Nevada Reports 1909 (31 Nev.) PDF

31 Nev.
1, 1 (1909)
RULES OF THE BOARD OF PARDONS.
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1. The regular meetings of the board shall be held on the Wednesday after the first
Monday in January, and on the second Monday of July of each year. As amended, January,
1906.
2. Special meetings may be called by the governor at any time when the exigencies of any
case demand it, notice thereof being given to each member of the board.
3. No application for the remission of a fine or forfeiture, or for a commutation of
sentence, or pardon, shall be considered by the board unless presented in the form and manner
required by the law of the state approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she must
procure a written certificate of his or her conduct during such confinement, from the warden
of said prison, and file the same with the secretary of this board, on or before the day of
hearing.
5. All oral testimony offered upon the hearing of any case must be presented under oath,
unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered by the
consent of all the members present.
7. After a case has once been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case except upon new and regular notice as required by law
in case of original application.
8. In voting upon any application the roll of members shall be called by the secretary of
the board in the following order:
FirstThe Attorney-General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.
FifthThe Governor.
31 Nev. 1, 2 (1909) Rules of Board of Pardons
Each member, when his name is called, shall declare his vote for or against the
remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to
citizenship.
9. No document relating to a pending application for pardon or commutation of sentence,
or to a prior application which has been denied, shall be withdrawn from the custody of the
clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk at
least two days before the regular meeting of the board, at which the application is to be
considered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship, must
be properly indorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the district judge and
district attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record, may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the district
judge and district attorney of the county in which the indictment was found, at least thirty
days before the hearing, unless, for good cause shown, this time be shortened by the board.
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31 Nev. 3, 3 (1909) State Library Regulations
NEVADA STATE LIBRARY.
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Sections of the Law Relating to Use of Books.
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From Compiled Laws of 1900.
Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts, and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.
Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state
librarian, shall execute a receipt and deliver the same to the justices of the supreme court for
all books and other property in the state library.
Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come
into possession of, this state, by purchase or otherwise; all books, maps, charts, pamphlets,
and other documents, which, by any state officer, may be received in their [his] official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the legislature
during its session, and at any time by the governor and other officers of the executive
department of this state who are required to keep their offices at the seat of government, the
justices of the supreme court, and attorney-general; provided, that no person shall be
permitted to have more than two volumes of miscellaneous works from said library at the
same time.
31 Nev. 3, 4 (1909) State Library Regulations
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except the
laws, journals, and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure, or fail to return, any books taken from the
library within the time prescribed in the foregoing section, he shall forfeit and pay to the
librarian, for the benefit of the library, three times the value thereof, or of the set to which it
belongs.
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31 Nev. 5, 5 (1909) Rules of State Library
RULES OF STATE LIBRARY
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The number of users of the library is so small under the law that it has not heretofore been
considered necessary by those in charge to publish any rules in addition to those included in
the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested not to replace
them on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound magazines,
are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and district
courts, when in the capital city.
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31 Nev. 7, 7 (1909) Rules of Supreme Court
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; as amended to July 7, 1908.
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RULE I.
1. Applicants for license to practice as attorneys and counselors will be examined in open
court on the first day of the term.
Examination for Attorneys-at-Law.
2. The supreme court, upon application of the district judge of any judicial district, will
appoint a committee to examine persons applying for admission to practice as attorneys and
counselors-at-law. Such committee will consist of the district judge and at least two attorneys
resident of the district.
The examination by the committee so appointed shall be conducted and certified according
to the following rules:
Examination by Committee.
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any member
of the committee previous to the examination.
Examination to Embrace.
The examination shall embrace the following subjects:

1
The history of this state and of the United States;

2
The constitutional relations of the state and federal governments;

3
The jurisdiction of the various courts of this state and of the United States;

4
The various sources of our municipal law;

5
The general principles of the common law relating to property and personal rights and
obligations; 6 The general grounds of equity jurisdiction and principles of equity
jurisprudence;

6
The general grounds of equity jurisdiction and principles of equity jurisprudence;

7
Rules and principles of pleadings and evidence;

8
Practice under the civil and criminal codes of Nevada;

9
Remedies in hypothetical cases;

10
The course and duration of the applicant's studies.
3. The examiners will not be expected to go very much at large into the details of these
subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge and the
accuracy of his understanding of those subjects and books which he has studied.
Examination by Committee.
4. When the examination is completed and reduced to writing, the examiners will return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character and has attained his majority, and is a bona fide resident of this state. Such
certificate shall also contain the facts that the applicant was examined in the presence of the
committee; that he had no knowledge or intimation of the nature of any of the questions to be
propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
Fee To be Deposited Before Examination.
5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of
the court before the application is made, to be returned to the applicant in case of rejection.
RULE II.
Filing Transcript.
In all cases where an appeal has been perfected, and the statement settled (if there be one)
thirty days before the commencement of a term, the transcript of the record shall be filed on
or before the first day of such term.
RULE III.
Appeal May Be DismissedCan Be Restored.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to
the opposite party; and, unless so restored, the dismissal shall be final and a bar to any
other appeal from the same order or judgment.
upon good cause shown, on notice to the opposite party; and, unless so restored, the dismissal
shall be final and a bar to any other appeal from the same order or judgment.
How Restored.
2. On such motion there shall be presented the certificate of the clerk below, under the
seal of the court, certifying the amount or character of the judgment; the date of its rendition;
the fact and date of the filing of the notice of appeal, together with the fact and date of service
thereof on the adverse party, and the character of the evidence by which said service appears;
the face and date of the filing of the undertaking on appeal; and the same is in due form; the
fact and time of the settlement of the statement, if there by one; and also that the appellant has
received a duly certified transcript, or that he has not requested the clerk to certify to a correct
transcript of the record; or, if he has made such request, that he has not paid the fees therefor,
if the same have been demanded.
RULE IV.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the other edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten inches each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines.
Nothing smaller than minion type leaded shall be used in printing.
Transcripts in Criminal Cases.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches width, with a margin of not less than one and one-half inches
wide, fastened or bound together on the left sides of the pages by ribbon or tape, so that the
same may be secured, and every part conveniently read. The transcript, if written, shall be in a
fair, legible hand, and each paper or order shall be separately inserted.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness;
and the transcript shall have at least one blank fly-sheet cover.
chronologically arranged in the transcript, and each transcript shall be prefaced with an
alphabetical index, specifying the folio of each separate paper, order, or proceeding, and of
the testimony of each witness; and the transcript shall have at least one blank fly-sheet cover.
Cannot Be Filed.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record
in original proceedings upon which the cause is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by
the clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
opposite party a verified cost bill, setting forth or stating the actual cost of such printing or
typewriting, and no greater amount than such actual cost shall be taxed as costs.
stating the actual cost of such printing or typewriting, and no greater amount than such actual
cost shall be taxed as costs.
Mode of Objecting to Costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
Indorsed Upon Remittitur.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order, and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to retaxation in such district court or
other tribunal.
RULE VII.
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record, as may be
required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
RULE VIII.
ExceptionsDiminution of Record.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of
appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be curred on suggestion of diminution of the record, must be taken at the first term
after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
the points of error assigned, which might be curred on suggestion of diminution of the record,
must be taken at the first term after the transcript is filed, and must be noted in the written or
the printed points of the respondent, and filed at least one day before the argument, or they
will not be regarded.
RULE IX.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.
Calendar to Consist ofUpon Motion.
1. The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the parties;
provided, that all cases, both civil and criminal, in which the appeal has been perfected and
the statement settled, as provided in Rule II, and the transcript has not been filed before the
first day of the term, may be placed on the calendar, on motion of either party, after ten days'
written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
3. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
RULE XI.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the point made.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein provide, shall
be deemed a waiver by such party of the right to orally argue the case, and such party shall
not recover cost for printing or typewriting any brief or points and authorities in the case.
4. No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII.
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII.
Number of Copies To Be Filed.
Besides the original, there shall be filed ten copies of the transcript, briefs, and points and
authorities, which copies shall be distributed by the clerk.
RULE XIV.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV.
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within
ten days thereafter may file a reply to the petition, and no other argument shall be heard
thereon. No remittitur or mandate to the court below shall be issued until the expiration of the
fifteen days herein provided, and decisions upon the petition, except upon special order. The
times herein provided for may be shortened or extended, for good cause shown, by order of
court.
RULE XVI.
Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No Paper To Be Taken Without Order.
No paper shall be taken from the court room or clerk's office, except by order of the court,
or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
RULE XVIII.
Writ of Error, or Certiorari.
No writ of error or certiorari shall be issued, except upon order of the court, upon petition,
showing a proper case for issuing the same.
RULE XIX.
Writ of Error to Operate as Supersedeas.
Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking
with the clerk of the court below, and upon giving notice thereof to the opposite party or his
attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be
substantially the same as required in cases on appeal.
RULE XX.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
RULE XXI.
To Apply.
The rules and practice of this court respecting appeals shall apply, so far as the same may
be applicable, to proceedings upon a writ of error.
RULE XXII.
Time Concerning Writ.
The writ shall not be allowed after the lapse of one year from the date of the judgment,
order, or decree which is sought to be reviewed, except under special circumstances.
RULE XXIII.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles from Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
RULE XXIV.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the time
is shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the discretion of
the party appealing, need not be printed, but, if printed, all the rules concerning the same
shall still apply thereto.
discretion of the party appealing, need not be printed, but, if printed, all the rules concerning
the same shall still apply thereto.
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy To Be ServedTwo Copies To Be Filed.
3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.
Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue, final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
RULE XXVII.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
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31 Nev. 17, 17 (1909) Rules of District Court
RULES
OF THE
District Court of the State of Nevada
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RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
Calendars to ContainAttorneys.
The clerk of each county of the state shall make three calendars for the district court of his
county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another of which he shall place all civil causes at issue upon a
question of law, and all motions of every nature, except ex parte motions, as soon as the issue
is made, or as soon as notice of motion is filed; and upon the third of which he shall place all
criminal business of every kind. The names of the attorneys of the respective parties shall be
appropriately placed on such calendars. The clerk shall, on every Saturday, forward to the
presiding judge of the court, and also to the judge who is to sit in his county, a full statement
of the condition of the business of the court as shown by the calendars.
RULE III.
Notice as to Time.
The judge who is to hold court in any county shall give the clerk of such county notice of
the time when court will sit. The clerk shall, immediately upon receiving such notice, give all
the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county-seat of his county, provided it can be done without expense.
RULE IV.
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be called
and disposed of. The trial calendar will then be called, and causes at issue upon questions of
fact disposed of. When the calendar is called the causes will be set for a time certain. Parties
are expected to be ready to try their causes, whether at issue upon questions of law or fact,
when the calendar is called, and in the order in which they are set. Parties may, prior to the
meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of
the court or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
RULE V.
Law Day.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, and be heard without previous setting or notice.
RULE VI.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs of such judge, with his consent, and the decision may be filed
thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such
decision shall receive due written notice thereof from the opposite party.
thereafter at any time, which decision shall fix the time when the decision of the court is to be
complied with; and in all such cases the party who is required to act by such decision shall
receive due written notice thereof from the opposite party. Time for complying with such
decision shall commence to run from the time when service is made in the manner required
by the statutes for service of pleadings in a case; provided, that when the parties are present
by their respective attorneys when the decision is rendered, no notice shall be required.
RULE VIII.
DemurrerSet Down for Trial.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the
court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and, upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit. In cases other than those above mentioned, ten days shall be allowed to amend or
plead, as the case may be, unless the court by its order fix a different time.
RULE IX.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X.
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving party, except pleadings or
other records of the court, shall be served with the notice of motion.
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
RULE XI.
Hearing of Motions.
Upon reading and filing the notice of motion, with due proof of service of the same, and of
the papers mentioned therein, if no one appears to oppose the motion, the moving party shall
be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either
party shall be endorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
RULE XII.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
nesses than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter-affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII.
Attorneys as Witnesses.
If the attorney or counsel of either party offers himself as a witness on behalf of his client,
and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the
jury, without the permission of the court.
RULE XIV.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
DepositionsInterrogatories, How Settled.
A party making application for a commission to take the deposition of a witness out of the
state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,
at least one day before the hearing of the application, the adverse party shall serve upon the
moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be
settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, that parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
submission to the court or judge, or may stipulate that the depositions may be taken without
written interrogatories.
RULE XVI.
Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
RULE XVIII.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose property
is attached, against damages, the court or judge may require an additional undertaking to be
filed, and if not filed, the attachment shall be dissolved.
require an additional undertaking to be filed, and if not filed, the attachment shall be
dissolved. No attachment shall be dissolved by reason of any defect in the attachment papers
that can be amended without affecting the substantial rights of the parties.
RULE XXI.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and report whether the
mortgages premises can be sold in parcels, if the whole amount secured by the mortgage
has not become due.
report whether the mortgages premises can be sold in parcels, if the whole amount secured by
the mortgage has not become due. If any of the defendants have been served by publication,
the order of reference shall also direct the referee to take proof of the facts and circumstances
stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any payments
which have been made, and to compute the amount due on the mortgage, preparatory to the
application for decree of foreclosure.
RULE XXIV.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for new trial, the adverse party shall have the same number of days to propose amendments or
file counter-affidavits as was allowed by such order to file such statement or affidavits.
RULE XXV.
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings.
ceedings. The certificate shall state the title of the action, the order staying the execution or
other proceedings, and the date of such order, together with the filing and approval of the
undertaking above required, and the date of such filing and approval; and such certificate
shall operate as a supersedeas of the execution or a vacation of the order.
RULE XXVII.
Stipulations.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
the proceedings therein, will be regarded, unless the same shall be entered in the minutes in
the form of an order, by consent, or unless the same shall be in writing, subscribed by the
party against whom the same shall be alleged, or by his attorney or counsel.
RULE XXVIII.
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.
Guardians.
No person shall be appointed guardian ad litem, except upon the application of the infant
or otherwise, unless he be the general guardian of the infant, or an attorney or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
RULE XXX.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
RULE XXXI.
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII.
To Furnish to the Clerk.
The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII.
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV.
Retax Costs.
The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
Mechanics' Liens.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
RULE XXXVI.
Motions.
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
RULE XXXVII.
Appeal from Justices' CourtDismissed, When.
When an appeal from the justices' court to this court has been perfected, and the papers are
not filed in this court within fifteen days from the day of filing the undertaking on appeal,
this court, on the production of a certificate from the justice to the effect that an appeal
has been taken and perfected, but the papers have not been ordered up, or the proper
costs not paid, or upon showing that any other necessary steps have not been taken, shall
dismiss the appeal at the cost of the appellant.
within fifteen days from the day of filing the undertaking on appeal, this court, on the
production of a certificate from the justice to the effect that an appeal has been taken and
perfected, but the papers have not been ordered up, or the proper costs not paid, or upon
showing that any other necessary steps have not been taken, shall dismiss the appeal at the
cost of the appellant.
RULE XXXVIII.
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court within
fifteen days from the day upon which the order of the justice is made directing the transfer of
the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that he has certified the papers as required by said section, but
that the same have not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
RULE XXXIX.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Instructions To Be Settled, When.
Before the argument begins, counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
agreement, and permit counsel to use them when addressing the jury.
RULE XLI.
Trials.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other
judge shall do any act or thing in or about said cause, proceeding, demurrer or motion,
unless upon the written request of the judge who shall have first entered upon the trial or
hearing of said cause, proceeding, demurrer or motion.
or made any ruling, order or decision therein, no other judge shall do any act or thing in or
about said cause, proceeding, demurrer or motion, unless upon the written request of the
judge who shall have first entered upon the trial or hearing of said cause, proceeding,
demurrer or motion.
RULE XLII.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.
Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
RULE XLIV.
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV.
Vacating Judgments, Orders, Etc.Time to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,
Committee.
Attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby
adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be
in force in each county thirty days after the date of their filing in the clerk's office of such
counties.
RICHARD RISING,
Presiding District Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
____________
31 Nev. 43, 43 (1909)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1909
____________
31 Nev. 43, 43 (1909) Ex Parte Pittman
[No. 1795]
Ex Parte PITTMAN
1. Banks and BankingRight to Engage in Business.
Banking is a lawful business, in which it is the inherent right of every citizen to engage.
2. Banks and BankingRegulationsLegislative Power.
The banking business can be regulated, but not prohibited, and it is not only the legislature's power, but
its duty, to regulate the business so as to reduce failures to a minimum.
3. Banks and BankingInsolvent BanksReceipt of DepositsPenaltyPurpose.
The purpose of statutes making it a crime to receive deposits when a bank is known to be insolvent is not
only to protect innocent depositors, but to deter bank officers from so conducting a bank as to endanger its
solvency.
4. EmbezzlementBanks.
Prior to the act of March 29, 1907, making it a crime to receive deposits when the bank is known to be
insolvent, the general laws, making it a crime for any one to wrongfully convert property of another to his
own use, applied to bank offices who embezzled bank funds, the same as other embezzlers.
5. StatutesConstructionJudicial Function.
A court has no legislative powers, and cannot read into a statute something beyond the manifest intention
of the legislature as gathered from the statute; its function being to determine the legislature's intention
from the language used in accordance with the established rules of statutory construction.
6. Banks and BankingInsolvent BanksReceipt of DepositsLegislative Power.
The legislature as an exercise of police power can impose a penalty for the conduct of business by an
insolvent bank.
7. StatutesPenal StatutesSpecial Laws.
The act of March 29, 1907, making it a crime to receive bank deposits knowing the bank to be insolvent,
is not unconstitutional, as being a special law for the punishment of offenses.
8. Constitutional LawClass Legislation.
Neither is the law objectionable as class legislation.
Original proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of
habeas corpus. Prisoner remanded.
Statement of Facts
This is an original proceeding in habeas corpus. The writ in this case was heretofore
issued upon a duly verified petition in behalf of T. B. Rickey, alleging that he was unlawfully
confined and restrained of his liberty by the sheriff of Ormsby County. From the return upon
the writ it appears that the said T. B. Rickey was at the time of its issuance held in custody by
said sheriff upon bench warrants regularly issued by the First Judicial District Court of the
State of Nevada, in and for Ormsby County, upon seven indictments found by the grand jury
of said county, six of which having been found on the 27th day of February, 1908, and one
thereof having been found on the 3d of March following; that all of said indictments charged
the said T. B. Rickey with the crime of embezzlement contrary to the provisions of that
certain act of the legislature of this state entitled An act making any banker, or any officer,
agent, or clerk of any bank, receiving deposits, knowing that said bank is insolvent, guilty of
embezzlement, and providing for the punishment thereof, approved March 29, 1907. (Stats.
1907, p. 414, c. 189.)
This case was heretofore orally argued and thereafter finally submitted on briefs, together
with Cases Nos. 1781 and 1790, on the 17th day of December, 1908.
Petitioner's contention in this case is that the said T. B. Rickey was unlawfully restrained
of his liberty for the reason that the said act, for the violation of which said indictments were
found, is in contravention of the State and Federal Constitutions, and is void, and hence that
he is not charged with an offense against the law.
stitutions, and is void, and hence that he is not charged with an offense against the law.
The above-entitled statute contains two sections reading as follows:
Section 1. Every officer, agent, teller, or clerk of any bank, and every individual banker,
or agent, teller or clerk of any individual banker, who receives any deposits, knowing that
such bank or association or banker is insolvent, shall be guilty of embezzlement.
Sec. 2. Every person, officer, agent, teller or clerk convicted under the provisions of this
act shall be imprisoned in the state prison for not less than one or more than fifteen years.
James F. Peck and W. B. Pittman, for Petitioner:
I. The act of March 27, 1907, is unconstitutional, null and void, in that it violates the
provisions of the fourteenth amendment to the Constitution of the United States, wherein it is
provided: No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States, nor shall any state deprive any person of life,
liberty or property without due process of law, nor deny to any person within its jurisdiction
the equal protection of the laws.
II. The said statute is unconstitutional, null and void, in that it violates the provisions of
article IV, section 20, of the Constitution of the State of Nevada, wherein it is provided: The
legislature shall not pass local or special laws for the punishment of crimes or
misdemeanors.
III. Said statute is unconstitutional, null and void, in that it violates the provisions of article
IV, section 2, of the Constitution of the State of Nevada, wherein it is provided: In all cases
enumerated in the preceding section, and in all other cases where a general law can be made
applicable, all laws shall be general and of uniform operation throughout the state.
IV. The said statute is unconstitutional, null and void, in that it violates the provisions of
article IV, section 17, of the Constitution of the State of Nevada, wherein it is provided:
"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."
vided: 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.
V. Said statute is unconstitutional, null and void, in that it violates the provisions of article
I, section 8, of the Constitution of the State of Nevada, wherein it is provided: No person
* * * shall be deprived of life, liberty or property without due process of law.
VI. Said statute is unconstitutional, null and void, in that it violates the provisions of
article I, section 14, of the Constitution of the State of Nevada, wherein it is provided: There
shall be no imprisonment for debt except in cases of fraud, libel or slander.
VII. Said statute violates the said provisions of the United States Constitution hereinbefore
specified, in that it makes a crime of the doing of an act which it is the right of every citizen
of the United States to do when the act is done without the accompaniment of fraud, intent to
defraud, or criminal negligence, and said statute does not require fraud, or the intent to
defraud, or criminal negligence as an element of said crime; and in that it prohibits the doing
of the acts specified in said statute when done by an officer, agent, teller, or clerk of any bank,
and every individual banker or agent, teller, or clerk of any individual banker, while all other
persons can do the acts therein prohibited.
VIII. The said statute violates the said provisions of article IV, section 2, of the
Constitution of the State of Nevada, in this, that the acts prohibited by said statute are such
acts as may be committed by other persons with the same degree of turpitude as by the
persons enumerated in said statute, and a general law could be made applicable to prohibit the
said acts.
IX. Said statute violates the said provisions of article IV, section 20, of the Constitution of
the State of Nevada, in this, that it provides a special punishment for the crime of
embezzlement by the persons enumerated in said statute, when, at the same time, the general
law of the State of Nevada provides for the punishment of embezzlement when committed by
other persons, which general law provides a different punishment from that provided in said
statute; and in that the said statute provides a punishment when the acts specified in said
statute are done by the persons therein enumerated, and does not provide a punishment
for the same acts when done by any other person or persons than those so enumerated.
ishment from that provided in said statute; and in that the said statute provides a punishment
when the acts specified in said statute are done by the persons therein enumerated, and does
not provide a punishment for the same acts when done by any other person or persons than
those so enumerated.
R. C. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, P. A.
McCarran, and E. E. Roberts, District Attorneys, for the State.
By the Court, Norcross, C. J.:
Counsel for petitioner in their brief say: In presenting the constitutional questions we will
follow these lines: That the business of banking, including the contract with depositors of the
bank for every nature of deposits, is a lawful business, in which it is the inherent right of
every citizen to engage; that the legislature can only regulate such a business, or the making
of such a contract in the absence of fraud or turpitude; that its power to prohibit commences
and ends with the fraud or turpitude; that the statute of Nevada prohibiting the receipt of
deposits is not predicated upon fraud, and it therefore prohibits an act which it is the inherent
right of every person to do; that the court has not power to read into the statute the element of
fraud, which must be read into the statute to sustain its constitutionality; that if the court can
read into the statute the element of fraud, to wit, a false pretense, then the statute violates the
provisions of the Constitution of Nevada, inhibiting any special law for the punishment of
crimes or misdemeanors; that the statute is class legislation and denies the equal protection of
the laws; that the law is a special law, under the Constitution of Nevada, in a case where a
general law could be made applicable.
That the business of banking is a lawful business in which it is the inherent right of every
citizen to engage will not be questioned. It is a business, however, with which the general
public welfare is most clearly identified. Money is said to be the very life-blood of the nation.
The banking business has grown to be a part and parcel of our financial system, and is so
regarded by both the federal and state governments. The great bulk of business transactions,
instead of being effected by an actual transfer of money, is accomplished through the
medium of bank checks and drafts.
great bulk of business transactions, instead of being effected by an actual transfer of money,
is accomplished through the medium of bank checks and drafts. Indeed, it would be next to
impossible to carry on the great business transactions of this country, which aggregate
hundreds of billions of dollars annually, without the aid of a well-organized banking system.
It needs no extended argument to establish the fact that the banking business is in a class by
itself. The assertion of the fact should be sufficient. While the business of banking may not be
prohibited, it may be regulated, and it is of the highest importance to the public welfare that it
be regulated by wise legislation. It is a matter of common knowledge that the deposits in the
banks of the country exceed many times the total amount of actual money within the country.
The solvency of the banks of the country must of necessity rest upon the value of their
securities, rather than upon the actual amount of cash which may be within their vaults, very
much the same as the wealth of the nation or state is represented, not merely by the amount of
money within the treasury or in circulation among the people, but mainly upon the vast
resources of the country of every character and description.
Common experience has abundantly demonstrated that the prosperity of the country is very
largely influenced by public confidence in its banking institutions. Anything which tends to
shake that confidence and causes depositors in banks to withdraw their deposits, produces
contraction in business, which may result, and at times has resulted, in panics which have
brought ruin and disaster to thousands, and seriously affected the welfare and happiness of the
public generally for greater or less periods of time. If a person or corporation engaged in
mercantile pursuits for example should fail, the injurious results are limited. Such failure does
not tend to shake confidence in the business soundness of other similar enterprises. The case
is different with banking institutions. The suspension of a bank in any locality causes
depositors in other banks in the same locality to become suspicious of the solvency of the
bank with which they may be dealing. Withdrawals follow, and, if they are sufficiently
numerous, a second bank may be forced to at least a temporary suspension.
Every bank suspension tends in a greater or lesser degree to shake confidence in other like
institutions. If it happens to be a large and well-known bank which fails, the greater will be
the extent of the injury which its failure will produce upon other banks, not only in the
locality in which the suspended bank is situated, but also in distant places. Thus may be
brought about a financial panic of nation-wide extent.
To regulate the banking business so as to reduce to a minimum failures in this branch of
business enterprise is not only clearly within the powers of the legislative department of
government, but it may also be said to be an imperative duty for the legislature to enact laws
for the prevention, as far as possible, of bank failures. For this purpose most, if not all of the
states have enacted laws for the inspection of banking institutions by state officials. Banks
organized under the federal laws are for similar reasons examined by government officials.
Other laws have been enacted, all with the same general end in view. A number of states have
enacted statutes making it a crime to receive deposits into a bank after it is known that the
bank is in an insolvent condition. The purpose of these penal statutes is not only to protect
innocent depositors, but to deter banking officials from so conducting the business of the
bank as to endanger its solvency. These statutes vary in form and effect in different states, but
their purpose is the same. Prior to the act of 1907, supra (Stats. 1907, p. 414, c. 189), this
state had no legislation of this character; the general laws making it a crime for any one to
wrongfully convert to his own use the property of another applied to bank officials who
embezzled bank funds, the same as they did to any person who might embezzle property or
funds of another. Not until this act, however, was it attempted to make it an offense for an
owner, officer, or employee of a bank to receive a deposit into an insolvent bank, he knowing
it at the time to be insolvent. Under the provisions of this act, although the official receiving
the deposit may have no interest whatever in the bank, and although he may receive no
personal benefit from the deposit, still he is made criminally liable, if at the time he has
knowledge of the bank's insolvent condition.
Counsel for petitioner argues that, unless a false pretense is read into the statute, no
justification exists for penalizing the receiving of a deposit into an insolvent bank, and that a
court has no power to read into the statute a false pretense. It must be conceded that a court
has no legislative powers and cannot read into a statute something that is not within the
manifest intention of the legislature as gathered from the statute itself. The function of a
court, however, is to determine the intention of the legislature from the language used in
accordance with the established rules of statutory construction. If it can be said that when a
bank is opened and is doing business with the public that of itself is in effect a public
declaration of solvency, then we can see no necessity of the legislature in passing a statute
dealing with the subject to declare in the statute the existence of a state of facts which must
be conceded to exist. A bank does business upon the confidence of the public in its solvency.
When the public ceases to have such confidence, the suspension of the bank is inevitable.
In the case of Baker v. State, 54 Wis. 368, 12 N. W. 12, the court, considering a similar
statute, said: A bank implies capital, and capital invites confidence. A man holding himself
out as banker or broker thereby gives public proclamation that he has money and property
readily convertible into money in his possession and subject to his control, and for that reason
he may be safely trusted. It requires no argument to show that such assurance is most inviting
and influential with the mass of the people, especially with those unacquainted with the
history and character of the man. With them the banker or broker is intrusted with money
merely because he is a banker or broker, and hence supposed to have surplus capital as a
standing guaranty of his agreements and his integrity. For an insolvent banker, company, or
corporation to continue the business of banking is to hold out assurances of responsibility and
surplus capital where neither exists. To do so knowingly is to secure the confidence, and
hence obtain the money, of the ignorant and unwary by an implied deception. It is the old
story of securing the victim by a display of false colors. To suppress this mischief, to save
the public from being induced to deposit money with such insolvent by the implied
assurance of responsibility and wealth essential to the business, when they do not in fact
exist, was the evident purpose of the statute."
to save the public from being induced to deposit money with such insolvent by the implied
assurance of responsibility and wealth essential to the business, when they do not in fact
exist, was the evident purpose of the statute.
See, also, In re Koetting, 90 Wis. 166, 62 N. W. 622; State v. Shove, 96 Wis. 1, 70 N. W.
312; 37 L. R. A. 142, 65 Am. St. Rep. 17; In re Cook (C. C.) 49 Fed. 833, 842.
In Meadowcraft v. People, the Supreme Court of Illinois, considering the statute of that
state, said: As said by the Supreme Court of Wisconsin in Baker v. State, 54 Wis. 368, 12 N.
W. 12, a bank implies capital, and invites confidence. A man holding himself out as a banker
thereby gives public proclamation that he has money and property readily convertible into
money in his possession and subject to his control, and for that reason he may be safely
trusted; and his business not only affects himself as a banker, but every person who deals with
him as such. The object of the statute that is here challenged was evidently to protect the
public from being induced to deposit money with insolvent bankers, and there are manifest
reason and necessity for protecting the community in their dealings with persons engaged in
the banking business that do not exist in respect to their transactions with those employed in
the ordinary agricultural, manufacturing, merchandising and mining pursuits. (Meadowcraft
v. People, 163 Ill. 56, 45 N. E. 303, 35 L. R. A. 176, 54 Am. St. Rep. 477.)
See, also, State v. Darrah, 152 Mo. 522, 54 S. W. 226; McClure v. People, 27 Colo. 358,
61 Pac. 612; Robertson v. People, 20 Colo. 279, 38 Pac. 326; State v. Beach, 147 Ind. 74, 43
N. E. 949, 46 N. E. 145, 36 L. R. A. 179.
In the case of Commonwealth v. Rockafellow, 163 Pa. 139, 29 Atl. 757, considering the
case of a defendant convicted for the violation of a statute very similar to ours, and which
statute, hereinafter quoted, makes no reference to fraud or false pretense, the court said: The
offense clearly and distinctly defined is the fraudulent receipt of the money of a depositor.
A bank of necessity must do business with the public upon its virtual declaration of
solvency. The legislature, within the lawful exercise of its police power, can impose a penalty
for the conduct of such business when such bank or banker is in fact insolvent.
the conduct of such business when such bank or banker is in fact insolvent. The contention
that this statute violates the provisions of the Constitution of this state inhibiting any special
law for the punishment of crimes or misdemeanors, and that it is class legislation, is without
merit. This court has repeatedly held that the legislature may enact laws which apply only to
certain classes, if the basis or the classification is reasonable. (Pyramid L. and L. Co. v.
Pierce, 30 Nev. 237; Ex Parte Boyce, 27 Nev. 299; State v. Cal. M. Co., 15 Nev. 249.)
Judge Cooley treating this subject in his work on Constitutional Limitations, at pages 482,
483, says: The legislature may also deem it desirable to prescribe peculiar rules for the
several occupations, and to establish distinctions in the rights, obligations, duties, and
capacities of citizens. The business of common carriers, for instance, or of bankers, may
require special statutory regulations for the general benefit, and it may be a matter of public
policy to give laborers in one business a specific lien for their wages when it would be
impracticable or impolitic to do the same for persons engaged in some other employments. If
the laws be otherwise unobjectionable, all that can be required in these cases is that they be
general in their application to the class or locality to which they apply, and they are then
public in character, and of their propriety and policy the legislature must judge. Laws which
regulate criminal prosecutions and proceedings or provide that acts done by certain classes of
persons shall be crimes and state the punishment therefor are valid as applying to all of a
class, where the classification is based upon a reasonable distinction; and it is for the
legislature, and not the courts, to decide what is a reasonable distinction; the courts being able
to hold a law unconstitutional only when the classification is based on purely statutory
grounds. (8 Cyc. 1055, and authorities cited.)
In the case of Gulf R. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, the
Supreme Court of the United States said: It is not within the scope of the fourteenth
amendment to withhold from the states the power of classification, and, if the law deals alike
with all of a certain class, it is not obnoxious to the charge of a denial of equal protection.
While, as a general proposition, this is undeniably true, yet it is quite true that such
classification cannot be made arbitrarily. The classification must always rest upon some
difference which bears a reasonable and just relation to the act in respect to which the
classification is proposed, and can never be made arbitrarily and without any such basis.
Classification for legislative purposes must have some reasonable basis on which to stand. It
must be evident that differences which would serve for a classification for some purposes
furnish no reason whatever for a classification for other legislative purposes. The differences
which will support class legislation must be such as in the nature of things furnish a
reasonable basis for similar laws and regulations.' We think it manifest that there is a
reasonable basis for such a classification as is made by the statute in question.
In the case of Easton v. Iowa, 188 U. S. 220, 23 Sup. Ct. 288, 47 L. Ed. 452, a case
involving the conviction of a president of a national bank under the Iowa statute, the Supreme
Court of the United States said: Undoubtedly a state has the legitimate power to define and
punish crimes by general laws applicable to all persons within its jurisdiction. So, likewise, it
may declare, by special laws, certain acts to be criminal offenses when committed by officers
or agents of its own banks and institutions. But it is without lawful power to make such
special laws applicable to banks organized and operating under the laws of the United
States. See, also, Dreyer v. Pease (C. C.) 88 Fed. 878.
In the case of Baker v. State, supra, which was decided in 1882, the Wisconsin court
mentions the States of Illinois, Iowa, Kansas, Louisiana, California, Missouri, South
Carolina, and Michigan as having statutes of this character, and says: These statutes like our
own are of recent date, and we are not aware of the constitutionality of any of them having
been brought in question in any court; but the extent of the legislation seems to indicate a
pretty general belief in the legislative power. To the foregoing list of states may be added
many others, but in all cases where the constitutionality of these statutes have been raised so
far as we are aware they have in every instance been sustained. In a number of cases where
convictions have been considered under acts of this character no constitutional questions
appear to have been raised.
where convictions have been considered under acts of this character no constitutional
questions appear to have been raised.
A case to which our attention has been called, but which, we think, can hardly be regarded
as exceptional, is that of Carr v. State, 106 Ala. 35, 17 South. 350, 34 L. R. A. 634, 54 Am.
St. Rep. 17. The act in question in that case made it a misdemeanor for the president, cashier,
or other officer of a bank, etc., to receive a deposit, knowing or having good cause to believe
that the bank is in a failing condition. For such an offense a fine was imposed of not less than
double the amount of the deposit, one-half of which should go to the person who made the
deposit. A further section provided that the payment back to the depositor of the amount of
the deposit before conviction together with costs shall be a good and lawful defense to any
prosecution under this act. A brief excerpt from the opinion will serve to distinguish this
case from other cases, although it is manifest, we think, that the Alabama statute under
consideration differs materially in character from those adopted in other states to which our
attention has been called:
There cannot be two opinions as to the intent and meaning or the effect upon the whole
enactment of this last and most remarkable provision. It is a declaration of the baldest and the
most direct character to one party to a transaction whereby he has incurred a debt to the other
in the name of the state that, unless he has paid that debt, he shall be arrested, held to trial,
tried, convicted, fined and imprisoned at hard labor, and this obviously not for any taint of
criminality in the transaction out of which the debt arose, but purely and simply for the
nonpayment of the debt. For this default, and until it is purged either by simply paying the
debt and accrued costs before conviction or by working out double the debt and costs, the
debtor may be imprisoned for an indefinite time before trial merely and only because he does
not pay the debt and expenses of putting this coercion upon him, there being no pretense of
even ultimately punishing him for taking the deposit, if the preliminary imprisonment shall
have the desired effect of extorting the money he owes the depositor out of him.
ment shall have the desired effect of extorting the money he owes the depositor out of him.
* * *
This statute was held unconstitutional because it violated the provisions of the Alabama
Constitution inhibiting imprisonment for debt, which constitutional provisions, however,
differ from ours, in that the Nevada Constitution makes an exception in cases of fraud, libel,
or slander, while the Alabama Constitution makes no exceptions. The Pennsylvania statute
heretofore referred to provides: That any banker, broker or officer of any trust or savings
institution, national, state or private bank, who shall take and receive money from a depositor
with the knowledge that he, they or the bank is at that time insolvent, shall be guilty of
embezzlement and shall be punished by a fine in double the amount so received, and
imprisoned from one to three years in the penitentiary. Laws Pa. 1889 (P. L. 145).
In a note to the case of Commonwealth v. Junkin, 170 Pa. 194, 32 Atl. 617, 31 L. R. A.
124, we find: In Commonwealth v. Smith, 31 Lanc. Law Rev. 350, the Pennsylvania act of
May 9, 1889, was attacked as unconstitutional, but the court, without directly passing upon
the question, upheld the indictment, thereby implying that the statute was constitutional.
In the case of Commonwealth v. Rockafellow, supra, the conviction of a private banker
was sustained under the act. The question of its constitutionality, however, was not brought in
question. The court said: The indictment charges that the defendant, being a banker and
knowing he was insolvent, received money from a depositor. The averment in the indictment
follows the language of the act, and is in substantial compliance with the rules of criminal
pleading. The offense clearly and distinctly defined is the fraudulent receipt of the money of a
depositor. The act is not to be nullified because this is called embezzlement, and by a
construction which reads into its provisions the definition of that offense. The word was not
well chosen, but the intention is clear.
See also the case of Commonwealth v. Hazlett, 14 Pa. Super. Ct. 352.
The statute of this state is identical with, and was doubtless copied from, the California
statute adopted February 14, 1S72, excepting that the California statute makes the
offense only a misdemeanor.
less copied from, the California statute adopted February 14, 1872, excepting that the
California statute makes the offense only a misdemeanor. (Cal. Penal Code, sec. 562.)
Our attention has not been called to, nor have we been able to find, any decision by the
California courts based upon this statute.
A very careful and extended consideration of the able and exhaustive argument of counsel
for petitioner fails to convince us that the act in question is violative of any constitutional
provision. Our conclusion is to the contrary.
No valid reason appearing for the discharge of the said T. B. Rickey, it is ordered that he
be remanded to the custody of the sheriff of Ormsby County, to take effect Monday, February
1, 1909, at 2 o'clock p.m., subject to the further order of the court.
____________
[No. 1790]
Ex Parte PITTMAN
Original proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of
habeas corpus. Prisoner remanded.
The facts sufficiently appear in the opinion.
James F. Peck and W. B. Pittman, for Petitioner.
R. C. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, and P. A.
McCarran and E. E. Roberts, District Attorneys for the State.
This is an original proceeding in habeas corpus. From the return upon the writ heretofore
issued it appears that the said T. B. Rickey was at the time of its issuance held in custody by
the sheriff of Esmeralda County upon a bench warrant duly issued by the First Judicial
District Court of the State of Nevada in and for Esmeralda County upon an indictment found
by the grand jury of said county, charging the said T. B. Rickey with a felony, to wit, the
crime of embezzlement, contrary to the provisions of that certain act of the legislature,
entitled "An act making any banker, or any officer, agent or clerk of any bank, receiving
deposits, knowing that said bank is insolvent, guilty of embezzlement, and providing for
the punishment thereof," approved March 29, 1907.
islature, entitled An act making any banker, or any officer, agent or clerk of any bank,
receiving deposits, knowing that said bank is insolvent, guilty of embezzlement, and
providing for the punishment thereof, approved March 29, 1907. (Stats. 1907, p. 414, c.
189.)
The question presented in this proceeding, to wit, the constitutionality of the
above-entitled act, is identical with that involved in the case similarly entitled (No. 1795), this
day decided.
For the reasons stated in the opinion in the case last mentioned, no valid reason appears for
the discharge of the said T. B. Rickey.
Wherefore, it is ordered that he be remanded to the custody of the sheriff of Esmeralda
County upon his release from custody by the sheriff of Ormsby County.
____________
31 Nev. 57, 57 (1909) State v. McBride
[No. 1804]
THE STATE OF NEVADA, ex rel. THE HENDERSON BANKING COMPANY, a
Corporation, Relator, v. J. A. McBRIDE and H. S. TABER, et. al., Respondents.
1. Schools and School DistrictsTrusteesAuthority.
The jurisdiction of school district trustees is limited to the legislative authority conferred upon them.
2. CountiesCounty CommissionersAuthority.
The jurisdiction of county commissioners is limited to the legislative authority conferred upon them.
3. Schools and School DistrictsBondsTax Levies.
Under the act of March 6, 1907, authorizing a school district to issue bonds to build a schoolhouse, under
section 8, limiting annual levies on account of the bonds to $1,000, under the act of March 12, 1907, as
amended by the act of February 8, 1908 (sec. 2), authorizing school districts to issue bonds to build school
buildings, and under section 7, requiring annual levies to redeem the bonds to be equal, a school district
cannot issue bonds maturing at the rate of $1,000 annually for the first eight years and at the rate of $1,500
during the remaining eight years.
4. MandamusSubjects of ReliefIssuance of Bonds.
Mandamus will not lie to compel officers to execute bonds not in accordance with law.
Original proceeding. Mandamus by the State of Nevada, on the relation of the Henderson
Banking Company, against J. A. McBride and H. S. Taber, Chairman and Clerk of the Board
of School Trustees of Elko School District.
J. A. McBride and H. S. Taber, Chairman and Clerk of the Board of School Trustees of Elko
School District. Writ denied.

Lewers & Henderson, for Relator:
The only issue that is apparent, or which has been called to our attention, is whether the
scheme of redemption of the bonds authorized by the trustees and the voters of the district
invalidates the issue. The bonds as authorized are for $20,000, to be redeemed at the rate of
$1,000 a year for the first eight years and $1,500 a year for the next eight years, so that the
entire issue would be taken up in sixteen years. Section 7 of the act under which the bonds
were issued provides that the commissioners shall raise annually a sum sufficient to pay
annually a proportion of the principal of said bonds equal to a sum produced by taking the
whole amount of said bonds outstanding and dividing it by the number of years said bonds
then have to run. It then provides that this shall be known as a sinking fund, and shall be
used in paying off the bonds. It is contended that this provision of the statute makes it
necessary that an equal amount should be redeemed every year, in our case of $1,250. It is
respectfully submitted that this contention is not well made, for the following reasons:
Sections 2 and 3 of the act of 1908 authorize the trustees to make a proposal to the voters
fixing the amount and denomination of the bonds and the number of years, not exceeding
twenty, they are to run. Section 4 authorizes the trustees after the election to issue the bonds
in such form and denomination as the board of trustees may direct. Under these sections the
trustees are not compelled to adopt any one style of bond. They might make all the bonds
redeemable in twenty years from issue; they might make them all run for twenty years and
pay installments on each bond every year; they might provide for retiring one or more bonds
every year or at intervals of several years; they can fix the number and denomination of the
bonds in any form they see fit within the established limits; and they may fix the interest at
any figure not exceeding eight per cent.
est at any figure not exceeding eight per cent. In short, they are vested with a wide discretion
as to the form and manner of payment of the bonds. Section 7, defining the duty of the county
commissioners, is intended, not as a check on the trustees, but as a direction to the
commissioners to provide funds for redemption of the bonds. No matter what scheme is
adopted by the trustees, within the lines indicated above, there would be a sinking fund on
hand to pay the bonds in full at the end of the time set.
No question is raised here as to the power of the district to issue the bonds, but merely as
to their form. An examination of the entire statute does not reveal any legislative intent to
restrict the trustees to any particular method of redemption. The trustees are given
discretionary powers within certain limits as to the total time, amount and interest, and the
commissioners are directed to collect a tax sufficient to pay off any form of bonds within
these limits. In this connection it is significant that the statute provides that the tax for
redemption shall go into a sinking fund. A sinking fund is an accumulated and accumulating
fund to be drawn on in the future. If it had been the purpose of the legislature to require this
amount to be at once paid out in full each year as soon as collected, other language would
have been employed. Even if we could be satisfied from an inspection of the entire statute
that the legislature had in mind the retiring of an equal amount of the bonds every year, it is
still apparent that this was not made mandatory. There is nothing to indicate that a strict
compliance was deemed essential. In this connection the following language of Judge Cooley,
quoted with approval by Chief Justice Hawley in Odd Fellows Bank v. Quillen, 11 Nev. 114
(a bond case), is directly applicable: Those directions, which are not of the essence of the
thing to be done, but which are given with a view to the proper, orderly and prompt conduct
of the business, and by a failure to obey which the rights of those interested will not be
prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but
not in the time or in the precise mode indicated, it may still be sufficient if that which is done
accomplishes the substantial purpose of the statute.
Following this quotation, Justice Hawley adds: In determining this question, as well as
every other that involves a construction of the statute, we must carry into effect the intention
the legislature had in view in adopting it, in order to secure, if possible, the object intended to
be secured by the statute. It will be observed that no negative words are used which forbid the
detaching of the coupons from the bonds by any other person than the treasurer. We think it is
clear that the legislature, in adopting the provision, inserted the clause requiring the treasurer
to detach the coupons as a mere matter of form. This language is directly to the point we are
now considering. No negative words are employed in the act of 1908 to the effect that an
equal amount must be redeemed each year. The scheme adopted by the trustees and voters
accomplishes the substantial purpose of the statute and the proposed bonds are therefore legal
in every respect. We do not find in this statute or in any other statute concerning taxation or
the duties and powers of county commissioners or treasurers anything prohibiting the
accumulation of special funds from year to year. On the other hand, the right to accumulate is
clearly recognized. Section 2324 of the Compiled Laws requires the treasurer to deliver to his
successor all public moneys in his possession. Section 1207 requires him to keep all moneys
received by him until paid out on proper order. Section 1224 provides that a redemption fund
shall be set aside and kept for the payment of any special outstanding indebtedness. And
section 2133 prohibits the interference with any such special fund.
There is therefore nothing to prevent the treasurer of Elko County from receiving annually
the sum of $1,250, putting it into the sinking fund created by the act of 1908, and paying it
out at the rate of $1,000 a year for the first eight years and $1,500 a year for the second eight
years. The right to issue bonds substantially complying with the law, even though technically
assailable, has been definitely recognized by respectable authority.
Thus, where a municipality is authorized to issue bonds between certain denominations,
bonds of any other denomination not exceeding the limits are good, without regard to the
denomination mentioned in the proposal.
denomination mentioned in the proposal. (Greene County v. Daniel, 102 U. S. 87; Turner v.
Woodson County, 27 Kan. 314.)
Under authority to issue bonds payable in fifteen years from the date of the statute, bonds
issued four years after and made payable in eleven years were held valid. (Gilchrist v. Little
Rock, 1 Dill. 261.)
And where bonds were authorized for thirty years, bonds payable in thirty years and
thirty-five days, with interest for thirty years only, were held good. (Rock Creek v. Strong, 96
U. S. 271.)
And it is no objection to bonds that interest is made payable semi-annually, though the
proposition was for interest payable annually. (Commissioners v. Clark, 94 U. S. 278; Wilson
v. Neal, 23 Fed. 129; Myer v. Muscatine, 1 Wall. 384.)
The peculiar nature of this case, depending so directly on the interpretation of our own
statute, has made it impossible to find authorities directly in point. We believe, however, that
those cited indicate that the substantial purpose of the statute must be sustained and kept in
view, and that apparent departures from a strict interpretation of the statute must be
disregarded as long as the legislature has not clearly shown that strict compliance is a
condition precedent.
It is our contention, however, that the bonds we now ask to have signed, preparatory to
registration and the other steps necessary for final issue, are legal even under the strictest
construction of the statute, for the reasons indicated.
Samuel Platt, for Respondent.
By the Court, Talbot, J.:
The relator seeks a writ of mandate commanding respondents, as chairman and clerk of the
board of school trustees of Elko School District, to execute and tender certain bonds, the
validity or invalidity of which would depend upon the following circumstances and
enactments: The board ordered that the question of contracting a bonded indebtedness of
$20,000 for constructing school buildings be submitted to the voters of the district at a special
election, and in this connection recommended that bonds should be issued, forty in number,
for $500 each, bearing 6 per cent interest, to be redeemed in sixteen years, at the rate of
$1,000 annually for the first eight years, and $1,500 annually for the next eight years.
each, bearing 6 per cent interest, to be redeemed in sixteen years, at the rate of $1,000
annually for the first eight years, and $1,500 annually for the next eight years. At the election
which followed, the proposition was carried by a vote of more than 100 to 1. Subsequently,
and after a change in the personnel of the board, it was ordered that the bond issue so voted
should be made, and after advertising for, and the presentation of, bids, it was ordered that the
one submitted by relator, the same being for all the bonds at par, be accepted, and that the
bonds be issued accordingly. Thereafter relator tendered to respondents, as chairman and
clerk of the board, $20,000 in gold coin and requested that the bonds be executed and
delivered, which was refused by respondents on the sole ground that the times and amounts of
redemption provided in the resolution and notice and in the bonds were not in accordance
with the law under which the bonds were voted.
In the act authorizing the trustees of Elko School District to issue bonds for the purpose of
building a new schoolhouse, approved March 6, 1907, it is provided:
Sec. 2. Said bonds shall be issued for sums not less than one hundred dollars each in gold
coin, and shall be sold at not less than par value, and shall be payable to bearer, and the
interest thereon shall be payable annually, and coupons of each installment of such interest
shall be attached to each of said bonds.
Sec. 3. The board of trustees of said school district are hereby authorized, when in their
judgment they deem it advisable, to purchase suitable grounds, to build a new schoolhouse, or
one or more schoolrooms for said district in addition to those now in use, to call an election
for the purpose of providing means therefor. Such election shall be called in the manner
provided by law for calling elections for the purpose of raising money for similar purposes in
school districts, and if a majority of the votes cast at said election in said district by the
persons qualified to vote at said election, shall vote to carry out the recommendations of said
board of trustees, then the said board shall proceed to issue the bonds herein provided for in
this act, but before doing so said board of trustees shall certify the result of said election to
the board of county commissioners of said county.
shall certify the result of said election to the board of county commissioners of said county.
Sec. 8. To provide for the payment of the bonds herein authorized to be issued, the said
board of county commissioners shall, in the year 1907 and annually thereafter, levy a special
and additional tax upon all the property situated within said School District No. 1, sufficient
in their judgment to raise the sum of one thousand dollars each year, which shall be assessed
and collected the same as other taxes, paid to the county treasurer, and by him assigned to the
general fund of said county. At the maturity of said bonds, they shall be paid by the county
treasurer out of the general fund of the county, upon the presentation and surrender of said
bonds. If the tax, so as aforesaid levied, for the redemption of said bonds, shall exceed the
sum of one thousand dollars a year, whenever the aggregate amount of money so collected
shall equal the full sum necessary to redeem said bonds the tax hereby authorized for such
purpose shall cease, and should there be any excess over and above the amount required to
carry out the provisions of this act, the amount of such excess shall be transferred to the
school fund of said district. Should the amount of said tax realized be less than the amount
necessary for the redemption of said bonds, they shall, nevertheless, be redeemed and paid
out of said general fund, as herein provided, and a special tax shall be levied by the county
commissioners, upon the property within said school district for the year in which the last
bond shall fall due, sufficient to cover said deficiency, which tax shall be levied, assessed and
collected in the usual manner, and paid into the general fund of said county. (Stats. 1907, pp.
93, 94, c. 47.)
The act approved February 8, 1908, has the following provisions:
Section 1. Any school district of the state now existing, or which may hereafter be
created, is hereby authorized to borrow money for the purposes of erecting and furnishing a
school building or buildings, or purchasing ground upon which to erect such school building
or buildings, or for refunding floating indebtedness, by issuing the negotiable coupon bonds
of the district in the manner by this act provided.
coupon bonds of the district in the manner by this act provided.
Sec. 2. When the board of trustees of any school district shall deem it necessary to incur
an indebtedness authorized by this act by issuing the negotiable coupon bonds of the district,
such board of trustees shall first determine the amount of such bonds to be issued, and a
certificate of such determination shall be made and entered in and upon the records of said
district. Thereupon, the board of school trustees shall, by resolution duly made and entered in
and upon the records of said board, submit the question of contracting a bonded indebtedness
for any of the purposes authorized by this act to a vote of the duly qualified electors of the
district at the next general election of the school trustees, or at a special election which the
school trustees are hereby authorized to call for such purpose.
Sec. 7. * * * Beginning with the year the bonds are issued, and annually thereafter, until
the full payment of said bonds has been made, the board of county commissioners of the
county in which said school district is situated shall levy and assess a special tax, and shall
cause said special tax to be collected on all property of the school district, including the net
proceeds of mines, sufficient to pay annually a proportion of the principal of said bonds equal
to a sum produced by taking the whole amount of said bonds outstanding and dividing it by
the number of years said bonds then have to run, which amount shall be levied, assessed and
collected in the same manner as the tax for the payment of the interest coupons, and when
collected shall be known as the sinking fund,' and shall be used only in the payment of such
bonds * * *.
It must be conceded as an elementary proposition that boards of school trustees and county
commissioners are limited in their jurisdiction to the legislative authority conferred upon
them. The question involved is whether the Elko school district was authorized by any
statutory enactment to make or vote any bond issue which did not provide for the maturity
and payment of the bonds in equal annual installments. As is sought to be done, is it legal for
the district to make a bond issue for $20,000 to be redeemed at the rate of $1,000 for the
first eight years and at the rate of $1,500 for the next eight years?
rate of $1,000 for the first eight years and at the rate of $1,500 for the next eight years? If so,
it may be conceded that bonds in this amount could be issued maturing at the rate of $100 a
year for nineteen years, and the balance of $18,100 payable on the twentieth year by future
taxpayers, or that all of the principal of the bonds could be made payable on the sixteenth or
twentieth year.
By scanning the statutes to see if such issue is warranted, it may be said that section 1 first
above quoted fixes a maximum time of twenty years and amount of $20,000, either of which
might be reduced by the district without stating whether any of the bonds issued might be
made to mature in equal or unequal proportions annually. Seeking something more definite in
relation to the authorization for the tax levy to meet the payment of the bonds which is most
essential to their value and validity, the only levy authorized by section 8 of the first act
mentioned is one for a special additional tax upon all the property in the district, sufficient in
the judgment of the board of county commissioners to raise the sum of $1,000 each year.
Hence the attempt to make part of the bonds payable at the rate of $1,500 per year is not
authorized, and there is no provision in the act first mentioned, relating to the Elko school
district, which would allow a levy for more than $1,000 annually. True, section 8 attempts to
provide that, if the amount of the tax realized from this special levy in the district made for
the purpose of retiring these bonds be less than necessary for the redemption, they shall
nevertheless be redeemed and paid out of the general fund, and that a special tax shall be
levied by the county commissioners upon the property within the school district for the year
in which the last bond shall fall due, sufficient to cover such deficiency, which shall be paid
into the general fund of the county. Without determining whether the money might not be
borrowed from the general fund of the county temporarily to meet a deficiency caused by the
amount collected from the district being less than had been estimated and expected by the
board of county commissioners for the payment of the bonds maturing during any year, the
impropriety and illegality of requiring the general fund of the county to pay for several years
the bonds maturing in excess of the amount for which any levy is authorized against the
district is apparent.
county to pay for several years the bonds maturing in excess of the amount for which any levy
is authorized against the district is apparent. Otherwise, if the district could issue bonds to
mature in amounts in excess of $1,000 annually as attempted here, it could provide that
several thousand dollars should mature annually, only $1,000 of which could be collected
from the district, and the general fund of the county would have to pay the remainder, and
possibly a much larger amount yearly, toward retiring the bonds, than the school district, and
the county would have to wait till the last of the bonds matured before it could be repaid, and
then there is no provision by which it could receive any interest. As section 8 limits the levy
in the district to $1,000 annually, it cannot be presumed that the legislature intended that the
bonds should mature in a larger amount, and consequently to allow more than $1,000 of the
bonds to mature annually would not be within the purpose and spirit of the act. The provision
for payment of any deficiency from the general fund may have been intended to meet any
possible shortage in a levy made by the board of county commissioners for the purpose of
redeeming not more than $1,000 worth of the bonds annually.
Looking to the later act of March 12, 1907 (Stats. 1907, p. 106, c. 59), as amended
February 8, 1908, section 1 authorizes any school district of the state to borrow money for the
purpose of purchasing ground and erecting and furnishing school buildings. Section 2 and the
following sections allow the board of trustees, subject to the election and will of a majority of
the voters of the district, to issue bonds in any amount desired. Section 7 expressly provides
that the county commissioners shall levy a special tax sufficient to pay annually a proportion
of the principal of the bonds equal to the sum produced by taking the whole amount of the
bonds outstanding and dividing it by the number of years the bonds then have to run. As the
former act provides for an annual levy for $1,000 only, which would not be sufficient to retire
$1,500 of the bonds, and as the later statute authorizes levies for the raising of equal amounts
annually, it is apparent that respondents ought not be required to execute and deliver bonds
which would mature at the rate of $1,000 annually during the first eight years and at the
rate of $1,500 annually during the next eight years.
eight years and at the rate of $1,500 annually during the next eight years.
We wish to be understood as considering the case only in reference to the application
before us for a writ of mandate which will not lie to compel officers to execute bonds not in
accordance with law.
The petition for the writ is denied.
____________
31 Nev. 67, 67 (1909) State v. Lytton
[No. 1819]
THE STATE OF NEVADA, ex rel. THE HENDERSON BANKING COMPANY, a
Corporation, Relator, v. EDWARD B. LYTTON, Chairman of the Board of County
Commissioners of Elko County, Respondent.
1. StatutesLocal and Special LawsCounty Bonds.
The act of March 28, 1907, authorizing a particular county to issue bonds to build a court-house and a
jail, is not unconstitutional under the Constitution (art. IV, sec. 20), which inhibits local or special laws
regulating county business, nor under sections 21 and 25 requiring the county government system to be
uniform, and all laws to be general and of uniform operation throughout the state, where general laws can
be made applicable.
Original proceeding. Mandamus by the State of Nevada, on the relation of the Henderson
Banking Company, against Edward B. Lytton, Chairman of the Board of County
Commissioners of Elko County. Writ issued.
Statement of Facts
Pursuant to the act approved March 28, 1907 (Stats. 1907, p. 335, c. 139), providing for
the issuance of bonds in the sum of $100,000 for building a court-house and jail for Elko
County, at the regular election in 1908 a majority of the electors voted in favor of the
issuance of bonds in the amount named. On the 16th day of December the board of county
commissioners ordered that the bonds be issued, and that notice be given to bidders that they
would be sold on January 16, 1909. Bids were received on that day, and at an adjourned
meeting on January 18th it was ordered that the bid of relator be accepted. On February 1,
1909, the board ratified all proceedings theretofore had in reference to their issuance, and
directed that one hundred bonds of the denomination of $1,000 each, bearing 6 per cent
interest per annum, dated February 1, 1909, be issued to relator.
issuance, and directed that one hundred bonds of the denomination of $1,000 each, bearing 6
per cent interest per annum, dated February 1, 1909, be issued to relator. At the same meeting
the board approved and adopted a form of bond with necessary interest coupons, and ordered
that the chairman of the board, who is respondent here, sign each of the bonds, and that they
be countersigned by the county treasurer and attested by the county clerk, and that, when
properly executed, they be delivered to relator upon its payment to the county treasurer of the
sum of $104,280 and accrued interest to the date of delivery. Thereafter relator presented to
the respondent, as chairman of the board of county commissioners, and to the county
treasurer and county clerk, unexecuted bonds in the form previously approved by the board,
and tendered to these officers the above-named sum, with accrued interest, and requested
respondent, the county treasurer, and county clerk to execute the bonds and receive the
money. Respondent refused to comply with the request or to execute the bonds, on the sole
ground that the statute is repugnant to the Constitution because it provides for the issuance of
bonds for building a court-house and jail in Elko County only, and is not applicable to other
counties. Relator asks for a writ of mandate commanding respondent, as chairman of the
board of county commissioners, to execute and tender the bonds to the relator.
Henderson, Lewers & Caine, for Relator.
E. J. L. Taber, for Respondent.
By the Court, Talbot, J. (after stating the facts):
The only question presented is whether the act providing for the issuance of bonds for
building a new court-house and jail in Elko County, and which is not applicable to other
counties, is in contravention of section 20, article IV, of the State Constitution, which
prohibits the legislature from passing local or special laws regulating county and township
business, or is inimical to section 21 and 25 of the same article, requiring that the system of
county and township government shall be uniform, and that in all cases where a general law
can be made applicable, all laws shall be general and of uniform operation throughout the
state.
can be made applicable, all laws shall be general and of uniform operation throughout the
state. Ever since the organization of our commonwealth it has been usual for the legislature to
pass laws relating to particular counties providing for the issuance of bonds in such varying
amounts as the exigencies and conditions required for the erection of court-houses and other
purposes. Many of these have been enacted since this court held that such legislation was
constitutional and valid. At the last regular session of the legislature acts were passed for the
issuance of bonds for new court-houses in three specified counties of the state, and fifteen
other acts provide for the issuance of bonds for shcoolhouses, and other purposes, in different
localities. The most of the indebtedness of the various counties, cities, towns, and districts of
the state, and much of which is of long standing, rests upon enactments specially authorizing
the issuance of bonds in such instances. The validity of these acts has been considered so
extensively, and sustained so often, by this court and the Supreme Court of the United States,
that we must consider the matter settled in favor of their constitutionality. (State ex rel.
Clarke v. Irwin, 5 Nev. 111; Youngs v. Hall, 9 Nev. 212; Thompson v. Turner, 24 Nev. 292;
Lincoln County v. Luning, 133 U. S. 532, 10 Sup. Ct. 363, 33 L. Ed. 766, following Odd
Fellows Bank v. Quillen, 11 Nev. 109.)
Let a writ of mandate issue commanding respondent, as chairman of the board of county
commissioners of Elko County, to sign, execute, and tender the bonds to relator upon proper
payment being made therefor.
____________
31 Nev. 70, 70 (1909) Kapp v. Kapp
[No. 1807]
MARGARET G. KAPP, Respondent, v. CHARLES F. KAPP, Appellant.
1. CourtsStare Decisis.
A point once decided should be unsettled only for very weighty and conclusive reasons.
2. DivorceTemporary AlimonyOrder Not Appealable.
An order increasing alimony pendente lite is not appealable, not being embraced by Civ. Prac. Act, 330
(Comp. Laws 3425) prescribing what judgments and orders may be appealed.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; F. P. Langan, Judge.
Action by Margaret G. Kapp against Charles F. Kapp. From an order increasing alimony
pendente lite, defendant appeals. Dismissed.
