444; 21 R. C. L. 274; State v.
Kimes, 132 N. W. 180. We have no doubt the evidence was admissible as tending to
show that H. endeavored to influence M. to give false testimony in respect to the very
same matter touching which alleged perjury was committed. Heflin v. State, 88 Ga. 151,
30 Am. St. Rep. 147.
Evidence that defendant procured the absence of witnesses was admissible. State v.
Kimes, supra; People v. Macard, 67 N. W. 968.
Judgment of conviction in the prior case was simply part of the record of that
proceeding, and was admissible. The state having alleged that the perjury was committed
in a judicial proceeding, it was required to make proof of the allegation. 30 Cyc. 1445,
1446, 1449, 1450; 21 R. C. L. 275; Heflin v. State, supra; 16 C. J. 588.
There was no request by defendant for a limitation of instructions. In the absence of a
proper request therefor, it is not error to fail to give an instruction limiting the purpose for
which particular evidence may be considered. 16 C. J. 1058; State v. Smith, 10 Nev. 106;
State v. Davis, 14 Nev. 407; State v. St. Clair, 16 Nev. 207; State v. Simas, 25 Nev. 432;
State v. Blake, 39 Nev. 115; Holmes v. State, 131 Ga. 806; State v. Gaston, 96 Iowa, 505;
State v. Starr, 148 S. W. 862.
Statements by the district attorney are not sufficient to warrant a new trial where they
are either withdrawn or ordered stricken out, and the jury directed to disregard them.
State v. Petty, 32 Nev. 384; 16 C. J. 880, 916, 919; State v. Mircovich, 35 Nev. 485; State
v. Clancy, 38 Nev. 181. The evidence amply justifies the verdict.
The evidence amply justifies the verdict. It is sufficient if the crime of perjury is
established by competent evidence so as to satisfy the minds of a jury beyond a reasonable
doubt. Ex Parte Metcalf, 8 Okl. Crim. 605; Plummer v. State, 35 Tex. Crim. 202; People
v. Doody, 172 N. Y. 165.
An order was heretofore entered affirming the judgment in this case, for the reason that
no bill of exceptions had been made a part of the record. 46 Nev. 331. Thereafter counsel
for the state stipulated that a bill of exceptions had been duly settled, and that the order
affirming the judgment might be vacated and the case be considered upon its merits, which
was accordingly ordered. This is an appeal after conviction upon a charge of perjury,
alleged to have been committed during the trial of appellant for a violation of the
prohibition statute.
The testimony given by appellant, and which constitutes the basis of this prosecution, is
to the effect that on August 26, 1920, at the Europa Hotel, in Reno, Washoe County,
several men came into the bar in said hotel and asked for glasses with soda, and that one of
them took a bottle from the inside of his coat pocket and filled the glasses with the
contents thereof. A verdict of guilty was returned by the jury. In apt time, a motion for a
new trial was made. The appeal is from the order denying the motion for a new trial, and
from the judgment.
1. The first error relied upon goes to an alleged variance between the allegation in the
information and the proof. The information charges that the alleged perjured testimony
was given on October 6, 1920, whereas it was in fact given on the 5th day of that month.
In support of the contention, we are directed to 22 Cyc. 314, where we find the following:
"Where time is to be proved by record, as on an indictment for perjury, the date must
be truly laid, and a variance will be fatal.
Where time is to be proved by record, as on an indictment for perjury, the date must be
truly laid, and a variance will be fatal. * * * Where the charge is not based on a record or
other writing, and the statement alleged to have been false would have constituted perjury
whether made on the date laid or on the date proven, the allegation of time is immaterial.
The authority invoked is not in point. The charge of perjury is not based on a record or
any kind of a writing, but upon oral testimony given in open court in a trial before a jury.
By express statutory regulation, the precise time at which an offense was committed need
not be alleged, except where or when the time is a material ingredient of the offense. Stats.
1919, sec. 205, p. 417. Such is the general rule in perjury cases. 30 Cyc. 1441; Dill v.
People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. Rep. 254. It is not suggested that the date of
the alleged perjury is a material ingredient of the offense.
It is also asserted the trial court erred in admitting in evidence testimony tending to
show the commission of three separate and distinct crimes by the defendant, other than
that for which he was on trial, to wit: (1) The procuring of witnesses to testify during the
trial on the charge of violating the prohibition statute to the state of facts then testified to
by the defendant, and which it is charged constituted perjury on the part of the defendant;
(2) testimony tending to show that appellant had procured the departure from the state of
two witnesses for the prosecution, so as to be absent during the trial of appellant upon the
perjury charge; and (3) proof tending to show the guilt of defendant of having liquor
unlawfully in his possession in the place wherein he was convicted of having violated the
prohibition statute.
2. Relying upon the general rule that evidence of independent crimes cannot be
admitted, except to show, among other things, motive and intent (State v. McFarlin, 41
Nev. 486, 172 Pac. 371), it is said that in the instant case of none of these things was an
issue. We cannot accept this statement.
not accept this statement. We think intent and corrupt motive are the very foundation of
the crime of perjury. There can be no perjury, nor subornation of perjury, under our statute,
unless the elements of willfulness and corruption enter into the act. Rev. Laws, 6350. Had
not the information charged willfulness and corruption on the part of appellant in giving
the alleged false testimony, it would not have charged a crime, and had the court failed to
cover these elements in its instructions, no doubt counsel would be basing error thereon in
this appeal. Hence we think the evidence tending to show wilful and corrupt false swearing
on the part of the appellant was proper and competent, because it tended to establish one
of the essential elements of the crime itself. It is said:
Since willfulness and a corrupt intent are essential elements of the crime of perjury,
evidence to prove such issues goes to the very substance of the offense, and is admissible.
30 Cyc. 1444.
Evidence is also admissible to show that the accused, in a private interview,
endeavored to influence a third person to give false evidence in the same case and in
respect to the same matter in which the alleged perjury was committed. 21 R. C. L. 274.
3. We think the second contention equally devoid of merit. It is now a well-recognized
rule that evidence tending to show that the accused endeavored to prevail upon a witness
for the state to abscond is relevant to the main issue. 12 Cyc. 398; Blair v. State, 72 Nev.
501, 101 N. W. 17.
4. As to the third point, the evidence showing the defendant's possession of jackass
brandy was a part of the main case, as it was a circumstance tending to show the falsity of
testimony given by him. If he did not have jackass brandy in his possession at the time, he
could not be guilty of perjury; hence the necessity of showing his possession of the brandy.
5. Is it also insisted that the court erred in overruling defendant's objection to the
introduction of the testimony of the witnesses Albert and Tada, given by them in behalf of
appellant in the case wherein he was on trial charged with violating the prohibition
statute.
them in behalf of appellant in the case wherein he was on trial charged with violating the
prohibition statute. To sustain the contention, it is said that we have a statute prescribing
the conditions under which testimony taken upon the trial of a case may be used upon a
retrial, and that it controls in this case. We cannot accede to this contention. The purpose
of the statute mentioned never contemplated the situation before us. The purpose of
offering in evidence upon the trial of this case the testimony given by Albert and Tada in
the other trial was to show that their testimony at that time was the same as that given by
the defendant therein, and that it was false and given at the solicitation of appellant. In
other words, it was to lay the foundation for proving the appellant swore falsely in that
case, and that he did it wilfully and corruptly. The evidence was perfectly competent for
that purpose.
6. It is also said that the evidence is insufficient to support the verdict; that there is not
sufficient competent evidence to sustain it. Reliance is had to support this view upon the
proposition that the falsity of the testimony which it is charged was perjury must be shown
by at least two witnesses, testifying directly and positively, or by the direct and positive
evidence of one witness, corroborated by facts and circumstances; and our attention is
called to 30 Cyc. pp. 1452, 1453; People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384-389;
People v. Porter, 104 Cal. 415, 38 Pac. 88; People v. Maxwell, 118 Cal. 50, 50 Pac. 18. In
30 Cyc. p. 1452, we find the following:
Positive and direct evidence is absolutely necessary in a perjury case; circumstantial
evidence standing alone is never sufficient.
We cannot say that we disagree with the rule contended for, but rather as to its
proposed application. Does it apply to the situation in hand? This necessarily leads to an
inquiry as to the true significance of the rule as stated, and as to what situation it is meant
to apply. For an understanding of the type of cases to which the rule applies, we must
resort to a consideration of its origin, and just what was merely meant by it as first
expressed.
rule applies, we must resort to a consideration of its origin, and just what was merely
meant by it as first expressed. The rule is supposed to have had its origin in the case of The
Queen v. Muscot, 10 Mod. Rep. 193. Extracts from this decision are given in many of the
old text-books, but none of them conveys a complete idea of what was really decided. The
Supreme Court of the United States, in U. S. v. Wood, 14 Pet. 430, 10 L. Ed. 527, quotes
from various authors who, in support of their text, cite the authority mentioned, but the
court gives only fragments of what was supposed to have been said therein. Evidently the
decision itself was not at hand. In view of the fact that the case was decided in 1712, long
prior to the writing of any of the works cited in U. S. v. Wood, we think we can with profit
quote from the opinion:
There is this difference between a prosecution for perjury and a bare contest about
property, that in the latter case the matter stands indifferent; and therefore a credible and
probable witness shall turn the scale in favor of either party; but in the former,
presumption is ever to be made in favor of innocence; and the oath of the party will have a
regard paid to it, until disapproved. Therefore to convict a man of perjury, a probable, a
credible witness is not enough; but it must be a strong and clear evidence, and more
numerous than the evidence given for the defendant; for else there is only oath against
oath.
What is the real significance of this language? It is apparent that the court was
endeavoring to distinguish between the weight to be attached to two opposing witnesses in
two different situations; that is, as between a case in which there is a prosecution for
perjury and a civil suit over property. The learned jurist held that in a civil suit the
testimony of a credible and probable witness (when opposed by one whose testimony was
not probable) should turn the scale, but that in a prosecution for perjury, since the
defendant is presumed as a matter of law to be innocent, and must be shown to be guilty
beyond a reasonable doubt, the evidence of a witness in his behalf will receive regard
until disproved.
guilty beyond a reasonable doubt, the evidence of a witness in his behalf will receive
regard until disproved. Therefore to convict of perjury the testimony of one credible and
probable witness on the part of the prosecution is not enough when opposed by the
testimony of one witness on behalf of the defendant, but the testimony of such witness on
the part of the prosecution must be corroborated by that of another witness, or by facts and
circumstances, for otherwise there is only oath against oath.
The strength of the rule thus enunciated seems impregnable when we stop to consider
two facts which seem to have escaped the attention of counsel for appellant, and, indeed,
of all the authorities in this country. In the first place, the difference between a criminal
case and a civil case, as pointed out, is this: In a civil case, wherein a contest is waged over
property, there is no presumption in favor of either party; they enter upon the trial of their
case even-handed, so to speak and the court is controlled by a preponderance of the
credible evidence; when in a criminal case the defendant is presumed to be innocent, and
must be shown to be guilty beyond a reasonable doubt. Furthermore, as the law existed at
the time the case in 10 Mod. Rep. 193 was decided, the defendant could not testify in his
own behalf. The witness whom he might produce to testify was not subject to the same
temptation to falsify, as was the defendant, and this no doubt had its influence in leading to
the adoption of the rule that no conviction of perjury should be had in a case where oath
was opposed to oath. With us, a defendant may testify in his own behalf; his testimony to
receive such consideration as the jury may see fit to accord it.
The great majority of cases in this country, cited to sustain the rule contended for by
appellant, are of the character where oath is opposed to oath, and not cases similar to the
instant one, or where circumstance are opposed to the oath of the person charged with
perjury, who is more likely to swear falsely in his own defense than would be a witness
disinterested in the result.
than would be a witness disinterested in the result. In other words, two elements existed
when the case in 10 Mod. Rep. 193 was decided, which do not enter into the instant case:
FirstThis is not a case in which the direct and positive testimony of a living witness is
relied upon to establish the perjury, to which is, or from the circumstances of the case can
be, opposed the direct and positive testimony of a living witness in behalf of the
defendant; and, secondly, a distinguishing feature of this case, and which of itself would
take it out of the rule contended for, is the fact that the defendant did not testify upon the
trial, in substance, that his testimony given in the former trial was in accordance with the
truth, nor did any witness in his behalf so testify. In fact, the testimony on the part of the
prosecution tending to establish circumstances showing the guilt of the defendant was not
contradicted by any witness, nor attempting to be contradicted.
The contention of counsel, in its final analysis, resolves itself into the assertion that
perjury cannot be shown by circumstantial evidence. We think the contention without
support, either in reason or authority.
In People v. Doody, 172 N. Y. 165, 172, 64 N. E. 807, which was a prosecution for
perjury, it was held that circumstantial evidence would sustain a conviction. The defendant
had testified on several occasions to a certain state of facts. In another trial he testified that
he did not remember. No living witness could testify that he did remember, but the court
held that the jury was justified in convicting under the circumstances shown.
In Metcalf v. State, 8 Okl. Crim. 605, 129 Pac. 675, 44 L. R. A. (N.S.) 513, it was held
that there might be a conviction upon circumstantial evidence, quoting from authorities to
sustain the position. We think, too, a critical reading of People v. Chadwick, 4 Cal. App.
63, 87 Pac. 384, 389, relied upon by appellant, sustains this view. That was a case in
which the defendant was convicted of falsely testifying that he had sent two telegrams,
written and delivered by him in his cell, after his arrest in Ogden, Utah.
telegrams, written and delivered by him in his cell, after his arrest in Ogden, Utah. The
state offered affirmative proof that the telegrams had been written before his arrest. The
court held:
If they were written before he was arrested his testimony that he wrote them after his
arrest and while confined in his cell under such arrest was false. Any evidence, therefore,
sufficient to establish as a fact that the telegrams had been written before his arrest would
establish the physical impossibility of their having been written by him in his cell after his
arrest, and thus demonstrate the falsity of this testimony.
7. Are the circumstances shown in the case before us sufficient to sustain the verdict?
As stated, the defendant is charged with having corruptly given false testimony in a case
wherein he was on trial for having in his possession intoxicating liquor in the Europa
Hotel. In that case his testimony was to the effect that on August 26, 1920, three or four
men came into the bar and asked for glasses with soda, which he gave them, and that one
of them took a bottle from his inside coat pocket and poured the contents thereof into the
glasses. It is contended that the testimony of the defendant as to who poured the contents
into the glasses was false, and that it was corruptly given. To sustain this contention, one
Gilbert, a member of the state police, testified that on the day mentioned he went into said
bar and saw three men standing in front thereof, each with a glass in front of him; that the
defendant, while behind the bar, took a certain bottle, and was about to pour therefrom into
one of the glasses; that he immediately went out and called D. B. Renear, a sergeant of the
state police, and sent him in. Renear testified that about half a minute elapsed between
Gilbert's coming out of the saloon and his going in; that when he got in he saw the glasses
with their contents, and a 50-cent piece on the bar before each of the glasses; that he asked
defendant what was in the glasses, to which he replied, Jackass brandy; you want some?
to which the witness said, "Yes," and the defendant got the bottle and poured him
some in a glass; that the witness drank some of it, and then grabbed the other glasses,
with their contents, and notified the defendant that he was under arrest; that
defendant immediately poured the contents of the bottle, and about that time Gilbert
came in and got the bottle, into which the contents of the four glasses were poured.
the witness said, Yes, and the defendant got the bottle and poured him some in a glass;
that the witness drank some of it, and then grabbed the other glasses, with their contents,
and notified the defendant that he was under arrest; that defendant immediately poured the
contents of the bottle, and about that time Gilbert came in and got the bottle, into which
the contents of the four glasses were poured. The analysis showed the contents to be
jackass brandy. The evidence is to the effect that the bottle into which Renear poured the
jackass brandy is the one which Gilbert saw the defendant in the act of pouring from. In
addition to the foregoing evidence on the part of the state, there is the testimony of Albert
and Tada as to their leaving the state at the solicitation of the defendant, so as not to give
testimony against him.
The defendant went upon the stand in his own behalf, but did not testify as to anything
that had happened in the saloon. The testimony of Gilbert and Sergeant Renear as to what
transpired is uncontradicted. The defendant's testimony is confined to the circumstances
under which Albert and Tada left the state, and what happened after their return.
We think the facts amply justify the verdict. True, no one saw defendant pour the
jackass brandy into the three glasses, but he was seen about to pour it; a 50-cent piece was
on the bar for each glass, he had jackass brandy in his possession in the bottle which he
held in his hand when about to pour, and thereafter poured some of it into a glass for
Renear. These uncontradicted circumstances were sufficient to warrant a conclusion on the
part of the jury that he did pour jackass brandy into the three glasses from the bottle which
he took from behind the bar, and that the testimony given by him on his formal trial was
corruptly false.
We think, too, that the circumstance of defendant's procuring the leaving of the state by
the witnesses Albert and Tada, if the jury believed the he did so, which was for them to
determine, was of considerable weight in determining the guilt of the defendant. in
State v. Kimes, 152 Iowa, 240, 132 N. W. 1S0, the court said:
which was for them to determine, was of considerable weight in determining the guilt
of the defendant. in State v. Kimes, 152 Iowa, 240, 132 N. W. 180, the court said:
The conduct of a suspected party charged with crime may be shown to be such as an
innocent person would not be likely to resort to. Such a fact is not conclusive of guilt, but
it may strengthen the inferences of guilt arising from other facts. Like attempts to escape
or fly which do not in themselves establish the commission of the crime charged, but tend
to show conduct inconsistent with innocence, the attempt to secure false testimony by
bribery is so inconsistent with consciousness of innocence of the crime charged that the
jurors may take it into account as bearing on the question of defendant's guiltciting
authorities
8. It is said that the district attorney was guilty of misconduct warranting a reversal of
the judgment. This alleged misconduct grows out of the testimony of the witness Albert, to
the effect that he had been induced to leave the jurisdiction of the court so as not be
available as a witness against defendant. The witness also was under indictment for
alleged perjury committed upon the trial of the defendant upon the charge of having
intoxicating liquor in his possession. Immediately after Albert had given testimony in the
instant case in favor of the state, Joe Mozitti, a partner of defendant, withdrew from
Albert's bond and surrendered him to the sheriff. The district attorney, having learned the
facts during the recess of the court, made a motion that Albert be permitted to go upon his
own recognizance, and the court entered an order accordingly. Counsel for defendant,
learning thereof, called as a witness a deputy clerk of the court, who testified as to the
motion of the district attorney and the order of the court. This testimony did not pertain to
the merits of the case, and could have been offered for only one purpose, namely, to lead
the jury to believe that Albert had been allowed to go on his own recognizance as a reward
for his testimony to the effect that he had been induced to leave the state by the
defendant so as not to appear against him.
he had been induced to leave the state by the defendant so as not to appear against him.
After the testimony of the deputy clerk had been received, showing the order permitting
Albert to go upon his own recognizance, the district attorney called the stenographer, who
testified, over the objection of counsel for defendant, as to the statement made by the
district attorney as reasons for his motion. Thereafter the court struck out his testimony,
and directed the jury to disregard it. In view of the purpose for which the testimony of the
deputy clerk was offered, we are not prepared to say that the statement of the district
attorney was prejudicial to the defendant. But certainly, under all of the testimony in the
record, in view of the order of the court striking out the testimony of the stenographer and
directing the jury to disregard it, the defendant was in not way prejudiced.
9. Error is assigned to two instructions given by the court. These instructions are based
upon certain evidence which we have held competent and therefore they were properly
given. It is said, however, as to one of the instructions, that, if it correctly states the law,
the evidence did not justify the giving of it, for the reason that the witnesses Albert and
Tada did not tell the defendant that they had not witnessed the transaction concerning
which they testified they were induced to swear falsely. These are the witnesses who
testified to having been suborned by the defendant to testify falsely on his trial upon the
charge of having intoxicating liquor in his possession. We do not think it matters whether
they told or did not tell the defendant that they had not witnessed the transaction. If they
swore to the existence of a nonexisting fact, it is evident that they could not have told him
that they saw it. At any rate, a suborner of perjury cannot escape the consequences of his
infamy by such a subterfuge.
We perceive no prejudicial error in the record, and it is ordered that the order and
judgment appealed from be affirmed.
On Rehearing
A rehearing was granted in this case, upon which it was orally argued at considerable
length. We do not deem it necessary to consider at this time more than two of the points
disposed of in our former opinion.
One of the contentions of counsel, as presented in their original brief, and strenuously
adhered to upon reargument, is that the state's case is made out merely by circumstantial
evidence, as distinguished from direct and positive testimony, and that perjury can only be
established by at least two witnesses testifying directly and positively, or by the direct and
positive evidence of one witness, corroborated by facts and circumstances. In other words,
it was argued that the crime of perjury could not be established by circumstantial evidence.
In our former opinion we rejected counsel's contention, and held that perjury might be
established by circumstantial evidence. We think that the conclusion which we reached is
sustained by ample authority. It is not our purpose to restate our views at great length, but
to direct attention to a few authorities in addition to those cited in our former opinion,
sustaining the conclusion reached therein.
In 3 Wigmore on Evidence, sec. 2041, the learned author, after devoting twenty-seven
pages to discussion of the rule contended for, says:
The rule is in its nature now utterly incongruous in our system. The quantitative theory
of testimony, if consistently applied, should enforce a similar rule for every criminal
charge, now that the accused is competent to testify. Oath against oath,' as a reason for the
rule, is quite indefensible.
In the State of Texas it is provided by statute (Code Cr. Proc. 1879, art. 746) that:
In trials for perjury, no person shall be convicted except upon the testimony of two
credible witnesses, or of one credible witness corroborated strongly by other evidence as
to the falsity of the defendant's statements under oath, or upon his own confession in
open court."
evidence as to the falsity of the defendant's statements under oath, or upon his own
confession in open court.
Notwithstanding this statute, it was held in the case of Maines v. State, 26 Tex. App.
14, 9 S. W. 51, that there could be a conviction of perjury upon circumstantial evidence,
the court quoting from section 387, Wharton on Criminal Evidence, as follows:
The old text-writers, adopting the then current distinction between circumstantial and
direct testimony, held that, to convict a witness of perjury, it was necessary that the falsity
of his sworn statement should be testified to by two `direct' witnesses. In view of the fact,
however, that all testimony is now considered more or less circumstantial, this rule can be
no longer regarded as operative; and we may view it as settled that whenever the falsity of
the defendant's statement can be proved beyond reasonable doubt, then there may be a
conviction.
The question again came before that court in Maroney v. State, 45 Tex. Cr. R. 524, 78
S. W. 696, where it said:
Appellant insists that in case of perjury he cannot be convicted upon circumstantial
evidence. To this we cannot agree. Since the decision in Maines v. State, 26 Tex. Crim.
App. 14, 9 S. W. 51, this court had held that a conviction could be had upon circumstantial
evidence in this character of prosecutionciting authorities.
In 21 R. C. L. pp. 272, 273, it is said:
The question has been raised as to whether circumstantial evidence alone is sufficient
on which to base a conviction, and, while in one or two states it seems to be doubted, the
weight of authority is that it is sufficient, provided the facts constituting such
circumstantial evidence be directly and positively sworn to by at least one credible
witness, supported by corroborating evidence, and, taken as a whole, is of such a
conclusive character as to exclude every other reasonable hypothesis except that of the
defendant's guilt.
Sustaining this rule are the following cases: Blakey v. Commonwealth, 183 Ky. 493,
209, S. W. 516; State v. Storey, 14S Minn. 39S, 1S2 N. W. 613; People v. Dowdall, 124
Mich. 166, S2 N. W. S10.
v. Storey, 148 Minn. 398, 182 N. W. 613; People v. Dowdall, 124 Mich. 166, 82 N. W.
810.
While we adhere to the general proposition that the crime of perjury may be established
by circumstantial evidence, we have reached the conclusion that there is not in the instant
case that clear, strong, and satisfactory proof of the crime charged which is necessary to a
conviction. It is possible, under the circumstances of the case, for the testimony of the part
of the state to have been the truth, and that given by the defendant, which is charged as
perjured, also to have been the truth. No one testified that one of the men who stood at the
bar when Gilbert was in the saloon did not pour the jackass brandy into the three glasses,
as was testified to by the defendant. The defendant may have had jackass brandy in his
place, some of which he may have given Renear, and one of the three men at the bar may
have had some also, and may have poured it into the glasses.
The jury, to convict the defendant, must have indulged in conjecture; they must have
drawn the inference that, because the defendant had jackass brandy in his place, neither of
the three men at the bar had any, or that they did not pour some into the three glasses. This
kind of evidence will not sustain a conviction in a criminal cases of any character. We
think the rule which controls in the case presented is that there can be no conviction where
the circumstances, though they create a strong suspicion of guilt, are as consistent with the
theory of innocence as they are with the theory of guilt. State v. Mandich, 24 Nev. 336, 54
Pac. 516; State v. Fronhofer, 38 Nev. 448, 150 Pac. 846; Prather v. Commonwealth, 85
Va. 122, 7 S. E. 178; State v. Bennett (Mont.) 199 Pac. 276; State v. Fountain, 61 Mont.
461, 203 Pac. 355. In this case the state's testimony is consistent with the theory of guilt,
but it is also consistent with that of innocence.
For the reason given, the verdict and judgment are reversed, and the trial court is
directed to dismiss the case and discharge the defendant.
____________
46 Nev. 351, 351 (1923) Pacific Live Stock Co. v. Ellison Ranching Co.
[No. 2579]
PACIFIC LIVE STOCK COMPANY (a Corporation), v. ELLISON RANCHING
COMPANY (a Corporation).
JOHN M. LEGARZA, W. O. BARBER, Jr., I. B. ENGLISH, and JOSEPH GIACOMENTO,
Petitioners, v. T. C. HART, District Judge, Respondent.
[213 Pac. 700]
1. Constitutional LawDistrict Court May Declare Legislative Act Unconstitutional.
A district court has authority to declare an act of the legislature unconstitutional.
2. Constitutional LawLegislature May Regulate but Cannot Abridge Power of Courts to
Punish for Contempt.
While the legislature may enact laws which regulate the exercise of the power of courts to punish for
contempt, they cannot diminish or abridge that power.
3. Constitutional LawStatute Providing for Jury Trials in Contempt Proceedings Held Void,
as Abridging Court's power to punish for Contempt.
Stats. 1913, c. 94, providing that, in all cases of contempt arising without the immediate view and
presence of the court, the person charged with contempt may demand and have a jury trial and in such
cases the judge of the court in whose contempt the defendant is alleged to be shall not proceed over
defendant's objection, is void as a substantial abridgment of the inherent power of the court to punish for
contempt granted by the constitution.
Original proceedings in certiorari by John M. Legarza and others against T. C. Hart,
District Judge, presiding in Sixth Judicial District Court, Humboldt County, to review a
judgment holding petitioners guilty of a contempt, involved in an action by the Pacific Live
Stock Company against the Ellison Ranching Company. Proceedings dismissed. Rehearing
denied.
Warren & Dignan, and McCarran & Mashburn, for Petitioners:
The allegations in this affidavit simply amount to a statement that defendants have
violated the injunction, which is a mere conclusion of the pleader and not a statement of any
facts. The statute relating to contempts and punishments must be strictly construed, and no
interpretation should be given beyond the obvious meaning."
no interpretation should be given beyond the obvious meaning. Ex Parte Sweeney, 18
Nev. 74.
The affidavit must set forth a statement of the facts constituting the contemptthe very facts
it would be necessary to prove in order to secure a conviction on a charge of contempt
committed without the presence of the court. Schwartz v. Superior Court, 43 Pac. 580; Berger
v. Superior Court, 167 Pac. 143; Scattergood v. Superior Court, 173 Pac. 110; Ex Parte
Hedden, 29 Nev. 352; Frowley v. Superior Court, 110 Pac. 817.
The trial court is without power or authority to pass upon the constitutionality of a statute.
Neither the constitution nor any statute gives a district judge such power. The jurisdiction of
inferior courts is fixed by law, and any attempt to exceed the limits so fixed is a usurpation of
power. Smith v. Smith, 8 Am. Law Rep. 1149; International Mer. Mar. Co. v. Stranahan, 155
Fed. 428; in Re Thornburgh, 132 N. Y. Supp. 268. Even if a district court might determine
the constitutionality of an act, it could do so only on the motion of a party directly interested.
State v. Beck, 25 Nev. 69; Riter v. Douglass, 32 Nev. 400.
The statute permitting jury trials of the facts in certain contempt cases is not unconstitutional.