Detch & Carney, for Appellant:
I. A careful examination of the text-books and of the authorities will show that the weight
of authority supports the contention that an appeal lies from an order granting alimony
pendente lite, counsel fees and costs. (Sharon v. Sharon, 67 Cal. 185; Lochnane v. Lochnane,
78 Ky. 468; Hecht v. Hecht, 28 Ark. 92; Gruhl v. Gruhl, 123 Ind. 87; Lewis v. Lewis, 20 Mo.
App. 546; Blair v. Blair, 74 Iowa, 314; Blake v. Blake, 80 Ill. 524; Williams v. Williams, 29
Wis. 517; Brigham v. Brigham, 147 Mass. 159; Schuster v. Schuster, 84 Minn. 403; Graves
v. Graves, 50 Ohio St. 196; McCarthy v. McCarthy, 137 N. Y. 500; 2 Nelson on Divorce,
sec. 862; Schonwald v. Schonwald, 62 N. C. 215; McKennon v. McKennon, Okl. 63 Pac.
704.) It will be noticed that not only with reference to the number but with reference to the
standing of the judicial learning of the various courts, that the weight of authority supports the
doctrine that an order granting alimony pendente lite is appealable. It is admitted that in
section 3452 of the Compiled Laws an order of this character is not directly specified as an
appealable order. It, therefore, resolves itself under a proper construction as to whether or not
this is such a final judgment or such special proceedings as is contemplated that an appeal
may be had from such under the first subdivision of that section.
31 Nev. 70, 71 (1909) Kapp v. Kapp
ment or such special proceedings as is contemplated that an appeal may be had from such
under the first subdivision of that section.
Thompson, Morehouse & Thompson, for Respondent:
I. The point is, Is an order allowing alimony before the cause has been heard, and which
order is made to enable the plaintiff to live pending the trial of a cause, a final judgment, from
which, under Comp. Laws. 3425, an appeal can be taken? This court has said distinctly that
the order for alimony in a divorce suit is nonappealable as from a final judgment.
II. The dissenting opinion in Sharon v. Sharon, 67 Cal. 185, certainly is better law, more
humane and reasonable, and it will be seen that other courts will not follow Sharon v.
Sharon. (43 Pac. 106; 10 Pac. 228; 25 N. W. 623.)
III. The case of Lake v. King, 16 Nev. 215, having squarely construed our statute as to
appeals of this kind in divorce cases, that case becomes now in this state stare decisis, and
will not now be disturbed, whatever other courts may rule. And the rule is that a single
decision must not be disregarded except when it is plain that the judgment was the result of a
mistaken view of the condition of the law applicable to the question. (67 Fed. 674; 131 Mo.
26.) And Lake v. King was decided for all time. It has not been overruled or modified. There
was no mistake or obiter dicta, but this question was the issue to be decided and the statute
has not been changed.
IV. And, again, the allowance of alimony is discretionary with the court, and every wife is
entitled to present her grievance to the tribunal of justice, and she is entitled to support from
the property of her husband until the final order of the court; and the dismissal or indefinite
postponement of her cause because of poverty or inability to prosecute the suit for lack of
means should not be visited upon her as a penalty when her husband has ample means. (In re
Kelsey, 43 Pac. 106.)
V. The case of Lake v. King was not only the interpretation of our statute by the trial
judge, but by this supreme court, and has reason, justice and humanity to sustain it, and is
fully sustained by Earls v. Earls, 26 Kan. 17S; Cooper v. Mayhew, 40 Mich. 52S; Chase v.
Ingalls, 97 Mass. 524; Miller v. Miller, 75 N. C. 71; Ex Parte Perkins, 1S Cal.
31 Nev. 70, 72 (1909) Kapp v. Kapp
court, and has reason, justice and humanity to sustain it, and is fully sustained by Earls v.
Earls, 26 Kan. 178; Cooper v. Mayhew, 40 Mich. 528; Chase v. Ingalls, 97 Mass. 524; Miller
v. Miller, 75 N. C. 71; Ex Parte Perkins, 18 Cal. 60.
This is an appeal from an order of the First Judicial District Court in and for the County of
Esmeralda, made in a certain action pending in said court for a dissolution of the bonds of
matrimony, wherein the above-named respondent is plaintiff, and the appellant herein is
defendant. The order appealed from was one made increasing the alimony pendente lite from
$100 per month, as theretofore ordered, to the sum of $200 per month. Respondent herein has
interposed a motion to dismiss the appeal upon the ground that the order appealed from is not
an appealable order under the laws of this state, and that this court has no jurisdiction in the
premises.
Section 330 of the civil practice act of this state (Comp. Laws, 3425) prescribes what
judgments and orders may be appealed from to this court in civil actions or special
proceedings. The section reads: An appeal may be taken: FirstFrom a final judgment in an
action, or special proceedings commenced in the court in which the judgment is rendered,
within one year after the rendition of judgment. SecondFrom a judgment rendered on an
appeal from an inferior court, within ninety days after the rendition of the judgment.
ThirdFrom an order granting or refusing a new trial, from an order granting or dissolving
an injunction, and from an order refusing to grant or dissolve an injunction, from an order
dissolving or refusing to dissolve an attachment, and from any special order made after the
final judgment, within sixty days after the order is made and entered in the minutes of the
court. FourthFrom an interlocutory judgment or order in cases of partition which
determines the right of the several parties, and directs partition, sale or division to be made,
within sixty days after the rendition of the same.
In the case of State v. Langan, 29 Nev. 459, this court said: An appeal to this tribunal is a
matter purely of statutory right, and, unless authorized by statute, any attempted appeal
taken from an order not appealable is void, and therefore could not confer any jurisdiction
upon this court to act.
31 Nev. 70, 73 (1909) Kapp v. Kapp
right, and, unless authorized by statute, any attempted appeal taken from an order not
appealable is void, and therefore could not confer any jurisdiction upon this court to act. It is
clear that, where an order is nonappealable, no jurisdiction can be conferred on or entertained
by this court by the perfecting of an attempted appeal. In that case we held that an order
setting aside a default was not appealable.
In the case of Lake v. King, 16 Nev. 215, which was a proceeding in mandamus, to compel
the respondent, King, as district judge, to settle a statement on appeal from sundry orders for
the payment of alimony and counsel fees in the case of Lake v. Lake (an action for divorce),
this court held that the orders complained of are not included among those from which an
appeal may be taken before final judgment. In that case the question involved in the case at
bar was squarely presented, and determined adversely to the contention of appellant. After
having been once so determined, the point should not be unsettled, except for very weighty
and conclusive reasons. (Evans v. Cook, 11 Nev. 75.)
Counsel for appellant have very strenuously urged that we should adopt the position taken by
the Supreme Court of California in the case of Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456,
635, 8 Pac. 709, wherein it was held that an order directing the payment of alimony was a
final judgment from which an appeal would lie. A very able dissenting opinion was filed in
the case by McKee, J. If the question were new in this state, we might hesitate before
adopting the view expressed in the prevailing opinion in the Sharon case.
The same question came before the Supreme Court of Utah in the case of In re Kelsey, 12
Utah, 393, 43 Pac. 106, in which that court said: In the case from California, above referred
to, it is decided that the order of the court for alimony pendente lite, together with counsel
fees, is a final judgment, and therefore an appeal will lie. A dissenting opinion was written by
Judge McKee, the reasoning of which we think sound, and from which we quote with
approval.
See also Wyatt v. Wyatt, 2 Idaho, 236, 10 Pac. 228.
We think it unnecessary to go into extended discussion of the question, for no weighty
reason appears to us for a change in the settled practice at this time, even conceding that,
as a question of first impression, respectable authority and logical reasoning may be
offered upon both sides.
31 Nev. 70, 74 (1909) Kapp v. Kapp
change in the settled practice at this time, even conceding that, as a question of first
impression, respectable authority and logical reasoning may be offered upon both sides.
Unquestionably a right of appeal from an order for alimony pendente lite could be made a
means of working considerable hardship in many cases. Upon the other hand, it would be
only a case of clear abuse of discretion in the trial court, from which an appellant could be
relieved. Instances of this kind are doubtless rare.
It not being clearly apparent that the right of appeal exists, and this court having heretofore
held to the contrary, it is our conclusion that the appeal should be dismissed, and it is so
ordered.
____________
31 Nev. 74, 74 (1909) Burke v. Buck
[No. 1761]
J. E. BURKE & CO., Respondents, v. HAMILTON BUCK, Appellant.
1. GamingGaming ObligationsBillsValidity.
The common law having been adopted in the state, under the common law as to gaming obligations, as
modified by St. 9 Anne, c. 14, as found in 4 Bac. Abr. 456, making all bills, securities, etc., given for
money advanced during gaming or playing cards, etc., to any person playing, void, a transfer of a
certificate of deposit, indorsed during a game of chance, to enable the indorser to secure funds to continue
the game, was void, so that the transferee acquired no title, and could not recover thereon as against the
indorser.
Action by J. E. Burke and others, doing business as J. E. Burke & Co., against Hamilton
Buck. From a judgment for plaintiffs, and from an order denying a nonsuit, defendant
appeals. Reversed, and judgment directed for appellant.
T. L. Foley and D. S. Truman, for Appellant.
Swallow & Walsh, for Respondents.
31 Nev. 74, 75 (1909) Burke v. Buck
By the Court, Sweeney, J.:
This is an appeal from a judgment, and from an order denying a motion for a nonsuit. The
action was originally brought by the plaintiffs against John S. Cook & Co., a banking
institution, to recover the amount of $500 upon a certain certificate of deposit of date May 25,
1907, issued by said banking institution and payable to the order of Hamilton Buck, the
defendant above named. The complaint further alleged: That on or about the 29th day of
May, 1907, the said Hamilton Buck sold, assigned, and transferred to these plaintiffs, by
proper and legal indorsements, all his rights, title, and interest in and to said promissory note
or negotiable certificate of deposit in writing; that on or about the 31st day of May, 1907, the
plaintiffs presented said promissory note or negotiable certificate of deposit to the said
defendant, and demanded payment thereof; that the said defendant then and there refused to
pay the said $500, or any part thereof, and still so refuses to pay these plaintiffs the said sum.
The defendant, John S. Cook & Co., appeared in the action, and filed a petition, setting forth
that the said Hamilton Buck had on the 25th day of May, 1907, deposited in the bank the sum
of $500, in return for which the certificate of deposit had been issued to him; that on the 30th
day of May, 1907, the said Hamilton Buck notified the defendant bank that he had parted
with said certificate of deposit, and that the same was in the possession of the plaintiffs, or
some other person, but that they were not legally entitled to such possession, nor the
ownership of the said certificate of deposit, and not to pay the same to the plaintiffs, or
anyone except the said Hamilton Buck, and that thereupon payment to plaintiffs was refused.
The defendant bank, not claiming any right, title, or interest in the said certificate except as
aforesaid, was upon motion permitted to pay the same into court, and the said Hamilton Buck
substituted as defendant in the action.
The said defendant Hamilton Buck filed an answer to the complaint of plaintiffs,
containing the following denials and allegations: That he denies that on or about the 29th
day of May, 1907, he sold, assigned, and transferred to the plaintiffs, by proper and legal
indorsements, all his rights, title, and interest in and to the said note or certificate of
deposit, in writing.
31 Nev. 74, 76 (1909) Burke v. Buck
interest in and to the said note or certificate of deposit, in writing. Further answering, the
defendant says that the plaintiff got possession of said certificate of deposit by fraud and
without consideration, and by plying the defendant with intoxicating liquors until he was
incapable of understanding, and unable, from the use of intoxicating liquors so supplied to
him by plaintiffs, to comprehend or understand the effect of what he was doing, when he
parted with possession of the said certificate of deposit which the plaintiffs now hold and
keep from him.
Thereafter, by leave of court, defendant Buck filed an amendment to his answer reading as
follows: That if there was any purported consideration for the indorsement and transfer of
the certificate of deposit mentioned in the complaint herein from him to the plaintiffs in this
action the same was and is an illegal consideration, and one that is against public policy, viz.,
that while this defendant was so intoxicated and under the influence of liquors, as
hereinbefore stated, he gambled at a game of chance then being conducted, operated, owned,
and managed by these plaintiffs, in and at a certain saloon known as the Texas Saloon, at
Goldfield, Nevada, which said game of chance is commonly known as and called roulette,'
and if this defendant indorsed, or in any manner transferred, said certificate of deposit to these
plaintiffs, the same was done to pay for money he had lost while so gambling with these
plaintiffs, or was done to obtain money with which to continue to gamble and play with these
plaintiffs at said game of roulette at their saloon and gambling house at Goldfield, Nevada. If
said certificate of deposit was transferred to said plaintiffs, or either of them, it was only done
by this defendant for said purpose, and none other, and was done with full knowledge of said
plaintiffs of such purpose, upon the part of this defendant, and to furnish him with money
with which to continue to gamble with them at their said game of roulette, and if any money
or other consideration ever passed from either of the plaintiffs in this action to this defendant,
it was only given that said game might be continued, and with a full knowledge of the
intended use of the same by this defendant, and was only so given with the belief and intent,
upon the part of said plaintiffs, to win the said certificate of deposit, and the money it
represented, from this defendant by reason of his said intoxicated condition, and
knowledge that he intended then and there to use the same to play at the said plaintiff's
game of roulette."
31 Nev. 74, 77 (1909) Burke v. Buck
the belief and intent, upon the part of said plaintiffs, to win the said certificate of deposit, and
the money it represented, from this defendant by reason of his said intoxicated condition, and
knowledge that he intended then and there to use the same to play at the said plaintiff's game
of roulette.
Upon the issues thus made by the foregoing pleadings, the parties went to trial. Upon the
conclusion of the testimony offered by the plaintiffs, counsel for defendant interposed a
motion for a nonsuit. The motion being overruled, and the defendant not offering any
evidence, judgment was entered against him for the amount demanded in the complaint.
The evidence upon the part of the plaintiffs, without conflict, shows the following state of
facts: On the evening of the 29th day of May, 1907, the defendant Buck was in a saloon in the
town of Goldfield called The Texas, in which the plaintiffs conducted the gambling game
called roulette. In charge of the game or wheel was one Charles Green, a brother of one
of the plaintiffs. For about two hours prior to the indorsement of the certificate of deposit in
question the defendant Buck had been playing the wheel with varying fortune, until he had
finally lost about $1,000. After losing this amount of money he indorsed the certificate of
deposit in question, and gave it to the dealer, who placed it in the drawer of the roulette table.
The certificate was indorsed upon the roulette table with a pen furnished by one of the
plaintiffs. Upon the indorsement and delivery of the certificate of deposit there was paid to
defendant Buck, upon the said table, the sum of $500 in gold coin, from moneys then being
used in the game. At the time defendant Buck indorsed the certificate of deposit the dealer
testified that Buck did not seem to have any more money, but that he was not indebted to
the plaintiffs. After the indorsement and delivery of the certificate of deposit, defendant Buck
continued to play the game. The dealer testified that he won for quite a while; won $700 or
$800 after he cashed the check, and finally he lost itlost the amount practically of the
check. The dealer later testified that he did not think defendant lost over $400 of the amount
of the certificate.
One Cowell, a bartender in the Texas Saloon, testified to having seen the defendant Buck
"playing the wheel," and saw him indorse the certificate, and receive therefor $500 in
gold.
31 Nev. 74, 78 (1909) Burke v. Buck
having seen the defendant Buck playing the wheel, and saw him indorse the certificate, and
receive therefor $500 in gold. Upon the question of the furnishing of intoxicating liquor to the
defendant we quote from the testimony of this witness as follows:
Q. Where were you at the time this cashing of the instrument was done? A. Serving an
order of drinks at the table.
Q. At the roulette table? A. Yes, sir.
Q. A round of drinks had been ordered by somebody? A. Ordered by the game.
Q. Does the game order drinks for the patrons? A. Yes, sir.
Q. And gives them liquor? A. Anything they want.
Q. Whatever they want; if they want whisky or liquor, or anything, the house furnishes it
to them? A. Yes, sir.
Q. And they repeatedly at the roulette table, in the course of the evening, call for drinks,
don't they? A. Yes, sir; if anybody wants a drink, they ask the dealer to ring the bell.
Q. And the dealer rings the bell, and gives them all they want to drink, free of expense? A.
Yes, sir.
Q. That was the condition of affairs there that night at the time of the cashing of this
certificate of deposit? A. Yes, sir.
Q. Do you recall serving him any drinks? A. Yes, sir.
Q. What did you serve him, what did he drink? A. I think he was drinking Scotch
highballs.
Q. That means Scotch whisky and something else? A. And mineral water.
The foregoing comprises all the material facts presented at the trial.
The contention of counsel for appellant is stated in their brief as follows: That this
transaction is against public policy. That the endorsement was without legal consideration,
and hence void, and in law vested no title to this paper in plaintiffs, and that having been
given in a gambling or gaming transaction, and for such purpose solely, the nonsuit should
have been granted.
The law is well settled in this state, as it is in most, if not all, of the states, that it is a good
defense to an action upon a negotiable instrument to show that the consideration for which
it was given was money won by gambling.
31 Nev. 74, 79 (1909) Burke v. Buck
negotiable instrument to show that the consideration for which it was given was money won
by gambling.
This question first came before this court in the case of Evans v. Cook, 11 Nev. 69, in
which case this court, by Beatty, J., said: Is it, then, a good defense to an action on a
promissory note to show that the consideration for which it was given was money won by
gambling? As to whether contracts of wager in general were valid at common law, there is
some conflict of opinion disclosed by the American cases, but the weight of authority is so
decidedly in favor of their validity that I think there ought never to have been a doubt of it.
The ancient common law, however, was altered in respect to this matter by numerous English
statutes, and it has been held by this court that English statutes, in force at the date of the
declaration of American independence and applicable to our situation, are a part of the
common law which we have adopted. (Ex Parte Blanchard, 9 Nev. 105.) I should have felt
some hesitation in coming to this conclusion if the matter had been res integra; but I think
that, after having been once so determined, the point should not be unsettled, except for very
weighty and conclusive reasons, and none such have been suggested in this case. It follows,
therefore, that we have adopted the common law upon the subject of wagers as altered by the
statute of 9 Anne, c. 14, by the first section of which it is enacted that all notes, bills, bonds
* * * given * * * by any person or persons whatsoever, where the whole or any part of the
consideration * * * shall be for any money or other valuable thing whatsoever, won by
gaming, * * * shall be utterly void, frustrate, and of none effect, to all intents and purposes
whatsoever,' etc. (4 Bac. Abr. 456.) This, then, is the law of this state, except so far as it may
be controlled by our own statutes; and there is nothing that I am aware of in the laws of
Nevada to limit its operations, except for the protection of a bona fide assignee for value of a
note or bond, which the statute of Anne makes absolutely void.
In the foregoing decision,the learned judge, now Chief Justice of the Supreme Court of
California, only quoted such portion of the statute as was applicable to the case then under
consideration. The statute, however, is much more comprehensive than is indicated in the
opinion of Beatty, J., quoted from, and reads as follows: "That all notes, bills, bonds,
judgments, mortgages, or other securities or conveyances whatsoever given, granted,
drawn, or entered into, or executed by any person or persons whatsoever, where the
whole, or any part of the consideration of such conveyances or securities shall be for any
money, or other valuable thing whatsoever, won by gaming or playing at cards, dice,
tables, tennis, bowls, or other game or games whatsoever, or by betting on the sides or
hands of such as do game at any of the games aforesaid, or for the reimbursing or
repaying any money knowingly lent or advanced for such gaming or betting as aforesaid,
or lent or advanced at the time and place of such play, to any person or persons so
gaming or betting as aforesaid, or that shall, during such play, so play or bet, shall be
utterly void, frustrate, and of none effect, to all intents and purposes whatsoever."
31 Nev. 74, 80 (1909) Burke v. Buck
consideration. The statute, however, is much more comprehensive than is indicated in the
opinion of Beatty, J., quoted from, and reads as follows: That all notes, bills, bonds,
judgments, mortgages, or other securities or conveyances whatsoever given, granted, drawn,
or entered into, or executed by any person or persons whatsoever, where the whole, or any
part of the consideration of such conveyances or securities shall be for any money, or other
valuable thing whatsoever, won by gaming or playing at cards, dice, tables, tennis, bowls, or
other game or games whatsoever, or by betting on the sides or hands of such as do game at
any of the games aforesaid, or for the reimbursing or repaying any money knowingly lent or
advanced for such gaming or betting as aforesaid, or lent or advanced at the time and place of
such play, to any person or persons so gaming or betting as aforesaid, or that shall, during
such play, so play or bet, shall be utterly void, frustrate, and of none effect, to all intents and
purposes whatsoever. (9 Anne, c. 14, 4 Bac. Abr. p. 456.)
In view of the evidence disclosed in this case, which shows that this assignment was made
at a gaming table, and during the progress of the play, it comes squarely within the statute
above quoted, and therefore the consideration is, by the specific terms of the statute, utterly
void, frustrate and of none effect.
See also Drinall v. Movius State Bank, 11 N. D. 10, 88 N. W. 724, 57 L. R. A. 341, 95
Am. St. Rep. 693; 20 Cyc. 939, 940.
In the case of Scott v. Courtney, 7 Nev. 419, which was an action to recover the sum of
$2,100 won at a game of faro in a public gambling house, this court, in denying the right of
recovery, by Lewis, C. J., said: Is money won at a public gaming table recoverable by action
in this state? is the only question raised upon the record. We conclude it is not. * * * At
common law all public gaming houses were nuisances, not only because they were deemed
great temptations to idleness, but also because they were apt to draw together great numbers
of disorderly persons. (4 Bac. Abr. 451.) It would therefore seem to follow that money won in
such house by the keeper could not be recovered, because everything connected with or
growing out of that which was illegal partook of its character, and was tainted with its
illegality.
31 Nev. 74, 81 (1909) Burke v. Buck
and was tainted with its illegality. So gaming, which might be innocent itself if carried on
elsewhere, would become illegal by being conducted in a place which was condemned by the
law. This is an undoubted principle, applicable, not only to cases of this nature, but all cases
of analogous character. * * * Does the statute of this state, then, licensing gaming change the
old law in this respect? We think not. The statute does not pretend to do more than to protect
the keepers of public gaming houses from criminal prosecution when a proper license is
procured. Section 2, declaring that The said license shall protect the licensee and his
employee or employees against any criminal prosecution for dealing and carrying on the game
mentioned,' thus appearing to restrict the effect of the license to simple protection of the
persons engaged against punishment, and leaving gaming houses in all other respects
precisely as they were formerly, civilly subject to all the disapprobation and restrictions of the
common law.
The statute making void a transfer of a negotiable instrument at the time and place of such
play, to any person so gaming, or during such play, and the facts of this case showing that the
certificate of deposit in question was transferred during the progress of the play at such a time
and place, no valid transfer of the certificate was effected, and hence the plaintiffs acquired
no legal title thereto.
The judgment of the lower court is reversed, and said court is ordered to enter a judgment
in favor of the defendant, to the effect that he is entitled to the money now on deposit with the
clerk of said court in said cause.
____________
31 Nev. 82, 82 (1909) Ex Parte Rickey
[No. 1781]
Ex Parte RICKEY
1. Habeas CorpusQuestions Reviewable.
Where accused avers that the indictment does not allege an offense, and the state admits that the facts are
stated therein, the court on habeas corpus must consider the question whether the indictment states an
offense; and, if it does not, accused must be discharged.
2. Criminal LawJurisdiction.
A court's jurisdiction in criminal cases extends only to such matters as the law declares criminal.
3. Banks and BankingDepositsRelation Between Banker and Depositor.
A receipt of a deposit by the receiving teller of a private bank is the receipt by the private banker,
because he is the principal and the teller the agent, and the deposit is the banker's private property.
4. CorporationsNature of Corporation.
A corporation is an artificial person, a distinct legal entity, and its officers are its agents.
5. Banks and BankingDepositsTitle to Deposits.
A deposit received by an incorporated bank is the property of the corporation.
6. Banks and BankingOfficers and Agents.
The president and receiving teller of an incorporated bank acting within the scope of their authority are
agents of the corporation, and not of each other, and though the president has larger powers than the teller,
and may direct his acts, the president is in no sense the principal, but his acts, within the scope of his
powers, are the acts of the corporation.
7. CorporationsPowers of President.
The president of a corporation has no power, by virtue of the office itself, to bind the corporation, but his
power as an agent of the corporation must be founded on the organic law thereof, or on a delegation of
authority from the board of directors, and his duties arising from his office as president are confined to
presiding and voting as a director.
8. Banks and BankingPowers of President.
The president of an incorporated bank may be authorized by the directors thereof to do anything within
the authority of the bank's charter, except the positive requirements that are personal, and cannot be
delegated; and, when he goes beyond the scope of his usual authority, it must be shown in some way that
his act was authorized by the directors.
9. Banks and BankingOfficersOffensesReceiving Deposit When Insolvent.
An indictment alleging that accused was the president of an incorporated state bank engaged in the
general banking business, and that he feloniously, by and through the receiving teller, received a deposit
knowing that the bank was insolvent, does not charge accused directly with receiving the deposit within the
act of March 29, 1907 (Stats.
1907, p. 414, c. 189), penalizing every officer of any bank who receives any deposits knowing that the
bank is insolvent; and the indictment does not charge accused with the offense under the doctrine of
agency, since the actual receipt of the deposit was by the receiving teller, and the receipt in law was by the
bank.
10. StatutesConstruction.
Where a statute is plain and unambiguous, there is no room for judicial construction, but the intention of
the statute must be deduced from the language used.
11. StatutesPenal StatutesConstruction.
The intention of the legislature in a penal statute must be collected from the words employed when
strictly construed.
12. Banks and BankingReceiving Deposit When InsolventStatutesConstructionReceivesAssent
to Reception.
The act of March 29, 1907 (Stats. 1907, p. 414, c. 189), penalizing every officer of any bank who
receives any deposits knowing that the bank is insolvent, does not penalize the act of assent to the
reception of a deposit, and, where a receiving teller of an insolvent incorporated bank received a deposit,
the president, though knowing of the insolvency, cannot be punished on the theory that he assented to the
reception of the deposit; the word receives involving an affirmative act, and does not include an assent to
the reception involving only a mere passive acquiescence.
Original proceeding. Application by T. B. Rickey for writ of habeas corpus for his
discharge from custody. Writ granted.
Statement of Facts
This is an original proceedings in habeas corpus. The writ was heretofore issued upon a
duly verified petition in behalf of T. B. Rickey, alleging that he was unlawfully confined and
restrained of his liberty by the sheriff of Nye County. From the return on the writ the
following facts appear: That said T. B. Rickey, at the time of the issuance of the writ, was
held in custody by the sheriff upon a bench warrant regularly issued by the Fifth Judicial
District Court of the State of Nevada in and for Nye County, upon an indictment which, after
entitlement, reads:
The above named, T. B. Rickey, is accused by the grand jury of Nye County, State of
Nevada, by this indictment, found this 19th day of March, A. D. 1908, of a felony, to wit, the
crime of embezzlement, committed as follows: That on the 21st day of October, A. D. 1907,
and before the finding of this indictment, the above-named defendant, T. B. Rickey, then
being an officer, to wit, the president of the State Bank and Trust Company, a corporation
duly organized and existing under and by virtue of the laws of the State of Nevada, and
which said corporation was engaged in a general banking business, and having, owning,
and conducting a bank in the town of Tonopah, Nye County, Nevada, knowingly,
unlawfully, and feloniously, by and through one John Doe, whose true name is unknown
to this grand jury, he, the said John Doe, then and there being or acting as the receiving
teller of said bank for and on behalf and under the authority of the officers of the said the
State Bank and Trust Company, and of the said defendant, T. B. Rickey, as an officer, to
wit, as president of the said company, did receive of and from one Peter Hertel a certain
sum of money, to wit, $200, lawful money of the United States of America, which said
money was then and there the property of said Peter Hertel, and which said sum of
money was then and there received of and from the said Peter Hertel by the said T. B.
Rickey, as an officer, to wit, as president of the said the State Bank and Trust Company,
acting by and through the said John Doe as receiving teller of said bank as aforesaid, as a
general deposit in said bank, the said corporation, the State Bank and Trust Company,
then and there being insolvent, and he, the said defendant, T. B. Rickey, then and there
knowing that the said corporation, the State Bank and Trust Company, was insolvent.
and Trust Company, a corporation duly organized and existing under and by virtue of the
laws of the State of Nevada, and which said corporation was engaged in a general banking
business, and having, owning, and conducting a bank in the town of Tonopah, Nye County,
Nevada, knowingly, unlawfully, and feloniously, by and through one John Doe, whose true
name is unknown to this grand jury, he, the said John Doe, then and there being or acting as
the receiving teller of said bank for and on behalf and under the authority of the officers of
the said the State Bank and Trust Company, and of the said defendant, T. B. Rickey, as an
officer, to wit, as president of the said company, did receive of and from one Peter Hertel a
certain sum of money, to wit, $200, lawful money of the United States of America, which
said money was then and there the property of said Peter Hertel, and which said sum of
money was then and there received of and from the said Peter Hertel by the said T. B. Rickey,
as an officer, to wit, as president of the said the State Bank and Trust Company, acting by and
through the said John Doe as receiving teller of said bank as aforesaid, as a general deposit in
said bank, the said corporation, the State Bank and Trust Company, then and there being
insolvent, and he, the said defendant, T. B. Rickey, then and there knowing that the said
corporation, the State Bank and Trust Company, was insolvent. Contrary to the form, force,
and effect of the statute, etc.
If the foregoing indictment charges a criminal offense, it does so under the provisions of
the following act of the legislature:
An act making any banker, or any officer, agent, or clerk of any bank, receiving deposits,
knowing that said bank is insolvent, guilty of embezzlement, and providing for the
punishment thereof.
[Approved March 29, 1907]
The People of the State of Nevada, represented in Senate
and Assembly, do enact as follows:
Section 1. Every officer, agent, teller or clerk of any bank and every individual banker, or
agent, teller or clerk of any individual banker, who receives any deposits knowing that
such bank, or association or banker is insolvent, shall be guilty of embezzlement.
any individual banker, who receives any deposits knowing that such bank, or association or
banker is insolvent, shall be guilty of embezzlement.
Sec. 2. Every person, officer, agent, teller or clerk convicted under the provisions of this
act shall be imprisoned in the state prison for not less than one nor more than fifteen years.
(Stats. 1907, p. 414, c. 189.)
Prior to the hearing upon the return of the writ proceedings in habeas corpus were
instituted in this court in behalf of defendant in two other cases, in which the said T. B.
Rickey was held on indictments alleging violation of the provisions of the said act. These
three cases were heard together. At the time fixed for the return upon the writ a motion was
interposed by the attorney-general to quash the proceeding, upon the ground that the
defendant had theretofore been at liberty upon bond, and had voluntarily surrendered himself
to the said sheriff of Nye County. No similar motion was made in the other cases, and upon
the hearing the motion was withdrawn, and is not now before the court. It is claimed in each
of these cases that the act under the provisions of which the several indictments were returned
is unconstitutional, and in the case now under consideration that the indictment fails to charge
an offense under the act in question or any offense under the law. The constitutional question
involved was heretofore determined in the case entitled In the Matter of the Application of
W. B. Pittman, on Behalf of T. B. Rickey, for a Writ of Habeas Corpus (No. 1795, decided
on January 25, 1909), 31 Nev. 43, and this question requires no further consideration. At the
time of the decision of the case last mentioned, the court intimated that it was, or would
shortly be, prepared to render a decision upon the question of the sufficiency of the
indictment involved in this proceeding, providing that the question was properly before the
court, but that the court was in some doubt whether the sufficiency of the indictment was a
proper matter to be determined upon habeas corpus. As this question had not been presented
in the arguments or briefs filed, the court requested respective counsel to submit their views
thereon. Upon the argument and authorities cited we are convinced that the question is
properly before the court and that it is our duty to determine it.
properly before the court and that it is our duty to determine it.
James F. Peck and W. B. Pittman, for Petitioner:
I. To sustain the construction of Attorney-General Stoddard, the statute must be
paraphrased: Every officer of an insolvent bank which receives a deposit when insolvent
shall be guilty, if he knows of such insolvency. The statute does not so read. If the statute did
so read, it would be an abomination. Supposedly every officer has some material interest in
the corporation. He has invested in its capital. Individually he has no control of its business
nor of its concerns. He cannot close its doors, suspend its business or cause it to liquidate;
only the board of directors have this power. (Swindell v. Bainbridge Bank, 60 S. E. 13; Cook
on Stock and Stockholders, 716; Morawetz on Corporations, 537; Bank v. Drumm, 31 U. S.
51; Bank v. Tisdale, 18 Hun, 151; 5 Cyc. 467, 470; 10 Cyc. 907, 911; Insurance Company v.
Lumber Company, 126 Ga. 334; Bank v. Rawls, 7 Ga. 176; 50 Am. Dec. 394; Lumber
Company v. Hobbs, 122 Ga. 34.) Where an individual banker receives money by his agent
two conditions exist. First, the agent physically receives the money; second, the money, when
received by the agent, is received legally by his principal, the individual banker. In the case of
a copartnership, the same identical thing occurs, except that there are a number of individuals
collectively who receive the money. Each copartner has at all times the right to control the
acts of the agents of the copartnership.
II. Judge Allen, in State v. Warner, 60 Kan. 94, speaking of private bankers and the receipt
of deposits by agents, says: Whose possession immediately becomes his. How is it in case
of a corporation? Do the agents of a corporation receive for the officers of the corporation?
The custody of money, after its reception, is with the corporation; the beneficial use of the
money is by the corporation; the possession of the teller immediately becomes the possession
of the corporation; the benefit of the transaction is with the corporation, and the obligation to
return the money is on the corporation. In no sense, then, can it be said that an officer of a
banking corporation receives money which he has never physically touched, and which,
from a legal standpoint, has not been received by him or for his use, but which has been
received, in legal contemplation, by the corporation of which he is an officer.
corporation receives money which he has never physically touched, and which, from a legal
standpoint, has not been received by him or for his use, but which has been received, in legal
contemplation, by the corporation of which he is an officer.
III. The language of the statute is plain. That language includes this case, or it does not
include it. In case of ambiguity or uncertainty recourse can be had to side lights. There is no
ambiguity or uncertainty in this statute. Therefore, it is idle to endeavor to discover the
purpose of the legislature. It is not uncertain but appears upon the face of the statute in the
words used. The word receives in the statute has been entirely ignored by the
attorney-general, and the assumed purpose of the legislature, as the learned prosecutor sees it,
is substituted for the words of the statute. No guide is necessary to the purpose of the
legislature. However certain the purpose avowed by it might be, it was not left to the court
nor to the attorney-general to accomplish such purpose by framing a new law or by destroying
the law passed to accomplish such purpose of the legislature; the means of accomplishing it
was the statute as it was framed. If that statute failed or was insufficient to bring about the
desired end, the court cannot step in and supplement the terms of the statute. The legislature
declares that he who receives is guilty. We contend that, in the language of the statute, the
indictment must allege the person indicted did receive. The attorney-general meets this by
saying that the statute makes a person guilty who does not receive, if such person has it in his
power to prevent the reception or permits another to receive. This assumes a careless and
confused use of the term receives. There is a wide range between one who receives and one
who assents to the reception or permits the reception. One who receives in fact or in law does
some affirmative act. It expresses more than a passive state. The affirmative act may be by an
agent, but it is, nevertheless, active, not passive. One may permit or assent by inaction, but
cannot receive by inaction. To permit, implies a right or power to prevent, which power is not
exercised. One receives by actually doing, either by himself or by his agent. The
attorney-general construes the defendant had power to close the bank.
strues the defendant had power to close the bank. The allegation that defendant was president
is not an allegation of such power. That could only be true if the powers of the corporation
were vested in the president, and the statute vests those powers in a board of directors. (Stats.
1907, p. 363, sec. 5.) The power being in the board of directors to close the bank, the
president could not be said to receive the deposit simply because he did not close it. This
court cannot by intendment read into the statute permitting the receipt of money unless it is
willing to delegate to itself the powers of the legislature, for this particular case.
R. C. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, P. A.
McCarran, District Attorney of Nye County, and E. E. Roberts, District Attorney of Ormsby
County, for the State:
I. An incorporated bank being an artificial person, its every act is by and through its
officers and agents. The statute of Nevada does not make it an offense for the bank to receive
the deposit, under the circumstances, but it aims to punish its officers and agents who do so
with guilty knowledge of its insolvent condition.
II. Whether or not the bank is incorporated, the purpose of the statute is to penalize the
reception of deposits in an insolvent bank, and it would indeed be contrary to the spirit and
reason of this statute to say, because a bank happens to be transacting business under a
corporate character, that its president who may or may not be in fact ninety-nine per cent the
owner thereof, and have absolute control over its affairs, may, with guilty knowledge of the
bank's insolvency, hide behind an innocent employee, and with impunity spread his net for
the unwary and confiding depositor.
Per Curiam:
As counsel for the state and petitioner were practically agreed upon the scope of the
inquiry upon habeas corpus, we shall not at this time enter into an extended discussion of the
question. Suffice it to say that where, as in the petition in this case, it is claimed upon the part
of petitioner that the indictment does not allege an offense known to the law, and it is
admitted by the state that the true facts are stated in the indictment, it becomes the duty
of the court to consider the question thus presented; and, if the facts so alleged and
admitted as true and complete do not constitute an offense known to the law, then the
defendant is entitled to his discharge.
indictment does not allege an offense known to the law, and it is admitted by the state that the
true facts are stated in the indictment, it becomes the duty of the court to consider the
question thus presented; and, if the facts so alleged and admitted as true and complete do not
constitute an offense known to the law, then the defendant is entitled to his discharge. The
authorities supporting this view, especially those based on constitutional and statutory
provisions like ours, are numerous, and apparently without conflict.
As was said in Re Corryell, 22 Cal. 178, quoted in Ex Parte Kearny, 55 Cal. 229; The
court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the
law declares criminal, and none other; and, when it undertakes to imprison for an offense to
which no criminality is attached, it acts beyond its jurisdiction.
Chief Baron Gilbert said: If the commitment be against law, as being made by one who
had no jurisdiction of the cause, or for a matter for which by law no man ought to be
punished, the court are to discharge. (Bac. Abr., Hab. Corp. B. 10.)
Lord Hale says: If it appear by the return of the writ that the party be wrongfully
committed, or by one that hath not jurisdiction, or for a cause for which no man ought not to
be imprisoned, he shall be discharged or bailed. (Hale's H. P. C. 144.)
See also Ex Parte Prince, 27 Fla. 196, 9 South. 659, 26 Am. St. Rep. 67; Ex Parte
Goldman (Cal. App.) 88 Pac. 819; Ex Parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St.
Rep. 129; Ex parte Harrold, 47 Cal. 129; Ex Parte McNulty, 77 Cal. 164, 19 Pac. 237, 11
Am. St. Rep. 257; In re Buell, 3 Dill. 116, Fed. Cas. No. 2102; In re Farez, 7 Blatchf. 34,
Fed. Cas. No. 4644; 2 Freeman on Judgments (4th ed.) 622; 21 Cyc. 302; Hurd on Habeas
Corpus (2d ed.) ch. 6, p. 324; Church on Habeas Corpus (2d ed.) p. 344, et seq.; Constitution
of Nevada, art. I, sec. 5; Comp. Laws, 3744, 3762.
At the threshold of the consideration of the indictment we are confronted with the
following allegations of fact: The indictment charges specifically the physical receipt of the
deposit by one John Doe, then being or acting as the receiving teller of the State Bank and
Trust Company, a corporation, acting for and on behalf of, and under the authority of, the
officers of said bank, and of the said defendant, T. B. Rickey, as an officer, to wit, the
president of said company; that at the time of the receipt of the deposit the said bank was
insolvent, and that the said defendant then and there knew that the said bank was
insolvent.
ing teller of the State Bank and Trust Company, a corporation, acting for and on behalf of,
and under the authority of, the officers of said bank, and of the said defendant, T. B. Rickey,
as an officer, to wit, the president of said company; that at the time of the receipt of the
deposit the said bank was insolvent, and that the said defendant then and there knew that the
said bank was insolvent. The indictment further charges that the defendant received the
deposit as an officer, to wit, as president of said bank by and through the receiving teller as
aforesaid. This allegation, it is conceded, is a conclusion of law based upon the facts above
stated. It will therefore appear from the indictment that the defendant is not charged directly
with receiving the deposit, in the language of the statute, as in the cases of the other
indictments returned against the defendant in the Counties of Ormsby and Esmeralda,
involved in the cases recently determined. The receiving teller is not charged with knowledge
that the bank was insolvent at the time of the receipt by him. Hence no question is or could be
presented, nor has any contention been made, that the indictment charges the defendant with
being an accessory before the fact. (State v. Yetzer, 97 Iowa, 438, 66 N. W. 737.)
The indictment further presents the case of an incorporated bank receiving the deposit, and
not that of an individual banker or partnership receiving a deposit through his or their
personal agent. Without going into a more minute analysis of the indictment we will consider
it from the position, in reference thereto, taken by counsel in the case.
The contention of counsel for the state may be gathered from the following excerpt taken
from their opening brief: We contend that notwithstanding the fact that the Missouri and like
statutes make it a crime for an officer of an insolvent bank to receive or accept, or assent to
the reception of, a deposit knowing the bank to be insolvent, under the Nevada statute the
receipt of a deposit by an employee of an insolvent bank is the act of the president or other
officer, having the authority over the employee; and, although the statute could have been
differently framed, it is not necessary that the words accept' or assent' be therein embodied
in order to convict under the same state of facts, as in the Darrah case, supra * * *."
convict under the same state of facts, as in the Darrah case, supra * * *.
The Darrah case, referred to in the brief for the state (State v. Darrah, 152 Mo. 522, 54 S.
W. 226), quotes the constitutional provision of that state which is as follows: It shall be a
crime, the nature and punishment of which shall be prescribed by law, for any president,
director, manager, cashier or other officer of any banking institution, to assent to the reception
of deposits, or the creation of debts by such banking institution, after he shall have had
knowledge of the fact that it is insolvent or in failing circumstances; and any such officer,
agent or manager shall be individually responsible for such deposits so received, and all such
debts so created with his assent.
By the statute of Missouri (Ann. St. 1906, sec. 1945), passed in pursuance of the foregoing
constitutional mandate, it is provided: If any president, director, manager, cashier or other
officer of any banking institution, or the owner, agent, or manager of any private bank or
banking institution, doing business in this state, shall receive or assent to the reception of any
deposit of money or other valuable thing in such bank or banking institution, * * * after he
shall have had knowledge of the fact that such banking institution or the owner or owners of
any such private bank is insolvent or in failing circumstances, he shall be deemed guilty of
larceny, and upon conviction thereof shall be punished, etc.
Counsel for the state in their brief lay stress upon the following instruction, given by the
trial court in the Darrah case, which instruction, upon appeal, was found not to be subject to
the objections interposed against it: If the jury believe from the evidence that on July 10,
1893, the witness Christina Voight did deposit in the Kansas City Safe Deposit and Savings
Bank, a banking institution doing business in the State of Missouri, at the County of Jackson,
$300, or any part thereof, of the value of thirty dollars or more, lawful money of the United
States, of the money and property of the witness Christina Voight, and shall further believe
from the evidence that the said deposit was not taken and received by the defendant himself,
but was taken and received by some other person, but that such person was then and there
in the employ of the said Kansas City Safe Deposit and Savings Bank, and acting under the
direction and control of the defendant in said employment, and that such other person
had general power and authority from the defendant to receive deposits of money into
said bank, and that said bank was then and there in failing circumstances, and the
defendant had knowledge that said bank was there and then in failing circumstances,
they will find the defendant guilty as charged."
person, but that such person was then and there in the employ of the said Kansas City Safe
Deposit and Savings Bank, and acting under the direction and control of the defendant in said
employment, and that such other person had general power and authority from the defendant
to receive deposits of money into said bank, and that said bank was then and there in failing
circumstances, and the defendant had knowledge that said bank was there and then in failing
circumstances, they will find the defendant guilty as charged. The only objections made
against this instruction were that the jury were not therein required to find that the offense
charged was committed in Jackson County, nor was it required to find from the evidence that
the defendant was an officer of the Kansas City Safe Deposit and Savings Bank. The court,
after stating that the instructions should be taken as a whole, that instruction No. 2 cured the
objection in question, and further, that the evidence touching the points of the objection,
including the admissions of the defendant himself, was without conflict, remarked: Under
such circumstances the fact that this instruction was not explicit in the particulars mentioned
as it might have been could not possibly have injured the defendant. In considering the force
of the instruction it must be borne in mind that Darrah was doubtless being prosecuted under
an indictment charging him with the crime of assenting to the reception of the deposit. While
it does not appear in the opinion what the form of the indictment was, it is indicated from
instruction No. 2, which uses this language: The court instructs the jury that if you shall
believe from the evidence that the defendant * * * did then and there unlawfully and
feloniously assent to the taking and receiving on deposit in said banking institution, * * * you
will find the defendant guilty. If it be as contended by counsel for petitioner that under the
Missouri statute the assenting to the reception of a deposit, under the conditions named in the
statute is a separate and distinct offense from the unlawful reception of such deposit, then
instruction No. 3 would be in consonance with the character of the action in which it was
given, and would throw little, if any, light on the question now before us for consideration.
That the Supreme Court of Missouri holds that the receiving and the assenting to the
reception of a deposit, under conditions named in the statute, are separate and distinct
offenses, is clear from the decisions of that state.
Supreme Court of Missouri holds that the receiving and the assenting to the reception of a
deposit, under conditions named in the statute, are separate and distinct offenses, is clear from
the decisions of that state.
In State v. Sattley, 131 Mo. 464, 33 S. W. 41, the defendant, Sattley, was convicted for his
connection with the receipt of the same deposit that Darrah was charged with having assented
to the reception of, in the case of State v. Darrah, supra. The indictment in the Sattley case
was in three counts; the first charging him with the receipt of the deposit, the second his
assenting to its reception, and the third his assent to the creation of the debt knowing at the
time of the insolvency of the bank. The defendant, Sattley, was present when the money was
received and the obligation issued, and himself signed the certificate of deposit as cashier of
the bank. It was urged upon the appeal that the judgment of conviction should be reversed
because the jury rendered a general verdict of guilty and did not specify the count. The
court, in considering this objection, said: The evidence shows but one transaction, the
receipt of the deposit and the issuing of the certificate of deposit. When the several offenses
charged in the different counts of an indictment, though distinct in law, spring out of one and
the same transaction, or are so connected in their facts as to make them parts of one
transaction, the defendant cannot be prejudiced by the joinder, and the court will not compel
an election, and will sustain a general verdict. (1 Bishop on Criminal Procedure, sec. 457,
note 3, and secs. 458, 459; State v. Testerman, 68 Mo. 408; State v. Core, 70 Mo. 491; State
v. Noland, 111 Mo. 473, 19 S. W. 715.)
In State v. Wells, 134 Mo. 238, 35 S. W. 615, it appears that the defendant, Wells, was
indicted for receiving, as cashier, a deposit of fifty dollars knowing of the bank's insolvency.
On the trial it was shown beyond controversy by the state that the defendant was not in the
bank at the time the deposit was received; but, on the contrary, it was received and accepted
by another employee of the bank by the name of Fin. Downs, a bookkeeper in the
employment of the bank. Considering this state of facts, the court said: It will be observed
that the statute is in the disjunctive, and under its terms it is an offense for any officer
designated to receive a deposit into the bank after he shall have knowledge of its
insolvency; and it is likewise an offense for such officer to assent to the reception of a
deposit under these circumstances.
the statute is in the disjunctive, and under its terms it is an offense for any officer designated
to receive a deposit into the bank after he shall have knowledge of its insolvency; and it is
likewise an offense for such officer to assent to the reception of a deposit under these
circumstances. (State v. Batson, 31 Mo. 343; State v. West, 21 Mo. App. 309.) It must be
further noticed that the indictment charges only that defendant as cashier of said bank at
Willow Springs received the deposit. It is nowhere alleged that he assented to the reception of
the deposit. It is one thing to receive the deposit; another to assent to receiving it. Though
each is an offense, they are not one and the same offense; and a charge in an indictment that
the defendant received a deposit knowing the bank was insolvent is not sustained by proof of
assenting only. Had the proof shown that defendant was cashier, and knowingly assented to
the reception of the deposit by Downs, the bookkeeper, he could not have been convicted
under this indictment, which only charges a reception by defendant of the deposit. This is a
criminal prosecution for a felony, and the state must establish the crime charged in its
indictment, and not another, though kindred, crime. As the evidence did not tend to prove
reception of the deposit, it presents a case of total failure of proof, and the court should have
directed an acquittal. The attorney-general has suggested that perhaps the judgment might be
affirmed on the principle announced in the Sattley case. * * * The distinction between the
cases is obvious. In Sattley's case it was shown beyond peradventure that the teller who
received Mrs. Voight's money was under the direction and control of Sattley, and had
authority from Sattley to receive the deposit, and that Sattley himself signed the time
certificate of deposit, and the indictment contained three counts; the first charging the
reception of the money, the second his assent to its reception, and the third his assent to the
creation of the debt knowing at the time of the insolvency of the bank.
Counsel for the state particularly direct our attention to the case of McClure v. People, 27
Colo. 358, 61 Pac. 612. The defendant in this case was convicted of a statutory larceny, upon
an information charging that, as president of the Bank of Rico, a corporation, "he received
and assented to the reception of a certain deposit in said bank, knowing at the time that
the institution was then insolvent."
of Rico, a corporation, he received and assented to the reception of a certain deposit in said
bank, knowing at the time that the institution was then insolvent. The statute of Colorado
under which this conviction was had provides: If any banker or any president, director,
manager, cashier or other officer * * * of any * * * bank * * * shall receive or assent to the
reception of any deposit * * * in such bank * * * after he shall have had knowledge that such
bank * * * is insolvent, he shall be deemed guilty of larceny. * * * (Sess. Laws, Colo. 1885,
p. 50; 1 Mills's Ann. St. sec. 222.) It was contended by counsel for defendant in that case that
the information was double; that the receiving of a deposit in the circumstances named in the
statute, and the assenting to its reception, is another and distinct offense, and that, while the
two may be separately set forth in the same information, it is improper to combine them in
one count. After reviewing many authorities, including the Missouri cases, supra, the court
expressed its conclusion upon the point raised as follows: We are of the opinion that where,
as in the information here, the receiving of a deposit and the assenting thereto are charged as
having been done by the same person, at the same time, and relate to the same transaction,
and the punishment for both or either is the same, they may be combined in one count, and
together constitute but one complete offense, for which there can be but one punishment. In
other words, where two or more acts, stated in the statute disjunctively, either of which is an
offense by itself, if done by different persons or at different times, when done by the same
person, and at the same time, and relate to the same transaction, and are followed by the same
penalty, they may be united in one count of an indictment or information as constituting but
one offense. It will therefore be seen that the Colorado court did not hold, nor intimate, that
the receiving and assenting to the reception under the statute were one and the same offense,
but distinctly held that either of which is an offense by itself, if done by different persons or
at different times; that only in a case where the receiving and assenting were done by the
same person, and at the same time, and relate to the same transaction, could the two offenses
be united in one count of an indictment or information.
count of an indictment or information. While this case was reversed on other grounds, it
clearly appears from the opinion that had the defendant's conviction been sustained, it would
have been upon that portion of the information which charged him with assenting to the
reception of the deposit. The court, after reciting the fact that the person who took the deposit
was an employee of the bank and authorized to receive deposits, and after considering the
relation of the defendant to the bank as its president, said: By such conduct he clearly
assented to the reception of deposits. It was not essential to a conviction that he should assent
to this particular deposit, or that he should have acquiesced in its reception after he had
obtained actual knowledge after it had been made. His recognition of the general authority of
the teller to receive deposits, without taking any steps to prevent such action, after he knew,
or in law is charged with knowledge of insolvency, is an assent to the reception of this
deposit.
* * * (State v. Sattley, supra.)
The case of State v. Warner, 60 Kan. 94, 55 Pac. 342, was a case involving the conviction
of the president of a banking corporation. The indictment contained eleven counts, upon four
of which he was convicted. Considering that case, the court said: The charges contained in
the counts of the information under which the conviction was had were all that the defendant
accepted and received on deposit the several items described. It must be borne in mind that
the Baxter Bank was a corporation. The connection of the appellant with it was that of an
officer. He is not charged with being the owner. The other persons connected with the bank
were its officers and employees. Possibly a private banker, who employed clerks and servants
to receive deposits, might be bound even in a criminal case where their possession
immediately became his, but the statute as framed seems to denounce its penalties against the
individual who shall take deposits into the bank when he knows it to be insolvent, and also
against all others who knowingly permit or connive at their reception. In the case of State v.
Wells, 134 Mo. 238, 35 S. W. 615, construing a Missouri statute making it a larceny for an
officer of a banking institution to receive or assent to the reception of a deposit, it was held
by the supreme court of that state that a charge that the defendant received a deposit
knowing the bank to be insolvent was not sustained by the proof of his assenting only,
and that, as the evidence did not tend to prove the reception of the deposit, there was a
total failure of proof.
reception of a deposit, it was held by the supreme court of that state that a charge that the
defendant received a deposit knowing the bank to be insolvent was not sustained by the proof
of his assenting only, and that, as the evidence did not tend to prove the reception of the
deposit, there was a total failure of proof. Whether the evidence given at the trial in this case
was sufficient to uphold a charge against the defendant of having permitted or connived at the
receipt of the deposits we need not decide. The charge is that he accepted and received. The
word accepted' implies that the bank received, and that he agreed and assented to the
reception. He could not accept without at least knowing what was received. The proof being
insufficient to sustain the conviction under these counts of the information, the motion for a
new trial should have been sustained.
The case of State v. Cadwell et al., 79 Iowa, 434, 44 N. W. 700, cited by counsel for the
state, is a case of individual bankers. The two defendants were the owners and managers of
two banks in the State of Iowa. The Iowa statute (Laws 1880, p. 148, c. 153) provides that
no bank, banking house, * * * firm, company, corporation or party engaged in banking, * * *
or deposit business shall accept or receive on deposit, * * * any moneys, * * * when such
bank, banking house, * * * firm or party is insolvent, and that if any such bank, banking
house,
* * * firm * * * or party shall receive or accept on deposit, any such deposit as aforesaid,
when insolvent, any officer, director, cashier, manager, member, party of managing party
thereof, knowing of such insolvency, who shall knowingly receive or accept, be accessory to,
or permit or connive at, the receiving or accepting on deposit therein, or thereby, any such
deposits as aforesaid, shall be guilty of a felony, etc. In this case at the time the deposit in
question was received one John X. Aleck was cashier of defendant's bank at Logan, and
issued the certificate, and at the time neither of the defendants was present. The certificate
against the objection of the defendants was admitted in evidence, and the ruling is made a
ground of complaint here. A specific ground of complaint in the argument is that the
defendants were indicted for receiving the deposit, and it is not competent to show on the
trial that the money was received by another other than the defendants personally.
indicted for receiving the deposit, and it is not competent to show on the trial that the money
was received by another other than the defendants personally. We think no such rule has ever
been held by a court of last resort. On the contrary, a general and well-recognized rule is that
if a person does the act constituting the offense through the agency of another, the act is his,
and it is not necessary to aver the agency in the indictment. It may be charged directly as his
act, and proof that he did the act through the agency of another will sustain a conviction. * * *
It is further said in this connection that the defendants are not charged with permitting or
conniving at the receiving of the deposit, but with receiving it themselves, and that under the
averments of the indictment the proofs as to Aleck's receiving the money are not admissible.
The rule above announced is conclusive of this question. The defendants are indicted as a
firm of bankers, and as such they are charged with receiving the money; and it is entirely
immaterial whether they received it in person or through their cashier. In law, if they
permitted him to do it for them, they did it themselves.
In the foregoing case the law of principal and agent is clearly involved. The bank was not
the property of a corporation, as in the case at bar, but that of a partnership. When a deposit
was received into such bank it became the property of the defendant partners. As individual
owners of the bank they were principals in all transactions of the bank, and the act of their
cashier was in law their own act. This case can have no bearing upon the question under
consideration here, unless the legal status of principal and agent exists between the president
and the receiving teller of an incorporated bank. In all of the cases where a private banker or
members of a partnership conducting a private bank have been convicted of a violation of law
for receiving deposits after the bank had become insolvent, it clearly appears that the receipt
by the agent was in law the receipt of the principal. Hence the principal, or principals, in such
cases come within the direct provisions of the statute.
If in this case it appeared from the indictment that Rickey was a private banker, conducting
the bank in question, then, as a matter of law, the receipt of a deposit by the receiving
teller of his bank would be a receipt by himself, because he would be the principal and the
teller the agent, and the deposit when received would be his private property.
as a matter of law, the receipt of a deposit by the receiving teller of his bank would be a
receipt by himself, because he would be the principal and the teller the agent, and the deposit
when received would be his private property. Such is not the case of an incorporated bank.
The corporation is an artificial person, a distinct legal entity. (Edwards v. Carson W. Co., 21
Nev. 479.) The deposits received into such bank became the property of the corporation.
(Smith's Cash Store v. First Nat. Bank, 149 Cal. 32, 84 Pac. 663, 5 L. R. A. 870.) The
corporation is the principal, and its officers are its agents. Both the president and the
receiving teller, acting within the scope of their authority, are agents of the same principal,
and hence are not agents of each other. (10 Cyc. 771, 772, 831.) The president of a bank may,
or may not, under the by-laws, or by authority conferred by the board of trustees or directors,
have larger powers than a receiving teller, for example, and may even have direction and
control over his acts; but this is not because he is a principal in any legal sense of the word.
His acts, within the scope of his powers, are the acts of the corporation, the real principal. As
an individual the president can exercise no legal power or control.
Concerning the ordinary powers of the president of a corporation, Cook, in his work on
Stock and Stockholders and Corporation Law, 716, says: The general rule is that the
president cannot act or contract for the corporation any more than any other one director. The
question has frequently been before the courts, and many decisions have been rendered in
regard to it. The question seems to have arisen in many forms, and the great weight of
authority holds that a president has no inherent power to represent or contract for the
corporation. His duties are confined to presiding and voting as a director.
Judge Thompson, one of the most eminent authorities upon corporation law, and author of
the chapter on Corporations in the Cyclopedia of Law and Procedure, says: The president of
a private corporation is, as the term implies, the presiding officer of its board of directors and
of its shareholders when convened in general meeting. The office itself, however, confers no
power to bind the corporation or control its property.
The president's power as an agent must be sought in the organic law of the corporation, in a
delegation of authority from it, directly or through its board of directors, formally expressed
or implied from a habit or custom of doing business. (10 Cyc. 903.) The appointment of the
president of a corporation to the office of general superintendent or manager necessarily
invests him with the powers incident to that office or agency. (10 Cyc. 909.)
But whether acting strictly as president, or in the added capacity of general manager, he is
the agent of the corporation, and not a principal. Referring specifically to the powers of a
bank president, the following is from 5 Cyc. 468: In some cases a president receives only a
nominal salary, is expected to devote only a portion of his time to the business, and is not
required to exercise the same degree of care and foresight as a president who is the real head
and manager, and who possesses all the authority of the cashier. He may, however, be
authorized by the directors to do anything within the authority of the bank's charter, except
those positive requirements that are personal and cannot be delegated; but, when he goes
beyond the scope of his usual authority, it must be shown that in some way his act was
authorized by the directors.
In the case of Wallace v. Lincoln Savings Bank, 89 Tenn. 630, 15 S. W. 448, 24 Am. St.
Rep. 625, the court said: Bank directors are not expected to give their whole time and
attention to the business of the company. The customary method in regard to such
associations is that the active management and responsible custody is left to the cashier, and
other agents selected by the directors for that purpose. These are paid salaries, demanding
their skill, and time should be given to the duties of immediate management. As a rule, the
custodian of the assets is the cashier. The duty of directors with respect to such is to
supervise, direct, and control. These agents, though usually selected by the directors, are not
the agents of the directors, but agents of the corporation. (Morawetz on Private Corporations,
552, et seq.) The neglect which would render them responsible for not exercising that control
and direction properly must depend on the circumstances of each particular case.
stances of each particular case. They are not insurers of their fidelity, and they are not liable
for their acts on any principle of the law of agency.
Under the indictment in this case the actual receipt of the deposit was by the receiving
teller; the receipt in law was by the corporation, the State Bank and Trust Company, and not
by the defendant. Clearly, then, we think the indictment cannot be sustained upon the doctrine
of agency. If this indictment can be sustained at all, it must be, as we view it, upon the ground
that the defendant is charged, in effect, with assenting to the reception of the deposit after he
knew the bank was insolvent. This, of necessity, involves the construction of the statute itself.
Is the statute broad enough to include in its provisions the penalization of the act of assenting
to the reception of a deposit knowing the bank to be insolvent? Every officer, agent, teller or
clerk of any bank, * * * who receives any deposit * * * knowing that such bank is insolvent
shall be guilty, * * * is the language of the statute. The language is plain and unambiguous.
The personal pronoun who has for its antecedents the words officer, agent, teller, and
clerk. The word receives has a well-understood meaning. (Hallenbeck v. Getz, 63 Conn.
385, 28 Atl. 519.) The receiving of a thing and the assenting to its reception are two separate
and distinct affairs. The one involves an affirmative act; the other is mere passive
acquiescence. (3 Cyc. 1110.) That the legislature was laboring under no misconception of the
ordinary use of these terms is evidenced by the fact that upon the same day that the penal
statute was passed a general act providing for the incorporation of banks was passed, section
11 of which act provided: It shall be unlawful for any president, director, manager, cashier,
or other officer, to assent to the reception of deposits, after he shall have had knowledge of
the fact that it is insolvent, or in failing circumstances. * * * Every person violating the
provisions of this section shall be individually responsible for such deposits so received. * *
* No other liability or penalty was imposed by said act. The rule is cardinal and universal
that if a law is plain and unambiguous, there is no room for construction or interpretation.
(Brown v. Davis, 1 Nev. 409.) When the language of a statute is plain, its intention must
be deduced from such language, and the courts have no right to go beyond it. (State v.
Washoe County, 6 Nev. 104.)
This court in Ex Parte Deidesheimer, 14 Nev. 311, said: Penal laws generally prescribe what
shall or shall not be done, and then declare the consequences of a violation of either
requirement. They should be plainly written, so that every person may know with certainty
what acts or omissions constitute the crime. (Bish. on Stat. Crimes, 193; Beccaria on Crimes,
22, 45; The Schooner Enterprise, 1 Paine, 33, Fed. Cas. No. 4499.) * * * And in the United
States v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37 (opinion by Chief Justice Marshall), the court
says: It has been said that although penal laws are to be construed strictly, the intention of the
legislature must govern in their construction. That if a case be within the intention, it must be
considered within the letter of the statute. The rule that penal laws are to be construed strictly
is perhaps not much less old than construction itself. It is founded on the tenderness of the
law for the rights of individuals, and on the plain principle that the power of punishment is
vested in the legislative, not in the judicial, department. It is the legislature, not the court,
which is to define a crime and ordain its punishment. * * * The intention of the legislature is
to be collected from the words they employ. Where there is no ambiguity in the words, there
is no room for construction. The case must be a strong one, indeed, which would justify a
court in departing from the plain meaning of the words, especially in a penal act, in search of
an intention which the words themselves do not suggest. To determine that a case is within
the intention of a statute, its language must authorize us to say so.' See also Sedgwick on the
Construction of Stat. and Const. Law, 279, et seq.; Smith's Commentaries, 746; Bish. on Stat.
Crimes, 192, et seq. Considering the construction of a penal statute in the case of State v.
Wheeler, 23 Nev. 143, 152, this court said: Being penal, the proviso exempting persons from
the operation of the law should, on the other hand, receive a liberal interpretation. Mr. Bishop
states the rule thus: 'While the parts of a penal statute which subject to punishment or a
penalty are, from their odious nature, to be construed strictly, those which exempt from
penal consequences will, because of their opposite character, receive a liberal
interpretation.' {Bishop, Writ.
thus: While the parts of a penal statute which subject to punishment or a penalty are, from
their odious nature, to be construed strictly, those which exempt from penal consequences
will, because of their opposite character, receive a liberal interpretation.' (Bishop, Writ. Laws
196, 226.) To the same effect are Sutherland, Stat. Const. 227; Endlich, Stat. Int. 332.
In addition to the fact that Missouri, Kansas, and Colorado courts have had occasion to
hold that the receiving and the assenting to the reception of a deposit knowing the bank to be
insolvent are separate and distinct offenses, and that there are no decisions to the contrary, the
fact that most of the states which have passed statutes upon the subject have specifically, or in
effect, provided that assenting to the reception of a deposit under the conditions named in the
statute constitutes an offense, is a very strong intimation at least that these lawmaking bodies
deemed such provisions necessary in order to penalize officers of incorporated banks, who
probably are mainly responsible for the condition of the bank, yet do not actually participate
in the receipt of the deposit. A brief reference to the statutes of the various states that have
had occasion to consider prosecutions under acts making it a crime to receive deposits into
banks after they are known to be insolvent will serve to show the difference in the extent of
their penal provisions. The statutes of Nevada, California, and Illinois impose a penalty on
those who shall receive the deposit; that of Pennsylvania on those who shall take and
receive; that of Wisconsin on those who shall accept or receive; the statutes of Missouri
and Colorado on those who shall receive or assent to the reception; and those of Iowa,
Kansas, Minnesota, and South Dakota on persons who shall accept or receive, be accessory
to, or permit or connive at, the receiving or accepting, etc. Speaking of the Iowa statute the
court in State v. Yetzer, supra, said: The legislative purpose was evidently to be
comprehensive so as to omit from the provisions of the act none who might be parties to the
fraudulent acts. As heretofore stated by this court, the Nevada statute is a copy of the
California statute, excepting that the California law only makes the offense a misdemeanor.
The California Reports do not contain a case in which the provisions of this law were called
in question, or where any prosecution thereunder was involved. The statute of this state only
imposing a penalty upon the person who receives a deposit into a bank with the knowledge
of the bank's insolvent condition, and it being manifest, not only from the established rules
governing the construction of penal statutes, but from all the authorities that have had
occasion to consider the question, that the word receives cannot be construed to include
assent to reception, it follows that the statute of this state only imposes a penalty upon that
person or officer of a private or incorporated bank who receives a deposit, either in fact or
law, knowing the bank to be insolvent. As the indictment in this case charges the receipt in
fact to have been by the receiving teller as a general deposit in the bank, there is presented but
one question, Does it charge the defendant with a receipt in law?
The doctrine seems to be settled, without any conflict whatever, that in the case of an
incorporated bank the receipt in law is by the corporation itself; that under facts as stated in
the indictment in this case both the defendant and receiving teller were agents of the same
principal, to wit, the corporation, and that, as between themselves, no relationship of principal
and agent was involved. The assertion made by counsel for the state in their brief that the
receipt of a deposit by an employee of an insolvent bank is the act of the president, or other
officer having authority over the employee, is not only not supported by any authority cited
by them, but is opposed by the whole current of authority both of text-writers and decisions of
courts. We have been impressed that counsel for the state have realized their inability to
support their position in the law; hence the desire, repeatedly expressed by them, that this
court pass upon the merits of the questions presented upon the face of the indictment. A very
extensive and careful examination of these questions has conclusively shown to the court that
in no instance have we been able to find one that could be regarded as being close.
Finally, it must be conceded that when the legislature saw fit to deal with the subject of
insolvent banks, it had power to limit the extent of the penal provisions.
limit the extent of the penal provisions. It had power, if it saw fit, to impose a penalty only
upon those who received deposits either in fact or in law. If this was the intention of the
legislature, it would be difficult to find words more expressive of that intent than those used
in the act in question. As the language used in the statute warrants the court only in
determining such to be the intent of the legislature, we are bound to construe the statute
accordingly. With the wisdom and policy of statutes courts have nothing to do; that function
is exclusively the province of the legislature.
We have pointed out how the legislatures of various states have dealt with the question of
receiving deposits by insolvent banks. It is not within the power of this court to extend the
provisions of the statute beyond the limits fixed by the legislature. If we could read into our
statute provisions such as appear in the laws of Colorado, Missouri, Iowa, Kansas, or
Minnesota, for example, a very different legal question would be presented, but to do so
would be a usurpation of powers, which the Constitution has imposed upon the legislature
and denied to the courts. The indictment in this case fails to charge an offense against the
laws of this state.
The defendant is legally entitled to be discharged, and it is so ordered.
____________
31 Nev. 106, 106 (1909) Ex Parte Jackman
[No. 1803]
Ex Parte JACKMAN
1. Habeas CorpusWhen Writ Maintainable.
The question of the legality of the method of impaneling a jury in a criminal case should be raised on
appeal from the judgment and from an order denying a new trial, and not on habeas corpus.
Original proceeding. Application for a writ of Habeas corpus by Albert T. Jackman.
Dismissed.
Thompson, Morehouse and Thompson, for Petitioner.
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for the
State.
This is an application for a writ of habeas corpus by the applicant, Albert T. Jackman,
now confined in the penitentiary under a life sentence for the crime of having unlawfully
killed one John Moritz, in Goldfield, Esmeralda County, State of Nevada, during the year
1906.
Petitioner alleges that he is unlawfully restrained of his liberty by William Maxwell,
warden of said state prison, and that his unlawful confinement and detention consists in this,
to wit: That heretofore, to wit, on the 22d day of November, A. D. 1906, at the County of
Esmeralda, State of Nevada, the grand jury of said Esmeralda County found an indictment in
the District Court of the First Judicial District of the State of Nevada, in and for Esmeralda
County, against said Albert T. Jackman, under the name of John Thompson, charging said
Albert T. Jackman with the crime of murder, in the killing of one John Moritz, at Goldfield,
Esmeralda County, State of Nevada, on the 16th day of September, A. D. 1906. That at the
time of the finding of said indictment, said Albert T. Jackman was under arrest and held in
the county jail of Esmeralda County, State of Nevada, by the sheriff of said county, and said
Albert T. Jackman was duly arraigned under said indictment, and pleaded not guilty thereto.
That thereafter the trial under said indictment was duly set in said district court for the 2Sth
day of September, 190S, before the court by jury, but on said 2Sth day of September,
190S, the cause was regularly continued until the 29th day of September, 190S, at the
hour of 10 o'clock a. m.
for the 28th day of September, 1908, before the court by jury, but on said 28th day of
September, 1908, the cause was regularly continued until the 29th day of September, 1908, at
the hour of 10 o'clock a. m. of that day, by consent, at which time the said cause was
proceeded with, and twelve names were regularly drawn from the court-room jury box, and
the trial proceeded by the examination of said jurors as to their qualifications, and said cause
proceeded in due and proper way until the close of the day, when the jury list in the
court-room box was exhausted, and the following jurors, to wit, Thomas H. Cline, A. E.
Barnes, E. E. Aldridge, W. E. Linton, L. A. Deese, J. E. White, and J. S. Milligan, were
passed subject to peremptory challenge, at which time the court continued the cause until the
30th day of September, A. D. 1908, at the hour of 10 o'clock a. m. of that day, but later on, of
its own motion, recalled or vacated such continuance and caused the action to be taken up at
7:30 p.m. of said 29th day of September, 1908; when, all parties being present, in open court
the court of its own motion continued the cause until Wednesday, the 7th day of October,
1908, at the hour of 2 o'clock p. m. of that day. That thereafter, on the 1st day of October,
1908, Hon. Frank P. Langan, judge of said court, of his own motion and cause, left the
County of Esmeralda, State of Nevada, and opened, conducted, and carried on his court in the
County of Ormsby, State of Nevada, and the following proceedings were had in the district
court of the First Judicial District of the State of Nevada, in and for the County of Ormsby, to
wit: Carson City, Nevada, October 3, 1908. This is to certify that on this day, Saturday,
October 3, 1908, at the hour of 10 o'clock a. m., there was a session of the District Court of
the First Judicial District, in and for the County of Ormsby. Present: Hon. Frank P. Langan,
district judge; Wm. Kinney, sheriff; E. O. Patterson, clerk. At which time the following
proceedings were had: The court overruled the demurrers to the seven indictments in each of
which the State of Nevada was plaintiff and T. B. Rickey was defendant and ordered that the
said T. B. Rickey plead to each of said indictments on Monday morning, the 5th day of
October, at the hour of 10 o'clock of that day. In the matter of the guardianship of the person
and estate of Trenmor Coffin, a minor, the discharge of the guardian was entered.
of the guardianship of the person and estate of Trenmor Coffin, a minor, the discharge of the
guardian was entered. In the case of divorce entitled Olive E. Harper, Plaintiff, v. William A.
Harper, Defendant, upon default of defendant being entered and proof presented, the decree
of divorce was granted plaintiff. In the case for divorce entitled Belle Willis, Plaintiff, v. Fred
Willis, Defendant, upon default of defendant being entered, and the proofs presented, the
decree of divorce was granted plaintiff. Thereafter no further business coming before the
court at this time, adjournment was ordered to 10 o'clock a. m. Monday, October 5, 1908.
Attest: E. O. Patterson, Clerk [Seal.]' And the said Hon. Frank P. Langan presided as the
judge of said court in the said County of Ormsby. That when the said Hon. Frank P. Langan,
judge as aforesaid, left the said County of Esmeralda, and opened and conducted his court in
said Ormsby County, the said trial of said Jackman in said district court for Esmeralda
County had proceeded only to the exhaustion of the court-room jury box, and leaving seven
jurors who had been examined as to their qualifications and subject to peremptory challenge,
sitting in the panel, and there were others and many names in the regular trial jury box,
subject to be drawn as jurors, and to be summoned under proper venire. That thereafter,
without any notice other than the aforesaid continuance and against the objection of said
Jackman, duly and properly made, and without any notice by the said judge or the clerk of
said court, or any notice as provided by Rule 3 of the rules of the said district court, as
adopted and prescribed by the supreme court of this state on the 4th day of April, 1887, as the
rules of the said district court, the said Hon. Frank P. Langan caused said trial against the
objections of said Jackman to proceed just the same as if the said court had not ceased to be
in term or in session, and took up the said cause at the point where the cause had ceased when
he, said judge, left the said County of Esmeralda, and forced and compelled said Jackman to
the trial of said cause, and thereafter a jury was obtained, by the calling of additional jurors to
fill the panel, then consisting of seven jurors aforesaid, and juror after juror was called and
examined and peremptory challenges used by the state and defendant, until a panel was
complete, and upon such completed panel there remained the following-named jurors, to
wit, W. E. Linton and J. S. Milligan, who were passed for challenge September 29, 190S,
and not having been challenged for cause or peremptorily, remained upon said completed
panel, notwithstanding the adjournment of said court on the 30th day of September,
190S.
challenges used by the state and defendant, until a panel was complete, and upon such
completed panel there remained the following-named jurors, to wit, W. E. Linton and J. S.
Milligan, who were passed for challenge September 29, 1908, and not having been
challenged for cause or peremptorily, remained upon said completed panel, notwithstanding
the adjournment of said court on the 30th day of September, 1908. That thereafter said cause
proceeded and on the 24th day of October, 1908, the jury rendered a verdict against said
Albert T. Jackman of murder in the second degree, and upon said verdict the court, against
the objection of defendant, pronounced judgment against defendant, and sentenced him for
life in the state prison of the State of Nevada, at Carson City, and upon said verdict and
judgment, and none other and not otherwise, said William Maxwell holds, confines, detains,
restrains, and imprisons said Albert T. Jackman in said state prison, as aforesaid, and your
petitioner avers: That when said Hon. Frank P. Langan left the said County of Esmeralda, as
hereinbefore set forth, and opened court and conducted and carried on his court in Ormsby
County, as herein set forth, the term of court in and for Esmeralda County, State of Nevada,
ceased and determined, and the jury then passed for peremptory challenge was by operation
of law discharged, and the trial of said cause, by operation of law, was ended and ceased and
could not be resumed again, and that when the said judge returned to said Esmeralda County
the said court therein was not in session, and that all subsequent proceedings were in the
vacation of said court and not while the court was legally or otherwise in session, and said
trial was had and the verdict given and judgment rendered at a time not authorized by law,
and that the said court was then without jurisdiction to take any proceedings against the said
Albert T. Jackman, and that the sentence and judgment of the court are absolutely void, and
the commitment issued thereon is void, and is no authority for the restraint, imprisonment,
confinement, and detention of said Albert T. Jackman by said William Maxwell, in said state
prison, as warden thereof, or otherwise.
No briefs were filed in this proceeding; but upon the oral argument counsel for petitioner
conceded that, even if this court sustained their alleged contention in the premises, the
petitioner was not entitled to an absolute discharge from custody, but only that he was
entitled to be released from the state prison and remanded to the custody of the sheriff of
Esmeralda County for a new trial.
argument counsel for petitioner conceded that, even if this court sustained their alleged
contention in the premises, the petitioner was not entitled to an absolute discharge from
custody, but only that he was entitled to be released from the state prison and remanded to the
custody of the sheriff of Esmeralda County for a new trial. By assuming this position, it was
conceded, even if the court erred in the conduct of the trial in the manner contended, that such
error would only amount to a mistrial of the cause. Conceding, for the purposes of this case,
without so deciding, that a jury impaneled in the manner detailed in the petition was an illegal
jury, it would, we think, only entitle petitioner to a new trial. (State v. Vaughn, 23 Nev. 103.)
A question of law of this kind should, we think, be raised on appeal from the judgment and
from an order denying a motion for a new trial, and not on habeas corpus. (Ex Parte Smith, 2
Nev. 338; Ex Parte Winston, 9 Nev. 71; Ex Parte Edgington, 10 Nev. 215; Ex Parte Maxwell,
11 Nev. 429; Ex Parte Bergman, 18 Nev. 331; Ex Parte Crawford, 24 Nev. 91.)
An appeal is now pending in this court from said judgment and order, in which the question
sought to be determined in this proceeding is presented.
As this latter procedure is the appropriate remedy for determining questions of this
character, the writ should be dismissed, and it is so ordered.
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31 Nev. 113, 113 (1909)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
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APRIL TERM, 1909
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31 Nev. 113, 113 (1909) State v. White Pine County
[No. 1801]
THE STATE OF NEVADA, ex rel. FRANK X. MURPHY, Relator, v. THE COUNTY OF
WHITE PINE, IN THE STATE OF NEVADA, A. L. PARKER, GEORGE F. PARKER, and
IRA J. McKNIGHT, as the Board of County Commissioners of White Pine County, G. S.
HOAG, WILLIAM McKNIGHT, and WILLIAM McKNIGHT as the County Recorder and
Ex Officio County Auditor of the said White Pine County, Respondents.
1. CertiorariStatutory Provisions.
The board of county commissioners, in contracting for the indexing of the records of the county recorder,
did not exercise judicial functions, and as under Comp. Laws, 3531, certiorari will only lie to review the
proceedings of an inferior tribunal, board, etc., exercising judicial functions, the writ would not lie to
review its action.
2. CertiorariStatutory Provisions.
Under Comp. Laws, 3531, certiorari will only lie to review the proceedings of a board exercising judicial
functions, and then only when there is no other plain and adequate remedy. Held, that, since section 22 of
an act to create a board of county commissioners, etc. (Stats. 1864-65, p. 262, c. 80), as amended by Stats.
1893, p. 120, c. 116 (Comp. Laws, 2124), providing that when objections are filed to the allowance of a
claim the board must discontinue the further consideration thereof for at least ten days, provided an
adequate remedy, certiorari would not lie at the instance of a taxpayer to review the action of the board in
entering into a contract for the indexing of certain county records.
Original proceeding. Application for certiorari by The State, on the relation of Frank X.
Murphy, against the County of White Pine and others, to review the action of the board of
county commissioners of said county in entering into a certain contract. Dismissed.
Frank X. Murphy, for Relator:
I. The debt created by this contract is not expressly authorized by law; and the board of
county commissioners exceeded its jurisdiction in making the contract. Under the law, the
county recorder is allowed for each name to be indexed, fifty cents. (Comp. Laws, 2459.)
No person, except the county recorder, is allowed any fee for such work. But under the
contract G. S. Hoag is allowed ten cents for each name, of which sum the county recorder
gets half.
II. The board of county commissioners exceeded its jurisdiction on September 5, 1908, in
proceeding to consider the claims of the bidders on the contract, after written objections
thereto, and on the same day, had been filed by the relator. They had no right at the time to
consider even the written objections so filed. It was their duty to lay the matter on the table
for at least ten days. (Comp. Laws, 2124; State v. White Pine County, 22 Nev. 80.) In the
last-mentioned case (p. 88) this court held that the board of county commissioners had no
jurisdiction over the subject-matter after objections were filed to the claim or demand of W.
L. Davis, for the issuance to him of certain scrip, suit having been commenced by Hayes in
the meantime.
III. The board of county commissioners being a tribunal of special and limited jurisdiction
only, its minutes must show affirmatively that the contract was let to the lowest responsible
bidder. Their conclusion is not sufficient as against the written bid of G. H. Lindsey and H. B.
Meloy, who were, surely and fairly, the best and lowest and most responsible bidders.
Mitchell & Belford and J. M. Lockhart, for Respondents:
I. Conceding the rule to be well settled that boards of county commissioners are of
special and limited jurisdiction, and that they have no powers beyond those expressly
granted by the legislature, we contend that the board had the authority to contract for the
indexes by virtue of express statutory authority. "That board of county commissioners
shall have power and jurisdiction in their respective counties.
county commissioners are of special and limited jurisdiction, and that they have no powers
beyond those expressly granted by the legislature, we contend that the board had the authority
to contract for the indexes by virtue of express statutory authority. That board of county
commissioners shall have power and jurisdiction in their respective counties. * * *
NinthLease or purchase any real or personal property necessary for the use of the county.
(Comp. Laws, 2111.)
II. The record before this court shows that the board found the fact to be that a new system
of indexes is a matter of great importance to the property owners and the public at large as
well as the county. This, we take it, is a substantial finding that the indexes are necessary for
the use of the county.
III. Relator, without citing any authority, objects that the record as certified here does not
set forth the evidence upon which the board found the facts set forth in its resolution. We
have found several cases in which this court has held that the facts necessary to give the board
jurisdiction in any proceeding must affirmatively appear upon its records, but in none of these
cases do we find any ruling or intimation that any of the evidence leading up to the facts must
or should be spread upon the minutes.
IV. Certiorari is an extraordinary remedy, and courts should only use it when ordinary
remedies do not apply. It should not issue when there is a plain, speedy, and adequate remedy
by appeal. This proposition is of universal application, and needs no citations of authority to
support it. The application does not state facts sufficient to justify the issuance of the writ.
The writ will only issue when there has been an exercise of judicial functions. This court has
repeatedly decided and held that the writ of certiorari will issue as against a board of county
commissioners only when they exercise judicial functions. (State v. Washoe County, 23 Nev.
247; Southern Dev. Co. v. Douglass, 26 Nev. 60; State v. Osburn, 24 Nev. 187.)
This is an original proceeding in certiorari to review the action of the Board of County
Commissioners of White Pine County in entering into a certain contract with one G. S.
Hoag, by the provisions of which the said Hoag was to make an index, or indexes, of the
records of the office of the county recorder of said White Pine County.
County in entering into a certain contract with one G. S. Hoag, by the provisions of which the
said Hoag was to make an index, or indexes, of the records of the office of the county
recorder of said White Pine County.
The petition alleges the fact that on the 30th day of July, 1908, the said board of county
commissioners adopted a resolution reciting, among other things, that it is a matter of great
importance to the property owners and the public at large, as well as the county, that a full,
complete, plain, and simple system of indexing of said records be made at the expense of said
County of White Pine, and, further, that it was the sense of said board that a contract be let
for the making of such indexes, that notices be published calling for bids for the same, that
the work performed under the contract be checked and approved by the then county recorder,
that all bids for said work specify the amount for which the bidder will index said records, per
name, per instrument, and that the work be completed not later than April 1, 1909.
This latter provision of the resolution was subsequently amended so as to require the
completion of the work not later than the 4th day of January, 1909. The petition further
alleges: That on the 5th day of September, 1908, in pursuance of said resolution and notice,
bids were submitted to said board in effect as follows: Geo. H. Lindsey and H. B. Meloy
offered to do the work at the rate of and for the price of eight cents per name, per instrument.
G. S. Hoag offered to do the work at the rate of and for the price of ten cents per name, per
instrument. That immediately prior to the opening of said bids, relator herein appeared before
said board, as a resident and taxpayer of said county, and objected to and protested against the
action of said board in reference to the giving of any such contract. That thereupon said board
adjourned without taking further action in the matter. That thereafter, and on the same day,
said board met again, pursuant to adjournment, and accepted the bid filed by the said G. S.
Hoag and awarded the contract mentioned in said resolution and notice to him. That prior to
the acceptance of said bid, and prior to the awarding of said contract, relator herein filed with
said board written objections to the allowance of said claim or contract.
ance of said claim or contract. The petition further avers that there is no appeal from said
action of the board, nor any plain, speedy, and adequate remedy; hence he invokes certiorari
to annul the said action of said board upon the ground that it exceeded its jurisdiction in the
premises, and that such excess of jurisdiction was in the exercise of judicial functions.
We think the motion to dismiss and quash the proceedings should prevail. Whether or not
the board was acting in excess of its powers in entering into the contract in question, it is
clear, we think, that such action was not in the exercise of judicial function. The writ of
certiorari will only lie to review the proceedings of an inferior tribunal, board, or officer
exercising judicial functions, and then only when there is no appeal nor, in the judgment of
the court, any other plain, speedy, and adequate remedy. (Comp. Laws, 3531; State v. Washoe
County, 23 Nev. 247; Southern Dev. Company v. Douglass, 26 Nev. 50; Townsend v.
Copeland, 56 Cal. 612.)
The case of State v. Commissioners of Washoe County, supra, was an application by the
state upon the relation of certain taxpayers of Washoe County to annul and set aside an order
entered on the minutes of said board, employing the firm of Torreyson & Summerfield,
attorneys, to assist the district attorney of Washoe County in certain tax litigation in which the
county was interested, and agreeing to pay the said firm of attorneys therefor the sum of
$1,000. Considering the question thus presented, this court said: The first question that
arises is upon the respondent's objection that in making the order the board did not exercise
judicial functions. That it is only for the exercise of such functions that a writ of certiorari
will lie is the plain reading of the statute (Gen. Stats. 1885, 3458), and has been so often
decided both by this and nearly all other courts that there is now no question concerning it
(Esmeralda County v. Third District Court, 18 Nev. 438; In re Rourke, 13 Nev. 253; People
v. Board of Education, 54 Cal. 377; People v. Bush, 40 Cal. 345; Spring Valley Company v.
Bryant, 52 Cal. 138; People v. Park Commissioners, 97 N. Y. 37; People v. Walter, 68 N. Y.
403; People v. Supervisors, 43 Barb. 234; People v. Carr, 23 N. Y. Supp. 112, and the
numerous authorities cited in 4 Ency.
Pl. & Pr. 74, et seq.) The only question there ever can be is as to whether the board of other
tribunal was, in the given instance, exercising judicial functions, or those that are ministerial,
executive, or legislative.
After reviewing a number of authorities, the opinion continues: We have found no cases
where the contrary has been decided, although there are cases, both in this court and others,
where the point was not made by the attorneys, nor noticed by the court when, had it been
made, it would doubtless have been conclusive. Sadler v. Eureka County, 15 Nev. 39, comes
under this head. Such cases are, of course, not decisions upon the question, it not being
jurisdictional, and cut no figure in determining it; but should we overrule the objection now
that it has been made, it would be, in effect, to decide that the courts, through the writ of
certiorari, have a superintending control over the action of every officer in the state to the
extent, at least, of determining whether they had authority to act, and of setting aside their
action if they did not. It would be a larger task than was intended the courts should
undertake.
See also State v. Osburn, 24 Nev. 187.
Counsel for respondents has raised a number of other objections to the proceeding in this
cause by certiorari, one of which we deem advantageous also to consider, to wit, that relator
has a plain, speedy, and adequate remedy under the statute. The only interest which relator
has is that of a taxpayer in preventing the use of the public funds of the county for purposes
not authorized by law. The statute specifically provides a remedy to prevent such action upon
the part of the board of county commissioners. Section 22 of An act to create a board of
county commissioners in the several counties of this state and to define their duties and
powers (Stats. 1864-65, p. 262, c. 80), as amended by Stats. 1893, p. 120, c. 116 (Comp.
Laws, 2124), provides: Any person being a resident and taxpayer of the county may appear
before and file with the board of county commissioners of the county wherein he resided
written objections to the allowance of any claim or claims, demand or demands against the
county. Such objections in writing shall properly describe the claims or demands objected to,
and the board of county commissioners shall file the same and embody such objections in
the record of their proceedings, and lay such claims or demands on the table for a definite
period of time, not less than ten days, at the expiration of which time they may proceed to
consider the claims or demands so objected to, together with the objections, unless
proceedings have been instituted in a court of competent jurisdiction to determine the
validity of such claims or demands."
objected to, and the board of county commissioners shall file the same and embody such
objections in the record of their proceedings, and lay such claims or demands on the table for
a definite period of time, not less than ten days, at the expiration of which time they may
proceed to consider the claims or demands so objected to, together with the objections, unless
proceedings have been instituted in a court of competent jurisdiction to determine the validity
of such claims or demands.
This court, in State v. Commissioners of White Pine County, 22 Nev. 80, 87, by Murphy,
C. J., said: Of the right of an individual taxpayer to commence and maintain an action to
determine the legality of ownership of a claim or demand presented against the county, we do
not entertain the remotest doubt. * * * Prior to the enactment of the statute of 1893, under and
by virtue of section 1962, Gen. Stats. 1885, any taxpayer of the county might appear before
the board of county commissioners and oppose the allowance of any claim or demand against
the county; but the act did not stay the proceedings of the board. It might entertain the
objections, or disregard them, as to it might seem fit. There was no appeal from its decision,
and the taxpayer was without a remedy, except by filing a bill in equity and asking for a
restraining order, which, in the majority of cases, on account of the absence of the judge from
the county, could not be done until after the mischief complained of had been consummated.
The act of 1893 was passed with a view to remedy the defect in the law, and, when objections
are filed to the allowance of a claim or demand, the board must discontinue the further
consideration of the claim or demand for at least ten days. If at the end of ten days no suit has
been commenced, the board may proceed and pass upon the claim or demand; but, if the suit
has been commenced, the board is divested of all jurisdiction and cannot act until the final
determination of the controversy by the court, for its duties are definitely prescribed by the
act, and it cannot exceed the powers therein conferred upon it.
See also Crampton v. Zabriskie, 101 U. S. 609, 25 L. Ed. 1070; Dill. Mun. Corp. 914, et
seq., cited in the opinion.
The proceedings are dismissed.
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31 Nev. 120, 120 (1909) Murphy v. Southern Pacific Co.
[No. 1760]
JAMES MURPHY, Respondent, v. SOUTHERN PACIFIC
COMPANY, Appellant.
1. DamagesNatureInjuries to PassengersLiability.
A passenger injured in a collision may only recover the damages which are the natural and proximate
result of the injury sustained.
2. CarriersCarriage of PassengersDuty of Carriers.
A carrier of passengers must use the utmost care and diligence for their safety, and is liable for any injury
to a passenger occasioned by the slightest negligence against which human prudence should have guarded.
3. CarriersInjuries to PassengersNegligence.
The fact of a collision between two trains of a carrier of passengers resulting in injury to a passenger
raises a presumption of negligence on its part which it must overcome.
4. DamagesPersonal InjuryBurden of Proof.
The burden of proof of the nature and extent of a personal injury rests on plaintiff.
5. DamagesPersonal InjuriesQuestion for Jury.
Whether a particular disease results from a particular physical injury is for the jury, where the evidence
tends to show that the disease followed the injury, and where there is expert testimony showing that the
disease is one which might have been produced by the injury.
6. Appeal and ErrorVerdictConclusiveness.
Where there is a substantial conflict of testimony on any material issue, the appellate court will not
disturb the jury's finding thereon.
7. DamagesPersonal InjuriesExcessive DamagesPassion and Prejudice.
A passenger was injured in a collision and thrown against the seat in front of him, causing an injury to his
leg. The evidence was conflicting on the issues whether varicose veins resulted from the injury or from the
passenger's failure to take proper care of the injuries. He was 49 years old, and had a strong constitution,
and had been engaged in mining for many years prior to the accident. There was evidence that he had
suffered greatly and would continue to suffer. Held, that a verdict for $7,500 would not be set aside as
excessive, in the absence of a showing that the jury were actuated by passion and prejudicethat is, anger,
resentment, heat, absence of reflection, disregard of the rights of others, and kindred motives.
8. DamagesPersonal InjuriesCare Required of Person Injured.
One injured through the fault of another must use reasonable means to protect himself against any
aggravation of the injury, and must do all things reasonably necessary to cure the injury, and cannot
recover for any suffering or physical disability which could have been prevented by the use of reasonable
precaution and attention in caring for the injury.
9. DamagesPersonal InjuriesMeasure of Damages.
The liability of one inflicting a personal injury on another is confined to such sum as will justly
compensate the latter for the injury received and the consequences that will naturally or probably result.
10. DamagesPersonal InjuriesLiability.
Where a passenger hurt in a collision suffered from a physical disability which was aggravated by the
injury, the carrier was liable for such an amount as would compensate for the aggravation of the previous
disability, provided the passenger used reasonable care in treating the injury, and gave it such medical
attention as in his best judgment it demanded.
11. Appeal and ErrorVerdictConclusiveness.
In an action for personal injuries negligently inflicted, the verdict of the jury is conclusive as to the
existence of negligence and its effect as contributing proximately to the injury, unless the contrary
conclusion necessarily follows from undisputed facts.
12. DamagesPersonal InjuriesEvidence.
In an action for personal injuries, evidence held to justify a finding that the injuries received directly and
proximately caused varicose veins, authorizing a recovery therefor.
13. DamagesPersonal InjuriesIssuesQuestion for Jury.
The evidence to justify the submission to the jury of the issue whether a certain bodily condition
complained of resulted from the injury should show the connection between the two with reasonable
certainty, but evidence of good health prior to the injury and of suffering shortly thereafter not shown to be
an impossible effect of the injury carries the question to the jury.
14. JuryChallengesDiscretion of Court.
The court has much discretion in ruling on challenges of jurors in a civil action, to the end that a fair,
unbiased, and impartial jury may be secured.
15. JuryCompetencyBusiness ConnectionDiscretion of Court.
While the mere fact that a juror has formerly been in the employment of one of the parties to the action
does not alone disqualify him, the court may in its discretion sustain a challenge on believing that a fairer
juror may be secured.
16. Appeal and ErrorReviewDiscretionRuling on Challenges of Jurors.
A judgment will not be reversed because of rulings of the court on challenges of jurors, unless there has
been a gross abuse of discretion.
17. Appeal and ErrorHarmless Error.
Trifling errors not prejudicing the substantial rights of the complaining party will be disregarded on
appeal.
18. Appeal and ErrorHarmless ErrorErroneous Admission of Evidence.
Where in a personal injury action defendant admitted that plaintiff was injured in the accident, the error,
if any, in admitting declarations made, by the person injured, about four minutes after the accident, to the
effect that he had been injured, was not prejudicial.
19. Appeal and ErrorReviewDiscretion of Trial CourtPhysical Examination.
In an action for personal injuries, the rulings of the trial court in the exercise of its discretion in granting
or denying a physical examination of plaintiff will not be disturbed in the absence of gross abuse of
discretion.
20. DamagesPersonal InjuriesPhysical Examination.
Plaintiff, suing for a personal injury, submitted to two examinations at different times by physicians of
defendant. During the trial, the defendant asked for another physical examination, and plaintiff consented
to an examination of the part of his body that was injured. Held, that the refusal of the court to direct that
plaintiff submit to an examination of his entire body was not an abuse of its discretion.
21. WitnessesExaminationCross-ExaminationScope.
Where, in an action for injuries to a passenger in a collision, the trainmaster, as a witness for the carrier,
testified that he did not see any passenger on the train who required a bandage, it was proper to permit
plaintiff on cross-examination to show the authority of the witness and how thoroughly he examined the
passengers, and as to whether settlements were made with other passengers.
22. Appeal and ErrorHarmless ErrorErroneous Admission of Evidence.
Where, in an action for injuries to a passenger, the carrier admitted that plaintiff was injured and was
entitled to a verdict of some amount, the error, if any, in permitting plaintiff to cross-examine a witness of
the carrier as to settlements made with other passengers at the time plaintiff was injured, was harmless.
23. TrialInstructionsRefusal to Give Instructions Covered by the Charge Given.
It is not error to refuse a requested charge substantially covered by the instructions given.
24. DamagesPersonal InjuriesLiability.
Where one already diseased has suffered from a personal injury, the mere fact of personal condition does
not deny him all the damages suffered from the accident, and this is true whether the damages proximately
result from the wrong complained of, or whether the disease existed at the time of the injury and was
aggravated by it.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; John S. Orr, Judge.
Action by James Murphy against the Southern Pacific Company. From a judgment for
plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.
Mack & Shoup, for Appellant. Lee J.
Lee J. Davis and Sylvester S. Downer, for Respondent.
This is an action instituted by plaintiff to recover $10,000 damages, $155 hospital and
medical expenses, and $1.50 for surgical apparatus, claimed to be due plaintiff for certain
injuries sustained while a passenger on one of defendant's trains on a railroad operated by
defendant, December 22, 1906, at a place called Harney, in the County of Eureka, State of
Nevada.
It appears undisputed from the evidence that plaintiff was a passenger upon defendant's
train, being provided with a ticket, and that he received an injury as the result of a wreck on
said line of road, being occasioned by a head-on collision between the passenger train upon
which plaintiff was traveling and a freight train going in the opposite direction. The action
was tried before a jury, which resulted in a verdict in favor of plaintiff for $7,500, and
defendant appeals to this court from the judgment entered upon the verdict, and from the
order denying defendant's motion for a new trial, basing said appeal upon the following
grounds: (1) Excessive damages appearing to have been given under the influence of passion
or prejudice; (2) insufficiency of the evidence to justify the verdict, and that it was against
law; (3) errors in law occurring at the trial and excepted to by the defendant; and (4) newly
discovered evidence, material for the defendant, which could not with reasonable diligence be
discovered and produced at the trial. The grounds thus assigned will be treated in the order in
which they are stated.
Subdivision 5 of section 195 of our civil practice act (Stats. 1869, p. 226, c. 112; Comp.
Laws, 3290), which states the grounds upon which a new trial will be granted to a party
claiming to be aggrieved, and which is seriously contended by appellant to warrant a new trial
in the present case, reads: Excessive damages appearing to have been given under the
influence of passion or prejudice.
It has been admitted and conceded by the defendant that plaintiff was injured while a
passenger on one of defendant's trains, and entitled to recover some damages. The admission
of this primary liability made by appellant is complete.
of this primary liability made by appellant is complete. It is contended, however, by the
defendant that plaintiff is entitled only to recover such damages as are the natural and
proximate consequence of the injuries sustained by the collision. Defendant contends that the
only injury sustained by plaintiff as the result of the collision was an inconsequential bruise
upon his left leg, which, with ordinary care and attention, would have healed without any
appreciable injury to the plaintiff; and that the varicose veins, from which plaintiff is
suffering, were brought on by septic poisoning that resulted from plaintiff's lack of care in the
interim between the time of the accident and the time of trial. A further contention was made
at the time of the trial that the plaintiff was suffering from varicose veins previous to the time
of the accident, and, hence, that they were not the result thereof. The plaintiff as strenuously
maintains that the varicose veins and injury, of which he is now suffering, resulted directly
from the bruise or contusion received at the time of the collision, and were not caused by any
act or omission of his own not directly attributable to the negligence of the defendant, and
that prior to the accident plaintiff never suffered or was afflicted with varicose veins.
The law is so well settled that no damage can be recovered in suits of this character, where
the damages are not the natural or proximate consequence of any injury sustained, that it
needs no citation of authorities. We thoroughly agree with appellant that the damages which
plaintiff is entitled to recover must be due to the natural and proximate consequence of the
negligence of defendant, and that plaintiff cannot recover upon testimony adduced, based
upon mere surmise, conjecture, or possibility. (Puckhaber v. Southern Pacific, 132 Cal. 365,
64 Pac. 480; Welsh v. Erie Railway Company, 181 Pa. 461, 37 Atl. 513; Philadelphia v.
Schertle, 97 Pa. 450; Stringert v. Ross Townsite, 179 Pa. 614, 36 Atl. 345; Grant v.
Pennsylvania R. R. Co., 133 N. Y. 657, 31 N. E. 220; Hannigan v. Lehigh R. R. Co., 157 N.
Y. 244, 51 N. E. 992; Orth v. St. Paul R. R. Co., 47 Minn. 384, 50 N. W. 363; Wheelan v.
Chicago Ry. Co., 85 Iowa, 167, 52 N. W. 119; Atchison R. R. Co. v. Aderhold, 58 Kan. 293,
49 Pac. 83; Koslowski v. Thayer, 66 Minn. 150, 68 N. W. 973; Hughes v. Cincinnati R. R.
Co., 91 Ky. 531, 16 S. W. 275; Illinois Central R. R. Co. v.
N. W. 973; Hughes v. Cincinnati R. R. Co., 91 Ky. 531, 16 S. W. 275; Illinois Central R. R.
Co. v. Cathy, 70 Miss. 332, 12 South. 253; Clare v. New York R. R. Co., 167 Mass. 39, 44 N.
E. 1054; Illinois Central R. R. Co. v. Jones, 16 South. 300; Plefka v. Knapp Co., 145 Mo.
316, 46 S. W. 974; Louisville R. R. Co. v. McGary's Administrator, 104 Ky. 509, 47 S. W.
440; Wintuska v. Louisville R. R. Co., 20 S. W. 819, 14 Ky. Law Rep. 579; Pleasants v. Fant,
22 Wall. 116, 22 L. Ed. 780.)
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 guarded. In the present case, the fact that
there was a collision of two of defendant's trains establishes a presumption of negligence on
the part of defendant in the operation of its trains, which presumption was not rebutted or
overcome by any evidence on the part of defendant, and defendant must concede, as it frankly
does, its liability for any injuries sustained by plaintiff directly resulting from the collision.
We thoroughly agree with counsel for appellant that the burden of proof in establishing the
nature and extent of the injury resulting from the collision, as alleged by plaintiff, rested upon
the plaintiff.
With these principles of law in mind, the question presented resolves itself into a question
of fact, as to whether or not the injuries, alleged by plaintiff, were the direct or natural and
proximate consequence of the accident at the time of the collision, and, if so, whether the
verdict of $7,500 damages, which was granted to plaintiff by the jury, can be considered
excessive, and to have been given under the influence of passion or prejudice. Thompson, in
his Commentaries on the Law of Negligence, vol. I, sec. 154, very aptly sets forth the law
applicable to the foregoing observation, and which is particularly appropriate to the facts in
the present case, as follows: Whether a particular disease is the result of a particular physical
injury must, of course, be determined by the jury as a question of fact, where the evidence
tends to show that the disease followed the injury, and where there is expert testimony
tending to show that the disease is one which might have been produced by the injury.
testimony tending to show that the disease is one which might have been produced by the
injury. It was so held with respect to an injury which was shortly afterwards followed by a
cancer on the part of the body of the plaintiff which had been injured. So, if a physical injury,
the result of negligence, leaves the constitution of the injured person in a broken and shattered
condition, creating an increased susceptibility to a particular disease, and that disease follows,
although after a considerable lapse of time, and death results from it, the person or
corporation inflicting the injury may be liable, if, in the opinion of the jury, the injury, and the
sickness and debility following it, concurred in and contributed to the attack of the particular
disease which finally carried the injured person off.
It has been settled by numerous decisions of this court that, where there is a substantial
conflict of testimony upon any material issue, the appellate court will not set aside the verdict
of a jury.
1. A very careful examination of the testimony adduced at the trial leads us to the
conclusion that there was sufficient material evidence produced for the jury on which to have
based their verdict. It appears from the testimony that plaintiff is a miner and prospector by
occupation, 49 years of age, and at the time of the accident was on his way from Butte City,
Montana, to Goldfield, Nevada; that he had a rugged constitution, and was a strong and
healthy man; that up to the time of the accident he had been engaged in mining for thirty-two
or thirty-three years in California, Arizona, New Mexico, Idaho, Montana, and Old Mexico.
On the day of the accident, in company with J. H. Cooper, he was seated in the smoking car
of defendant's west-bound train, four or five seats from the front end, on the left-hand side,
Mr. Cooper being seated on the opposite side of the car. Near Palisade defendant's train
collided with a freight train at a siding. The force of the collision threw plaintiff against the
seat in front of him, causing a contusion on his leg which knocked skin off of it; some places
you could see the blood through it, and in other places kind of watery looking. An attempt
was made by defendant to prove that plaintiff had suffered from varicose veins before the
accident; but plaintiff proved by many witnesses, who had known him for many years,
had slept with him, worked with him, gone in swimming with him, and observed him for
long periods of time, that he was not afflicted with varicose veins prior to the time of this
accident.
had suffered from varicose veins before the accident; but plaintiff proved by many witnesses,
who had known him for many years, had slept with him, worked with him, gone in swimming
with him, and observed him for long periods of time, that he was not afflicted with varicose
veins prior to the time of this accident. In addition to this Dr. Robinson, who treated the
plaintiff, examined him minutely on many occasions, and performed an operation on the very
limb that is now afflicted, testified there were no varicose veins on this limb until after the
patient had left the hospital.
As to whether or not these varicose veins, of which plaintiff now suffers, were the direct
result of the bruise or contusion received at the time of the collision, or whether they were
brought on by plaintiff's own neglect, or from septic poisoning, a great deal of medical
testimony was produced. Five gentlemen of the medical profession were examined as
witnesses, Dr. Robinson of Reno, on behalf of plaintiff, and Dr. Hood of Reno, Dr. Shields of
San Francisco, Dr. Pinkerton of Salt Lake, and Dr. McKenzie of Reno, on behalf of the
defendant, from all of whom expert testimony was exacted upon the causes likely to produce
varicose veins, and as to whether or not the varicosity of the veins, from which plaintiff was
suffering, was directly attributable to the accident or to septic poisoning, or neglect of
plaintiff after the accident. Dr. Robinson states that when he examined plaintiff's limb, at the
Clarendon Hotel, there was a large contusion on the side of his leg. He also states that he saw
the patient and his leg every day for a little over a month. When asked whether a contusion
would produce varicose veins, he replied that indirectly it would.
Dr. Hood, who has been employed as a physician for the Southern Pacific since 1892, was
called as a witness for the defendant, and, when asked whether a failure to keep the wound
absolutely clean had anything to do with varicosity, replied, I cannot answer that question
Yes' or No.' After testifying with reference to the effect of veins that might follow a mild
case of typhoid fever, which was shown plaintiff had in 1896, in answer to a hypothetical
question, he said: A. I would not attribute the varicosity to conditions that had existed for
so long a time, and, in the absence of other causes, I would attribute it to the effects of
traumatism upon those deeper veins, as I suggested. Q. It would be almost a miracle,
would it not, Doctor, if that varicosity should happen to appear at that time and the injury
had nothing to do with it? A. It would be Q.
tions that had existed for so long a time, and, in the absence of other causes, I would attribute
it to the effects of traumatism upon those deeper veins, as I suggested. Q. It would be almost a
miracle, would it not, Doctor, if that varicosity should happen to appear at that time and the
injury had nothing to do with it? A. It would be Q. Rather remarkable? A. Unreasonable to
believe. Traumatism is a word derived from the Greek, and means of or pertaining to a
wound, and may, according to Dr. Hood, produce varicosity.
Dr. Hood further testified as follows:
Q. Did you say that, in contusions of the leg, varicosity will not appear as a result thereof?
A. I do not think I said that to that extent.
Dr. John Wilson Shields, a physician of high standing, as is disclosed by the following
testimony, testified as follows:
Mr. ShoupDoctor, will you please state your full name? A. John Wilson Shields.
Q. Where do you reside, Doctor? A. San Francisco.
Q. What is your profession? A. I am a physician.
Q. How long have you followed that profession? A. Fifteen years.
Q. Are you a graduate of any medical colleges, or hospitals, or institutions of learning? A.
I am.
Q. Please state what they are. A. I was educated in the University of Edinburgh; I hold a
licentiate of the Royal College of Physicians and Surgeons of Edinburgh, and of the Royal
College of Physicians of Glasgow. These are my qualifications.
Q. What, if any, medical positions have you held, Doctor, during your professional
practice? A. I have held the position of medical officer to the dispensary. I have been the
senior clerk to the Royal Infirmary of Edinburgh in the outdoor department. I am at present
professor of medicine in the San Francisco Polyclinic, at one time the post-graduate
department of the University of California. And I am a lecturer in therapeutics in the
University of California.
Q. During your professional studies and practice, Doctor, have you had any occasion to
either diagnose or treat that condition of the body which is called 'varicosed condition,' or
'varicosed veins'? A. Very frequently I have had to use varicosity of the veins as a sign of
considerable consequence in coming to a diagnosis.
condition of the body which is called varicosed condition,' or varicosed veins'? A. Very
frequently I have had to use varicosity of the veins as a sign of considerable consequence in
coming to a diagnosis.
Q. Can you state, Doctor, what are the cause or causes of varicose veins? A. I think I can
state thema number of causes of varicose veins.
Q. Please state them. A. In the first place, varicose veins are of considerable interest to the
profession at large on account of the fact that no very definite cause, or, you might say, one
definite primal cause, can be given. And this one is no doubt the result of the fact that a great
number of people suffer from an inherent weakness in their veins which creates before a very
long time a condition of chronic venous congestion, which is a predisposing cause to varicose
veins or varicosity of the veins generally. That is one particular cause. Other causes would
come under the large head of pressure.' That is, preventing the flow of blood reaching the
heart. It must be kept in mind that the flow of blood in veins is very sluggish, and that its
onward flow depends a great deal more upon muscular contraction and relaxation of the
muscles than really upon the heart itself. Again, the heart has a sort of aspirating action of
pulling in the blood along the veins which hasn't a very strong influence and which is subject
to externalwhich hasn't a very strong influence and which is subject to external influences
in a very marked way. Therefore, you can see why pressure of any kind, from the simplest
kind of pressure to the most severe kind of pressure, will bring about varicose veins.
It appears from the testimony of this eminent physician, and his testimony is not disputed
by any of the other medical experts called in this case, that varicosity can be produced from
pressure on the veins, and evidently the jury in considering the accident, after hearing all of
this testimony, concluded that the varicosity from which plaintiff was suffering was due
directly to the contusion which resulted to him at the time of the accident, and not from any
negligence on his part.
Dr. Shields further testified as follows: Q.
Q. Where would varicose veins probably appear, if they followed a contusion? A. They
would appear below the surface of the contusion, I imagine.
Q. They would appear in the neighborhood of the contusion, would they? A. Below it and
near it, of course.
Q. And wouldn't they gradually extendprobably? A. Yes, those would not extend so
much, but other vessels would take up their work and be dilated, though they would not
necessarily be varicosed.
Q. Isn't it a tendency of that complaint to grow as the man grows older, and get more and
more inflamed, and finally very seriously? A. Yes; he will have varicose veins in the other
leg.
It is true that there was some medical testimony introduced tending to show that plaintiff's
present condition was due in part to his negligence in caring for the wound. But these
questions of fact, under our system of jurisprudence, are for the jury to determine.
Section 12 of article VI of our Constitution reads as follows: Judges shall not charge
juries in respect to matters of fact, but may state the testimony and declare the law.
The court, we believe, very fairly instructed the jury, and protected the interests of the
defendant, in the following instructions:
The jury are instructed that, while defendant admits that plaintiff received a slight bruise
while a passenger upon one of its trains, it denies that plaintiff sustained any damage or injury
beyond such slight bruise; and the jury are instructed that as to all matters in dispute between
plaintiff and defendant as to the nature and extent of plaintiff's injuries, and as to the damage,
if any, resulting therefrom, the burden of proof is upon the plaintiff. In other words, plaintiff
must establish to your satisfaction by a preponderance of evidence the truth of all things
which are alleged to exist by him and which are denied by defendant. If, therefore, you should
believe from the evidence that the plaintiff received a bruise or abrasion caused by a collision
between two of the defendant's trains while plaintiff was a passenger upon one of such trains,
but the plaintiff has failed to establish by a preponderance of the evidence to your
satisfaction that the injuries which he is now suffering from are the direct result of such
bruise, without any intervening cause brought about by his own want of reasonable care
and attention, your verdict should only assess such damages as you may think just and
proper for the bruise or abrasion received by plaintiff while upon the train, and should
exclude all other damages based upon or resulting from any injury that plaintiff may now
have."
derance of the evidence to your satisfaction that the injuries which he is now suffering from
are the direct result of such bruise, without any intervening cause brought about by his own
want of reasonable care and attention, your verdict should only assess such damages as you
may think just and proper for the bruise or abrasion received by plaintiff while upon the train,
and should exclude all other damages based upon or resulting from any injury that plaintiff
may now have.
The jury are instructed that, where a person becomes injured through the fault of another,
it is the duty of the person receiving the injury to use reasonable means and care to protect
himself against any aggravation of the injury, and to do all things reasonably necessary to
cure such injury; and if the jury believe from the evidence in this case that any injury received
by the plaintiff while a passenger upon one of the defendant's trains was not serious, or of
great extent at the time of receiving the injury, but that the wound received by plaintiff while
such a passenger became infected as a result of the lack of reasonable precautions and care on
the part of plaintiff, and such infection has caused said injury or wound to become greater,
and plaintiff's leg to have become more incapacitated than it would otherwise have been,
then, and in such event, defendant cannot be held liable in damages to plaintiff for any injury
or suffering or physical disability on the part of plaintiff, which plaintiff could have prevented
by the use of reasonable precautions and attention in caring for such wound and injury, but
the liability of defendant must be confined to such sum in damages as would justly
compensate plaintiff for the injury received while upon the train, and the consequences that
would naturally or probably result if such injury had received reasonable attention, and
plaintiff had used ordinary care to effect a cure thereof.
The jury are instructed that if they believe from the evidence that, previous to the accident
complained of, the plaintiff was suffering from varicose veins in the left leg, or from any
other physical disability, and that his previous physical disability was aggravated by want of
ordinary care upon his part in attending or caring for any injury received by him while a
passenger upon one of defendant's trains, the plaintiff is not entitled to recover from the
defendant any damages because of such aggravation of his previous physical disability."
while a passenger upon one of defendant's trains, the plaintiff is not entitled to recover from
the defendant any damages because of such aggravation of his previous physical disability.
The jury are further instructed that if they believe from the evidence that, previous to the
accident complained of, the plaintiff was suffering from varicose veins in the left leg, or from
any other physical disability, and that such varicose veins or physical disability were
aggravated by the injury complained of, and that the plaintiff used reasonable care in
attending and treating said injury, then the plaintiff would be entitled to recover such an
amount as would compensate him for the aggravation of the previous disability through the
injury received. And, in determining whether the plaintiff used reasonable care, you are
instructed that reasonable care is such care as a person of ordinary intelligence and prudence
would use under the circumstances of the case.
With the evidence adduced and the instructions to the jury, it became their duty to assess
such damages as they believed plaintiff entitled to, and while it was their privilege to assess
the damages at such sum as they believed proper under the pleadings, even to the full amount
claimed by plaintiff, they saw fit to cut the damages claimed by plaintiff from ten thousand
odd dollars to seven thousand five hundred dollars. There is no testimony or showing that
they were actuated by prejudice, or that they were influenced by passion. These words mean
anger, resentment, heat, absence of reflection, disregard of the rights of others, and kindred
motives. As was said in the case of Clark v. Bennett, 123 Cal. 275, 55 Pac. 908, his care or
want of care was a fact to be determined from all the circumstances surrounding him at the
time. It was for the jury to determine what would have been the conduct of a person of
ordinary prudence under the circumstances of the case, as well as to determine whether or not
the facts show negligence. The verdict of the jury is conclusive, both as to the existence of
negligence and its effect as contributing proximately to the injury, unless a contrary
conclusion necessarily follows from undisputed facts.
(Schneider v. Market St. Ry. Co., 134 Cal. 488, 66 Pac. 734.) In considering as a question of
law the relative negligence of plaintiff and defendant, and the conduct of either or both as
contributing to the injury, an appellate court will assume that the jury took any view of the
facts, justified by the evidence, which tends to support the verdict. The same rule holds good
as to the findings of fact by the court where a jury is waived. So considered, the evidence in
the case at bar clearly sustains the finding of the court that plaintiff was not negligent. (Scott
v. San Bernardino Co., 152 Cal. 604, 93 Pac. 677.) If the fact be, as found by the jury, that
due to this accident plaintiff has undergone the great suffering which there is testimony to
show he has suffered and will likely suffer the remainder of his life, we do not believe that
$7,500 is an excessive judgment.
2. The second assignment of error of appellant, that the evidence is insufficient to justify
the verdict and that it was against law, we believe to be thoroughly disposed of with the
view we have taken of the first assignment, and believe that the evidence adduced at the trial,
the authorities cited, and the law as given in the instructions of the court were sufficient to
justify the jury as a basis for their verdict. We fully agree with attorney for appellant that the
following rule of law, as stated in 13 Cyc. 216, and which reads as follows, is a correct rule:
The evidence, to justify a court in submitting to a jury the question of whether or not a
certain bodily condition complained of is the result of the injury, should show the connection
between the two with reasonable certainty, and not leave it to vague speculation or
conjecture. It may be said, however, that evidence of good health prior to the injury, and of
suffering or ailment immediately or shortly thereafter, which are shown by competent
testimony to be reasonably imputed to it, and are not shown by expert testimony to be an
impossible effect of the injury, is sufficient to carry the question to the jury. We disagree
with appellant's contention that there was no testimony adduced sufficient to show that the
varicose veins of which plaintiff is suffering could be produced from such a contusion or
bruise as was inflicted on plaintiff by the negligence of the defendant, or that there was no
evidence which tended to show that these varicose veins did result from the contusion
received at the time of the accident.
negligence of the defendant, or that there was no evidence which tended to show that these
varicose veins did result from the contusion received at the time of the accident.
Conceding that plaintiff, immediately after the accident, did not take the best of care and
did not secure the best medical assistance in the treatment of the wound, it does not follow
that he is to be deprived of damages because of his failure to secure attention to the degree of
care named. Evidence was disclosed that he used his best judgment in caring for the wound
received at the time, and that he gave it such medical attention as he believed it was entitled
to. Where there is such a disagreement of medical opinion as to what might cause varicosity
of the veins, it would be more than presumption to expect a common layman to believe that
from a contusion the serious consequences of which he is now suffering could follow. The
evidence preponderates to the effect that at the time of the accident plaintiff was not afflicted
with the malady affecting the limb in question, but it does appear that shortly thereafter
varicose veins appeared and caused plaintiff the intense suffering and injury of which he is
now complaining. Every man is differently constituted physically, and what might affect one
individual might not have any damaging effect on the other. And so the jury in the present
case, after listening to the medical testimony introduced, and all the evidence and facts
adduced, believed, in their judgment, that these varicose veins were directly attributable to the
accident occasioned by the negligence of the defendant.
Innumerable authorities can be produced where persons, through neglect, have brought on
different diseases, and in many cases death, which are manifestly not attributable to an
accident. But in the present case we believe the evidence justified a verdict of the jury
believing that varicosity could and did affect plaintiff as a direct result of the injury
complained of. Every case of this character, as has been well said on numerous occasions by
courts considering questions such as the one under discussion, must be governed and
controlled by the particular facts of each case. The rule we quoted from Thompson, in treating
the first assignment of error of appellant, together with the following authorities, and
which can be increased to a great number if it were necessary, correctly state the law as
to the amount of care a plaintiff, in a suit for damages, must exercise without being
deprived of the right to recover damages, which resulted through injuries received from
an accident which may have become aggravated thereafter.
error of appellant, together with the following authorities, and which can be increased to a
great number if it were necessary, correctly state the law as to the amount of care a plaintiff,
in a suit for damages, must exercise without being deprived of the right to recover damages,
which resulted through injuries received from an accident which may have become
aggravated thereafter.
A railroad employee was wrongfully injured in an accident, and afterwards, by mistake,
poison was given him sufficient to cause the death of a well man, from the immediate effects
of which he died. There was evidence tending to show that the injuries received were mortal,
and that they caused him to succumb more quickly to the poison than if he had been well.
Held, that his personal representatives had a right of action against the railroad company,
under Code 1886, sec. 2591, giving such an action when the injury results' in death.
(Thompson v. Louisville & N. R. Co., 91 Ala. 496, 8 South. 406, 11 L. R. A. 146.)
Where one is injured by the negligence of another, and the injury renders the system more
susceptible to disease and less able to resist it, and death results from such disease, such death
is legally attributable to such negligence. (Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 49
Am. Rep. 168.)
Defendant's liability, in an action for causing death by negligence, does not cease because
the injured person did not adopt the best remedies or follow implicitly the directions of his
physician. (Texas & St. Louis Ry. v. Orr, 46 Ark. 182.)
The fact that a person injured is unskillfully treated, and this contributed to his death, is
no defense to an action for damages for causing his death. (Nagel v. Missouri Pac. Ry. Co.,
75 Mo. 653, 42 Am. Rep. 418.)
The fact that a person did not send for a physician until some time after the accident had
occurred was held proper evidence of contributory negligence to go to the jury, but not
conclusive. (Osborne v. City of Detroit, 32 Fed. 36.)
Plaintiff can recover for impaired physical ability, pain, and suffering unavoidably
incurred, even though it is increased by want of proper care and medical attention. (Cameron
v. Vandegriff, 53 Ark. 381, 13 S. W. 1092.)
3. Appellant assigns as error the action of the trial court in sustaining the challenge of
plaintiff to the juror Hall, upon the ground that prior to the commencement of this suit said
juror had been in the employ of the defendant. It appears from the transcript that the juror had
been in the employ of the Southern Pacific for fifteen years, and was in such employ at the
time the accident took place, engaged as a telegraph operator in the company's office at Reno.
The juror testified that he did not remember of having heard of the accident, and formed no
opinion as to the merits of the case. Counsel for plaintiff, however, insisted that he be
excused, and the court allowed the challenge. While it is true that the mere fact that a juror
has been in the former employment of one of the parties to an action, where he is an
otherwise competent juror, is no disqualification (Swope v. Seattle, 36 Wash. 113, 78 Pac.
607; East Line R. R. Co. v. Bricker, 68 Tex. 500, 3 S. W. 99), yet it is further true that the
court, as a trior of challenges is given a great deal of discretion in allowing or disallowing
challenges, to the end that a fair, unbiased, and impartial jury may be secured. (12 Am. &
Eng. Ency. Law, p. 360.) Counsel for plaintiff contends that it would be unfair for a juror to
sit at the trial who was an employee of the company at the time the accident took place, and
who had for fifteen years been in its service. While we agree with counsel for appellant that
he could be an employee of the company, and, not otherwise disqualified, be a competent
juror, yet the court, in the exercise of that broad discretion given it under the law in the
selection of a jury, believed, possibly, that a fairer juror could be secured, and, in view of the
insistence of plaintiff's counsel to have him excused, we think very properly excused the
juror. In cases of a civil character, the authorities are practically uniform in holding that, by
reason of the large discretion reposed in the trial judge in determining challenges, a judgment
will only be reversed where it is shown that there has been a gross abuse of such discretion. In
the present case it is not denied but that a fair and impartial jury was afterwards secured, and
that was all defendant could demand. (Northern Pacific R. R. Co. v. Herbert, 116 U. S. 646, 6
Sup. Ct. 590, 29 L. Ed. 755; United States v. Cornell, 2 Mason, 104, Fed.
nell, 2 Mason, 104, Fed. Cas. No. 14,868; Heaston v. Cincinnati & Fort Wayne R. R. Co., 16
Ind. 275, 279, 79 Am. Dec. 430; Atchison, Topeka & Santa Fe R. R. Co. v. Franklin, 23 Kan.
74; Carpenter v. Dame, 10 Ind. 125; Morrison v. Lovejoy, 6 Minn. 349, 350.)
4. We do not believe there is any merit in appellant's fourth assignment of error to warrant
this court in reversing this case. Appellant contends that the trial court erred in overruling
defendant's objection to the question asked the witness Cooper as to whether the plaintiff had
made any statement to the witness that he had been hurt or injured, after plaintiff and the
witness had left the train. It appears from the transcript of testimony that the witness Cooper,
who was traveling with plaintiff at the time of the accident, testified that about four minutes
after the accident he asked plaintiff whether he was hurt, and plaintiff answered the question,
Yes, that he had hurt his leg. It is not contended that plaintiff made any statement to show
the extent of his injuries, or that his injury was severe, or that it was likely to be permanent or
liable to produce any serious results. He simply stated that which the defendant has all along
admittedthat plaintiff was injured in the accident. If there was any error in the admission of
this simple declaration that he hurt his leg, it was error without prejudice. This court has
repeatedly decided that, if trivial errors are committed by the trial court which do not
prejudice the substantial rights of the complaining party, they will be disregarded, and this is
the universal rule throughout the United States and England. Entertaining this view of the
assignment of error, we do not believe it is necessary to take up the contention of counsel in
passing upon the question of whether it was or was not such testimony as could be introduced
under the doctrine of res gestae.