The rules of law which govern this court in passing upon the constitutionality of statutes are
clearly stated in Sawyer v. Dooley, 21 Nev. 390; Clark v. Irwin, 5 Nev. 111; Cutting v.
Westerfield, 24 Nev. 29; Dayton M. Co. v. Seawell, 11 Nev. 394; Cooper v. Rollins, 6 R. C.
L. 98.
The provision for a jury trial is merely a regulation of procedure. It does not attempt to
deprive the court of any power.
T. P. Wittschen, for Respondent:
The authorities are uniformly against the validity of statutes granting a trial by jury in certain
cases of contempt. While there is none directly in point in this state, an early decision favors
our contention. Ex parte Sweeney, 18 Nev. 74. Whenever any attempt has been made in the
past to curtail the right of the court to punish summarily for a contempt of court, the
legislation has promptly been declared unconstitutional.
Whenever any attempt has been made in the past to curtail the right of the court to punish
summarily for a contempt of court, the legislation has promptly been declared
unconstitutional. Carter v. Commonwealth, 32 S. E. 780; Smith v. Speed, 11 Okl. 95; State v.
Morill, 16 Ark. 385; Neel v. State, 9 Ark. 259; 50 Am. Dec. 209; Bradley v. State, 111 Ga.
168, 36 S. E. 630; State v. Clancy, 30 Mont. 193; In Re Debs, 158 U. S. 564, 39 L. Ed. 1092.
An affidavit which substantially stated that the decree was in full force and effect, and
showed its violation by the defendant, was sufficient to give the court jurisdiction to punish
for contempt. Strait v. Williams, 18 Nev. 430; Phillips v. Welch, 12 Nev. 158; Ex Parte
Ahmen, 77 Cal. 198.
Mere errors within jurisdiction are not reviewable. The court can only inquire into the
jurisdiction and if the court regularly pursued its authority. Rev. Laws, 5690; Maynard v.
Railey, 2 Nev. 313; Maxwell v. Rives, 11 Nev. 219; Hetzel v. Eureka Co. Com., 8 Nev. 360;
Kapp v. Dist. Ct., 31 Nev. 444; Phillips v. Welch, 12 Nev. 158. An erroneous decree must be
obeyed. High on Injunctions, 4th ed., sec. 1416.
By the Court, Orr, District Judge:
This matter is before us on a writ of certiorari to review a judgment of the district court,
holding the petitioners guilty of contempt.
Petitioners contend that the district court exceeded its jurisdiction in the following
particulars: (1) That the affidavit upon which the proceedings in the lower court were
instituted is wholly insufficient. (2) That a district court is without authority to declare an act
of the legislature unconstitutional. (3) That the court erred in denying petitioners a jury trial
and in holding the act of the legislature so providing unconstitutional. Stats. 1913, p. 117.
Counsel for petitioners have at some length endeavored to point out alleged defects in the
affidavit and have cited, in support of their contention, decisions from other states.
have cited, in support of their contention, decisions from other states. At least three cases
have been decided by this court dealing with the precise question under consideration here.
The sufficiency of the affidavits in contempt proceedings for the alleged violation of water
decrees was considered by this court in the cases of Phillips v. Welch, 12 Nev. 158; Strait v.
Williams, 18 Nev. 430, 4 Pac. 1083, and the rule there expressed was held to be controlling
on this court in the recent case of State v. Second Judicial District Court, 211 Pac. 105.
A comparison of the allegations of the affidavit under consideration here with those
contained in the affidavits held to be sufficient in the cases cited, supra, at once discloses that
the allegations are not only of the same kind and character, but in more detail. It would serve
no good purpose to make such a comparison in this decision, as the sufficiency of the
affidavit must at once be apparent, when considered in the light of the decisions of this court,
and we believe it sufficient to say on this point that we must again adhere to the rule
expressed in those cases.
1. We cannot agree with the contention of counsel for petitioners that a district court is
without authority to declare an act of the legislature unconstitutional. This power has long
been recognized as existing in courts of record, and, we believe, almost universally exercised
by such courts in this country. The cases cited by petitioners, as well as those in addition
which we have consulted, do not question the right, but deal with the caution with which such
right should be exercised. With the ideas expressed as to the extreme caution to be used in
such matters, we are in entire accord. It is not the existence of the power, but the exercise
thereof, with which the courts of review have concerned themselves. It is urged that to
recognize such power in district courts would lead to confusion because of the divergent
views which might be entertained by the several courts. It is fundamental that such courts
must be recognized to have power to effectively deal with questions properly presented to
them and necessary to the orderly and thorough disposition of cases and other matters
under consideration, be that question the constitutionality of a given statute or its
construction on other grounds.
questions properly presented to them and necessary to the orderly and thorough disposition of
cases and other matters under consideration, be that question the constitutionality of a given
statute or its construction on other grounds. Different courts, in construing and administering
any statute, very naturally may entertain very different views, which would result in some
confusion until settled by the higher court, but it could not be said that, because of such
possible confusion, the power to construe and administer such statute should not exist. Such a
holding would manifestly tie the hands of the courts so as to render them impotent, and to say
that they cannot pass upon the constitutionality of a statute would, in a lesser degree only,
render them helpless to properly and expeditiously dispose of the business before them.
This brings us to a consideration of that which is deemed the important question in this
case. Is the statute of 1913, purporting to give the right of trial by jury in certain contempts of
court, unconstitutional? In approaching the consideration of this question we are, as has been
well said, fully aware of the delicate duty involved in holding a statute unconstitutional, and
we fully recognize that it should never be done, except in case of a plain deviation from the
organic law, but, however delicate that duty may be, we cannot shirk it when its exercise is
necessary. As is sated in 6 R. C. L. p. 72:
Since the constitution is intended for the observance of the judiciary as well as the other
departments of the government, and the judges are sworn to support its provisions, the courts
are not at liberty to overlook or disregard its commands, and therefore, when it is clear that a
statute transgresses the authority vested in the legislature by the constitution, it is the duty of
the courts to declare the act unconstitutional and from this duty they cannot shirk without
violating their oaths of office.
That portion of the statute with which we are concerned here reads as follows: "* * * That
in all cases of contempt arising without the immediate view and presence of the court the
person charged with contempt may demand and have a jury trial; and provided further,
that in all cases of contempt arising without the immediate view and presence of the
court, the judge of such court in whose contempt the defendant is alleged to be shall not
preside at such trial over the objection of the defendant."
* * * That in all cases of contempt arising without the immediate view and presence of
the court the person charged with contempt may demand and have a jury trial; and provided
further, that in all cases of contempt arising without the immediate view and presence of the
court, the judge of such court in whose contempt the defendant is alleged to be shall not
preside at such trial over the objection of the defendant. Stats. 1913, p. 117.
2. The question presented is not a new one. It has been passed upon by many of the courts
of the country, both state and federal. The decisions are uniform to the effect that, while the
legislature may enact laws which regulate the exercise of the power of courts to punish for
contempt, they cannot diminish or abridge that power. That power to punish for contempt is
inherent in courts of record, created by the constitution, and cannot be substantially abridged
or diminished by the legislature, is conceded in this case; but it is contended that the act in
question in attempting to provide for the intervention of a jury is but regulatory and does not
abridge or diminish the power of the courts to punish for contempt.
In the case of Carter v. Commonwealth, 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310, the
Virginia Supreme Court of Appeals was called upon to pass upon the constitutionality of an
act of their legislature, attempting to give the right of trial by jury in certain contempt cases,
and permitting the jury to fix the punishment. The contention was there made that the act in
question was not obnoxious to the objection that it interfered with or diminished the power of
the court to protect itself, but was merely regulatory, but, in answer thereto, the court said:
To this view we cannot assent. It is not a question of the degree or extent of the
punishment inflicted. It may be that juries would punish a given offense with more severity
than the court; but yet the jury is a tribunal separate and distinct from the court. The power to
punish for contempts is inherent in the courts, and is conferred upon them by the very act
of their creation.
power to punish for contempts is inherent in the courts, and is conferred upon them by the
very act of their creation. It is a trust confided and a duty imposed upon us by the sovereign
people, which we cannot surrender or suffer to be impaired without being recreant to our
duty.
And quoting further from the same case:
Reading the constitution of the state in the light of the decisions of eminent courts which
we have consulted, we feel warranted in the following conclusions: That in the courts created
by the constitution there is an inherent power of self-defense and self-preservation; that this
power may be regulated, but cannot be destroyed, or so far diminished as to be rendered
ineffectual by legislative enactment; that it is a power necessarily resident in, and to be
exercised by, the court itself, and that the vice of an act which seeks to deprive the court of
this inherent power is not cured by providing for its exercise by a jury; that, while the
legislature has the power to regulate the jurisdiction of circuit, county, and corporation courts,
it cannot destroy, while it may confine within reasonable bounds, the authority necessary to
the exercise of the jurisdiction conferred.
It is contended that the case of Carter v. Commonwealth, supra, should be distinguished
from the instant case in this: The Virginia statute attempted to confer the right to have a jury
determine, not only the guilt or innocence of a party charged with contempt, but, in the event
of a finding of guilty, to fix the punishment, while the Nevada statute merely provides that the
jury may determine the guilt or innocence. The difference existing in the statutes could have
no bearing on the question involved. If a provision for the intervention of a jury abridges the
power of a court to punish for contempt, it is the act of transferring such power to a jury at all
that is violative of the right inherent in the court, and the Virginia statute by its further
provision could only be said to have attempted an abridgment in a greater degree. This
furnishes a striking example of the fact that, should it be recognized that the legislature
has the power to provide for the intervention of a separate tribunal in trials for contempt,
there is no line at which they could be required to stop short of divesting the courts of all
power to punish for contempt, and then, as was said by this court in Ex Parte Sweeney, 1S
Nev. 74
the fact that, should it be recognized that the legislature has the power to provide for the
intervention of a separate tribunal in trials for contempt, there is no line at which they could
be required to stop short of divesting the courts of all power to punish for contempt, and then,
as was said by this court in Ex Parte Sweeney, 18 Nev. 74, 1 Pac. 379: The judiciary would,
indeed, hold but a barren scepter. * * *
Prior to the adoption of the present constitution of the State of Oklahoma (right of trial by
jury, in contempt cases, is now expressly provided in the Oklahoma constitution), the
legislature enacted a law attempting to give the right of trial by jury in contempt cases. This
act was held unconstitutional, and in deciding the question in the case of Smith v. Speed, 11
Okl. 95, 66 Pac. 511, 55 L. R. A. 402, the court said:
It cannot be conceded that the right to punish a contempt may be turned over by the
legislature to a separate tribunal. * * * The legislature itself, and the powers with which it is
vested, have been created by the same organic act as that which created, organized and
prescribed the jurisdiction of these courts. The courts and the legislature are of coequal origin.
Neither may interfere with the proper sphere of the other. The legislature and its acts, within
their proper sphere, are entitled to the support of the courts. The courts when exercising their
authority as prescribed by the organic act, and in the exercise of that inherent power, which is
necessary to their preservation, to the enforcement of the rights which they are compelled to
pass upon, and of the preservation of their dignity and the respect which they are entitled to,
have also a right to the consideration of the legislature, and these mutual relations of respect
and mutual efforts of preservation will, no doubt, always exist when their proper relations and
the necessity for their individual existence and authority of each are properly understood.
The district court for the Southern district of Florida, in the case of In Re Atchison, 284
Fed. 604, had under consideration the constitutionality of the Clayton act {3S Stat.
consideration the constitutionality of the Clayton act (38 Stat. 730), which gives the right of
trial by jury in certain cases of contempt, and while it is not exactly clear as to whether the
decision rested on the constitutionality of that portion of the act, or that the alleged contempt
did not come within the purview of the act, the court, during the course of the decision, made
the emphatic declaration that it considered the provision of the act providing for a jury trial
unconstitutional.
3. The declaration of the court in that cases goes much further than we are prepared to
admit here, viz: That a legislative body creating a court could not abridge its power to punish
for contempt. As before stated, the cases dealing with different phases of this question are
numerous. The citations made and quotations therefrom indicate the reasoning employed, and
further citation and quotation would unnecessarily prolong this decision. The citation made
we believe sufficient to lead any who may care to investigate further into those numerous
cases, and we further believe that all the authorities on the subject deny the right of a
legislature to provide for the intervention of a jury in contempt cases. There is no authority to
the contrary, and no line of reasoning which we have heard advanced in this case or that
suggests itself to us which would admit of a contrary view, and we cannot escape the
conclusion that such a provision as enacted in the statute of this state is a substantial
abridgement of the powers granted to the courts of this state by the constitution. Hale v. State,
55 Ohio St. 10, 45 N. E. 119, 36 L. R. A 254, and note, 60 Am. St. Rep. 691; Neel v. State, 9
Ark. 259, 50 Am. Dec. 209; Bradley v. State, 111 Ga. 168, 36 S. E. 630, 50 L. R. A. 691, 78
Am. St. Rep. 157; State v. Clancy, 30 Mont. 193, 76 Pac. 10; In Re Debs, 158 U. S. 564, 15
Sup. Ct. 900, 39 L. Ed. 1092.
In concluding this decision, we feel constrained to say something relative to the suggestion
made in the argument to the effect that a holding that the provision of the statute for the
intervention of a jury abridged or diminished the power of the court to punish for
contempt would be to express a lack of confidence that juries would perform their sworn
duty.
the statute for the intervention of a jury abridged or diminished the power of the court to
punish for contempt would be to express a lack of confidence that juries would perform their
sworn duty. Not at all. We have the utmost faith in that time-honored institution, and we are
deeply conscious of the important, patriotic, and credible part juries have taken in the
administration of justice in this country. Especially is this true in this state. We are deeply
conscious of the fact that the jury panels are composed, in a singularly large measure, of the
substantial citizenship of the state, men and women who have a pride in their courts and are
jealous of the maintenance of their integrity, dignity, and honor. No court in this state would,
for a moment, hesitate to submit a question of an infringement of their dignity to a jury
because of any fear that it would not be fully maintained. The question here goes much
further than that. It is this essential proposition that the people have spoken through the
organic law, and, in this speaking, having invested the courts with certain powers, among
which is the power to punish for contempt; that power must remain vested there, not to be
disturbed by any but the people themselves, which they can do, and they alone, by proper
amendment of the organic law. In so declaring we but reaffirm the principle that the three
great divisions of this state government must remain separate and distinct, each retaining the
powers invested by the constitution without encroachment one upon the other.
The legislature did not give to the courts power to punish for contempt; the legislature
cannot take it away nor abridge or diminish it. We repeat the conclusion that the provisions of
the statute of 1913, providing for the intervention of a jury in trials of certain contempts, is a
substantial abridgment of the inherent power of the courts to punish for contempt, and, in
attempting to so provide, the legislature exceeded its powers, and consequently the said act,
in so far as it relates to a jury trial, is unconstitutional and void.
For the reasons given, it is ordered that these proceedings be, and the same are hereby,
dismissed.
Sanders, J.: I concur.
NoteDucker, C. J., being disqualified, the Governor designated Hon. Wm. E. Orr,
District Judge, to sit in his stead.
Per Curiam:
Rehearing denied.
____________
46 Nev. 361, 361 (1923) Wainwright v. Dunseath
[No. 2529]
J. B. WAINWRIGHT, Respondent, v. HARRY
DUNSEATH, Appellant.
[211 Pac. 1104]
1. Frauds, Statute ofStatute Does Not Prevent Reformation of Instrument on Account of
Mistake or Fraud.
Irrespective of the statute, courts of equity can order the reformation of deeds and other instruments
when, through mistake of the parties thereto, or through the fraud or unconscionable conduct of one of
the parties amounting to fraud, such instrument does not contain the real terms of the oral agreement
between them.
2. Reformation of InstrumentsEvidence Held to Sustain Court's Finding Deed Did Not
Conform to Oral Agreement.
In a suit to reform a deed, evidence as to the negotiations between the parties held to sustain the
court's finding that the deed, as drawn by defendant and his attorney, which reserved an easement across
the property conveyed for the use of the grantor only, did not conform to the agreement between the
parties that such use should be for the convenience of the remaining lots of grantor, so that it should have
run to him, his successors, and assigns.
3. Reformation of InstrumentsEvidence Held to Sustain Finding of Mistake by Plaintiff and
Unconscionable Conduct by Defendant.
Evidence that defendant was an attorney, and employed another attorney to prepare the deed from
plaintiff to him, and knew that it reserved an easement over the property conveyed only for the use of
plaintiff and not for the use of his heirs, successors, and assigns and, therefore, inure to the benefit of
plaintiff's remaining lots as agreed, and that plaintiff was unlearned in the law and inquired of defendant
whether the deed conformed to the agreement, held to sustain the court's finding that the defendant's
conduct in failing to inform plaintiff as to the effect of the reservation was unconscionable, so that equity
could reform the deed.
4. Reformation of InstrumentsFailure to Correct Known Mistake of Grantor Is
Unconscionable Conduct.
Where the grantee in a deed knows that the grantor is laboring under a mistake as to the effect of the
deed drawn by the grantee, his concealment of the effect of such deed is unconscionable conduct on his
part, which entitles the grantor to have the deed reformed.
5. Appeal and ErrorImmaterial Finding Not Supported by Pleading Not Ground for
Reversal.
Where the finding that a named individual acted as agent for the defendant in procuring the deed
sought to be reformed was not material because unnecessary to sustain the decree, it was not essential that
the fact so found should have been alleged in the amended complaint.
6. Appeal and ErrorBrief Charging Judge with Unfairness Stricken from Files as
Scandalous.
A reply brief charging that the trial judge at the time he rendered judgment for plaintiff was
contemplating the formation of a legal partnership with plaintiff's attorneys, which was supported only by
the fact that, after the judge's resignation two months after rendition of the judgment, he formed such
partnership, and was contradicted by the judge's affidavit, which stated that, at the time of the judgment,
the partnership was not in contemplation, will be stricken from the files as containing impertinent and
scandalous matter.
Appeal from Second Judicial District Court, Washoe County; E. F. Lunsford, Judge.
Suite by J. B. Wainwright against Harry Dunseath for the reformation of a deed. Judgment
for plaintiff, and defendant appeals. Affirmed.
Martin J. Scanlan, for Appellant:
Where plaintiffs agreed in writing to sell defendants' land, subject to approval of owner,
and acknowledged an advance payment, the writing naming grantor and grantee, and
defendant in signing agreement referred to it as a contract of sale, the transaction was a sale,
and the agreement did not constitute plaintiffs defendant's agents. Cartwright v. Ruffin, 96
Pac. 261; Rev. Laws, 1069, 1071.
Easements cannot be created by word of mouth or exist by parol independent of the
writing. 20 Cyc. 215, 216.
Where a party should inform himself of contents of instrument he signs, and has full
opportunity and means of knowledge, he will not be allowed to say he has been deceived
to his injury by misrepresentations of other party.
of knowledge, he will not be allowed to say he has been deceived to his injury by
misrepresentations of other party. Randall v. Howard, 67 U. S. 269. Or where instrument is
reduced to writing by other person, if no confidential relation exists, and means of knowledge
are open to both, he cannot avoid his liability if he signs without reading, though contract is
different from the contract as agreed on verbally. Hawkins v. Hawkins, 50 Cal. 558. Mistake
of attorney as to law is not sufficient to warrant reformation where no unconscionable
advantage is taken. 34 Cyc. 912, 913; 54 L. R. A. 354. Essentials of actionable fraud: 20 Cyc.
12, 13; Pratt v. McLean, 33 South, 185; Wilson v. Wilson, 125 N. W. 385. As to parol
evidence: 17 Cyc. 567; Menzies v. Kennedy, 9 Nev. 152.
One cannot be agent for purchaser and seller at same time. Sunderland v. Kilbourne, 3
Mackey, 506. The burden is on the party alleging agency to establish it. Martin v. Greene, 3
Ill. App. 257; Shelton v. Todd, 19 Atl. 111.
Harwood & Tippett, for Respondent:
Where there is a mistake, or a mistake on one side and fraud or unconscionable conduct on
the other, equity will intercede and correct mistake and enforce true understanding or
agreement of parties. Pomeroy, Eq. Jur. (3d ed.) sec. 1776; 34 Cyc. 938, et seq.; 23 R. C. L.
328; Kilmer v. Smith, 77 N. Y. 226; Phoenix Co. v. Bailey, 13 Wall. 616.
Defendant was guilty of fraud, because, even though defendant was under no peculiar
relation of trust to plaintiff, he was bound to disclose facts and circumstances which plaintiff
had a right to know. Fish v. Clelland, 33 Ill. 243.
This is a suit in equity for the reformation of a deed. For convenience, the parties will be
referred to as they appeared in the court below.
It is alleged in the amended complaint that plaintiff in July, 1919, being the owner of lots
13 and 14 of block 2 of the new South Side addition to Reno, said lots together making one
parcel of land having a frontage of 140 feet on Moran street, and 100 feet on Sinclair street,
entered into an oral agreement with the defendant, whereby the defendant agreed to purchase
a portion of said lot 13. It is alleged also that it was further agreed that defendant should keep
and permit an open permanent driveway ten feet in width along the northerly portion of the
premises for the use of plaintiff and his grantors, and for the benefit of the remaining portion
of said lots 13 and 14, owned by him, so that he and his grantors might have ingress and
egress thereto and therefrom.
It is further alleged that defendant is an attorney at law in the State of Nevada, and has
been a justice of the peace, and, by reason of his profession and learning and experience, is
acquainted with the drawing of legal documents, and, in particular, conveyances of real
property, and is familiar with the terms and legal phraseology of deeds of conveyance and
other legal documents. It is further alleged that the plaintiff is not a lawyer, and has very little
education, and is not familiar with the meaning and the use of words and phrases and legal
documents, nor with the legal phraseology used in making deeds of conveyance; that on or
about the 30th day of July, 1919, the defendant, assisted by another attorney, employed by
him, caused to be written a deed conveying to the said defendant from the plaintiff, the said
premises, and which it had been agreed should have been conveyed, and the plaintiff,
knowing that defendant was a lawyer by profession and relying upon him, believed that the
defendant would include or cause to be included and contained in said deed all of the terms
and conditions of the said oral agreement, and, relying upon him so to do, did not discover or
notice the omission or mistake in said deed when it was read to him, and was therefore
induced to sign said deed after it was read to him, with the understanding then that it
contained all of the terms and conditions of said oral agreement; that he would not
otherwise have signed or delivered it to defendant.
to sign said deed after it was read to him, with the understanding then that it contained all of
the terms and conditions of said oral agreement; that he would not otherwise have signed or
delivered it to defendant.
It is further alleged that the defendant well knew that the said deed did not contain the true
terms and conditions of the oral agreement, and well knew that the plaintiff was relying upon
him to see that the said deed contained the same, and, well knowing that plaintiff was relying
upon him to see that said deed contained the true terms and provisions of the oral agreement
of the parties, did, knowingly and with wilful intent to cast a cloud upon lot 14 and the
remaining portion of lot 13, permit plaintiff to execute and deliver the deed without
explaining or causing to be explained to the plaintiff, the terms and provisions of the deed.
Is is further alleged that in September, 1919, plaintiff learned for the first time that the said
deed of conveyance did not contain the provisions of the oral agreement; that the open
driveway referred to in the deed did not, by its terms, go to the use of the party of the first
part, his heirs and assigns, but for the use of the party of the first part only; and that said
driveway was incorrectly described therein; and offered to make, execute, and deliver to
defendant a deed of correction in lieu thereof, according to the terms and conditions of the
oral agreement, which the defendant refused and still refuses to accept.
The deed conveying the premises to the defendant, his heirs, and assigns, a copy of which
is annexed to the complaint, contains the following reservations:
This deed is given with the express understanding that the party of the second party shall
keep and permit an open driveway for the use of the party of the first part along the northerly
portion of said conveyed and above-described premises, and said driveway to be ten feet in
width and particularly described as follows, to wit: (Here follows a particular description of
the driveway, which is admitted to be an erroneous description.)
The trial court found that there was a mistake in the description of the driveway, and that
the deed did not correctly or truly express the agreement or understanding between the parties
respecting said driveway, in that it did not contain appropriate language reserving the benefit
and use thereof to the plaintiff and to his heirs, successors, and grantees, and that the
omission of the said words, or language of like import in said deed, was brought about by the
fraud and unconscionable conduct of the defendant and his agent, J. F. Butler. A decree was
entered annulling the deed of July 30, 1919, and requiring the defendant to accept and record
in lieu thereof a deed of correction set out in the decree, in which the reservation concerning
the driveway contained in the original deed is amended so as to read as follows:
This deed is given with the express understanding that the party of the second part, his
heirs, successors, and grantees shall keep and permit an open driveway for the use of the party
of the first part, his heirs, successors, and grantees, and the heirs, successors, and grantees of
the first party since the 30th day of July, 1919, along the northerly portion of said conveyed
and above described premises, said driveway to be ten feet in width and particularly described
as follows, to wit:(Then follows a corrected description of the driveway, which the parties
concede to be a true description thereof.)
1. It is contended by the appellant that the deed cannot be reformed to extend the
privileges of the driveway to plaintiff's heirs, successors, and assigns, for the reason that any
parol agreement made relative to the conveying or reserving of an easement is within the
statute of frauds. The contention is not tenable. Irrespective of the statute of frauds, courts of
equity have the power to order the reformation of deeds, contracts, and other instruments,
when, through mistake of the parties thereto, or through the fraud of one of the parties, or
unconscionable conduct amounting to fraud, such instrument does not contain the real
terms of the contract between them.
fraud, such instrument does not contain the real terms of the contract between them.
Pomeroy's Equity Jurisprudence (3d ed.) sec. 1376, and cases cited; 34 Cyc. 938; 23 Ruling
Case Law, 328; 1 Story's Equity Jurisprudence, sec. 115; Froyd v. Schultz, 260 Ill. 268, 103
N. E. 220, Ann. Cas. 1914d, 225; Noel v. Gill, 84 Ky. 241, 1 S. W. 428; Judson v. Miller,
106 Mich. 140, 63 N. W. 965; Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 35 L. Ed.
678; Ruhling v. Hackett, 1 Nev. 360; Wilson v. Wilson, 23 Nev. 267, 45 Pac. 1009.
In Ruhling v. Hackett, supra, the suit was instituted to reform a mortgage so as to include
land not described in it at the time of its execution, and the claim was made that to so reform
it would be in violation of the statute of frauds, but this court held to the contrary. The court
said:
The rule that the courts of equity have the power to correct mistakes in deeds and other
instruments, so as to make them conform to the intention of the parties, is so universally
recognized and acted upon, that it would seem scarcely necessary to do more than to refer to a
few cases which directly sustain our views upon this question.
Among the cases cited is Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13796, in which
the opinion was written by Mr. Justice Story, and from which this court quoted as follows:
Nothing is better settled than that the true construction of the statute of frauds does not
exclude the enforcement of parol agreements respecting the sale of lands in cases of fraud;
for, as it has been emphatically said, that would be to make a statute purposely made to
prevent fraud, the veriest instrument of fraud; and the same rule governs in case of mistake as
of fraud.
In the case of Noel v. Gill, supra, the action of the lower court in ordering a reformation of
a deed so as to make it include different lots of land that were described in the parol contract
of sale, was upheld by the appellate court against the claim of the application of the
statute of frauds.
the appellate court against the claim of the application of the statute of frauds. In reference to
this claim, the court said:
The courts of a large majority of the state have held that contracts required by the statute
of frauds to be in writing may be reformed by courts of equity, so as to enlarge or restrict the
terms or the subject-matter of the contract whenever it is clearly shown that the written
contract, by fraud or mistake, does not embrace either the terms or the subject-matter of the
contract, as it was intended and understood by the parties to it. The courts of equity go upon
the ground that the statute of frauds is no real obstacle in the way of administering equitable
relief, so as to promote justice and prevent wrong. They do not overrule the statue, but, to
prevent fraud or mistake, confer remedial rights which are not within the statutory
prohibition. In respect to such needful remedies, the statute as to them is uplifted.' * * *
Whether the parol evidence offered to correct the writing on account of fraud or mistake
shows the verbal contract to be broader than the written instrumentcovering more or a
different subject-matter, or enlarging the termsor is narrower than the written instrument,
either in the terms or subject-matter of the contract, courts of equity will grant relief by
reforming the contract, so as to prevent fraud or mistake. The statute of frauds, in granting
such relief, is not violated, but is uplifted,' that it may not perpetrate the fraud that the
legislature designed it to prevent.