5. Appellant contends that the lower court erred in denying the request of defendant for an
order compelling plaintiff to submit to a physical examination by two physicians, one to be
selected by plaintiff and one by defendant. The record discloses that this case came on for
trial September 12, 1907; that the plaintiff was examined by defendant's physicians on two
different occasions, once in April, 1907, and the other about May 25th.
two different occasions, once in April, 1907, and the other about May 25th. On the 13th day
of September, 1907, after the plaintiff had taken the stand and given his testimony, and been
subjected to a most rigorous and searching cross-examination by counsel for appellant, which
consumed several hours, and in which his entire life for more than twenty years had been laid
open before the jury, counsel for appellant suggested that another examination was desired of
the plaintiff. After considerable discussion between counsel, plaintiff's counsel consented that
Dr. Shields, a witness subpenaed on behalf of the defendant, might examine the two limbs of
the plaintiff, but they would not permit any further examination to be made. Defendant's
counsel insisted on its right to have Dr. Shields make a thorough examination of the entire
body of the plaintiff, which was objected to by counsel for plaintiff. Thereupon defendant's
counsel formally moved the court for an order permitting Dr. Shields to make a physical
examination of plaintiff, and that plaintiff have such physicians as he may desire present at
the time of the examination. Counsel for plaintiff resisted the motion, but offered to permit a
complete examination of the plaintiff by two disinterested physicians to be appointed by the
court. Defendant's counsel said they would consent to any physician that the court might
appoint to examine plaintiff, but would like to have Dr. Shields make an examination of the
plaintiff. Thereupon the court made the following order:
The CourtThe last examination was made more than three months ago, and if the
contention of counsel is correctand I am inclined to think it isthat the defendant has the
right to examine him for the purpose of knowing his present physical condition. Now, this is
the conclusion that I have come to: I am going to make an order that each party may select
one physician to give the plaintiff a physical examination at some hour which may be agreed
upon by the parties at this date, and that if the plaintiff refuses to subject himself to such
examination, that the examination shall not be made. As I understand, this is to be an
examination of his entire body. If the plaintiff refuses to subject himself to the examination,
the examination shall not be made. If he does not object, the examination may be made by
two physicians, one to be selected by each of the parties, and the examination may be in
the presence of the attorney or attorneys of each party if they desire to be present.
object, the examination may be made by two physicians, one to be selected by each of the
parties, and the examination may be in the presence of the attorney or attorneys of each party
if they desire to be present. Proceed with the examination.
Mr. ShoupQ. Are you willing to submit to an examination now, Mr. Murphy?
The CourtHe will probably want to consult with his attorneys before answering that.
You need not answer that, Mr. Murphy, at this time.
Subsequently, the following proceedings occurred:
The CourtYou may proceed. Are you ready to proceed?
Mr. ShoupIf your honor please, I believe that yesterday afternoon an order was made
that the plaintiff be subjected to an examination by physicians, one to be selected by each
side, but that the court also specified in its order that, if the plaintiff refused to submit to the
examination, you would not compel him to do so. And I would like to ask counsel at this time
if they are prepared to let us make that examination, or do they refuse?
Mr. DownerWe decline any further than as offered.
Mr. ShoupThen, if your honor please, we will ask for an order compelling the plaintiff
to submit to such examination.
The CourtI think, Mr. Shoup, that if I make an order compelling him to submit to the
examination it would be only to the extent of confining him to the lower limbs of the
plaintiff.
Mr. DownerWe concede that right now. There is no necessity of making an order of that
kind.
Mr. ShoupIf your honor please, our position is that such an examination of the lower
limbs is not sufficient. And we shall ask for an order permitting our physicians to make such
examination as in their judgment as physicians may be necessary; of course, with all due
regard for the convenience of the plaintiff, and without any undue deprivation of his rights, by
reason of modesty or otherwise.
The CourtWell, in making the modified order that I did yesterday, I did it feeling that I
did not have the right, as a court, to order that any person be entirely stripped of their clothing
and examined; that that was a privilege that they would have the right to reserve to
themselves.
clothing and examined; that that was a privilege that they would have the right to reserve to
themselves. But I do think that I have the right to make an order that the lower limbs where
the wound or alleged wound was madeto order that he submit to an examination of that
portion of his body.
Mr. ShoupBut your honor is of the opinion that you have no right to make an order
requiring him to submit his entire body to an inspection?
The CourtWell, I am in doubt whether any court has a right to order that or not. For that
reason, I made the modified order reserving to the plaintiff the right to refuse to submit to the
examination.
Mr. ShoupThen, if your honor please, I desire to enter an exception to the ruling of the
court upon the ground that the defendant in this case has a right to make such examination of
the person of the plaintiff as its physician or physicians making the examination may be
advised, and that the refusal of the court to make such order upon the ground that it has no
authority to do so is an error to which we desire to take an exception, upon the grounds stated.
The CourtOf course, if the plaintiff is willing to consent, which I understand that he is
not; is that the case, Mr. Downer?
Mr. DownerOf course; I stated my position yesterday, and I adhere to everything I said.
We wish it to be made a part of the record at this time that the lower extremities, both of
them, at this time will be open to the inspection of the physicians; or the other offer, that this
court appoint physicians.
The CourtYou consent that that order be made?
Mr. DownerYou do not have to make an order for a physician to examine his lower
extremities, because we consent to that. There is no need of asking for an order of that kind.
Mr. MackDo I understand, may it please your honor, that your honor has ruled that you
will not make an order requiring the plaintiff to submit to an examination at the hands of our
physicians so that they may have a chance to determine his heart action and other matters
leading up to this trouble? The CourtI refuse to make an order, as I indicated a few
minutes ago, and as I said yesterday.
The CourtI refuse to make an order, as I indicated a few minutes ago, and as I said
yesterday.
Mr. MackThen we would like the benefit of an exception upon the grounds stated by
Mr. Shoup, a few moments ago.
The CourtNote the exception.
After a very thorough and careful investigation of the authorities presented upon this
interesting assignment of error, and while there appears to be a great contrariety of opinion,
yet we find that the great weight of authority is to the effect that the trial courts have the right
to exercise this power, and such power is vested in the sound discretion of the trial judge,
and, if he grants or denies an examination, such action on his part will not be reversed unless
it discloses a gross abuse of such discretion. (Shepard v. Mo. Pac. Ry. Co., 85 Mo. 629, 55
Am. Rep. 390; Sidekum v. Wabash R. R. Co., 93 Mo. 400, 4 S. W. 701, 3 Am. St. Rep. 549;
Owens v. Kansas City Ry. Co., 95 Mo. 169, 8 S. W. 350, 6 Am. St. Rep. 39; Schroeder v.
Chicago Ry. Co., 47 Iowa, 375; Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 8 South. 90, 9 L. R.
A. 442, 24 Am. St. Rep. 764; King v. State, 100 Ala. 85, 14 South. 878; Sibley v. Smith, 46
Ark. 275, 55 Am. Rep. 584; St. L. S. W. R. Co. v. Dobbins, 60 Ark. 481, 30 S. W. 887, 31 S.
W. 147; Richmond & D. R. Co. v. Childress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808, 14 Am.
St. Rep. 189; South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St.
Rep. 200; Pens Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860; Hall v. Manson, 99 Iowa, 698,
68 N. W. 922, 34 L. R. A. 207; A. T. & S. F. Ry. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659;
City v. Guilliland, 63 Kan. 165, 65 Pac. 252, 88 Am. St. Rep. 232; A. T. & S. F. Ry. Co. v.
Palmore, 68 Kan. 545, 75 Pac. 509, 64 L. R. A. 90; Belt Electric L. Co. v. Allen, 102 Ky.
551, 44 S. W. 89, 80 Am. St. Rep. 374; Graves v. Battle Creek, 95 Mich. 266, 54 N. W. 757,
19 L. R. A. 641, 35 Am. St. Rep. 561; Hatfield v. St. Paul & D. R. Co., 33 Minn. 130, 22 N.
W. 176, 53 Am. St. Rep. 14; Wanek v. Winona, 78 Minn. 98, 80 N. W. 851, 46 L. R. A. 448,
79 Am. St. Rep. 354; Stuart v. Havens, 17 Neb. 211, 22 N. W. 419; Sioux City & P. R. Co. v.
Finlayson, 16 Neb. 578, 20 N. W. 860, 49 Am. Rep. 724; Brown v. C. M. & St. P. R. Co., 12
N. D. 61, 95 N. W.
153, 102 Am. St. Rep. 564; Miami & M. T. Co. v. Baily, 37 Ohio St. 104; Hess v. Lake Shore
& M. S. R. Co., 7 Pa. Co. Ct. R. 565; Lane v. Railway Co., 21 Wash. 119, 57 Pac. 367, 46 L.
R. A. 153, 75 Am. St. Rep. 821; White v. Milwaukee City R. Co., 61 Wis. 536, 21 N. W. 524,
50 Am. Rep. 154; O'Brien v. La Crosse, 99 Wis. 421, 75 N. W. 81, 40 L. R. A. 831; Western
Glass Mfg. Co. v. Schoeninger, 42 Colo. 357, 94 Pac. 342.)
A contrary doctrine has been announced in Illinois (Parker v. Enslow, 102 Ill. 272, 40 Am.
Rep. 588) and in Montana (May v. Northern Pacific R. R. Co., 32 Mont. 522, 81 Pac. 328, 70
L. R. A. 111), and in many early decisions of New York, but the later opinions in New York
all hold the opposite to these opinions, due partially, if not totally, to statutory enactments
made in order to overrule these particular cases. The Supreme Court of the United States in
Union Pac. R. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, has denied
this right to exist in federal trial courts.
We think that the reasons and principles advanced in those opinions, which sustain the
power of the trial court to order a physical examination in cases of this character, and which
reposes such power in the sound discretion of the trial court, are sound in law and in
furtherance of the ends of justice. In the present case, we believe the evidence discloses that
defendant was accorded every privilege of examination to which it was entitled. The purpose
of allowing this examination is to prevent a defendant from being subjected to fraudulent,
assumed, and dishonest claims, and we believe that the defendant should be protected in
every way from any imposition which may be perpetrated by plaintiffs in suits of this
character against them. The plaintiff in this case voluntarily submitted to a most thorough and
searching examination by Dr. Hood, one of defendant's physicians, with full liberty to extend
his examination to such extent as he desired. After this examination another application was
made by the defendant to have the plaintiff examined by Dr. Pinkerton, another of defendant's
medical experts, who came from Salt Lake to Reno, Nevada, for that purpose, and again
plaintiff submitted to a second examination. Again appellant asked, during the middle of the
trial, for another examination, and the court, under its fair and impartial offer and ruling,
we think, did all that was necessary to do, and the action of the court complained of in
this assignment of error, under all the circumstances of the case, does not disclose any
abuse of discretion prejudicial to the rights of the defendant.
asked, during the middle of the trial, for another examination, and the court, under its fair and
impartial offer and ruling, we think, did all that was necessary to do, and the action of the
court complained of in this assignment of error, under all the circumstances of the case, does
not disclose any abuse of discretion prejudicial to the rights of the defendant. There is a limit
to everything, and unless this power, which is vested in the sound discretion of a trial court
for the purpose of promoting the ends of justice, is so reposed, we can see where prejudicial
errors could happen to plaintiff by the evidence of a defendant, if it could and had the power
to compel limitless examinations in the hope of securing some medical expert who might
agree with some theory, character of disease, or injury contended for by defendant, and where
this power, which is for the purpose solely of ascertaining the truth, could be so distorted as
to prove an engine of destruction to plaintiff's rights in the hands of unscrupulous or
dishonest defendants.
6. Appellant's sixth assignment of error, wherein it is alleged that the lower court erred in
overruling defendant's objections to the questions asked defendant's witness, Wright, on
cross-examination, as to whether settlements were made with other passengers at the time
plaintiff claimed to have been injured, we believe is insufficient in merit to warrant any
reversal of this cause. The witness Wright, called on behalf of the defendant, was trainmaster
for the Southern Pacific, and on his direct examination was questioned as to his duties as
trainmaster. Among others, the following questions were asked the said witness on his direct
examination by counsel for defendant: Q. You may state to the court and jury, Mr. Wright,
the condition of any persons there who were injured, so far as their injuries went, that you
personally talked to or investigated in a general way as to the extent of their injuries, whether
they were severely injured or slightly injured. A. Oh, I didn't see a passenger on the train that
required a bandage or a piece of court plaster. On cross-examination, counsel for plaintiff
questioned said witness Wright as to his authority as trainmaster, and his various duties, and
among other questions, as to how thoroughly he examined the passengers on the train who
were hurt, he having testified on his direct examination that he did not see a passenger
on the train who required a bandage or a piece of court plaster.
examined the passengers on the train who were hurt, he having testified on his direct
examination that he did not see a passenger on the train who required a bandage or a piece of
court plaster. We believe it was proper cross-examination to test the memory of the witness
and to ascertain the truth, and the court did not err in permitting the testimony brought out.
Anyway, the defendant in this case admits that the plaintiff was injured, and further admits
that the jury was entitled to return some verdict for the plaintiff; but, even admitting, for the
sake of argument, that these questions might not have been thoroughly proper, if it was any
error at all, it was of such a harmless nature as not to prejudice the rights of the defendant.
7, 8. The seventh and eighth assignments of error of appellant, wherein it is alleged that
the court erred in shutting out certain evidence of a hypothetical nature of Dr. Shields and Dr.
Hood, witnesses called on behalf of the defendant, we believe, after a careful review of the
testimony given by these gentlemen, to be without merit. (In re Mullin's Estate, 110 Cal. 254,
42 Pac. 645; Rush v. Megee, 36 Ind. 69; Louisville N. A. & C. R. v. Falvey, 104 Ind. 409, 3 N.
E. 389, 4 N. E. 908; Louisville N. A. & C. R. Co. v. Wood, 113 Ind. 544, 14 N. E. 572, 16 N.
E. 197; Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1072; Howes v. Colburn, 165 Mass. 385,
43 N. E. 125; Harris v. Schuylkill River E. S. R. Co., 141 Pa. 242, 21 Atl. 590, 23 Am. St.
Rep. 278; Foster's Executors v. Dickerson, 64 Vt. 233, 24 Atl. 253.)
9. Appellant assigns, as further error committed by the trial court, its refusal to give the
following instruction:
If the jury believe from the evidence that the plaintiff, while a passenger upon one of
defendant's trains, received a bruise or abrasion upon the left leg, and such bruise or abrasion
injured or removed the skin upon plaintiff's leg to the extent of about two inches in length and
an inch or more in width; that such bruise or abrasion caused some pain at the time, but did
not interfere with plaintiff walking about; that there was at the time of said accident upon said
train a physician who was ready and willing to attend and render service to all persons
injured, and that, before the train upon which plaintiff was a passenger resumed its journey,
the defendant also secured the attendance of physicians for the purpose of attending and
aiding persons injured upon said train, of which plaintiff had knowledge; that plaintiff
made no effort to secure the services of any of such physicians; that thereafter plaintiff
came on to Reno, Nevada, where he remained for a couple of days; that thereafter he
continued his journey on to Tonopah, and thence on to Goldfield, thence back to Tonopah,
and then returned to Goldfield, where he began work as a miner underground, and
continued in such work for the period of four days, and until his leg became so swollen
that he was confined to his bed; that, from the time of the receiving of such bruise or
abrasion, said wound and injury was more or less painful, but that, from the time of the
receiving of said injury up to the time that he was confined to his bed in Goldfield, the
plaintiff did not seek medical advice or wash or cleanse or bandage said wound, and that
there was nothing to prevent him from doing so, and that as a result of the failure to
obtain medical assistance, or to bandage or cleanse or wash said wound, the same
became infected, and that, as a result of such infection, pus to the extent of half a pint
gathered in said wound and rendered an operation necessarythen I instruct you that, as
a matter of law, the plaintiff did not use ordinary care in protecting said wound from
further injury or in caring for the same, and that plaintiff is not entitled to recover
damages against defendant because of any suffering or physical disability he may have
sustained, or will sustain, by reason of his lack of ordinary care in protecting the wound
he received while a passenger upon the defendant's train from further injury or
aggravation."
plaintiff was a passenger resumed its journey, the defendant also secured the attendance of
physicians for the purpose of attending and aiding persons injured upon said train, of which
plaintiff had knowledge; that plaintiff made no effort to secure the services of any of such
physicians; that thereafter plaintiff came on to Reno, Nevada, where he remained for a couple
of days; that thereafter he continued his journey on to Tonopah, and thence on to Goldfield,
thence back to Tonopah, and then returned to Goldfield, where he began work as a miner
underground, and continued in such work for the period of four days, and until his leg became
so swollen that he was confined to his bed; that, from the time of the receiving of such bruise
or abrasion, said wound and injury was more or less painful, but that, from the time of the
receiving of said injury up to the time that he was confined to his bed in Goldfield, the
plaintiff did not seek medical advice or wash or cleanse or bandage said wound, and that
there was nothing to prevent him from doing so, and that as a result of the failure to obtain
medical assistance, or to bandage or cleanse or wash said wound, the same became infected,
and that, as a result of such infection, pus to the extent of half a pint gathered in said wound
and rendered an operation necessarythen I instruct you that, as a matter of law, the plaintiff
did not use ordinary care in protecting said wound from further injury or in caring for the
same, and that plaintiff is not entitled to recover damages against defendant because of any
suffering or physical disability he may have sustained, or will sustain, by reason of his lack of
ordinary care in protecting the wound he received while a passenger upon the defendant's
train from further injury or aggravation.
From an examination of the instruction of law given by the court, we believe that the court
properly and sufficiently instructed the jury what damages in law plaintiff could recover, and
the necessary care to be given passengers by the defendant. It was for the jury to determine
whether the resultant injury complained of was due to the negligence of the plaintiff, and
upon this point the jury was fully instructed. The reason given by the court in refusing to give
the instruction, because of having already properly instructed the jury on the point of law
asked by counsel for appellant, was sufficient to warrant the court in refusing to give said
instruction, and no prejudicial error was committed thereby.
on the point of law asked by counsel for appellant, was sufficient to warrant the court in
refusing to give said instruction, and no prejudicial error was committed thereby.
10. The same observation, as to appellant's ninth assignment of error, we believe correctly
applicable to the tenth assignment of error, wherein it is alleged that the court erred in
refusing to give an instruction which the court believed was already covered and defendant's
rights protected in other instructions given by the court.
11. Counsel for appellant assigns as error the court's refusal to grant the following
instruction: The jury are instructed the refusal of the plaintiff to submit to an examination of
his entire person by the physicians of the defendant, after an order by this court to that effect
directing him to submit to such examination, may be considered by the jury in passing upon
the question as to the extent and nature of plaintiff's injuries. The question whether plaintiff's
refusal to submit to such entire examination was in good faith, and not for the purpose of
defeating the ends of justice, or whether such refusal was for the purpose of preventing a
disclosure of the truth, and thus defeating the ends of justice, is solely for the jury to decide.
The court had already passed upon the question in refusing to order the examination, other
than as offered, and exceptions duly taken by counsel for appellant. Any refusal to allow such
examination on the part of the court, if it was error, the same could have been corrected on
appeal. We having decided that the court properly refused to allow the examination asked for
by appellant, due to the fact that it had had all the reasonable opportunity of examination that
was necessary, or could have in all fairness asked for, and that the court did not abuse its
discretion in denying another examination, we believe disposes of this assignment of error,
and which, we are of the opinion, did not prejudice the substantial rights of the defendant.
(Louisville & N. R. Co. v. McClain, 66 S. W. 391; Gulf Co. & S. F. R. Co. v. Pendery, 14
Tex. Civ. App. 60, 36 S. W. 793.)
12. Appellant complains, and assigns as his last assignment of error, that the court erred in
instructing the jury that if they believed from the evidence that plaintiff was suffering from
varicose veins in the left leg, or from other disability, previous to the accident complained
of, and that such varicose veins or physical disability were aggravated by the injury
complained of, the plaintiff would be entitled to recover such amount as would
compensate him for the aggravation of the previous disability through the injury received.
from varicose veins in the left leg, or from other disability, previous to the accident
complained of, and that such varicose veins or physical disability were aggravated by the
injury complained of, the plaintiff would be entitled to recover such amount as would
compensate him for the aggravation of the previous disability through the injury received.
The court, upon its own motion, instructed the jury as follows: The jury are further
instructed that if they believe from the evidence that previous to the accident complained of
the plaintiff was suffering from varicose veins in the left leg, or from any other physical
disability, and that such varicose veins or physical disability were aggravated by the injury
complained of, and that the plaintiff used reasonable care in attending and treating said injury,
then the plaintiff would be entitled to recover such an amount as would compensate him for
the aggravation of the previous disability through the injury received.
There is no merit whatever in this assignment of error. The contention of respondent is that
Murphy never had varicose veins before the accident. It is as strenuously contended by the
appellant, by testimony introduced through depositions, that the varicose veins from which
the plaintiff is suffering were of ancient origin and existed a long time prior to the accident.
This evidence, introduced for the purpose of proving that plaintiff was suffering from
varicose veins at the time and long prior to the accident, was brought into the case by the
defendant, and was one of its theories advanced in order to minimize the amount of damages
they admitted plaintiff was entitled to. Conceding, for the purpose of argument only, that the
plaintiff was afflicted with varicose veins prior to the accident, and that, by reason of the
injury, the veins were aggravated, there is nothing in the law which would prevent plaintiff
from recovering such damages as the jury might deem plaintiff entitled to because of the
aggravation of the veins through an injury received. The following rule in 13 Cyc. p. 31,
which is borne out by a multitude of authorities, we believe properly states the law: One
already diseased.Where one already diseased has suffered from personal injury, the mere
fact of personal condition will not deny him all the damages suffered from the accident.
him all the damages suffered from the accident. The rule remains the same whether the injury
supervenes and proximately results in the defendant's wrong, or whether the disease existed at
the time of the injury and was aggravated by it.
The question of pleading raised by the appellant, with reference to this assignment of error,
we believe is properly disposed of in the case of Campbell v. Los Angeles Traction Co., 137
Cal. 565, 70 Pac. 624, wherein the court says: The only other question calling for special
notice arises on an instruction given the jury, which the appellant claims to have been
erroneous, and which is as follows: If you find from the evidence that the plaintiff received
the injury complained of by reason of defendant's negligence alleged in the complaint, and at
the time of the reception of said injury the plaintiff was suffering from some disease, and you
further find that said injury hastened the development of such disease, and that thereby,
without the fault of the plaintiff, her present condition, whatever you may find that to be, has
resulted from such injury, then I instruct you that the plaintiff is entitled to recover such
damages as you may determine she has sustained from the injury.' This instruction was not
erroneous. The main objection to it is that this instruction allows the jury to give special
damage, which was improper, because such special damage was not averred in the complaint.
The evidence as to the woman having a particular disease was introduced by appellant, and
not by respondent; and therefore it is not clear how, under any view, the question of pleading
arises. But waiving that question, the thing involved was not special damage, requiring
special averment, although appellant cites two or three cases which seem to support its
contention.
Physical suffering and injury caused by violence to the person are the natural and direct
consequences of the wrong, and are not in the nature of special damage, which must be
particularly averred. The latter arises only where damage is sought for indirect consequences
which are not the natural and usual result of the wrong, as loss of service, particular damage
caused by slander, etc. The liability of one who commits an assault and battery or other
unlawful violence to the person of another is not to be measured by the physical strength
of the party injured, or his capacity to endure suffering.
the person of another is not to be measured by the physical strength of the party injured, or his
capacity to endure suffering. One of weak physical structure, or small vitality, or in ill health
has as much right to protection from violence as a robust athlete; and in either case the
physical injury, the bodily harm, which is actually caused by the violence, whether he be
strong or weak, healthy or sickly, is the natural consequence of the wrong, and need not be
specially averred. The law on this subject is correctly stated in Sedg. Dam. (8th ed.) 111, as
follows: For instance, an assault and battery may directly result in pain and bruises, and in
the aggravation of a preexisting disease. These are the direct results of the battery. It may also
result in the loss of time, expense of medical attendance, and loss of a business situation.
These are perhaps direct results of the illness caused by the battery, but they are the indirect
results of the battery itself.'
A thorough review of the transcript in this case discloses a fair and impartial trial, and that
appellant's substantial rights were protected at all stages in the proceedings. The jury, who
were the judges of the amount of damages which were proper to be awarded to the plaintiff
under the evidence adduced and the instructions given by the court, evidently believed that
plaintiff suffered a severe injury, and believed that $7,500 would reasonably compensate him
for the injury he had suffered. Considering the robust constitution of the plaintiff before the
accident, and the injury received from which he is suffering, and will probably suffer for
many years to come, we are of the opinion that there is nothing unreasonable in the verdict.
The judgment and order of the lower court denying a new trial are affirmed, with costs
taxed against appellant.
It is so ordered.
____________
31 Nev. 150, 150 (1909) Adams v. Rogers
[No. 1771]
J. W. ADAMS, Respondent, v. LEWIS H. ROGERS, Appellant.
1. Appeal and ErrorDismissal of AppealGroundsShowing.
Under Supreme Court Rule 3, providing that a motion to dismiss an appeal for failure to file the transcript
of the record in time shall be accompanied by the certificate of the clerk below, certifying enumerated
facts, it is error to dismiss an appeal merely on the affidavit of counsel, especially where the affidavit did
not show the essential facts.
2. Appeal and ErrorMotion to DismissServiceNecessity.
A motion to dismiss an appeal under Supreme Court Rule 3, authorizing the dismissal of an appeal for
failure to file the transcript within the time prescribed, need not be served.
3. Appeal and ErrorDismissing AppealReinstating Appeal.
The unsworn statement of counsel for appellant, made in the absence of counsel for respondent, excusing
the delay in filing the transcript on appeal, does not establish a good cause for vacating an order of
dismissal within Supreme Court Rule 3, authorizing the court to restore a cause dismissed on good cause
shown on notice to the adverse party.
4. Appeal and ErrorDismissal of AppealVacation of Order.
Where appellant failed to promptly call the attention of the supreme court to its error in dismissing an
appeal under Supreme Court Rule 3, and failed to show any good cause for vacating the order of dismissal,
the order would be vacated only on appellant within a specified time presenting to the court the record on
appeal with a satisfactory showing by affidavit that the same was taken in good faith.
Talbot, J., dissenting.
Action by J. W. Adams against Lewis H. Rogers. From a judgment for plaintiff, defendant
appeals. Order dismissing appeal conditionally vacated.
McIntosh & Cook, and James Donovan, for Appellant.
Alfred Chartz, for Respondent.
This action was originally tried in the First Judicial District Court of the State of Nevada,
at Hawthorne, Esmeralda County, on or about the 1st day of April, 1907, and judgment
entered in favor of plaintiff on or about the same date.
County, on or about the 1st day of April, 1907, and judgment entered in favor of plaintiff on
or about the same date. The defendant subsequently gave notice of motion for a new trial and
filed a statement, and the court subsequently settled said statement, and thereafter overruled
said motion for a new trial. The defendant did not appeal from said order overruling said
motion for a new trial within the time allowed by law, but within the time allowed by law, on
the 3d day of March, 1908, gave his notice of appeal from the judgment, and within five days
thereafter perfected his said appeal to the Supreme Court of the State of Nevada by giving a
bond staying execution and for costs. The appeal was perfected more than thirty days prior to
the commencement of the July term of the Supreme Court of the State of Nevada, and it
appears that no transcript of the record of said cause was filed in this court by said appellant.
Upon the 10th day of July, 1908, and within the first week of the July term, counsel for the
above-named respondent filed the following affidavit and motion in the above-entitled cause:
Alfred Chartz, being first duly sworn, deposes and says: That he is the attorney for the
plaintiff and respondent in the above-entitled action; that said action was tried before Hon.
Frank P. Langan, District Judge of the First Judicial District Court of the State of Nevada, at
Hawthorne, Esmeralda County, Nevada, on or about the 1st day of April, 1907, and judgment
entered in favor of the plaintiff on or about the 1st day of April, 1907; that the defendant
subsequently gave notice of motion for new trial and filed a statement, and the court
subsequently settled said statement, and subsequently overruled said motion for new trial;
that defendant did not appeal from said order overruling said motion for new trial within the
time allowed by law, but that defendant within the time allowed by law, and on the 31st day
of March, 1908, gave his notice of appeal from the judgment, and within five days thereafter
said defendant perfected his said appeal to the Supreme Court of the State of Nevada by
giving a bond staying execution and for costs; that said appeal was perfected more than thirty
days prior to the commencement of the July term of the Supreme Court of the State of
Nevada; that no transcript of the record of said cause has yet been filed in this court or
any other proceeding taken by said appellant; that, under and by virtue of the provisions
of Rule 3 of the Supreme Court of the State of Nevada, affiant, on behalf of plaintiff, J. W.
Adams, moves the court that said appeal be dismissed."
Court of the State of Nevada; that no transcript of the record of said cause has yet been filed
in this court or any other proceeding taken by said appellant; that, under and by virtue of the
provisions of Rule 3 of the Supreme Court of the State of Nevada, affiant, on behalf of
plaintiff, J. W. Adams, moves the court that said appeal be dismissed.
At the next session of court following the filing of said affidavit and motion, and on the
20th day of July, 1908, the matter was presented to the court, and an order was made
dismissing the appeal, which order recited that it was made in pursuance of the provisions of
Rule 3 of this court, and further providing that the dismissal was subject to the right of
appellant to have the case restored upon good cause shown and notice to the opposite party.
On the 30th day of July following counsel for appellant filed and served a notice that on the
14th day of September, 1908, appellant would move the court to vacate and set aside the
order dismissing the appeal on the following grounds:
(1) That no notice of the motion to dismiss said appeal was ever served on the appellant
or his attorney.
(2) That said appeal was not set down for hearing nor was appellant notified that the
cause would be heard.
Upon the same day, to wit, July 30th, a notice was filed and served, reading:
Comes now the appellant, and moves the court to vacate the order dismissing the appeal
in the above-entitled action on the following grounds:
(1) That no notice of the motion to dismiss said appeal was ever served upon the
appellant or his attorney.
(2) That said motion could not be made and be of force and effect without giving notice
to said appellant of the time of the hearing of said motion.
(3) That said motion was not called up on any regular term day of said court, or upon any
day at which the appellant would be obliged to take notice without first having notice served
upon him.
It will be observed that the motion and notice of motion are not in accord with each other;
that the motion was upon three grounds, while the notice specified but two, and in only the
first designated were they identical.
the first designated were they identical. In neither the notice of motion nor the motion was
any question raised that the motion to dismiss did not conform to the requirements of said
Rule 3. On the 3d day of August, 1908, this court made an order setting the hearing of the
motion to reinstate for the 14th day of September, 1908, the date specified in appellant's
notice. On the date last above mentioned counsel for appellant failed to appear. Whereupon
counsel for respondent suggested to this court that appellant be allowed ten days to file a
brief, respondent five days to reply, and, if the briefs be not filed, that the motion stand
submitted. No brief was filed by counsel for appellant within the time allowed by order of
this court. On the 28th day of September, 1908, counsel for appellant appeared in court in
another cause in which he was counsel, and asked for and was granted until October 5th to
file a brief in support of the motion to reinstate in this cause, counsel for respondent to have
five days thereafter to reply. At the time of making this request counsel for appellant made an
unsworn oral statement, to the effect that the delay in filing the statement on appeal in this
court was due to the congested condition of the clerk's office in Esmeralda County. Counsel
for respondent was not present when this statement and order were made.
Again, counsel for appellant failed to file any brief within the time allowed pursuant to this
request. On the 5th day of October, 1908, counsel for respondent filed a motion that the order
dismissing the appeal be affirmed, and that the motion to vacate the said order of dismissal be
denied, which motion recited the failure of counsel for appellant to file a brief within the
several times allowed by the court. This motion was not noticed or served. On the 10th day of
October, 1908, five days after his time for so filing had expired, counsel for appellant filed a
ten-line brief, reading in full as follows:
In this case motion was made by the respondent's counsel to dismiss the appeal. This
motion was not served upon the appellant, as the record shows. Rule 3 of the supreme court is
the only rule under which a motion may be made in the supreme court to dismiss an appeal
without notice, and, as this motion does not come within the provisions of said rule, the court
erred in sustaining the motion to dismiss said appeal.
the court erred in sustaining the motion to dismiss said appeal. Wherefore the appellant
respectfully requests that such motion to dismiss said appeal be vacated and the case stand of
record in the supreme court to be heard upon the merits.
This brief does not appear to have been served. On November 9, 1908, an order was
entered in the minutes of the court that the matter stand submitted. Rules 2 and 3 of this court
provide:
Rule 2: In all cases where an appeal has been perfected, and the statement settled (if there
be one) thirty days before the commencement of the term, the transcript of the record shall be
filed on or before the first day of such term.
Rule 3: If the transcript of the record be not filed within the time prescribed by Rule 2,
the appeal may be dismissed on motion during the first week of the term, without notice. A
cause so dismissed may be restored during the same term, upon good cause shown, on notice
to the opposite party; and, unless so restored, the dismissal shall be final and a bar to any
other appeal from the same order or judgment. (2) On such motion there shall be presented
the certificate of the clerk below, under the seal of the court, certifying the amount or
character of the judgment; the date of its rendition; the fact and date of the filing of the notice
of appeal, together with the fact and date of service thereof on the adverse party, and the
character of the evidence by which said service appears; the fact and date of the filing of the
undertaking on appeal; and that the same is in due form; the fact and time of the settlement of
the statement, if there be one; and also that the appellant has received a duly certified
transcript, or that he has not requested the clerk to certify to a correct transcript of the record;
or, if he has made such request, that he has not paid the fees therefor, if the same have been
demanded.
That this court erred in dismissing the appeal upon the showing made there can be no
question. Subdivision 2 of Rule 3, as above set forth, provides that the motion to dismiss
shall be supported by the certificate of the clerk, and specifies what that certificate shall show.
Rule 2 provides, not only that the appeal be perfected, but that the statement, if there be
one, be settled thirty days before the commencement of the term, in order to require its
filing on or before the first day of the term.
not only that the appeal be perfected, but that the statement, if there be one, be settled thirty
days before the commencement of the term, in order to require its filing on or before the first
day of the term. The showing in this case was not only made by affidavit, instead of by the
clerk's certificate, but there is an absence of showing of essential facts.
The question that has occasioned this court some difficulty in determining is whether
under all of the facts we ought to reinstate the appeal conceding that we technically erred in
dismissing it in the first instance. It was not until nearly three months had elapsed after the
appeal was dismissed, and after appellant had forfeited his rights for the second time to file a
brief, did he raise the question that the motion to dismiss did not come within the provisions
of said rule. Neither the notice of motion nor the motion to vacate the order of dismissal
questioned the sufficiency of the motion to dismiss, but only matters of service, notice, and
time of hearing. As a motion to dismiss under Rule 3 does not have to be served, the grounds
stated in the motion to vacate the order could have but little, if any, force. No attempt or offer
has ever been made by counsel for appellant to excuse the delay in filing the statement upon
appeal, excepting the unsworn statement of counsel for appellant made in the absence of
counsel for respondent. It is sufficient to simply say that this is not a proper method to
establish a good cause for vacating an order of dismissal. There has never been any good
cause shown for vacating the order of dismissal other than the questionable one that our
attention has been called in an irregular manner to the fact that the order of dismissal was not
in strict accordance with the provisions of the rule governing. No statement on appeal in the
cause has ever been filed or offered for filing, nor has any contention ever been made that the
appeal presents a meritorious question, or that the appellant was injuriously deprived of any
substantial right by the dismissal.
Had counsel for appellant promptly called attention to our error, we should without
hesitation have corrected it. We might we think now with propriety hold that counsel for
appellant have waived the right to question the regularity of the order.
the order. However, as we erred in the order of dismissal, in order that such error may not
prejudice the substantial rights of appellant, we are disposed to vacate our former order upon
the conditions following: It is ordered that, if appellant shall within fifteen days after notice or
receipt of a copy of this opinion and order present to this court for filing the record on appeal
in said cause, together with a satisfactory showing by affidavit that the appeal is taken in good
faith, and not for delay merely, the order dismissing the appeal will be vacated; otherwise not.
Norcross, C. J.: I concur.
Talbot, J., dissenting:
I cannot conscientiously concur in the decision of my esteemed associates sustaining a
dismissal which was unjustly and improperly made without notice, hearing, or any grounds to
support it. On the 10th day of last July an affidavit and motion to dismiss the appeal was
filed, which recited that the case had been tried and judgment entered in favor of the plaintiff
in the lower court; that an order had been made overruling a motion for a new trial; that
within the time allowed by law the defendant had appealed from the judgment, but not from
the order overruling the motion for a new trial, by giving notice and a bond staying execution
and for costs; that the appeal was perfected more than thirty days prior to the commencement
of the July term of this court; and that no transcript has yet been filed. No certificate of the
clerk as required by Rule 3 to obtain a dismissal was presented or has ever been filed in this
court, and, if the affidavit could be considered in lieu of such certificate, which it cannot be
under the rule nor under well-recognized principles and decisions of this and other courts, the
affidavit fails to state any facts which would make a certificate sufficient, or which would
justify a dismissal of the case. (Alexander v. Archer, 21 Nev. 31; Brandon v. West, 29 Nev.
138.)
When the motion was called to the attention of the court on the 20th day of July, 1908, the
order was made without notice dismissing the appeal from the bench hurriedly and
inadvertently without scrutinizing the affidavit under the erroneous belief of the court that
the appellant had abandoned the appeal.
erroneous belief of the court that the appellant had abandoned the appeal. Later his attorney,
being in court in another case and having become aware of the dismissal, stated that the delay
had been caused by the fact that the clerk of the district court was so far behind with his work
that he had failed to prepare the record on appeal as requested of him.
It is said now that appellant's notice of motion to vacate the order dismissing the appeal
stated as grounds that no notice of the motion to dismiss was served upon the appellant or his
attorney; that the appeal was not set down for hearing or appellant notified; that the notice
was not called up on any regular term day of the court or day upon which appellant would be
obliged to take notice without first having been served; and that the motion cannot be in force
without giving notice to the appellant, but it is asserted that in neither the notice nor motion
was any question raised that the dismissal did not conform to the requirements of Rule 3. I am
quite unable to see any necessity for appellant to have made any reference to this rule, or how
this court can justify its own error by reason of his failure to do so. The affidavit upon which
the dismissal had been made did not comply with Rule 3 in any way, and failed to state the
facts required to be shown in the certificate of the clerk under that rule, and especially failed
to show that appellant had received a transcript or had not requested one from the clerk, or
omitted to pay the fees therefor, if demanded, or that the delay had been caused by appellant
or any one but the clerk, as required to be shown by a certificate under that rule, before a
dismissal is to be granted.
Is there any logic, reason, or justice in the conclusion that appellant was not entitled to
have the case reinstated because he failed to assert in his notice that the dismissal was not in
accordance with Rule 3, when neither counsel for the respondent nor the court had in any way
followed the rule in dismissing the case, and when no notice of any kind had been served
upon the appellant, and he had not been informed that the dismissal had been secured under
that rule? At least, the consistency of requiring a reference in the nature of a conclusion of
law to the rule by appellant in his motion when no compliance with that rule was required
of respondent, or of sustaining an order made without notice or compliance with that rule
depriving appellant of his right to have a hearing, and at the same time holding that he
may not be restored to his right because he made no such reference in his motion, is not
apparent; for the law ought to be fully as favorable to the restoration of a right as to the
procedure by which it is lost.
when no compliance with that rule was required of respondent, or of sustaining an order made
without notice or compliance with that rule depriving appellant of his right to have a hearing,
and at the same time holding that he may not be restored to his right because he made no such
reference in his motion, is not apparent; for the law ought to be fully as favorable to the
restoration of a right as to the procedure by which it is lost. In my opinion it was not
necessary for the appellant to file any motion or brief, and, if it had been, his motion
designated grounds sufficient to warrant his reinstatement. Nevertheless appellant did file a
brief on October 10, 1908, in behalf of his motion to reinstate, which brief was equivalent to
a motion and in which it was alleged that Rule 3 of the supreme court is the only rule under
which a motion may be made in the supreme court to dismiss an appeal without notice, and as
this motion does not come within the provisions of said rule the court erred in sustaining the
motion to dismiss said appeal.
As respondent did not comply with Rule 3 in his affidavit and motion to have the appeal
dismissed, I can see no more reason for requiring the appellant to state in his motion that the
dismissal was not in compliance with that rule than to assert it was not in accordance with the
Golden Rule or any other. There was no rule, statute, practice, or decision requiring
appellant to state in his notice that the case had not been dismissed in accordance with Rule 3.
If it be assumed that the present decision is to be a precedent to be followed as well as the
others of this court, and that in the future it means that in every instance or case where an
action is dismissed without notice or any ground therefor or compliance with any rule that the
party moving to reinstate must technically assert that the action was not dismissed in
accordance with Rule 3 before he can have any right to reinstatement, then it may be safely
asserted that there is no way in which the appellant could have been aware of such
requirement at the time he made his motion. If it is to be held that any party who has
unquestionably been thrown out of court without notice and without any reason therefor
cannot be reinstated without specifying something in his motion which had never been
required by any law, rule, practice, or decision, then we have passed the danger line; no
one is safe, and any litigant may be helpless to maintain his constitutional and equitable
rights to have his case heard and determined by the highest court in this state.
which had never been required by any law, rule, practice, or decision, then we have passed
the danger line; no one is safe, and any litigant may be helpless to maintain his constitutional
and equitable rights to have his case heard and determined by the highest court in this state.
As soon as it was stated to the court that the delay was occasioned by the failure of the
clerk in not preparing the transcript after it had been demanded, and it appeared that the
appellant had not abandoned the case, the court should have promptly rectified its own
mistake on its own volition, set aside the dismissal made without notice, ground, or showing
therefor, under the mistaken belief that appellant had abandoned the case, treated the order of
dismissal as void, and restored the action to its former standing. The court would be as much
justified in dismissing every cause pending before it without any motion or showing as it was
in dismissing this case without any ground therefor. Any action which has been inadvertently
dismissed ex parte without any showing ought to be reinstated instanter upon the mere
suggestion of counsel for the appellant or the order of dismissal itself considered as
unauthorized and void. Here the appellant appealed within the time allowed by law, and, in
addition to the usual necessary undertaking, gave a stay bond, which would protect the
respondent in any judgment he may finally recover. He ought not to be denied the right to
have his case heard and considered on appeal by reason of any delay of the court or clerk
caused by press of business at Goldfield, nor by any erroneous order made without notice in
his absence.
The case ought to be reinstated, and, unless respondent complies with the rule as every
other party is required to do, and files a certificate and makes a proper showing of facts
indicating that the delay has been caused by the appellant, and not by the judge or clerk of the
district court, it ought to be set down for hearing and argument on its merits, and the
contentions of the parties heard and their rights adjudicated by this court the same as those of
other litigants on appeal. Until the judge signs the order from which the appeal is taken, if
taken from an order, and in any case until the clerk makes up, certifies, and furnishes the
appellant with the record, he cannot properly present his case here.
record, he cannot properly present his case here. Without having copies of the judgment or
orders from which he appeals he would be liable to have the case dismissed, as was done in
Kirman v. Johnson, 30 Nev. 146, because the order overruling the motion for a new trial had
not been sent up by the clerk. This court has held at different times that, as the statute
authorizes it to make rules not inconsistent with the Constitution and laws of the state for its
own government and that of the district courts, such rules have the same force and effect as if
they were incorporated in statutory provisions. (Haley v. Eureka County Bank, 20 Nev. 410.)
The order of dismissal, not being in compliance with any rule, statute, or practice, was clearly
unauthorized. The court ought to observe its own rules, and it should not hesitate to correct
any erroneous orders made in contravention of them. If there were any reasonable doubt
regarding the question presented, it ought to be resolved in favor of reinstatement, to the end
that the parties might be heard on the merits and their rights determined. The purpose of Rule
3 is to provide for the dismissal of cases where it is shown that the appellant has failed to take
the proper steps to have the record brought to this court and is derelict on his part, but it was
never intended to prevent any party from being heard on appeal because of the delay of the
judge or clerk below or of this court, when, as here, no undue delay is shown to have been
caused by the appellant. It is said that the record has not yet been filed, but there is no
showing that the appellant is in any way responsible for this, and he ought not to be held
blamable for not filing it while his motion to reinstate remains undetermined by this court,
nor denied reinstatement because it is not filed pending the consideration of his motion to
have the case restored.
The refusal to reinstate may amount to a denial of a hearing to a party who appealed within
the time allowed by the statute and who gave an undertaking, not only for the costs of the
appeal, but to pay the judgment, if it were affirmed by this court, when as far as shown he
complied with every requirement, statute, decision, and rule by which he could be guided in
taking the appeal and in moving to vacate the dismissal, which had been taken erroneously
against him without notice or showing while he and his attorneys were absent in a distant
part of the state.
missal, which had been taken erroneously against him without notice or showing while he
and his attorneys were absent in a distant part of the state. He did not file briefs within the
time allowed him, but any delay in this regard was waived by respondent's counsel when he
appeared in this court on November 9th, and stated that his brief and appellant's in answer
thereto had been filed, and that he waived filing a further or reply brief for respondent, and
asked that the motion to reinstate stand submitted. No brief ought to be required to enable this
court to correct such a glaring error of its own as the dismissal of the appeal. There is no rule
directing that appellant would lose any right to have the case reinstated because of his delay
in filing, or failure to file, a brief, and he ought not, by reason of such delay, have a
punishment inflicted upon him of which he had no warning, and especially one so severe that
it may result in the denial of his right to have the merits of his case presented to this courta
right which litigants do not lose by failing to file a brief on the merits within the time allowed
them by rule.
Section 3 of Rule 11 provides that a failure by either party to file points and authorities or
briefs on the merits within fifteen days after filing the transcript on appeal shall be deemed a
waiver of the right to orally argue the case, and that the parties so failing shall not recover
costs for printing or typewriting any brief. Even if this rule were applicable to a motion like
the present one, the only penalty which it would impose upon the appellant for not filing his
brief in time would be the loss of his right to argue orally or recover costs of printing or
typewriting a brief. Ever since the abolition of ex post facto laws, the rule has been
elementary as held by this court in common with others that penalties and forfeitures cannot
be enforced unless they are clearly specified. The order giving a stated period in which to file
a brief was a privilege, and did not designate any penalty, nor imply that, if it were not filed,
plaintiff would lose any right to which he is clearly entitled, except to file a brief.
The order now made requiring the appellant within fifteen days to present in this court for
filing the record on appeal with an affidavit of good faith is also contrary to the spirit,
purpose, and provisions of Rule 3, not only because it unjustly throws upon the appellant
the burden not required by the rule of other litigants of showing that he is entitled to a
hearing in this court after he has appealed, but the order may result in a denial of his
right, if the judge or clerk, over the expedition of whose work he has no control, fail upon
further request to make up, sign and certify the record within that time.
purpose, and provisions of Rule 3, not only because it unjustly throws upon the appellant the
burden not required by the rule of other litigants of showing that he is entitled to a hearing in
this court after he has appealed, but the order may result in a denial of his right, if the judge or
clerk, over the expedition of whose work he has no control, fail upon further request to make
up, sign and certify the record within that time. Rule 3 very properly allows appeals to be
dismissed if there is undue delay by the appellant, but is so guarded in its terms as to prevent
a dismissal for delay caused by the court or clerk for which the appellant is not to blame; but
under the order of the court the appellant here may be denied his appeal because there is delay
for which he is in no way responsible.
On the congested calendar of the lower court in Esmeralda County hundreds of civil cases
have waited for years to be reached. Although two new judges were appointed there last fall,
a large number of these still remain undetermined. That county has now been taken away
from the district of the judge who heard this case and who resides in another part of the state,
and it has been reported that the clerk was far behind in his work. Whether the minutes and
orders in this case have ever been extended by him or finally approved and signed by the
judge does not appear; and whether the clerk or judge have work or engagements which
render it improbable that they can be prepared, certified, and signed within fifteen days is not
shown.
The appeal ought not to be denied or endangered by any delay which is beyond appellant's
control. His constitutional right to have his case heard on the merits ought not to be lost or
jeopardized by the mistake of this court.
The cause ought to be reinstated, the parties heard, and their respective rights considered
and determined, unless the respondent makes a proper showing under Rule 3 that there has
been undue delay caused by the appellant which would warrant a dismissal.
_____________
[No. 1771]
J. W. ADAMS, Respondent, v. LEWIS H. ROGERS, Appellant.
1. Appeal and ErrorRecordReviewScope.
Where no appeal is taken from an order denying a new trial, and there is no statement on appeal or bill of
exceptions, the judgment roll alone can be considered by the supreme court.
2. Appeal and ErrorRecordFindings of Lower Court.
Findings of the district court cannot be considered on appeal unless embodied in the statement of the
case.
3. Appeal and ErrorReviewPresumptions.
All presumptions are in favor of the regularity of the proceedings of the trial court.
Talbot, J.,dissenting.
Action by J. W. Adams against L. H. Rogers. Judgment for plaintiff, and defendant
appeals. Appeal dismissed.
McIntosh & Cook, and James Donovan, for Appellant.
Alfred Chartz, for Respondent.
On April 21, 1909, we made the following order: It is ordered that, if appellant shall
within fifteen days after notice or receipt of a copy of this opinion and order present to this
court for filing the record on appeal in said cause, together with a satisfactory showing by
affidavit that the appeal is taken in good faith, and not for delay merely, the order dismissing
the appeal will be vacated; otherwise not. Within the time allowed by such order appellant
presented for filing his record on appeal, together with his affidavit. The affidavit discloses
that the only question which appellant seeks to raise is alleged irregularity of the trial court in
denying defendant's demand for a trial by jury.
No appeal was taken from the order denying defendant's motion for a new trial, and the
record presented for filing discloses that there was no statement on appeal or bill of
exceptions ever settled or filed.
exceptions ever settled or filed. The only thing this court could consider would be the
judgment roll, and the alleged irregularity does not appear upon the face thereof. (Kirman v.
Johnson, 30 Nev. 146; Williams v. Rice, 13 Nev. 234; Nesbitt v. Chisholm, 16 Nev. 39;
Robinson v. Benson, 19 Nev. 331; Reinhart v. Company D, 23 Nev. 369.)
The judgment recites: A trial by jury having been expressly waived by the counsel for the
respective parties in manner and form stated in the findings of facts filed herein, the cause
was tried by the court sitting without a jury. This court has repeatedly held that the findings
of the district court cannot be considered on appeal unless embodied in the statement of the
case. (Hanson v. Chiatovich, 13 Nev. 395; Alderson v. Gilmore, 13 Nev. 84; Nesbitt v.
Chisholm, 16 Nev. 40; Beck v. Lodge, 18 Nev. 246; Simpson v. Ogg, 18 Nev. 28; Bowker v.
Goodwin, 7 Nev. 135; Imperial Co. v. Barstow, 5 Nev. 252; Corbett v. Job, 5 Nev. 201;
Thomas v. Blaisdell, 25 Nev. 223; Beck v. Thompson, 22 Nev. 109; Smith v. Wells, 29 Nev.
415; Burbank v. Rivers, 20 Nev. 81.) All presumptions being in favor of the regularity of the
proceedings of the trial court, we would be bound upon the face of the judgment to presume
that a jury was regularly waived. It would therefore appear that, even if we considered the
affidavit of appellant required by the former order of this court sufficient, the appeal would
nevertheless be futile. While affiant further says that this affidavit is made in good faith, and
not for delay, he yet fails to satisfactorily show that the appeal was not taken for delay as
required by the order of the court, as no sufficient excuse, we think, has been presented for
the long delay in preparing and presenting for filing any sort of a record in this court. The
record presented discloses that it was not made up and certified to by the clerk until after the
order of this court of April 21, 1909 (31 Nev.150).
The order dismissing the appeal will stand.
Talbot, J., dissenting:
As it is admitted that the appeal was improperly dismissed and the appellant has had the
full record certified to this court within the time allowed by the order permitting the
restoration of the case, and considering the contentions and matters presented by the
record and by appellant's affidavit, in my judgment the appeal ought to be first restored,
and the appellant given an opportunity to argue and present his claims on the merits to
the same extent to which he would have been entitled if the appeal had not been
erroneously dismissed.
court within the time allowed by the order permitting the restoration of the case, and
considering the contentions and matters presented by the record and by appellant's affidavit,
in my judgment the appeal ought to be first restored, and the appellant given an opportunity to
argue and present his claims on the merits to the same extent to which he would have been
entitled if the appeal had not been erroneously dismissed.
_____________
31 Nev. 165, 165 (1909) Luke v. Coffee
[No. 1798]
GEORGE LUKE, Respondent, v. HARRY COFFEE, WM. BRIGGS, J. GOODFRIEND, and
THE CONTINENTAL CONSTRUCTION COMPANY, Appellants.
1. Appeal and ErrorAppeal from JudgmentTime.
Under Civ. Prac. Act (Comp. Laws, 3425, subd. 1), expressly requiring that appeals from judgments be
taken within one year after the rendition thereof, one not so taken must be dismissed.
2. JudgmentNew TrialDefault JudgmentSetting Aside.
Defendants, in response to a summons, appeared and demurred to the complaint, and, this being
overruled, interposed an answer, and in open court arranged with opposing counsel for the setting of the
case on a day certain for trial and the summoning and impanelment of a jury. The case was regularly called,
evidence introduced, cause submitted, and a verdict and judgment regularly returned for plaintiff without
defendants' appearance for trial. Held, that a judgment rendered on such verdict was not a judgment by
default which could be set aside on motion, but that defendants' remedy was by motion for a new trial
under Civ. Prac. Act (Comp. Laws, 3290, subds. 1, 3), authorizing a new trial for irregularity in the
proceedings, etc., or for accident or surprise.
3. ContinuanceGroundsDiscretion.
Where defendants' counsel was unavoidably absent on the day the cause was set for trial, the court, in its
discretion, might grant a continuance, penalizing defendants to the amount of plaintiff's costs incurred, and
by allowing damages for the delay occasioned.
4. Appeal and ErrorContinuanceDiscretionReview.
Abuse of discretion in overruling an application for a continuance for unavoidable absence of appellant's
attorney at the trial, if properly presented to the trial court on a motion for a new trial, may be reviewed on
appeal.
Action by George Luke against Harry Coffee and others.
31 Nev. 165, 166 (1909) Luke v. Coffee
From a judgment in favor of plaintiff, defendants appeal. Affirmed.
Detch, Carney & Stevens, for Appellants.
D. S. Truman, for Respondent.
This action was brought by the respondent to recover damages in the sum of $5,169 and
costs of suit, for personal injuries received by him by reason of the falling of a building,
which was being erected on one of the main streets in the town of Goldfield, by the
defendants. The appellants Coffee and Goodfriend, in response to the summons, appeared and
demurred to the complaint, which being overruled, said appellants filed their answer
disclaiming any liability. The cause was regularly set for trial for a certain day agreeable to
attorneys for both parties, at Hawthorne, which at that time was the county-seat of Esmeralda
County. The time for trial having arrived, the cause was regularly called for hearing.
Thereupon a jury was impaneled, and the evidence of the respondent submitted to it,
whereupon the jury rendered its verdict, upon which a judgment was entered in the sum of
$2,669 and $80.35 costs, in favor of the respondent and against appellants. Said verdict and
judgment were duly and regularly entered in favor of the respondent and against the
appellants. The appellants in this action failed to appear at the time set for the trial, and
subsequent to the rendition of the judgment made an application to the court to set aside the
judgment rendered and entered against them, upon the grounds that said judgment was taken
against the appellants and their attorneys, through their mistake, inadvertence, surprise, or
excusable neglect, and based their application upon affidavits of counsel for appellants and
others, to which counter-affidavits were filed. The court after, hearing said affidavits and the
arguments upon said motion, refused to grant the motion of appellants to vacate said
judgment, and appellants appealed to this court from the judgment originally entered upon
the verdict of the jury and the order of the court denying their motion to set aside and
vacate said judgment.
31 Nev. 165, 167 (1909) Luke v. Coffee
entered upon the verdict of the jury and the order of the court denying their motion to set
aside and vacate said judgment. Counsel for the respondent moves to dismiss the appeal on
various grounds, one of which is totally fatal to the appeal from the judgment, because it
appears from the record that the appeal was not perfected within the year prescribed by law.
It appears from the record that the judgment in this case was entered on the 28th day of
March, 1907, in favor of the respondent against appellants, and the notice of appeal from the
judgment rendered was not prosecuted until the 11th day of May, 1908. Subdivision 1 of
section 330 of our civil practice act (Comp. Laws, 3425) provides that an appeal from a final
judgment in an action and special proceedings, commenced in the court in which a judgment
is rendered, must be taken within one year after the rendition of judgment. It clearly appearing
that appellants have defaulted in failing to prosecute their appeal from the judgment within
the year prescribed by law, respondent's motion to dismiss the appeal from said judgment
must prevail. (Solomon v. Fuller, 13 Nev. 276; Twaddle v. Winters, 29 Nev. 88; Central Trust
Co. of California v. Holmes Mining Co., 30 Nev. 437.)
We come now to the consideration of the appeal taken by appellants from the order of the
lower court denying their motion to set aside the judgment rendered upon the following
grounds mentioned in their motion, a copy of which here follows:
Now come the defendants by their attorneys, Detch, Carney & Stevens, and move the
court to set aside the judgment taken and entered against the defendants by default in the
above-entitled cause, on the 28th day of March, 1907, and as grounds of said motion allege:
First, that said judgment was taken and entered against the defendants through their mistake,
inadvertence, surprise, and excusable neglect, and the mistake, inadvertence, surprise, and
excusable neglect of the defendants' attorneys, as will more fully appear from the affidavits
hereto attached. Detch, Carney & Stevens, Attorneys for Defendants.
The court, after hearing this motion, which was supported by affidavits of counsel for
appellants and others, and resisted by counter-affidavits on behalf of respondent, and
hearing the arguments of counsel upon said motion, refused to vacate or set aside said
judgment, and from this order refusing to set aside and vacate said judgment, appellants
also appeal.
31 Nev. 165, 168 (1909) Luke v. Coffee
by affidavits of counsel for appellants and others, and resisted by counter-affidavits on behalf
of respondent, and hearing the arguments of counsel upon said motion, refused to vacate or
set aside said judgment, and from this order refusing to set aside and vacate said judgment,
appellants also appeal. This appeal is also moved to be dismissed, on many grounds, by
respondent, but, believing as we do that the court properly refused to grant the motion, which
it did in the following decision, it will be unnecessary to consider them:
This cause having been heretofore argued and submitted to the court for its decision upon
the motion of the defendants Harry Coffee and J. Goodfriend, to set aside the judgment taken
and entered against the defendants by default, on the grounds of mistake, inadvertence,
surprise and excusable neglect, the court, now being fully advised in the premises, has
reached the following conclusions: First, the remedy sought by the defendants by this motion
is not the proper remedy to reach the facts and conditions of this case; second, that the
moving papers in this cause are not in compliance with Rule 10 of the district court, and are
insufficient to warrant the court to entertain this motion; third, that, nevertheless, after a
careful consideration of the facts and circumstances disclosed by the affidavits filed and
presented in support of, and in opposition to, the motion by the respective parties, I do not
find that there has been any such inadvertence, surprise, mistake, or excusable neglect as will
authorize or justify the court in setting aside the judgment in this action. It is therefore
ordered that the motion of the defendants Harry Coffee and J. Goodfriend to set aside the
judgment in this action against defendants be, and the same is hereby, denied. Frank P.
Langan, District Judge.
Appellants, in their motion to set aside the judgment taken on the 28th day of March,
designate and attempt to treat said judgment as a judgment by default. The judgment
complained of in this action cannot be considered a judgment by default (Maples v. Geller
and Raffer, 1 Nev. 235), and is not therefore subject to the same rules governing the setting
aside of judgments taken by default, where there is no appearance.
31 Nev. 165, 169 (1909) Luke v. Coffee
In the present case the appellants, in response to the summons, appeared and demurred to the
complaint, which being overruled, interposed their answer, and in open court arranged with
opposing counsel upon a day certain for the trial of the cause, and the summoning and
impanelment of a jury. The case was regularly called, the evidence regularly submitted to the
jury under the instructions of the court, and a verdict regularly filed, and judgment entered
thereon. The appellants misconceived their remedy in attempting to set aside a judgment by
default, when, as a matter of law, they should have moved for a new trial under subdivisions
1, 3, section 195 of our civil practice act (Comp. Laws, 3290) regulating new trials upon the
following grounds: FirstIrregularity in the proceeding of the court, jury, or adverse party,
or any order of the court or abuse of discretion by which either party was prevented from
having a fair trial. ThirdAccident or surprise which ordinary prudence could not have
guarded against. (Hayne on New Trial and Appeal, pp. 226, 227, 228, and authorities cited.)
Appellants not having selected the proper procedure in the lower court to remedy their
alleged grievances, and the court having properly refused their motion, we are without
jurisdiction to consider the merits of the erroneous application of appellants to the lower
court. The case having been regularly set, with the knowledge of both parties, and witnesses
being in attendance on the trial, the court could, in its discretion, if he believed the absence of
counsel unavoidable, upon application of appellants for a continuance, grant the application
penalizing appellant to the amount of respondent's costs incurred, and for the delay
occasioned respondent on such terms as he might have deemed just; and, if he erred in
denying the application, or grossly abused his sound discretion in refusing to grant the
continuance, appellants could have properly presented the matter to the lower court, on a
motion for a new trial, which motion, if overruled, could have been regularly appealed from
to this tribunal.
Not having done so, and the appeal from the judgment not having been prosecuted within
one year, as prescribed by law, from the day of the judgment, said appeal from the
judgment must be dismissed, and the order of the lower court refusing to set aside or
vacate the judgment is affirmed.
31 Nev. 165, 170 (1909) Luke v. Coffee
from the day of the judgment, said appeal from the judgment must be dismissed, and the
order of the lower court refusing to set aside or vacate the judgment is affirmed.
It is so ordered.
____________
31 Nev. 170, 170 (1909) Karns v. State Bank & Trust Co.
[No. 1769]
MRS. H. O. KARNS, Appellant, v. STATE BANK AND
TRUST COMPANY, Respondent.
1. Appeal and ErrorReservation on Grounds of ReviewObjectionsAdmissibility of Evidence.
An error in refusing to admit evidence is not properly before the court on review where it does not appear
that any objection or exception was taken to the action of the lower court.
2. Constitutional LawDetermination of QuestionsNecessity of Decision.
A constitutional question will not be determined on appeal unless absolutely necessary to properly
dispose of the case.
3. CorporationsActionsService of Process on Assistant Cashier.
Under Comp. Laws, 3124, providing that summons on a domestic corporation shall be served on the
president or other head of the corporation, secretary, cashier, or managing agent thereof, service on an
assistant cashier of a bank in charge of a branch bank who has power to sign drafts and correspondence,
and who is under the supervision of the cashier, and who has nothing to do with the control or management
of the corporation, is not sufficient.
Action by Mrs. H. O. Karns against the State Bank and Trust Company. From an order
vacating a default judgment, plaintiff appeals. Affirmed.
The facts are sufficiently stated in the opinion.
James Donovan, for Appellant.
Mack & Green, and Pyne, Douglass & Tilden, for Respondent.
This is an appeal from an order vacating a judgment entered by default, which order was
based upon the conclusion of the district court that the service of the complaint and summons
upon C. H. Wise, assistant cashier of the defendant, which is a domestic corporation, was
insufficient under the practice act, which provides that service upon a corporation
organized under the laws of this state shall be upon the "president or other head of the
corporation, secretary, cashier, or managing agent thereof."
which is a domestic corporation, was insufficient under the practice act, which provides that
service upon a corporation organized under the laws of this state shall be upon the president
or other head of the corporation, secretary, cashier, or managing agent thereof. (Stats. 1869,
p. 200, c. 112, sec. 29; Comp. Laws, 3124.)
The return of the sheriff states that he personally served the summons on the State Bank
and Trust Company, a corporation, by delivering to and leaving with C. H. Wise, the assistant
cashier and managing agent of said State Bank and Trust Company, a corporation, the
president, secretary, and cashier being absent from and non-residents of Esmeralda County.
It was alleged in the motion to vacate: That on the 1st day of February, 1908, a copy of
summons and complaint was served by the sheriff of Esmeralda County upon C. H. Wise,
assistant cashier of the State Bank and Trust Company, defendant; that the said C. H. Wise is
not secretary, cashier, or managing agent of the State Bank and Trust Company, a
corporation, and never has held any of the said offices; and that C. H. Wise is not one of the
persons designated by the statute upon whom service of summons can be made for the said
corporation, and has no power or authority from the said corporation to accept service of the
said summons for the said corporation, and is in no way authorized to bind the said defendant
corporation by the acceptance of any service of summons.
It appears from the affidavits and testimony introduced on the hearing of the motion to
vacate that Wise, under appointment by the defendant, held the designated title and position
of assistant cashier in charge of the Goldfield branch, and that no officer of the bank above
him resided there. He testified without contradiction that he was the assistant cashier of that
branch under the supervision of the cashier at Carson City; that he had power to sign drafts
and correspondence; that his authority did not extend to any of the other branches; that he had
nothing to do with the policy, control, or management of the defendant as a corporation; and
that he considered the president the managing agent. As far as anything definite regarding his
powers is indicated, he was only authorized to sign correspondence and drafts on other
bankspowers which could be delegated to any assistant cashier without making him the
managing or other officer of the corporation.
powers which could be delegated to any assistant cashier without making him the managing
or other officer of the corporation. It is not shown that he was authorized to make or call in
loans, institute or defend suits, receive or accept service of writs, or otherwise manage the
affairs of the bank or the Goldfield branch, or that these powers were not exercised
exclusively by the officers of the corporation at Carson City or on their trips to Goldfield. It
does not appear that he exercised such functions as would make him the managing agent of
the corporation or even of the Goldfield branch, although he was the foremost one in
authority who lived there. If he could be considered the manager of that branch because it is
shown that he was authorized to sign drafts and correspondence, and because there was no
higher officer of the bank residing there, it might still be doubted whether this would make
him the managing agent of the corporation.
For appellant it is claimed, not only that Wise was the managing agent, but that service
upon him as assistant cashier was sufficient. In support of these propositions, we are referred
to the following cases:
Pond v. National M. & D. Company, 6 Kan. App. 718, 50 Pac. 973, in which the service
of a summons upon the vice-president at a time when the president was absent and could not
be found by the sheriff was sustained. It was said that in the absence of the president it was
the duty of the vice-president to act as president, and that at such times he was the chief
officer of the corporation.
In Comet C. M. Co. v. Frost, 15 Colo. 310, 25 pac. 506, service upon the vice-president
was deemed sufficient, although the return did not show that the president could not be found
in the county.
In Railway Co. v. Stone, 60 Kan. 57, 55 Pac. 347, the court stated that, when the secretary
was a non-resident, it believed that service upon the assistant secretary who lived within the
state was sufficient.
In Colorado D. Co. v. Lombard Inv. Co., 66 Kan. 251, 71 Pac. 584, 97 Am. St. Rep. 373,
the president of the defendant lived in New York and the secretary in Chicago. The statute
authorized service on an inferior officer when the chief officer of the company could not be
found in the county.
of the company could not be found in the county. It was recited in the return that the president
and chief officer of the company were not found in the county. It was held that the service
was sufficient upon the assistant secretary, an officer provided for by the by-laws of the
corporation, with independent duties which included the management of the office of the
company at Wichita, its only place of business within the state, and who was in effect the
secretary of the corporation for Kansas, the state under whose laws it was created. The statute
and the circumstances distinguish that case from the present.
In Brun v. N. W. Realty Co., 52 Misc. Rep. 528, 102 N. Y. Supp. 473, the majority of the
court sustained the service upon a party who had executed contracts, signed checks, and done
other discretionary business for the corporation without consulting its officers, and whose
acts had been approved by the company. In the dissenting opinion Justice MacLean said:
The argument that it would be a hardship to apply the statute of the state, instead of a
judge-made law to fit the case, is seldom cogent.
There is good reason for holding that, in the absence of the president, he becomes
superseded by the vice-president, who, in effect, becomes the president or head of the
corporation, endowed with the functions of the president and subject to service as the
president or other head of the corporation, as this language is used in the statute. It is not so
consistent to hold that service upon an assistant secretary is sufficient unless in the event of
the non-residence of the secretary or cashier the powers and duties of the assistant are broad
enough to make him in effect secretary or cashier, for that would be judicially legislating
words into the practice act not placed there by the legislature.
So far as we have examined, the weight of authority, as well as the decisions of this court,
are adverse to or by reason of different circumstances and statutes are distinguishable from
the few cases holding that service upon an assistant secretary or assistant cashier is sufficient.
Nor do we find that the cases generally support the contention that Wise was the managing
agent of the corporation, because, subject to the supervision of the cashier, he was in charge
of a branch of the defendant's business under the title of assistant cashier, with authority
to sign drafts and correspondence.
vision of the cashier, he was in charge of a branch of the defendant's business under the title
of assistant cashier, with authority to sign drafts and correspondence. It is not apparent that
Wise, the secretary or the cashier with similar powers only, if working at the headquarters of
the bank under the supervision of the cashier, president, or other officers, would be the
managing agent. The regular and managing officers of the corporation upon whom valid
service could have been made were within the state, precluding any necessity for service by
publication or upon other officers or stockholders, as is allowable under the statutes of a few
states.
Judge Hawley, speaking for the United States Circuit Court in Doe v. Springfield B. & M.
Co., 104 Fed. 687, 44 C. C. A. 130, cited several cases, and said: To constitute a managing
or business agent upon whom service of summons could be made, the agent must be one
having in fact a representative capacity and derivative authority, and not one created by
construction or implication, contrary to the intention of the parties.
In Sterett v. D. & R. G. Co., 17 Hun, 316, service upon the assistant secretary of a railroad
company was held insufficient. The court said: The duties of a managing agent and of an
assistant secretary are entirely distinct. * * * (Brewster v. Mich. Cen. R. R., 5 How. Prac. 183;
Doty v. Mich. Cen. R. R. Co., 8 Abb. Prac. 427; Flynn v. Hudson R. R., 6 How. Prac. 308).
In Great West Min Co. v. W. of A. M. Co., 12 Colo. 46, 20 Pac. 771, 13 Am. St. Rep. 204,
it was said: There is a wide distinction between a general and a special or particular
agenta distinction not unfounded or useless, and one which solves many cases. A special
agency exists where there is a delegation of authority to do a single act, and a general agency
exists where there is a delegation to do all acts connected with a particular trade, business or
employment. (Story Ag. sec. l7.) Numerous other authorities recognize this same distinction
so clearly laid down by Mr. Story. (Beals v. Allen, 18 Johns. 363, 9 Am. Dec. 221; Martin v.
Farnsworth, 49 N. Y. 555; Merserau v. Insurance Company, 66 N. Y. 274; Railroad v.
Reisner, 18 Kan. 458; Cruzan v. Smith, 41 Ind.
Ind. 288.) * * * To bind a corporation, the service of process must be upon the identical agent
provided by the statute. (Chambers v. Manufactory, 16 Kan. 270; Kennedy v. Society, 38 Cal.
151; Watertown v. Robinson, 59 Wis. 513, 17 N. W. 542; Aiken v. Mining Co., 6 Cal. 187;
O'Brien v. Shaw, 10 Cal. 343; Reddington v. Mining Co., 19 Hun, 405; Cherry v. Railroad
Co., 59 Ga. 446; Railroad Co. v. Miller, 87 Ill. 45.) * * * In Transportation Co. v. Whittaker,
16 Wis. 233, the question presented was whether there had been sufficient service. The
summons had been served upon the captain of a steamboat belonging to the company while
employed in transacting its business on the Mississippi River within the boundaries of the
state, and the court held that he was not a managing agent within the meaning of the statute.
Said the court: The statute relates to an agent having general supervision over the affairs of
the corporation.' * * * In Reddington v. Mining Co. the court said: It is quite clear that the
legislature attached importance to the term managing agent, and employed it to distinguish
a person who should be invested with general power, involving the exercise of judgment and
discretion, from an ordinary agent or employee who acted in an inferior capacity, and under
the direction and control of superior authority, both in regard to the extent of the work and the
manner of executing the same.' In that case the corporation had its place of business and
officers in the State of California, and it was held that the agent employed to take charge of a
branch office in New york to transfer stock and to receive and transmit money on assessments
was not a managing agent of the corporation upon whom summons could be served.
In Osborne v. C. C. F. A. Corp., 9 Wash. 666, 38 Pac. 160, a case very similar to the
present, it is said in the opinion: The service upon which the judgment was founded was
made upon R. Yeend, who was in charge of the branch store or house of the defendant in
Walla Walla. The defendant was a domestic corporation, having its principal place of
business in Dayton, Columbia County, and having a president, secretary, treasurer, and
general manager. The latter officer had general control of the business, including that
transacted by the person in charge of the Walla Walla house.
the person in charge of the Walla Walla house. Under these circumstances it was held by the
superior court that the summons had never been served so as to bring the corporation into
court. * * * The question presented for our determination is as to whether the agent upon
whom service was made was within the meaning of such statute a managing agent of the
corporation. The term managing agent' would seem to carry the idea that such an agent was
one who managed the affairs of the corporation, and not some particular part or branch
thereof only. If we give the language of the statute its ordinary significance, it would not
include Mr. Yeend, who was only in charge of a single branch of the business of the
corporation, among those upon whom service could be made.
At page 120 of 66 Am. Dec. it is said in the note: In cases where the statute authorizes
service on a head officer' or a managing agent,' the person on whom service may be made
must be in the nature of a head officer whose knowledge would be that of the corporation
(Newby v. Colt's Pat. F. A. Co., L. R. 7 Q. B. Cas. 296), and who has the general supervision
of the affairs of the corporation (Upper Mississippi Transp. Co. v. Whittaker, 16 Wis. 220;
Carr v. Commercial Bank of Racine, 19 Wis. 272); that is to say, one whose agency extends
to all transactions of the corporation, and not to the management solely of a particular branch
or department of its business (Brewster v. Michigan Central R. R. Co., 5 How. Prac. 183;
Emerson v. Auburn, 13 Hun, 150; Weight v. Liverpool & London & Globe Ins. Co., 30 La.
Ann. 1186).
In Winslow v. Staten Island R. T. R. R. Co., 51 Hun, 300, 4 N. Y. Supp. 169, it was said in
the decision: The fact that the person served was not the treasurer seems to be clearly
established, and the fact that he occupied another office and performed the duties of treasurer,
perhaps, did not authorize the service upon him so as to bind the corporation, as the assistant
treasurer is not designated in the code as one of the persons upon whom such service shall be
made. It is sought, also, to sustain the service by showing that Curry was a managing agent of
the corporation. In this we think the proof wholly fails. It is true that Curry was engaged in
and about the business of the corporation, and that, in addition to his ordinary duties as
clerk to the corporation, he was in the habit, as assistant treasurer, of drawing checks
payable to the order of another clerk of the corporation.
the business of the corporation, and that, in addition to his ordinary duties as clerk to the
corporation, he was in the habit, as assistant treasurer, of drawing checks payable to the order
of another clerk of the corporation. But there is no evidence whatever that he had any part in
the management of the business of the corporation, or that he exercised any authority as a
managing agent. * * * Where the statute prescribes that jurisdiction is to be obtained in a
particular way, then the requirements of the statute must be complied with, or jurisdiction
cannot be acquired. If there is any hardship under the law, it is not for the courts to amend the
statute, because that is a duty which is imposed upon the legislature.
In Holgate v. Oregon Pacific R. R. Co., 16 Or. 123, 17 Pac. 859, it was held that
corporations being the creatures of the statute, can be sued only in such way as the legislature
has provided. Over the citation of a long list of cases it is said at section 7503 of Thompson
on Corporations: Where a particular method of service of process upon corporations is
pointed out by statute, that method must be followed; and, where the statute designates the
officer or agent upon whom process is to be served, it must be served upon that officer or
agent, in order to give jurisdiction. Statutes of this kind are not regarded as directory, but as
mandatory and exclusive. Hence, where the statute prescribes the method of service, a
method not included therein will not be good, although it might have been good at common
law. Thus, if the statute designates certain officers or agents upon whom writs may be served,
a service upon another agent or even upon a person in possession of the property of the
corporation sought to be affected by the suit will not give jurisdiction.
In Scorpion Silver Mining Co. v. Marsano, 10 Nev. 370, it was held that the service must
come within the terms of the statute, and it was not sufficient when made upon the managing
agent instead of the business manager.
In Lonkey v. Keyes S. M. Co., 21 Nev. 313, it was held that service upon the deputy
secretary of state did not comply with the statute providing for service upon the secretary of
state; and Justice Murphy, speaking for the court, said; "The attorney for the appellant
contends 'that the service of process upon the deputy secretary of state was not a service
upon the secretary, and was not a compliance with the statute under consideration.' The
law in regard to the service of process on foreign corporations must receive a strict
construction, and the service must be made upon the officer or person mentioned in the
act of the legislature.
The attorney for the appellant contends that the service of process upon the deputy secretary
of state was not a service upon the secretary, and was not a compliance with the statute under
consideration.' The law in regard to the service of process on foreign corporations must
receive a strict construction, and the service must be made upon the officer or person
mentioned in the act of the legislature. The cases are numerous which hold that, where a
particular method of serving process is pointed out by the statute, that method must be
followed, and the rule is especially exacting in reference to corporations. Was the service
upon A. Helm, deputy secretary of state (the secretary being absent from the state),' a
compliance with the act of 1889 (Stats. 1889, p. 47, c. 44)? * * * In the case of City of
Watertown v. Robinson, 69 Wis. 233, 34 N. W. 140, the supreme court of that state said:
When the statute prescribes a particular mode of service, that mode must be followed. Ita
lex scripta est. There is no chance to speculate whether some other mode will not answer as
well. This has been too often held by courts to require further citations. When the statute
designates a particular officer to whom the process may be delivered, and with whom it may
be left as service upon the corporation, no other officer or person can be substituted in his
place. The designation of one particular officer upon whom service may be made excludes all
others.' This language was afterwards approved and adopted by the Supreme Court of the
United States in the case of Amy v. Watertown, 130 U. S. 317, 9 Sup. Ct. 530, 32 L. Ed. 946.
(2 Beach, Corp. sec. 859; Tallman v. Railroad Co., 45 Fed. 156.) * * * In Winslow v.
Railroad Co., 2 N. Y. Supp, 682, service of summons on the assistant treasurer was held to be
void for the reason that he was not the president or other head of the corporation, the
secretary or clerk to the corporation, the cashier or treasurer, or a director or managing agent.'
See, also, City of Watertown v. Robinson, 59 Wis. 515, 17 N. W. 542; Mariner v. Town of
Waterloo, 75 Wis. 440, 44 N. W. 512; Alexandria v. Fairfax, 95 U. S. 779, 24 L. Ed. 583;
Kennedy v. Hibernia S. & L. Soc., 38 Cal. 154; Aiken v. Mining Co., 6 Cal. 186; Cloud v.
Inhabitants, 86 Mo. 362; Williamette F. C. M. & T. Co. v. Williams, 1 Or. 112, 113; Mining
Co. v.
Mining Co. v. Marsano, 10 Nev. 376; Blanc v. Mining Co., 95 Cal. 524, 30 Pac. 765, 29 Am.
St. Rep. 149; Jepson v. Cable Co., 20 N. Y. Supp. 300; Kibbe v. Benson, 17 Wall. 627, 21 L.
Ed. 741; Reinhart v. Lugo, 86 Cal. 395, 24 Pac. 1080, 21 Am. St. Rep. 52. It was not
designed by the legislature that a service of process upon the deputy secretary of state should
be deemed sufficient to bring a corporation into court. We are therefore compelled to hold
that the service in this case gave the court no jurisdiction of the defendant.
It may be assumed that the district judge in deciding that the service upon Wise was
noneffectual had in mind the opinions of this and other courts holding to a strict construction,
and considered that it was the settled law of this state that service must be made upon some
one of the officers designated by the legislature. We could not reach the conclusion that the
lower court erred without in effect overruling the construction heretofore placed upon the
statute, and, if the question were a new one, we could see no reason for deciding differently
so long as the statute stands in its present condition. Whether it would be better and more
convenient to provide that, where a banking corporation has an assistant cashier in charge of a
branch of its business, service may be made upon him, if the corporate officers are absent
from the county, is a matter of expediency for the legislature, and not for the courts, to
determine.
The only other specification of error in the statement is that the court erred in refusing to
admit in evidence the returns of service upon Wise in four other cases which were brought
against the defendant, but this objection is not properly before us, because, as claimed for
respondent, it does not appear that any objection or exception was taken in this regard in the
lower court. (McGurn v. McInnis, 24 Nev. 370; State v. Lawrence, 28 Nev. 440.)
The receiver appointed to take charge of the property and affairs of the defendant after the
order from which the appeal is taken was made has moved to dismiss the appeal upon the
ground that he ought to have been served with the notice and statement. By attorney he has
appeared, filed a brief, and argued the case upon its merits.
The appellant has resisted the motion to dismiss by an extended brief attacking the
constitutionality of the banking act of 1907 (Stats. 1907, p. 232, c. 119, sec. 10), under which
the receiver was appointed, and in that way has raised a question which was not presented to
the trial court. Neither has ever moved to substitute the receiver for the defendant. If service
was required upon him, its purpose was analogous to a summons to enable him to appear and
protect the interests of the defendant and argue the case, which he has done, on the merits in
this court. The constitutional question was not before the lower court, and, if it had been, it
would not be determined on appeal unless absolutely necessary to properly dispose of the
case. (State v. Curler, 26 Nev. 347.) Such necessity does not appear to exist because the
determination we have made of the case on its merits is as favorable to the respondent, as if
we had considered and granted the motion to dismiss the appeal, and as favorable to appellant
as if we had denied this motion. The constitutionality of this banking act is now under
consideration by this court in another cause, and may arise in the district court, if either party
asks to have the receiver substituted in place of the defendant there.
The order vacating the judgment is affirmed, and the case is remanded to the district court.
____________
31 Nev. 181, 181 (1909) Turley v. Thomas
[No. 1758]
W. E. TURLEY, Respondent, v. W. B. THOMAS and C. J. BOWER, Appellants.
1. CorporationsSales of StockValidityCertainty.
A contract that, in consideration of an agreement by defendant to transfer to plaintiff and another a
specified number of shares of corporate stock, they will to the best of their ability use their best energies
toward securing the sale of treasury stock in such company, and do all in their power to assist in advancing
the interests of such company, is not too indefinite to be binding, though no time is fixed for performance,
and the acts to be performed in securing a sale of the treasury stock are not specified, where plaintiff and
such other have performed their part of the contract to the extent of securing subscribers for all the shares
contemplated to be sold at that time.
2. ContractsConstructionJoint or Several.
Where there are no express words to render joint and several the obligation undertaken by two, it is
presumably a joint liability.
3. Appeal and ErrorReviewQuestions of FactConflicting Evidence.
The findings of fact by the trial court on conflicting evidence will not be disturbed on review.
4. Specific PerformanceContracts EnforceableContract to Deliver Corporate Stock.
A contract for the delivery of corporate stock will be specifically enforced in equity, where the stock has
no market value and an action for damages for breach of the contract would be inadequate.
5. Specific PerformanceContract EnforceableMutuality.
A contract for the delivery of corporate stock in payment for personal services to be rendered, though
unenforceable specifically at the time it was made, may be so enforced after the services contracted for
have been rendered.
6. Appeal and ErrorQuestions Not Raised at Trial.
Appellant is not entitled to have a note filed in the case as an exhibit canceled on appeal, where this was
not asked in the trial court.
7. Appeal and ErrorReviewHarmless ErrorAdmission of Evidence.
The error of admitting evidence on cross-examination not within the scope of the witness's direct
examination is harmless where the fact testified to was fully shown otherwise.
8. Appeal and ErrorReviewHarmless Error.
A decree directing the delivery of corporate stock to plaintiff will not be disturbed because the action was
brought while the stock was held in pool by a third person, where the period of the pool has expired.
Action by W. E. Turley against W. B. Thomas and C. J. Bower. From a decree for
plaintiff, defendants appeal. Affirmed.
Statement of Facts
Under date of August 21, 1906, the appellants, Bower and Thomas, who were doing
business as copartners under the firm name of Nevada Real Estate Mining and Development
Company, entered into a contract with the Selby Consolidated Mining and Milling Company,
wherein it was recited that this company was desirous of arranging for the procurement of
funds to be used in the development of its mining claims, and wherein it was agreed that in
consideration of their acting as the agents and promoters of the company the latter would
increase its capital stock from 300,000 to 1,000,000 shares, that one-third of this increased
capital stock should be treasury stock, and that the other two-thirds thereof should be divided,
one-half thereof to the stockholders of the company at that time, and the other one-half to
these appellants. It was also agreed therein that all stock outside of the treasury stock should
be pooled for one year from that time.
Two agreements bearing date on that day were executed and signed by those parties
carrying several similar provisions, and apparently intended for the same purpose, but one of
which was more complete and detailed in its provisions. One provided that it was conditioned
upon the parties who are appellants here raising, through the sale of treasury stock or
otherwise, the sum of $15,000 with which to begin operations, while the other provided that
they must raise at least $1,500 for that purpose; and in both that they should use their best
endeavors and abilities to sell treasury stock to secure funds for the prosecution of the work.
It seems that the one providing for $15,000 was not executed until several days after its date.
There is testimony to the effect that a day or two later, or on or about August 23, 1906,
appellants offered one Edwin Arkell one-fourth of the promotion stock to which they were
entitled under this contract which they had just made with the Selby Consolidated Mining and
Milling Company for the promotion of that company, if he would furnish them with $500.
promotion of that company, if he would furnish them with $500. Arkell was unable to supply
that amount, but he brought to the appellants the plaintiff, Turley, who wished to see the
company's properties before accepting the proposition, but was informed by them that the
$500 must be paid by noon that day or the deal would be off. Thereupon Turley declined, and,
with Arkell, left appellants' office, but subsequently returned; and it is testified he agreed to
accept the offer, if Bower and Thomas would give them some guaranty for the $500, and that
appellants then agreed to give them their note for the amount, payable on or before ninety
days after date; that Turley and Arkell understood that the $500 was paid to preserve the
rights of appellants in their contract with the company; that they were to be repaid if the
contract between the appellants and the company was not consummated, but otherwise the
note was to be canceled. On the other hand, appellants testified in support of their claim that
the $500 was merely a loan to relieve them from financial embarassment; that they were
willing to let Arkell in on the proposition, if he would help promote it and loan them the
money for ninety days; and that, if plaintiff and Arkell had not loaned them the $500, they
never would have made any agreement with them.
Aside from this conflicting testimony, a note dated August 23, 1906, for $500, payable
ninety days after date to W. E. Turley and Edwin Arkell, and an indorsement on the back
thereof to the effect that the note would be due and payable thirty days from its date in the
event that the Selby Consolidated Mining and Milling Company should not have increased its
shares to 1,000,000, were signed and delivered by appellants, who received $250 from
plaintiff and a like sum from Arkell; and at the same time the following agreement was also
executed:
Whereas, the undersigned, Wilmer B. Thomas and Charles J. Bower (of the Nevada Real
Estate Mining and Development Company) are entitled to one-third (1/3) of the capital stock
of the Selby Consolidated Mining and Milling Company's stock of Nevada, as promoters,
under and by virtue of a certain contract made between the said Selby Consolidated Mining
and Milling Company and the undersigned.
certain contract made between the said Selby Consolidated Mining and Milling Company and
the undersigned. Said contract dated August 21, 1906.
Now, therefore, in consideration of one ($1) dollar to us in hand paid, the receipt whereof
is hereby acknowledged, and of other valuable considerations, we, the undersigned, hereby
contract and agree to transfer and deliver to W. E. Turley and Edwin Arkell one-fourth of our
promoters' interest, being 83,250 shares, which stock is to be transferred as follows: 41,625
shares to the said W. E. Turley, 41,625 shares to said Edwin Arkell.
It is understood and agreed that this agreement is subject to the receipt of such stock from
said Selby Consolidated Mining and Milling Company to the undersigned.
It is further understood and agreed that said W. E. Turley and Edwin Arkell will, to the
best of their ability, use their best energies towards the securing of the sale of treasury stock
in such company, and do all in their power to assist in advancing the interests of such
company.
It is understood that all promotion stock shall be pooled.
Nevada Real Estate M. & D. Co.
By W. B. Thomas.
C. J. Bower.
As had been agreed, the stock of the Selby Company was increased to 1,000,000 shares,
and about September 1st the company authorized the sale of 100,000 shares of its treasury
stock at 20 cents per share.
A day or two after the execution of the note and this agreement, a subscription paper was
prepared by appellants and Arkell, and after being typewritten in their office was delivered to
him. Beginning about September 1st, plaintiff and Arkell, armed with this one paper between
them, went around soliciting and obtaining subscriptions for the treasury stock of that
company. Arkell kept the list, and plaintiff went with him and introduced him, as the plaintiff
knew more people than Arkell. Later, it was thought more advantageous to have plaintiff first
introduce Arkell to several of the persons approached, and then have Arkell solicit
subscriptions from them alone. There is contradicted evidence to the effect that plaintiff kept
working on the proposition until October.
plaintiff kept working on the proposition until October. At many times he took people to the
office of the Selby Company in Reno to see the ore; that he wrote more than one hundred
letters to persons in the East; that several of the people to whom he introduced Arkell bought
stockThomas told him that $12,000 worth of stock had been sold. At the time the
subscription list went out from appellants' office there was placed upon it a number of
fictitious subscriptions for stock, and also the names of prominent people who had been given
or promised shares in order to make it appear that they were subscribers or interested in the
promotion of the company. Bower, the secretary of the company, and the president on
October 10, 1906, deposited with the Washoe County Bank a pooling agreement dated
October 6th, with the shares issued to the old stockholders of the company and the promoters.
Plaintiff and Arkell testified that about the time of these dates in October they went to
appellants' office and inquired whether their stock had been put in the bank, and were led to
believe that it had been placed there for them; but appellants deny that they were so told,
although admitting the use of language from which such inference might have been drawn.
Arkell ascertained that his stock had not been placed in the bank, and insisted upon and
succeeded in having it placed there in escrow with the other. Appellants did not complain
about respondent's services at that time, and they were willing that he should believe that his
stock had been pooled, although it had not been placed in the bank. The 100,000 shares of
treasury stock, which about September 1st had been authorized to be placed at 20 cents a
share, was mostly sold by the 20th of October, excepting some that the subscribers failed to
take. One witness testified that all of it had been subscribed for by about the middle of
October, and Thomas stated on the stand that all of this stock had been sold, and that notice to
that effect had been given in the paper for several days prior to the receipt of a telegram sent
from California by plaintiff, which was an order for more stock that was not filled. Plaintiff
wrote a letter about the same time asking for a commission on the sale of this stock, stating
that he had been to the expense of a special trip to see the intending purchaser.
stating that he had been to the expense of a special trip to see the intending purchaser. He
testified that he desired the commission to pay to the party who had notified him and assisted
him in obtaining the order for this stock, who asked for the commission. Upon plaintiff's
return from San Francisco on November 25th after an absence of about twelve days, he was
informed by Arkell that his stock was not in the bank. Upon inquiring next day at the office
of appellants, he was told by Bower that they had concluded to repudiate the contract, that
they were not going to deliver the stock, and he was referred to their attorney. There is some
dispute as to whether dissatisfaction was expressed at this time regarding respondent's
services, but he testified that no particular complaint was made to him concerning his efforts
to sell stock and fulfill his contract at that time or prior thereto. Any subscription he had
obtained was accepted by appellants down to the time of his letter and telegraphic order,
which was refused about November 21st, which was after the notice had been published that
the 100,000 shares offered had been sold. This suit was commenced on December 1st
following to enforce the delivery to the plaintiff of 41,625 shares, being his one-half of
one-fourth of respondent's one-third of the stock of the Selby Company. It is alleged in the
complaint that, after the stock of that company had been increased as stated, the company had
no money or means other than its treasury stock with which to develop its mines; that plaintiff
and Arkell had complied with the terms of their agreement, and plaintiff through his diligence
had sold stock for which the company had received about $12,000 in cash; that with the
money the mine belonging to the company had been worked and developed, and thereby the
property and stock of the company had appreciated in value and would still further increase,
and that by means of the money so realized the stock had increased from 20 cents to about 70
cents a share, and would further increase as the property was developed; that the extent of the
increase in the value of the stock cannot be definitely ascertained, but continued working of
the property would increase the stock largely, the exact amount of which could not be stated,
but it was impossible for the plaintiff to more specifically state the value of the stock or
the amount of damages he had suffered by failure of the defendants to comply with the
terms of their contract; that he had no adequate remedy at law, for the reason that a
judgment at law would not meet the demands of justice, and that the same would be less
beneficial than relief in equity; that the damages he had sustained could not be
ascertained or exactly shown, and that any remedy at law would be attended with doubt
and difficulty and would be inadequate.
it was impossible for the plaintiff to more specifically state the value of the stock or the
amount of damages he had suffered by failure of the defendants to comply with the terms of
their contract; that he had no adequate remedy at law, for the reason that a judgment at law
would not meet the demands of justice, and that the same would be less beneficial than relief
in equity; that the damages he had sustained could not be ascertained or exactly shown, and
that any remedy at law would be attended with doubt and difficulty and would be inadequate.
Among others, the court made the following findings, to which exception was taken:
SixthThat under and in pursuance of said contract, and in compliance with the terms
thereof, the said W. E. Turley and the said Edwin Arkell duly performed all the conditions on
their part to be performed under said contract; and the said W. E. Turley, the plaintiff herein,
has performed every act and thing required of him under and by virtue of the terms of said
contract.
* * * * * * * * * *
TenthThat said, capital stock, at and before the commencement of this suit, had no
market value, and that the value thereof, at the time the contract was made and entered into
between the plaintiff and the said defendants, depended upon the operation and development
of the property owned by the said Selby Consolidated Mining and Milling Company, and the
continued development and operation thereof; that the development of the property owned by
said company, by the continued operation thereof, shows a progressively increased
improvement therein; that the value of said stock cannot be exactly shown, or definitely
ascertained, and that the continued working and developing of the property of said mining
company will increase the value of said property and the value of said stock; and that there is
no method of ascertaining the amount of damage that plaintiff has sustained, or will sustain,
by reason of the failure and refusal on the part of the defendants to transfer and deliver to said
plaintiff the amount of stock to which he was entitled under said contract.
* * * * * * * * * *
EleventhThat by reason of the performance of said contract by the plaintiff and the
said Arkell, on their part, the means were obtained by which the Selby Consolidated
Mining and Milling Company were enabled to work and develop said property and render
the stock thereof valuable.
tract by the plaintiff and the said Arkell, on their part, the means were obtained by which the
Selby Consolidated Mining and Milling Company were enabled to work and develop said
property and render the stock thereof valuable.
Conclusions of law were found in favor of the plaintiff, and judgment entered accordingly.
S. McDowall and Albert D. Ayres, for Appellants.
Cheney, Massey & Price, for Respondent.
By the Court, Talbot, J. (after stating the facts as above):
The appeal is from a decree directing the specific performance of an agreement to transfer
41,625 shares of the stock of the Selby Consolidated Mining and Milling Company and from
an order denying a motion for a new trial. The main questions presented are whether the
agreement relied upon is too indefinite to be binding, whether the evidence supports the
above findings, and whether these warrant the conclusions of law and the judgment; and, in
the latter connection, whether an action will lie to compel the delivery of stock instead of one
for damages, if the stock has no market value by which any loss sustained by plaintiff caused
by the failure to deliver to him can be adequately gaged, and whether the contract between the
parties may be enforced in an action for specific performance when plaintiff's part of the
agreement was for a monetary consideration and for personal services which could not be
enforced, if not already performed.
It must be conceded that the clause in the agreement that it is further understood and
agreed that said W. E. Turley and Edwin Arkell will, to the best of their ability, use their best
energies towards the securing of the sale of treasury stock in such company, and do all in their
power to assist in advancing the interests of such company, states no time in which it is to be
performed, and is not specific as to what acts were to be done by plaintiff and Arkell in
securing the sale of treasury stock or in advancing the interests of the Selby Consolidated
Mining and Milling Company. It does not state whether they were to work a month, a year, or
as long as they lived for the advancement of these purposes, or whether they should sell any
designated number of shares, nor in what particular way they should assist in advancing
the interests of the company, except by using their best energies towards securing the
sale of treasury stock.
whether they should sell any designated number of shares, nor in what particular way they
should assist in advancing the interests of the company, except by using their best energies
towards securing the sale of treasury stock. When no date is specified for doing things
required in a contract, it has often been held that they must be done within a reasonable time,
to be determined by the circumstances. It is not probable that it was the intention of any of the
parties that plaintiff and Arkell should do all in their power to advance the interests of the
company and sell stock for a lifetime before they would become entitled to receive the
number of shares agreed to be delivered to them. What, then, were the circumstances and
conditions existing at the time the contract was made which led to its execution, or which the
parties had in contemplation, from which the fulfillment of its terms and a reasonable time for
its completion may be determined? Did appellants by the fulfillment of the conditions of the
agreement by plaintiff and Arkell receive all the benefits which by a fair construction of the
contract it may be presumed they expected to obtain under its terms? May it not be fairly
inferred that by the agreement plaintiff and Arkell were to aid in every way they could
towards the sale of any treasury stock then offered or intended to be sold by the company?
What was necessary to be done under this agreement which would aid in fulfilling the
contract which appellants had made with the Selby Consolidated Mining and Milling
Company? They had undertaken to act as agents and promoters, and were to have one-third of
all stock of the company when increased to 1,000,000 shares, subject to the requirement that
they would raise through the sale of treasury stock or otherwise the sum of $1,500, while by a
more detailed agreement dated the same day, August 21, 1906, but in fact executed some days
later, they were required to raise the sum of $15,000 by the sale of stock or otherwise for the
company for its use in beginning operations for the development of its mines. As the contract
for the services of plaintiff and Arkell was with the appellants, and not with the corporation,
the natural conclusion is that it was executed by them for the purpose of securing such
assistance and having such acts performed by plaintiff and Arkell as would fulfill or aid in
the completion of their agreement with the company.
formed by plaintiff and Arkell as would fulfill or aid in the completion of their agreement
with the company.
It is clearly shown that there were two considerations upon the part of plaintiff and Arkell
for the making of the agreement, of which the appellants received the benefit: That in
addition to the services to be performed the $500 was paid to, and received by, appellants as
an inducement for them to make the agreement; and that if the money had not been paid they
never would have executed it. This appears from their own testimony; and, although they
claim the money was only a loan, their own statements do not contradict the fact that the
money would not have been paid if they had not made the agreement. The negotiations of the
parties and the indorsement on the back of the note to the effect that it would become due in
thirty days, if the stock of the Selby Company was not increased, the fact that plaintiff and
Arkell were seeking to arrange for the money only in connection with securing the agreement,
show beyond doubt, and regardless of any discrepancies in the testimony, that the money,
whether paid with the understanding that the note was to be canceled, if the appellants
consummated their agreement and obtained their stock from the Selby Company, as testified
to by respondent, or whether advanced as a loan, as claimed by appellants, was paid only in
consideration of, and as part consideration for, the execution of the contract.
In Schroeder v. Gemeinder, 10 Nev. 364, this court quoted from a Maryland case: Where
a contract consists of several distinct and separate stipulations on one side, and a legal
consideration is stated on the other, it must be considered that the entire contract was in the
contemplation of the parties in each particular stipulation, and formed one of the inducements
therefor, and no one stipulation can be supposed to result from or compensate for the
consideration or any portion of it, exclusive of the other stipulations, unless the parties have
expressly so declared.' (Stansbury v. Fringer, 11 Gill & J. Md. 152.)
Under the rule that the date or consideration of an agreement may be explained or proved
by parol, was it not proper to show that the note was given as security for money to be repaid
only in case the appellants failed in their option and agreement with the Selby Company,
so that they could not fulfill their contract with plaintiff and Arkell, and that otherwise the
note was to be canceled, on the same theory that a deed absolute in its terms may be
shown to have been given as a mortgage?
repaid only in case the appellants failed in their option and agreement with the Selby
Company, so that they could not fulfill their contract with plaintiff and Arkell, and that
otherwise the note was to be canceled, on the same theory that a deed absolute in its terms
may be shown to have been given as a mortgage? Appellants were greatly in need of the
money, and testified that it was necessary to obtain it to preserve their business existence; and
it may be presumed that in order to obtain funds, even as a loan, they were willing to make
the contract with Turley and Arkell in providing that they should use their best energies to
secure the sale of treasury stock, without specifying any time or number of shares. It is
evident that the parties had in mind and intended that effort should be made to sell the
amount of treasury stock offered or which would be offered by the company about that time,
which was 100,000 shares. Therefore, considering that the law allowed a reasonable period
for doing what they had agreed to do, may it not be said that plaintiff and Arkell performed
the conditions of the agreement on their part, if they proceeded with reasonable dispatch to
secure purchasers for the amount of treasury stock offered for sale? The plaintiff and Arkell
proceeded promptly, and between them soon, and certainly within a reasonable time, had on
the list which had been furnished them by appellants' subscribers for most of the 100,000
shares, so that notice was published in the paper that all of the treasury stock offered had been
sold. It would seem that they proceeded with diligence until they secured subscriptions which
would yield enough money to meet the obligation of the appellants to raise at least $15,000
for the Selby Company, in consideration of their acting as promoters and of receiving
one-third of the entire capital stock of that company, as increased, and that plaintiff and
Arkell, with the expectation of receiving under the agreement one-quarter of the one-third of
the stock which appellants were to receive, had done more towards fulfilling appellants'
agreement with the company that they had directly themselves, although they could still retain
three-quarters of their stock, or three times as much as the plaintiff and Arkell together, and
were receiving the greater benefit. In allowing plaintiff and Arkell to so proceed without
objection, in accepting the benefits of the sales they had made which met their own
obligation to the company, in giving Arkell his stock, and in leading and allowing plaintiff
to believe that his shares had been placed for him in the bank, appellants became bound,
and the district court was justified in finding that plaintiff and Arkell had performed the
conditions specified or required on their part in the agreement.
proceed without objection, in accepting the benefits of the sales they had made which met
their own obligation to the company, in giving Arkell his stock, and in leading and allowing
plaintiff to believe that his shares had been placed for him in the bank, appellants became
bound, and the district court was justified in finding that plaintiff and Arkell had performed
the conditions specified or required on their part in the agreement.
Rejecting as surplusage, or as too indefinite to be effective, the language in the agreement
relative to the assistance of Turley and Arkell, excepting that providing that they should use
their best energies towards securing the sale of treasury stock, and considering that their
agreement in this respect was performed to the extent of securing subscribers for any shares
contemplated to be sold at that time, and that by these sales appellants were relieved from the
obligation and forfeiture of their contract with the company, it would have made little
difference, if, as now claimed by appellants, plaintiff was not as successful and active in
making sales as Arkell, when it does not appear that this could have resulted in any injury to
appellants. It is argued that the agreement on the part of plaintiff and Arkell was joint, and
that either could perform it so as to satisfy any demand of the appellants. This may be true so
far as it regards the selling of any treasury stock offered by the company, especially if either
obtained subscribers for all of it, which would fulfill their joint obligation, although it must
be admitted that one person cannot ordinarily render the service agreed to be performed by
two, when not limited to some particular act.
Where there are no express words to render joint and several the obligation undertaken by
two, it is presumably a joint liability. (Elliott v. Bell, 37 W. Va. 834, 17 S. E. 399.) In
Alpaugh v. Wood, 45 N. J. Eq. 153, 16 Atl. 676, 53 N. J. Law, 638, 23 Atl. 261, it was held
that when a contract is made between two or more persons the general presumption arises that
it is a joint and not a several obligation, and this presumption is strengthened when the
promisors undertake to accomplish together a single result, that such presumption is not
defeated by the fact that each is to contribute separately to the entire result for which they
bargain, and is entitled to a distinct interest in the contract, for which he would have a
separate remedy.
to the entire result for which they bargain, and is entitled to a distinct interest in the contract,
for which he would have a separate remedy.
In German Sav. Inst. v. De La Vergne R. M. Co., 70 Fed. 146, 17 C. C. A. 34, it was said,
over the citation of numerous cases, that one party cannot, while he retains the benefit of a
substantial performance, totally defeat an action for the price which he has agreed to pay, or
for specific performance on his part, on the ground that the plaintiff has not completed the
contract. He cannot at the same time affirm the contract by retaining its benefits and rescind it
by repudiating its burdens. The reason for this principle is that the retention of the benefits of
a substantial performance after a default is utterly inconsistent with the position that the
default has released the party who has received these benefits, so that he is not bound to
perform his part of the contract.
The tenth finding, that the stock at and before the commencement of the suit had no
market value, that the value thereof depended upon the operation and development of the
property owned by the company, and could not be exactly shown or definitely ascertained, is
not without support in the evidence. A contract had just been made for the increase of the
stock; the original owners had agreed with appellants, and the latter with plaintiff and Arkell,
that it should be pooled; it was not listed, and was not regularly sold on the market. The
treasury shares, which were subscribed at 20 cents each largely through the special efforts of
plaintiff and Arkell, and the allotment for 33,000 made later, amounted to little more than
one-tenth of the whole. We do not think that sales for this limited amount of the treasury
stock induced by such methods as adding to the head of the list fictitious subscriptions and
donations to prominent people would fix a market value, when the other stock was in pool
and withheld apparently for the purpose of preventing it from having a free market value.
People often buy treasury shares in a mining company with promising property when they
would not purchase the other stock, because the money they pay goes to the corporation,
enhances the value of the stock purchased, and may enable the company to find valuable ore.
The eleventh finding, that by reason of the performance by plaintiff and Arkell of their part
of the contract the means were obtained by which the Selby Company was enabled to work
and develop the mines and render the stock valuable, was unnecessary to sustain the
judgment, but appears to be amply proven. Following the rule that it is peculiarly within the
province of the trial court to determine controverted questions of fact, and that this court will
not interfere with such determination where there is substantial conflict in the evidence, it has
not been necessary to review or consider at length the contradictory testimony with which the
record abounds. It is sufficient to say that there is enough evidence on behalf of the plaintiff
to support the findings attacked. In the course of a carefully prepared decision the district
court said:
The question has been discussed at length in the briefs of the respective parties as to
whether a contract for the sale or delivery of personal property consisting of stock can be
enforced by specific performance; and many authorities have been cited on the subject.
Waterman on Specific Performance of Contracts, sec. 19, on the question of where the
contract is for the sale of stock, states as follows: A contract for the sale of stock which can
be obtained in the market will not in general be specifically enforced, the buyer or seller
having a sufficient remedy at law in the market price of such stock.'
* * * * * * * * * *
From the authorities referred to, and other authorities which I have examined, there seems
to be no question but what the jurisdiction of the court to decree specific performance in
reference to real or personal property depends upon whether or not the party seeking equitable
relief cannot be fully compensated by an award of damages at law. And it further appears
from the authorities that the general rule is that a specific performance will not be enforced of
an agreement for the transfer of stock, on the principle that damages are a sufficient
satisfaction; but that this rule applies more particularly to public stocks such as are commonly
bought and sold in the market, and does not apply to stocks where the shares are limited in
number and cannot always be had in the market.
the shares are limited in number and cannot always be had in the market.
In the case of Duff v. Fisher, 15 Cal. 375, the court says that: The jurisdiction of a court
of equity to decree specific performance does not turn at all upon the question whether the
contract relates to real or personal property, but altogether upon the question whether the
breach complained of can be adequately compensated in damages. If it can, the plaintiff's
remedy is at law only; if not, he may go into a court of equity, which will grant full redress by
compelling specific performance upon the part of the defendant.'
From the authorities where the question of specific performance of an agreement for the
sale of mining stock was under consideration by the courts, it appears to have been held that
owing to the fluctuating and uncertain value of mining stocks it was often difficult to
substantiate by competent evidence the market value thereof, and, owing to the risk of
personal responsibility of individuals and corporations, that the courts should be liberal in
extending full, adequate, and complete relief by decree of specific performance; the courts
holding that there is a wide distinction between the shares of stock of a mining company, and
public stocks which have been placed for sale upon stock boards and are a subject of
everyday sale in the financial markets of the country.
Upon examination of the complaint, I am convinced that the complaint states sufficient
facts to bring the case within the exception to the general rule as to stocks, which, if proven,
would entitle the plaintiff to a decree of specific performance for the sale of mining stock,
under the doctrine stated by the authorities.
It is said by counsel for defense that the said contract cannot be enforced on the grounds
of lack of mutuality.
Upon an examination of the contract, it appears that the services which were to be
performed by the plaintiff and Arkell are uncertain in their character.
Reading from the contract in regard to the services to be performed, it is stated as
follows: It is further understood and agreed that said W. E. Turley and Edwin Arkell will to
the best of their ability use their best energies toward the securing of the sale of the treasury
stock in said company, and do all in their power to assist in advancing the interests of
such company.'
securing of the sale of the treasury stock in said company, and do all in their power to assist
in advancing the interests of such company.'
From this language, it cannot be ascertained the amount or particular character of the
services to be rendered, nor the time in which they were to be rendered.
From the authorities which I have examined in reference to the mutuality of contracts, I
am satisfied that the conditions in said contract in reference to the services to be performed
could not be enforced by a decree of specific performance. But has not the plaintiff, under the
testimony in this case, performed services, and have not those services been accepted as
complete by the defendants in accepting the services of the said Arkell and delivering to him
the amount of stock as provided in the contract?
The services to be rendered were not separate or distinct services to be performed by
plaintiff and Arkell, but were to be the joint efforts of those parties. And have not the
defendants, by accepting the services of Arkell and settling with him, also accepted the
services of the plaintiff, and construed the contract as to what services were to be
performed?
Aside from any question of procedure, or as to whether a different rule might prevail in an
action for specific performance, which, like other equitable ones, is designed to grant relief
when there is no adequate remedy at law, and an application for a writ of mandamus, which is
a statutory proceeding to compel the performance of an act which the law specially enjoins as
a duty resulting from an office, trust or station, available when there is no other sufficient
remedy, the facts in this case are readily distinguishable from the cases in which this court
held that mandamus would not lie to compel the delivery of stock, because there it was not
shown that the aggrieved party could not be amply compensated in an action for damages for
the value of the stock. (State v. Guerrero, 12 Nev. 106; State v. Jumbo Extension M. Co., 30
Nev. 192.)
As indicated by the text and citations at 10 Cyc. 605, many modern decisions hold that equity
will under proper conditions compel a corporation to transfer on its books shares to the owner
of the equitable title.
In a note in 12 L. R. A., at page 776, it is stated that, where monetary damages can afford
no adequate compensation, equity will enforce performance of the contract for the transfer of
corporate stock; and in the note reviewing many cases in 50 L. R. A., at pages 501 and 503
and following, it is said: The general rule in this country is that a contract for the sale of
corporate stock will not be specifically enforced, where the stock can be purchased on the
market and its value can be readily ascertained, unless there is some special reason for the
purchaser's obtaining the same; but where the shares are limited and not easily obtainable, or
where their value cannot be readily ascertained, the contract will be enforced. The tendency
seems to be towards a more liberal allowance of the remedy. In England it seems to be
allowed almost as a matter of course, except in case of government stocks, in which case it
has generally been refused.
In the case of Eckstein v. Downing, 64 N. H. 248, 9 Atl. 626, 10 Am St. Rep. 404, it was
stated: The general rule in regard to contracts for the sale of stocks may be stated to be that
specific performance will not be decreed, because such contracts are capable of exact
compensation in damages. (2 Story, Eq. Jur. 724.) This rule is especially true of contracts for
the sale of government stocks, or bonds, which are always readily purchasable at their market
value. Specific performance of contracts for the sale of stock in purely private corporations,
such as banking, mining, manufacturing and commercial companies, has sometimes been
decreed upon the ground that damages at law do not furnish an adequate remedy for the
breach. In Cushman v. Thayer Manufacturing Company, 76 N. Y. 368, 32 Am. Rep. 315,
stress was put upon the fact that the controlling motive of the purchaser may have been that
the real worth of the stock may consist in the prospective rise which he anticipates might
follow, or that his desire was to hold the stock as a permanent investment. * * * Specific
performance of contracts in regard to personal property is decreed only where the vendor
stands in need of the specific relief which a court of equity only can give. (Kauffman's
Appeal, 55 Pa. 383; City of Memphis v. Brown, 20 Wall. 289, 22 L. Ed. 264.) Indeed, in this
respect there is no distinction between real estate and personal estate.
there is no distinction between real estate and personal estate. (2 Story Eq. Jur. 717.) Hence it
is a well-established rule that relief by a decree for specific performance of a contract is not a
matter of right in either party, but rests in the discretion of the court. (Pickering v. Pickering,
38 N. H. 400; Eastman v. Plumer, 46 N. H. 464; Willard v. Tayloe, 8 Wall. 557, 19 L. Ed.
501.) The discretion to be exercised, however, is not of an arbitrary character, but, in the
language of Story, that sound and reasonable discretion which governs itself so far as it may
by general rules and principles, and at the same time grants or withholds relief, according to
the circumstances of each particular case, when these rules and principles will not furnish any
exact measure of justice between the parties. On this account it is not possible to lay down
rules or principles which are of absolute obligation and authority in all cases.' (2 Story, Eq.
Jur. 742.)
In Northern Trust Co. v. Markell, 61 Minn. 271, 63 N. W. 735, it is said: As a general
rule, the specific performance of contracts relating to chattels will be denied, because the law
affords adequate and complete redress in an action for damages. There are exceptions to this
rule, of course. For instance, whenever the loss by reason of a violation of the contract cannot
be correctly estimated in damages, or whenever, from the nature of the contract, a specific
performance is indispensable to justice, a court of equity will not be deterred from interfering
because the contract relates to personal property. And it has been held that specific
performance may be decreed where the shares are limited, having no fixed marketable value,
are not quoted in the commercial reports, nor selling upon the market, because, it was said, a
judgment for damages at law might not afford adequate relief.
Again, in a decision rendered last year, Hills v. McMunn, 232 Ill, 488, 83 N. E. 963, it is
stated: It is also contended that the case made by the bill and proofs shows no grounds for
the interposition of a court of equity, and that if appellant has any remedy the law will afford
adequate relief. The stock of the United States Steel Piling Company is not shown to have
had any market value or to have ever been on the market for sale.
market for sale. Whatever value it has is dependent upon the value of the patent owned by the
corporation. It is said in Cook on Corporations, 338: If the stock contracted to be sold is
easily obtained in the market and there are no particular reasons why the vendee should have
the particular stock contracted for, he is left to his action for damages. But where the value of
the stock is not easily ascertainable or the the stock is not to be obtained readily elsewhere, or
there is some particular and reasonable cause for the vendee's requiring the stock contracted
to be delivered, a court of equity will decree a specific performance and compel the vendor to
deliver the stock.' We think the case one for the exercise of equitable jurisdiction, and that the
court erred in dismissing the bill.
In a late Oregon case, Deitz v. Stephenson, 95 Pac. 803, it was said: That a contract for
the sale of shares of private corporation may, under certain circumstances, be the subject of
equitable jurisdiction for its specific performance, is well established. This occurs where the
value of the stock is not easily ascertainable, or the stock is not to be obtained readily
elsewhere, or there is some particular and reasonable cause for the vendee's requiring the
stock contracted to be delivered. * * *
In New York it was held that a court of equity had jurisdiction to decree the specific
performance of a contract concerning chattel property, and that it was proper to do so where
the plaintiff's case is good and the remedy at law is inadequate, or its enforcement attended
with doubt or difficulty. (Johnson v. Brooks, 93 N. Y. 339.)
The Supreme Court of Missouri decided in 1907 that the specific performance of a
contract to deliver corporate stock will lie where its pecuniary value is not probable, and in
consequence one may not have adequate damages at law. (Baumhoff v. St. Louis Co., 205
Mo. 248, 104 S. W. 5, 120 Am. St. Rep. 745.)
In White v. Schuyler, 31 How. Prac. 38, it is held that an agreement for the delivery of
stock will be specifically enforced where it is of uncertain value and sales infrequent, and it is
difficult, if not impossible, to do justice by awarding damages.
In Manton v. Ray, 18 R. I. 672, 29 Atl. 998, 49 Am. St. Rep. 811, the court enforced a
contract for the purchase of stock where its value was uncertain and not easily ascertainable.
Bargains for the transfer of stock have been enforced in numerous cases in England. The
court required a contract for the sale of government stock to be executed (Doloret v.
Rothschild, 1 Sim. & S. 590), and an agreement for the transfer of railway shares was
enforced in Duncuft v. Albrecht, 12 Sim. 189, 199. The chancellor distinguished between 3
per cents or other stock, which could always be had on the market, and railway shares of a
particular description which were limited in number and could not always be found on the
market.
In Frue v. Houghton, 6 Colo. 318, it was held that the well-settled authority of courts to
decree specific performance of agreements does not depend upon any distinction between real
and personal estate, but the ground of jurisdiction is that the party seeking equitable relief
cannot be fully compensated by an award of damages, and that an agreement to transfer stock
in a mining company, where the shares are limited and have no fixed or marketable value and
are not quoted in the commercial reports nor selling upon the stock boards, may be enforced.
Other cases supporting the principle enunciated are: Goodwin Gas Stove Company's
Appeal, 117 Pa. 514, 12 Atl. 736, 2 Am. St. Rep. 696; Krohn v. Williamson, 62 Fed. 869,
affirmed in 66 Fed. 655, 13 C. C. A. 668; Treasurer v. Commercial Coal M. Co., 23 Cal.
390; 3 Parsons on Contracts (9th ed.) pp. 369, 370; Selover v. Isle H. L. Co., 91 Minn. 451,
98 N. W. 344.
In Ames v. Whitbeck, 179 Ill. 458, 53 N. E. 969, it was held that a contract by a corporation
to transfer its stock in consideration of services to be performed by the vendee would be
specifically enforced where the corporation is insolvent.
In the note in 50 L. R. A. (p. 504) it is said that the insolvency of the vendor is a good
ground for holding the remedy at law inadequate. (Draper v. Stone, 71 Me. 175.)
Appellants earnestly contend that as the agreement was not enforceable against the
plaintiff at the time it was made, because the courts will not compel a specific performance of
services agreed to be rendered, it is not now binding upon appellants, as it was lacking in
mutuality at its inception so far as the remedy is concerned, and therefore is not
specifically enforceable by the parties on either side.
services agreed to be rendered, it is not now binding upon appellants, as it was lacking in
mutuality at its inception so far as the remedy is concerned, and therefore is not specifically
enforceable by the parties on either side. They say that, as the contract was wanting in
mutuality both as to the obligation and the remedy, it could not have been enforced against
the plaintiff by the defendants. Over the citation of a number of cases, they quote: The rule
is fundamental that a contract will not be specifically enforced, unless it is obligatory on both
parties, nor unless both parties, at the time it is executed, have the right to resort to equity for
its specific performance.'
It would seem that some of the courts, instead of looking carefully for the reason for any
such alleged rule, have sometimes used expressions into which they may have been led by the
loose or somewhat indefinite language in the following section 286 (3d ed. sec. 216) of Fry
on Specific Performance: A contract, to be specifically enforced by the court, must be
mutual; that is to say, such that it might, at the time it was entered into, have been enforced by
either of the parties against the other of them. Whenever, therefore, whether from personal
incapacity, the nature of the contract, or any other cause, the contract is incapable of being
enforced against one party, that party is equally incapable of enforcing it against the other,
though its execution in the latter way might itself be free from the difficulty attending its
execution in the former.
On the other hand, there are so many cases in which the courts have taken an opposite
view or have failed to follow this assorted rule, that in relation to several classes of actions it
may be deemed an exception rather than a rule. As held by different decisions, it is not justly
applicable to a case like the present one, where the contract has been executed on the part of
the plaintiff. Fry wrote his text-book in England over sixty years ago, and neither the section
quoted nor the cases added in the foot-note by the editor would indicate that he had reference
to shares in private corporations, in regard to which the law has grown up mostly in this
country since that time.
There is no good reason appearing for requiring that the contract be specifically
enforceable from its inception by both parties to enable it to be enforced by either, and if there
is an agreement by one of the parties to do something which could not be compelled in an
action for specific performance, but he has, in fact, completed his part of the contract, leaving
only unperformed the promises of the opposing party to do the act which equity would
require to be done, if the enforceability of the agreement had been mutual from the beginning,
then the delinquent ought to be compelled to perform his part.
The plaintiff's right to recover ought to depend upon the equities in his favor at the time of
the breach of the agreement or of commencement of suit, rather than upon some verbal
distinction relating to the terms of the contract as originally drawn. If one has actually
received a valid consideration for his agreement to convey stock, it would seem that in justice
the other party should be allowed to enforce the transfer to him when he cannot be adequately
compensated in damages, as readily whether that consideration was services performed, or
money paid, or an agreement to convey real or personal property, which also would have been
specifically enforceable under the terms of the agreement. Certainly, if one of the parties has
fulfilled his part of the contract by the payment of money or the rendition of services, he
should be as much entitled to relief as if he had conveyed or tendered property.
Over cases cited in the foot-note it is said, at page 234 of Pomeroy on Contracts: The
mutuality of the equitable remedy, on the other hand, does not belong to the essence of the
contract. An agreement may be perfect in its obligation upon both the parties, and yet be of
such a nature that one of them only could be compelled, by a decree of the court, to
specifically perform. As the absence of this kind of mutuality does not render the agreement
any less obligatory, it would seem on principle that if the quality, originally lacking, should
be subsequently supplied, in any practical manner, before the commencement of the suit, or
even, perhaps, before the hearing, the objection would then be removed, and a specific
enforcement would be thus made possible. For example, if the party who had undertaken to
do acts, the performance of which could not be specifically compelledsuch as the
rendering of personal servicesshould fully perform all that he had agreed to do, and
should then seek to enforce a specific execution of the contract by the other, it would
seem, on principle, that all obstacle to granting the relief would have been removed.
example, if the party who had undertaken to do acts, the performance of which could not be
specifically compelledsuch as the rendering of personal servicesshould fully perform all
that he had agreed to do, and should then seek to enforce a specific execution of the contract
by the other, it would seem, on principle, that all obstacle to granting the relief would have
been removed. * * * To the doctrine of mutuality as stated and discussed in the foregoing
paragraphs, there are limitations and exceptions of great importance, which very much
narrow its application. * * *
In King v. Gildersleeve, 79 Cal. 510, 21 Pac. 963, it was held that the rule is not
applicable where the personal services have been fully or substantially performed, or where
full performance has been waived. (Ballard v. Carr, 48 Cal. 79; Howard v. Throckmorton, 48
Cal. 489.)
The same court used statements apparently contradictory in Cooper v. Pena, 21 Cal. 411,
but the case may be distinguished in regard to the facts; for in the earlier one the services had
not been performed, and it was held that the court could not compel their performance by the
plaintiff. There is more conflict in the language used in the varying opinions than in the result
of the decisions, where they bear upon similar facts.
In Oswald v. Nehls, 233 Ill. 445, 84 N. E. 622, it is stated that: It is next insisted by
appellants that the contract in question is wanting in mutuality, and for that reason a specific
performance should be denied. This contention cannot be sustained. The general rule is that,
before specific performance of a contract will be decreed, it must appear that there was
mutuality, both in the obligation and the remedy, under the contract, as long as the contract
remains executory on both sides. (Waterman on Specif. Per. 196; Page on Contracts 1621;
Lancaster v. Roberts, 144 Ill. 213, 33 N. E. 27; Welty v. Jacobs, 171 Ill. 624, 49 N. E. 723, 40
L. R. A. 98; Bauer v. Lumaghi Coal Co., 209 Ill. 316, 70 N. E. 634.) But this rule has no
application to contracts in which the provisions which could not be enforced specifically have
been fully performed. Contracts for personal care and attention or personal services cannot
usually be enforced. However, when personal care and attention or personal services have
been fully performed, and the circumstances are such that to deny specific performance
would leave the party with the injury that could not be adequately compensated in
damages, equity will grant a specific performance of the remaining provisions of the
contract.
fully performed, and the circumstances are such that to deny specific performance would
leave the party with the injury that could not be adequately compensated in damages, equity
will grant a specific performance of the remaining provisions of the contract. (Page on
Contracts, 1623, and cases therein cited.)
In Mississippi G. Co. v. Franzen, 143 Fed. 507, 74 C. C. A. 135, the court held that the
doctrine of non-enforceability in equity of a contract for lack of mutuality had no application
to an executed contract, and cited Green v. Richards, 23 N. J. Eq. 35; Hulse v. Bonsack M.
Co., 65 Fed. 864, 13 C. C. A. 180; Grove v. Hodge, 55 Pa. 516. The same doctrine was
upheld in Railway Co. v. Cox, 76 Iowa, 306, 41 N. W. 24, 14 Am. St. Rep. 216.
We agree with the following views of the Supreme Court of Kansas as expressed in
Water-Supply Co. v. Root, 56 Kan. 197, 42 Pac. 719: It is claimed that such contracts only as
might, at the time they were entered into, have been enforced specifically by either party
against the other, can be specifically enforced after performance by one party. It is argued that
this was a contract for the services of Root & Campbell, as attorneys; * * * that in the very
nature of things the contract could not be specifically enforced against them; that, inasmuch
as Felitz and wife could never have had a decree compelling Root & Campbell to perform
their part of the contract, there was a lack of mutuality, and consequently no specific
performance can be decreed in favor of the other party. We recognize the soundness of this
contention to the extent that a decree requiring specific performance by the attorneys could
not, consistently with established principles, be made, or properly enforced, if made. The
doctrine that there must be mutuality in the contract, and that it must be capable of
enforcement at the suit of either party at the time it was entered into, so broadly contended for
by counsel for the plaintiff in error, and stated in equally broad terms in Fry on Specific
Performance, 443, is subject to so many exceptions and such important qualifications that it is
doubtful whether a court would ever be warranted in declaring the law so broadly. There are
many contracts, originally unilateral, capable of enforcement, when accepted.
tracts, originally unilateral, capable of enforcement, when accepted. * * * For a discussion of
the limitations upon the doctrine of mutuality, see Pomeroy on the Specific Performance of
Contracts, 167, et seq. Upon reason, we are wholly unable to perceive any valid ground for
saying that a contract to convey lands, in consideration of personal services thereafter to be
performed, is less binding and less capable of specific performance after the services are in
fact rendered than a contract for the conveyance of land in consideration of the payment of
money. Personal services actually rendered are as good a consideration as money paid, and
where the party seeking enforcement of the contract is no longer in a position to escape any
part of his obligation, having fully performed it, any want of mutuality which may have
attended the contract when entered into has passed away, and the power of the court is ample
to conveyance. The equity of the person who has done all he agreed to do is as complete and
full as it could possibly be in any case. This view is supported by sufficient authority, as well
as by reason. In the case of Howard v. Throckmorton, 48 Cal. 482, it was held that although,
when an attorney contracts to perform legal services for a client in consideration of receiving
a portion of the property about which the litigation is to be carried on, he cannot maintain an
action for specific performance while the contract remains unperformed on his part, yet, if he
can show a substantial performance on his part, he is as fully entitled to maintain such action
as he would be if the agreement on his part had been for the payment of money.' See, also,
Ballard v. Carr, 48 Cal. 74; King v. Gildersleeve, 79 Cal. 504, 21 Pac. 961; Schroeder v.