We are satisfied that the great weight of authority is in accord with our views, that the
statute of frauds has no application in a case of this kind.
The only question remaining for consideration is whether there is sufficient evidence,
which, under settled principles of law, sustains the findings of the trial court to the effect that
the deed did not truly express the understanding between the parties respecting the driveway,
and that the omission of language in the deed reserving the benefit and use of the
driveway to plaintiff and his heirs, successors, and assigns, was due to fraud and
unconscionable conduct of the defendant and his agent, J. F. Butler.
driveway, and that the omission of language in the deed reserving the benefit and use of the
driveway to plaintiff and his heirs, successors, and assigns, was due to fraud and
unconscionable conduct of the defendant and his agent, J. F. Butler.
2. It appears that the defendant was desirous of purchasing a residence in Reno and was
referred to one J. F. Butler, whose property on Sinclair street in that city was for sale. The
property had a frontage of 50 feet on Sinclair street. The defendant wanted an 80-foot
frontage, and Butler undertook to obtain the additional 30 feet from plaintiff, who owned two
lots adjoining Butler's property on the north. These two lots formerly belonged to the latter
and had been sold by him to plaintiff. Butler and defendant entered into a written agreement
for the sale and purchase of the former's property on Sinclair street, and in which Butler
agreed to negotiate a sale of a lot 30 feet wide by 140 feet deep, with the execution of a
portion thereof, 40 by 20 feet in dimensions. This lot was the southerly portion of lot 13
belonging to the plaintiff, and which adjoined Butler's property on the north. Plaintiff finally
agreed to sell the southerly portion of lot 13 described in the amended complaint, and
subsequently executed and delivered to the defendant the deed of July 30, 1919, in which the
boundaries of the property granted are incorrectly described.
Upon the question of the understanding of the parties as to the driveway, there is a conflict
of testimony, but there is substantial evidence to support the court's findings in this respect.
The defendant, who was a witness in his own behalf, testified substantially that it was the
understanding that the privileges of the driveway should not extend beyond plaintiff's
ownership of the adjoining property. He testified that he told plaintiff that he would not give
him the right to transfer that driveway; that he offered him the easement for himself. In
answer to questions by the court, he said: "I gave him thoroughly to understand that, if he
transferred that property, his right of way would be gone; that he understood that, and
the deeds were drawn that way."
I gave him thoroughly to understand that, if he transferred that property, his right of way
would be gone; that he understood that, and the deeds were drawn that way.
On the other hand, plaintiff testified that it was the understanding that the driveway was to
be a permanent driveway for the benefit of the lots. He testified:
The first conversation that we had about the lots at the time I told him what the price of
the lots was. That I would face my houses on Moran street and that the 70 feet wasn't enough,
but with the 10 feet to get driving in there that I would sell him the lot for the $800, with the
driveway for the benefit of those lots. * * * Dunseath said he would do it.
And again, on cross-examination:
Q. And it was the intention to have a driveway down through there and to remain open
permanently? A. That was the agreement.
Q. And this driveway was to be for the use and benefit of subsequent purchasers of any
lots which you might sell on Moran street? A. Yes.
Plaintiff is corroborated in this respect by the witness Butler, who testified that he was
present with the defendant and the plaintiff when the latter agreed to sell the part of lot 13. He
testified:
After Mr. Wainwright agreed to sell the 30 feet, providing there was a driveway
maintained through there for the convenience of those lots; why, Mr. Dunseath told me that
he would put the money in the Stock Growers' and Ranchers' Bank, and that as soon as the
deeds were properly drawn up he would authorize Mr. Fairchild to pay me the money, if I
remember right.
This being the state of the testimony in regard to the oral agreement concerning the
driveway, the finding of the trial court cannot be disturbed.
3. As to the question of whether the plaintiff is entitled to have the deed reformed so as to
conform to the terms of the oral agreement in respect to the driveway, we think there is
sufficient evidence to justify the court in finding in favor of the plaintiff. According to the
version of plaintiff and his witnesses, Butler, his wife, and defendant went to the offices
of S. H. Rosenthal, and attorney at law in Reno, for the purpose of having him prepare two
deedsone from Butler to the defendant for the former's property on Sinclair street, and
one from plaintiff to the defendant for the portion of lot 13 agreed upon by them. Mr.
Rosenthal testified: That he prepared the latter deed as requested.
version of plaintiff and his witnesses, Butler, his wife, and defendant went to the offices of S.
H. Rosenthal, and attorney at law in Reno, for the purpose of having him prepare two
deedsone from Butler to the defendant for the former's property on Sinclair street, and one
from plaintiff to the defendant for the portion of lot 13 agreed upon by them. Mr. Rosenthal
testified: That he prepared the latter deed as requested. That he asked Butler as to whether the
right of way was to be granted to Mr. Wainwright, or whether those privileges were to go to
his heirs and assigns. That Butler and the defendant said it was to go to Mr. Wainwright. That
witness then said:
Well, now, I don't believe that Wainwright would sign a deed of that character if it
wasif he was made to know that he, individually, was to have the benefit of this right of
way and that the same was not for the benefit of his heirs and assigns.
That they replied that they had had considerable trouble in bringing this thing about in
consummating the deal, and to draw it up accordingly. The witness then replied that he would
of course read the deed carefully to Mr. Wainwright, and if he found fault with it, of course it
would have to be changed. That Butler and defendant furnished the information as to the right
of way. That, after he made a memorandum of the description of the right of way and of the
other reservation in the deed, he read it to them, and it was satisfactory. That he prepared the
deed and read it to them, and they said it was correct. Plaintiff was then telephoned for and
came to the office. Rosenthal read the deed to him in the presence of defendant, Butler, and
his wife. Plaintiff asked either defendant or Butler as to whether the deed was all right, and
they said it was according to the agreement between them.
Butler's testimony as to the transaction was substantially that he and his wife and
defendant went to Rosenthal's office together, and the latter prepared two deeds. One of these
was from Butler to defendant for the former's property on Sinclair street, and the other was a
deed from plaintiff to defendant for the part of lot 13.
deed from plaintiff to defendant for the part of lot 13. He testified that while Rosenthal was
preparing the deeds, a defendant and the former had a little conversation, and he heard
Rosenthal say: Well, that will be all right if the old man don't see it, or Mr. Wainwright
don't see it; to which defendant replied, Well, that is the way I want it. After the deeds
were prepared, Butler telephoned to plaintiff, who came to the office. Rosenthal read the deed
to him in the presence of defendant and the others. Plaintiff said: Well, I guess that is all
right. Butler paid Rosenthal for preparing his deed, and Wainwright paid for his deed.
Mrs. Butler testified that while Rosenthal was working on the typewriter, defendant went
over and was talking to him. She heard the latter say: Well, that will be all right if Mr.
Wainwright don't notice it. In answer to the question, What did Mr. Dunseath say to that?
she answered; I don't think he replied at all, or he said something about That is the way I
want it,' or some casual remark.
After the deeds were prepared, Rosenthal read them to her and defendant and Butler.
When plaintiff came to the office, Rosenthal read the deeds again and said: Well, how is it?
Plaintiff looked at Mrs. Butler and said: What do you think, is it all right with you? Mrs.
Butler replied: Yes, sure; it is all right with me. Plaintiff then said: All right then; we will
sign.
Plaintiff's version of the transaction is that he came to the office at Butler's request over the
telephone, and Rosenthal read the deed. Plaintiff said to Dunseath: Is this all right? and
defendant said in reply, Yes; it is all right, Wainwright. He thought Butler said, Yes, it is
all right, or something. Later in his testimony, in answer to the question: Didn't you ask Mr.
Rosenthal any questions? the plaintiff replied: Well, I don't know that I did. I know well
enough I didn't. He read the deed, and I asked, directed my conversation to Mr. Dunseath and
Butler, if the deed was all right and as we had made our arrangements and agreements,
and he said, 'Yes,' and I signed it."
and as we had made our arrangements and agreements, and he said, Yes,' and I signed it.
A month or so after the signing of the deed plaintiff ascertained that the description of the
driveway was wrong and that it did not contain the reservation concerning it according to the
oral agreement. He sent Butler to the defendant to ask him to consent to a correction of the
deed in these respects. Defendant was willing to have the misdescription of the driveway
corrected, but refused to consent to any change in the reservation as to the driveway. Plaintiff
testified that he was in the automobile business, and, as to education, he had gone to school
for three or four winters; that he did not understand legal terms and legal phraseology or legal
documents; that he had known defendant about three years. He first knew him in Tonopah,
where he had an office next to defendant's office, who was then a justice of the peace. He
knew that defendant was a practicing lawyer. They were members of the same fraternal
organization, and, owing to these circumstances, he relied upon defendant to see that the deed
was drawn according to their understanding. He would not have signed the deed, he said, if
he had known of the omission. He testified that he made the sale to accommodate his
neighbor Butler, and left the whole matter of the deed to Butler and the defendant.
The foregoing is substantially the testimony, as appears from the written decision of the
trial court, which we find among the papers on appeal, and which counsel have stipulated
may be referred to, and from which the court concluded that both Butler and defendant were
charged with the duty of explaining to the plaintiff in the office of Mr. Rosenthal, that the
driveway, under the language used in the deed, did not convey an easement beyond the term
of the occupancy of the plaintiff; and that their failure to do so constituted unconscionable
conduct amounting to fraud.
4. In Crookston Improvement Co. v. Marshall, 57 Minn. 33, 59 N. W. 294, 47 Am. St.
Rep. 612, the court expressed the opinion that the mistake of a grantor, if known to the
grantee, who conceals the truth from the grantor in order to secure a conveyance of land
from him which he knows the grantor never intended or agreed to convey, is a case of a
mistake of one party, accompanied by fraud or inequitable conduct of the other party, and
is a good ground for a reformation of the instrument.
expressed the opinion that the mistake of a grantor, if known to the grantee, who conceals the
truth from the grantor in order to secure a conveyance of land from him which he knows the
grantor never intended or agreed to convey, is a case of a mistake of one party, accompanied
by fraud or inequitable conduct of the other party, and is a good ground for a reformation of
the instrument.
In Deischer et al. v. Price et al., 148 Ill. 383, 46 N. E. 105, there was a bill in equity to
reform a deed. The deed by its terms conveyed all of the grantors' interest in certain lands,
and the grantors insisted that the real intention of both grantors and grantee, at the time the
deed was executed, was merely to convey to the grantee an estate for life, leaving the
reversion in the grantors, and that, by mutual mistake, the deed was so drafted and executed
as to convey the fee. The court said:
The fair conclusion from all the evidence is, that at the time the deed was executed,
Deischer [grantee], as well as the complainants, supposed the deed to be so drawn as to
effectuate the intention of the parties, and therefore that the mistake was mutual. But if it
should be admitted that he, at the time, was aware of the terms and legal effect of the deed,
and that the mistake was wholly on the part of the complainant, his position would in no
respect be improved. He must in that case have known that the complainants were executing
the deed under a mistake, brought about by his own agency, and his conduct would then be a
fraud, which, coupled with the mistake into which he had led the complainants, would entitle
them to a reformation of the deed.
Mr. Pomeroy, in his work on Equity Jurisprudence, says:
Equity has jurisprudence to reform written instruments, * * * where there has been a
mistake of one party accompanied by fraud or other inequitable conduct of the remaining
parties. 4 Pomeroy's Equity Jurisprudence (4th ed.), sec. 1376.
The law in this regard is stated in 23 R. C. L. pp. 328, 329, as follows: "Where one party
to an instrument has made a mistake, and the other party knows it and conceals the
truth, such inequitable conduct accompanying a mistake is generally held to be sufficient
ground for reformation of the instrument in question."
Where one party to an instrument has made a mistake, and the other party knows it and
conceals the truth, such inequitable conduct accompanying a mistake is generally held to be
sufficient ground for reformation of the instrument in question.
The evidence heretofore set forth makes it clear that plaintiff signed the deed under the
mistaken belief that it contained language reserving the driveway to himself, his heirs,
successors and assigns. It is likewise clear that Butler and the defendant knew that it did not
contain this reservation. Butler and defendant caused the deed to be drawn by Rosenthal, and
it was read to plaintiff in their presence. The circumstances are sufficient to show that
plaintiff was relying on Butler and defendant to see that the deed was in accordance with the
oral agreement, and that he was unfamiliar with the effect of the legal phraseology employed
in deeds. When the deed was read to him in their presence, they not only failed to explain to
him the limitation of the easement to plaintiff, but according to Rosenthal, who was a
disinterested witness, when plaintiff asked either Butler or the defendant if the deed was all
right, they said it was according to the oral agreement. Defendant's version of the transaction
at Rosenthal's office conflicts with the testimony of the others in several particulars, as well
as with the testimony of Butler and plaintiff in regard to other matters, but the trial court
found the preponderance of the evidence to be against his contentions.
5. We think that, under well-established principles, the evidence detailed, which the trial
court considered the most creditable, warrants a reformation of the deed. In addition to the
finding hereinbefore stated, the trial court made several findings which the defendant claims
are either unsupported by the evidence or are contrary thereto. In this we do not agree. There
is substantial evidence to support them. There is considerable stress placed upon the finding
that Butler acted as the agent of the defendant in procuring the sale and conveyance of the
property described in the deed from plaintiff to the defendant, and in this connection it is
urged that there is no allegation of such agency in the amended complaint, and that the
finding is contrary to the evidence.
the defendant, and in this connection it is urged that there is no allegation of such agency in
the amended complaint, and that the finding is contrary to the evidence. While such a finding
is not necessary to sustain the decree, still there is ample evidence to support it. As the
finding is not material, an allegation of agency in the amended complaint is not essential.
6. Counsel for plaintiff have made a motion for an order striking defendant's reply brief
from the files of this court upon the ground that it contains irrelevant, impertinent, libelous,
and scandalous matter. The motion is directed to certain statements in the brief, to the effect
that, while the case was pending in court, the trial judge was contemplating returning to the
practice of the law associated with counsel for the plaintiff, and that he did thereafter resign
and form such partnership. The motion is supported by an affidavit of the attorney, who was
formerly a district judge of the Second judicial district of this state, and, as such judge,
presided at the trial and rendered the decision in this case. He states in the affidavit that
judgment was rendered in the case on April 2, 1921, and that as such judge he had nothing
whatever to do with the case subsequent to that date; that he resigned his position as such
judge on the 31st day of May, 1921, and after resigning formed a law partnership with the
attorneys who were acting for the plaintiff in the case; that he neither considered or discussed
nor in any way had in mind the matter of a law partnership with said counsel until a few days
before his resignation from the bench, and that no thought of such partnership was ever
entertained, mentioned, or discussed by any one in his presence until several weeks after the
decision. No counter affidavit or other evidence was produced by the defendant to contradict
these averments. Consequently the intimation contained in the statements in the reply belief
that the trial court was guilty of unfairness to the defendant because, during the pendency
of the case, he was contemplating resigning and forming a partnership with counsel for
the plaintiff, rests entirely upon the fact that two months after his last judicial act in the
case, the rendition of judgment, he resigned from the bench and formed such partnership.
the defendant because, during the pendency of the case, he was contemplating resigning and
forming a partnership with counsel for the plaintiff, rests entirely upon the fact that two
months after his last judicial act in the case, the rendition of judgment, he resigned from the
bench and formed such partnership. We are satisfied, not only from the affidavit, but from the
excellent reputation which affiant enjoys as an able and upright jurist and practicing lawyer,
that the reflections cast upon his judicial character in defendant's reply brief have no basis in
fact, and were made for no other purpose than to induce this court to believe that the trial
judge was prompted by unworthy motives in rendering judgment in favor of the plaintiff. We
will not indulge such practice, but, on the contrary, must strongly condemn it as a breach of
professional ethics.
It is therefore ordered that defendant's reply brief be in the same is hereby stricken from
the files of this court. Authority for this order is abundant. Christensen v. Floriston Pulp and
Paper Co., 29 Nev. 552-577, 92 Pac. 210; Pittsburg Ry. Co. v. Muncie and Portland Traction
Co., 166 Ind. 466, 77 N. E. 941, 9 Ann. Cas. 165 and note, page 166.
Defendant's counsel also made a motion to strike plaintiff's opening brief from the files of
this court, upon the ground that it contains irrelevant, impertinent, libelous, and scandalous
matter. We find nothing objectionable in the plaintiff's brief, and the motion is hereby denied.
The judgment of the lower court is affirmed.
____________
46 Nev. 378, 378 (1923) Clark Realty Co. v. Douglas
[No. 2561]
CLARK REALTY COMPANY, Appellant, v. H. C. DOUGLAS, Respondent.
[212 Pac. 466]
1. CorporationsAction at Special Meeting of Which One Director Was Not Notified Is
Void.
A special meeting of directors, held in absence of one of them and without notice to him as required
by the by-laws, is illegal, and the action taken at such meeting is invalid.
2. CorporationsRatification of Contract Is Equivalent to Prior Authority.
Ratification by a corporation of a contract made without authority relates back and is equivalent to a
prior authority to make the contract.
3. CorporationsActs within Powers of Directors May Be Ratified by Acquiescence of
Director Not Notified of Meeting at which Action Taken.
Acts of the directors of a corporation which are invalid because taken at a special meeting of the
directors, of which one of the directors had no notice, as required by the by-laws, can be ratified by the
subsequent acquiescence of the director who was not notified, if those acts were within the powers of the
directors in the first instance.
4. CorporationsDirector Not Notified of Special Meeting Held to Have Ratified Lease
Authorized Thereby.
A director of a corporation, who was not notified of a special meeting of the board at which the
execution of a lease by the corporation was authorized, ratified the lease where, after being notified
thereof, he collected the rents for nearly two years before taking any step to disaffirm the lease.
5. CorporationsRatification of Lease. Authorized at Directors' Meeting, for which Proper
Notice Not Given, Held to Ratify All Terms and Give Tenant Possession until End of Term.
Where a lease executed by a corporation was invalid merely because it was authorized at a special
meeting of the directors for which proper notice was not given, a subsequent ratification of the lease by
acceptance of rent thereunder ratifies all its terms, and entitles the tenant to retain possession until the end
of the term, though ratification of an oral lease void under the statute of frauds creates only a term from
month to month or from year to year, as the case may be, in order to conform to the policy of that statute.
6. CorporationsSignature of Secretary and Impress of Seal Held to Create Presumption of
Act under Corporation's Direction.
The signature of the secretary of the corporation and the impress of its seal upon a written notice to
lessees that the president of the corporation was authorized to collect rents due it creates the presumption
that the notice was made at the direction of the corporation.
7. CorporationsCompany Held to Have Ratified Lease through Collection of Rents by
Authorized Agent.
Where a corporation duly authorized its president to collect rents from its lessees, his act in ratifying
an unauthorized lease by collecting the rents due thereon was the act of the company.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action of unlawful detainer by the Clark Realty Company against H. C. Douglas.
Judgment for defendant, and plaintiff appeals from the judgment and from an order
overruling his motion for a new trial. Affirmed. Rehearing granted.
Hoyt, Norcross, Thatcher, Woodburn & Henley, for Appellant:
A meeting of a board of directors held in disregard of the by-laws is invalid, and hence
could give no authority to the secretary to execute the lease. Defanti v. Allen Clark Co., 45
Nev. 120; Yellow Jacket M. Co. v. Stevenson, 5 Nev. 224; Hillyer v. Overman S. M. Co., 6
Nev. 51, 57; Rev. Laws, 1127; 3 Fletcher, Cyc. Corp. sec. 1868, et seq. The secretary, not
having been authorized at a lawful meeting of the board, was without authority "in writing" to
execute a lease on behalf of the corporation, and the lease was void under the statute of
frauds. Rev. Laws, 1069, 1071, 1072; Clement v. Young-McShea Amusement Co., 67 Atl.
82.
Where a tenant enters into possession under a void lease and pays rental, he is a tenant
from month to month or year to year, as the case may be. 16 R. C. L. 574, 575. McDowell, v.
Simpson, 27 Am. Dec. 338; Frahm v. Metcalf, 106 N. W. 227; Yellow Jacket M. Co. v.
Stevenson, 5 Nev. 224, 230. A fortiori, notice is necessary in all cases, when required by the
charter or by-laws, unless all the directors are present. 3 Fletcher, Cyc. Corp. sec. 1868, p.
3061; Farwell v. Houghton Copper Works, 8 Fed. 69; Hill v. Rich Hill Coal Co., 24 S. W.
226.
If for no other reason, the meeting of the directors of the plaintiff corporation was void
because of the adverse interest of one of the directors present.
interest of one of the directors present. 3 Fletcher, Cyc. Corp. sec. 1889.
The general rule is that the act of ratification must be of the same nature as that which
would be required for conferring the authority in the first instance. Where the law requires the
authority to be in writing, the ratification must also be written. Mechem on Agency, sec. 136;
Despatch Line v. Bellamy Mfg. Co., 12 N. H. 205; Bruns v. Huseman, 107 N. E. 462; Harper
v. Jackson, 87 Atl. 430; Garcia & Maggini Co. v. Colvin, 199 Pac. 1113.
Where the tenant enters under a lease, void under the statute of frauds, a new lease is
implied of similar import, except as to term, to that of the invalid lease; the provisions of the
invalid lease are controlling, except as to the term. 16 R. C. L. 576.
Sardis Summerfield and A. N. Salisbury, for Respondent:
If corporations and their shareholders permit their directors to establish a habit or usage of
assenting separately to the making and performance of contracts by their agents through a
long course of business, they are bound, so long as they acquiesce. If this were not so, great
injustice might be done to parties contracting with them in their usual way. 3 Fletcher, Cyc.
Corp. sec. 1856; 7 R. C. L. 440; National Bank v. Biscuit Co., 61 Wash. 192; Defanti v. Allen
Clark Co., 45 Nev. 120.
If the directors own all the stock, a conveyance, mortgage or contract authorized by them
when not assembled at a meeting is valid. 3 Fletcher, Cyc. Corp. sec. 1857; 7 R. C. L. 440;
Jordan v. Collins, 18 South. 137.
When a director endorses his stock over to another, all of whose acts are satisfactory to
him, leaves the state, conceals his whereabouts with no intention of returning, he has
abandoned his office, and it is not necessary to give him notice of special meetings. 3
Fletcher, Cyc.
Fletcher, Cyc. Corp. sec. 1875; Anderson Carriage Co. v. Pungs, 86 N. W. 1040.
Except in a few jurisdictions it is the rule that it is essential to the legality of a directors'
meeting and the acts done thereat, either that all the directors shall be notified of the meeting,
or that the acts done shall be ratified by the absent directors. 3 Fletcher, Cyc. Corp. sec. 1893;
Pettengill v. Blackman, 164 Pac. 358; Smith v. Sinaloa Fruit Co., 132 Pac. 556; In Re
Machine Co., 91 Fed. 630; Ashley Wire Co. v. Illinois Steel Co., 45 N. E. 410.
Failure to dissent, where knowledge is at hand, amounts to ratification by the absent
director of the action taken by the board of directors at a special meeting of which he had not
been notified (Pettengill v. Blackman, supra); and the statute of fraud does not apply. Rule
and cases supra.
The statute allowing treble damages contemplates cases other than those where the
occupant holds under a claim of right, with a lease, valid, at least, on its face. Baldwin v.
Bahl, 122 N. W. 247.
This is an action in unlawful detainer. The appeal is taken from the judgment and an order
overruling a motion for a new trial. The appellant, Clark Realty Company, is a corporation,
formerly known and called Allen Clark Company. The Allen Clark Company was
incorporated, with a capital stock of 10,000 shares, on the 20th day of August, 1915, and the
first meeting of the stockholders and subscribers for stock in said company was held on the
31st day of August, 1915. All of the subscribers for stock and stockholders at said meeting
were Allen L. Clark, Emily Clark, and W. J. Luke. At the meeting Allen L. Clark, Emily
Clark, and W. J. Luke were elected directors of the company, and a code of by-laws adopted.
Allen L. Clark was elected president, W. J. Luke was elected vice-president, and Emily Clark,
secretary.
Clark, secretary. From the date of the organization of the company until the death of Emily
Clark on the 29th day of May, 1919, the officers and directors continued to be the same, and
Allen L. Clark has ever since continued to be a director and president of said company. The
by-laws of the said Allen Clark Company, adopted at the first meeting in respect to the
meetings of the board of directors and power of the officers, have never been changed, and
read:
Stated meetings of the directors shall be held, without notice, on the first Monday of each
month at 2 p.m. at the office of the company in the city of Reno.
A majority of the directors in office constitute a quorum for the transaction of business.
Special meetings of the board may be called by the president on one day's notice by mail,
or personally, to each director.
The vice-president shall be vested with all the powers and shall perform all the duties of
the president in his absence.
Any stockholder or director may waive any notices required to be given under these
by-laws.
On the 13th day of January, 1919, in the city of Reno, Washoe County, Nevada, a special
meeting of the board of directors of the Allen Clark Company was held, at which the
directors Emily Clark and W. J. Luke were present, having consented to the holding of this
special meeting and waiving all notice thereof. Allen Clark was not present, being absent in
California, and received no notice of the meeting. At this meeting a resolution was adopted
by the directors present, authorizing the secretary to enter into an agreement with the Pioneer
Hotel Company terminating and canceling all leases existing between the Allen Clark
Company and said hotel company. A further resolution was adopted authorizing the secretary
to execute unto H. C. Douglas the lease in question. Pursuant to this resolution the secretary,
Emily Clark, on the 13th day of January, 1919, entered into a written contract of lease with
the respondent by the terms of which the premises known and called the Pioneer Hotel was
leased to him for a period of five years from and after the 9th day of January, 1919, at a
monthly rental of $150, with the privilege and option of a renewal thereof at the
expiration of the term for a further period of five years at the monthly rental of $200.
for a period of five years from and after the 9th day of January, 1919, at a monthly rental of
$150, with the privilege and option of a renewal thereof at the expiration of the term for a
further period of five years at the monthly rental of $200. There are other covenants in the
lease not necessary to be detailed.
On the 9th day of January, 1919, the respondent went into possession of the premises, and
has ever since remained in possession thereof. On the 30th day of December, 1921,the articles
of incorporation of the Allen Clark Company were amended, changing the name thereof to
Clark Realty Company. On or about the 2d day of December, 1921, the appellant notified the
respondent, in writing, that if he should hold over the said leased premises after the 9th day of
January, 1922, his tenancy would be upon a month-to-month basis, with a rental of $600
monthly, and on the 9th and 10th days of January, 1922, made demand, in writing, of him
requiring in the alternative the payment of said rental of $600 or the surrender of the
premises. The demand was not complied with, and this action was brought. Most of the
foregoing facts are embodied in the findings, and all are established by the evidence.
The court based its judgment upon a number of findings from which it concluded as a
matter of law that the special meeting of the board of directors of the Allen Clark Company,
held on the 13th day of January, 1919, was valid, and that the lease executed in pursuance of
authority granted to the secretary of said corporation at said special meeting was and is a valid
and subsisting lease; that Allen L. Clark has ratified the action of the said board had and taken
at its special meeting held on the 13th day of January, 1919, ant that the plaintiff corporation
has ratified said indenture of lease; that the plaintiff corporation is estopped to question the
validity of the lease.
1, 2. We are first concerned with the effect of the action of the board of directors upon the
lease in question. It is conceded by the respondent that Allen Clark, the absent director, had
no notice of the special meeting, by mail or otherwise, as provided by the by-laws.
Appellant contends that for this reason the meeting was illegal, and could give no authority
to the secretary to execute the lease, which, consequently, is invalid. Although there are cases
to the contrary, the rule is well established that a special meeting, held in the absence of one
or more of the directors of a corporation, and without notice to him, is illegal, and the action
taken at such a meeting is invalid. 3 Fletcher, Cyc. Corp. 1868; 7 R. C. L. 441, 442. Such
action may be, it is true, subsequently validated by ratification. The general rule requiring
notice of a special meeting to all of the directors was recognized and applied by this court in
Defanti v. Allen Clark Co., 45 Nev. 120, and, unless the record before us takes the present
case without the operation of the rule stated, our judgment must be for the appellant. A
number of contentions are made and argued in respondent's brief, but the conclusion we reach
makes it unnecessary to notice any of them, except the claims that Allen L. Clark, and the
corporation as well, ratified the action of the directors and thereby validated it and the lease in
question. Ratification relates back and is equivalent to a prior authority to make the contract.
Edwards v. Carson Water Co., 21 Nev. 469.