Gemeinder, 10 Nev. 355; Perkins v. Hadsell, 50 Ill. 216.
In Welch v. Whelpley, 62 Mich. 15, 28 N. W. 744, 4 Am. St. Rep. 810, a parol contract by
which a father agreed to give eighty acres of land near his residence to his daughter and
son-in-law and to help them improve the same, in consideration of their making their home
there, was enforced in equity, and it was held that, although the agreement was somewhat
vague as to the time the residence on the land was to continue and the extent of the
improvements to be made, and, if unperformed, difficult of adjustment, it was not
altogether indefinite, and must be considered in the light of ordinary conduct; that it did
not require residence for life or for any fixed period, if they made their home on the place
for the time, at least, without contemplating changing; that the contract was
substantially performed when they in good faith fixed their home on the land; that, the
legal remedy being inadequate, a conveyance would be enforced; that the objection of
want of mutuality would not avail, if the part of the contract difficult of enforcement had
been performed.
if unperformed, difficult of adjustment, it was not altogether indefinite, and must be
considered in the light of ordinary conduct; that it did not require residence for life or for any
fixed period, if they made their home on the place for the time, at least, without
contemplating changing; that the contract was substantially performed when they in good
faith fixed their home on the land; that, the legal remedy being inadequate, a conveyance
would be enforced; that the objection of want of mutuality would not avail, if the part of the
contract difficult of enforcement had been performed.
In Allen v. Cerro Gordo County, 40 Iowa, 349, a conveyance was compelled of an interest
in swamp lands which the plaintiff had secured from the government for the county in
pursuance of a contingent agreement with the supervisors, and it was held that, after
accepting the benefit of his services in obtaining the land, the plea that he had made
misrepresentations as to his ability to perform them would not avail in a defense in an action
for specific performance of the contract for payment of the services after they had been
rendered.
Chief Justice Hawley, speaking for the court in Schroeder v. Gemeinder, 10 Nev. 363,
said: It is next insisted that a court of equity should not decree a specific performance,
because the obligation of the parties is not mutual, and several authorities have been cited to
the effect that, when the contract is of such a nature that it cannot be specifically enforced as
to one of the parties, equity will not enforce it against the other. The case of Parkhurst v. Van
Cortland was reversed on appeal in the court of errors. (14 Johns. 15, 7 Am. Dec. 427.) * * *
There are many exceptions to the general rule stated in said case, and, without attempting to
review the authorities relied upon by respondent, we think it may now be considered as well
settled by all or nearly all the modern authorities that a court of equity, in actions for specific
performance of optional contracts and covenants to lease or convey lands, will enforce the
covenant. * * *
Among the large number of cases cited in the elaborate briefs of the appellants many
would be applicable if plaintiff and Arkell had not performed their part of the contract, as
appellants contend, for the acts required of them were of such a nature that they could not
be enforced, and while they remained unperformed the court could not compel
performance by appellants; but under the view which we have taken, that it was within
the province of the district court under the conflicting evidence to find that the plaintiff
and Arkell had fulfilled their part of the agreement, and that the stock had no market or
ascertainable value from which the damage sustained by plaintiff could be adequately
determined, it was proper to make the decree requiring appellants to transfer the stock to
plaintiff as they had agreed.
a nature that they could not be enforced, and while they remained unperformed the court
could not compel performance by appellants; but under the view which we have taken, that it
was within the province of the district court under the conflicting evidence to find that the
plaintiff and Arkell had fulfilled their part of the agreement, and that the stock had no market
or ascertainable value from which the damage sustained by plaintiff could be adequately
determined, it was proper to make the decree requiring appellants to transfer the stock to
plaintiff as they had agreed.
In the minor specifications of error we do not find anything prejudicial to appellants. It is
claimed that, under plaintiff's theory that the $500 note was not to be paid if the appellants
completed their agreement with the Selby Company so they would obtain and furnish to
plaintiff and Arkell their portion of the stock, it was necessary for the plaintiff to surrender
the note for cancelation. No such exception was taken in the lower court, and, there being no
specification in this regard, the question is not one to be seriously considered on appeal.
Under the plaintiff's testimony that the note was not to be paid, if the appellants fulfilled their
agreement with the Selby Company and with plaintiff and Arkell, it could not be collected
against appellants, even in the hands of an innocent assignee, because it is long past due. The
note was in fact filed during the trial, and is in the record before us, with the indorsement of
the clerk and the judge, and, if its cancelation were desired, an order canceling it should have
been demanded.
In Schroeder v. Gemeinder, 10 Nev. 368, it was said: Perhaps the respondent might have
objected against proceeding with the trial until the money was paid into court. No preliminary
objections, however, were made, and this objection cannot now be urged against the power of
the court to order a decree. Courts of equity ought to determine the rights of the parties
according to the broad principles of justice and fair dealing, and not by the technical and
refined distinctions of the law. A decree should not be granted if there has been gross laches
or neglect upon the part of those seeking the enforcement of the covenant. But the facts of
this case do not justify the refusal of the decree because the money was not brought into
court."
not justify the refusal of the decree because the money was not brought into court.
The rulings of the court appertaining to the introduction of evidence, to which objections
not always specific were taken, do not appear to have resulted in any injury to appellants,
especially so, as the case was tried without a jury.
If the question asked Thomas on cross-examination as to the number of shares he still held
was not strictly within the scope of his direct examination, it appeared without this testimony
that he previously had more than enough to enable him to transfer to plaintiff the number due
him, and without further showing the presumption arose that he continued to hold them. The
same conclusion and result would have been reached whether he was allowed to answer the
question or not.
Nor is the objection that the action was premature because the stock was in pool well
founded. The decree enjoins the custodian of the pooled stock and the company from
delivering to appellants the shares to which plaintiff is entitled, and directs that they be
transferred to him. The time during which the pool was to run has now expired, although they
repudiated the contract, and suit was brought during the period of the pool. Appellants cannot
be injured by the delivery of the stock to plaintiff after that period, as will occur by enforcing
the decree at this time without any modification.
As respondent prevails for other reasons, it will not be necessary to consider the point
presented by the supplemental brief in which it is urged that appellants were trustees as to
respondents' part of the stock.
The judgment is affirmed.
____________
31 Nev. 209, 209 (1909) State v. Thompson
[No. 1782]
THE STATE OF NEVADA, Respondent, v. JAMES THOMPSON and
W. M. McCABE, Appellants.
1. Criminal LawAttempt to Commit Crime.
An attempt to commit a crime contains three elementsthe intent, the performance of some act toward
its commission, and failure of consummation.
2. Criminal LawIntentEvidence.
Where a specific intent is a material element of an offense, it need not be proved by positive or direct
evidence, but may be inferred from the conduct of the parties and other facts and circumstances disclosed
by the evidence.
3. LarcenyAttempt to StealEvidence.
Evidence held to warrant a conviction of attempting to commit grand larceny in feloniously attempting to
sever gold-bearing ore from the realty of a mining claim.
4. Criminal LawAppealEvidence.
A conviction will not be disturbed on appeal where the evidence is conflicting and there is substantial
evidence to support it.
Norcross, C. J., dissenting.
Appeal from the District Court of the First Judicial district of the State of Nevada,
James Thompson and another were convicted of an attempt to commit grand larceny, and
they appeal. Affirmed.
Frank J. Hangs, for Appellants:
I. An attempt to commit a crime must include some overt act or the intent must be proved
beyond a reasonable doubt. This court has already passed upon what is necessary in such a
case. In the case of State of Nevada v. Lung, 21 Nev. 209, this court entered into a full
discussion of what constituted an attempt and cited a number of authorities to support its
view of the matter. In addition to the authorities there cited the court's attention is called to
the following: State v. Angelo, 18 Nev. 425; State v. Taylor, 84 Pac. 82; People v. Fleming,
29 Pac. 647; People v. Mize, 22 Pac. 80; People v. Sites, 75 Cal. 570; People v. Murray, 14
Cal. 159; Hicks v. Comm., 19 Am. St. Rep. 891; Stabler v. Comm., 4 Am. Rep.
653; State v. Doran, 105 Am. St. Rep. 278; People v. Young, 80 Am. St. Rep. 763; State v.
Mitchell, 93 Am. St. Rep. 582; State v. Gardner, 43 Am. St. Rep. 741; State v. Lee Kong, 29
Am. St. Rep. 165; People v. Jaffa, 9 L. R. A. 263; 1 Bishop, Crim. Law, secs. 731-736; 1
Wharton, Crim. Law, sec. 180. That the intent must be clearly proven admits of no doubt in
this state. (State v. Clifford, 14 Nev. 72; State v. Zichfeld, 23 Nev. 315; State v. Miller, 88
Am. St. Rep. 600, note on Intent; Carter v. State, 28 Am. St. Rep. 949.)
II. The court permitted improper and unfair cross-examination of the defendants. When a
defendant takes the stand he is subject to the same kind of a cross-examination as any other
witness. (State v. Cohn, 9 Nev. 179; State v. Huff, 11 Nev. 17; Buckley v. Buckley, 12 Nev.
424, 14 Nev. 262; People v. Miller, 33 Cal. 99; State v. Judiesch, 96 Iowa, 249; Gale v.
People, 26 Mich. 157; State v. Larch, 12 Or. 99; People v. O'Brien, 66 Cal. 602.)
R. C. Stoddard, Attorney-General, for Respondent:
I. When a person is engaged in doing an unlawful thing the intent to commit a crime may
be drawn from his unlawful acts, but if he is engaged in doing something absolutely lawful,
then a specific intent must be shown to have existed, in order to establish the crime. (State v.
McGinnis, 6 Nev. 109; U. S. v. Darton, 6 McLean, 46; U. S. v. Baldridge, 11 Fed. 552;
Hoover v. State, 59 Ala. 42; Mullen v. State, 82 Ala. 42; State v. Jones, 70 Iowa, 505; Comm.
v. Bull, 76 Ky. 656; State v. Goodenow, 65 Me. 30; State v. Kortgaard, 62 Minn. 17; State v.
Hall, 85 Mo. 669; People v. Herick, 13 Wend. 87; State v. Presnell, 34 N. C. 103; State v.
Smith, 93 N. C. 516.)
Defendants were jointly indicted, tried and convicted for the crime of attempt to commit
grand larceny. From the judgments and orders denying their motion for new trial, each has
appealed.
The indictment is in two counts. Conviction was had upon the second count, which
charges that defendants did wilfully, unlawfully and feloniously attempt to sever from the
realty of the Red King mining claim, * * * the property of the Florence-Goldfield Mining
Company, a corporation, the Goldfield Syndicate Mining Company, a corporation, Lew H.
Rogers, et al., * * * gold-bearing ore, then and there being of the value of $100, and to
convert the same into personal property, with the intent to feloniously steal, take and
carry away the same, and in pursuance of said attempt, they and each of them did then
and there enter the underground workings on said Red King mining claim, * * * but said
defendants, and each of them, failed in the perpetration of the said grand larceny."
the Red King mining claim, * * * the property of the Florence-Goldfield Mining Company, a
corporation, the Goldfield Syndicate Mining Company, a corporation, Lew H. Rogers, et al.,
* * * gold-bearing ore, then and there being of the value of $100, and to convert the same into
personal property, with the intent to feloniously steal, take and carry away the same, and in
pursuance of said attempt, they and each of them did then and there enter the underground
workings on said Red King mining claim, * * * but said defendants, and each of them, failed
in the perpetration of the said grand larceny.
Counsel for appellant relies mainly upon the contention that the evidence does not support
the verdict. There is little, if any, substantial conflict in the testimony. The defense did not
attempt to deny or dispute any of the evidence offered by the state, and the state offered no
evidence in rebuttal of the testimony offered by the defendants.
Lewis H. Rogers, a witness for the state, testified in reference to the underground workings
of the Red King mining claim, the property of the Florence-Goldfield Mining Company, and
upon which the Goldfield Syndicate Mining Company, the witness Rogers and others had
been operating a lease. He testified that, at the time of the alleged offense, on the 300-foot
level of said claim and lease, in a winze about thirty-five feet in depth, there was a streak of
ore about six inches wide that would run about two thousand dollars to the ton; that in a stope
about sixty feet long upon the 400-foot level, averaging from three to five feet wide of ore
that would run $110 to the ton, there was a streak of very rich ore about two inches wide, and
in places five or six inches wide, that would run about $10 a pound; that the ore in these
high-grade streaks was very hard, contained some bismuth, was quite black, some of it as
black as coal.
Mr. C. O. Lovell testified that he was a deputy sheriff; that on the night of the alleged
offense he was on the 300-foot level of the Rogers Syndicate lease, in a drift beyond the shaft,
and that one Thomas Ramsey was with him; that they were behind a bulkhead at the end of
the drift near the shaft, placed there for the purpose of preventing the debris falling into the
shaft; that about 9 o'clock in the evening, or shortly before, he saw the defendants
coming down the shaft from the Rosebud shaft; that he saw them first when they came to
a short crosscut that was probably thirty feet from the shaft; that they held the candle up
and peered down this crosscut, then they came to the station, and Mr.
into the shaft; that about 9 o'clock in the evening, or shortly before, he saw the defendants
coming down the shaft from the Rosebud shaft; that he saw them first when they came to a
short crosscut that was probably thirty feet from the shaft; that they held the candle up and
peered down this crosscut, then they came to the station, and Mr. Thompson climbed over the
bulkhead where the witness was, and Mr. McCabe remained at the station of the shaft; that
when the defendant Thompson climbed over the bulkhead, witness Lovell told him to throw
up his hands, which he did, after which a .38 double-action Colt gun was taken from him; that
immediately upon the witness telling Thompson to throw up his hands, the defendant
McCabe went back in the direction from whence he came; that the defendant Thompson was
taken to the station of the shaft where a prospector's pick and two large canvas ore sacks were
taken from him; that he was then taken to the surface and his candlestick and candle taken
from him; that he did not at the time nor subsequently make any statement to the witness
concerning his presence in the mine; that he was one of a party that took the defendant
Thompson to jail about 10 o'clock that night.
E. W. Gardner, a witness for the state, testified that he was a deputy constable; that he saw
the defendant Thompson when he was brought up to the Rogers Syndicate shaft by the
witness C. O. Lovell; that thereafter he went to the Rosebud shaft, and about twenty minutes
or half an hour later than the defendant Thompson was brought to the surface, he saw the
defendant McCabe come out of the shaft of the Rosebud lease on the O. K. Fraction claim,
this shaft being about three hundred feet from the Rogers Syndicate shaft. Asked to describe
the circumstances of the defendant McCabe coming from the shaft, his arrest, etc., the witness
stated: Well, he approached the top, got within a few feet or a couple of feet of the top; why
he halted there and called for Charley' several times. He got no answer and stayed there in
the shaft. He raised up the trap door and jumped out, and we placed him under arrest, * * *
told him to throw up his hands. He threw them up and Officer Colwell searched him and then
he asked him who Charley' was, and he said, Well, he intended that name, in speaking, he
intended that name for him.' He says, 'I intended to call you Charley.' Colwell said, 'How
did you know my name?' He said, 'I guessed it.' He didn't make any statement concerning
his presence there in this exit from the shaft at that time, nor subsequently to me."
he intended that name, in speaking, he intended that name for him.' He says, I intended to
call you Charley.' Colwell said, How did you know my name?' He said, I guessed it.' He
didn't make any statement concerning his presence there in this exit from the shaft at that
time, nor subsequently to me. The witness further testified he was present when defendant
McCabe was searched; that all he saw taken from him was a candlestick containing half or
three-quarters of a candle.
The witness Burns M. Colwell testified, upon the part of the state, that he was a deputy
sheriff; that he saw the defendant Thompson when he came out of the Rogers Syndicate shaft
with Officer Lovell; that he saw defendant McCabe when he came out of the Rosebud shaft;
that he searched him and found upon him a candlestick containing part of a candle; that
neither then nor at any subsequent time did the defendant McCabe make any statement to him
concerning his presence there; that before he came out of the shaft he heard him say, Open
the door, Charley, to which no reply was made. He opened the door and looked out; I could
see his head come out, then he shut the door again and went down, went out of sight. It was
probably ten minutes before he opened it again and walked out. I asked him who Charley'
was, something to that effect, and he said he was speaking to us to open the door. I did not
know him prior to that time.
Witness J. F. Lone, upon the part of the state, testified to the effect that permission had not
been granted defendants to enter upon the Rogers Syndicate lease.
Thomas G. Lockhart, upon the part of the state, testified that the Red King mining claim
was the property of the Florence-Goldfield Mining Company; that upon the 400-foot level of
the Little Florence lease, on the Red King claim, there was a very small streak of very
high-grade ore, one place about the width of a finger; that the tunnel connecting the 300-foot
level of the Rogers Syndicate lease and the O. K. Fraction was upon Merger property; that on
the underground workings of the Red King mining claim one could not enter any other
outside property except the tunnel that leads into the O. K. Fraction.
Upon the part of the defendants, the following testimony was offered:
Defendant J. R. Thompson, in his own behalf, testified substantially as follows: That on
the evening of December 9, 1907, he went underground through the O. K. Fraction, or
Rosebud shaft; that he went down for the purpose of looking over the property with a view of
leasing; that one F. O. Altinger was connected with him in desiring to obtain a lease; that he
was not familiar with the underground workings of the Rogers Syndicate lease; that he did
not know that he was ever in the workings of the said lease; that no one authorized him to go
down the shaft of the O. K. Fraction, nor did he ask any one permission so to do; that he did
not then know who owned the ground he was on that night; that he went down the shaft about
6 o'clock in the evening; that if the ground proved to be good for leasing purposes he intended
to find out afterwards to whom it belonged; that he did not think any one had the lease on the
Rosebud shaft; that he knew the shaft by the name being over it; that he made some inquiries
around town as to who owned the Rosebud shaft, but did not find any one who knew; that
from the time he went down the shaft until he was arrested he was investigating every drift,
every crosscut, and every level there was in the shaft; that he had only one candle which he
burned all the time; that the only man he thinks he asked as to who owned the ground, or
whether it was idle, was a man named Donnelly who was well acquainted around there; that
the last he heard of Donnelly he was in Rawhide.
W. M. McCabe, one of the defendants, testified in effect as follows: That he met defendant
Thompson downtown on the evening of December 9th, and that Thompson asked him to go
out and look at a piece of property; that he, Thompson, said he wanted to go and look for a
lease if he could find one; that at Thompson's request and for that purpose he went down the
Rosebud shaft; that he ran when Thompson was arrested because he was scared; that he was a
miner by occupation; that he had been in the Goldfield district about a year and a half prior to
that time; that he had been employed in the Gold Bar Extension, the Mohawk Florence and
the Jumbo Ledge mines; that the Mohawk Florence was just adjoining or very near the
Rosebud shaft; that the Rosebud was working for a time while he was employed on the
Mohawk Florence; that he did not know the Rosebud lease was on Florence ground; that
when he worked for the Mohawk Florence, the Rogers Syndicate lease was working part
of the time; that the Rogers Syndicate shaft was distant five hundred or six hundred feet,
if not more, from the Mohawk-Florence shaft.
and the Jumbo Ledge mines; that the Mohawk Florence was just adjoining or very near the
Rosebud shaft; that the Rosebud was working for a time while he was employed on the
Mohawk Florence; that he did not know the Rosebud lease was on Florence ground; that
when he worked for the Mohawk Florence, the Rogers Syndicate lease was working part of
the time; that the Rogers Syndicate shaft was distant five hundred or six hundred feet, if not
more, from the Mohawk-Florence shaft.
F. O. Altinger, a witness upon the part of the defendant, testified as follows: That he was
acquainted with the defendant Thompson; that he was formerly an assayer and pretty well
acquainted with the mines; that about thirty days prior to the 9th day of December, 1907, he
had a conversation with Mr. Thompson in which he told him that if he could find a good
lease which stood a first-class chance of getting ore, he, Altinger, could raise from five to ten
thousand dollars to work it with; that, about the 1st of December, Thompson came to him
saying he had a proposition of a lease on Combination Fraction, which was formerly let to
Davis; that he turned down the proposition, asserting that he did not consider it good on
account of being too expensive, and that the parties he had in view to go in with him
preferred a lease on Florence property; that he told Thompson that if he could get anything
around the Florence or on the Florence that had a good showing, he, Altinger, could get the
money; that Thompson then spoke to him about a lease he thinks on the O. K. Fraction,
adjoining the Rogers syndicate, and that he told him, Thompson, that if he could get that he
could get plenty of money; that he had had such conversation with others besides Mr.
Thompson; that when Thompson first came to him, it was in regard to the Loftus-Davis lease;
that Thompson never made a statement to him that he had negotiated for a lease on the
Florence; that he suggested the Florence to Thompson, but that he did not suggest that he go
out and go down the shaft and examine the workings.
C. C. Inman testified upon the part of the defense as follows: That he was the constable of
Goldfield district and was such on the night of December 9, 1907; that he was acquainted
with defendant Thompson; that at that time Thompson was a deputy constable and had
authority to carry a revolver; that Thompson was appointed a deputy constable for the
purpose of fire police, and fire warden for gasoline stoves and such things, for the
purpose of helping to prevent fires.
acquainted with defendant Thompson; that at that time Thompson was a deputy constable and
had authority to carry a revolver; that Thompson was appointed a deputy constable for the
purpose of fire police, and fire warden for gasoline stoves and such things, for the purpose of
helping to prevent fires.
The indictment in this case is based upon the provisions of section 158 of the crimes and
punishments act (Comp. Laws, 4749), which reads: Every person who shall attempt to
commit a public offense, and in such attempt shall do any act toward the commission of such
offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in
executing the same, upon conviction thereof, shall, in cases where no provision is made by
law for the punishment of such attempt, be punished, etc.
In an attempt to commit a crime, three elements are involved: FirstThe intent to commit
the crime. SecondPerformance of some act towards its commission. ThirdFailure to
consummate its commission. (Graham v. People, 181 Ill. 477, 488; People v. Fleming, 94
Cal. 308; Jones v. State, 90 Ala. 628; Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. Rep.
891; 12 Cyc. 177; 3 Am. & Eng. Ency. Law, 2d ed. 250, 254; 3 Ency. Pl. & Pr. 97.)
It may be conceded in this case that if the evidence is sufficient to prove an intent to steal
upon the part of the defendants, that all the elements of the offense are sufficiently established
to warrant the conviction. Failure to consummate the alleged, or any, offense is manifest. The
entrance upon the underground workings of the mine without permission was doubtless
sufficient to constitute the performance of an act towards the consummation of the offense,
conceding the evidence sufficient to establish the unlawful intent.
The only question for determination is whether there are facts and circumstances disclosed
by the evidence in the case warranting the jury in finding the felonious intent to commit grand
larceny. From the facts that the defendants were clandestinely prowling in the mine which
they knew belonged to others and without permission from the owners, in the nighttime with
a prospector's pick and two large ore sacks; that instead of making any reasonable excuse
for their presence in the mine the one who had the opportunity took flight, and then
instead of going directly out of the mine, stealthily put his head out of the shaft, called
"Charley," went back out of sight and waited, and when he finally came out and was
apprehended, made an untruthful statement that by using the name he intended to call
the officer whom he did not know and who did not have that name, that he did not know
what mine he was in except that he saw the name over the shaft he had entered, the
proof that there was ore in the mine worth from one to ten dollars a pound, and other
circumstances proved by the state, we cannot say that there was not some substantial
evidence which a jury might consider as warranting a verdict of guilty, notwithstanding
the claim made by the defendants on the trial that they went into the mine for the
purpose of examining it with the intention of trying to obtain a lease if the ground looked
favorable.
that instead of making any reasonable excuse for their presence in the mine the one who had
the opportunity took flight, and then instead of going directly out of the mine, stealthily put
his head out of the shaft, called Charley, went back out of sight and waited, and when he
finally came out and was apprehended, made an untruthful statement that by using the name
he intended to call the officer whom he did not know and who did not have that name, that he
did not know what mine he was in except that he saw the name over the shaft he had entered,
the proof that there was ore in the mine worth from one to ten dollars a pound, and other
circumstances proved by the state, we cannot say that there was not some substantial evidence
which a jury might consider as warranting a verdict of guilty, notwithstanding the claim made
by the defendants on the trial that they went into the mine for the purpose of examining it
with the intention of trying to obtain a lease if the ground looked favorable.
It is well settled by this and other courts that, where the evidence is conflicting, a verdict
will not be disturbed where there is substantial evidence to support it. It was the province of
the jury to weigh the evidence and determine the credibility of the witnesses. (State v. Yellow
Jacket S. M. Co., 5 Nev. 415, 418, 419; Solen v. V. & T. R. R. Co., 13 Nev. 106; Welland v.
Williams, 21 Nev. 230; Simpson v. Williams, 18 Nev. 432; Reed v. Reed, 4 Nev. 395; Lewis v.
Wilcox, 6 Nev. 215; Bryant v. Carson Lumbering Co., 3 Nev. 313; Winter v. Fulstone, 20
Nev. 260; Watt v. Nev. Cent. R. R. Co., 23 Nev. 154, 165; Carlyon v. Lannan, 4 Nev. 156;
Murphy v. S. P. R. R. Co., 31 Nev. 120; State v. Buralli, 27 Nev. 56; State v. Wong Fun, 22
Nev. 336; State v. Marks, 15 Nev. 38.)
As in any other case where the intent is material, the intent need not be proved by positive or
direct evidence, but may be inferred from the conduct of the parties and the other facts and
circumstances disclosed by the evidence.
If the conduct of the parties, considered in connection with the surrounding circumstances
of the case, is indicative of the felonious intent charged in the indictment and leaves no
reasonable doubt in the minds of the jury regarding such intent, the felonious intent is
sufficiently established. To hold otherwise, would tend to put a premium on crime, render
property rights and lives less secure, and aid criminals in escaping just punishment for
their crimes or attempts to commit them.
otherwise, would tend to put a premium on crime, render property rights and lives less secure,
and aid criminals in escaping just punishment for their crimes or attempts to commit them.
(State v. Ah Chuey, 14 Nev. 79; State v. Clifford, 14 Nev. 72; State v. Cardelli, 19 Nev. 319;
State v. Espionozei, 20 Nev. 209; Sipple v. State, 46 N. J. Law, 197; Griffin v. State, 26 Ga.
493; State v. Jones, 70 Iowa, 508.)
The judgment and order of the lower court overruling appellant's motion for a new trial are
affirmed.
Talbot, J.: I concur.
Norcross, C. J., dissenting:
I am unable to concur in the view taken of this case by my associates, as I deem the
evidence insufficient to support the verdict.
In Commonwealth v. Merrill, 14 Gray, 415, 77 Am. Dec. 336, cited in Jones v. State, 90
Ala. 628, 8 South. 383, 24 Am. St. Rep. 850, the court said: The nature of the charge
presupposes that the intent of the prisoner was not carried out. It is therefore necessary that
the acts and conduct of the prisoner should be shown to be such that there can be no
reasonable doubt as to the criminal intent. If these acts and conduct are equivocal, or equally
consistent with the absence of the felonious intent charged in the indictment, then it is clear
that they are insufficient to warrant a verdict of guilty. See, also, Saddler v. State, 12 Tex.
App. 194.
These decisions proceed on the well-established rule in criminal cases that the proof is
insufficient to warrant a verdict of guilty if the conduct of the accused is, upon a reasonable
hypothesis, consistent with his innocence. If the evidence raises a mere suspicion, or,
admitting all it tends to prove, defendant's guilt is left in uncertainty, or dependent upon
conjecture or probabilities, the court should instruct the jury to acquit. The evidence should
be of such character as to overcome, prima facie, the presumption of innocence. (Jones v.
State, supra.)
The intent of the defendants must be determined from their acts and conduct. (People v.
Fleming, 94 Cal. 308, 29 Pac. 647.)
In State v. Lung, 21 Nev. 215, this court, by Bigelow, J., said: The overt act which
constitutes an attempt must be one which manifests an intention to commit the crime.
(Cunningham v. State, 49 Miss. 685.) A man's intentions must be judged by his acts. In
attempts, his act must have been one which, under all circumstances, manifests an intention
to commit that particular offense. (1 Whart. Crim. Law, 176.) It is essential, too, that the act
of endeavor should be intrinsically adapted to effect the purpose, and, that the court and the
accused may see that it is so adapted, it shall be specifically stated in the indictment. (State v.
Wilson, 30 Conn. 504.) * * * Whether certain facts constitute crime is not only a question of
law, but one that is often intricate and difficult of solution.
The evidence against defendants in this case is all circumstantial. To warrant the
conviction of defendants, all the circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the same time inconsistent
with the hypothesis that he is innocent, and with every other rational hypothesis except that of
guilt. (12 Cyc. 488.) However, no general rule can be laid down as to the quantity of
circumstantial evidence which in any case will suffice. (Cyc., supra.)
In the case of State v. Mandich, 24 Nev. 336, 343, this court, by Bonnifield, J., said: If the
circumstances, all taken together, exclude to a moral certainty every hypothesis but the single
one of guilt, and establish that one beyond a reasonable doubt, they are sufficient.
Defendants in this case testified to a state of facts which, if true, explained their presence
in the mine as being devoid of criminality. The facts relied upon by the state as constituting
circumstances which warranted the conclusion of criminality were not manifestly inconsistent
with the innocent purpose which defendants testified was theirs in going into the mine. The
testimony of the witness Altinger tended to corroborate that of the defendants themselves. As
before stated, the prosecution offered no evidence in rebuttal of that offered by the
defendants, but conceding, for the purposes of this case, that the jury was not impressed with
the truth of the testimony offered by the defendants and for that reason they rejected it,
nevertheless the defendants were at all times during the progress of the trial under the
presumption of innocence, a presumption which the law itself very wisely imposes, and
which the prosecution in every criminal case is bound to overcome by evidence which
shall leave in the minds of the jury no reasonable doubt of the defendant's guilt.
the testimony offered by the defendants and for that reason they rejected it, nevertheless the
defendants were at all times during the progress of the trial under the presumption of
innocence, a presumption which the law itself very wisely imposes, and which the
prosecution in every criminal case is bound to overcome by evidence which shall leave in the
minds of the jury no reasonable doubt of the defendant's guilt. Where, as in this case, the
evidence relied upon by the state is circumstantial, it must be such as to warrant no other
reasonable deduction than the guilt of defendants. If a reasonable hypothesis, consistent with
innocence, may be gathered from the evidence, a verdict of guilty ought not to be returned,
and, if returned, ought to be set aside. (Black v. State, 112 Ga. 29, 37 S. E. 108.) Not that the
verdict may not possibly be right, but because the liberty of a citizen is too sacred a right to be
taken away when a reasonable hypothesis of innocence also exists.
The evidence shows in this case without contradiction that the defendants did not enter
directly upon the property from which the indictment charged that they intended to steal, take,
and carry away valuable ore, but, upon the contrary, that they went underground through a
shaft upon an adjoining claim. There is no evidence showing or tending to show that the
defendants or either of them knew of the underground connection between the Rosebud shaft
in the O. K. Fraction claim, and that of the Rogers Syndicate shaft, in the Red King mining
claim. There is no evidence in the record showing, or tending to show, that the defendants or
either of them, knew of the existence of the high-grade ore upon the 300- and 400-foot levels
of the Rogers Syndicate lease, testified to by the witness Rogers, unless it can be inferred as a
reasonable deduction from all the circumstances of the case. A jury would not be warranted in
supplying such an important fact by resorting to mere speculation. Knowledge upon the part
of defendants of the existence in the mine of ore of value sufficiently high to make it
physically possible for them to commit grand larceny might be inferred from other
circumstances if they were of such character as to justify only the inference of a guilty
intention. That the circumstances in this case, as detailed by the witnesses for the state,
warrant only an inference of a guilty intent, is a matter open to serious question.
this case, as detailed by the witnesses for the state, warrant only an inference of a guilty
intent, is a matter open to serious question.
The testimony shows that the defendants were trespassing upon the property of the
Florence-Goldfield Mining Company and the Rogers Syndicate lease; that Thompson had in
his possession two large canvas ore sacks, a small hand-pick, known as a prospector's pick,
and a revolver. Whatever unfavorable inference might be drawn from the circumstance that
Thompson was carrying a revolver was neutralized by the testimony of the constable, Claude
Inman, that the defendant Thompson was himself a deputy constable, and, as such, was
authorized to carry a revolver. It may be conceded that, with what is known as a prospector's
pick, one could sever from a small seam of very hard rock, such as was testified the
high-grade ore was, an amount of such ore sufficient to have value enough to bring it within
the limits of grand larceny; nevertheless, such a pick is not ordinarily used for such a criminal
purpose, and may be, and usually is, used for the purpose indicated by its name, that of
prospecting and sampling mining property. The mere fact that one was found in a mine with
such an instrument upon him, even though he were a trespasser, would not ordinarily indicate
a criminal intent upon the part of the possessor of the pick. If, however, there were other
incriminating circumstances, it, of course, would also be a circumstance to be considered
with the others, and if all, taken together, were sufficiently strong to leave no reasonable
doubt of defendant's guilt, a conviction would not be disturbed.
The two ore sacks found in the possession of the defendant Thompson, like the
prospector's pick, may be used to effectuate a criminal purpose, but, upon the other hand, they
are not ordinarily so used. Their size may be regarded as a circumstance to be considered with
the other circumstances in the case, and the jury might very properly consider that smaller
sacks were more generally used for sampling purposes, and such fact would be entitled to
such consideration as it was worth, depending for its weight very largely upon all the other
facts and circumstances in the case. So far as the defendant McCabe is concerned, it
nowhere appears that he was possessed of anything other than a candlestick containing a
part of a candle with which to assist his codefendant in the accomplishment of the alleged
attempted grand larceny.
the defendant McCabe is concerned, it nowhere appears that he was possessed of anything
other than a candlestick containing a part of a candle with which to assist his codefendant in
the accomplishment of the alleged attempted grand larceny.
The disappearance or flight of McCabe when he heard his companion, Thompson, ordered
to throw up his hands, after the latter had climbed over the bulkhead of the drift, was a
circumstance proper for the jury to consider, in connection with his explanation that he ran
because he was scared; also the circumstance surrounding his exit from the Rosebud shaft.
The flight or concealment of the accused raises no presumption of law that he is guilty, but it
is a fact which may be considered by the jury, and from which they may draw an inference, in
connection with other circumstances, and in the absence of an explanation of the reasons or
motives which prompted it, that he is guilty, and evidence of flight or concealment is
admissible, whether the other evidence of guilt be direct or circumstantial. (12 Cyc. 395.)
The fact that defendants were found in the mine in the early portion of the night rather than
in the daytime was also a circumstance to be considered in connection with all the other
circumstances of the case. In considering this circumstance, however, it should be weighed in
connection with the fact that conditions of light and darkness within the mine are the same
whether it be daytime or nighttime. The weight to be given to this circumstance would have
to depend very largely upon its association with other facts and circumstances. For example, a
person, without permission, going into a mine to examine the same for a purpose not
criminal, either because of convenience or preference, might choose reasonably the evening
rather than an earlier portion of the day; hence, a circumstance of this kind, like all others,
should be carefully weighed in accordance with the rule governing circumstantial evidence.
It was brought out in the testimony by witnesses upon the part of the state that neither of
the defendants at the time of their arrest, or subsequently, made any statement to the arresting
officers concerning their presence in the mine.
There is nothing in the facts of this case which would warrant any inference of guilt from this
circumstance. Nor is it a circumstance that could properly have been given any weight when
considered by the jury together with the other circumstances in the case. There is nothing in
the evidence showing that when defendants were arrested they were called upon to explain
their presence in the mine, or that they were at the time charged with the offense for which
they were afterwards indicted, or any other offense. Many authorities hold that a person under
arrest has a right to keep silent, and that a failure to deny statements made in his presence,
implicating him in the alleged crime, cannot be offered in evidence against him; that no
inference against him is warranted by failure to deny the truth of such statements.
(Commonwealth v. McDermott, 123 Mass. 440, 25 Am. Rep. 120; State v. Weaver, 57 Iowa,
730, 11 N. W. 675; Gardner v. State, 34 S. W. 945; State v. Epstein, 25 R. I. 131, 55 Atl.
204.)
Other authorities take a less restricted view and hold that, under certain circumstances, the
fact that a person charged with crime is under arrest does not necessarily exclude testimony
showing that he remained silent when incriminating statements were made in his presence.
(Murphy v. State, 36 Ohio St. 628; Green v. State, 97 Tenn. 50, 36 S. W. 700; People v.
Koerner, 154 N. Y. 374, 48 N. E. 730.)
In People v. Koerner, supra, the court said: The rule in regard to admissions inferred
from acquiescence in the verbal statements of others is to be applied with careful
discriminations, as was said by Best, C. J., in Child v. Grace, 2 C. & P. 193: Really, it is
most dangerous evidence.' It should always be received with caution, and ought not to be
admitted unless the evidence is of direct declarations of a kind which naturally call for
contradiction, or some assertion made to a party with respect to his rights, in which, by
silence, he acquiesces.
In any view of the law, it not appearing that any statements were made in the presence of
defendants, there is nothing in this case showing or tending to show that the silence of
defendants, when arrested, could be regarded as an admission, nor could it be considered as a
circumstance warranting the jury in drawing any unfavorable inference whatever.
warranting the jury in drawing any unfavorable inference whatever.
Counsel for the state quotes from the syllabus of the case of State v. McGinnis, 6 Nev.
109, the following rule, and contends that it is applicable to the case at bar: Criminal intent
can only be proven as a deduction from declarations or acts. When the acts are established,
the natural and logical deduction is that defendant intended to do what he did do, and, if he
offers no excuse or palliation of the acts done, such deduction becomes conclusive.
In the McGinnis case, supra, there was evidence tending to establish the facts that the
defendant struck one Knox on the head with a heavy pistol, and that Knox was thereby
injured. From these facts, the court very properly held that the only natural or logical
deduction as to the intention of defendant therefrom was that he intended to do what he did
do, and such became conclusive when he offered no excuse or palliation of the act done. The
crime charged was an assault with a deadly weapon with intent to inflict upon the person of
another a bodily injury. The heavy pistol, whether loaded or not, when used as a club upon
the person of another, was a deadly weapon. With this deadly weapon an assault was shown
to have been committed and a bodily injury inflicted; manifestly, the intent to do what
actually was done was the natural and legal deduction from the acts themselves.
It is a familiar rule of law that a man is presumed to intend the natural and probable
consequences of his own deliberate acts. This presumption goes no further. The defendants in
this case unquestionably committed a trespass upon the mining property in question. Such a
trespass, however, is not in itself a crime under the statutes of this state. (Strozzi v. Wines, 24
Nev. 389.)
It does not naturally or legally follow that, because they committed a trespass, they intended
to commit grand larceny. (State v. Ryan, 12 Nev. 401.) Voluntarily going upon the property
of another without permission being a trespass, the presumption would naturally follow that
the defendants intended to commit such trespass, but an intent to commit a felony, to wit,
grand larceny, must be established by other circumstances in connection with the
circumstances of the trespass, and it is not enough that these circumstances are
consistent with defendants' guilt and make it possible or even probable that such grand
larceny was intended, but they must be such as to overcome the presumption of
innocence, and, to be of such character, they must be inconsistent with any reasonable
hypothesis of innocence.
circumstances in connection with the circumstances of the trespass, and it is not enough that
these circumstances are consistent with defendants' guilt and make it possible or even
probable that such grand larceny was intended, but they must be such as to overcome the
presumption of innocence, and, to be of such character, they must be inconsistent with any
reasonable hypothesis of innocence.
A very careful and extended consideration which I have given to an analysis of the
evidence in this case upon which the criminal intent of defendants rests raises a serious
question in my mind whether, under the rule by which the sufficiency of circumstantial
evidence is tested, it would justify the verdict, even though the jury had been fully instructed
as to the application of the rule. The only instruction upon the question of the evidence
sufficient to establish intent in this case was the following: The jury is instructed that in the
prosecution for an attempt to commit a crime, as in any other case where the intent is
material, the intent need not be proved by positive or direct evidence, but may be inferred
from the conduct of the parties as shown by the evidence, and the other facts and
circumstances in evidence. The defendants in this case were entitled to an instruction to the
effect that, in order to justify a conviction, the conduct of the defendants, as shown by the
evidence, and the other facts and circumstances in the case, must not only be consistent with
the hypothesis that the defendants are guilty, but must also be inconsistent with any
reasonable hypothesis that they are innocent, and with every other rational hypothesis except
that of guilt. In the absence of an instruction of this kind, a jury might be very apt to fail to
apply to the evidence the legal rule in testing its sufficiency, and proceed to convict solely
upon the theory that the evidence was consistent with guilt, and that in their judgment the
probabilities were that they are guilty, and fail to properly appreciate and apply the other
essential requisite of the evidence that it be inconsistent with any reasonable hypothesis of
innocence.
In justice to the trial court, and as a matter of practice, it should be noted that counsel for
defendants did not request the court for an instruction upon the rule in question. For this
reason, defendants are not in a position to claim error for the failure to give such an
instruction.
this reason, defendants are not in a position to claim error for the failure to give such an
instruction. (State v. Hing, 16 Nev. 307.) This court has repeatedly held that, if a party desires
explicit instructions to be given upon any point, it is his right and duty to prepare the same
and ask the court to give them. (State v. Smith, 10 Nev. 106; Gaudette v. Travis, 11 Nev. 149;
Allison v. Hagan, 12 Nev. 38; State v. Davis, 14 Nev. 407; State v. St. Clair, 16 Nev. 207.)
While error cannot be predicated upon the failure of the court to give an instruction of the
character suggested, nevertheless the absence of an instruction of so great importance in a
case resting upon evidence of the character relied on by the state serves to impress upon me in
a greater degree, if possible, the seriousness of determining in this case that, as a matter of
law, the evidence is sufficient to justify the verdict. Had an instruction of the character
mentioned been requested, it would doubtless have been given, and, had it been given, the
verdict of the jury might have been very different, and I am impressed that it would have so
been. Had such an instruction been refused, it would have amounted to reversible error. I
have been unable to satisfy my mind that the evidence in this case justifies the verdict, and
my ultimate conclusion is to the contrary.
I appreciate fully the difficulties which usually beset the prosecution in securing
convictions in cases of this kind, and that prosecutions frequently fail, although the officers
feel convinced of the guilt of the person charged. Yet it must always be borne in mind that the
safeguards which the law throws around a person charged with crime are intended for the
protection of the innocent. These very safeguards frequently enable the guilty to escape a just
punishment, yet without them the danger would be increased of unjust convictions of the
innocent. No more salutary rule exists in the criminal law than the one so frequently referred
to in this opinionthat, when circumstances alone are relied upon in order to justify a
conviction, they must not only be consistent with guilt, but, to overcome the presumption of
innocence, they must be inconsistent with every other reasonable hypothesis except that of
guilt.
For the reasons given, I am of the opinion the judgments and orders appealed from
should be reversed, and the cause remanded for a new trial, in order that additional
evidence, if possible, may be adduced which will remove or tend to remove the
uncertainty which I think exists from the evidence which is now disclosed by the record,
and such instructions given as will enable the jury to apply to the evidence the proper
legal test of its sufficiency.
and orders appealed from should be reversed, and the cause remanded for a new trial, in order
that additional evidence, if possible, may be adduced which will remove or tend to remove
the uncertainty which I think exists from the evidence which is now disclosed by the record,
and such instructions given as will enable the jury to apply to the evidence the proper legal
test of its sufficiency.
On Petition for Rehearing
Petition for rehearing denied, Norcross, C. J., dissenting.
____________
31 Nev. 227, 227 (1909) Lund v. Washoe County
[1767]
S. LUND, Respondent, v. WASHOE COUNTY, Appellant.
1. BridgesContractsAuthority to Bind County.
Under Comp. Laws, 2111, giving the board of county commissioners power to control and manage public
roads and bridges, an engineer, authorized to supervise the repairing of a bridge, could not bind the county
by requiring the contractor to perform extra work not called for by the contract.
Washoe County; W. H. A. Pike, Judge.
Action by S. Lund against Washoe County. From a judgment in favor of plaintiff,
defendant appeals. Reversed.
T. F. Moran and Albert D. Ayres, for Appellant:
I. In Sadler v. Eureka County, 15 Nev. 42, the court said: The powers of the
commissioners and the mode of exercising them, being derived from the statute, must
necessarily depend upon its true construction. The restrictive provisions of the statute were
evidently inserted for the protection and benefit of the public, and were intended to guard
against favoritism, extravagance, or corruption in the letting of contracts for any public work.
When the commissioners act under such authority, they must strictly follow conditions under
which the authority is given. The law is well settled that county commissioners can only
exercise such powers as are especially granted, or as may be necessarily incidental for the
purpose of carrying such powers into effect; and when the law prescribes the mode which
they must pursue, in the exercise of these powers, it excludes all other modes of
procedure.
are especially granted, or as may be necessarily incidental for the purpose of carrying such
powers into effect; and when the law prescribes the mode which they must pursue, in the
exercise of these powers, it excludes all other modes of procedure. * * * If the power exists to
make a contract for any other changes or alterations than those already specified, it could only
be exercised by advertising for such work and letting the same to the lowest bidder. If the
power attempted to be exercised by the commissioners was to receive judicial sanction, it
would strip the public of the very protection which the legislature intended to give by the
restrictions which it imposed. The commissioners might, in any case, agree in advance with
some favorite contractor, that, if he would put in a bid for a sum much less than he knew the
work could be done for, they would allow him sufficient for changes and alterations in the
plan and specifications to fully remunerate him for his work, thereby defrauding the rights of
honest competing bidders, as well as depriving the public of the protection given by the
statute. Take the present case as an example: The commissioners might, if they were so
disposed, under some plausible pretext, have so changed the plan and specifications as to
have increased the original contract price of $22,000 to $53,000, the limit expressed by the
act of 1879. The truth is, that under the provisions of the statute, the commissioners, previous
to the letting of any contract for the erection of a public building, should always adopt a plan
and specifications, and see that they call for the erection of such a building as may be
required. When these have been considered and adopted, the advertisements should call for
bids in accordance therewith. Justice to the competing bidders, as well as to the public,
demands that the contract should be made and carried out in good faith and in strict
conformity with the express provisions of the statute.
II. The complaint is upon a quantum meruit of the alleged value of more than three
hundred dollars, but of the value, as found by the court, of more than one hundred dollars,
while our statute (Comp. Laws, 437) provides for the construction or repair of bridges, the
cost of which exceeds the sum of one hundred dollars, only upon direct contracts let to the
lowest bidder, after reasonable notice given by publication.
hundred dollars, only upon direct contracts let to the lowest bidder, after reasonable notice
given by publication. From the authorities we deem it absolutely established that, were these
extras alone the entire contract, and had the contract therefor been let by the board of
commissioners themselves, otherwise than to the lowest bidder, upon reasonable notice and
publication of at least two weeks in a county newspaper, the contract therefor would have
been absolutely null and void and of no effect whatever, and in direct violation of section 437
of the Compiled Laws. But in the present case, where, as shown directly by paragraph 4 of the
complaint, the contract for extras of the alleged value of more than three hundred and twelve
dollars, and other values found by the court upon the trial of more than one hundred dollars,
was awarded to the plaintiff upon a quantum meruit by a person shown by the complaint not
even to be a county officer, but merely an employee of the board of county commissioners,
the contract is of no more force and effect, and no more binding upon the defendant county,
than if the same had been let to plaintiff by some person who had never stepped foot within
the State of Nevada, or who was not in any way connected with its government.
III. It is most respectfully submitted that the complaint in this action not only fails to state
facts sufficient to constitute a cause of action against the defendant and in favor of the
plaintiff, but that it absolutely and conclusively shows that the contract relied upon was ultra
vires null and void, and that the complaint is fatally deficient in that, even if it were brought
upon a valid and binding contract, the facts constituting a proper presentation of a claim
thereof to the board of county commissioners of Washoe County and their action thereon do
not appear from the complaint.
C. L. Harwood, for Respondent:
I. The doctrine of ultra vires was formerly strictly applied to private decisions, where this
principle was applied and carried to its logical conclusion, but that doctrine that enables a
private corporation to receive and retain the benefits of a contract, either express or implied,
and then plead that its agents had no authority to make the contract, has long since been
exploded; and private corporations are now uniformly held to the same rules in this
respect as apply to private individuals.
agents had no authority to make the contract, has long since been exploded; and private
corporations are now uniformly held to the same rules in this respect as apply to private
individuals. The same change is becoming marked in the case of municipal corporations,
where the contract is within the general power of the municipality, where the municipality has
received the benefits, and where there has been no fraud. Numerous cases might be cited to
this effect, but we refer to only the very recent ones: Colorado Springs v. Colorado City, 94
Pac. 316; People v. Zimmerman, 109 N. Y. Supp. 396. See, also, on both propositions, 28
Cyc. 1050, title Municipal Corporations, and numerous cases cited; 28 Cyc. 669. This
principle was very early established in Nevada. (Tucker v. Virginia City, 4 Nev. 20; Fitton v.
Hamilton City, 6 Nev. 196.)
II. All statutes relating to the same subject must be construed together and must be reasonably
construed. The general proposition contended for by the appellant as to the limitations upon
the powers of officers of municipal corporations are elementary. We submit, however, that
the peculiar circumstances attending the execution of a contract for the placing of piers and
abutments for bridges, or any other public works, are such that it is unreasonable, and has
been so decided in numerous cases, to say that the engineer or person charged with the
superintendence of the execution of the contract has no power, in the interests and for the
protection of the municipality, to direct necessary alterations and changes from the plans and
specifications to meet the exigencies of the occasion or to provide for unforeseen
circumstances. It would be unreasonable and ridiculous in a case like this, where the work
was under way and it was found that the piers or abutments about to be placed would rest on
insecure foundations unless excavations were made, to require that all work necessarily and
presumably carried on in the stream and subject to destruction by the elements should be
stopped while the necessary red tape might be unreeled to allow work to be done by contract
after advertisement for bids. As is pointed out in some cases, the contract for the additional
work might go to a third party, and, aside from the difficulties and danger above referred to, a
confusion and conflict would result, to the detriment of the county.
ment of the county. In such case the engineer in charge has the undoubted authority to order
the work to be done for the protection of all parties. In this case there could, in the nature of
things, be no estimate, even approximate, of what excavations might be necessary. It might
cost $50, or it might cost $100, or even more. If the engineer saw that the excavation would
run into a very high figure, he would be at liberty to call the work off, and, if thought
advisable, let a contract for it. At any rate, the contractor's remedy is only upon a quantum
meruitin other words, what the work was actually worth at the time and under the
circumstances then present. If the county and the contractor do not agree, then the question of
what work is worth becomes a matter for judicial determination, and presumably such
determination would be correct and no one injured.
III. We submit that the appellant having received the benefit of the extra work performed
by the respondent, and it having been determined by the judgment of the court below that he
is entitled to recover for it, the judgment should stand and the county pay for it.
This appeal is from a judgment, and is based on the judgment roll. The only contention of
the appellant is that the complaint, which contains the following allegations, does not state a
cause of action:
(2) On or about the 14th day of August, 1907, the parties, plaintiff and defendant, made
and entered into a valid written contract, whereby, for a valuable consideration therein
named, the plaintiff undertook and agreed to erect, build, and finish certain piers and
abutments on a certain public bridge in the said county known as Mayberry bridge, and to do
similar work on a certain other public bridge, also situate in said county, known as Verdi
bridge; both of said bridges being erected over and across the Truckee River, and intended for
the use of public travel. That it was provided in said contract that the work should be
conformable to the plans and specifications of the said work on file in the office of the
county clerk of said Washoe County,' to which plans and specifications and said agreement
on file in said county clerk's office the plaintiff hereby refers.
specifications and said agreement on file in said county clerk's office the plaintiff hereby
refers.
(3) And in and by said contract it was further provided that the work should be done to
the satisfaction, and under the direction, of F. R. Nicholas, to be testified by his writing or
certificate; and plaintiff avers that he undertook and performed all of the matters and things in
and by the said contract to be by him done, performed, and kept, and that the said F. R.
Nicholas gave the certificate approving the work of the plaintiff as required.
(4) That in the performance of the said contract by the plaintiff certain extra work, not
provided for in the same, and not shown, or in any wise indicated, by the plans and
specifications aforesaid, consisting of excavations for the foundations of said piers, was
ordered by the said F. R. Nicholas, the engineer in charge, for and on behalf of the said
defendant, and was necessary to be done and performed. That under the direction of the said
engineer the plaintiff thereupon did and performed the same. That the cubic measurement of
such excavation is shown by the schedule hereto annexed and made a part hereof, and to
which reference is hereby made. That the price charged therefor, namely, the sum of $1.50
per cubic yard, is a fair and reasonable rate or charge, and is the reasonable value of the extra
work so done and performed.
(5) That the total value of said excavation work was the sum of $167.55, and that the
balance of said extra work, entirely without the said contract and the plans and specifications
aforesaid, and ordered by the said engineer to be done as necessary extra work, and so
accordingly done, performed, and furnished by the plaintiff, consisted in the removal of rock
wall at said Mayberry bridge for which the plaintiff has charged the sum of $70; also rock
wall removed at Verdi bridge, for which the plaintiff has charged the sum of $75. That such
charges are the fair and reasonable value of the said extra works, and that the same are set out
in the schedule hereinbefore referred to, and to which reference again is hereby made.
(6) That the total cost and value of all of the said extra work so done, furnished, and
performed by the plaintiff for the said defendant is the sum of $312.55, and the claims
therefor have been duly made by the plaintiff to the board of county commissioners of
said defendant, and the same have not been allowed."
work so done, furnished, and performed by the plaintiff for the said defendant is the sum of
$312.55, and the claims therefor have been duly made by the plaintiff to the board of county
commissioners of said defendant, and the same have not been allowed.
Section 2111 of the Compiled Laws gives boards of county commissioners power to
control and manage public roads and bridges within their respective counties, and to make
such orders as may be necessary to carry this control and management into effect. It is further
provided as follows:
Section 448, approved March 9, 1866: All work hereafter done upon highways, streets or
alleys, whether in opening, improving or keeping the same in repair, shall, when the public
cost of such contemplated work shall exceed one hundred dollars, be done by contracts let to
the lowest responsible bidder, and public notice of at least five days shall be given, describing
the work to be done, the time and place that bids will be received, and the means of paying
for such work. Such bids shall be sealed, may all be rejected, and if any are accepted, it shall
be that of the lowest bidder who is responsible, or will give satisfactory security. In all cases
of emergency, it shall be discretionary with the board of county commissioners to let
contracts for repairs without giving the five days' notice, as is contemplated in this section.
Section 437, approved February 21, 1877: No bridge, the cost of the construction or
repair of which will exceed the sum of one hundred dollars, must be constructed or repaired
except on an order of the board of county commissioners. When ordered to be constructed or
repaired, the contract therefor must be let out to the lowest bidder, after reasonable notice
given by the board of county commissioners, by publication at least two weeks in a county
newspaper, and if none, then by three posted noticesone at the court-house, one at the point
to be bridged, and one at some other neighboring place. The bids to be sealed, opened and
contract awarded at the time specified in the notice. The contract and bond to perform it must
be entered into to the approval of the board of county commissioners.
No officer excepting the board of county commissioners is given any authority to
obligate the county for bridges, or for work upon public highways, and it is clear from the
language of the statute that the board is not authorized to let contracts in excess of $100
for the construction or repair of bridges or roads, except to the lowest bidder, after giving
notice, or in cases of emergency.
given any authority to obligate the county for bridges, or for work upon public highways, and
it is clear from the language of the statute that the board is not authorized to let contracts in
excess of $100 for the construction or repair of bridges or roads, except to the lowest bidder,
after giving notice, or in cases of emergency.
On behalf of the appellant it is claimed that the board, composed of the elective officers of
the people, could not delegate to the engineer, or to any one else, their discretionary power to
contract for or order work done, and could not authorize the extra work itself, without
advertising for bids, as it amounted to over $100. These propositions do not come directly
within the facts stated in the complaint, for it fails to show that the board without advertising,
or in any other way, ordered the extra work, recovery for the value of which is sought, or
attempted to authorize the engineer to order it done. Paragraph 2 of the complaint indicates
that the plaintiff had contracted to build and finish certain abutments and piers for the bridges
named, in accordance with the plans and specifications on file in the clerk's office, paragraph
3 that this work should be done to the satisfaction and under the direction of the engineer, and
paragraph 4 that certain extra and necessary work, not provided for in the contract or in the
plans or specifications, consisting of excavations ordered by the engineer, was done under his
direction. As there is no statute vesting the engineer with any power to create a liability
against the county, and it does not appear from the complaint or contract that the board
attempted to confer upon him any authority to order additional work to be done, or to do more
than to supervise, direct, and report upon the work provided for in the contract, there is a
failure to state a cause of action. This would be true even in the absence of the prohibitory
language quoted from the statute. It is not claimed that any emergency existed by reason of
which it was necessary for additional work to be done before there would be time for the
board to give notice, and contract for its performance by the lowest bidder. It is not denied
that the extra work was beneficial and was done in good faith.
Conceding that the board could have empowered the engineer to order extra work, it
would be incumbent upon the respondent, under the ordinary rules of agency, to show
that its order was broad enough to authorize the doing of the extra work.
engineer to order extra work, it would be incumbent upon the respondent, under the ordinary
rules of agency, to show that its order was broad enough to authorize the doing of the extra
work. (Schlitz Brewing Co. v. Grimmon, 28 Nev. 235; Travers v. Barrett, 30 Nev. 402.) The
powers of the engineer are generally different when he is employed by private corporations or
by individuals. In railway construction he is usually the agent of the company, with authority
to direct where the work should be done, and how much should be performed. Of course,
when it is not for the public, there is no statute requiring notice, or limiting the power of
contracting to certain persons or officers, as there is when it is sought to charge the county or
collect from the public funds. In Sadler v. Eureka County, 15 Nev. 39, and in Washoe County
v. Eureka County, 25 Nev. 359, it was held that claims for furnishings or alterations,
amounting to or aggregating more than the maximum authorized, without advertising for
bids, could not be recovered, although ordered or approved by the board of county
commissioners, and in these cases, and in many others, some of which are cited therein and at
page 476 of 11 Cyc., the principle is conclusively enunciated that boards of county
commissioners derive their authority solely from the statutes, and the exercise of their powers
is restricted to the method prescribed by law, and whoever deals with them does so with full
notice of the extent of their power and the manner of its exercise.
Respondent relies largely upon the opinion in Pacific Bridge Co. v. Clackamas County (C.
C.) 45 Fed. 217. A close examination of that case reveals that it does not apply under our
statute and the facts existing here, except that it cites and distinguishes Milling Company v.
Lane County, 5 Or. 265, which supports and is favorable to appellant. In the Clackamas
County case the board ordered changes to be made in the abutments, and the court held that
the statute had been so amended that the board was authorized to make alterations without
advertising for bids. There the statute required no notice, and the work was ordered by the
proper board as authorized by statute. Here the statute requires notice where the value of the
work exceeds $100, and none was given, and the work was not ordered or authorized by
the board or officers empowered by law.
the work was not ordered or authorized by the board or officers empowered by law. In the
Lane County case the bridge was built under the supervision of a superintendent appointed by
the county court. He bought lumber for an apron to the bridge without being authorized, and
it was held by the supreme court that the county was not liable for the price of the lumber. It
was said in the opinion: The plaintiffs place their right to recover on the ground that the
superintendent Powers made a contract for the lumber with plaintiffs, which the defendant, by
accepting the bridge and offering to pay part of the price of the lumber, ratified and adopted
as the contract of the county. This amounts simply to an implied contract from alleged
benefits received. The general doctrine unquestionably is that, when one receives the benefit
of another's work or property, he is bound to pay for the same, and this doctrine applies as
well to corporations as to individuals in cases where there is no restriction imposed by law
upon the corporation against making in direct terms a contract like the one sought to be
implied; but, where there exist legal restrictions which disable a corporation to agree in
express terms to pay money, the law will not imply any such agreement against the
corporation. (Brady v. Mayor, 2 Bosw. 173; Zottman v. San Francisco, 20 Cal. 102-105, 81
Am. Dec. 96.) This rule may sometimes work a hardship upon a contractor, who, without
having considered whether the law has been complied with or not, has performed labor or
furnished material for a public corporation, and expects compensation therefor, the same as if
it had been done or furnished for a private individual. But nevertheless the authorities hold
that a contractor, no less than officers of a municipal corporation, when dealing in a matter
expressly provided for by law, must see to it that the law is complied with. Where work is
done, without authority, upon the streets of a city, liability does not follow because the streets
must be improved thereby, or their use continued. Such continued use constitutes no such
evidence of acceptance as to create a liability against the corporation. (20 Cal. 107.)
It is not necessary to consider the other questions which have been argued by counsel.
It is ordered that the judgment be reversed, and the case remanded to the district court.
____________
31 Nev. 237, 237 (1909) Western Eng'g & Constr. Co. v. Nevada Amusement Co.
[1762]
WESTERN ENGINEERING AND CONSTRUCTION COMPANY and TONOPAH
LUMBER COMPANY, Plaintiffs, v. THE NEVADA AMUSEMENT COMPANY and
PATRICK WALSH and WILLIAM EASTON, Respondents, and INTERSTATE LUMBER
AND MILL COMPANY, Intervener and Appellant.
1. Appeal and ErrorDismissalBill of ExceptionsDelay in FilingReinstatement.
Respondent procured the dismissal of an appeal for delay, producing a certificate from the deputy clerk,
stating that no application had been made to have the transcript certified. Appellant thereafter moved to
have the case reinstated, on an affidavit that the transcript, complete except as to the clerk's certificate, was
presented to the clerk before the time required, and that appellant was unable to secure a certificate until a
day later than that on which the case was dismissed, because the papers were in the possession of a referee,
or had been mislaid, and were not found until the day on which the clerk certified the transcript, which was
two days before the service of appellant's affidavit on respondent, and four days before the filing of the
affidavit in the supreme court. Held, that the delay was not caused by the laches of appellant or its
attorneys, and that it was entitled to reinstatement.
Action by the Interstate Lumber and Mill Company against the Nevada Amusement
Company and another. Judgment for defendants, and plaintiff appeals. On motion for
reinstatement after dismissal for delay. Granted.
Thompson, Morehouse & Thompson, for Appellant.
D. S. Truman, for Respondent.
The respondent had the appeal dismissed upon his presentation of a certificate from the
clerk of the district court, signed by the deputy, complying with Rule 3 of this court,
showing, among other things, that there had been undue delay since the filing of the
notice and undertaking upon appeal and settlement of the bill of exceptions, and stating
that neither the appellant nor his attorneys had ever requested the clerk to certify to the
record.
31 Nev. 237, 238 (1909) Western Eng'g & Constr. Co. v. Nevada Amusement Co.
signed by the deputy, complying with Rule 3 of this court, showing, among other things, that
there had been undue delay since the filing of the notice and undertaking upon appeal and
settlement of the bill of exceptions, and stating that neither the appellant nor his attorneys had
ever requested the clerk to certify to the record. The appellant has moved to have the case
reinstated, and in support of his motion has filed the affidavit of his attorney stating that the
transcript, complete except as to the certificate of the clerk, was prepared and presented to the
clerk long before the time required by Rule 2; that appellant was unable to secure the
certificate of the clerk to the transcript until a date later than that on which the case was
dismissed, for the reason that all the papers were out of the possession of the clerk, and were
in the possession of the referee, or had been mislaid, and were not returned or found until the
date on which the clerk certified to the transcript, which was two days before the service of
appellant's affidavit on respondent, and four days before the filing of the affidavit in this
court.
It will be observed that the certificate, in support of the motion to dismiss, in its statement
that no application was made to have the transcript certified, is in conflict with the affidavit
stating that such application was duly made, and that the delay in certifying the transcript by
the clerk was no fault of appellant. The inconsistency may have occurred by reason of the
application for the certifying of the record having been made to the clerk, and the certificate
stating that it had not been made, issued by his deputy. Under these circumstances we
conclude that the delay was not caused by the laches of the appellant or its attorneys. If the
matter were doubtful, it would still be better to reinstate the appeal. Respondent has objected
to the sufficiency of the transcript; but, as it has not yet been filed, these objections can be
more appropriately considered after the case is restored and counsel have prepared their
briefs.
It is ordered that the case be reinstated, and that the appellant be allowed fifteen days in
which to file the transcript on appeal.
____________
31 Nev. 239, 239 (1909) Cline v. Langan
[No. 1797]
THOMAS H. CLINE, Relator, v. FRANK P. LANGAN, as Judge of the District Court of the
First Judicial District of the State of Nevada, in and for Esmeralda County, and J. C. SCOTT
and W. M. ZIMMERMAN, Copartners Doing Business as SCOTT & ZIMMERMAN,
Respondents.
1. ReferencePowers of RefereeTerminationRehearing.
Referees appointed in an action involving a leasehold to try all issues and report, after trial and reporting
in favor of defendant, had no further authority, and could not make a subsequent order suspending all
proceedings pending a motion for new trial about to be filed by plaintiffs.
2. ContemptDisobedience of Void OrderStay of Proceedings.
An order by referees staying proceedings, being beyond the power of the referees to make after their
report was filed, the court could not punish for contempt for violation thereof.
3. ContemptStay of Proceedings Pending Motion for New Trial.
In an action relating to a leasehold and rents, an order by referees staying proceedings pending a motion
for a new trial, if regularly made, would not be valid against a second action by defendant for rents
accruing after the commencement of the first action, and the court could not punish defendant for contempt
for bringing such action.
4. ProhibitionNature of Order ProhibitedPunishment for Contempt.
Proceedings for contempt being quasi criminal, the petition or affidavit must show contempt before the
court has jurisdiction to punish, and, where the court attempts to punish for violation of a void order by
referees, prohibition will issue, and the party is not required to review by appeal.
Original proceeding. Application by Thomas H. Cline for a writ of prohibition to restrain
Frank P. Langan, District Judge, and others, from attempting or proceeding further to punish
relator for contempt. Writ granted.
Statement of Facts
The essential facts are undisputed: Respondents, Scott & Zimmerman, brought an action
against relator and one S. H. Harris, and another suit against the petitioner alone, which
related to a leasehold interest and rents. The actions were consolidated, pursuant to stipulation
of the parties. On June 27, 1908, the court appointed three referees to try any and all issues
in said causes, whether of law or of fact, and to report findings, conclusions of law, and
judgment and decree thereon, as fully and to all intents and purposes as the court might or
could do, if said reference were not made."
thereon, as fully and to all intents and purposes as the court might or could do, if said
reference were not made. After trial, and on August 8, 1908, the referees returned and
entered in the consolidated actions findings of fact and conclusions of law and judgment
favorable to Cline, defendant therein and relator here. Thereafter two of the referees made an
order dated the 14th, and filed the 17th day of August, which recited that whereas an
application had been made for a stay of proceedings and granted on condition that plaintiffs
furnish an undertaking in the sum of $1,000, and the undertaking had been filed and
approved, It is therefore ordered that all proceedings in the above consolidated actions be
suspended, and the same are hereby stayed and suspended pending a motion for a new trial
about to be filed by plaintiffs herein.
On the 12th day of September, 1908, relator, as plaintiff, commenced an action in the
district court against Scott & Zimmerman for rents accruing after the commencement of the
actions against him and after the appointment of the referees, and alleged to have accrued
after the termination of the lease which was in dispute, and had an attachment issued and
garnishment notices served. On the 16th day of September the court denied the application of
Scott & Zimmerman to dissolve the attachment and to dismiss the action of Cline against
them, upon the ground that the matter was not properly before the court upon the motion
made, but ordered that the defendant obey and respect in all respects, according to the true
intent and meaning of the same, the said order made by the referees. Upon an affidavit of W.
M. Zimmerman, filed on the 17th day of September, the court cited relator to appear on the
21st day of September to show cause why he should not be punished for contempt as in said
affidavit alleged.
The matter came on for hearing at that time, and later the court, after reciting the fact of
the entry of the judgment of the referees, and that their order staying the proceedings in the
consolidated actions of Scott & Zimmerman had been served upon relator, the citing of the
latter to show cause why he should not be punished for contempt, and that after citation he
had proceeded to have the sheriff serve the writ of attachment, "ordered that said Thomas
H.
attachment, ordered that said Thomas H. Cline be, and he is hereby, adjudged guilty of
contempt in disobeying wilfully the orders of this court as aforesaid, he having the power to
obey said orders, and it is adjudged that said Thomas H. Cline dismiss the action of Thomas
H. Cline v. Scott & Zimmerman, commenced in this court on the 12th day of September,
1908, and upon his refusal to do so that he be committed to the custody of the sheriff of
Esmeralda County until he complies with the order of this court. This order to take effect on
the 15th day of October, 1908, at the hour of 10 o'clock a.m. thereof.
August Tilden, for Relator.
D. S. Truman, for Respondents:
I. The writ of prohibition will not lie in this case. (21 Nev. 47, and authorities cited; 6 L.
R. A. 430; 36 Pac. 626; 5 Wyo. 34; 10 L. R. A. 159.) The facts constituting the contempt will
be taken as true, by the appellate court. (Holman v. State, 105 Ind. 513.) The original order
will not be inquired into. (4 Paige, 405.) The demurrer should be sustained. (24 Pac. 121; 10
L. R. A. 627; 64 Cal. 345; 203 Mo. 175.)
II. This a clear case of contempt. (Hamill v. Bank, 21 Colo. 175; State v. Johnson, 13 Fla.
33; State v. Lambertville, 46 N. J. Law, 39; Palchin v. Brooklyn, 13 Wend. 664; McLaughlin
v. Janney, 2 Grat. 609.) The imprisonment ordered here is within the power of the court and
its jurisdiction. (9 Cyc. 53, and authorities cited.)
III. The very question before the court was as to whom the rent was to be paid. This was
determined by the judgment. This judgment was stayed by the order. The action of Cline is to
obtain judgment for the rent. In order to collect rent the relator had to recognize the relation
of landlord and tenant, no matter what amount the rent might be. (21 Nev. 65.) Such being the
case, it cannot be contended that the right to the rent was not directly involved in and by the
judgment which had been superseded by the stay order.
IV. No application was made to the lower court to remedy the evils complained of, but
the pleadings here show that relator never in any manner questioned the validity of the
stay order.
edy the evils complained of, but the pleadings here show that relator never in any manner
questioned the validity of the stay order. (Ex Parte Little Rock, 26 Ark. 52; 52 Cal. 517; 59
Cal. 476.)
By the Court, Talbot, J. (after stating the facts as above):
The order directing that all proceedings in the consolidated cases against relator be stayed
pending the motion for a new trial, made by the referees after they had heard the causes,
entered their findings of fact and conclusions of law and judgment, and thereby completed
their duties, was neither authorized by the statute nor purported to be authorized by the
stipulation and order under which they were appointed. This order being void, the subsequent
orders of the court attempting to enforce it and to punish the relator for failure to comply with
it were likewise void and beyond the jurisdiction of the court. If it had been within the powers
of the referees to make the stay order, or if the court had made one in the same terms, it only
purported to stay the proceedings, more impliedly those relating to execution, in the actions
which had been brought against the relator, and contained no language prohibiting him from
commencing suit against Scott & Zimmerman. Nor do we see how they, by bringing actions
against him, or the court in those actions, could have made any valid order which would have
prevented him from exercising his right to start suit and have an attachment levied to secure
the amount which he claimed to be due him for rent accruing after the cases had been brought
against him, and after the lease had expired, and which cause of action or claim naturally
could not have been directly within the issues in those cases nor protected by any stay bond in
them.
The findings and judgment were in his favor for the leased interest and for the rent within
the issues of the suits against him. Surely, this ought not to prevent him from seeking to
secure by attachment the rent running later, and, if he asked for any that was within the issues
of the former cases, Scott & Zimmerman could have pleaded that the former judgment was
res adjudicata.
It is provided in the civil practice act:
Sec. 184 (Comp. Laws, 3279). A reference may be ordered upon the agreement of the
parties filed with the clerk, or entered in the minutes: FirstTo try any or all of the issues in
an action or proceeding whether of fact or law, and to report a judgment thereon. SecondTo
ascertain a fact necessary to enable the court to proceed and determine the case.
Sec. 189 (Comp. Laws, 3284). The referees shall make their report within ten days after
the testimony before them is closed. Their report upon the whole issue shall stand as the
decision of the court, and upon filing the report with the clerk of the court, judgment may be
entered thereon in the same manner as if the action had been tried by the court. The decision
of the referees may be excepted to and reviewed in like manner as if made by the court. When
the reference is to report the facts, the report shall have the effect of a special verdict.
Brewer, J., now one of the justices of the United States Supreme Court, writing the
opinion in Arn v. Coleman, 11 Kan. 461, said: A referee is born of an order; without it he is
not.' And when he has performed the duty imposed by that order he is functus officio, and his
acts are no more than the acts of a private individual. Up to the time his report is made and
filed he can modify and change it; he can alter and amend it. But when once it has been filed
and become a record of the court, his power over it is at an end, and his relation to the case
has ceased.
The language used is approved in Robinson v. Nelson, 4 Idaho, 571, 43 Pac. 64.
In Pratt v. Stiles, 17 How. Prac. (N.Y.) 221, it was said: The whole action and all the
issues therein were referred to the referee for trial. He tried the cause upon the issues
presented, and determined that the plaintiff was entitled to redeem, and ascertained and
declared the amount he should pay to perfect such redemption, and decided that the plaintiff
should recover the costs of the suit, and made and signed and delivered his report, directing
final judgment. This terminated the jurisdiction and powers of the referee.
In Railway Co. v. Bradley, 7 Ind. 53: The power of the arbitrator or referee expires with
the return of the award of report into court. * * *(French v. Moseley, 1 Litt. Ky. 246;
Lansdale v. Kendall, 4 Dana, Ky. 613; Aldrich v. Jessiman, 8 N. H. 516.)
Conklin v. Morton, 40 Ind. 77: When a referee has made his report, his powers and
functions are as much ended as those of arbitrators when they have made their award, or of a
jury when they have ended their verdict and been discharged.
Coope v. Bowles, 42 Barb. (N.Y.) 95: The powers of the referee to hear and decide are
terminated when he has made his report, with the exception that he can settle his form of the
case and the findings of fact and conclusions of law.
Daverkosen v. Kelley, 43 Cal. 478: Prior to the last order the referee had taken the
testimony and reported a judgment. The powers conferred by the stipulation were then
exhausted. (Headley v. Reed, 2 Cal. 325.)
It is claimed that the orders made by the district court were within its jurisdiction, and that,
if any errors were committed, they can only be reviewed by appeal. Such is the rule generally;
but proceedings to punish for contempt are quasi criminal in their nature, and the petition or
affidavit on which they are based must state facts showing contempt before the court has any
jurisdiction to punish. (Lutz v. District Court, 29 Nev. 153, citing Adams v. Haskell, 6 Cal.
316, 65 Am. Dec. 517; Ex Parte Spencer, 83 Cal. 460, 23 Pac. 395, 17 Am. St. Rep. 266;
Galland v. Galland, 44 Cal. 478, 13 Am. Rep. 167; Ex Parte Cottrell, 59 Cal. 421; Ex Parte
Gordan, 95 Cal. 377, 30 Pac. 561; Ex Parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11
Am. St. Rep. 207; State ex rel Olson v. Allen, 14 Wash. 684, 45 Pac. 644; Phillips v. Welch,
12 Nev. 164; Batchelder v. Moore, 42 Cal. 414; 9 Cyc. 38; Young v. Cannon, 2 Utah, 560,
594.)
In Phillips v. Welch, 12 Nev. 164, Chief Justice Hawley, quoting with approval from a
case in California under a statute identical with ours, said: The powers of the court to
punish for an alleged contempt of its authority, although undoubted, is in its nature arbitrary,
and its exercise is not to be upheld, except under the circumstances and in the manner
prescribed by law.
manner prescribed by law. It is essential to the validity of proceedings in contempt, subjecting
a party to a fine and imprisonment, that they show a case in point of jurisdiction within the
provisions of the law by which such proceedings are authorized, for mere presumptions and
intendments are not to be indulged in their support. The statute of this state regulating
contempts and their punishments provides that when the alleged contempt is not committed
in the presence of the court an affidavit of the facts constituting the contempt shall be
presented.
* * * If there be no affidavit presented, there is nothing to set the power of the court in
motion; and if the affidavit as presented be one which upon its face fails to state the
substantive facts which in point of law do, or might, constitute a contempt on the part of the
accused, the same result must follow, for there is no distinction in such a case between the
utter absence of an affidavit and the presentation of one which is defective in substance in
stating the facts constituting the alleged contempt. (Batchelder v. Moore, 42 Cal. 414.)'
(Comp. Laws, 3556.)
It is ordered that a writ issue as prayed for prohibiting the district court from attempting or
proceeding further to punish relator for contempt under the orders set out in the petition.
_____________
31 Nev. 246, 246 (1909) State v. Niblett
[No. 1765]
THE STATE OF NEVADA, Respondent, v. WILLIAM NIBLETT, Appellant.
1. IndiansSelling Liquor to IndiansEvidence.
Evidence, on a prosecution for selling liquor to an Indian, not a ward of the United States, in violation of
the statute, held sufficient to show the person to whom the sale was made was an Indian, and, conceding
that it was necessary for the state to show it, that she was not a ward of the United States.
2. IndiansSelling Liquor to IndiansIndictment.
An indictment for violation of the statute making it an offense to sell liquor to an Indian within the state,
averring that defendant in the town of Tonopah, Nye County, Nevada, sold liquor to an Indian, is
sufficient without specific averment that the Indian was at the time within the state; Comp. Laws, 4208,
declaring an indictment sufficient if the act charged as the offense is clearly and distinctly set forth in
ordinary and concise language, without repetition, in such a manner as to enable a person of common
understanding to know what is intended, warranting the reading of the quoted words to apply to the entire
transaction constituting, or necessary to constitute, the offense.
Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye
County; J. P. O'Brien, Judge.
William Niblett appeals from a conviction. Affirmed.
J. H. Morris and H. H. Atkinson, for Appellant:
I. What has Mary Kawich done to throw off the guardianship that the government naturally
exercised over her? How has it been shown that she was not a ward of the government? So
long as tribal organization is recognized by the United States government, it continues to be a
tribe, and the Indians are wards of the government, even though a majority of them leave the
organization. (2 Cyc. 119, par. d.) A tribe may cease to exist by a complete withdrawal of its
members from tribal relations, but the withdrawal of even a majority of the tribe will not
terminate the organization.
II. The indictment in this case does not state that the defendant sold or otherwise disposed
of intoxicating liquor to an Indian within the state. The words of the indictment are as
follows: The said William Niblett, in the town of Tonopah, County of Nye, State of
Nevada, on the 1Sth day of February, 190S, did unlawfully sell whisky to a certain Indian
named Mary Kawich," etc.
pah, County of Nye, State of Nevada, on the 18th day of February, 1908, did unlawfully sell
whisky to a certain Indian named Mary Kawich, etc. Where is the allegation that the alleged
Indian was at the time of the sale, or at any other time, within the state? There is no such
allegation. The indictment alleges that the liquor sold within this state to an Indian named
Mary Kawich. It is impossible to deduce or to presume from this statement that the alleged
Indian, Mary Kawich, was within this state when the liquor was sold to her. And presumption
or doubt must be made or given to the defendant. We repeat that there is no allegation in the
complaint that the Indian, at the time the alleged sale, barter or gift was made by William
Niblett in the town of Tonopah, Nye County, Nevada, was within the state.
III. Section 4208, subdivision 4, of the Compiled Laws of Nevada provides that the
indictment must show that the alleged offense was committed within the jurisdiction of the
court. For the above reason, we hold that the indictment in this case fails completely to show
this important fact. Therefore the court had no jurisdiction over the subject of indictment and
had no right to pass judgment on the defendant.
I. There is nothing in the record to dispute the position of the state that Mary Kawich was
not a ward of the government of the United States. All the evidence shows that she was not,
and from the record we cannot see how any determination can be reached except that she was
not a ward of the government of the United States.
Appellant was convicted upon the following indictment:
The above-named defendant, William Niblett, is accused by the grand jury of the Fifth
Judicial District Court of the State of Nevada, in and for the County of Nye, of a felony, to
wit, the crime of disposing of intoxicating liquor to an Indian, who was then and there not a
ward of the government of the United States, committed as follows: The said William Niblett
in the town of Tonopah, Nye County, Nevada, on the 1Sth day of February, A. D. 190S, or
thereabouts, and before the finding of this indictment, did unlawfully and feloniously sell,
barter, give, or dispose of a quantity of intoxicating liquor, viz., whisky, to a certain
Indian named Mary Kawich, she, the said Mary Kawich, then and there not being a ward
of the government of the United States.
on the 18th day of February, A. D. 1908, or thereabouts, and before the finding of this
indictment, did unlawfully and feloniously sell, barter, give, or dispose of a quantity of
intoxicating liquor, viz., whisky, to a certain Indian named Mary Kawich, she, the said Mary
Kawich, then and there not being a ward of the government of the United States. All of which
is contrary to the form, force, and effect of the statute, etc.
From the judgment, and an order denying his motion for a new trial, defendant appeals.
The indictment in this case was based upon the provisions of that certain act of the
legislature of this state entitled An act to prohibit the disposal of intoxicating liquors, drugs,
or other intoxicating substances to Indians (Stats. 1903, p. 49, c. 30), section 1 of which act
reads as follows: Section l. After the passage of this act it shall be unlawful for any person to
sell, barter, give or in any manner dispose of any ardent, spirituous or malt liquors, or any
intoxicating liquors, liquids, drug or substance, whatsoever, to any Indian within this state,
and any such person or persons so unlawfully disposing of such intoxicants, within this state,
to an Indian who is not a ward of the government of the United States shall be deemed guilty
of a felony, and upon due conviction thereof, before any court of competent jurisdiction, shall
be fined in any sum not less than five hundred dollars, nor more than one thousand dollars, or
be imprisoned in the state prison of the State of Nevada for a term not less than one year nor
more than five years, or by both such fine and imprisonment, in the discretion of the court.
It is contended upon the part of appellant that the evidence was insufficient to support the
verdict, in that it failed to establish either the fact that the person Mary Kawich was an Indian,
or that she was not a ward of the government of the United States. The evidence showed at
the time of the trial that the said Mary Kawich was dead. One Mike Clifford testified that he
was a brother of the deceased Mary Kawich; that they had the same mother and father; that
she was a Shoshone Indian; that she was not born on, and did not live on, a reservation; that
the Shoshones, her tribe, did not have a reservation; that she never received from the
government any allotment of land; that the government did not exercise any
superintendence, guardianship, or wardship over her; that she went from place to place in
the state as she felt like; that she was born in this state, and lived all her life here.
any allotment of land; that the government did not exercise any superintendence,
guardianship, or wardship over her; that she went from place to place in the state as she felt
like; that she was born in this state, and lived all her life here. We think this testimony was
sufficient to warrant the jury in concluding that the person Mary Kawich was an Indian within
the purview of the statute in question. Conceding, without deciding, that it was incumbent
upon the state to establish the fact that the said Mary Kawich was not a ward of the
government of the the United States, we think the evidence in this case, standing as it does
without contradiction, was sufficient upon the point in question. (State v. Howard, 33 Wash.
250, 254, 74 Pac. 382.)
It is contended that the indictment fails to charge a public offense, because it does not
allege that the Indian Mary Kawich was, at the time of the sale and disposal of the liquor to
her by defendant, within this state. It may be conceded that the indictment could have been
more specific in this regard, but we think it cannot be said that it is so deficient that a person
of common understanding could fail to know what was intended. (Comp. Laws, 4208; State
v. Lovelace, 29 Nev. 47.) We think the rule of law governing the interpretation of indictments
as declared by this court warrants the reading of the words in the town of Tonopah, Nye
County, Nevada, to apply to the entire transaction constituting, or necessary to constitute, the
offense. It would require a stretch of the imagination, we think, for one to conclude that
possibly the indictment did not mean to allege that the Indian Mary Kawich was not at the
place where the other alleged acts occurred.
In considering an indictment which, we think, was fully as objectionable as the one at bar,
this court, by Fitzgerald, C. J., in State v. Lovelace, supra, said: The sections of the statute
above quoted show the legislative intent was that the courts of the state should give
interpretations liberal to sustain, rather than rigid to overthrow, indictments, when, as in this
case, substantial rights of defendants are not thereby prejudiced, etc.
The record contains some additional assignments of error, but we think they are not
sufficiently meritorious to require further notice.
but we think they are not sufficiently meritorious to require further notice.
_____________
31 Nev. 250, 250 (1909) Golden v. District Court
[No. 1826]
FRANK GOLDEN, Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, NYE COUNTY, MARK R. AVERILL,
Judge, et al., Respondents.
1. Banks and BankingDissolutionAppointment of ReceiverProceedingsNotice.
Under Stats. 1903, p. 155, c. 88, sec. 94, providing that, whenever the assets of a corporation are in
danger of waste from litigation, any holder or holders of one-tenth of the capital stock may apply to the
district court for an order dissolving the corporation and appointing a receiver, and Comp. Laws, 3212,
providing that an injunction suspending the business of a corporation shall not be granted without due
notice of the application, in a proceeding by stockholders to appoint a receiver for a bank and to enjoin its
further operation, the directors of the bank must be made parties to the proceeding, and notice commanding
an appearance forthwith to show cause why a receiver should not be appointed is not a sufficient notice,
and all orders made in such a proceeding without making the directors parties are void.
2. AppearanceEffect of Appearance Without Service of Process.
A proper appearance will give a court jurisdiction over a party to an action independent of the service of
process.
3. ProhibitionProceedings of CourtsAppointment of Receiver for Bank.
Where a court, in appointing a receiver of a bank, had no jurisdiction of the proceeding because
necessary parties had not been served with notice, prohibition is the proper remedy to restrain the court and
the receivers appointed from proceeding under the order appointing the receiver and all orders subsequent
thereto and based thereon.
Original proceeding. Application by Frank Golden for a writ of prohibition against Mark
R. Averill, as District Judge, and others. Writ issued.
James T. Boyd and A. N. Salisbury, for Petitioner.
Bartlett, Thatcher & Gibbons, for Respondents:
I. Prohibition does not lie when remedies can be had by appeal on writ of error. (High on
Extraordinary Legal Remedies, 765; People v. Westbrook, S9 N. Y. 152; State v. Corey, 35
Minn. 17S; State v. District Judge, 3S La.
edies, 765; People v. Westbrook, 89 N. Y. 152; State v. Corey, 35 Minn. 178; State v. District
Judge, 38 La. Ann. 921.) The order and decree of the District Court of the Fifth Judicial
District of the State of Nevada, in and for the County of Nye, complained of by petitioner
herein, is an injunction, and is therefore appealable. (Comp. Laws, 3425; Turner v. Langan,
29 Nev. 281; Bell v. District Court, 28 Nev. 280; Wolcott v. Wells, 21 Nev. 51.) Petitioner
must show affirmatively that the court is about to proceed in a matter where it has no
jurisdiction. (Haldeman v. Davis, 28 W. Va. 324.) Want of jurisdiction must affirmatively
appear on the record. (High on Extraordinary Legal Remedies, 766; In Re Cooper, 143 U. S.
472.)
II. The nature of an action determines the jurisdiction of the subject-matter regardless of
sufficiency or its presentation or statement, and if the action is of such nature as to fall within
the jurisdiction of the district court, prohibition will not lie merely because of insufficiency in
statement of case in pleadings, or because of insufficient proof to maintain the execution as
stated. (High on extraordinary Legal Remedies, 767; State v. Fournet, 45 L. Ann. 943; Bishop
v. McKinley, 84 Pac. 435.) The superior court on hearing for the writ of prohibition will not
constitute itself an appellate court to review errors or irregularities which may have occurred
at the trial. (McConiaha v. Guthrie, 21 W. Va. 134; Ex Parte Ellison, 20 Grat. 10; High on
Legal Remedies, 767, 770, 772; State v. Road Commissioners, 12 Am. Dec. 608.)
This is an original proceeding in prohibition. The petitioner, Frank Golden, is the president
of the Nye and Ormsby County Bank, a corporation. Respondent Mark R. Averill is Judge of
the Fifth Judicial District Court of the State of Nevada, in and for the County of Nye.
Respondents J. J. Mullin and Gilbert C. Ross are receivers of the said Nye and Ormsby
County Bank, appointed by said respondent Averill, judge as aforesaid, on the 24th day of
February, 1909. Petitioner prays for a writ to prohibit respondents from proceeding further
under said order of February 24th appointing said receivers, and from proceeding under an
order made on the 9th day of March, 1909, by the said respondent Mark Averill, judge as
aforesaid, requiring petitioner herein to appear and show cause why he should not be
punished for contempt for refusing to deliver to said receivers, upon demand being made
upon him therefor, the assets and property of said corporation in his possession, including
the books, papers, and records of said corporation; and also from further proceeding
under any order made subsequent to and in pursuance of said order of February 24th.
receivers, and from proceeding under an order made on the 9th day of March, 1909, by the
said respondent Mark Averill, judge as aforesaid, requiring petitioner herein to appear and
show cause why he should not be punished for contempt for refusing to deliver to said
receivers, upon demand being made upon him therefor, the assets and property of said
corporation in his possession, including the books, papers, and records of said corporation;
and also from further proceeding under any order made subsequent to and in pursuance of
said order of February 24th.
The following are all the facts shown upon the hearing of this cause which we deem
necessary for a consideration of the legal questions presented:
On the 24th day of February, 1909, a petition was filed in the lower court praying for the
appointment of a receiver and for the ultimate dissolution of the Nye and Ormsby County
Bank, a corporation, pursuant to the provisions of section 94 of an act entitled An act
providing a general corporation law. (Stats. 1903, p. 155, c. 88.)
The petition is entitled as follows: In the Fifth Judicial District Court of the State of
Nevada, in and for Nye County. In the matter of the application for the dissolution of the Nye
and Ormsby County Bank, a corporation, and the appointment of a receiver thereof to wind
up its affairs.
The petition alleges: That the Nye and Ormsby County Bank is a corporation duly
incorporated under the laws of the State of Nevada, with principal place of business at
Tonopah in the said County of Nye, engaged in a general banking business at said town of
Tonopah and maintaining a number of branch banks in other towns and cities in this state.
That it has a capital stock of $500,000, divided into 5,000 shares of the par value of $100
each, of which amount of stock 3,972 shares have been issued. That of the petitioning
stockholders Frank Golden is the owner of 700 shares and James J. McQuillan, T. W.
Kendall, and W. J. Douglass the owners of 100 shares each. That the assets of the said
corporation are of the value of $1,600,000. That the amounts due depositors do not amount to
the sum of $400,000, and the other liabilities of said corporation do not exceed the sum of
$200,000.
That the amount due the stockholders is the par value of the issued stock, $397,200. That said
corporation is solvent, but, owing to the prevailing financial stringency in the State of Nevada
and the United States, is unable to procure and has not the actual coin needed to pay all of its
obligations in full. That on the 23d day of February, 1909, the said corporation ceased to do
any banking business and to receive or pay out deposits. That by reason of the foregoing facts
the assets of said corporation are in danger of waste through attachment and litigation. That if
a receiver is appointed to wind up the affairs of the corporation, the assets of said corporation
will be sufficient to pay all the depositors, creditors, and stockholders; otherwise, the assets
will be sacrificed and sold below their real value, and a serious loss and injury sustained. That
none of the directors of said corporation have been guilty of any negligence nor active breach
of duty. Wherefore petitioners pray that an order to show cause issue forthwith why a
receiver should not be appointed herein * * * with full power and authority to wind up the
affairs of said corporation and to liquidate all its business, and that an injunction issue herein
prohibiting and restraining said corporation * * * from exercising any of its powers and doing
any business whatsoever, and at the due and proper time and on sufficient cause shown to this
court, it make its decree dissolving said corporation and terminating its existence. Frank
Golden, by Jas. J. McQuillan. Jas. J. McQuillan. W. J. Douglass. T. W. Kendall.
Upon the same day and immediately following the filing of the said petition, the court
issued an order or citation including an injunction, which, after reciting the fact of the filing
of the said petition and that good cause appeared therefrom for the appointment of a receiver
for the purposes aforesaid, commanded: Now, therefore, it is hereby commanded that you,
the Nye and Ormsby County Bank, a corporation, appear and show cause forthwith before the
above honorable court at the court-house in Tonopah, Nye County, Nevada, why this court
should not make and enter its decree appointing a receiver with all the power and authority
authorized and conferred by the laws of the State of Nevada for the purpose of winding up
the affairs of the Nye and Ormsby County Bank, a corporation, and for a decree at the due
and proper time and upon sufficient showing dissolving said corporation and terminating
its existence.
winding up the affairs of the Nye and Ormsby County Bank, a corporation, and for a decree at
the due and proper time and upon sufficient showing dissolving said corporation and
terminating its existence. And it is further ordered and commanded that, until the further
order of this court, you, the said Nye and Ormsby County Bank, a corporation, your officers,
agents, employees, and servants, desist and refrain from exercising any of the corporate
powers of said the Nye and Ormsby County Bank, a corporation, or doing any business
whatsoever. It is further ordered that this order to show cause and injunction be served upon
the secretary of the said the Nye and Ormsby County Bank, a corporation. Done in open court
this 24th day of February, 1909. Mark R. Averill, Judge of said District Court.
This order or citation was returned by the sheriff as having been served on the secretary of
said banking corporation on the day of its issuance. At 5 o'clock p.m. of the same day, the
matter came on to be heard before the court. Findings of fact and conclusions of law were
made and filed, and an order and decree, together with an injunction, entered. The findings of
fact recited: That the petitioners appeared in open court by Messrs. Bartlett, Thatcher &
Gibbons, their attorneys, and said Nye and Ormsby County Bank appearing in open court by
A. M. Nye, its attorney, and said bank being further present in court by James J. McQuillan,
its vice-president, and C. H. Phillips, its secretary. Findings of Fact. Said court finds each
and all the allegations and averments set forth and contained in said petition to be true. The
court further finds that none of the directors of the said the Nye and Ormsby County Bank, a
corporation, have requested or asked that they or either of them be appointed receivers of said
the Nye and Ormsby County Bank, a corporation. By the order and decree entered in
pursuance of the findings of fact and conclusions of law, said respondents, J. J. Mullin and
Gilbert C. Ross were appointed receivers of the property and effects of said bank wherever
the same may be situate, and further ordered to proceed diligently to wind up the affairs of
said corporation, and to distribute its assets, subject, however, to the control and further order
of this court.
It was further ordered that the temporary injunction be made permanent. The order and
decree also fixed the bond of the receivers at $5,000, subject to be increased by the court at
any time. Upon the 15th day of March, 1909, in pursuance of an affidavit made and filed by
said receivers, an order was made by said respondent judge, reciting that it appearing from
said affidavit of said receivers that Frank Golden, petitioner herein, had failed and refused to
comply with the said decree and order of court made on the 24th day of February, 1909, after
demand made upon him therefor, and ordering that said Golden appear and show cause why
he should not be punished for contempt in refusing to obey the orders of said court in the
premises. Upon the 22d day of March, 1909, the said Frank Golden, petitioner herein, filed a
motion to vacate and set aside the order and decree appointing the receivers and the order
citing him for contempt, and also an answer to the citation for contempt, both of which
attacked the jurisdiction of the court to make the decree and order of February 24, 1909.
The motion to vacate and set aside was based upon the grounds: That the said Golden
never signed or authorized his signature to the petition asking for the appointment of a
receiver, nor that he consented to the same, but that said petition was made, signed, and filed
without his consent, knowledge, authorization, or approval; that the said bank was at the time
of making the decree and order subject to the banking laws of the state, and subject to the
control and supervision of the board of bank commissioners, and was then being investigated
by the state bank examiner; that on the 18th day of March, 1909, in pursuance of an order of
the state board of bank examiners, the attorney-general had instituted a suit in the name of the
state upon the relation of the attorney-general and the members of the board of bank
commissioners as plaintiffs, against the said Nye and Ormsby County Bank, and the directors
thereof, seven in all, as defendants, which suit prays for the appointment of a receiver; that
said decree and order was in violation of that certain act entitled An act creating a board of
bank commissioners, defining their duties, providing for the appointment of a bank examiner,
prescribing his duties, * * * and other matters relating thereto," approved March 26, 1907
{Stats.
iner, prescribing his duties, * * * and other matters relating thereto, approved March 26,
1907 (Stats. 1907, p. 229, c. 119); that the court had no jurisdiction of the subject-matter of
said proceeding and had and has no jurisdiction of the parties thereto; that no service of any
notice of the filing or the hearing of said petition of February 24th, or the order to show cause
bearing the same date, was made upon all of the directors and stockholders of said bank; and
that some thereof never had any notice or knowledge of the filing or hearing of said petition
or of said order to show cause, and no opportunity to appear and claim their preferential rights
to be appointed as receivers in said matter. Attached to the said notice of motion was the
affidavit of Neal McLean that he was at all times mentioned a stockholder and director of said
bank, that he had no notice or knowledge of the said proceedings nor opportunity to make any
showing or to claim his preferential rights to be appointed a receiver. Also, was attached the
affidavit of said Golden that his name had been signed to the petition without his knowledge,
consent, authorization, or approval.
The hearing in the contempt proceedings against petitioner was begun on the 23d day of
March, 1909. Prior to the beginning of such hearing, counsel for Golden requested the court
to take up in advance the motion to set aside the decree and order appointing the receivers.
This request was denied. Whereupon counsel for petitioner herein interposed an oral motion
to vacate and set aside all the orders and proceedings, including the order citing petitioner for
contempt, upon the ground that the whole proceedings were void for want of jurisdiction for
substantially the same reasons embodied in the written motion to set aside the original order
and decree. This motion was denied, and the contempt matter was being proceeded with until
stopped by the alternative writ of prohibition.
The proceedings in the lower court for the appointment of receivers and for the dissolution
of the Nye and Ormsby County Bank were instituted in pursuance of the provisions of section
94 of An act providing a general corporation law (Stats., 1903, p. 155, c. 88), which section
reads: Whenever a corporation has in ten successive years failed to pay dividends
amounting in all to five per cent of its entire outstanding capital, or has wilfully violated
its charter, or its trustees or directors have been guilty of fraud or collusion or gross
mismanagement in the conduct or control of its affairs, or its assets are in danger of
waste through attachment, litigation or otherwise, or said corporation has abandoned its
business and has not proceeded diligently to wind up its affairs, or to distribute its assets
in a reasonable time, or has become insolvent and is not about to resume its business
with safety to the public, any holder or holders of one-tenth of the capital stock may apply
to the district court, held in the district where the corporation has its principal place of
business, for an order dissolving the corporation and appointing a receiver to wind up its
affairs, and may by injunction restrain the corporation from exercising any of its powers
or doing any business whatsoever, except by and through a receiver appointed by the
court.
a corporation has in ten successive years failed to pay dividends amounting in all to five per
cent of its entire outstanding capital, or has wilfully violated its charter, or its trustees or
directors have been guilty of fraud or collusion or gross mismanagement in the conduct or
control of its affairs, or its assets are in danger of waste through attachment, litigation or
otherwise, or said corporation has abandoned its business and has not proceeded diligently to
wind up its affairs, or to distribute its assets in a reasonable time, or has become insolvent and
is not about to resume its business with safety to the public, any holder or holders of
one-tenth of the capital stock may apply to the district court, held in the district where the
corporation has its principal place of business, for an order dissolving the corporation and
appointing a receiver to wind up its affairs, and may by injunction restrain the corporation
from exercising any of its powers or doing any business whatsoever, except by and through a
receiver appointed by the court. Such court may, if good cause exist therefor, appoint one or
more receivers for such purpose, but in all cases directors or trustees who have been guilty of
no negligence nor active breach of duty shall have the right to be preferred in making such
appointment, and such court may at any time for sufficient cause make a decree dissolving
such corporation and terminating its existence.
Considering the foregoing section of the recent case of Hettel v. First District Court, 30
Nev. 382, we said: The foregoing section provides for a number of situations, the existence
of any of which would authorize the court to make an order appointing a receiver and
dissolving the corporation. The corporation in the present instance is sought to be dissolved,
and a receiver appointed, upon the ground that its assets are in danger of waste through
attachment and litigation.' Manifestly the corporation, its officers and stockholders, are
interested in any such proceeding. The statute makes no provision for the procedure to be
followed to obtain such order. For the holder or holders of one-tenth or any other interest of
the capital stock of a corporation to be able to secure an order of dissolution, and as a result
of such order place the corporation in the hands of a receiver upon the mere application for
such order without notice or hearing, could not, we think, be sustained, even though an
attempt to confer such authority upon a court by statute were made.
mere application for such order without notice or hearing, could not, we think, be sustained,
even though an attempt to confer such authority upon a court by statute were made. (10 Cyc.
1309; Wright v. Cradlebaugh, 3 Nev. 349; People v. Seneca Lake Co., 52 Hun, 174, 5 N. Y.
Supp. 136; Crowder v. Moone, 52 Ala. 220.) But the section of the statute in question does
not confer such authority upon a court. It simply provides that a holder or holders of one-tenth
of the capital stock may apply to the district court for such an order. The statute must be
construed, if possible, to give it force and effect. It cannot have effect unless such an order
can be made only upon a showing after all parties interested have had an opportunity to be
heard. In the present case, for example, large property interests are involved. The
stockholders not joining in the petition may be able to show, if given an opportunity, that no
real cause exists for a dissolution and the appointment of a receiver, and that the making of
such an order might result in serious damage to stockholders opposing the order. Besides, the
statute provides that in all cases directors or trustees, who have been guilty of no negligence
nor active breach of duty, shall have the right to be preferred in making such appointment of
receiver.' This would seem to make the directors or trustees at least proper parties to the
proceedings in order that they may set forth their claims for the receivership if they desire so
to do.
The order dissolving the corporation and appointing a receiver in the Hettel case was held
to be void because made upon the petition without any service or notice whatever. In
principle, however, the case is somewhat analagous to the case at bar. In the case now under
consideration the order and decree were made upon a notice commanding an appearance
forthwith and directed only to the corporation as such. It has been held that a summons
returnable forthwith is a nullity and confers no jurisdiction by virtue of its service. (Hunsaker
v. Coffin, 2 Or. 107; Joiner v. Delta Bank, 71 Miss. 382, 14 South. 464; 20 Ency. Pl. & Pr.
1165.) It certainly could not be regarded due notice in a proceeding of this kind. In this case,
however, appearance of the corporation was entered by an attorney prior to the order and
decree, and no question has been raised touching this appearance.
been raised touching this appearance. A proper appearance will, of course, clothe the court
with jurisdiction over a party to an action, independent of the issuance of process. Upon the
hearing in this cause, practically the same questions have been urged as were presented in the
court below. The contention that the corporation, being a banking institution, is not subject to
be dissolved in accordance with the provisions of said section 94, but is subject only to the
provisions of the act of 1907, providing for the appointment of a board of bank
commissioners (Stats. 1907, p. 229, et seq., c. 119), and under which last-mentioned act
proceedings are pending, presents a very serious question. It is a question, however, which
would require determination of necessity only in the event the other positions taken were
without merit.
For the purposes of this case, we will conceded, without so deciding, that a banking
corporation may be dissolved and have receivers appointed to wind up its affairs under the
provisions of said section 94 of the general corporation law. We deem it also unnecessary to
determine the questions presented whether or not it was competent for Golden in the
contempt proceeding to attack the sufficiency of the petition upon which the order appointing
receivers and decree of injunction was based, or whether we can in this proceeding determine
whether or not Golden's name was authorized to be signed to the petition.
A more serious objection exists, we think, to the validity of the order and decree
appointing the receiver than that of the sufficiency of the petition, to wit, the necessary parties
were not before the court, and no sufficient notice or process was issued that would vest the
court with jurisdiction to make the order and decree in question. In the Hettel case, supra, in
referring to said section 94, we said: The statute makes no provision for the procedure to be
followed to obtain such an order. * * * It simply provides that a holder or holders of one-tenth
of the capital stock may apply to the district court for such an order. The statute must be
construed, if possible, to give it force and effect. It cannot have effect unless such an order
can be made only upon showing after all parties interested have had an opportunity to be
heard.
* * * The stockholders not joining in the petition may be able to show, if given an
opportunity, that no real cause exists for a dissolution and the appointment of a receiver, and
that the making of such an order might result in serious damage to stockholders opposing the
order. Besides, the statute provides that in all cases, directors or trustees, who have been
guilty of no negligence nor active breach of duty, shall have the right to be preferred in
making such appointment of receiver.' This would seem to make the directors or trustees at
least proper parties to the proceedings in order that they may set forth their claims for the
receivership if they desire so to do. * * * The court not having jurisdiction over the person of
the corporation and over the natural persons interested in the subject-matter of the orders at
the time when they were made, * * * each of them is void. * * *
In the Hettel case it was unnecessary to determine what parties should be joined in a
proceeding of this kind, or what notice should be given. The tenor of that opinion is to the
effect, however, that there are other necessary parties than the corporation itself. Usually
statutes providing for a dissolution of a corporation provide specifically for the manner of
giving notice and the parties to be served. Both personal service and published notice is
usually required, and ample time prescribed for all parties to come in and be heard if they
desire so to do. The courts have uniformly held that the provisions of such statutes must be
strictly complied with, or the court is without jurisdiction to proceed. The statute of this state
is silent as to service and parties, but the fact that it permits a tenth part in interest of the
stockholders to institute such a proceeding is of itself indicative that the legislature never
contemplated that the other nine-tenths interest should not have an opportunity at least to be
heard in the proceeding. Process, except in particular cases, requiring an appearance
forthwith, is ordinarily void, and it ought especially to be so held in a proceeding of this kind.
In the absence of any provision in the statute regulating the notice to be given, less ought not
to be required than is provided for in the civil practice act. Regardless of what ought to be the
rule, it is manifest that the notice upon which the order and decree was entered was no
better than no notice at all.
decree was entered was no better than no notice at all. The notice issued, requiring the
banking corporation to appear forthwith, carried with it a temporary injunction, and, by the
subsequent order and decree made upon the same day, this temporary injunction was made
permanent.
By section 117 of the civil practice act (Comp. Laws, 3212) it is provided: An injunction
or restraining order to suspend the general and ordinary business of a corporation shall not be
granted without due notice of the application therefor, to be served in the manner prescribed
for service of the summons in the action.
In the recent case of Forsyth v. Chambers, 30 Nev. 337, we held that a judgment by
default entered by a justice of the peace prior to the time allowed by law for the defendant to
answer was beyond the jurisdiction of the court and void. (Bowen v. Harper, 6 Idaho, 654, 59
Pac. 179.) Considering the question of procedure in cases of dissolution of a corporation at
suit of shareholders, 10 Cyc. 1309, says: Where the statute provides for an order to show
cause against the application, and for service or publication in a certain way, unless the order
is so made and served or published, the whole proceeding will be void. The reason is that the
order to show cause is in the nature of original process, bringing in parties in interest, who
have the right to oppose the winding up; and of course such a proceeding will be dismissed,
at the instance of any party in interest at any stage of it, upon it being made to appear that no
order to show cause has been made, served, or published, in conformity with the statute.
In Galpin v. Page, 18 Wall. 350, 371, 21 L. Ed. 959, the court said: A court of general
jurisdiction may have special and summary powers, wholly derived from statutes, not
exercised according to the course of the common law, and which do not belong to it as a court
of general jurisdiction. In such cases its decisions must be regarded and treated like those of
courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the
subject-matter of the judgment, and as to the persons to be affected by it, must appear by the
record; and everything will be presumed to be without the jurisdiction which does not
distinctly appear to be within it. * * *
But where the special powers conferred are exercised in a special manner, not according to
the course of the common law, or where the general powers of the court are exercised over a
class not within its ordinary jurisdiction upon the performance of prescribed conditions, no
such presumption of jurisdiction will attend the judgment of the court. The facts essential to
the exercise of the special jurisdiction must appear in such cases upon the record. The extent
of the special jurisdiction and the conditions of its exercise over subjects or persons
necessarily depend upon the terms in which the jurisdiction is granted, and not upon the rank
of the court upon which it is conferred. Such jurisdiction is not therefore the less to be strictly
pursued because the same court may possess over the other subjects or other persons a more
extended and general jurisdiction.
In Re Pensacola Lumber Co., 8 Ben. 171, Fed. Cas. No. 10,959, Blatchford, J., said: On
the authority of the case of Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959, I must hold that the
corporation had not been dissolved at the time it presented its petition in bankruptcy to this
court. The provisions of the Revised Statutes of New York (2 Rev. St. 1st ed. p. 466), in
regard to the voluntary dissolution of corporations, confer upon the court of chancery, now
the supreme court, special powers, to be exercised in a special manner, and over a subject not
within the ordinary jurisdiction of the court. These powers are to be exercised on the
performance of prescribed conditions. In such a case no presumption of jurisdiction attends
the judgment of the court, but the facts essential to the exercise of the special jurisdiction
must appear upon the record of the court.
In Matter of Pyrolusite Co., 29 Hun, 429, the court said: The rule in all statutory
proceedings is that they must conform to the requirements made by the statute providing for
them, and, if they fail to do that, then the court does not acquire jurisdiction over the
proceedings, and it will have no authority to make any adjudication affecting the rights of the
parties designed to be controlled by it. (Sharp v. Speir, 4 Hill, 76; Matter of Valentine, 72 N.
Y. 184.)
In the Hettel case we said that the directors were at least proper parties.
proper parties. Even a proper party ought to have an opportunity, in a proceeding of this kind,
to be heard, even though service upon him be not necessary. We think, however, that the
directors are necessary parties. They of necessity have a financial interest in the corporation,
and are the ones who are intrusted with its management by the stockholders. The right to
control the affairs of a corporation in which they have a pecuniary interest is of itself an
important privilege and usually a valuable right to the one exercising it. An order dissolving a
corporation and placing its affairs in the hands of a receiver, not only effects a radical change
in the legal status, but ousts the control of its affairs by the board of directors as such. Under
the allegations of the petition filed in the court below, it was admitted that the directors had a
preferred right to be appointed as receivers. It would seem to be the purpose of the statute to
have the affairs of the corporation wound up by the same persons who had constituted its
board of directors, and who were familiar with its affairs, and who were intrusted therewith
by the stockholders, provided they were guilty of no negligence or breach of duty. The court
certainly would have no authority to find they were so guilty, without having jurisdiction of
their persons.
Thompson on Corporations, vol. 5, sec. 6700, says: A proceeding for the dissolution of a
corporation and a decree or judgment of dissolution, rendered without notice to the parties
entitled to oppose the rendition of such judgment or decree, would be merely void, not only
under the principles of the common law, but under American Constitutions, federal and state.
It would be contrary to that clause incorporated in most of our State Constitutions, which
provides that no man shall be deprived of his freehold liberties, or privileges, without due
process of law; the franchise of a corporation being liberties' within the meaning of the word
as there used. A statute allowing such a proceeding to take place without notice would also be
contrary to that clause of the fourteenth amendment to the Constitution of the United States
which prohibits the states from depriving any person of his property without due process of
law.
In McKleroy v. Gadsden L. & I. Co., 126 Ala. 184, 28 South.
660, the court said: We are of the opinion that the action of the chancellor in calling a halt in
the proceedings to wind up the affairs of the corporation, in the absence of the persons
adversely interested therein, was eminently proper. * * * The corporation holds the legal title
to the property and, through its directors, has the absolute right of disposition and
management in bona fide proceedings for the purpose for which the corporation was formed.
* * *
In the case of People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep.
684, the court of appeals said: But an objection to this act even more serious than those
considered is found in the provision for the appointment of a receiver of the property of the
dissolved corporation, and the transfer of its assets to him by force of the statute, after the title
thereto had become vested in its directors. It will not be claimed that the appointment of such
a receiver by the court, in an action against a stranger, without notice to the trustees, in the
absence of the authority conferred by chapter 310, Laws 1886, would confer upon him title to
property previously vested in others. (Parker v. Browning, 8 Paige, 388.) We cannot see how
this case differs from the one supposed. The only authority the court had for making the
appointment was derived wholly from the provisions of this act; and the court was not
thereby invested with any judicial authority or discretion, except that of designating the
holder of the title assumed to be transferred by the act. The court has, by virtue of its general
jurisdiction over trusts, authority to appoint to a vacant trusteeship, and, perhaps, for cause, to
remove fraudulent, dishonest, or incompetent trustees and appoint others to perform the
duties of the trust, in order to avoid a failure thereof; but we know of no authority for a court
to appoint a receiver of property, vested in trustees without cause and without notice to them,
or opportunity afforded to defend their title and possession. As was said by Judge Earl in
Stuart v. Palmer, 74 N. Y. 184, 30 Am. Rep. 289: Due process of law requires an orderly
proceeding, adapted to the nature of the case, in which the citizen has an opportunity to be
heard, and to defend, enforce, and protect his rights. A hearing and an opportunity to be
heard is absolutely essential.
heard is absolutely essential. We cannot conceive of due process of law without this.' And the
chancellor had previously said, in Verplanck v. Mercantile Insurance Company, 2 Paige, 450:
Another fatal objection to the regularity of these proceedings is that the appellants were
deprived of the possession of their property without having an opportunity of being heard,
and without any sufficient cause for such a summary proceeding. By the settled practice of
the court in ordinary suits, a receiver cannot be appointed ex parte before the defendant has
had an opportunity to be heard in relation to his rights.' (Devoe v. Ithaca & O. R. Co., 5 Paige,
521; Ferguson v. Crawfors, 70 N. Y. 256, 26 Am. Rep. 589.) As we have seen, the property
of this corporation vested in the persons who were its directors at the time of its dissolution.
They took it as trustees for stockholders and creditors, and were not made parties to the action
in which the receiver was appointed. No legislation can authorize the appointment of a
receiver of the property of A in an action against C without violating the provisions of the
Constitution in relation to the taking of property without due process of law. That the
legislature might amend the provisions of the Revised Statutes in relation to the devolution of
property of dissolved corporations is indisputable, and, if it had done so in the act of
dissolution, it would undoubtedly have prevented the vesting of the property in the trustees;
but this it did not do, and it had no right, by mere force of legislative enactment, to take
vested property from one individual or trustee and give it to another. (McLaren v.
Pennington, 1 Paige, 102; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629.)
It has also earnestly been contended that the stockholders of a corporation are, also,
necessary parties, but there is some divergence of opinion in the authorities, and we deem it
unnecessary at this time to determine the question. They are certainly proper parties at least,
and the notice given of the hearing ought not to be such as to cut off any possibility of their
being heard, if they desire so to be. There never having been a valid order to show cause
issued, and all the necessary parties not having been joined in the proceeding or appearing,
the court was without jurisdiction to make the said order and decree of February 24, 1909,
and the same was void.
order and decree of February 24, 1909, and the same was void. All orders subsequently made
and based upon said order and decree are likewise void.
It has been contended that the writ of prohibition was not an appropriate remedy in this
case, but we think a proper case is presented to authorize its issuance. (Bell v. District Court,
28 Nev. 280; Harrison v. Hebbard, Superior Judge, 101 Cal. 152, 35 Pac. 555.) In the latter
case the court said: Under these principles it follows that the order of injunction issued by
the court at the commencement of the proceedings for the dissolution of the corporation was
without authority, and that the petitioner was not guilty of any contempt in disregarding the
same. The subsequent order of the court requiring him to show cause why he should not be
punished for violating this order is equally without authority, and it follows that his petition
for a writ of prohibition must be granted, and it is so ordered.
It is quite manifest from the record in this case that the proceedings were instituted in the
lower court in the best of faith and in the confident expectation that all parties interested in
the bank would approve of the course pursued, and this doubtless accounts for the haste in the
proceeding. However, the proceedings met with almost immediate challenge, and differences
arose, which, had the necessary parties been joined and due notice been given, doubtless
either would have been adjusted or the proceeding dismissed. It appears from the record filed
herein that the proceedings were instituted as a result of a conference held the day previous in
which all the persons participated, who actually were present in court, upon either side, at the
time the order and decree were entered. Counsel who appeared for the corporation filed an
affidavit during the course of the proceedings in which he set forth the fact that he was an
employee in the office of the firm of attorneys who appeared for the petitioners, and that he
was authorized to appear for the corporation by the secretary thereof, Mr. C. H. Phillips. This
state of facts presents a situation which makes it doubtful whether any adverse parties were
before the court at all. In spite, however, of the manifest good faith of all the participants in
the proceedings, such proceedings were, nevertheless, for the reason stated, void.
ceedings were, nevertheless, for the reason stated, void. The bank represents a large capital,
its assets are alleged to exceed a million dollars, and it is conceded in the action to be
perfectly solvent. These facts only emphasize the importance of due regularity in proceedings
of this character.
It is ordered that a peremptory writ of prohibition issue restraining the respondents and the
lower court from further proceedings under the said order and decree of February 24, 1909,
and all orders subsequent thereto and based thereon.
Talbot, J. (concurring):
I concur in the foregoing order for the issuance of the writ of prohibition.
Following the bare provisions of section 94 of the general corporation law (Stats. 1903, p.
155, c. 88), the court proceeded on the petition apparently signed by the holders of ten per
cent of the capital stock of the bank, without other parties, to appoint permanent receivers to
take over all its property and wind up its affairs. That section in the statute contains no
provision for making the corporation or directors or stockholders parties.
In view of section 89 of the same act, which provides that the board of directors or
trustees, at a meeting of which all directors shall have had three days' notice, may pass a
resolution that they deem it most for the benefit of the corporation that it be dissolved, and
that thereupon notice shall be mailed to all the stockholders and published for four weeks,
after which two-thirds of the stockholders may have the corporation dissolved, and which
section further provides that nine-tenths of the stockholders may dissolve a corporation
without notice, it is not probable that the legislature intended by section 94 that a corporation
could be dissolved upon the mere ex parte application of persons holding one-tenth of the
stock, but rather that the proceedings could be initiated by this small percentage of the
stockholders, and that, after the other necessary parties have been joined and heard, the court
could determine whether good reason existed for the appointment of receivers to close the
affairs of the corporation. Notwithstanding that section 94 does not provide for making the
company or the directors parties nor for notice to them, it is apparent that the ex parte
order obtained on the mere application of one-tenth of the stockholders for taking over
and closing the business of the corporation through receivers was void, because no one
representing the other nine-tenths or the remainder of the stock was made a party or had
an opportunity to be heard in court, under the constitutional guaranty that no one shall be
deprived of property without due process of law.
company or the directors parties nor for notice to them, it is apparent that the ex parte order
obtained on the mere application of one-tenth of the stockholders for taking over and closing
the business of the corporation through receivers was void, because no one representing the
other nine-tenths or the remainder of the stock was made a party or had an opportunity to be
heard in court, under the constitutional guaranty that no one shall be deprived of property
without due process of law.
The citation issued by the court commanding the corporation to appear and show cause
forthwith why a receiver should not be appointed was served upon the secretary, who directed
an attorney to represent the bank. Whether this notice was defective or not would be
immaterial, if the bank made an appearance which would amount to a waiver of notice. It
does not appear that the secretary was authorized by the board of directors, or had any
authority by reason of the position he held, to empower an attorney to consent to an order so
important as the one which was made. Attorneys are presumed to be employed by litigants for
whom they appear and to have authority to represent them in all ordinary legal proceedings;
but it has been held that they are not presumed to have the power to confess judgment, unless
authority for this purpose is specially shown.
As the statute gave the directors preference in the appointment of receivers, and they were
in control of the corporation, I think they, at least before they could be divested of their
powers, were necessary parties to the proceedings, before the court could properly make an
order appointing permanent receivers and requiring that the directors and officers of the
company turn over all the property to the receivers, and directing them to wind up the affairs
of the corporation.
The court found that all the allegations of the petition were true, including the one that the
directors were not guilty of negligence or active breach of duty, and under this finding and the
statute it became necessary to appoint one or more of the directors as receivers. Nevertheless
the court appointed other persons contrary to the terms of the statute.
The petition having been based on the allegation that the bank was solvent, but, owing to
prevailing financial stringency, it was unable to procure the actual money with which to
pay its obligations in full, and that by danger of waste through attachment and litigation
the assets were liable to be sacrificed and loss occasioned, being different than the
grounds specified in the banking act, which permits receivers to be appointed in suits
brought by the attorney-general under the order of the state bank commission when the
bank is in an insolvent or unsafe condition, I see no force in the contention that the latter
act, being special, would supersede and prevent the appointment of receivers under the
general one relating to corporations.
bank was solvent, but, owing to prevailing financial stringency, it was unable to procure the
actual money with which to pay its obligations in full, and that by danger of waste through
attachment and litigation the assets were liable to be sacrificed and loss occasioned, being
different than the grounds specified in the banking act, which permits receivers to be
appointed in suits brought by the attorney-general under the order of the state bank
commission when the bank is in an insolvent or unsafe condition, I see no force in the
contention that the latter act, being special, would supersede and prevent the appointment of
receivers under the general one relating to corporations.
As to the other questions presented, I do not wish to be understood as expressing any
opinion.
Sweeney, J., did not participate in the foregoing decision.
____________
31 Nev. 270, 270 (1909) State v. Hughes
[No. 1785]
THE STATE OF NEVADA, Respondent, v. BARNEY HUGHES, Appellant.
1. Criminal LawAppealQuestion First Raised on AppealSufficiency of Indictment.
When questioned for the first time on appeal, an indictment will be held sufficient unless it is so defective
that by no construction within the reasonable limits of the language used can it be said to charge the offense
for which defendant was convicted.
2. RobberyIndictmentIntentIn Pursuance of.
The phrase in pursuance of, according to Webster, means in accordance with; in prosecution or
fulfillment of; and an indictment alleging that defendant assaulted prosecutor with a deadly weapon, and
in pursuance of said assault attempted to rob him, etc., means in fulfillment of, rendering the
indictment sufficient to charge an assault with intent to rob.
3. RobberyIndictmentFeloniously.
In an indictment alleging that defendant assaulted the prosecutor and attempted to feloniously rob him,
the word feloniously means done with intent to commit the crime (citing Words and Phrases, vol. 3, p.
2731).
4. Criminal LawAppealHarmless ErrorInstructions.
In a prosecution for assault with intent to rob, where the assault on the prosecutor was not questioned and
the contested issue was the identity of defendant, an error in an instruction as to what constitutes an assault
was harmless.
5. WitnessesCompetencyKnowledge of Custom.
The custom of manufacturers of guns and revolvers of placing a distinguishing number on each
instrument may be shown by a hardware merchant who also deals in firearms, and has gained his
knowledge in the course of trade and through the statements of others engaged in the business.
Barney Hughes was convicted of assault with intent to commit robbery, and appeals.
Affirmed.
Clarence C. Ward, for Appellant:
I. The indictment does not state facts sufficient to constitute the crime charged therein, or
any other crime punishable at law, because the indictment does not allege that the acts done
by the defendant were done with the intent to commit the crime of robbery.
commit the crime of robbery. In every crime or public offense there must be a union or joint
operation of act and intention, or criminal negligence. (Comp. Laws, 4655.) When specific
intent is required, either by common law or by statute, to constitute the crime, such specific
intent enters into the nature of the act itself and must be alleged and proved beyond a
reasonable doubt. (Comm. v. Wilson, 30 Conn. 500; Thompson v. People, 96 Ill. 158; Comm.
v. Willard, 22 Pick. 476; State v. Colvin, 90 N. C. 717; State v. Napper, 6 Nev. 113; State v.
Lung, 21 Nev. 209; State v. Newton, 4 Nev. 410; Comm. v. Clark, 6 Grat. 675; Ogletree v.
State, 28 Ala. 693; Felker v. State, 54 Ark. 489; People v. Mize, 80 Cal. 41; State v. Simpson,
59 Ala. 1.)
II. The indictment does not set out the acts done, or the mode and manner of the attempt.
The indictment must be direct and contain * * * the particular facts of the offense charged,
so far as necessary to constitute a complete offense. (Comp. Laws, 4199.)
I. In an indictment for an assault to rob it is not necessary to describe the property which
the defendant intended to take, nor is it essential to aver that the defendant intended to
deprive the owner of the property of the value of it. (Crumes v. State, 28 Tex. App. 518.) In
this case the facts proven fully establish, and the indictment properly alleges, the crime. (State
v. Montgomery, 109 Mo. 645.) The indictment did not need to set forth the acts done.
(Dickerson v. Comm., 2 Bush, Ky. 1; Taylor v. Comm., 3 Bush, Ky. 508; Holohan v. State, 32
Md. 339; Morris v. State, 13 Tex. App. 65.)
II. Criminal intent can only be proven as a deduction from declarations or acts; when the
acts are established, the natural and logical deduction is that defendant intended to do what he
did do, and if he offers no excuse or palliation of the acts done, such deductions become
conclusive. (State v. McGinnis, 6 Nev. 448.) The intent to rob must be alleged, and the person
intended to be robbed, but the indictment need not describe the particular property which the
defendant intended to take.
III. In this case the defendant did not merely make preparations to rob, but he actually
made a physical attempt to rob, and in doing so assaulted Sander by drawing on him a deadly
weapon. (People v. Wells, 145 Cal. 140.)
This is an appeal from the judgment and from an order denying appellant's motion for a
new trial.
Appellant was tried and convicted of the crime of assault with intent to commit robbery
upon an indictment, the body of which reads as follows: Defendant, Barney Hughes, above
named, is accused by the grand jury of Esmeralda County, State of Nevada, by this indictment
found this 5th day of March, A. D. 1908, of a felony, to wit, the crime of assault with intent to
commit robbery, committed as follows, to wit: Said defendant, Barney Hughes, on the 24th
day of February, A,. D. one thousand nine hundred and eight, or thereabouts, and before the
finding of this indictment, in the County of Esmeralda, State of Nevada, then and there
having the present ability so to do, did then and there unlawfully assault A. Sander with a
deadly weapon, to wit, a loaded revolver, and said defendant, Barney Hughes, did then and
there, in pursuance of said assault, attempt feloniously and violently to take from the person
of said A. Sander, by force and intimidation, money, goods and chattels then and there the
property of said A. Sander; all of which is contrary to the form, force and effect of the statute
in such case made and provided, and against the peace and dignity of the State of Nevada.