3. The principle is well established that acquiescence with knowledge of the facts, by the
stockholders or directors of a corporation in illegal proceedings of a board of directors, or
some of them, may operate as a ratification or confirmation of such proceedings, if the acts
done or authorized were within the powers of the governing board in the first instance. 3
Fletcher, Cyc. Corp. secs. 1868-1893; Cook on Corporations (7th ed.) sec. 809; 2 Thompson
on Corporations (2d ed.) sec. 2019, and cases cited; 14a C. J. 87,88; Pettengill v. Blackman,
30 Idaho, 241, 164 Pac. 358; Ashley Wire Co. v. Illinois Steel Co., 164 Ill. 149, 45 N. E. 410,
56 Am. St. Rep. 187; Johnson Co. v. Miller, 174 Pa. 605, 34 Atl. 316, 52 Am. St. Rep. 833;
In Re Machine Co. (D.C.) 91 Fed. 630.
4. The written contract of lease was entered into by the secretary pursuant to a resolution
made at the special meeting on January 13, 1919, and the respondent entered into the
possession and occupancy of the lease premises under the terms of the lease on that date.
Clark took no steps to disaffirm the action of the directors or the lease until the 2d day of
January, 1921. He was in California when the lease was executed, but returned to Reno in
May, 1919. He was notified that the lease had been given when he returned. In the meantime
he did not repudiate the lease, but collected and received the monthly rent for the leased
premises after the death of Mrs. Clark in May, 1919, except for a period of about three
months, when he was camping in the mountains, and left the collection of the rent to his
friend and codirector, Mr. Luke. The conduct of Clark, the only director and stockholder who
did not join in giving authority to the secretary to execute the lease on behalf of the
corporation, was sufficient to amount to a ratification within the principle heretofore stated.
5. But appellant contends, and has cited a number of cases to support the point, that the
entry and occupancy of premises by one under an invalid lease, and the collection of rents by
the lessor, will, at the most, create only the relation of landlord and tenant, with tenancy from
month to month or year to year, which may be terminated by proper notice. Most, if not all, of
the cases relied on involve oral leases beyond the term allowed by the statute of frauds, or
written leases executed by an agent without the written authority required by the statute.
There is considerable authority to the effect that entry and continued occupation of premises,
and the receipt of rents under a lease invalid for such reason, creates the relation of landlord
and tenant, which is generally held a tenancy from month to month, or year to year,
depending largely upon whether the rent is, by the terms of the lease, payable monthly or
yearly. There is reason for this doctrine, for otherwise the statute of frauds could be
rendered nugatory as to such invalid leases.
for otherwise the statute of frauds could be rendered nugatory as to such invalid leases. In
such cases the law implies a tenancy not in conflict with the statute.
In the case at bar the statute of frauds has no application. The lease is in writing, duly
executed by the tenant and the secretary of the corporation. True, her authority to enter into
the lease is not in writing, so far as the director Clark is concerned. But there is no legislative
rule of public policy like the statute of frauds requiring such directors of the corporation to
authorize in writing the execution of the lease in question. If Clark had been given notice of
the special meeting, the approval of the resolution by a majority of the governing board would
have been all that was essential, and the giving of the lease was within the powers of the
board. Clark could have approved the resolution in the first instance, and we perceive no
valid reason why he could not subsequently approve it. His acquiescence during the
considerable period mentioned manifested his approval. Where there is entry and occupation
of premises under the terms of an invalid lease, and the payment and acceptance of rent, the
rule as to ratification is stated in 24 Cyc. 911, as follows:
Occupation of the premises by lessee, and payment of rent according to the terms of the
lease, is usually held to be a ratification by the lessee of an invalid lease. Likewise
acquiescence in the occupancy of the premises by the lessee, and the acceptance of rent from
him, will, as a rule, amount to a ratification of the lease by the lessor.
In the case of the West Side Auction Co. v. Conn. Ins. Co., 186 Ill. 156, 159, 160, 57 N. E.
839, 840, the tenant had vacated the leased premises before the end of the term. The action
was in assumpsit to recover rent, with interest for five months remaining of the term. The
lease was held to be a valid lease, and in addition the court said:
It also appears, without contradiction, that the defendant occupied the premises under this
lease during the months of May, June, July, August and September, 1S95, and paid the
rent according to the terms of the lease.
the months of May, June, July, August and September, 1895, and paid the rent according to
the terms of the lease. There was here a clear recognition and ratification of the lease, if any
such recognition or ratification had been necessary.
In Anderson v. Connor, 43 Misc. Rep. 384, 87 N. Y. Supp. 449, the president of a
corporation which held a lease of certain property for the term of ten years, undertook to
sublet a part of the property for three years at a monthly rental. After the surrender of the
original lease, a subsequent grantee brought proceedings, alleging that the subtenant was a
monthly tenant, and resting his case on the ground that the president of the corporation was
without authority to enter into the lease. In respect to the point decided the court said:
There being no legal evidence of any authority, written or verbal, to Lamb [president] to
execute a lease on behalf of the Amsterdam Realty Company, it must be conceded that the
lease, at its inception, was void as to that company, and might have been disavowed by it.
Although a void lease, inasmuch as the lessor had no authority to make it, it was not, properly
speaking, an invalid lease; that is to say, it complied with all the legal requirements as to form
and substance, and as between Lamb and the tenant was a complete instrument. All that it
lacked was Lamb's authority to convey the term, and to invest the tenant, as against the real
owner, with the right of possession. In short, Lamb had, without authority, undertaken to
lease the property of the realty company. As it is within the power of the realty company to
disavow this lease, so it was within its power, and within the power of subsequent grantees of
the property, to accept and ratify it, and when thus ratified it would become valid and
effectual for every purpose. * * * Such ratification may be inferred from the fact that the
owner of real property held under an unauthorized lease, with knowledge of the infirmity of
the lease, recognizes the lessee as his tenant, and accepts and receives from the tenant the
benefits of the lease.
benefits of the lease. This was done by the Amsterdam Realty Company. From the
commencement of the term, down to the date that it surrendered its interest in the property, it
recognized this tenant as its tenant and accepted his rent. It must be held to have done this
with knowledge of the facts relating to the lease, because its principal officer himself
executed the lease and let the tenant into possession. The company is certainly chargeable
with his knowledge. Not only was that lease ratified by the Amsterdam Realty Company, but
every subsequent grantee of the property, including the landlords who institute this
proceeding, have also, as a matter of law, ratified the lease.
Not only was the lease ratified by Allen L. Clark by his acceptance of the rents with
knowledge of the facts, but the Allen Clark Company is bound by the same principle. As we
have seen, two of the directors joined in directing the secretary to execute the lease, and the
remaining director, Clark, received notice of it and commenced to collect the rents shortly
afterwards. Thus, all the directors knew all of the details of the transaction not later than May,
1919.
In the early part of the succeeding month, the corporation authorized Allen L. Clark, as
president of the Allen Clark Company, to collect rent from all the lessees of the company.
This authority is in writing, under the corporate seal of the company, and was given to the
respondent shortly after Clark's return from California. It reads:
June 7, 1919. To all of the Lessees of the Allen Clark Company: This is to certify that
Allen L. Clark, president of the Allen Clark Company, is authorized to collect rent for said
Allen Clark Company. Allen Clark Company, by Allen Clark, President and Director; W. J.
Luke, Secretary and Director.
6. No effort was made to show that this certificate was not duly authorized by the
company, and the signature of the secretary and the impression of the corporate seal raises the
presumption that the instrument was made at the direction of the company.
was made at the direction of the company. Evans v. Lee, 11 Nev. 194; South. Cal. Col. Assn.
v. Bustamente, 52 Cal. 192-196; Florence Oil and Refining Co. v. Oil Well Supply Co., 38
Colo. 124, 87 Pac. 1077; Koehler v. Black River Falls Iron Co., 67 U. S. (2 Black) 715, 716,
17 L. Ed. 339.
7. Clark's acts in collecting the rents were therefore sanctioned by the corporation, which,
with full knowledge of all the facts, remained silent and did not attempt to repudiate the lease
until January 2, 1921, more than a year and a half after the company had given its president
authority to collect the rents from respondent. Under our view the Allen Clark Company
ratified the lease given to respondent.
The judgment of the trial court must be affirmed; and it is so ordered.
Sanders, J., did not hear the argument, and did not participate in this opinion.
[The foregoing case is pending on rehearing.]
____________
46 Nev. 390, 390 (1923) Page v. Walser
[No. 2546]
R. S. PAGE and MARIE OLIVE PAGE, Respondents, v. MARK WALSER and FRANK
MARGRAVE, Appellants.
[213 Pac. 107]
1. PartiesCorporation Owning Shares of Stock Held Not Indispensable Party to An Action
Brought by Plaintiffs, Claiming Interest in Such Stock, Sold on Execution through Defendant's
Nonperformance of Contract.
Where an attorney contracted to establish, by litigation, or otherwise, at his own expense, plaintiffs'
interest in several named corporations in return for the assignment to him by plaintiffs of two-thirds of
such interest, and the attorney so manipulated plaintiffs' stock in these corporations that it was transferred
into stock of another corporation, which was later sold on execution and lost to plaintiffs, held, even
though plaintiffs' interest in the stock sold under execution appeared doubtful and uncertain, the action
being grounded on contract and plaintiffs being directly interested in its performance, plaintiffs may bring
action without joining the other corporation; such other corporation not being an indispensable party to
the action.
2. Attorney and ClientPlaintiffs Held Entitled to Recover Damages for Shares of Stock
Sold on Execution through Nonperformance of Contract, even though Shares Became Property of
Corporation.
Where an attorney agreed to establish by litigation or otherwise at his own expense plaintiffs' interest
in several named corporations in return for the assignment to him by plaintiffs of two-thirds of such
interest, and the attorney so manipulated plaintiffs' interest in such corporations that it was transferred
into stock of another corporation, which was later sold on execution and wholly lost to plaintiffs, held the
fact that that the stock became in contemplation of law the sole property of such other corporation does
not preclude plaintiffs from maintaining an action to recover damages for nonperformance of the
contract.
3. DamagesGranting Damages Not Asked in Complaint Held Proper under Statute.
Where the relief demanded in complaint was for the recovery of shares of stock in a mining
corporation or its value, no damages being asked, held the granting of damages was proper, being
consistent with the complaint and embraced within the issue under Rev. Laws, 5241, providing that the
relief granted to plaintiff where there is no answer shall not exceed relief demanded in complaint, but in
any other case the court may grant him any relief consistent with the case made by complaint and
embraced within the issue.
46 Nev. 390, 391 (1923) Page v. Walser
4. Attorney and ClientAttorney Cannot Withdraw or Abandon Executory Contract with
Client without Consent of Client.
Where an attorney contracted to establish by litigation or otherwise clients' interest in named
corporations in return for two-thirds interest in the proceeds thereof, and the attorney so manipulated
clients' stock in such corporations that it was lost to clients, the attorney thereafter could not withdraw
without clients' consent and put himself in a position antagonistic to clients by becoming an officer of
such corporation in which through his own manipulations the clients' interests had become lodged.
5. CorporationsShares of Stock Transferred to a Corporation Held Sole Property of
Corporation without Regard to Contract between Prior Owner and His Attorney with Respect to Such
Shares.
Where stock of a mining corporation belonging to plaintiffs and defendants was issued to another
corporation as consideration for the conveyance of latter's property, such stock became the property of
the latter corporation, in application of the rule that real or personal property and choses in action,
conveyed to or acquired by a corporation, are in law the property of the corporation as a distinct legal
entity, and not in any sense the property of its stockholders, and a contract between plaintiffs and
defendants, setting forth ownership of such stock, would not affect corporation's title thereto.
6. EvidenceEvidence of Potential Value of Mining Ground Held too Uncertain, Speculative,
and Contingent to Prove Value of Shares of Stock, Although Admissible.
Evidence of the potential value of mining ground to prove the value of stock in a mining corporation,
though an element to be considered in absence of market value, held to be so uncertain, speculative, and
contingent that no court or jury could reasonably draw any conclusion of the real value of such stock.
7. EvidenceProof of Value of Shares of Stock Having No Market Value Shown by
Particular Transactions.
Where shares of stock have no market value, proof of transactions in the particular stock and the
prices at which such stock has been sold may be given to show its actual value.
8. EvidenceSales of Stock Held Not Bona Fide and Not Competent to Prove Value.
Sale of stock in a mining corporation at a specified price per share held to be the result of prearranged
plan, and was not bona fide, and therefore not competent to show the actual value of shares of stock of
such corporation.
46 Nev. 390, 392 (1923) Page v. Walser
9. DamagesNominal Damages Allowed, where Evidence Insufficient to Show Actual Value
of Shares of Stock Sold at Forced Sale.
Where evidence was insufficient to establish the actual value of mining stock sold under execution,
held, in the absence of evidence to show actual damage for its forced sale, judgment should be for
nominal damages.
10. Attorney and ClientLayman, Having Interest in Contract between Attorney and Client,
Held Not Liable to Client as Attorney for Nonperformance of Contract.
Though an attorney under a contract to carry certain transactions to a conclusion cannot withdraw or
abandon his service without client's consent, this rule does not apply to a layman who has taken an
interest in such contract through the attorney; the fact that the layman knew of relations between the
attorney and client not being sufficient to make layman accountable to client as an attorney.
11. Attorney and ClientAttorney Cannot Delegate Contract to Perform Services to Another.
The employment of an attorney implies a personal confidence and trust which he cannot delegate to
another.
12. Attorney and ClientAttorney Liable for Damages Proximately Caused by
Nonperformance of Contract.
An attorney is liable for damages proximately caused by his failure to perform his contract to
establish by litigation or otherwise client's interest in named corporation in return for the assignment to
him by client of two-thirds of such interest.
13. Appeal and ErrorSupreme Court Will Not Substitute Own Judgment for Trial Court's
where Evidence Conflicting and Decision of Trial Court Not Clearly Wrong.
The supreme court will not substitute its own judgment for that of the trial court, where substantial
conflict in the evidence, and where it does not appear that judgment of trial court is wrong.
14. Attorney and ClientLayman May Participate in the Consideration for a Contract
between Attorney and Client, though Not Liable as Attorney to the Client.
Though a layman who is given an interest in a contract for contingent fee made between an attorney
and client by the attorney is not in the relation of attorney to the client, and is not responsible for losses
sustained because of failure of attorney to perform his contract, he is not precluded from participating in
the consideration, if any, of such contract.
Appeal from Second Judicial District Court, Washoe County; Mark R. Averill, Judge.
Action by R. S. Page and another against Mark Walser and another. From a judgment for
plaintiffs and order denying motion for new trial, defendants appeal.
46 Nev. 390, 393 (1923) Page v. Walser
and order denying motion for new trial, defendants appeal. Reversed in part and affirmed
in part. Petition for rehearing denied (Coleman, J., dissenting).
Cheney, Price, Hawkins & Lunsford, for Appellants:
Taken as a whole, the pleadings show that plaintiffs are not entitled to recover or to
maintain this action. Under such circumstances a motion for judgment on the pleadings, or an
objection to any evidence, is proper. There can be no good reason for proceeding to trial in an
action where, admitting all the facts charged as true, the plaintiff is not entitled to judgment.
Kelly v. Kreiss, 9 Pac. 129-130.
The legal effect of a pleading may be tested either upon demurrer or in an appropriate
instance by a motion for judgment on the pleadings. Vickers v. Vickers, 45 Nev. 278.
In Goodrich v. Board of County Commissioners, 27 Pac. 1106, after defendants' demurrer
was overruled, defendants objected to any evidence being received, assigning as one ground
that the petition did not state facts sufficient to constitute a cause of action. The objection was
sustained and judgment entered for the defendants; upon error, affirmed.
It is the court's duty, at any time before trial, when it becomes satisfied that an erroneous
ruling has been made with respect to the sufficiency of a pleading, or other similar matter, to
promptly set aside the order and correct the error. The fact that the order was made by another
judge is a matter of no consequence whatever. Ft. Dearborn Lodge v. Kline, 3 N. E. 272;
Dowie v. Priddle, 75 N. E. 243, 245; Reilly v. Perkins, 56 Pac. 734; Russell v. Louisville &
N. R. Co., 25 S. E. 99; Blalock v. Condon, 99 Pac. 733; Sherbruner v. Strawn, 34 Pac. 405;
31 Cyc. 84, 350.
If it should be claimed that this is a stockholder's suit or action brought to enforce a
corporate right which the officers of the corporation have refused or neglected to prosecute,
the action cannot be maintained by the plaintiffs. The corporation itself is an indispensable
party defendant to a stockholder's action for the purpose of remedying a wrong which the
corporation itself should have remedied.
46 Nev. 390, 394 (1923) Page v. Walser
defendant to a stockholder's action for the purpose of remedying a wrong which the
corporation itself should have remedied. This rule is due to the fact that a similar possible
future suit by the corporation is thereby prevented, the rights of the corporation are duly
ascertained, and the remedy made effectual against the corporation as well as others.
McNeely v. Dupont, 263 Fed. 252; 2 Cook on Stock and Stockholders, sec. 738.
Individual stockholders cannot sue the officers at law for damages on the theory that they
are entitled to damages because the mismanagement has rendered their stock of less value or
worthless, for the injury is, in law, not to them individually, but to the corporationto the
stockholders collectively. Humphreys v. McKissock, 140 U. S. 304, 312; 3 Clark & Marshall,
Private Corporations, p. 2284.
A shareholder cannot sue individually for damages caused by wrongful acts impairing the
value of his shares through the invasion of the corporate or collective rights. Wells v. Dane,
63 Atl. 324.
Cogswell v. Bull, 39 Cal. 320, was an action to recover of the defendants, officers of a
corporation, and to compel said defendants to account for and refund certain moneys of the
corporation alleged to have been misappropriated by the defendants. The demurrer to the
complaint, upon the ground that it did not state facts sufficient to constitute a cause of action,
was sustained upon the grounds that the action should have been instituted in the name of the
corporation; that the plaintiff as a stockholder had no cause of action against the defendants;
the demurrer was sustained without leave to plaintiff to amend. Upon appeal, affirmed.
The complaint does not state facts sufficient to constitute a cause of action. Neilsen v.
Rebard, 43 Nev. 274.
In the absence of a market for stocks, proof may be made of the price paid for them in a
bona-fide transaction; but it is otherwise as to the price paid for exceptional reasons or at a
remote period, though the latter objection is not forceful if there has been but little variation
in the dividends paid.
46 Nev. 390, 395 (1923) Page v. Walser
variation in the dividends paid. Contracts for options may also be shown. 13 Ency. Ev., pp.
526-528, 541-542.
Hoyt, Norcross, Thatcher, Woodburn & Henley, for Respondents:
To hold that appellants could take from respondents their property and under the absolute
power of attorney in fact change the form of that property into the stock of another
corporation, and thus relieve themselves from direct accountability for the violation, not only
of contractual obligations but a trust relation, would be a travesty upon justice. Courts,
fortunately, have not rendered themselves powerless to grant relief in cases of this kind. Upon
the contrary, the courts disregard corporate entity whenever necessary to grant justice to
individuals. Fletcher, Cyc. Corp., vol. 1, sec. 42, et seq.; Linn v. Lone Timber Co., 196 Fed.
593, 181 Fed. 545; U. S. v. Milwaukee R. T. Co., 142 Fed. 247, 255; Carigus v. Int. Agr. Co.,
159 N. Y. App. Div. 880; Armour v. Bennett's Sons, 123 Fed. 56; Bennett v. Minott, 44 Pac.
288, 39 Pac. 997; Higgins v. Calif. Co., 81 Pac. 1070.
The doctrine of separate existence may be carried too far, and it is properly disregarded in
cases of fraud, circumvention of contract, state or public wrong, monopoly, and like
instances. Fletcher, Cyc. Corp., vol. 1, sec. 42, p. 57; U. S. v. Milwaukee R. T. Co., 142 Fed.
247, 255.
Modern cases, sustained by the best text-writers, have repudiated the fiction of ideal legal
entity to a duly formed corporation in all cases where it has been insisted on as a protection to
fraud or illegal transactions. First Nat. Bank v. F. C. Trebein Co., 52 N. E. 387.
In equity, the relationship between the shareholders is recognized whenever this becomes
necessary to the attainment of justice. Mor. Priv. Corp. 227; Railway Co. v. Miller, 51 N. W.
982; Gas Co. v. West, 50 Iowa, 16; Booth v. Brunce, 33 N. Y. 139; Bennett v. Minott, 44
Pac. 288.
46 Nev. 390, 396 (1923) Page v. Walser
Even if the corporation be regarded as the real debtor, and the appellant as only its agent,
yet, inasmuch as he was guilty of the fraud perpetrated upon appellee, the law will hold him
liable. Donnovan v. Purtell, 75 N. E. 334; State v. Standard Oil Co., 30 N. E. 279.
This case has twice reached this court; once by way of an original proceeding in
prohibition, instituted by the present appellants to have the lower court prohibited from
proceeding to try the case upon its merits by reason of misjoinder of causes of action, in
violation of an express inhibition of the civil practice act. On rehearing, the demurrer to the
petition for the writ was sustained and the proceeding dismissed, for the reason that, while
separate causes of action were stated in the complaint, they were a part of one cause of action.
42 Nev. 111, 173 Pac. 1149, 190 Pac. 492. The case was again appealed from an order
denying the present appellants' application for a change of venue, which said order was
affirmed. 43 Nev. 422, 187 Pac. 509. The case is now before us on appeal from a joint and
several judgment, and also from an order denying and overruling the defendants' joint and
separate motion made for a new trial.
The pleadings as amended purport to narrow the issues to but two causes of action, instead
of five, as contained in the original complaint. The case was tried without the assistance of a
jury, and the court decided the facts to be as stated in the first nineteen paragraphs of the
complaint. Its decision is supplemented by formal findings of fact and conclusions of law,
upon which the joint and several judgment, sounding in damages, was rendered in favor of
plaintiffs and against the defendants, and each of them, for the sum of $10,200, with interest
on $833.33 thereof from the 11th day of March, 1913, and for costs of suit, taxed at $307.55.
46 Nev. 390, 397 (1923) Page v. Walser
While it is obvious from the pleadings and course of the litigation that the object most
sought to be accomplished by this action was to recover judgment against the defendants for
281,250 shares of the capital stock of the Nevada Packard Mines Company, or its value, to
wit, $140,625, together with the sum of $25,312.50 received as dividends thereon, by reason
of the findings and conclusions, limiting and confining plaintiffs' recovery to a judgment,
sounding in damages, for the loss of plaintiffs' interest in 281,000 shares of the capital stock
of the Limerick Consolidated Mines Company, all questions of law and fact that bear upon
the issue as to the capital stock of the Nevada Packard Mines Company disappear on this
appeal.
Referring to the parties as they stood in the court below, it is conceded that the action is
grounded upon two agreements. The first or primary agreement bears date on December 21,
1912, between the defendant Mark Walser and plaintiffs. The second agreement, dated
December 27, 1912, is between the two defendants, in which the primary agreement is
referred to and made a part. We shall not recite the agreements, but for clearness will state
their pertinent terms.
The defendant Walser agreed with the Pages, as an attorney at law, that in consideration of
their sale and assignment outright to him of an undivided two-thirds interest of plaintiffs,
vested or prospective, in their stock holdings and claims of whatever nature in the
corporations named in the contract, to wit, the Indian Consolidated Mines Company of South
Dakota, the Indian Consolidated Mines Company of Nevada, the Limerick Mining Company,
and the Limerick Townsite Company, he would commence and maintain at his own expense,
all actions at law necessary to clear the title to the interests that the Pages (plaintiffs) may
have or be entitled to in said corporations, and defend at his own expense, and without
charge, all actions that might be brought against them because of the connections with said
corporations, and that he would in addition advance and pay all moneys required to
protect the property, free it from liens, and protect the other claimants; it being
understood that the Pages were to have an undivided one-third interest in and to
everything recovered from said companies.
46 Nev. 390, 398 (1923) Page v. Walser
said corporations, and that he would in addition advance and pay all moneys required to
protect the property, free it from liens, and protect the other claimants; it being understood
that the Pages were to have an undivided one-third interest in and to everything recovered
from said companies. On December 27, 1912, the defendant Walser, by and with the consent
of plaintiffs, agreed with his codefendant Margrave that, in consideration of his advancing to
him $150 to carry the matters set forth in his contract with the Pages to a successful ending,
he would sell and assign, and did sell and assign, to Margrave an undivided one-half interest
in his part of the contract with the Pages, being one-third of the whole.
The district court found the facts to be, in substance, as follows: That at or about the time
of the execution of the agreement of date December 21, 1912, plaintiffs delivered to the
defendant Walser all their stocks in the several corporations mentioned in said agreement,
being of the amount of 689,000 shares, including 250,000 shares of the capital stock of the
Indian Consolidated Mines Company of South Dakota, found to be the successor in interest
of the other corporations named in said agreement; that defendant so used and manipulated
said stock collectively as to cause all rights and interest represented thereby to be transformed
into, and become all the stock, property, rights and interests of the North Rochester Mines
Company; that on March 11, 1913, the North Rochester Mines Company agreed to convey,
and did convey, to the Limerick Consolidated Mines Company all its property, consisting of a
group of mining claims, situated in the Rochester Mining District, Humboldt County, in
consideration for which conveyance the Limerick Consolidated Mines Company agreed to
issue, and did issue, in the name of the North Rochester Mines Company, 300,000 shares of
its capital stock, and paid as a part of said consideration $2,500 in money, which said sum
was, upon demand of defendant, paid direct to them; that on March 11, 1913, the defendant
Walser, acting for the North Rochester Company and plaintiffs and defendants, entered into
an agreement with the Limerick Consolidated Mines Company to pool with all the
promotion stock of the corporation the stock issued to the North Rochester Mines
Company until the 15th day of September, 1913; that plaintiffs and defendants, by virtue
of the agreement of date December 21, 1912, were the owners of said 2S1,000 shares of
the capital stock of the Limerick Consolidated Mines Company; that defendants, on the
expiration of the pool agreement, failed to withdraw, or cause to be withdrawn, said
stock, but permitted it to remain with the trustee, in whose hands it was attached, and in
July, 1914, after notice to defendants, was sold under execution to satisfy a debt against
the North Rochester Mines Company, and that by reason of said execution sale the
interests of plaintiffs in said stock became thereby wholly lost; that plaintiffs had no
knowledge of the specific terms of the pool agreement, and no knowledge that the stock
had been levied upon or sold until February, 1917; that at the time the stock was so
issued, pooled and sold, as aforesaid, it was of the value of 10 cents per share, and that
plaintiffs were damaged by reason of its sale and the loss of their interests therein in the
sum of $9,333.33; that defendants did not notify plaintiffs of, nor account to them for, the
said $2,500 paid to defendants on account of the consideration for the conveyance of the
property of the North Rochester Mines Company to the Limerick Consolidated Mines
Company on or about the 11th day of March, 1913, and plaintiffs did not learn that any
such payment had ever been made, or that defendants had received any such sum on
account of such sale until on or about the ____day of February, 1917.
46 Nev. 390, 399 (1923) Page v. Walser
agreement with the Limerick Consolidated Mines Company to pool with all the promotion
stock of the corporation the stock issued to the North Rochester Mines Company until the
15th day of September, 1913; that plaintiffs and defendants, by virtue of the agreement of
date December 21, 1912, were the owners of said 281,000 shares of the capital stock of the
Limerick Consolidated Mines Company; that defendants, on the expiration of the pool
agreement, failed to withdraw, or cause to be withdrawn, said stock, but permitted it to
remain with the trustee, in whose hands it was attached, and in July, 1914, after notice to
defendants, was sold under execution to satisfy a debt against the North Rochester Mines
Company, and that by reason of said execution sale the interests of plaintiffs in said stock
became thereby wholly lost; that plaintiffs had no knowledge of the specific terms of the pool
agreement, and no knowledge that the stock had been levied upon or sold until February,
1917; that at the time the stock was so issued, pooled and sold, as aforesaid, it was of the
value of 10 cents per share, and that plaintiffs were damaged by reason of its sale and the loss
of their interests therein in the sum of $9,333.33; that defendants did not notify plaintiffs of,
nor account to them for, the said $2,500 paid to defendants on account of the consideration
for the conveyance of the property of the North Rochester Mines Company to the Limerick
Consolidated Mines Company on or about the 11th day of March, 1913, and plaintiffs did not
learn that any such payment had ever been made, or that defendants had received any such
sum on account of such sale until on or about the ____day of February, 1917.
That thirty-two assignments of error, covering a record of 1,100 pages by a printed brief,
may, for convenience, be grouped under three headings: First, that the judgment is against
law; second, that the evidence does not support the findings, nor the findings the judgment;
third, that the joint and several judgment is erroneous.
1, 2. The first specification of error is that the court erred in overruling the demurrer to the
complaint, the defendants' motion for judgment on the pleadings, and their objection to
the admission of any testimony or evidence on behalf of plaintiffs.
46 Nev. 390, 400 (1923) Page v. Walser
defendants' motion for judgment on the pleadings, and their objection to the admission of any
testimony or evidence on behalf of plaintiffs. The exceptions to these rulings were preserved
throughout the trial and are made the principal and leading assignment of errors. It is strongly
argued that the complaint does not state facts sufficient to constitute a cause of action in that
it appears that plaintiffs' cause of action is grounded upon an alleged wrong or injury resulting
from the sale of 281,000 shares of the capital stock of the Limerick Consolidated Mines
Company, issued to the North Rochester Mines Company in consideration of the latter's
conveyance to the former of all its property, rights, title, and interest in and to a group of
mining claims located and situate in the Rochester Mining District, Humboldt County; that
said stock so issued was, upon the ____ day of July, 1914, sold under execution to satisfy a
judgment of a third party against said North Rochester Mines Company, and, if any cause of
action is stated, it is one in favor of said North Rochester Mines Company, and not the
plaintiffs; that said corporation is an indispensable party, and is not made a party to the
action.
This position can only be attributed to counsel's misconception of the nature of the action.
There would be force to the contention if the action were or could be said to be derivative in
its nature. Plaintiffs do not sue in their representative capacity as stockholders; neither does
the complaint contain sufficient allegations to support an action as one brought by an
individual stockholder in his representative capacity for the restoration of stock lost to the
corporation through the neglect of the defendants, or for the wrongful diversion of money of
the corporation. From an analysis of the pleadings, made with no little difficulty, the plaintiffs
have alleged that they had an interest in the stock sold under execution by virtue of the
contract of December 21, 1912. It is true their interest appears to be doubtful and uncertain,
yet, the action being grounded upon a contract, and plaintiffs shown to have an interest in
its performance, they are entitled to recover damages sustained by its nonperformance.
46 Nev. 390, 401 (1923) Page v. Walser
a contract, and plaintiffs shown to have an interest in its performance, they are entitled to
recover damages sustained by its nonperformance. State v. Rhoades, 7 Nev. 434. It is argued
further in this connection that, since it appears affirmatively from the complaint that the stock
sold was in fact the property of the North Rochester Mines Company, the case comes within
the rule that real or personal property conveyed to or acquired by a corporation is in law the
property of the corporation as a distinct legal entity, and the stock involved was in no sense
the property of plaintiffs, but that of the corporation, and they are in no position to sue in their
individual capacity for its loss without making the corporation a party. The difficulty with this
position is that defendants close their eyes to the full scope and meaning of their undertaking
fixed by their obligation of December 21, 1912, whereby the defendant Walser agreed to
ascertain and to establish, by litigation or otherwise, at his own cost and expense, plaintiffs'
interests, whatever they may have been, in the several corporations named in the agreement,
and to protect the property, free it from liens, and protect it from other claimants. If, as
charged in the complaint, plaintiffs' interests as aforesaid were so manipulated by the
defendants in furtherance of the undertaking as to be transformed into the stock of the North
Rochester Mines Company and into the stock of the Limerick Consolidated Mines Company
and wholly lost, plaintiffs could maintain an action for the detriment proximately caused by
the defendants' neglect or breach of duty imposed by their obligation, without making the
North Rochester Mines Company a party.
3. It is further argued that the only relief demanded by the complaint was to recover
judgment against the defendants for a specified number of shares of the capital stock of two
corporations, or its value, and no attempt was made to recover damages. It is contended that
this state of the pleading brings the case within the facts and law of the case of Nielsen v.
Rebard, 43 Nev. 274, 1S3 Pac.
46 Nev. 390, 402 (1923) Page v. Walser
Nev. 274, 183 Pac. 984. This position is untenable. The relief granted to a plaintiff, where
there is no answer, shall not exceed that which he shall have demanded in his complaint; but
in any other case the court may grant him any relief consistent with the case made by the
complaint and embraced within the issue. Rev. Laws, 5241. We are of the opinion that the
relief by way of damages was consistent with the case made by the complaint, and was
embraced within the issue. Therefore the case of Neilsen v. Rebard, where it was held that the
complaint stated no cause of action, has no application. On the facts alleged in the complaint
the district court could not have done otherwise that to overrule the demurrer, the motion for
judgment on the pleadings, and the objection to the introduction of any evidence on the part
of plaintiffs.
Beyond other legal questions involved, the case presents this situation: The mining
companies named in the contract of December 21, 1912, were the outgrowth of a mining
boom in the Rochester Mining District. Plaintiffs, husband and wife, two very old people,
past 80 years of age, made an investment of $10,000 in 250,000 shares of the capital stock of
the Indian Consolidated Mines Company of South Dakota. This corporation was the
successor of all the property interests of the other corporations named in their contract with
the defendant Walser. R. S. Page was the president of the corporation, and said 250,000
shares of its capital stock was delivered into the possession of the defendant Walser under
said contract. Prior to the making of this contract, the North Rochester Mines Company was
organized, with a capitalization of 1,000,000 shares, ostensibly for the purpose of taking over
all the property rights of the several corporations named in the contract as a method, through
the distribution of its stock in the warring factions and claimants to all and parts of the stock
and property of the several corporations named in the contract, of settling and harmonizing
their differences. This plan of settlement under its then directorate failed of consummation.
46 Nev. 390, 403 (1923) Page v. Walser
When the defendants became interested under their contract, they were made officers and
directors of the North Rochester Mines Company with plaintiff R. S. Page, who was its
president. On February 14, 1913, all of said corporations, except the Limerick Townsite
Company, transferred and conveyed all their property, rights, titles, and interests in and to a
group of mining claims to the North Rochester Mines Company, in consideration of the
issuance to a single trustee for each of said companies of 500,000 shares of its treasury stock
to be delivered by said trustee to said corporations as their interests might appear. The
Limerick Consolidated Mines Company claimed title to, and was in possession of, some of
the mining claims so conveyed to the North Rochester Mines Company. As a result of its
conflicting locations with those of the North Rochester Mines Company, and in settlement
thereof, the latter, as found by the trial court, conveyed all its property interests therein to the
Limerick Consolidated Mines company, in consideration for which conveyance it issued to
the North Rochester Mines Company 300,000 shares of its capital stock, of which, as found
by the trial court, 281,000 shares were deposited in pool for the purpose of creating a market
for the stock so pooled. It is significant that when the stock was delivered under the pool
agreement to the trustee named therein, the defendant Walser deposited with the trustee his
contract, or a copy thereof, entered into by him with plaintiffs, and notified the trustee, in the
form of a letter, that he was the owner of 200,000 shares of the 300,000 so deposited and
issued in the name of the North Rochester Mines Company. The stock, after the expiration of
the pool, was attached in the hands of the trustee to secure the payment of a debt for the sum
of $440, contracted by the defendants under their authority as officers of the North Rochester
Mines Company, of which attachment the defendant Walser had notice. In July, 1914, the
attached stock was sold under execution for said debt, and the Limerick Consolidated Mines
Company became the purchaser at the price of $440, the cost of the action bringing the
amount paid up to about $500.
46 Nev. 390, 404 (1923) Page v. Walser
the price of $440, the cost of the action bringing the amount paid up to about $500. The
testimony of the two defendants, as witnesses in their own behalf, tends to show that the
defendant Margrave, on February 26, 1913, resigned his office in the North Rochester Mines
Company, and verbally notified his codefendant and plaintiff R. S. Page that the property of
the corporation was of no value, and that the conflicting and complicated affairs of the
company were such that he had quit, was through with his undertaking, and had no further
interest in the matter. On the same day, the defendant Walser made a written report to the
directors of the company, picturing the horrible situation of its affairs, and advised the
directors that in his opinion an earnest effort should be made to sell out all that we own and
try and save something for all concerned, stating, in substance, that he had expended $636 in
a futile effort to settle and harmonize the numerous differences of the stockholders and
claimants to its property, which, in his opinion, was worthless, and, if it should be determined
to continue litigation, that some means of raising money must be devised, as he could not and
would not advance any more of his own funds, and so notified plaintiffs. The evidence, on the
part of defendants, tends to show that Margrave, after his withdrawal from his agreement,
became an active agent in bringing about the sale of the property on March 11, 1913.
Margrave testified, in substance, that, pursuant to a prearranged agreement between him and
the Limerick Consolidated Mines Company, 25,000 shares of its capital stock was issued to
him as and for a commission, which, on delivery, was immediately transferred by him to the
Associated Mines Development Company for the price of $2,500.
Upon this state of facts the defendants make two contentions: One that, with notice to
plaintiffs and for justifiable and sufficient reasons, they terminated their contract of December
21, 1912, and abandoned their undertaking; and the other that, if plaintiffs had any interest or
valid claim to the stock, or any part thereof, sold under execution, such stock was of no
value, and no damage resulted to plaintiffs in any manner from its forced sale.
46 Nev. 390, 405 (1923) Page v. Walser
interest or valid claim to the stock, or any part thereof, sold under execution, such stock was
of no value, and no damage resulted to plaintiffs in any manner from its forced sale.
4. It is the contention of the defendant Walser that on February 26 the contract between
him and plaintiffs was terminated, and all that he did thereafter was as an officer and
employee of the North Rochester Mines Company, and not under and in virtue of his contract
with plaintiffs. Generally speaking, an attorney who has been employed generally to conduct
legal proceedings enters into an entire contract to conduct them to their termination; and he
cannot abandon the service to his client's detriment. Usually he has a right to withdraw with
his client's consent; but without such consent withdrawal will only be permitted for justifiable
cause. Thornton on Attorneys at Law, sec. 139. The defendant Walser, an experienced
attorney, did not bring himself within this well-established rule. Were we so disposed, we
might indulge in harsh criticism, even though he acted openly and not deceitfully with his
clients. Suffice to say, as long as his contract remained executory he could not consistently
appeal to the court to absolve him from his continuous obligation by permitting him to
assume an antagonistic attitude towards his clients under cover of the North Rochester Mines
Company, into which, by his own manipulations, their interests had become lodged. The case,
however, as to the defendant Margrave is different, and will be considered when we reach the
discussion of the validity of the joint and several judgment.
The two basic findings in the case are: First, that plaintiffs and defendants were, in virtue
of the contract of December 21, 1912, the owners of the 281,000 shares of the capital stock of
the Limerick Consolidated Mines Company, issued to the North Rochester Mines Company
in consideration for the conveyance of the latter's property; second, that the stock was, at the
time of sale under execution, worth 10 cents per share, and plaintiffs were damaged
thereby in the sum of $9,333.33
46 Nev. 390, 406 (1923) Page v. Walser
share, and plaintiffs were damaged thereby in the sum of $9,333.33
5. There is no possible basis for the first finding in law or fact. It is the general rule that
the real or personal property and choses in action, conveyed to or acquired by a corporation,
are in law the property of the corporation as a distinct legal entity, and not in any sense the
property of its members or stockholders. 14 C. J., sec. 7, p. 54; 1 Cook on Stock and
Stockholders, sec. 6, p. 9. Conceding that plaintiffs and defendants had an uncertain,
undefined interest in the several corporations named in the contract, which was so
manipulated by the defendant Walser as to be transformed into the North Rochester Mines
Company and subsequently converted into the stock issued in its name by the Limerick
Consolidated Mines Company, we are unable to see upon what theory it can be legally
assumed that the contract entitled or gave the parties any more or better right to claim as
owners the entire stock so issued than the corporation itself, its stockholder or creditors. It is
true the parties, and particularly the defendant Walser, claimed ownership of the stock under
the contract, but this was a matter of conclusion or inference on their part, and gave no facts
of any materiality or significance on which to base a finding that plaintiffs and defendants
were the owners, in virtue of their contract, of the entire consideration paid for the corporate
property. Their interests in the stock were the same after as before the sale and conveyance.
As to what interest the parties had in the stock we pass no opinion.
6. Coming to the consideration of the second finding, the evidence leaves no doubt of the
fact that at the time of its sale under execution the stock was not worth 10 cents per share, or
any certain sum. The Limerick Consolidated Mines Company was not the owner of a
developed and producing mine, but it was the holder of certain mining claims, mere
prospects, of some future, if not immediate present, worth. But its stock was not dealt in
either by brokers or individuals, and at the time of sale it had no such thing as a market
value.
46 Nev. 390, 407 (1923) Page v. Walser
at the time of sale it had no such thing as a market value. To prove its actual or real value,
evidence of the potential value of the company's mining ground, then undergoing
development, was taken as an element of proof to be considered in ascertaining the actual
value of its stock. Conceding, but not deciding, that, in the absence of market value, evidence
of the potential value of mining ground may be an element of proof to be considered in
ascertaining the value of the stock of a mining corporation, we are of the opinion that
plaintiffs' uncertain estimates and calculations of the value of the particular mining claims to
prove the actual value of the stock cannot be considered as reaching the rank of conflicting
evidence. There must me proof of value or evidence of such facts as will warrant a
deduction of the value with reasonable certainty. Watt v. Railroad Co., 23 Nev. 154, 44 Pac.
423, 46 Pac. 52, 726, 62 Am. St. Rep. 772. If there was any element of proof of the value of
the stock calculated upon the basis of the value of the ground, it was so uncertain,
speculative, conjectural, and so highly contingent no court or jury could reasonably and
intelligently draw any conclusion as to the real or actual value of the stock of the corporation.
7, 8. It is argued on behalf of plaintiffs that at the time of sale of property interests of the
North Rochester Mines Company to the Limerick Consolidated Mines Company the latter
was without funds, and to raise the $2,500 cash necessary to complete the purchase the
Associated Mines Development Company purchased 25,000 shares of the treasury stock of
the Limerick Consolidated Mines Company, paying therefore 10 cents per share, or $2,500,
and that this transaction fixes the actual value of the 281,000 shares at 10 cents per share.
Where there is no market value, proof may be given of transactions in the particular stock,
and the prices at which the stock has been sold or optioned, to show its actual value.
Moynahan v. Prentiss, 10 Colo. App. 295, 51 Pac. 94. The evidence bearing on the
transaction tends to show that the sale of the 25,000 shares of stock at 10 cents per share
was the result of the prearranged plan between the Limerick Consolidated Mines
Company and the Associated Mines Development Company.
46 Nev. 390, 408 (1923) Page v. Walser
tends to show that the sale of the 25,000 shares of stock at 10 cents per share was the result of
the prearranged plan between the Limerick Consolidated Mines Company and the Associated
Mines Development Company. The former being without funds, the latter, being, in fact and
in truth, the owner of its assets, which had not been transferred, advanced out of its own
treasury the sum of $2,500 with which to buy the particular 25,000 shares, in order that the
Limerick Consolidated Mines Company might complete the purchase. In this situation we are
of the opinion that the sale was not a bona-fide one, and therefore not relevant to show the
actual value of the 281,000 shares.
9. Being of the opinion that the actual value of the stock sold under execution was not
established, and in the absence of evidence to show that plaintiffs sustained any actual
damage from its forced sale, the joint and several judgment for the sum of $9,333.33, as
damages, must be reduced to that of a nominal sum. 5 Fletcher, Cyc. sec. 3453.
10-12. The joint and several judgment for the sum of $9,333.33 is erroneous. The
evidence bearing thereon, practically without conflict, supports the contention of the
defendant Margrave that long prior to the sale of said 281,000 shares of stock he had
withdrawn from his agreement to finance his codefendant Walser, and had abandoned his
undertaking, and so notified R.S. Page and his codefendant. It is argued on behalf of plaintiffs
that, since Margrave took his interest in the contract of December 21, 1912, through Walser,
with knowledge of the relationship of attorney and client existing between Walser and the
Pages, Margrave, therefore, is in no better position than Walser. This contention is untenable.
The employment of an attorney implies a personal confidence and trust which he cannot
delegate to another. We do not see how Margrave's mere knowledge of Walser's relations to
the Pages obligated or made him accountable to them as their attorney. This conclusion,
however, has no application to the defendant Walser, who is responsible to plaintiffs for
the detriment proximately caused by his failure to perform his undertaking fixed by his
contract with plaintiffs.
46 Nev. 390, 409 (1923) Page v. Walser
conclusion, however, has no application to the defendant Walser, who is responsible to
plaintiffs for the detriment proximately caused by his failure to perform his undertaking fixed
by his contract with plaintiffs. Lane v. Starke, 10 Cal. App. 352, 101 Pac. 937. But, as we are
of the opinion that no damage is shown to have resulted to plaintiffs from the breach by him
of his contract, under the rule, their damage must be confined to that of a nominal sum.
McLellan v. Fuller, Ann. Cas. 1917b, note III, 38.
13, 14. Coming to the consideration of that portion of the judgment for $833.33, with
interest thereon from March 11, 1913, and treating it as a judgment for money had and
received, we find the evidence quite conflicting. The court found the fact to be that
defendants received $2,500 in money in addition to the stock consideration paid for the sale
and conveyance of the property of the North Rochester Mines Company, and defendant failed
to account to plaintiffs for their portion thereof, to wit, $833.33. There is a radical difference
between the witnesses as to how, under what circumstances, and for what purpose said sum
of $2,500 was paid. There being a substantial conflict in the evidence, and it not appearing
that a wrong conclusion was reached,we are not authorized under the rule to substitute our
judgment for that of the trial court. It does not necessarily follow, because we are of opinion
that the evidence fails to show that the defendant Margrave was in no sense responsible to
plaintiffs for the loss of their entire interest in the stock confided to the care and skill of the
defendant Walser, that he could not have participated in the money consideration, if there was
such consideration.
Entertaining these views, extended to an embarrassing length, it is ordered: First, that the
judgment against the defendant Frank Margrave, for the sum of $9,333.33 as damages, be
reversed it its entirety; second, that the judgment against the defendant Mark Walser, for the
sum of $9,333.33, as damages, be reversed, and the cause remanded to the district court,
with directions to render judgment against him for a nominal sum; third, that the joint
and several judgment against the defendants, and each of them, for the sum of $S33.33,
with legal interest from March 11, 1913, be affirmed.
46 Nev. 390, 410 (1923) Page v. Walser
Walser, for the sum of $9,333.33, as damages, be reversed, and the cause remanded to the
district court, with directions to render judgment against him for a nominal sum; third, that
the joint and several judgment against the defendants, and each of them, for the sum of
$833.33, with legal interest from March 11, 1913, be affirmed.
Per Curiam:
Rehearing denied.
Coleman, J.: I dissent.
____________
[No. 2563]
THE STATE OF NEVADA, Ex Rel. LOUIS MONGOLO, Et Al., Petitioners, v. THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, Judge T.C.
HART, Presiding, and GIOVANNI BOTTINI, Respondents.
[211 Pac. 105]
1. InjunctionAffidavit Showing Breach of Injunction Sufficient, though Tested by
Proceeding in Prohibition Rather than on Certiorari.
An affidavit that defendants had continued to enlarge a ditch across plaintiff's ranch in violation of an
injunction held sufficient to confer jurisdiction on the court to proceed against them for contempt, under
Rev. Laws, 5396, as amended by Stats. 1913, c. 94, requiring that the affidavit present the facts
constituting the contempt, though tested by an original proceeding in prohibition rather than on certiorari,
in which there is no chance to amend the affidavit; lack of jurisdiction being the only ground on which
either writ will issue.
2. Waters and WatercoursesNo Jurisdiction to Grant Mandatory Injunction where Complaint
Shows Existence of Adequate Remedy at Law.
Where the complaint, in a suit to restrain further enlargement of an irrigation ditch across plaintiff's
land by owners of water conducted thereby, alleged the damage already done, and such issue was
submitted to the jury for a special finding, the court had no jurisdiction to grant a mandatory injunction,
though the complaint prayed that defendants be required to restore the ditch to its original size, and the
amount of damages assessed was finally disallowed by the court; the allegations of the complaint showing
that plaintiff had an adequate remedy at law.
Original proceeding in prohibition by the State of Nevada, on the relation of Louis
Mongolo and others, to restrain the Second Judicial District Court and another from inquiring
into a charge of contempt. Alternative writ modified and made permanent. Petition for
rehearing denied.
McCarran & Mashburn and J. W. Dignan, for Relators:
Prohibition is the proper remedy where an inferior court attempts to proceed in excess of
its authority. Cline v. Langan, 31 Nev. 239; Golden v. District Court, 31 Nev. 250;
McKinnon v. Harwood, 35 Nev. 494; State ex rel. Powhatan Co. v. Ritz, 9 L. R. A. (N.S.)
1231.
The affidavit must set forth the facts constituting the contempt. It will not be presumed
that the accused is guilty of some act not specifically alleged. Schwartz v. Superior Court, 43
Pac. 580; Berger v. Superior Court, 167 Pac. 143.
The proceedings are void ab initio if the affidavit is defective. Frowley v. Superior Court,
110 Pac. 817; Lutz v. District Court, 29 Nev. 152.
Before a court of chancery can interfere, one must show he as no adequate remedy at law.
DeWitt v. Hays, 56 Am. Dec. 352, 14 R. C. L. 339-340; Conley v. Chedic, 6 Nev. 222.
The writ of injunction may not be used to harass or annoy, especially if the injury is
measurable in dollars and the defendant can respond. A. T. & S. F. Ry. Co. v. Meyers, 64
Pac. 597, 22 Cyc. 928.
Injunctions should not be granted which are inequitable, contrary to real justice, against
good conscience, productive of hardship, oppression, injustice, or public or private mischief.
14 R. C. L. 309.
A court cannot, though it have jurisdiction of the subject-matter and the parties, go beyond
the issues raised and pass upon a matter not submitted for its decision. Newman v. Bullock,
47 Pac. 379, 15 R. C. L. 853; Windsor v. McVeigh, 23 L. Ed. 917.
Where the plaintiff has an adequate remedy at law, equity jurisdiction is not conferred by
failure of defendant to question the jurisdiction.
defendant to question the jurisdiction. Fulton Co. v. Twombly, 42 Pac. 253.
Huskey & Kuklinski, for Respondents:
This action is authorized under sections 5504 and 5137 of the Revised Laws of 1912.
In Thomas v. Blaisdell, 25, Nev. 223, very similar to this case, the court ordered the
restoration of the box, though its cost could probably have been ascertained, the court
realizing that the plaintiff was entitled to the undisturbed possession and enjoyment of the
estate. It is the duty of the owner of the easement to make all necessary repair. Washburn on
Easements (3d ed.) 686.
The power of a court of equity to grant mandatory injunctions is generally recognized, in
the exercise of sound judicial discretion. Coombs. v. Lenox Realty Co., 111 Me. 178, 42 L.
R. A. (N.S.) 1085, 14 R. C. L. 315, 445.
The rule in Fulton Co. v. Twombly, 42 Pac. 253, cited by counsel, it not applicable where
the procedure is different, and was calmly disregarded in Wilson v. Eagelson, 76 Pac. 616.
Mandatory injunctions may issue to abate a nuisance. Wiel on Water RIghts (3d ed.) 712;
3 Kinney on Irrigation (2d ed.) 2961, 2928.
An affidavit is sufficient which clearly apprises the defendant of what he is charged.
Golden State v. Superior Court, 65 Cal. 187; Strait v. Williams, 18 Nev. 430.
Prohibition is not justified unless other remedies are inadequate (O'Brien v. Commissioners,
41 Nev. 91; Silver Peak v. District Court, 33 Nev. 97; State v. District Court, 39 Nev. 323);
or to prevent anticipated errors (Kinard v. Police Court, 2 Cal. App. 179, 83 Pac. 175); or
where there is an adequate remedy, either by appeal (Hill v. Superior Court, 131 Pac. 1061) or
by certiorari (Maxwell v. Rives, 11 Nev. 213; Phillips v. Welch, 12 Nev. 158); or where
greater harm would be done by its issue than would be prevented by its operation (People v.
McCue, 76 N. Y. St. 485; 77 N. Y. St. 451).
This is an original proceeding in prohibition to restrain the respondent court from
inquiring into a charge of contempt. The petition alleges that on a given date the petitioners
were cited to show cause why they should not be punished for contempt of court for a failure,
neglect and refusal to comply with a judgment and decree thereof, a copy of which is attached
to and made a part of the petition, as well as is a copy of the complaint in the suit in which the
decree was rendered.
Omitting some preliminary and nonessential allegations in the petition, it is alleged:
That thereupon relators herein filed their motion to quash and set aside said show-cause
order and dismiss said proceeding, upon the grounds and for the reason that the affidavit upon
which said show-cause order was based failed to state any facts sufficient to constitute a
cause of action or a charge of contempt against relators, or either or any of them; that the
court was without jurisdiction of the subject-matter or the persons of the defendants, for the
reason that the judgment upon which said proceeding was based was void upon its face. And
relators then and there moved to strike out and from the files the whole of said affidavit, upon
the grounds and for the reason that the said affidavit, and the whole thereof, was sham,
frivolous, irrelevant, and immaterial, and contained no statement of any fact or facts which
charged the commission of any contempt of court against the relators herein, or either or any
of them. And relators further moved to strike out portions of said affidavit upon the grounds
that such portions were sham, frivolous, and irrelevant.
It is further alleged that the court, after a hearing upon said motions, refused to quash and
set aside said contempt proceedings, or to strike any of the matter objected to, except certain
minor and immaterial portions, and entered an order setting said contempt proceedings for
hearing, and that the said court will proceed to hear the same, and will
without power, right, authority, or jurisdiction so to do, wrongfully adjudge these
petitioners guilty of contempt of court, and will make and cause to be entered against
these petitioners a void judgment which will subject petitioners to wrongful and illegal
obligations and punishment as for contempt of court, and thus and by means thereof
subject petitioners to a loss of property rights without due or any process of law, and
subject petitioners to a void judgment depriving them of their liberty without due or any
process of law."
do, wrongfully adjudge these petitioners guilty of contempt of court, and will make and cause
to be entered against these petitioners a void judgment which will subject petitioners to
wrongful and illegal obligations and punishment as for contempt of court, and thus and by
means thereof subject petitioners to a loss of property rights without due or any process of
law, and subject petitioners to a void judgment depriving them of their liberty without due or
any process of law.
In support of the petition for the writ, counsel urge two points: (1) That the affidavit upon
which the show-cause order was sought and issued fails to state any facts showing any
violation of that portion of the injunction embodied in the decree restraining the petitioners
from future acts of trespass upon the property of the plaintiff in the suit in which the decree
was entered; and (2) that the affidavit charging a violation of the mandatory portion of the
injunction in said suit was insufficient to give the court jurisdiction to proceed, and, further,
that the mandatory portion of the decree is void for want of power in the court to enter it.
As to the first point, it must be borne in mind that the suit out of which the contempt
proceedings grew was one in which the plaintiff alleged that he was the owner of a tract of
land of forty-two acres, across which an irrigation ditch ran, which served to conduct water
owned and used by the defendants in the action (petitions here) to irrigate their lands, and that
in the course of the enjoyment of such right they had entered upon the 42-acre tract, and,
among other things, greatly enlarged said ditch and threatened, and, if unrestrained, would
continue to enlarge the same, to the great damage of the owner.
Upon the trial of the case the court found the issues in favor of plaintiff and ordered a
decree restraining the defendants from further enlarging the ditch, and commanding them to
restore it to its original size and capacity. The affidavit for contempt charges, among other
things: "That said defendants and each of them have continued to further enlarge said
Sessions ditch within the limits of plaintiff's ranch; that said defendants have wholly
failed and neglected and have refused to restore that portion of said Sessions ditch,
ordered restored to its former dimensions by the judgment and decree as aforesaid in this
action."
That said defendants and each of them have continued to further enlarge said Sessions
ditch within the limits of plaintiff's ranch; that said defendants have wholly failed and
neglected and have refused to restore that portion of said Sessions ditch, ordered restored to
its former dimensions by the judgment and decree as aforesaid in this action.
1. It is conceded by counsel for petitioners that the judgment in the water suit constitutes a
basis sufficient to support the charge of contempt for a violation of the restraining portion of
the injunctive relief granted in that matter. Let us see if the affidavit, wherein it is sought to
charge such a violation of the injunction, is sufficient. It is said by counsel that the mere
statement in the affidavit that defendants and each of them have continued to further enlarge
said Sessions ditch within the limits of plaintiff's ranch is not a statement of fact, but a mere
statement of conclusion, and hence no jurisdiction is conferred upon the court to act. To
sustain petitioners' contention, reliance is had upon a portion of section 5396, Revised Laws
of 1912, as amended (Stats. 1913, p. 117), reading as follows:
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, or a statement of the facts by the referees or arbitrators.
Counsel for respondents direct our attention to the case of Strait v. Williams, 18 Nev. 430,
4 Pac. 1083, and contend that it is decisive of the point made by counsel for petitioners.
Counsel for the petitioners, evidently appreciating the force of the contention, assuming that
case to be in point, seek to distinguish it from the instant one, contending that it was a case on
certiorari where the trial had already taken place and a judgment entered, and that there was
no chance to amend, whereas in this proceeding the issue has not been determined. The
sufficiency of the allegations of the affidavit is now being tested. Bottini may still have
opportunity to amend his affidavit."
amend his affidavit. We fail to see the force of the distinction sought to be made. As a
matter of fact, in that case, as in this, relief was sought upon the ground that the affidavit
upon which the contempt proceeding was founded did not state facts sufficient to give the
court jurisdiction of the subject-matter. Lack of jurisdiction is the only ground upon which
either the writ of certiorari or prohibition will issue in this state. The question before the court
in that case was: Did the affidavit for contempt state facts sufficient to give the court
jurisdiction to hear and determine? That is the point made in this proceeding. What matters it
what the nature of the proceeding is in which the question is raised? The only question to be
determined is as to the sufficiency of the affidavit. The Strait-Williams case is decisive of the
point urged, as is the case of Phillips v. Welch, 12 Nev. 158, both holding sufficient an
affidavit such as is attacked in this case, and in a similar proceeding. We must adhere to the
views expressed in those cases.
2. There is but one question left to be decided, and that is whether the district court had
jurisdiction in the water suit, under the allegations of the complaint, to decree mandatory
relief to the plaintiff. While courts of equity seem to have jurisdiction to issue mandatory
injunctions when the allegations of the complaint and the facts justify it (14 R. C. L. 315;
note to Murdock's Case, 20 Am. Dec. 389), the allegations of the complaint in question do
not warrant such relief. It is not contended that the damage done in enlarging the ditch could
not be compensated in damages, or that the defendants were not able to respond to any
judgment that might be rendered against them. On the other hand, the complaint proceeds on
the theory that such damages could be compensated for. There is an allegation in the
complaint as to the damage done in enlarging the ditch, and such damage is alleged to be in
the sum of $3,000. It is true that the prayer of the complaint asks that the defendants be
required to restore the ditch to its original size.
asks that the defendants be required to restore the ditch to its original size. But it is also true
that the issue of damage for enlarging the ditch was submitted to the jury for a special finding
as to the damage done in enlarging the ditch, which it assessed at $1,000, though this was
finally disallowed by the court, evidently upon the theory that plaintiff should not have
damage, and his ditch restored to its original size also.
It is clear that under the allegations of the complaint the plaintiff in that suit had an
adequate remedy at law. This being true, the court had no jurisdiction to enter a decree for a
mandatory injunction. Kerr's Inj. in Eq. p. 51.
The alternative writ heretofore issued herein will be modified so as to permit respondent to
proceed as to that portion charging contempt, except as to the mandatory provisions of the
decree entered in the water suit, and as so modified it will be made permanent.
It is so ordered.
Per Curiam:
Rehearing denied.
____________
46 Nev. 418, 418 (1923) State v. Jon
[No. 2547]
THE STATE OF NEVADA, Respondent, v. GEE
JON and HUGHIE SING, Appellants.
[211 Pac. 676]
1. Criminal LawConfession Involuntary if Accused Told by Officers that He Would Be
Released if He Made Statement.
If one accused of murder is told by the officers that he will be turned loose if he makes a statement, a
confession so made is involuntary and inadmissible.
2. Criminal LawConfession after Adjuration by Officers to Tell the Truth Held Not
Involuntary.
Where one accused of murder confessed, after being told by the officers that it would be better for
him to tell the truth, the confession was not inadmissible as involuntary.
3. Criminal LawAdmission of Pistols Found in Automobile Held Not Error.
In a prosecution of two Chinamen for the murder of a third, it was not error to admit in evidence two
pistols, found in the automobile in which the trip to the place of the commission of the crime had been
made, in view of uncontradicted testimony showing the presence of defendants at that place at the time of
the killing, and of certain tracks and other evidence.
4. Criminal LawAdmission and Interpretation of Receipts in Possession of Defendant Not
Error, where Defendant's Counsel Stated He Had No Objection.
In prosecution of two Chinamen for the murder of a third, no error was committed in admitting in
evidence certain receipts, found in the possession of one of the defendants, nor as to permitting an
interpretation thereof, where defendant's counsel stated at the time, We have no objection.
5. Criminal LawAdmission of Photograph Showing Place of Shooting Held Harmless
Error.
In prosecution for murder, admission in evidence of a photograph showing a portion of the room in
which deceased was standing at the time of the shooting, if error, held not prejudicial.
6. Criminal LawRemarks of State's Counsel in Argument as to Tong Wars Held Improper,
but Harmless.
In a prosecution of two Chinamen for the murder of a third, remarks of state's counsel, an argument
relative to tong wars, in the absence of evidence connecting defendants with them, held improper, but not
prejudicial.
7. HomicideInstruction as to First-Degree Murder Held Not Erroneous.
An instruction that certain kinds of murder carry with them evidence of premeditation and
deliberation; that the legislature has enumerated these in the statute, and has taken upon itself the
responsibility of saying that they shall be deemed murder in the first degree; that
these cases are of two classes, first, where the killing is perpetrated by means of
poison, or lying in wait, or torture, or of any other kind of wilful, deliberate, and
premeditated killing, "and here the means used is held to be evidence of
premeditation and deliberation"held not error.
46 Nev. 418, 419 (1923) State v. Jon
upon itself the responsibility of saying that they shall be deemed murder in the first degree; that these
cases are of two classes, first, where the killing is perpetrated by means of poison, or lying in wait, or
torture, or of any other kind of wilful, deliberate, and premeditated killing, and here the means used is
held to be evidence of premeditation and deliberationheld not error.
8. Criminal LawInstruction as to Presumption of Innocence and Burden of Proof Held Not
Erroneous.
In a prosecution for murder, instruction that the rule of law which throws around defendants the
presumption of innocence, and requires the state to establish beyond a reasonable doubt every material
fact averred in the indictment, is not intended to shield those who are actually guilty from just and
merited punishment, but is a humane provision of the law, which is intended for the protection of the
innocent and to guard, so far as human agencies can, against the conviction of those unjustly accused of
crime, held not to violate the rights of the defendants.
9. Criminal LawInstruction as to First-Degree Murder which Omitted the Words,
Unlawfully and with Malice Aforethought Held Not Erroneous, where the Court Gave in its
Instructions the Statutory Definition of Murder, and where No Substantial Error Resulted.
In a prosecution for murder, an instruction that, if the jury believed that defendants went to the place
where deceased resided, with the wilful and deliberate and premeditated purpose of taking his life, and
that said defendants with such intent shot and killed the deceased, then and in that event the defendants
are guilty of murder in the first degree, held not erroneous as failing to advise the jury that they must
find the killing to have been unlawful and with malice aforethought, in view of all the facts in the case,
and the broad statute to the effect that no judgment in a criminal case should be reversed for a
misdirection of the jury, when no substantial error results, and that the court gave in its instructions the
statutory definition of murder.
10. Criminal LawMotion for Severance Held Insufficient as Stating Mere Conclusions.
In a prosecution of two defendants for murder, a motion for severance, merely stating that certain
admissions or statements made by one of the defendants, prejudicial in their nature to movant, would be
introduced in evidence, held insufficient as stating a mere conclusion.
11. HomicideConviction of Murder Sustained.
In a prosecution of two Chinamen for the murder of a third, evidence relating to a journey of
defendants to the place of the killing in a jitney, as to their explanation of their absence, footprints, and
pistols in the jitney, and as to defendants' reasons for making the return trip, held sufficient to sustain a
conviction.
46 Nev. 418, 420 (1923) State v. Jon
12. Criminal LawExecution by Gas Held Not Cruel or Unusual Punishment.
Stats. 1921, p. 387, authorizing execution of persons convicted of murder in the first degree by the
use of lethal gas, held not to violate the federal and state constitutions as to cruel and unusual
punishments.
13. Constitutional LawLegislative Enactments Must Be Deemed Constitutional until
Contrary Clearly Shown.
Every enactment of the legislature must be deemed in harmony with the constitutional provisions until
the contrary clearly appears.
14. Criminal LawStatute as to Execution of Death Penalty by Use of Lethal Gas Held Not
Indefinite and Uncertain.
Stats. 1921, p. 387, directing the execution of a judgment of death by administration of lethal gas, and
prescribing that a suitable and efficient enclosure, and proper means for the administration of such gas for
the purpose, shall be provided, held not indefinite and uncertain.
1. Criminal LawSupreme Court Will Not Entertain Second Petition for Rehearing.
Under supreme court rule 15 the supreme court will not entertain a second petition for rehearing in
criminal cases.
2. Criminal LawSupreme Court Rule Relating to Petitions for Rehearing Applicable to
Criminal Cases.
Supreme court rule 15 relating to petitions for rehearing is applicable in criminal as well as civil
cases.
3. Criminal LawPoint Not Previously Urged Not Considered on Petition for Rehearing.
A point not urged when the case was first called to the attention of the court will not be considered on
petition for rehearing.
Appeal from Seventh Judicial District Court, Mineral County; Emmett J. Walsh, Judge.
Gee Jon and Hughie Sing were convicted of murder, and they appeal. Affirmed. Petition
for rehearing denied. Second petition for rehearing denied.
NoteThe point raised on the second or supplemental petition for a rehearing was that the
title of Stats. 1921, p. 387, under which the sentence of death by lethal gas was imposed,
entitled An act to amend an act entitled An act to regulate proceedings in criminal cases in
this state, and to repeal all other acts in relation thereto,' approved March 17, 1911, approved
March 2S, 1921, does not set forth the subject sought to be legislated upon in such a
manner as to fairly give notice of the actual enactment, and that the act does not contain
but one subject and the matters properly connected therewith clearly expressed in the
title.
46 Nev. 418, 421 (1923) State v. Jon
March 28, 1921, does not set forth the subject sought to be legislated upon in such a manner
as to fairly give notice of the actual enactment, and that the act does not contain but one
subject and the matters properly connected therewith clearly expressed in the title.
Frame & Raffetto and Thos. J. D. Salter, for Appellants:
Severance should be allowed where one defendant makes confession involving the other.
State v. McLane, 15 Nev. 345; State v. Johnny, 29 Nev. 203.
Confessions must be voluntary. State v. Wilson, 39 Nev. 298. Confession not admissible if
defendant told it would be better for him to tell the truth, or where officers promise to turn
him loose. State v. Dye, 36 Nev. 143; State v. Urie, 35 Nev. 268.
Photographs showing conditions other than those caused by defendant are inadmissible. State
v. Roberts, 27 Nev. 449.
It is error to admit pistol in evidence, where sole foundation rests upon involuntary
confession of one defendant, or where pistol was found in automobile some time after
defendants left car in control of others or for a time unattended.
Definition of first-degree murder, concluding with words and here the means used are
held to be evidence of premeditation and deliberation, invades province of jury, being an
expression by court of ultimate conclusion. State v. Pappas, 39 Nev. 40. Any ambiguity
which may mislead jury is ground for new trial. State v. McGinnis, 5 Nev. 337; State v.
Ferguson, 9 Nev. 114.
An instruction that the presumption of innocence is not intended to shield the guilty, but to
protect the innocent, is erroneous, since the presumption of innocence attends every accused
person. State v. Duffy, 6 Nev. 138.
An instruction that taking life with wilful and deliberate intention constitutes first-degree
murder, but omitting therefrom unlawfully and with malice aforethought," is erroneous.
46 Nev. 418, 422 (1923) State v. Jon
aforethought, is erroneous. State v. Vaughn, 22 Nev. 299.
Death by lethal gas is a cruel and inhuman punishment prohibited by state and federal
constitutions. Nothing being provided as to kind, mode or means of application, the statue is
void for uncertainty.
The law under which the penalty is imposed (Stats. 1921, p. 387) is unconstitutional
because the title does not clearly express the subject; does not contain but one subject and
matters properly connected therewith clearly set forth in the title. Ex Parte Cerfoglio, 46 Nev.
332.
A second petition for rehearing may be filed to correct palpable error or grievous wrong
(Trench v. Strong, 4 Nev. 589; Ward v. Pittsburg Silver Peak G. M. Co., 39 Nev. 103;
Brandon v. West, 29 Nev. 142, dissenting opinion; 23 Cyc. 859), even though raising a point
for the first time, as this court has jurisdiction until the remittitur is sent down. Rev. Laws,
7307.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General; J. H. White,
District Attorney; and Geo. Green, for Respondent:
The granting or refusing of separate trials is in the discretion of the court. Stats. 1921, p.
165, is not ground for reversal unless such discretion is abused. Territory v. Clark, 99 Pac.
697; 16 C. J. 784, sec. 2006, note 68.
It is not error to deny a separate trial where the court limits the confession made by one
defendant to him alone. State v. McDaniels, 196 Pac. 177, 16 C. J. 787, sec. 2009; Ball v. U.
S., 163 U. S. 662, 672; Commonwealth v. Blingham, 33 N. E. 341; People v. Holtz, 103 N.E.
1007, 1014.
The question of the voluntariness of a confession is to be decided by the court. If admissible,
it is not improper to summit all the evidence to the jury. State v. Williams, 31 Nev. 360; 16
C. J. sec. 1468; State v. Carrick, 16 Nev. 120; Hopt v. People, 110 U. S. 574; State v.
Milosovich, 42 Nev. 263. Telling a prisoner that it will be better for him to tell the truth
can hardly be interpreted by him to make an untrue confession.
46 Nev. 418, 423 (1923) State v. Jon
Telling a prisoner that it will be better for him to tell the truth can hardly be interpreted by
him to make an untrue confession. Wilson v. State, 19 Ga. 759; 16 C. J. 720; Reagan v.
People, 112 Pac. 785; Hintz v. State, 125 Wis. 405.
The defendants cannot contest the point sought to be illustrated by the photographic
diagram, for that is immaterial to them, since they assert they were not present at the house of
the decedent at all, and had no connection with or knowledge of the homicide. State v. Clark,
196 Pac. 371; State v. Finch, 105 Pac. 505.
The instructions on premeditation and deliberation were fair and fully cover the law (State
v. Millain, 3 Nev. 409; State v. Mook, 12 Nev. 369; State v. Lopez, 15 Nev. 407), as also
were those on malice and motive. Blanda v. People, 189 Pac. 249; People v. Durant, 116 Cal.
179; State v. Vaughn, 22 Nev. 300; State v. Hymer, 15 Nev. 53; Thomason v. Territory, 13
Pac. 223.
It is not the duty of the supreme court, nor of the state, to comb the record for error. It is
the duty of defendant's counsel to point out the alleged error with definiteness. State v.
Willberg, 45 Nev. 183; People v. Kruvosky, 200 Pac. 832.
The infliction of the death penalty by the administration of lethal gas is not prohibited by
the constitution of the United States, as it operates only in cases arising under the laws of the
United States. McNulty v. People, 93 Cal. 427; In Re Kemmler, 34 L. Ed. 519.
The Supreme Court of the United States follows the adjudication of the highest court of a
state in the construction of its statutes. McElvain v. Brash, 142 U. S. 155, 35 L. Ed. 972.
It is the legislature, and not the court, which is to define a crime and ordain its punishment.
U. S. v. Wilkberger, 5 L. Ed. 37, 42; State v. Becker, 3 S. D. 29. But the court has no right to
say that the punishment is cruel and unconstitutional, unless it clearly so appears. Harper v.
Commonwealth, 93 Ky. 290.
The interdict of the constitution against cruel and unusual punishment applies to such as
amount to torture (State v. Williams, 77 Mo. 310); but was not intended to limit the
selection of the kind of punishment deemed most effective in the suppression of crime.
46 Nev. 418, 424 (1923) State v. Jon
intended to limit the selection of the kind of punishment deemed most effective in the
suppression of crime. Garcia v. Territory, 1 N. M. 415.
The eighth amendment to the constitution is not a restraint upon and cannot apply to the
legislature of a state, but only to the national legislature. Foote v. State, 59 Md. 264, 267;
Perveur v. Mass., 72 U. S. 479, 18 L. Ed. 609; O'Neil v. Vermont, 144 U. S. 323, 36 L. Ed.
450; Commonwealth v. Murphy, 165 Mass. 66.
The same objection was made against electrocution in New York, but was held for naught.
The officials in charge of the execution have the right to select a punishment without
torture that is not unusual nor cruel, and is expeditious. 16 C. J., p. 1378, secs. 3250, et seq.,
particularly sec. 3253.
Hanging was not the only mode of execution, and in the absence of any controlling statute,
it would seem that other modes may be resorted to as long as the prohibition against cruel and
unusual punishments is not violated. Wilkerson v. Utah, 99 U. S. 130; Hartung v. People, 22
N. Y. 95.
The second or supplemental petition for rehearing should be denied because: The court has
fully considered one such petition; the grounds alleged have not been presented before, and
the title to the act mentioned is sufficient and the act is, therefore, constitutional. Trench v.
Strong, 4 Nev. 87; Brandon v. West, 29 Nev. 135; Vickers v. Vickers, 45 Nev. 274; 17 C. J.
sec. 3533; People v. Krueger, 86 N. E. 617; 25 R. C. L. 870, 871, 872; 35 Cyc. 1058-1059; 36
Cyc. 1058; People v. Parvin, 16 Pac. 490; Yellow River Imp. Co. v. Arnold, 49 N. W. 971;
Ward v. Silver Peak G. M. C., 39 Nev. 80; 17 C. J. 201.
The appellants were convicted in the district court of Mineral County upon a charge of
murder, alleged to have been committed therein, and were sentenced to suffer the death
penalty. A motion for a new trial and for an arrest of judgment having been denied, an
appeal was taken to this court.
46 Nev. 418, 425 (1923) State v. Jon
for an arrest of judgment having been denied, an appeal was taken to this court.
The facts of the case as shown by the testimony of the state, and which the jury must have
found to be true, are:
About 8 o'clock on the morning of August 28, 1921, a Chinaman known as Tom Quong
Kee was found dead in his cabin at Mina, Mineral County, Nevada, with a bullet hole through
his body. About a week before the defendants had spent one day in Mina. On the evening of
the 26th of August, defendant Sing engaged one Pappas, of Reno, Nevada, a taxi driver, to
take him and the other appellant on the next day to Tonopah. They left Reno in the morning,
going by way of Virginia City, Yerington, and Hawthorne, and arrived at a point about a mile
out of Mina around 8 or 9 o'clock in the evening. At that point Sing, who could speak
English, directed Pappas to pull out of the road and await the return of the defendants, who
left the car and walked in the direction of Mina. Pappas fell asleep, and was awakened about
10 o'clock by the horn of a passing car. Not having had anything to eat that day, except a glass
of milk, which was in the morning, he started to drive to Mina to procure food. Meeting the
defendants on the way, they got into the car, and proceeded toward town for a short distance,
when Pappas was told to stop. After turning the car out of the road, he was given a dollar and
directed to go into town and get some beer, which he did. He was gone thirty or forty
minutes. Upon returning to the car he opened the beer, and each had two bottles, after which
he was directed by Sing to return to Reno, where they arrived at 10 o'clock on the morning of
August 28.
Upon discovery of the dead Chinaman on the morning of August 28, the deputy sheriff
(Hamill) made an examination of the body and of the premises, and traced footsteps of two
persons leading from the point at which the car stood when the beer was drunk to the cabin in
which the Chinaman had been shot, and back to the same point, after which he called up
the chief of police in Reno, informed him of the facts, and requested him to arrest Pappas
and the two defendants upon their return to Reno, which was done shortly after their
arrival.
46 Nev. 418, 426 (1923) State v. Jon
to the same point, after which he called up the chief of police in Reno, informed him of the
facts, and requested him to arrest Pappas and the two defendants upon their return to Reno,
which was done shortly after their arrival. The two defendants were placed in jail, where the
defendant Sing made a confession on the evening of the same day.
As occasion may require, the skeleton of facts will be supplemented in disposing of certain
of the questions presented.
It is contended that the court erred in admitting in evidence the confession made by
defendant Sing. This contention is based upon the theory that the confession was not
voluntary, because one of the officers in whose presence he made it told him to tell the truth;
that the truth would be best for him. Counsel for the appellants say in their brief:
Aside from the positive statement of the defendant Hughie Sing to the effect that they had
promised to turn him loose if he would make a statement, the testimony of Officer Hamill,
who was in fact in charge of the case, and more particularly interested, it appears undisputed
that he told Hughie Sing that it would be better for him to tell the truth, and that Chief of
Police Kirkley also made the same statement to Hughie Sing. This places the case squarely
within the rule announced by this court in the cases of State v. Dye, 36 Nev. 143, 133 Pac.
935, State v. Urie, 35 Nev. 268, 129 Pac. 305, and State v. Carrick, 16 Nev. 129.
1, 2. We readily concede that if Sing was told by the officers that he would be turned loose if
he made a statement, the confession would be involuntarily, and that it should have been
excluded. The fact is that Sing made his confession in the presence of Chief of Police
Kirkley, Deputy Sheriff Hamill, and Police Officer Dean, all of whom deny that any such
statement was made as testified to by the defendant Sing, to the effect that he would be turned
loose it he made a statement. The lower court had a right to reject the statement of Sing,
which it no doubt didat least, we presume that it did.
46 Nev. 418, 427 (1923) State v. Jon
it no doubt didat least, we presume that it did. This leaves for our consideration whether
the statement of the officers, under the facts and circumstances surrounding the making of the
confessionthat it would be better for the defendant to tell the truthwas such as to justify
this court in saying that the confession was involuntary.
In the case of State v. Dye, 36 Nev. 143, 133 Pac. 935, it was held that the statement by the
officer to the defendant, If you tell the truth, it will be a whole lot better for you, under all
the facts and circumstances of the case, was sufficient to warrant the conclusion that the
confession was not voluntary. But it appears from the statement of the facts of that case that
there were other elements entering into consideration which materially influenced the court in
holding that the confession was involuntary. It appears that the defendant was considered as a
tool of others, and that he was made to believe that he was so considered by the prosecuting
witness and the sheriff, who said to him:
Bill, you watch out for Bill Dye. * * * Bill, you ain't to blame. It is others I blame. It is
better for you to take care of yourself. * * * Bill, I want the principals in the proposition. It
wouldn't do me much good to send you to prison, for they could hire some one to do the job
again. Bill, I want the head man in this.
The foregoing is but part of the facts of that case going to show that there was influence
brought to bear upon the defendant to justify the court in holding the confession involuntary.
There is no such situation in this case. The testimony on the part of the state showed that on
the evening of August 29 the defendant, who was in the city jail at Reno, was taken into the
presence of Chief of Police Kirkley, Deputy Sheriff Hamill of Mineral County, and Officer
Dean. Chief Kirkley stated to him that he wanted to talk with him, and told him that anything
he might say could be used against him in court; that it would be best for him to tell the
truth.
46 Nev. 418, 428 (1923) State v. Jon
tell the truth. He then asked him, How did you come to get mixed up in this? to which he
replied, Oh, I have been drinking. The testimony on the part of the state is also to the effect
that no threats of violence or promises of immunity were offered, and that the defendant
seemed perfectly composed and calm. Thus it appears that the defendant had notice that
anything he might say could be used against him in court. It was a warning to him. He knew
from this statement that he could expect no immunity. Then, does the mere statement that it
would be better for him to tell the truth necessitate a conclusion that the confession was
involuntary?
The basis of the rule assigned for the exclusion of confessions made as the result of
promises or threats is the unreliable character of the confessions made under such influences.
The rule rests entirely upon the theory that confessions given under such influences are
improbable. Counsel say that it is based upon the theory that a person charged with a crime
shall not be compelled to be a witness against himself. Whether a witness who makes a
confession can be said to be a witness against himself turns upon the proposition as to
whether or not the confession is voluntary. In Huffman v. State, 130 Ala. 89, 30 South. 394, it
was said:
It does not render a confession inadmissible to charge a defendant with crime before he
confesses it, nor to tell him it will be better for him to tell the truth, if he is guilty [citing
authorities].
It was held in Hintz v. State, 125 Wis. 405, 104 N. W. 110, that a judgment would not be
reversed where a confession was admitted upon the representation to the defendant:
You might as well tell the truth, Charlie. I think it would be better for you.
The Criminal Court of Appeals of Texas, in Anderson v. State, 54 S. W. 581, held that the
statement to a defendant that it might be better for her to tell the truth about it did not
warrant a reversal of conviction.
46 Nev. 418, 429 (1923) State v. Jon
In State v. Brown, 2 Boyce (25 Del.) 405, 80 Atl. 146, it was held that a confession should
not be excluded merely because the defendant was told:
Tell us the truth; it will be better for you.
In Lucasey v. United States, Fed. Cas. No. 8,588a, it was held that a confession was
admissible in which the defendant was told that it would be better for him to tell the truth.
The Court of Appeals of Georgia, in Wilson v. State, 19 Ga. App 759, 92 S. E. 309, held
that a statement to the defendant that it would be better for him to tell the truth about the
case would not justify the exclusion of a confession.
In State v. Meekins, 41 La. Ann. 543, 6 South. 822, it was held that the fact that the sheriff
told the defendant he had better tell the truth would not justify the exclusion of the
confession.
In State v. General Armstrong, 167 Mo. 257, 66 S. W. 961, it was said:
It is settled law of this state that a mere adjuration to speak the truth does not vitiate a
confession.
In State v. Allison, 24 S. D. 622, 124 N. W. 747, it was held that the statement by the
sheriff to the defendant, The best thing you can do is to tell the truth, and you might get out
of it today, did not justify the exclusion of the confession from the jury.
The same rule was declared in Fouts v. State, 8 Ohio St. 98, State v. Kornstett, 62 Kan.
221, 61 Pac. 805, and Wilson v. State, 19 Ga. App. 759, 92 S.E. 309. See, also, 1 Greenleaf,
Evid. (16th ed.), sec. 220; 2 Wharton, Crim. Evid. (10th ed.), sec. 647; 1 Wigmore, Evid. sec.
832.
While there are authorities taking the contrary view, the rule stated is sustained by the
greater weight of authority, and, we believe, by the better reasoning.
3. The objection urged to the admission in evidence of two certain pistols, found in the
automobile in which the trip to Mina had been made, is without merit. In view of the
uncontradicted testimony showing the presence of the defendants at Mina on the night of
the killing, the tracks leading from the place of the killing to where the defendants drank
the beer, and all the other evidence, we are of the opinion that the admission in evidence
of the pistols was not prejudicial to the defendants.
46 Nev. 418, 430 (1923) State v. Jon
presence of the defendants at Mina on the night of the killing, the tracks leading from the
place of the killing to where the defendants drank the beer, and all the other evidence, we are
of the opinion that the admission in evidence of the pistols was not prejudicial to the
defendants.
4. The next point urged relates to certain receipts found in the possession of Gee Jon,
offered in evidence by the state. They do not purport to be for money paid by either of the
defendants. The theory of the state is that they were for money paid to a tong by the defendant
Gee Jon. When they were offered in evidence, counsel for the defendants said: We have no
objections. In view of this statement, no error was committed by the court in admitting the
receipts in evidence, and, being in evidence, no error could have been committed by the
ruling of the court permitting their interpretation.
5. It is also contended that the court, in admitting in evidence a photograph showing a
portion of the room in which the deceased was standing at the time of the shooting, with
somewhat different conditions from those existing when the shooting was done, committed
error. Technically speaking, the contention may be well founded, but under the facts of the
case no possible prejudice would have resulted to the defendants, or either of them.
6. The remarks of special counsel for the state, during his argument, relative to tong wars,
since there is nothing in the evidence connecting the defendants with them, were highly
improper. Such remarks are unfair, and often lead to a reversal of a judgment of conviction
and the burden some expense of a new trial. A mere reprimand by the court, and an
admonition to the jury to disregard such argument, do not always cure the injury. Trial courts
should find some way of stamping out such gross abuses of the privileges of attorneys.
However, we cannot say, in view of the entire record, that the defendants were prejudiced.
46 Nev. 418, 431 (1923) State v. Jon
7. Error is assigned to the giving of instructions 11, 13, and 26. Instruction No. 11 reads:
There are certain kinds of murder which carry with them evidence of premeditation and
deliberation. These the legislature has enumerated in the statute, and has taken upon itself the
responsibility of saying that they shall be deemed and held to be murder in the first degree.
Those cases are of two classes: First, where the killing is perpetrated by means of poison, or
lying in wait, or torture, or any other kind of wilful, deliberate and premeditated killing, and
here the means used is held to be evidence of premeditation and deliberation.
This instruction was approved in the case of People v. Nichol, 34 Cal. 213, and was held
by this court, in State v. Harris, 12 Nev. 414, to be devoid of error. We think no error was
committed by the giving of the instruction.
8. Instruction No. 13 reads:
The court instructs the jury that the rule of law which throws around the defendants the
presumption of innocence and requires the state to establish, beyond a reasonable doubt,
every material fact averred in the indictment, is not intended to shield those who are actually
guilty, from just and merited punishment, but is a humane provision of the law, which is
intended for the protection of the innocent, and to guard, so far as human agencies can,
against the conviction of those unjustly accused of crime.
We fail to see wherein the rights of the defendants were violated by this instruction.
Similar instructions have often been sustained. Turner v. State, 102 Ind. 425, 1 N. E. 869;
People v. Gerold, 265 Ill. 448, 107 N. E. 165, Ann. Cas. 1916a, 636; People v. Rees, 268 Ill.
585, 109 N. E. 473.
9. Instruction No. 26 reads:
If you believe, from the evidence, beyond a reasonable doubt, the defendants * * * went
to the place where Tom Quong Kee, deceased, resided, with the wilful and deliberate and
premeditated purpose of taking his life, and that said defendants, with such intent, shot and
killed the deceased, then and in that event the defendants are guilty of murder in the first
degree."
46 Nev. 418, 432 (1923) State v. Jon
shot and killed the deceased, then and in that event the defendants are guilty of murder in the
first degree.
The objection urged to this instruction is that it does not advise the jury that they must find
the killing to have been unlawful and with malice aforethought.
The court defined murder to be the unlawful killing of a human being, with malice
aforethought, and followed that definition with an instruction substantially in the language of
the statute, to the effect that all murder committed by means of poison, or lying in wait,
torture, or any other kind of wilful, deliberate, and premeditated killing, or which shall be
committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary,
shall be murder in the first degree; and that all other kinds of murder shall be deemed murder
in the second degree. But the court nowhere informed the jury that, before they could find the
defendants guilty of the crime charged, they must find that they unlawfully and with malice
aforethought killed the deceased.
As to the merits of the contention made by counsel for the defendants, the court is
somewhat divided. Mr. Justice Sanders is of the opinion that, in view of the instruction
defining murder, and of the other instruction as to the elements of wilful, deliberate, and
premeditated killing, the court fully advised the jury as to the law of the case upon the
particular phase in question, relying for support of his position upon the case of People v. Ye
Foo, 4 Cal. App. 730, 89 Pac. 450, and People v. Mar Gin Suie, 11 Cal. App. 42, 103 Pac.
951; his theory being that by the instruction given the court was not defining murder, but
expressly to the jury that, before they could find the defendants guilty of murder in the first
degree, they must believe from the evidence beyond a reasonable doubt that the defendants
went tot he place with the preconceived, wilful, deliberate, and premeditated intent to take the
life of deceased, and, with the intent thus formed, killed the deceased. On the other hand, Mr.
Chief Justice Ducker and the writer are of the opinion that the essential elements of the
crime of murder are the unlawful killing of a human being, with malice aforethought, and
that the court erred in not embodying those elements in its instruction No.
46 Nev. 418, 433 (1923) State v. Jon
writer are of the opinion that the essential elements of the crime of murder are the unlawful
killing of a human being, with malice aforethought, and that the court erred in not embodying
those elements in its instruction No. 26, or in some other instruction.
The Chief Justice, however, is of the opinion, in view of all the facts in the case and our
broad statute to the effect that no judgment in a criminal case should be reversed for a
misdirection of the jury when no substantial error results (as construed in State v. Willberg,
45 Nev. 183, 200 Pac. 476), that, as the court gave in its instructions the statutory definition
of murder, no prejudicial error was done either of the defendants in omitting the elements of
malice and unlawfulness from instruction No. 26, and that the judgment should be affirmed
as to both of the defendants; while as to the defendant Gee Jon, concerning whom admissions
and statements of the defendant Hughie Sing are admittedly not competent evidence, as to
whom the court instructed the jury to disregard said admissions and statements, and against
whom there is only circumstantial evidence, the writer does not feel justified in assuming the
grave responsibility of saying that no prejudice was done by the failure of the court to embody
in its instructions a definite requirement as to the elements mentioned.
10. It is also contended that the court erred in denying the application of the defendants
for separate trials. The motion of Gee Jon for a severance is quite informal, and is based on
the following statement:
That upon the trial of this case certain testimony will be offered in evidence against the
two defendants, which consists of the alleged admissions and statements made by his
codefendant, Hughie Sing, to certain officers of the law, at Reno, Nevada; that such testimony
is, in its nature, prejudicial to defendant Gee Jon, if said Gee Jon is tried jointly with the
defendant Hughie Sing, * * * referring to the particular circumstances of the killing of the
deceased.
46 Nev. 418, 434 (1923) State v. Jon
Counsel insist that the granting or refusing of a severance, where good cause is shown, is
not a matter of discretion in the trial court, and to sustain this position direct our attention to
the case of State v. McLane, 15 Nev. 345, wherein the court had under consideration a statute
substantially the same as the one now relied upon. Stats. 1921, p. 165. It is true that the court
held in that case that, had an application for a separate trial been aptly made, showing good
cause for a severance, the application should have been granted. The court held, however, that
the application in that case was too indefinite to disclose the real merits thereof, and that it
was not made in apt time. In view of the construction put upon the statute then in existence,
and its reenactment by the legislature in 1921, after another statute had been in force for some
years, we feel bound by the conclusion reached in the case mentioned. However, we do not
think the motion in the case before us presents good cause for a severance. The motion
merely states that certain admissions or statements made by Hughie Sing, prejudicial in their
nature to Gee Jon, would be introduced in evidence. The motion was objected to upon the
ground that no showing had been made warranting a severance.
The motion of counsel is silent as to what fact or facts the alleged admissions and
statements would tend to establish, except that they refer to the particular circumstances of
the killing of the deceased. Nowhere does it appear in the showing made that Hughie Sing
had made a statement to the officers that either of the defendants participated in the killing, or
that either of them was present at the time of the killing. From all that appears from the
motion, the statement made by Hughie Sing may have been favorable to the defendants. The
motion formed no basis of fact from which the court could determine the existence of good
cause for a severance; it stated a mere conclusion. The motion of Hughie Sing is even less
metitorious than that of Gee Jon. The court did not err in its rulings upon the motions.
46 Nev. 418, 435 (1923) State v. Jon
11. It is also said that the evidence does not justify the verdict. We do not think we need
review the evidence at length. It shows the presence of the defendants in Mina on the night of
the killing; their mysterious conduct in stopping the jitney outside of town; their
unsatisfactory explanation of their absence for a considerable length of time; the footprints
leading from the jitney to the place of the killing and back to the place where jitney stood; the
presence of the two the pistols in the jitney, and the unbelievable story told by the defendant,
to the effect that the defendant Gee Jon was taken to sick that he had to turn back. We are
convinced that the evidence justified the verdict.
12. It is also contended that the court erred in denying the motion in arrest of judgment.
The motion was based upon the assertion that the statute (Stats. 1921, p. 387), authorizing the
execution of persons convicted of murder in the first degree by the use of lethal gas, is
violative of the terms of the federal and state constitutions prohibiting the infliction of cruel
or unusual punishment, and that the provisions of the statute authorizing the infliction of the
death penalty in the manner mentioned is indefinite and uncertain as to the formula to be
employed. The act in question provides:
The judgment of death shall be inflicted by the administration of lethal gas. The
execution shall take place within the limits of the state prison, wherein a suitable and efficient
enclosure and proper means for the administration of such gas for that purpose shall be
provided by the board of prison commissioners. The warden of the state prison must be
present, and must invite a competent physician, and not less than six reputable citizens, over
the age of twenty-one years, to be present at the execution; but no other persons shall be
present at the execution.
We are not in accord with either of the contentions. What has been the punishment for
centuries for the crime of murder, of the character we know as murder in the first degree? It
has been death. For the state to take the life of one who perpetrates a fiendish murder has
from time immemorial been recognized as proper, and as being neither cruel nor unusual.
46 Nev. 418, 436 (1923) State v. Jon
take the life of one who perpetrates a fiendish murder has from time immemorial been
recognized as proper, and as being neither cruel nor unusual. The act in question authorizes
the taking of the life of a murderer as a penalty for the crime which he commits. It is the same
penalty which has been exacted for agessanctioned in the old biblical law of an eye for an
eye and a tooth for a tooth. It is true that the penalty has been inflicted in different ways; for
instance, by hanging, by shooting, and by electrocution; but in each case the method used has
been to accomplish the same endthe death of the guilty party. Our statue inflicts no new
punishment; it is the same old punishment, inflicted in a different manner, and we think it
safe to say that in whatever way the death penalty is inflicted it must of necessity be more or
less cruel.
But we are not prepared to say that the infliction of the death penalty by the administration
of lethal gas would of itself subject the victim to either pain or torture. Counsel say we must
take judicial notice of facts and conclusions reached as the result of scientific research, and it
it insisted that from the knowledge thus acquired we must declare that the law in question
provides a cruel and inhuman method of enforcing the death penalty. Without undertaking to
state the limitations of the rule invoked, we may say that, it we are controlled by our scientific
knowledge of the subject, we must reject counsel's contention. For many years animals have
been put to death painlessly by the administration of poisonous gas. Gas has been used for
years by dental surgeons for the purpose of extracting teeth painlessly. No doubt gas may be
administered so as to produce intense suffering. It is also true that one may be executed by
hanging, shooting, or electrocution in such a bungling fashion as to produce the same result.
But this is no argument against execution by either method.
The revulsion on the part of many to the idea of execution by the administration of gas is
due to an erroneous impression.
46 Nev. 418, 437 (1923) State v. Jon
erroneous impression. The average person looks upon the use of gas with horror, because of
the experiences incident to the late war. They forget that there are many kinds of gas, ranging
from the harmless non poisonous tear gas, which may be used for the quelling of a mob, and
the ordinary illuminating gas, which may produce painless death, to the highly poisonous gas
which sears and destroys everything with which it comes in contact. It may be said to be a
scientific fact that a painless death may be caused by the administration of lethal gas. That
suffering and torture may be inflicted by its administration is no argument against it. We must
presume that the officials intrusted with the infliction of the death penalty by the use of gas
will administer a gas which will produce no such results, and will carefully avoid inflicting
cruel punishment. That they may not do so is no argument against the law.
13. We think it fair to assume that our legislature, in enacting the law in question, sought
to provide a method of inflicting the death penalty in the most humane manner known to
modern science. If the argument made in behalf of the unconstitutionality of the act is sound,
the legislature can provide no method of inflicting the death penalty other than that now in
vogue. In other words, science and progress must halt when face to face with a
long-established usage. Such was not the spirit which prompted the incorporation into our
organic law of the provision now invoked. Every enactment of our legislature must be
deemed in harmony with our constitutional provisions until the contrary clearly appears. The
legislature has determined that the infliction of the death penalty by the administration of
lethal gas is humane, and it would indeed be not only presumptuous, but boldness on our part,
to substitute our judgment for theirs, even if we thought differently upon the matter.
14. We can find no ground upon which to sustain appellants' contention. People v.
Durston, 119 N. Y.
46 Nev. 418, 438 (1923) State v. Jon
569, 24 N. E. 6, L. R. A. 715, 16 Am. St. Rep. 859; Storti v. Commonwealth, 178 Mass. 549,
60 N. E. 210, 52 L. R. A. 520. Nor do we find any merit in the contention that the act is
indefinite and uncertain. It is certainly no more so than the act which is purports to amend.
Rev. Laws, 7281. That statute simply said that the punishment of death should be inflicted by
hanging the defendant by the neck until he is dead, or by shooting him, at his election. The
present statute provides that the judgment of death shall be inflicted by the administration of
lethal gas, and that a suitable and efficient inclosure and proper means for the administration
of such gas for the purpose shall be provided. We cannot see that any useful purpose would
be served by requiring greater detail. Certainly, the statue infringes no provision of the
constitution.
The judgment and order denying the motions for a new trial are affirmed, and the district
court is directed to fix a time and make the proper order for the carrying into effect by the
warden of the state prison the judgments rendered.
Per Curiam:
Rehearing denied.
Coleman, J.: I dissent.
Counsel for the appellants have presented a second petition for a rehearing wherein they urge
a point not before suggested. This court has on several occasions held that a second petition
for a rehearing would not be entertained when urged by the same party. Brandon v. West, 29
Nev. 135; Ward v. Silver Peak Co., 39 Nev. 80. The practice pertaining to petitions for
rehearing is governed by rule 15, which applies to criminal and civil cases alike, and the
holding that a second petition for a rehearing will be be entertained in civil cases control
in criminal cases as well.
46 Nev. 418, 439 (1923) State v. Jon
The practice pertaining to petitions for rehearing is governed by rule 15, which applies to
criminal and civil cases alike, and the holding that a second petition for a rehearing will be be
entertained in civil cases control in criminal cases as well. State v. Hazzard, 137 Pac. 143;
Ross v. State, 16 Wyo. 285, 94 Pac. 217; People v. Northey, 77 Cal. 618, 20 Pac. 129.
The petition must be denied for the further reason that the point now urged was not called
to our attention when the case was originally submitted. Nelson v. Smith, 42 Nev. 302.
Petition is hereby denied.
____________
46 Nev. 439, 439 (1923) Nixon v. Brown
[No. 2560]
KATE I. NIXON, BERTRAM E. NIXON, and THE NIXON ESTATE COMPANY (a
Corporation) as Trustee, Respondents, v. W. A. BROWN, FRANK GERMAIN, M.
REINHART, GEORGE M. ROSE, ALBERT SEELIGER, J. SHEEHAN, M.D.
STAUNTON, A. F. TROUSDALE, T. A. BRANDON, C. W. MULLER, and H.C.
OASTLER, Appellants.
[214 Pac. 524]
1. Husband and WifeHusband May Dispose of Reasonable Portion of Community
Property without Wife's Consent, in Absence of Fraudulent Intent to Defeat Her Claims.
Under Rev. Laws, 2160, practically adopting the Spanish-Mexican community property law, as it
existed in California at the time of its cession by Mexico, the husband may voluntarily dispose of a
reasonable portion of such property without his wife's consent, in the absence of a fraudulent intent to
defeat her claims.
2. Husband and WifeWhether Husband's Gift of Part of Community Property Is Reasonable,
Question for Court in Each Particular Instance.
Whether a husband's gift of community property is reasonable in proportion to the whole amount is a
question for decision by the court in each particular instance.
46 Nev. 439, 440 (1923) Nixon v. Brown
3. Husband and WifeGift of Community Property without Wife's Written Consent Held
Not Void as Unreasonable in Proportion to Whole Estate.
A gift of community property, consisting of two town lots and a theater thereon, to trustees for the use
of the people of a certain city by one rated as a millionaire at the time of his death held not so large, in
proportion to the whole estate, as to be unreasonable or indicative of a fraudulent intent to defeat donor's
wife's claims, and hence not void because she did not consent thereto in writing.
4. Constitutional LawWisdom of Law Permitting Husband to Convey Part of Community
without Wife's Consent Not for Court.
Whether Rev. Laws, 2160, permitting the husband to convey part of the community property without
his wife's consent, is wise is for the legislature, not the courts.
5. PerpetuitiesConstitutional Prohibition Except for Eleemosynary Purposes Not Directed
at Charitable Trusts.
Const. art. 15, sec. 4, prohibiting perpetuities except for eleemosynary purposes is directed at
private and not public or charitable trusts, eleemosynary being synonymous with charitable.
6. CharitiesCharitable Trust Construed as Valid whenever Possible.
Charitable trusts are favorites of equity, and are construed as valid whenever possible, by applying the
most liberal rules permissible by the nature of the case.
7. CharitiesPurpose Need Not Lessen Burdens of Government to Constitute Charitable
Trust.
The purpose for which a trust is created need not lessen the burdens of government in order to make it
a charitable trust, within the statute of charitable uses, which was designed to be merely illustrative of the
purposes for which such trusts could be created.
8. CharitiesGift of Theater in Trust for Use of People of Small City Held Valid as Public
or Charitable Trust.
A gift of a theater in trust for the use of the people of a small city held a valid public or charitable
trust, as enabling them to attend plays, concerts, and other functions which they otherwise could not,
thereby increasing their happiness and social welfare.
9. CharitiesEssentials of Charitable Use Stated.
To constitute a charitable use, there must be a donor, a trustee competent to take, a use restricted to a
charitable purpose, and a definite beneficiary.
10. CharitiesGift of Theater in Trust for Use of People of City Held Sufficient to Constitute
Charitable Use.
A gift of theater in trust for the use of the people of a city held not insufficient to constitute a
charitable use, there being a donor, trustees competent to take, a use restricted to a charitable purpose,
and definite beneficiaries not restricted to a particular class.
46 Nev. 439, 441 (1923) Nixon v. Brown
11. CharitiesConstrued as Charitable if Susceptible of Either That or Contrary Construction.
Where a trust is susceptible of construction as either a charitable trust or otherwise, the former
conclusion should be accepted, in order to preserve the trust.
12. CharitiesDeed of Trust Conveying Property to Trustees for Use of People of Certain
City Held Sufficient to Create Express Trust.
A valid deed of trust, conveying to designated trustees and their successors in interest two town lots
and a theater thereon for the use of the people of a certain city, held sufficient to create an express trust.
13. Appeal and ErrorWhere Only Errors Are of Law, Court on Reversal Will Render Final
Judgment or Remand with Instructions.
Where the facts are undisputed, and the only errors are errors of law, the court, on reversal, will
ordinarily render final judgment or remand the case, with instructions to enter judgment in accordance
with its opinion or specific instructions.
Appeal from Sixth Judicial District Court, Humboldt County; C. J. McFadden, Judge.
Action by Kate I. Nixon and others against W. A. Brown and others. Judgment for
plaintiffs and defendants appeal. Reversed and remanded, with instructions. Petition for
rehearing denied.
Thomas A. Brandon, for Appellants:
Charitable trusts are the favorites of equity; they are construed as valid whenever possible
by applying the most liberal rules of which the nature of the case admits, and are often upheld
where private trusts would fail. In consequence of such favor, gifts of this character are
sustained, although vaguely expressed. 2 C. J. 307; 5 R. C. L. 352.
A resulting trust is raised by implication or construction of law, and is presumed to exist
from the supposed intention of the parties and the nature of the transaction. Constructive
trusts arise purely by construction of equity and are entirely independent of any actual or
presumed intention of the party. They are also known as trusts ex maleficio or ex delecto. 39
Cyc. 26, 169, 171, 172.
46 Nev. 439, 442 (1923) Nixon v. Brown
The rule that the statute of limitations ordinarily does not run against express trusts is not
applicable to trusts created by implication of operation of law. The holding of an implied or
constructive trustee is for himself, and therefore at all times adverse. 17 R. C. L. 711, par. 66,
and cases cited in notes.
The fundamental maxim of the common law that ignorance of the law excuses no one is
only relaxed in equity where the mistake is mixed with misrepresentation or fraud, or where
ignorance of the complainant has conferred upon the defendant a benefit which he cannot in
good conscience retain. 20 Am. & Eng. Ency. Law, 2d ed. 816.
Where a person with actual or constructive knowledge of the facts induces another by his
words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer
no opposition thereto, and that other, in reliance upon such belief, alters his position, such
person is estopped from repudiating the transaction to the other's prejudice. This rule is of
wide application. 16 Cyc. 791.
A gift for a public use is always charitable. Newcastle Common v. Megginson, 31 Am. &
Eng. Ann. Cas. 1914a, 1907.
A gift for a public entertainment and amusement is charitable. A donor has the right under
the law so to provide. 5 R. C. L. 351.
A study of the cases cited in respondent's brief will show that not a single court had
decided that the husband cannot make a gift of community property, though he cannot do so
to gratify a caprice, thwart the law, beggar his family, or for his own personal
aggrandizement. Stewart v. Endicott, 143 Pac. 458. Such gifts are sometimes sustained under
the law of de minimus. Maston v. Rue, 92 Wash, 129, 159 Pac. 111.
Warren & Hawkins and Warren & Dignan, for Respondents:
The gift deprives the wife of her just share of the community property. In Re Williams
Estate, 40 Nev. 241; Kohny v. Dunbar, 21 Idaho, 258; Beals v. Ares, 1S5 Pac.
46 Nev. 439, 443 (1923) Nixon v. Brown
185 Pac. 793; Stewart v. Bank of Endicott, 143 Pac. 458; Maston v. Rue, 92 Wash. 129; 21
Cyc. 929; Schram v. Stearns, 166 Pac. 634; Garrozi v. Dastas, 204 U. S. 64; Davis v. Davis,
186 S. W. 775; Bister v. Menge, 21 La. Ann. 216.
Though benevolent, it was not eleemosynary or charitable, and hence is not permitted.
People v. Cogswell, 45 Pac. 271; Standard Dictionary; 3 Words and Phrases, 2343; In Re
Gray's Estate, 71 Pac. 707; Perry on Trusts, 6th ed. 1142; Chamberlain v. Stearns, 111 Mass.
267; 6 Cyc. 907; Roth v. Emerson, 105 Mass. 431; Thompson v. Norris, 20 N. J. Eq. 489;
Nash v. Morley, 5 Beav. 177; Johnson v. Johnson, 23 S. W. 114; Grimes v. Harmon, 35 Ind.
198, 9 Am. Rep. 690; Troutman v. De Boissiers Odd Fellows Orphans Home, 64 Pac. 34; Re
Hartung's Estate, 39 Nev. 200; In Re Sutro's Estate, 102 Pac. 926.
The statute of limitations does not begin to run against an action by the cestui que trust
until the time of the discovery by the latter of fraud or mistake on which it is based. Levy v.
Ryland, 109 Pac. 905. An action for recovery of specific real property is not barred except by
the five-year limitation. Murphy v. Crowley, 73 Cal. 820. Respondents' right to sue did not
begin till after the death of the donor. Amy v. Dubuque, 98 U. S. 476, 25 L. Ed. 228;
McGuigan v. Rolfe, 80 Ill App. 256; Greiner v. Greiner, 58 Cal. 115; Culler v. Motzer, 15
Am. Dec. 804; McKay on Community Property, sec. 389; Wren v. Dixon, 161 Pac. 722;
Nichols v. Caldwell, 114 N. E. 278; Dugan v. Gettings, 43 Am. Dec. 306; Dargie v.
Patterson, 169 Pac. 360.
Laches does not, like limitations, grow out of the mere passage of time. Alsop v. Ricker, 155
U. S. 461, 39 L. Ed. 223; Hanchett v. Blair, 100 Fed. 827; Miller v. Walser, 42 Nev. 497.
By the Court, McNamara, District Judge:
Respondents commenced an action in equity in the Sixth Judicial District Court of the
State of Nevada to set aside a certain instrument designated a deed of trust," executed on
the 17th day of July, 190S, by the late George S.
46 Nev. 439, 444 (1923) Nixon v. Brown
of trust, executed on the 17th day of July, 1908, by the late George S. Nixon, then United
States senator from Nevada, which position of honor and trust he held until his death, by
which instrument certain premises situate in the town of Winnemucca, known as the Nixon
Opera House, were conveyed to certain residents of said town as trustees for the benefit of
the people of Winnemucca, subject to certain conditions. The instrument was signed and
acknowledged by the donor and delivered to the trustees on said date, who made written
acceptance thereof on the instrument itself. The instrument is as follows:
This deed of trust, made this 17th day of July, A. D. 1908, between George S. Nixon of
the city of Reno, county of Washoe, State of Nevada, the party of the first part, and M. S.
Bonnifield, W. A. Brown, Frank Germain, M. Reinhart, George M. Rose, Albert Seeliger, J.
Sheehan, M. D. Staunton, A. F. Trousdale, of the town of Winnemucca, county of Humboldt,
State of Nevada, as trustees for carrying into effect the trust hereinafter provided, the parties
of the second part, witnesseth:
That whereas the party of the first part, George S. Nixon, in appreciation of the mutual
esteem and kindly feelings now and heretofore existing between himself and the citizens of
the town of Winnemucca, desires to manifest and perpetuate the same by deeding and
conveying to the above-named parties, parties of the second part, and to their successors in
interest, that certain piece, lot or parcel of land in the town of Winnemucca, Nevada, upon
which is situated that certain building and appurtenances thereof, commonly known as and
called the Nixon Opera House,' hereby deeds, conveys and forever quitclaims unto the said
parties of the second part, and to their successors in interest, as hereinafter provided, subject
to the conditions of trust in this deed hereinafter specified, the following real estate, to wit:
Town lots number seven (7) and eight(8), on the corner of Third and Melarkey streets in
Block T of the said town of Winnemucca, as surveyed and platted on the map of the town
site of said town, together with all and singular the building or buildings, and all
appurtenances thereof, and together with all furnishings therein contained, to have and
to hold forever, subject to the following conditions, to wit:
46 Nev. 439, 445 (1923) Nixon v. Brown
the corner of Third and Melarkey streets in Block T of the said town of Winnemucca, as
surveyed and platted on the map of the town site of said town, together with all and singular
the building or buildings, and all appurtenances thereof, and together with all furnishings
therein contained, to have and to hold forever, subject to the following conditions, to wit:
First: The said real estate, building or buildings thereon situated, and furnishing thereof,
shall be kept free from debt as they now are.
Second: Said premises and buildings shall be for the use of the people of Winnemucca,
Nevada, on all public occasions, in a manner not deemed harmful, inexpedient or unwise by
the said parties of the second part, or their successors in interest, and no discrimination in the
use thereof on such public occasions by the said public shall be made on account of political
opinions, religious beliefs, or any other considerations whatsoever not immoral or detrimental
to good citizenship.
Third: The said parties of the second part and their successors in interest, as hereinafter
provided for, shall have the right to exact such compensation for the use thereof, in cases of
entertainment or amusement, usually had or give for hire, but such compensation shall be
used only for the purpose of keeping said premises in repair, suitable for the uses for which
the same has been constructed, and for meeting such ordinary expenses as may be incurred or
which may accrue and be a charge against the same.
Fourth: In the event of the death, removal from the said Winnemucca, or the resignation
of either of the said parties of the second part, the remaining surviving parties of the second
part shall have the right, and it shall be their duty, to select from among the actual residents of
the said town of Winnemucca, a successor or successors to fill such vacancy or vacancies, as
the same may occur; and said successor or successors shall be under the same obligations and
have the same right to fill any further vacancies which may occur, in the same manner as
is herein conferred upon the said parties of the second part, herein named.
46 Nev. 439, 446 (1923) Nixon v. Brown
right to fill any further vacancies which may occur, in the same manner as is herein conferred
upon the said parties of the second part, herein named.
George S. Nixon.
We, the undersigned, parties of the second part, herewith by our signatures, receive as
trust grantees the premises and properties in the foregoing deed mentioned, and agreed to
hold, manage and control the same, as honorary trustees, and without compensation, subject
to the conditions and restrictions in the foregoing deed specified.
M. S. Bonnifield. W. A. Brown.
Frank Germain. M. Reinhart.
George M. Rose. A. Seeliger.
J. Sheehan. M. D. Staunton.
A. F. Trousdale.
State of Nevada, County of Humboldtss.:
On this 17th day of July, A.D. 1908, before me, W. S. Bonnifield, Jr., a notary public in
and for the county of Humboldt, State of Nevada, personally appeared Geo. S. Nixon, known
to me to be the person described in and who executed the annexed instrument and who
personally acknowledged to me that he, said Geo. S. Nixon, executed the same freely and
voluntarily, and for the uses and purposes therein mentioned.
In witness whereof I have hereunto set my hand and official seal the day and year in this
certificate first above written.
[Notarial Seal.] W. S. Bonnifield, Jr.
Notary Public.
George S. Nixon, at the time of the execution and delivery of the instrument, was married
to Kate I. Nixon, one of the respondents, the marriage having been solemnized January 30,
1887, at Humboldt, Nevada. As the result of this union a son was born, as near as can be
ascertained from the record, during the year 1888, to wit, Bertram E. Nixon, also a respondent
in the action. George S. Nixon and Kate I. Nixon were living together as husband and wife at
the time the instrument in question was executed, and it appears from the record that
there never had been any agreement or settlement concerning property rights between
them during the life of the former, and that the union in all respects was a happy one.
46 Nev. 439, 447 (1923) Nixon v. Brown
instrument in question was executed, and it appears from the record that there never had been
any agreement or settlement concerning property rights between them during the life of the
former, and that the union in all respects was a happy one. It is admitted that the property
conveyed by the deed of trust was community property, not a portion of a homestead; and that
the wife never signed or otherwise consented in writing to the conveyance. Senator Nixon and
his family resided for many years in Winnemucca, and were widely known and acquainted in
that community. On the evening of April 20, 1907, at a farewell reception in the town of
Winnemucca, given by the senator and his wife, the senator announced his intention to build
and present to the town of Winnemucca an opera house. The corner-stone of the structure was
laid September 14, 1907, and was made the occasion of public exercises, at which Mrs.
Nixon was present, Senator Nixon being absent. The structure was formally presented to the
town July 17, 1908, the presentation having been made in the building itself. Senator Nixon
made the presentation speech, and his wife was present and among those seated on the stage
during the ceremonies. The conveyance above set forth was delivered to and accepted by the
trustees at the time, and shortly thereafter was recorded in the office of the county recorder.
Mrs. Nixon and Bertram Nixon during the early part of the evening assisted in receiving and
welcoming the guests upon their arrival. The occasion was a public one. The cost of erecting
and equipping the building and the premises upon which it is situate was about $50,000.
Senator Nixons' wealth at the time of making the gift was estimated at between three and five
million dollars, and at the time of his death he was admitted to be a millionaire. His death
occurred June 5, 1912, and this action was commenced in the court below May 31, 1917.
Senator Nixon died testate, leaving surviving him the said Kate I. Nixon, his wife, and
Bertram Nixon, his son. He disposed of his interest in the community property and all other
property in trust, naming the Bank of Nevada Savings and Trust Company trustee, by the
terms of which certain annuities were to be paid, the said Bertram Nixon to receive all the
rest, residue, and remainder of the property of the estate upon his attaining the age of 35
years, subject to the further provision that, if said Bertram Nixon should die before he
arrived at the age of 35 years, the rest and residue and remainder of the said estate
should go to Kate I.
46 Nev. 439, 448 (1923) Nixon v. Brown
property and all other property in trust, naming the Bank of Nevada Savings and Trust
Company trustee, by the terms of which certain annuities were to be paid, the said Bertram
Nixon to receive all the rest, residue, and remainder of the property of the estate upon his
attaining the age of 35 years, subject to the further provision that, if said Bertram Nixon
should die before he arrived at the age of 35 years, the rest and residue and remainder of the
said estate should go to Kate I. Nixon, to be added to her interest in the community property.
Prior to the commencement of this action the property was distributed to the Nixon Estate
Company (substituted for the Bank of Nevada Savings and Trust Company), subject to the
terms, conditions, and provisions of the trust created by the will.
Respondents by their petition below sought to have the instrument in question set aside:
First, upon the theory that in this state a husband cannot make a gift from the community
property unless the wife joins in the conveyance, so as to preclude her from thereafter
attacking the validity of the instrument; second, that, by the terms of said instrument, the trust
created, if otherwise valid, was in law a private trust in perpetuity, prohibited by article 15,
section 4, of the constitution of the State of Nevada, and therefore void. Appellants by their
answer denied the contention of plaintiff, invoked the statutes of limitation, and set up as
affirmative defenses laches and equitable estoppel.
Judgment was entered for respondents in the court below, the instrument being held
invalid for the reason that it was not signed by Kate I. Nixon, and because it did not create a
public charity within the meaning of article 15, section 4, of the constitution of Nevada.
From this judgment and from an order denying and overruling a motion for a new trial this
appeal is prosecuted. The reporter's original notes were destroyed by fire before the transcript
was prepared, and this portion of the record is now before us in narrative form, under a
stipulation between the parties as to the substance of it contents.
46 Nev. 439, 449 (1923) Nixon v. Brown
of it contents. The appeal presents several questions, the two most important being: (1) Is the
instrument designated as a deed of trust void or voidable, upon the suit of respondent Kate
I. Nixon, because not consented to in writing by her? (2) Is the instrument in question
contrary to or in violation of art. 15, sec. 4, of the constitution of Nevada, and for this reason
void? We will discuss and dispose of the above questions in the order of their enumeration.
The first question squarely presents the proposition: Can the husband in Nevada, during
coverture, make a gift of a portion of the community property without obtaining the written
consent of the wife? A gift negatives any idea of a consideration, either nominal or
substantial, to the community interest.
The law of community property seems to have originated among the early German tribes
(being known as the law of Gananciales), being unwritten and brought into Spain by the
Visigoths, and first reduced to writing in the Code of Euric or Tolosa (466-484 A. D.). It
became the law of Mexico with the coming of the Spaniards in 1521, and the following years,
and after the treaty of Guadalupe Hidalgo, inherited as the law of California, with such
changes as were deemed advisable. It was adopted in Washington, Nevada, Idaho, and
Arizona by constitutional and statutory enactment. Spreckels v. Spreckels, 116 Cal. 347, 48
Pac. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170.
The systems are not exactly alike, as the statute differ in several respects in the various
states, the State of Nevada adopting the law almost as it was administered in Mexico, known
as the Spanish-Mexican civil law, and as it was administered in California under the early
statutes. These statutes have been judicially construed in California with reference to the
question under consideration, and it is therefore to those early California cases and the
original law we must look for a solution, rather that to those of Washington, Arizona, Idaho
and Texas, because the statutes are in many respects different, and because the question
has never been directly passed upon by the supreme court of this state.
46 Nev. 439, 450 (1923) Nixon v. Brown
respects different, and because the question has never been directly passed upon by the
supreme court of this state. It is stated in the Estate of Moffitt, 153 Cal. 363, 95 Pac. 1026, 20
L. R. A. (N.S.) 207:
The Spanish-Mexican civil law was, of course, the law in force in California at the time
of its cession by Mexico to the United States, and it was the design of the constitution of
1849 to preserve, so far as might be, to the wives of the inhabitants of the new state (most of
whom were at the time former citizens of Spain or Mexico) the rights to the community
property which they had enjoyed under the Mexican rule.
It is further stated, in Meyer v. Kinzer, 12 Cal. 251, 73 Am. Dec. 538:
The statute defining the rights of husband and wife provides in its first section that all
property, both real and personal, of the wife, owned by her before marriage, and that acquired
afterwards by gift, bequest, devise or descent, shall be her separate property; and all property,
both real and personal, owned by the husband before marriage, and that acquired by him
afterwards, by gift, bequest, devise or descent, shall be his separate property'; and, in the
second section, that all property acquired after marriage, by either husband or wife, except
such as may be acquired by gift, bequest, devise or descent, shall be common property'; and,
by the ninth section, the husband is invested with the entire management and control of the
common property, with the like absolute power of disposition as of his own separate estate.
It is to be noted that the California statute quoted is identical with the statute of Nevada
dealing with the husband's right to dispose of community property. Section 2160 of the
Revised Laws of Nevada reads as follows:
The husband has the entire management and control of the community property, with the
like absolute power of disposition thereof, except as hereinafter provided, as of his own
separate estate. * * * This language is practically an adoption of the Spanish-Mexican civil
law, as we will see from the following quotation taken from "Escriche's Diccionario
Rozonado de Legislacion y Jurisprudencia," Lomo 2, p.
46 Nev. 439, 451 (1923) Nixon v. Brown
This language is practically an adoption of the Spanish-Mexican civil law, as we will see
from the following quotation taken from Escriche's Diccionario Rozonado de Legislacion y
Jurisprudencia, Lomo 2, p. 86, et. seq.:
The husband and the wife have the dominion of the Ganancial properties, laws 1 and 4,
tit. 4, lib. 10, Nov. Rec., with the difference that the husband has it in custom (havito) and in
act (acto), as the authorities explain, and the wife only in custom (banita) the act (acto)
passing to her when the marriage is dissolved. For that reason the wife cannot give nor
convey said properties during the marriage, but the husband can without the consent of the
wife make their inter vivos conveyances moderately for just causes; but the excessive or
capricious gifts will be null, and the conveyances made with intent to defraud the wife, who
will have action in all these cases against the properties of the husband and against the
possessor of the things conveyed.
We quote again from Febrero's Liberia de Escribanos, Cinco Juicios 7, lib. 1, cap. IV, sec.
7:
And further, that the properties which were gained, and improved, and multiplied during
the marriage between the husband and the wife, which were not castrenses nor quasi
castrenses,' that the husband may alienate the same, during the marriage, should he desire,
without the license or authorization of his wife; and that the contract of alienation shall be
valid, unless it be proved that it was made craftily to defraud or injure the wife.
We quote again from the early community property law as promulgated by Novisima
Recopilacion, col. 5, book 10, title 4 (of the Ganancial Properties, or acquired in the
marriage):
That the properties which were gained, improved and multiplied during the marriage
between the husband and the wife, which were not castrenses,' that the husband may convey
the same during the marriage, if he wishes, without license nor authorization of his wife,
and that the contract of conveyance shall be valid, unless it be proved that it was made
deceitfully to defraud or injure the wife."
46 Nev. 439, 452 (1923) Nixon v. Brown
if he wishes, without license nor authorization of his wife, and that the contract of
conveyance shall be valid, unless it be proved that it was made deceitfully to defraud or injure
the wife.
In the case of Lord v. Hough, 43 Cal. 581, decided in April, 1872, at a time when the
California statute was identical with ours, it is stated:
A deed of gift of a portion of the common property by the husband is not void per se. If
the gift be made with the intent of defeating the claims of the wife in the common property,
the transaction would be tainted with fraud. In the absence of such fraudulent intent, a
voluntary disposition of a portion of the property, reasonable in reference to the whole
amount, is authorized by the statute which gives to the husband the absolute power of
disposition of the common property as of his own separate estate.
It is again stated in Smith v. Smith, 12 Cal. 216, at pages 224, 225, 73 Am. Dec. 533:
The law, in vesting in the husband the absolute power of disposition of the common
property as of his separate estate, designed to facilitate its bona fide alienation, and to prevent
clogs upon its transfer by claims of the wife; and we are not prepared to say that, under the
comprehensive language of the statute, a voluntary settlement , or a gift of a portion of the
common property, not being unreasonable with reference to the entire amount, the claims
against it and the situation of the parties, would be invalid. But we think it clear that the law,
notwithstanding its broad terms, will not support a voluntary disposition of the common
property, or any portion of it, with the view of defeating any claim of the wife.
This principle was affirmed in Peck v. Brummagim, 31 Cal. 440, at page 446, 89 Am.
Dec. 195, where it is stated:
No good reason is perceived why the husband, while free from debts and liabilities, may
not make a gift to his wife of either real or personal property which at the time was the
common property of the husband and wife.
46 Nev. 439, 453 (1923) Nixon v. Brown
the time was the common property of the husband and wife. The statue confers upon him the
like absolute power of disposition of the common property, as of his own separate estate; but
there is this necessary restriction upon his power, that he cannot make a voluntary disposition
with the view of defrauding or defeating the claims of the wife.
See, also, Greiner v. Greiner, 58 Cal. 116.
Ruling Case Law also adopts the view expressed in these decisions, in volume 5, at page
854, where it is stated:
As a general rule, in the absence of a fraudulent intent to defeat the wife's claims, the
husband may make a voluntary disposition of a portion of the property reasonable in
reference to the whole amount.
It is also stated by Pomeroy in his work of Equity Jurisprudence, vol. 1, p. 959, art. 503
(4th ed.):
During the marriage the husband alone has the custody, control, management, and power
of disposition of the community property, and it is liable for his debts; but still in theory the
wife has an inchoate, undivided interest in it during the entire coverture, so that the husband
cannot transfer it by mere gift or otherwise with the intent and purpose of defrauding her of
her share, or of defeating her exclusive interest expectant upon his death.
It is also held in the later California case of Spreckels v. Spreckels, 116 Cal. 339, 48 Pac.
228, 36 L. R. A. 497, 58 Am. St. Rep. 170, that the husband, in the absence of fraud or the
intent to deprive the wife of her interest in community property, might dispose of a portion
thereof by gift.
It is true the supreme court of this state in the case of In Re Williams's Estate, 40 Nev. 241,
161 Pac. 741, L. R. A. 1917c, 602, refused to follow the holding in the Spreckels case to the
effect that the wife's interest in the community property was a mere expectancy, but we do not
think, in view of the cases cited, and the provisions of the early texts on the law of
community property, that it make a difference, so far as the husband's right of control and
the disposition is concerned, whether or not the wife's interest during coverture is vested
or is a mere expectancy.
46 Nev. 439, 454 (1923) Nixon v. Brown
property, that it make a difference, so far as the husband's right of control and the disposition
is concerned, whether or not the wife's interest during coverture is vested or is a mere
expectancy. We think Chief Justice Beatty, in his concurring opinion in the Spreckels case,
supra, announces the true rule when he stated:
If the husband makes a gift or voluntary transfer of community property, the transfer is
good against him. He has no right of action to recover it back. The only person who, in any
case, has a right to complain is the wife, and she cannot maintain an action to revoke the gift
until she has been injured by it.
Respondents laid much stress on the Williams Estate case above mentioned, contending
that, if the learned chief justice who wrote the opinion followed his treatise on the law of
community property to a logical conclusion, he would have deprived the husband during
coverture of the right or power to make a gift of the community interest without the consent
of the wife. We have examined the case with a great deal of care and caution, and do not
believe there is anything contained therein to warrant such an inference. This case holds that
the interest of the wife in the community property and her title thereto is no less than that held
by the husband, and this interest and title in the wife is not to be regarded as a mere
expectancy, but that the wife's interest in the community property goes to her, not by
succession or inheritance, but rather by right vested in her at all times during marriage.
This statement of the law as to the nature of the wife's interest in the community property
during marriage we think sound in law, and unquestionably corrects an erroneous view which
some of the California jurists entertained with reference to the wife's interest, but it does not
attempt in any way to lessen the husband's control over the community property, or his right
to dispose of the same as given to him by the early Spanish or Mexican law, and as decided in
the cases mentioned above.
Much stress is laid on the case of Marston v. Rue, 92 Wash. 129, 159, Pac. 111, and it was
on the holding in this case that the court below held the instrument in question to void for
failure on the part of the donor to obtain the written consent of his wife.
46 Nev. 439, 455 (1923) Nixon v. Brown
in this case that the court below held the instrument in question to void for failure on the part
of the donor to obtain the written consent of his wife. We are loath to follow the holding of
the Washington cases, for the reason that their statute is entirely different from ours, in that
the husband cannot convey an portion of the community interest in the real property without
the consent of the wife. In the Marston case it further appears that the gift in question was a
whimsical one, made to the paramour of Marston, and the court practically finds that the gift
in that case was a wilful, premeditated waste of family personal property. There is no mention
made in this case as to what the entire value of the community interest was or would be, and
it may be, so far as the facts in this case disclose, a gift so great in magnitude as to reduce the
community interest to practically nothing. If such is the case, undoubtedly the husband had no
such authority under any of the states' statutes, as far as we have been able to ascertain, which
adopted the community-property law.
We have also examined the cases decided by the United States Supreme Court, referred to
by respondents; that is, Warburton v. White, 176 U. S. 484, 20 Sup. Ct. 404, 44 L. Ed. 555,
and Arnett v. Read, 220 U. S. 311, 31 Sup. Ct. 425, 55 L. Ed. 477, 36 L. R. A. (N.S.) 1040.
We do not believe there is anything in these cases in conflict with the views expressed by the
California courts in the cases above cited.
1. From a review of the entire subject, we are of the opinion that the State of Nevada, by
constitutional and statutory enactment, adopted the community - property law as it existed in
Spain and in Mexico, and as it existed in California at the time of its cession from Mexico.
This law, as above stated, has been construed by the California courts at a time when their
statutes were identical with ours upon the subject under consideration, and they have laid
down what we believe to be the true rule with respect to the limitations imposed upon the
husband during coverture on his right to dispose of community property, and that is that he
may make a voluntary disposition of a portion of the community property, reasonable in
reference to the whole amount, in the absence of a fraudulent intent to defeat the wife's
claims.
46 Nev. 439, 456 (1923) Nixon v. Brown
he may make a voluntary disposition of a portion of the community property, reasonable in
reference to the whole amount, in the absence of a fraudulent intent to defeat the wife's
claims.
2. Whether or not the gift is reasonable or unreasonable, is a question to be decided by the
courts in each particular instance, and no hard-and-fixed rule can be laid down as to just what
proportion of the community interest can be so disposed of by the husband.
3. This leads us in the instant case to a consideration of whether or not the gift in question
was a reasonable or an unreasonable one. it is admitted that Senator Nixon, at the time of
making the gift, was wealthy; that his wealth was estimated as between three and five million
dollars; that at the time of his death he was rated as a millionaire. And we have searched the
petition in vain to find an allegation on the part of the respondents that the gift was made with
the intention of depriving the wife of her just interest in the community property. We do not
believe it is so large in proportion to the whole estate that a fraudulent intent can be inferred,
or that it was unreasonable with reference to the value of the entire estate. And the acts and
conduct of respondent Kate I. Nixon negative any thought that she possessed the idea for a
minute that Senator Nixon was in any way attempting to deprive her of any portion of her
rightful interest in and to the community property; but on the contrary leads us to the
conclusion that she was in full accord with the senator's plans, and that she did not for a
moment think the gift was unreasonable, considering their financial circumstances, either at
the time it was made or at the time of the senator's death. We therefore must conclude that the
instrument in question was not and is not void for the reason that Senator Nixon did not
procure his wife's consent thereto in writing.
4. Whether it is a wise provision of the law that the husband can make a voluntary
conveyance of a portion of the community property we are not a liberty to decide.
46 Nev. 439, 457 (1923) Nixon v. Brown
of the community property we are not a liberty to decide. That is a question for the
legislature. The husband possessed such right, subject to the limitations above mentioned,
under the community-property law as administered in Spain and Mexico, and later as
administered in California, affirmed by judicial precedent, and in that state until the
legislature decreed otherwise. If it was the law then in those countries and in that state, it
must follow that it is the law here in this state under identical statutes until the legislature
shall decree otherwise, as has been done in some of the states which have adopted the
community-property law.
5. We will now pass on to the next question enumerated above, and that is: Was the trust
created by the instrument in question a private trust or a charitable public trust? In other
words, Was it for an eleemosynary purpose? Article 15, section 4, of the constitution of the
State of Nevada provides: No perpetuities shall be allowed except for eleemosynary
purposes.
It may be admitted at the outset that the estate created was and is an estate in perpetuity for
the benefit of the people of Winnemucca. By the provisions of the constitution above set
forth, perpetuities are prohibited except for eleemosynary purposes. Eleemosynary has been
the subject of much judicial discussion and interpretation, and it is generally conceded that
eleemosynary is synonymous with charitable, as the latter term issued in its technical
sense in law. 15 Cyc. 482; 20 Corpus Juris, 399; Hamburgher v. Cornell University, 99 Misc.
Rep. 564, 166 N. Y. Supp. 46-48; People v. Cogswell, 113 Cal. 129, 45 Pac. 270, 35 L.R.A.
269. The constitutional provision against perpetuities is directed at private trusts and not a
public or charitable trusts. Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401;
21 R. C. L. 306, sec. 33; White v. Keller, 68 Fed. 796, 15 C. C. A. 683.
46 Nev. 439, 458 (1923) Nixon v. Brown
6. This leads us to the inquiry as to whether or not the trust created was a private trust or
whether it was a public charitable trust. In dealing with this question, at the outset the
principle is very clearly laid down as to how a court of equity shall look upon the question. In
Corpus Juris, vol. 11, p. 307, it is stated:
Charitable trusts are the favorites of equity; they are construed as valid whenever possible
by applying the most liberal rules of which the nature of the case permits, and are often
upheld where private trusts would fail. In consequence of such favor, gifts of this character
are sustained, although vaguely expressed.
It is further stated, in Ruling Case Law, vol. 5, p. 352:
Legacies or devises to the uses of charity are entitled to peculiar favor and are regarded as
privileged testaments, and will not be declared void if they can by any possibility consistent
with the law be considered as good. So courts of equity go to the length of their judicial
power, rather than that such a trust should fail. * * * They are construed so as to give them
effect if possible, and to carry out the general intention of the donor when clearly manifested,
even if the particular form and manner pointed out by him cannot be followed. If two modes
of construction are fairly open, one of which would turn a gift into an illegal trust, while by
following the other it would be valid and operative, the latter mode must be preferred.
See, also, In Re Coleman, 167 Cal. 212, 138 Pac. 992, Ann. Cas. 1915c, 682.
7. What are and what are not charitable trusts has been the subject of much judicial
discussion. The general objects which come within the description of charitable uses, and
which may therefore constitute a valid charitable trust, were enumerated within the statute of
charitable uses passed in the reign of Queen Elizabeth, which statute is generally known as
the statute of Elizabeth. The English and American Courts have never regarded the
enumeration of the purposes for which said trusts could be created mentioned in the statue
as exhaustive, but that the statute was designed to be merely illustrative.
46 Nev. 439, 459 (1923) Nixon v. Brown
for which said trusts could be created mentioned in the statue as exhaustive, but that the
statute was designed to be merely illustrative. Pomeroy's Equity Jurisprudence, vol. 3, p.
2269, sec. 1020 (4th ed.).
Respondents contend that, unless the purpose for which the trust is created will lessen the
burdens of government, the trust is not a charitable one, and is therefore void as being within
the statute. We cannot adhere to this rule, as we believe the modern authorities are not at all
in accord with this view.
It is stated in Pomeroy's Equity Jurisprudence, vol. 3, at page 2276, that:
Numerous trusts for purposes of benevolence are upheld as charitable, although not
mentioned in the statute, since they are within its spirit and intent.
The text cites a number of cases to support this conclusion. It has also been held in the
case of Trustees of New Castle Common v. Megginson, 1 Boyce (Del.) 361, 77 Atl. 565,
Ann. Cas. 1914a, 1207, that:
The words charitable uses' include all gifts for a general public use, independent of
benevolent, educational, or religious purposes.
And the case further holds:
A gift of land to trustees for the use of the inhabitants of the town of New Castle' is a
charitable trust or use.
It is further stated in this case:
That gifts to and for a general public use or for lessening the burdens of government are
charitable trust, and are not within the prohibition of the rule against perpetuities, and are
valid and will be enforced and administered by the court in chancery.
A long list of decisions is collected in this case, determining what may be the subject of a
charitable trust, among them being: A gift for the benefit and ornament' of a town; for
erecting a town-house. Coggeshall v. Pelton, 7 Johns, Ch. (N.Y.) 292, 11 Am. Dec. 471.
46 Nev. 439, 460 (1923) Nixon v. Brown
A definition of a charity set out in that case seems to be the one most generally adopted by
courts in dealing with these subjects. It is as follows:
Charitable trusts include all gifts in trust for religious and educational purposes in their
ever varying diversity; all gifts for the relief and comfort of the poor, the sick and the
afflicted; and all gifts for the public convenience, benefit, utility or ornament, in whatever
manner the donor desires to have them applied.
See, also, Ruling Case Law, vol. 5, p. 298, and same volume of this work at page 210.
The Supreme Court of the United States defines the scope of a charitable use in Ould v.
Washington Hospital, 95 U. S. 303, 24 L. Ed. 450:
A charitable use, where neither law nor public policy forbids, may be applied to almost
anything that tends to promote the well-doing and well-being of social man.
It is further said, in Episcopal Academy v. Taylor, 25 Atl. 55:
Whatever is gratuitously done or given in relief of the public burdens, or for the
advancement of the public good, is a public charity. In every such case, as the public is the
beneficiary, the charity is a public charity.
It is further stated, in Pomeroy's Equity Jurisprudence, vol. 3, at page 2285, that:
Other public purposes, not in the ordinary sense benevolent, may be valid charities, since
they are either expressly mentioned by the statute, or are within its plain intent. All of these
purposes tend to benefit the public, either of the entire country or of some particular district,
or to lighten the public burdens for defraying the necessary expenses of local administration
which rests upon the inhabitants of a designated region.
8. Viewed in the light of these decisions, and of many others, the purposes for which the
trust was created must be held to be a public or charitable one. The theater, which was the
subject of the gift, as appears from the record, was rather an elaborate one for a city whose
population is small. It undoubtedly enabled the people of Winnemucca to attend many
public occasions and functions that they otherwise could not.
46 Nev. 439, 461 (1923) Nixon v. Brown
enabled the people of Winnemucca to attend many public occasions and functions that they
otherwise could not. Again, it furnishes a means which the people of Winnemucca otherwise
would not have had for attending plays, concerts, and other functions, thereby increasing to
some extent their happiness and social welfare. If the trust is in other respects valid, as
required by law, we think the purpose for which it was created is and must be considered a
public or charitable one.
9. Respondents quoted at length from the case of Grimes's Exr. v. Harmon, 35 Ind. 198, 9
Am. Rep. 690, in support of their contention that the trust under consideration is not one for a
public charitable purpose. In that case the trust failed for the reason that the beneficiaries
were not sufficiently designated. Such, we think, is not the case here. Adopting the definition
of a charitable use as contained in that case, we have the following: (1) To constitute a
charitable use there must be a donor. (2) A trustee competent to take. (3) A use restricted
to a charitable purpose. (4) A definite beneficiary.
10. In measuring the trust under consideration according to the standard set forth above, it
must be admitted: (1) There was a donor, George S. Nixon. (2) That the trustees were
competent to take. (3) That the use was restricted to a charitable purpose, as decided above
upon very respectable authority. (4) A definite beneficiary, the people of Winnemucca.
Further, it must be conceded that the beneficiaries are an indefinite number of people, in
that the population is continually changing, and any one may enjoy the benefits of the charity
by becoming one of the people of Winnemucca. The beneficiaries are not a restricted class.
11. It is true that the question involved as to whether or not the gift was a charitable one is
a question upon which many able and learned jurists have differed, but, viewing this question
in the light of the rule laid down for courts of equity in such casesthat is, where the trusts is
susceptible of two conclusions, one that the gift was charitable and the other that it was
not, that courts should adopt a conclusion accepting the former in order to preserve the
trustwe believe such must be the conclusion in this case.
46 Nev. 439, 462 (1923) Nixon v. Brown
was charitable and the other that it was not, that courts should adopt a conclusion accepting
the former in order to preserve the trustwe believe such must be the conclusion in this case.
12. The instrument, having been heretofore held to be valid, was sufficient to create an
express trust. Pomeroy's Equity Jurisprudence, vol. 3, p. 2235, art. 1009 (4th ed.). There is
nothing contained here in the view expressed in conflict with the holdings in the case of In Re
Hartung's Estate, 39 Nev. 200, 155 Pac. 353, 159 Pac. 864; Idem, 40 Nev. 262, 160 Pac. 782,
161 Pac. 715.
For the reasons stated above, and, in view of the order to be made in this case, we deem in
unnecessary to pass upon the question of laches, equitable estoppel and the statute of
limitations urged by appellants, as being a bar to the action.
13. Adopting the rule laid down in the very recent case of Warren v. Wilson, 46 Nev. 272:
Where the facts of the case are undisputed and the only errors therein are errors of law, the
court on reversal ordinarily will render final judgment or will remand the case to the lower
court, with directions to enter judgment in accordance with the opinion or with specific
directions.
It is hereby ordered that the judgment and order appealed from be and the same hereby are
reversed, and that the case be remanded with instructions to enter judgment for appellants in
accordance with the views expressed herein.
Sanders, J.: I concur.
Ducker, C. J., being disqualified, Hon J. M. Mcnamara, District Judge, was designated by
the Governor to sit in his stead.
Per Curiam:
Rehearing denied.
____________
[No. 2561]
CLARK REALTY COMPANY, Appellant, v. H.C.
DOUGLAS, Respondent.
Reporter's NoteSubsequent to the granting of the petition for rehearing, and prior to the
decision thereon, the appellant dismissed its appeal. (See page 389.)
____________

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