It is contended by counsel for appellant that this indictment is fatally defective, in that it
does not allege that the acts done by the defendant were done with the intent to commit the
crime of robbery. The record does not disclose that the indictment was demurred to or that a
motion in arrest of judgment was interposed. The sufficiency of the indictment appears,
therefore, to be questioned for the first time upon appeal. The indictment, it must be admitted,
is far from being a model. Where, however, the sufficiency of an indictment is questioned for
the first time upon appeal, it will not be held insufficient to support the judgment, unless it is
so defective that by no construction, within the reasonable limits of the language used,
can it be said to charge the offense for which the defendant was convicted.
defective that by no construction, within the reasonable limits of the language used, can it be
said to charge the offense for which the defendant was convicted.
Considering the provisions of our statute governing indictments, this court in State v.
Lovelace, 29 Nev. 43, said: The subject is governed by the sections following concerning
indictments: Section 4199, Comp. Laws, provides that the indictment shall contain a
statement of the acts constituting the offense, in ordinary and concise language, and in such
manner as to enable a person of common understanding to know what is intended.' Section
4206, Comp. Laws, has the following: The words used in an indictment shall be construed in
the usual acceptance in common language, except such words and phrases as are defined by
law, which are to be construed according to their legal meaning.' Section 4208, Comp. Laws,
provides: SixthThat the act or omission charged as the offense is clearly and distinctly set
forth in ordinary and concise language, without repetition, and in such manner as to enable a
person of common understanding to know what is intended.' Section 4209 is as follows: No
indictment shall be deemed insufficient, nor shall the trial, judgment, or other proceeding
thereon be affected by reason of any defect or imperfection in matters of form which shall not
tend to the prejudice of the defendant.' The foregoing enactments show that it was the
intention of the Legislature of Nevada that in construing indictments the courts should not
indulge in a too exact and over-nice view of language; but that certainty to a common intent
was all that should be required. * * * The sections of the statute above quoted show the
legislative intent was that the courts of the state should give interpretations liberal to sustain
rather than rigid to overthrow indictments, when * * * substantial rights of defendants are not
thereby prejudiced.
In pursuance of, according to Webster, means, in accordance with; in prosecution or
fulfillment of. Therefore, the indictment, in effect, alleges that in fulfillment of the alleged
assault the defendant did then and there attempt feloniously and violently to take from the
person of A. Sander, by force and intimidation, money, etc. If a thing is done in fulfillment of
some other act, done contemporaneously, it is but a reasonable deduction that such other
act is done with the intent to carry out that which is in fulfillment thereof.
ment of some other act, done contemporaneously, it is but a reasonable deduction that such
other act is done with the intent to carry out that which is in fulfillment thereof. An allegation
that robbery is the fulfillment of the assault with the deadly instrument may be regarded as of
the same effect, we think, as an allegation that the assault was made with the intent to rob.
The word feloniously, used in the body of the indictment, in a legal sense, means, done
with intent to commit crime. Its use in an indictment has uniformly been held to be a
sufficient averment of the intent necessary to constitute the crime. (State v. Douglas, 53 Kan.
669, 37 Pac. 172; State v. Halpin, 16 S. D. 170, 91 N. W. 605; People v. Willett, 102 N. Y.
251, 6 N. E. 301; Phelps v. People, 72 N. Y. 334; People v. Dumar, 42 Hun, 80; State v.
Rechnitz, 20 Mont. 488, 52 Pac. 264; State v. Smith, 31 Wash, 245, 71 Pac. 767; State v.
Boyle, 28 Iowa, 522; People v. Butler, 1 Idaho, 231; People v. Lopez, 90 Cal. 606, 27 Pac.
427; Comm. v. Adams, 127 Mass. 15; 3 Words and Phrases Judicially Defined, 2731.)
Had the word feloniously been used directly to qualify the word assault, it could be
said with a greater degree of clearness that the intent is sufficiently alleged. However, in view
of the fact that the formal part of the indictment acquainted the defendant with the specific
crime with which he was intended to be charged, and the body of the indictment contains
language which is capable of being construed into the equivalent of a charge of the essential
element of intent, and the indictment not having been questioned in the lower court, we are
not disposed to hold it fatally defective. There is nothing whatever to indicate that the
defendant was misled by the form of the indictment, or that he at any time failed to fully
appreciate that he was indicted for and was being tried for the crime of assault with intent to
rob.
Appellant assigns error in the giving of instructions by the court, of its own motion, Nos.
4, 6, and 8. Instruction No. 4 reads: The jury are instructed that in order to constitute an
assault with a deadly weapon, a loaded revolver, it is not necessary that such revolver be
discharged or used upon the person alleged to have been assaulted with said revolver, and, if
the jury find from the evidence beyond a reasonable doubt that at the place and on the
date alleged in the indictment the defendant pointed a loaded revolver at the person
named in the indictment, that would constitute an assault."
if the jury find from the evidence beyond a reasonable doubt that at the place and on the date
alleged in the indictment the defendant pointed a loaded revolver at the person named in the
indictment, that would constitute an assault.
Counsel for appellant in reference to this instruction says: In this instruction the court
instructed the jury that the mere pointing of a loaded revolver by one person at another
without regard to the intent or lack of any intent, or attempt or lack of attempt on the part of
the person pointing the revolver, would constitute an assault. Conceding, for the purposes of
this case, that the instruction may be subject to the criticism made, nevertheless we would not
regard it as constituting prejudicial error in this case. An assault with a loaded revolver was
clearly proven without any contradiction whatever to have been made upon the said A.
Sander. The only serious question for the jury to determine in this case upon which there
could be said to be any conflict in the evidence was upon the question of the identity of the
assailant of the said A. Sander. The defendant at the trial sought to establish an alibi. The
complaining witness was unable to identify his assailant, and his identity was established by
circumstantial evidence. Where the assault was clearly established by the evidence, and the
question for the jury to determine was practically whether or not the defendant was the
assailant, an error in an instruction as to what would constitute an assault could not prejudice
the defendant.
These observations apply with equal force to the objections made to instruction No. 6.
The objections interposed to instruction No. 8 are based upon the assumption that the
indictment fails to charge the offense for which defendant was convicted, and requires no
further consideration.
When the assault was made upon A. Sander, the complaining witness, he grappled with his
assailant and wrested from him a revolver. It was sought by the state to identify the revolver
in question as being the property of the defendant by the number thereon. A witness testified
that some time prior to the assault he had made a memorandum of the number upon a
revolver then carried by the defendant, and that such number corresponded with the number
upon the revolver which the said A.
number corresponded with the number upon the revolver which the said A. Sander had taken
from his assailant.
For the purpose of proving that it was the custom or practice of the manufacturers of guns
to place upon each gun manufactured of any certain pattern a particular number the state
called one M. J. Sullivan as a witness. The witness testified that he had been engaged in the
hardware business for a number of years, and that for the past two and one-half years he had
also dealt in guns and ammunition; that he was familiar with the makes of guns; that he knew
that in the manufacture of guns there is an individual mark placed on each gun; that the
manufacturer puts a number on each one of his guns, so that the gun is registered when it is
sent out from the factory and they know just to whom a particular gun is sent; that there is
such a number upon the gun in question; that the same number would not appear upon any
other gun of the same make and pattern. Upon cross-examination the witness testified as
follows:
Q. What you know, or what you have testified to, do you know from experience in
manufacturing or sending out new guns? A. I know from actual experience in handling guns
and selling them.
Q. Such guns as you have had, you have noticed had numbers on them, is that not true? A.
I know. I have been told so by people who were in the wholesale business just what that
number represented.
Q. Your knowledge and the evidence you have given is based upon that information you
have gotten from the wholesalers, is it? A. Yes, sir.
Mr. WardIf your honor please, at this point, we move to strike out all the testimony of
the witness, because it is disclosed by certain testimony that his knowledge is based upon
hearsay.
Motion denied. Exception.
Redirect examination: Question by Mr. WalshYou acquired this knowledge in the usual
course of business? A. I did.
Witness excused.
Counsel for the appellant contends this testimony was incompetent because based on
hearsay.
incompetent because based on hearsay. Neither counsel for appellant nor for the state have
cited any authorities that would assist the court in determining the question of the competency
of testimony given by a witness relative to the custom of a particular manufacturing business,
where knowledge of that custom was largely based upon information acquired from others in
the ordinary course of trade. 12 Cyc. 1102, says: The witness or witnesses called to give
evidence of the existence of a usage may do so from their own knowledge and experience or
from information derived through the course of trade. All that is necessary is that they should
have occupied such a position as to know of its existence as a fact.
In Allen v. Merchants Bank, 15 Wend. (N. Y.) 482, 489, the court said: Traders and
merchants are quite competent to prove from their own knowledge as well as from
information derived through others in the course of trade the practice in respect to a particular
branch of business. * * * We think this rule ought to and does apply to the custom or
practice of manufacturers of firearms to place a particular identifying number upon each piece
manufactured, and that a witness who has gained a knowledge of such a custom or practice in
the ordinary course of trade is competent to testify to the fact of the existence of such custom
or practice, even though such knowledge has been largely acquired through the statements of
others engaged in the particular business. We think the court did not commit error in the
admission of this testimony.
No prejudicial error appearing in the record, the judgment should be affirmed; and it is so
ordered.
____________
31 Nev. 278, 278 (1909) State v. Luhano
[No. 1802]
THE STATE OF NEVADA, Respondent, v. SAVATORE
LUHANO and SERVANTI DAVIS, Appellants.
1. RobberyIndictmentSufficiency.
An indictment for robbery, following the definition of the crime as defined by Comp. Laws, 4714, held
sufficient, under the provisions of section 4200, prescribing the form of indictments to be substantially
followed, section 4201, prescribing respects in which an indictment must be direct and certain, section
4208, relating to the sufficiency of indictments, and section 4209, providing for disregarding defects or
imperfections in matters of form, not tending to prejudice defendant, and allowing amendments.
2. RobberyElements of OffenseViolence and Intimidation.
It is unnecessary to prove both violence and intimidation; and, if the fact be attended with the
circumstance of terror, such threatening word or gesture as in common experience is likely to create
apprehension of danger, and induce a man to part with his property for the safety of his person, it is
robbery, and it is unnecessary to prove actual fear, as the law will presume it in such case.
3. RobberyEvidence Sufficient to Sustain Conviction.
In a prosecution for robbery, evidence held sufficient to warrant the jury in finding defendant guilty, on
the view that the money was taken by intimidation.
Savatore Luhano and Servanti Davis were convicted of robbery, and from the judgment
and an order denying motion for new trial, defendants appeal. Affirmed.
G. W. Shutter-Cottrell, for Appellants.
R. C. Stoddard, Attorney-General, for Respondent.
Appellants were convicted in the Second Judicial District Court of the State of Nevada, in
and for the County of Washoe, of the crime of robbery. From the judgment, and from an order
denying their motion for a new trial, they appeal.
The first contention made by appellants is that the indictment is insufficient to charge the
offense of robbery. The indictment, after entitlement, reads: "The defendants, Savatore
Luhano and Servanti Davis, above named, are accused by the grand jury of the County of
Washoe, State of Nevada, of a felony, to wit, committed as follows, to wit: That said
defendants, on the 13th day of April, A. D. 190S, or thereabouts, and before the finding of
this indictment, at the said County of Washoe, State of Nevada, did wilfully, unlawfully,
feloniously, violently, and by force and intimidation, take from the person of Chervia
Lazaro, the sum of $1,000, of the value of $1,000, lawful money of the United States of
America, which said money was then and there the property of the said Chervia Lazaro."
indictment, after entitlement, reads: The defendants, Savatore Luhano and Servanti Davis,
above named, are accused by the grand jury of the County of Washoe, State of Nevada, of a
felony, to wit, committed as follows, to wit: That said defendants, on the 13th day of April,
A. D. 1908, or thereabouts, and before the finding of this indictment, at the said County of
Washoe, State of Nevada, did wilfully, unlawfully, feloniously, violently, and by force and
intimidation, take from the person of Chervia Lazaro, the sum of $1,000, of the value of
$1,000, lawful money of the United States of America, which said money was then and there
the property of the said Chervia Lazaro. Robbery is defined by statute as follows: Robbery
is the felonious and violent taking of money, goods or other valuable thing from the person of
another by force or intimidation. (Comp. Laws, 4714.)
We think the foregoing indictment sufficient under the provisions of our statute. (Comp.
Laws, 4200, 4201, 4208, 4209.)
The principal contention made by the counsel for appellants is that the evidence does not
justify the verdict, in that it fails to show that the money was taken from the complaining
witness, Chervia Lazaro, by force or intimidation. Prior to the case going to the jury counsel
for defendants, appellants herein, requested the court to advise the jury to return a verdict of
not guilty. Judge Pike, who tried the case, being then of the opinion that the evidence was
insufficient to constitute the crime of robbery, advised the jury to acquit the defendants in
accordance with the provisions of section 376 of the criminal practice act, which reads: If, at
any time after the evidence on either side is closed, the court deem the same insufficient to
warrant a conviction, it may advise the jury to acquit the defendant. But the jury shall not be
bound by such advice nor shall the court for any cause prevent the jury from giving a verdict
except as provided in sections three hundred and sixty-one, three hundred and sixty-two,
three hundred and sixty-six, and three hundred and sixty-eight. (Comp. Laws, 4341.) The
jury disregarded the advice of the trial judge, and returned a verdict of guilty as charged in the
indictment. Upon the same question being presented to the trial judge on the motion for a new
trial, he changed his opinion as to the sufficiency of the evidence, and denied the motion.
opinion as to the sufficiency of the evidence, and denied the motion. It must be conceded that
the evidence in this case presents a state of facts which approaches very closely the border
line of what is, or what is not, robbery. Upon mature reflection the trial judge reached what
we think was a correct conclusion.
All parties to the crime are Italians, and the complaining witness was unacquainted with
the English language, and gave his testimony through an interpreter. It is very clear, from the
testimony given, that the two defendants undertook to obtain from the said Lazaro the sum of
$1,000 by what may be called a confidence game. After promising him that, if he would
procure the sum of $1,000, they would double it for him, and after working upon his
credulity, and after supplying him with food and liquor, he was induced to go to their room in
a lodging-house in the city of Reno. The sufficiency of the evidence to constitute robbery
must be determined upon what transpired within this room. The witness Lazaro testified
through his interpreter concerning this portion of the affair as follows:
He (Lazaro) got the $1,000, stopped at Moano Springs, and they got a drink. He came to
Reno again and they got him something to eat and drink again. About 2 o'clock they brought
him up to a room, and he sat in a chair in the room, and they sat there, too. He said the small
gentleman there told him to show him a thousand dollars, and he would double it for him. He
said he put his hand up and took it from him, and the other fellow came over at him with a
knife in front of him, and he lost his sense. He said he gave him something. * * *
Q. Which one do you say came over after him with knife? A. The heaviest one.
Q. One of the defendants in this action? A. Yes, sir.
Q. Now, are those the two men that took him up to the room? A. Yes, sir.
Q. And all of your testimony about the two men, you mean the two defendants, do you? A.
Yes, sir; them two men there. * * *
Q. At the time they took this money away from you, what did the money consist of? A.
Gold.
Q. How much? A. A thousand dollars.
Q. What kind of money? A. Twenty-dollar gold pieces.
Mr. AyersQ. When they came after you with that knife, were you frightened, or were
you not frightened? A. He was frightened.
Mr. AyersQ. Did they say anything else to you at the time of taking the money away
from you? A. They told me to keep still.
Q. Did they say anything else? A. He says they went out the door. * * *
Mr. AyersQ. Where was the money at the time they took it? A. He said he had it in his
pocket.
Q. What pocket?
The CourtGet up and show the jury his pocket. A. This pocketthe inside coat pocket
[shows jury].
Mr. AyersQ. Which one, if either, took that out of there, that money out of that pocket?
A. He said the little fellow.
Q. Did they, or did they not, go immediately out of the door after taking the money? A. He
said they stayed there a little while or a minute, and then they left. * * *
Cross-Examination: * * * Q. Did they show him anything? A. They did not show him
anything in the room; showed him some money at Moano Springs, he said. * * *
Q. You were pretty well drunk, were you not, at the time you went up to the hotel? A. No,
sir; he said he was not drunk, but he lost a little sense. * * *
Q. When he gave these men this $1,000, ask him if these menthese defendantsgave
him anything in return for it. A. He said they took the money from him. He did not give it to
them.
Q. He did not give it to them? A. No, sir. * * *
Q. Where was he sitting, or how was he sitting, and upon what was he sitting, when they
took this $1,000 from him? A. He said he sat on a chair. * * *
Q. Were the defendants in one, too? A. He said one of them sat down a little.
Q. Which one of them sat down? A. The little fellow. * * *
Q. Now, which one went to him to get the $1,000? A. He said the little fellow came and
got the $1,000.
Q. When the little fellow went to him to get the $1,000, whereabouts was the big fellow
standing at this time? A. He said the little fellow went to get the money, and the big fellow
stood in front of him with a knife.
Q. Now, when he got the money, the little fellow, how did he get it out of his pocket? A.
He said he put his hand in his pocket.
Q. You show this jury how that defendant got the money out of your pocket? Tell him to
stand up and show them. [Witness stands up and shows the jury.]
Q. Stand up again. Did that defendant walk up to you, like his counsel is now walking up
to you, and lift your pocket aside, and reach into your pocket and pull out that money? A. He
said they were sitting in front of him.
Q. And how did they reach overjust easily and take the money out of his pocket? A. He
said just put his hand in and took the sack.
Q. Ask him what he did then. A. He said that the fellow had a knife in front of himhe
was scaredand told him to keep still. * * *
Q. How long were these people in the room after the money was taken? A. He said they
stayed a short time. * * *
The evidence of the complaining witness, Lazaro, was sufficient, we think, to go to the
jury, and for it to determine therefrom whether or not the money was taken from him by force
or intimidation. The conclusion of the jury that the crime of robbery was established ought
not, we think, to be disturbed. Sufficient appears from the evidence to warrant the conclusion
that, after the defendants had by false pretenses persuaded Lazaro to procure his $1,000 upon
the belief that the defendants would double it for him, and after they succeeded in getting him
into a semi-intoxicated condition, and had induced him to go to their room, the false
pretenses were abandoned as a means to induce him to give up his money, and the money
actually obtained by the smaller of the two defendants reaching in and taking the sack of
gold from Lazaro's pocket while the larger of the two defendants "had a knife in front of
him, and told him to keep still"; he at the time being "scared."
the two defendants reaching in and taking the sack of gold from Lazaro's pocket while the
larger of the two defendants had a knife in front of him, and told him to keep still; he at the
time being scared. It is manifest from the evidence that there was not a voluntary surrender
of the money by Lazaro, but, upon the contrary, it was taken from him by one of the
defendants by force. At the time the money was taken, the jury was warranted from the
evidence in concluding that Lazaro was intimidated by the larger of the two defendants, who
exhibited in front of him a knife, and told him to keep still.
In People v. Shuler, 28 Cal. 490, the Supreme Court of California, considering the statute
defining robbery as it then existed in that state, and from which ours was doubtless copied,
after setting out the statute, said: This in no material respect is different from the
common-law definition of the crime of robbery.
In People v. Clary, 72 Cal. 59, 13 Pac. 77, the court said: Robbery is larceny, with the
element of force or intimidation added.
Blackstone says: Larceny from the person is either by privately stealing, or by open and
violent assault, which is usually called robbery. * * * (2) Open and violent larceny from the
person, or robbery, the rapina of the civilians, is the felonious and forcible taking from the
person of another of goods or money to any value, by violence or putting him in fear. * * *
(3) Force. Lastly, the taking must be by force, or a previous putting in fear, which makes the
violation of the person more atrocious than privately stealing. * * * This previous violence or
putting in fear is the criterion that distinguished robbery from other larcenies. * * * Not that it
is indeed necessary, though usual, to lay in the indictment that the robbery was committed by
putting in fear; it is sufficient if laid to be done by violence. And when it is laid to be done by
putting in fear, this does not imply any great degree of terror or affright in the party robbed; it
is enough that so much force, or threatening by word or gesture be used, as might create an
apprehension of danger, or induce a man to part with his property without or against his
consent.
Thus, * * * if a person with a sword drawn begs an alms, and I give it him through mistrust
and apprehension of violence, this is a felonious robbery. So if, under a pretense of sale, a
man forcibly extorts money from another, neither shall this subterfuge avail him. (2 Cooley's
Blackstone, 4th ed. p. 1404.)
It is unnecessary to prove both violence and intimidation. * * * If the fact be attended
with circumstances of terror, such threatening word or gesture as in common experience is
likely to create an apprehension of danger and induce a man to part with his property for the
safety of his person, it is robbery.' It is not necessary to prove actual fear, as the law will
presume it in such a case. (Note by Wharton to text, supra; State v. Burke, 73 N. C. 83;
McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93; State v. Howerton, 59 Mo. 91;
Seymour v. State, 15 Ind. 288; Evans v. State, 80 Ala. 4; State v. Parsons, 44 Wash. 299, 87
Pac. 349, 7 L. R. A. 566, 120 Am. St. Rep. 1003; 12 Am. & Eng. Ann. Cas. 61; 14 Am. Cr.
Reports, 575.)
We think the evidence in this case was sufficient to warrant the jury finding the defendants
guilty of robbery, upon the view that the money was taken from Lazaro by intimidation, and
we incline to the opinion that both the elements of force and intimidation are sufficiently
established to justify the verdict.
The record contains numerous other assignments of error, but none of them have been
mentioned in the briefs filed; and as we find no manifest error in any such assignments the
judgment will be affirmed.
It is so ordered.
____________
31 Nev. 285, 285 (1909) Sherman v. Southern Pacific Co.
[No. 1779]
C. E. SHERMAN, Appellant, v. SOUTHERN PACIFIC COMPANY, Respondent.
1. New TrialTime for MotionExtension of TimeExcuse for DelayMistake, Inadvertence, Surprise, or
Excusable Neglect.
The affidavit of counsel that, owing to a pressing business engagement, which took him to another state
after a stipulation for the extension of time to move for a new trial, of being engaged in court the day the
stipulation expired, the serious illness of his wife, and the impression that the stipulation included another
day, he neglected to ask for an extension of time for such motion shows mistake, inadvertence, surprise, or
excusable neglect within Comp. Laws, 3163, and entitled him to relief against his default and a further
extension of time in which to make the motion.
C. E. Sherman was awarded damages against the Southern Pacific Company, and from an
order allowing defendant additional time in which to file a motion for new trial, plaintiff
appeals. Affirmed.
Cheney, Massey & Price, for Appellant.
Guy V. Shoup, for Respondent.
In a suit instituted in the District Court of Washoe County, State of Nevada, C. E. Sherman
recovered a verdict of $15,000, on March 9, 1908, against the Southern Pacific Company, for
personal injuries alleged to have been received by plaintiff while a passenger upon one of
defendant's trains. Due to the inability of the stenographic reporter to transcribe the testimony
within the time allowed by statute, plaintiff's attorneys at various times stipulated with
defendant's attorneys to extend defendant's time within which to serve and file its notice of
intention to move for a new trial and statement on motion for a new trial. The last stipulation
extended the time for this purpose until and including May 25, 1908.
According to the affidavit of Guy V. Shoup, counsel for defendant, setting forth
uncontradicted facts to the effect that, owing to pressure of business matters, and urgent
business which necessitated his presence in San Francisco, of being engaged in court on the
day the stipulation expired, and the serious illness of his wife, and being under the impression
that said last stipulation extended to and included May 27, 1908, which caused him to fail to
refresh his memory as to the exact date of the time extended, he neglected to ask for another
extension of time from opposing counsel until the 26th day of May, 1908, the day after the
last stipulation extending his time had elapsed. Upon application to plaintiff's attorneys for a
further extension of time, made necessary because the official reporter had not yet been able
to complete his transcription of the testimony, plaintiff's attorneys, believing that because the
time for serving and filing the notice and statement had expired the day previous, they should,
in protection of their client's interests, refuse to grant any further courtesies in this respect,
declined to grant defendant's attorneys any further time. Thereupon defendant's attorneys
applied to the district court, after due notice given, to be relieved of the default defendant was
then in and for a further extension of time within which to serve its notice and statement on
motion for a new trial. This application was based upon the affidavit of defendant's attorney
attributing the oversight on his part to excusable neglect, inadvertence, and mistake, under the
provisions of section 3163 of the Compiled Laws of Nevada. Upon reading the affidavit, the
facts therein contained being uncontradicted, the court granted the relief asked, and extended
the time. From that order plaintiff appeals to this court, asserting that the lower court was
without jurisdiction to make the order complained of.
Section 3163 of our Compiled Laws says: 3163. Sec. 68. The court may, in furtherance of
justice, * * * upon such terms as may be just, and upon payment of costs, relieve a party or
his legal representatives from a judgment, order, or other proceeding taken against him
through his mistake, inadvertence, surprise or excusable neglect. * * * Counsel for appellant
contend that, where necessary steps are not taken within the time required by statute, and
the time has expired, the court loses jurisdiction to enter an order extending the time
after such time has expired.
within the time required by statute, and the time has expired, the court loses jurisdiction to
enter an order extending the time after such time has expired. The following authorities, cited
by appellant's counsel, we think do not specifically hold that, where a proper and
well-grounded application is made invoking the jurisdiction of the court to relieve a party of
the consequences of his default, the court has no power, under any circumstances, to relieve a
party of such default: Killip v. Empire Mill Co., 2 Nev. 44; State v. Bank of Nevada, 4 Nev.
358; Clark v. Strouse, 11 Nev. 79; Elder v. Frevert, 18 Nev. 282; Robinson v. Benson, 19
Nev. 331; Earles v. Gilham, 20 Nev. 46; State v. Cheney, 24 Nev. 227; Hegeler v. Henckell,
27 Cal. 492; Campbell v. Jones, 41 Cal. 518; Clark v. Crane, 57 Cal. 629; Cooney v.
Furlong, 66 Cal. 520, 6 Pac. 388; Burton v. Todd, 68 Cal. 485, 9 Pac. 663; Cal. Imp. Co. v.
Baroteau, 116 Cal. 136, 47 Pac. 1018; Freese v. Freese, 134 Cal. 49, 66 Pac. 43.
We are of the opinion that where, as in the present case, a party who finds himself in
default begins a proceeding in good faith, by properly applying to a court to relieve him from
the consequences of his default, based upon the grounds provided in section 3163, above
quoted, and in accordance with its provisions, as a condition precedent to relieving him of the
consequences of his default by granting him an extension of time for the purpose of moving
for a new trial, and a good and sufficient showing is made in said application, the court has
jurisdiction to grant the relief prayed for and extend the time. Section 473 of the code of civil
procedure of California is substantially the same as section 3163 of our civil practice act.
The Supreme Court of California in the case of Stonesifer v. Kilburn, in construing this
section, among other things, said:
2. It is contended that the court had no power to relieve appellants from the legal effect of
their failure to serve their proposed bill of exceptions in time, even though their default was
caused by their excusable mistake, and the relief asked be deemed just. But the cases cited in
support of this point seem to go no further than to determine what is the legal effect of the
default in the absence of a proper and well-grounded proceeding to be relieved from it, and do
not determine that the court has no power, under any circumstances, to relieve a party
from such legal effect.
mine that the court has no power, under any circumstances, to relieve a party from such legal
effect. The distinction seems quite as clear as that between determining the legal effect of a
judgment by default and adjudging that under no circumstances can a party be relieved from
the legal effect of such judgment. Section 473 of the code of civil procedure provides: The
court may * * * allow an answer to be made after the time limited by this code; and may also
* * * relieve a party * * * from a judgment, order, or other proceeding taken against him
through his mistake, inadvertence, surprise, or excusable neglect.' Section 4 of the same code
declares that its provisions and all proceedings under it are to be liberally construed, with a
view to effect its objects and to promote justice.' The settlement of a bill of exceptions is a
proceeding in an action.' (Lukes v. Logan, 66 Cal. 33, 4 Pac. 883; Irwin v. Bank of
Bellefontaine, 6 Ohio St. 86; Wilson v. Allen, 3 How. Pr. 371; Rich v. Husson, 1 Duer, 620;
Wilson v. Macklin, 7 Neb. 52; Strong v. Hardenburgh, 25 How. Pr. 438.)
In Irwin v. Bank of Bellefontaine, 6 Ohio St. 86, it is said: The word [proceeding] is
generally applicable to any step taken by a suitor to obtain the interpostion or action of a
court.' In Wilson v. Allen, 3 How. Pr. (N. Y.) 371, the court said: The term proceeding is
generally applicable to any step taken by a party in the progress of a civil action. Anything
done from the commencement to the termination is a proceeding.' In this case respondents
objected to a settlement of appellants' bill of exceptions, and moved the court to disregard it,
on the ground that it was not filed within the stipulated time. These were steps taken in the
action to obtain the interposition or action of the court,' which, according to the cases cited,
amounted to a proceeding against the appellants, even within the letter, and certainly within
the spirit, of section 473 of the code of civil procedure, and not distinguishable in principle
from a proceeding to obtain a judgment by default. It is from this proceeding that appellants
ask relief; and I think the court had the power to grant it, upon a proper showing that the
default of appellants resulted solely from their excusable mistake or neglect, and that the
relief will promote justice.
relief will promote justice. Such a showing, if made, brought the matter within the
jurisdiction conferred by section 473 of the code of civil procedure. (Roland v. Kreyenhagen,
18 Cal. 456; Ward v. Clay, 82 Cal. 502, 23 Pac. 50, 227.)
3. I think the showing made by appellants was sufficient, and that the court should have
granted the relief asked. There appears to be no reason to doubt that the failure to serve and
file the proposed bill of exceptions within the stipulated time was caused solely and entirely
by an excusable inadvertence of one of the attorneys for plaintiffs [Mr. Stonesifer], who was
also one of the plaintiffs in the action, and therefore directly interested in having the proposed
bill served in time. Before reading the stipulation [which had been prepared in San Francisco
and sent to Mr. Wright at Modesto], Mr. Stonesifer had the impression that the time to be
allowed by it was thirty days in addition to the time allowed by law, and, upon hastily
glancing over it and reading thirty days,' he assumed that it was so, without carefully reading
the whole stipulation. This was negligence, but under the circumstances, and considering that
the time allowed by such stipulations is generally expressed to be in addition to the time
allowed by law, and that the stipulation could have no other effect than to add to the time
allowed by law, I think the negligence was excusable, and so thought the court that heard the
motion, as appears by its opinion. It certainly cannot be attributed to bad faith. It also appears
that the granting of the relief would be in furtherance of justice. * * *
For the reasons given in the foregoing opinion, the order appealed from is reversed, and
the cause remanded for further proceedings. (94 Cal. 42; 29 Pac. 335.)
The opinion rendered in this case of Stonesifer v. Kilburn has since been affirmed by the
Supreme Court of California in the cases of Scott v. Glenn, 97 Cal. 513, 32 Pac. 573; Cole v.
Wilcox, 99 Cal. 549, 34 Pac. 114; Banta v. Siller, 121 Cal. 414; 53 Pac. 935; Baily v.
Kreutzmann, 141 Cal. 520, 75 Pac. 104; Kaltschmidt v. Weber, 145 Cal. 596, 79 Pac. 272;
Vinson v. Los Angeles Ry. Co., 147 Cal. 479, 82 Pac. 53; Pollitz v. Wickersham, 150 Cal.
238, 88 Pac. 911; Sauer v. Eagle Brewing Co., 3 Cal. App. 127, 84 Pac. 425. And in
construing a remedial provision in their code which is similar to ours, the Supreme Court of
Utah in the case of Morgan v. Oregon S. L. R. R. Co.,
provision in their code which is similar to ours, the Supreme Court of Utah in the case of
Morgan v. Oregon S. L. R. R. Co., 27 Utah, 92, 74 Pac. 523, and the Supreme Court of Idaho
in the case of Hoehman v. N. Y. Dry Goods Co., 8 Idaho, 66, 67 Pac. 796, have also held that
the trial court has jurisdiction, after the expiration of statutory time, where a proper showing
of excusable neglect, mistake, surprise, and inadvertence has been made by the party in
default, to afford relief, if properly applied for. An examination of the authorities in this court
discloses that this is the first time this court has ever been called upon specifically to pass
upon a question identical to the one now presented. Some of the former decisions of this
court contain language which would seem to be adverse to the ruling herein made; but, as the
question was not squarely presented in those cases, such language may be regarded as dicta.
In any event, we overrule any portion of any opinion which might be construed as holding
contrary to the law as in this opinion expressed.
It seems clear to us that the Legislature of Nevada, in passing this remedial statute, had in
mind the necessity of having a provision wherein, in proper cases, upon a proper showing of
excusable neglect, surprise, mistake or inadvertence, in the interests of justice and that a full
determination of litigants' rights should be received, trial courts should, in proper cases, be
permitted to grant relief by giving a further extension of time to counsel thus aggrieved, if
properly applied for. It seems equally clear to us that the legislature wisely provided that, in
order that such relief should be granted, a proper application to be relieved of default based
upon worthy and sufficient excuses be presented and made to the trial judge before any such
relief could be granted, and that, in the interest of the perpetuation of the principle that
litigation should be properly and faithfully prosecuted, if through inexcusable neglect or
default time limitations are not adhered to, litigation should end, and the trial court, in its
discretion, be vested with authority to refuse relief. This provision under consideration, being
in its nature a remedial statute, should be liberally construed. (26 Am. & Eng. Ency. Law, 2d
ed. 677; Endlich on Interpretation of Statutes, 108, p. 143; Black on Interpretation of Laws,
p.
Interpretation of Laws, p. 311; Harden v. Card, 14 Wyo. 479, 85 Pac. 246; Nicoll v. Weldon,
130 Cal. 666, 63 Pac. 63; State v. Murphy, 29 Nev. 247; Lewis's Sutherland, Stat. Con. p.
1248, sec. 686; Buck v. Eureka, 97 Cal. 135, 31 Pac. 845; 2 Lewis's Sutherland, Stat. Con. p.
1305, sec. 717.)
This court in the case of Horton v. New Pass Co., 21 Nev. 188, very appropriately said:
Courts are established, not only to arbitrate and settle the legal controversies of men, but
also to settle them, so far as the inherent imperfections of human tribunals will permit, upon a
just and equitable basis. This can only be arrived at after a full and patient hearing of both
sides. Of course there must be rules of procedure for doing this, which must not be trifled
with. Still they are but means to an end; and, whenever they have so operated, or have been so
administered, that the action has been determined with reference to them, instead of the great
principles of right and justice, it cannot be denied that therein the tribunal has failed to reach
the end for which it was created. Admittedly this may be the necessary consequence of the
operation of rules indispensable to the transaction of business, but the result is the samethe
form has triumphed over the substance. All will agree that whenever this can be avoided with
justice to the opposing party, it should be done. In this connection the language of Justice
Baldwin in Roland v. Kreyenhagen seems quite appropriate: The power of the court should
be freely and liberally exercised under this and other sections of the act to mold and direct its
proceedings so as to dispose of cases upon their substantial merits, and without unreasonable
delay, regarding mere technicalities as obstacles to be avoided, rather than as principles to
which effect is to be given in derogation of substantial right. While formal requirements of
pleading and practice cannot be dispensed with by the court, it can usually make such orders,
or grant such amendments in the progress of the cause, as will avoid the effect of petty
exceptions, and dispose of the case upon its legal merits. It can also usually prevent unjust or
unfair advantages, or serious injury arising from casualties or inadvertences. The design of
the act was to call into requisition its equitable powers in this respect.' (18 Cal. 457.) A
finding that a defendant has negligently failed to answer in the proper time does not
cover the case.
finding that a defendant has negligently failed to answer in the proper time does not cover the
case. The question still remains, Is the negligence excusable? Where the circumstances are
such as to lead the court to hesitate in answering this query, the doubt should be resolved in
favor of the application. (Watson v. Railroad Co., 41 Cal. 20.)
In the present case under consideration the affidavit of Mr. Shoup discloses such a
meritorious state of circumstances, amounting to excusable neglect and inadvertence on his
part, that we cannot say that the trial judge abused the discretionary power vested in him in
determining such an application.
The order of the lower court extending the time of defendant in which to serve and file its
notice of intention to move for a new trial and statement on motion for a new trial is affirmed.
____________
31 Nev. 295, 295 (1909)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1909
____________
31 Nev. 295, 295 (1909) Tonopah Banking Co. v. McKane Mining Co.
[No. 1787]
TONOPAH BANKING CORPORATION, Respondent, v. THE McKANE MINING
COMPANY OF TONOPAH, NEVADA, Appellant.
1. ExecutionDifferent WritsSale.
Where a sale was had under an execution, and a sum sufficient to satisfy the judgment was realized, other
writs which might have been issued prior thereto, or which were then in existence in the hands of any other
sheriff in the state, became functus officio.
2. ExecutionSaleValidity.
Where an amount sufficient to satisfy a judgment had been collected under an execution sale, a
subsequent sale of other property under an execution issued to a sheriff of another county was void.
3. ExecutionSalePurchase by Judgment Creditor.
Purchase of property at an execution sale by the judgment creditor for a sum sufficient to satisfy the
judgment as fully extinguishes the whole judgment as though the bid were by a third person.
4. ExecutionSalesProper Officer.
An execution must be executed by the sheriff of the county where the property is situated, since a sheriff
can transfer only a valid title to such property as lies within his own county or district and can confer no
title on property which may border and be in another county, so that, if at the time of the sale he attempts to
sell the undivided piece which may be in both counties, the sale will be valid only so far as it affects the
property within his own district.
5. ExecutionSalesBidLocation of Property.
Where certain mining claims levied on under an execution were located in two counties, and the sheriff of
Nye County under his execution sold only the interest of the debtor in the claims situated in the county of
Nye to the judgment creditor for an amount sufficient to satisfy the judgment in full, the fact that the
creditor intended to have bid in the whole property, but instead bid the full amount of the purchase price or
a portion thereof, in the absence of fraud, did not prevent the sale from satisfying the judgment in full.
6. ExecutionJudicial SalesSalesCaveat Emptor.
The law of caveat emptor applies to all judicial and execution sales, except where fraud intervenes.
Action by the Tonopah Banking Corporation against the McKane Mining Company of
Tonopah, Nevada. From an order denying defendant's motion to vacate an execution sale,
Key Pittman, F. A. Stevens, and Walter Shelton, for Appellant.
Jas. F. Dennis, for Respondent.
On the 2d day of November, 1907, the plaintiff commenced suit against the defendant for
the recovery of the sum of $9,657.22, and interest, alleged to have been loaned to the
defendant, together with costs of suit and $1,000 attorney's fees. A demurrer was interposed
by the defendant upon several grounds, and the plaintiff thereafter, by leave of court,
amended its complaint to meet the objections interposed by the demurrer. On the 23d day of
December, 1907, a stipulation was entered into between counsel for the opposing parties,
wherein it was agreed that the plaintiff should have judgment for the sum of $9,618.64,
together with interest thereon from the 31st day of August, 1907, until the said sum should be
paid, and for its costs of suit. In accordance with this stipulation, on the 23d day of
December, 1907, both counsel being present, a judgment was rendered in accordance with
the terms of said stipulation.
counsel being present, a judgment was rendered in accordance with the terms of said
stipulation.
It appears that on the 29th day of November, 1907, a writ of attachment was issued out of
the district court to the sheriff of Nye County, directing him to attach all property of said
defendant in his county, not exempt from execution, or as much as would be necessary to
satisfy the prayer of plaintiff's complaint, and that in accordance therewith the said sheriff,
among other things, attached the following-named mining claims: Parker Fraction, Trenton,
Denver, Deming, Baas, C. B. & Q., Burlington, Cats Paw, Bermuda, Short, and Paymaster
lode mining claims situated in the Tonopah Mining District, partly in Nye County and partly
in Esmeralda County, State of Nevada, owned by the appellant; but said sheriff, in his return,
attached all of the right, title, claim, and interest of appellant in and to said mining claims as
situated in the said County of Nye, State of Nevada.
After the entry of the judgment aforesaid, writs of execution were issued to the sheriffs of
both Nye and Esmeralda Counties, directing each of them to sell sufficient property situated
in his county, belonging to said appellant and not exempt from execution, to satisfy said
judgment and execution thereon. The sheriff of Nye County proceeded in the manner
prescribed by law to satisfy said execution, and on the 21st day of January, 1908, sold to
respondent, as execution purchaser, all the right, title, claim, and interest of appellant in and
to said group of mining claims situated in Nye County, for the sum of $10,252, a sum more
than sufficient to satisfy said judgment and all interests and costs thereon. Said sum was
thereupon applied to the satisfaction of said execution, and it was returned fully satisfied.
Thereafter, on the 22d day of January, 1908, the sheriff of Esmeralda County sold, in
accordance with the regular advertised notice of sale, the same mining claims above named,
in so far as they laid in Esmeralda County, to the respondent for the sum of $10,114.44.
On the 20th day of July, 1908, and before the time for redemption had expired, the
appellant made a motion in the above-entitled district court for an order annulling,
vacating, and setting aside said Esmeralda County execution sale and for an order
directing the sheriff of said county not to execute and deliver any sheriff's deed by reason
of said sale, on the ground that the judgment in said case had been satisfied prior thereto
by the sale in Nye County, and that the execution in Esmeralda County was functus
officio.
the above-entitled district court for an order annulling, vacating, and setting aside said
Esmeralda County execution sale and for an order directing the sheriff of said county not to
execute and deliver any sheriff's deed by reason of said sale, on the ground that the judgment
in said case had been satisfied prior thereto by the sale in Nye County, and that the execution
in Esmeralda County was functus officio. On the 22d day of July, 1908, the court rendered its
decision and entered an order denying appellant's motion, and it is from this order that
appellant appeals.
A review of the transcript and the law applicable to the questions in controversy leads us
to the conclusion that the judgment of the lower court must be reversed. After the sale by the
sheriff of Nye County on July 21, 1908, of that portion of the mining claims above named
situated in Nye County for a sum sufficient to satisfy said judgment, unquestionably any other
writs of execution which might have been issued prior thereto, or which were then in
existence, to any other sheriff in the state, became functus officio. (Murrell v. Roberts, 33 N.
C. 424, 53 Am. Dec. 419; Reynolds v. Ingersoll, 11 Smedes & M. 249, 49 Am. Dec. 57;
Knight v. Morrison, 79 Ga. 55, 3 S. E. 689, 11 Am. St. Rep. 405; Jinks v. American Co., 102
Ga. 694, 28 S. E. 609; Hastings v. Johnson, 1 Nev. 613.) The sale by the sheriff of Esmeralda
County therefore was absolutely void, and legally could confer no title, because the very
judgment on which the execution was issued, and for which he was making the sale to satiate
its demands, was already satisfied by the sale of the sheriff of Nye County upon property
belonging to the appellant within Nye County, and from which sale a sufficient sum was
brought to satisfy the judgment and execution. (Knight v. Morrison, 79 Ga. 55, 3 S. E. 689,
11 Am. St. Rep. 405; Reynolds v. Ingersoll, 11 Smedes & M. 249, 49 Am. Dec. 57; Murrell
v. Roberts, 33 N. C. 424, 53 Am. Dec. 419; Boos v. Morgan, 130 Ind. 305, 30 N. E. 141, 30
Am. St. Rep. 237; Wills v. Chandler, 2 Fed. 273; Bullard v. McArdle, 98 Cal. 355, 33 Pac.
193, 35 Am. St. Rep. 176; Hastings v. Johnson, 1 Nev. 613.)
The fact that the judgment creditor became the purchaser at the sale, and bid a sum sufficient
to satisfy the judgment, as fully extinguishes the whole judgment as though the bid were
made by an outside party.
as fully extinguishes the whole judgment as though the bid were made by an outside party.
(23 Cyc. 1490; 17 Cyc. 1398; Kleinhenz v. Phelps, 6 Hun, 568; Weaver v. Toogood, 1 Barb.
238.) It has been held by this court that writs of attachment and execution must be executed
by the sheriff of the county where the property is situated (Sadler v. Tatti, 17 Nev. 429), and
the law is also well established that a sheriff can transfer only a valid title to such property as
lies within his own county or district, and that he can confer no title in property which may
border and be in another county, and, if at the time of the sale he should attempt to sell the
undivided piece which may border in both counties, the sale would be valid only in so far as
it affected the property within his own district, and, as to that portion lying in the adjoining
county, in so far as it affected that particular part, it would be inoperative and void. (Alred v.
Montague, 26 Tex. 732; Menges v. Oyster, 4 Watts & S. 20, 39 Am. Dec. 57; Casseday v.
Norris, 49 Tex. 613; Lewis v. Dennis, 54 Tex. 487; Terry v. O'Neal, 71 Tex. 594, 9 S. W.
673; Short v. Hepburn, 75 Fed. 113, 21 C. C. A. 252; Finley v. S. C. Canal Co., 2 Rich. Law,
567; Denny v. Faulkner, 22 Kan. 89; Morrell v. Ingle, 23 Kan. 32; Lewis v. Norton, 159
Mass. 432, 34 N. E. 544; Loewers Co. v. Lithauer, 36 Misc. Rep. 539, 73 N. Y. Supp. 947;
Plant v. Anderson, 16 Fed. 914.)
In the present case, however, the sheriff of Nye County, in his return on the execution, sold
only the interest of the appellant in and to said mining claims situated in the County of Nye
and the State of Nevada. The fact that the plaintiff may have intended to have bid in the
whole property to satisfy the judgment, but failed to do so, and bid the full amount of the
purchase price erroneously for a portion of the property, cannot affect the legal status of the
situation. The law of caveat emptor applies to all judicial and execution sales with equal force
as it does to other sales of property, except where fraud may be claimed or maintained, and in
this case no such representation has been made. (Williams v. Glenn, 87 Ky. 87, 7 S. W. 610,
12 Am. St. Rep. 461; Stearns v. Edson, 63 Vt. 259, 22 Atl. 420, 25 Am. St. Rep. 758;
Goodbar v. Daniel, 88 Ala. 583, 7 South. 254, 16 Am. St. Rep. 76; Jones v. Burr, 5 Strob.
Jones v. Burr, 5 Strob. 147, 53 Am. Dec. 699; Kleinhenz v. Phelps, 6 Hun, 568; Weaver v.
Toogood, 1 Barb. 238; Poppleton v. Bryan, 36 Or. 69, 58 Pac. 767.)
The sale by the sheriff of Nye County was duly advertised, and all bidders were bound to
take notice of the property advertised for sale. The sale was regular in particulars, and, no
fraud being alleged or urged, it passed a valid title for the sum bid, and, said sum being
sufficient to satisfy all the demands of the judgment, all other writs of execution in existence
became functus officio when the judgment was extinguished by the proceeds of this sale.
Hence, the appellant's motion in the lower court should have prevailed.
These propositions appear so clear that we deem it unnecessary to further elaborate upon
them.
The order of the lower court denying appellant's motion to annul, vacate, and set aside the
sale by the sheriff of Esmeralda County of the claims in question is hereby reversed, and it is
so ordered.
____________
31 Nev. 301, 301 (1909) Tonopah Banking Co. v. Red Rock Consol. Mining Co.
[No. 1789]
TONOPAH BANKING CORPORATION, Respondent, v. RED ROCK CONSOLIDATED
MINING COMPANY, Appellant.
1. ExecutionDifferent WritsSale.
Where a sale was had under an execution, and a sum sufficient to satisfy the judgment was realized, other
writs which might have been issued prior thereto, or which were then in existence in the hands of any other
sheriff in the state, became functus officio.
2. ExecutionSaleValidity.
Where an amount sufficient to satisfy a judgment had been collected under an execution sale, a
subsequent sale of other property under an execution issued to a sheriff of another county was void.
3. ExecutionSalePurchase by Judgment Creditor.
Purchase of property at an execution sale by the judgment creditor for a sum sufficient to satisfy the
judgment as fully extinguishes the whole judgment as though the bid were by a third person.
4. ExecutionSalesProper Officer.
An execution must be executed by the sheriff of the county where the property is situated, since a sheriff
can transfer only a valid title to such property as lies within his own county or district and can confer no
title on property which may border and be in another county, so that, if at the time of the sale he attempts to
sell the undivided piece which may be in both counties, the sale will be valid only so far as it affects the
property within his own district.
5. ExecutionSalesBidLocation of Property.
Where certain mining claims levied on under an execution were located in two counties, and the sheriff of
Nye County under his execution sold only the interest of the debtor in the claims situated in the county of
Nye to the judgment creditor for an amount sufficient to satisfy the judgment in full, the fact that the
creditor intended to have bid in the whole property, but instead bid the full amount of the purchase price or
a portion thereof, in the absence of fraud, did not prevent the sale from satisfying the judgment in full.
6. ExecutionJudicial SalesSalesCaveat Emptor.
The law of caveat emptor applies to all judicial and execution sales, except where fraud intervenes.
Action by the Tonopah Banking Corporation against the Red Rock Consolidated Mining
Company. From an order denying defendant's motion to vacate an execution sale, the
Key Pittman, F. A. Stevens, and Walter Shelton, for Appellant.
Jas. F. Dennis, for Respondent.
On the 2d day of November, 1907, the plaintiff commenced suit against the defendant for
the recovery of the sum of $9,777.93, and interest, alleged to have been loaned to the
defendant, together with costs of suit and $1,000 attorney's fees. A demurrer was interposed
by the defendant upon several grounds, and the plaintiff thereafter, by leave of the court,
amended its complaint to meet the objections interposed by the demurrer. On the 23d day of
December, 1907, a stipulation was entered into between counsel for the opposing parties,
wherein it was agreed that the plaintiff should have judgment for the sum of $9,543.67,
together with interest thereon from the 31st day of August, 1907, until the said sum should be
paid, and for its costs of suit. In accordance with this stipulation, on the 23d day of
December, 1907, both counsel being present, a judgment was rendered in accordance with the
terms of said stipulation.
It appears that on the 29th day of November, 1907, a writ of attachment was issued out of
the district court to the sheriff of Nye County, directing him to attach all property of said
defendant in his county, not exempt from execution, or as much as would be necessary to
satisfy the prayer of plaintiff's complaint, and that in accordance therewith the said sheriff,
among other things attached the following-named mining claims: Egyptian, Z Z Z, Red Rock,
Red Rock No. 1, Red Rock No. 2, and Z. Z. Z. lode mining claims situated in the Tonopah
Mining District, partly in Nye County and partly in Esmeralda County, State of Nevada,
owned by the appellant; but said sheriff, in his return, only attached all of the right, title,
claim, and interest of appellant in and to said mining claims as situated in the said County of
Nye, State of Nevada.
After the entry of the judgment aforesaid, writs of execution were issued to the sheriffs of
both Nye and Esmeralda Counties, directing each of them to sell sufficient property situated
in his county, belonging to said appellant and not exempt from execution, to satisfy said
judgment and execution thereon.
situated in his county, belonging to said appellant and not exempt from execution, to satisfy
said judgment and execution thereon. The sheriff of Nye County proceeded in the manner
prescribed by law to satisfy said execution, and on the 21st day of January, 1908, sold to
respondent, as execution purchaser, all the right, title, claim, and interest of appellant in and
to said group of mining claims situated in Nye County, for the sum of $10,138, a sum more
than sufficient to satisfy said judgment and all interest and costs thereon. Said sum was
thereupon applied to the satisfaction of said execution, and it was returned fully satisfied.
Thereafter, on the 22d day of January, 1908, the sheriff of Esmeralda County sold, in
accordance with the regular advertised notice of sale, the same mining claims above named,
in so far as they laid in Esmeralda County, to the respondent for the sum of $10,018.85.
On the 20th day of July, 1908, and before the time for redemption had expired, the
appellant made a motion in the above-entitled district court for an order annulling, vacating,
and setting aside said Esmeralda County execution sale and for an order directing the sheriff
of said county not to execute and deliver any sheriff's deed by reason of said sale, on the
ground that the judgment in said case had been satisfied prior thereto by the sale in Nye
County, and that the execution in Esmeralda County was functus officio. On the 22d day of
July, 1908, the court rendered its decision and entered an order denying appellant's motion,
and it is from this order that appellant appeals.
A review of the transcript and the law applicable to the questions in controversy lead us to
the conclusion that the judgment of the lower court must be reversed. After the sale by the
sheriff of Nye County on July 21, 1908, of that portion of the mining claims above named
situated in Nye County for a sum sufficient to satisfy said judgment, unquestionably any other
writs of execution which might have been issued prior thereto, or which were then in
existence, to any other sheriff in the state, became functus officio. Murrell v. Roberts, 33 N.
C. 424, 53 Am. Dec. 419; Reynolds v. Ingersoll, 11 Smedes & M. 249, 49 Am. Dec. 57;
Knight v. Morrison, 79 Ga. 55, 3 S. E. 6S9, 11 Am. St. Rep.
S. E. 689, 11 Am. St. Rep. 405; Jinks v. American Co., 102 Ga. 694, 28 S. E. 609;
Hastings v. Johnson, 1 Nev. 613.) The sale by the sheriff of Esmeralda County therefore was
absolutely void, and legally could confer no title, because the very judgment on which the
execution was issued, and for which he was making the sale to satiate its demands, was
already satisfied by the sale of the sheriff of Nye County upon property belonging to the
appellant within Nye County, and from which sale a sufficient sum was brought to satisfy the
judgment and execution. (Knight v. Morrison, 79 Ga. 55, 3 S. E. 689, 11 Am. St. Rep. 405;
Reynolds v. Ingersoll, 11 Smedes & M. 249, 49 Am. Dec. 57; Murrell v. Roberts, 33 N. C.
424, 53 Am. Dec. 419; Boos v. Morgan, 130 Ind. 305, 30 N. E. 141, 30 Am. St. Rep. 237;
Wills v. Chandler, 2 Fed. 273; Bullard v. McArdle, 98 Cal. 355, 33 Pac. 193, 35 Am. St. Rep.
176; Hastings v. Johnson, 1 Nev. 613.)
The fact that the judgment creditor became the purchaser at the sale, and bid a sum sufficient
to satisfy the judgment, as fully extinguishes the whole judgment as though the bid were
made by an outside party. (23 Cyc. 1490; 17 Cyc. 1398; Kleinhenz v. Phelps, 6 Hun, 568;
Weaver v. Toogood, 1 Barb. 238.) It has been held by this court that writs of attachment and
execution must be executed by the sheriff of the county where the property is situated (Sadler
v. Tatti, 17 Nev. 429), and the law is also well established that a sheriff can transfer only a
valid title to such property as lies within his own county or district, and that he can confer no
title on property which may border and be in another county, and, if at the time of the sale he
should attempt to sell the undivided piece which may border in both counties, the sale would
be valid only in so far as it affected the property within his own district, and, as to that portion
lying in the adjoining county, in so far as it affected that particular part, it would be
inoperative and void. (Alred v. Montague, 26 Tex. 732; Menges v. Oyster, 4 Watts & S. 20,
39 Am. Dec. 57; Casseday v. Norris, 49 Tex. 613; Lewis v. Dennis, 54 Tex. 487; Terry v.
O'Neal, 71 Tex. 594, 9 S. W. 673; Short v. Hepburn, 75 Fed. 113, 21 C. C. A. 252; Finley v.
S. C. Canal Co., 2 Rich. Law, 567; Denny v. Faulkner, 22 Kan. 89; Morrell v. Ingle, 23 Kan.
32; Lewis v. Norton, 159, Mass.
Norton, 159, Mass. 432, 34 N. E. 544; Loewers Co. v. Lithauer, 36 Misc. Rep. 539, 73 N. Y.
Supp. 947; Plant v. Anderson, 16 Fed. 914.)
In the present case, however, the sheriff of Nye County, in his return on the execution, sold
only the interest of the appellant in and to said mining claims situated in the County of Nye
and the State of Nevada. The fact that the plaintiff may have intended to have bid in the
whole property to satisfy the judgment, but failed to do so, and bid the full amount of the
purchase price erroneously for a portion of the property, cannot affect the legal status of the
situation. The law of caveat emptor applies to all judicial and execution sales with equal force
as it does to other sales of property, except where fraud may be claimed or maintained, and in
this case no such representation has been made. (Williams v. Glenn, 87 Ky. 87, 7 S. W. 610,
12 Am. St. Rep. 461; Stearns v. Edson, 63 Vt. 259, 22 Atl. 420, 25 Am. St. Rep. 758;
Goodbar v. Daniel, 88 Ala. 583, 7 South. 254, 16 Am. St. Rep. 76; Jones v. Burr, 5 Strob.
147, 53 Am. Dec. 699; Kleinhenz v. Phelps, 6 Hun, 568; Weaver v. Toogood, 1 Barb 238;
Poppleton v. Bryan, 36 Or. 69, 58 Pac. 767.)
The sale by the sheriff of Nye County was duly advertised, and all bidders were bound to
take notice of the property advertised for sale. The sale was regular in all particulars, and, no
fraud being alleged or urged, it passed a valid title for the sum bid, and, said sum being
sufficient to satisfy all the demands of the judgment, all other writs of execution in existence
became functus officio when the judgment was extinguished by the proceeds of this sale.
Hence, the appellant's motion in the lower court should have prevailed.
These propositions appear so clear that we deem it unnecessary to further elaborate upon
them.
The order of the lower court denying appellant's motion to annul, vacate, and set aside the
sale by the sheriff of Esmeralda County of the claims in question is hereby reversed, and it is
so ordered.
____________
31 Nev. 306, 306 (1909) Lowman v. Nye & Ormsby Bank
[No.1796]
Z. H. LOWMAN, Appellant, v. NYE AND ORMSBY
COUNTY BANK, Respondent.
1. Appeal and ErrorReviewConflicting EvidenceConclusiveness of Verdict.
So far as there is any conflict in the evidence on any material facts, the verdict of the jury is conclusive on
appeal.
2. Principal and AgentEvidence of Agent's Authority.
Evidence held to show that an agent was sufficiently authorized in writing to warrant a bank in acting on
his directions in delivering a deed to be recorded.
3. Principal and AgentUnauthorized Acts of AgentRatification.
Conceding that an agent was without sufficient authority to justify a bank, pursuant to his directions, in
surrendering a deed executed by the principal and deposited in escrow, the principal could ratify the action
of the unauthorized agent and be bound thereby.
4. Principal and AgentRatification of Agent's ActsSufficiency of Evidence.
Evidence held sufficient to prove ratification of an agent's act in modifying a contract to transfer mining
property.
5. DeedsUnauthorized DeliverySubsequent Ratification.
Delivery of a deed not authorized by a grantor may be ratified by his subsequent conduct and acts.
Action by Z. H. Lowman against the Nye and Ormsby County Bank. From a judgment for
defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.
Statement of Facts
This is an action brought by the plaintiff, appellant herein, against the defendant,
respondent herein, for damages in the sum of $13,500 for breach of contract. From a
judgment in favor of defendant and from an order denying plaintiff's motion for a new trial,
plaintiff appeals.
The complaint alleges that on or about the 14th day of August, 1906, and for a long time
prior thereto, the plaintiff was the owner and in the possession of an undivided one-half
interest in eighteen lode mining claims, situated in the Greenwater Mining District, Inyo
County, California, and which for convenience will be referred to as the C. U. Group; that
one J. Q. Lisle and one T. B. Beadle were each the owners of an undivided one-fourth
interest in said group; that on or about the said 14th day of August, 1906, plaintiff and
said Lisle and Beadle entered into a written contract to sell and convey said "C. U. Group"
of claims to one A. D. Nash and one Edgar T.
J. Q. Lisle and one T. B. Beadle were each the owners of an undivided one-fourth interest in
said group; that on or about the said 14th day of August, 1906, plaintiff and said Lisle and
Beadle entered into a written contract to sell and convey said C. U. Group of claims to one
A. D. Nash and one Edgar T. Wallace for and in consideration of certain payments and
conditions in said written agreement specified, a copy of which said contract was attached to
and made a part of the complaint. That portion of said contract, material for consideration in
this case, reads as follows: Upon the payment by said second parties of the sum of three
thousand dollars to the credit of the first parties at the Nye and Ormsby County Bank at
Tonopah, Nye County, State of Nevada, on or before thirty days from the date of this
agreement, the said first parties will execute good and sufficient deed or deeds of conveyance
of said mining claims to said second parties, quitclaiming, selling and conveying the same to
said second parties, and covenanting that the said groups of claims contains at least sixteen
and one-half full claims or 330 acres more or less; said deed to be placed in escrow with said
bank with instructions to be delivered to said second parties upon the payment of the sums
hereinafter named to the credit of said first parties at said bank, namely: $13,500 on or before
the 14th day of March, 1907; $13,500 on or before the 14th day of September, 1907. If the
said second parties shall fail to make said payments or any thereof at the time and in the
manner herein provided, then and in that case, this agreement shall at the option of said first
parties become null and void, and all payments theretofore made shall be forfeited to the first
parties as and liquidated damages for the breach of this agreement. Upon the forfeiture of this
agreement said deed so placed in escrow shall be returned by said bank to the said parties of
the first part. As a further consideration for said conveyance, the said second parties agree to
organize a corporation under the laws of some suitable jurisdiction, with a capitalization of
one million five hundred thousand dollars, represented by one million five hundred thousand
shares of the par value of one dollar each. The said second parties further agree immediately
upon the delivery of said deed of conveyance to them under the terms of this agreement
they will convey said property to said corporation in consideration of the issuance to said
second parties of the entire capitalization, fully paid up and nonassessable; that they will
place or cause to be placed in the treasury of said company five hundred thousand shares
of such capital stock; that they transfer and convey to the first parties herein one hundred
thousand shares of said capital stock fully paid up and nonassessable, to be held by said
first parties subject to any pooling agreement that the second parties herein may enter
into at the inception of said corporation; that the balance of the capital stock of said
corporation shall be disposed of by the second parties herein as to them shall seem meet
and desirable, that is to say, said second parties are to be entitled to the remaining nine
hundred thousand shares."
delivery of said deed of conveyance to them under the terms of this agreement they will
convey said property to said corporation in consideration of the issuance to said second
parties of the entire capitalization, fully paid up and nonassessable; that they will place or
cause to be placed in the treasury of said company five hundred thousand shares of such
capital stock; that they transfer and convey to the first parties herein one hundred thousand
shares of said capital stock fully paid up and nonassessable, to be held by said first parties
subject to any pooling agreement that the second parties herein may enter into at the inception
of said corporation; that the balance of the capital stock of said corporation shall be disposed
of by the second parties herein as to them shall seem meet and desirable, that is to say, said
second parties are to be entitled to the remaining nine hundred thousand shares.
The complaint further alleges that on or about the 5th day of September, 1906, the plaintiff
and the said Lisle and Beadle caused to be deposited with the defendant bank their certain
deed of conveyance of said C. U. Group to said Nash and Wallace, with specific
instructions to said defendant bank to hold said deed in escrow, and to deliver the same to
said Nash and Wallace or their assigns, only in the event of compliance with the terms and
conditions of said written agreement, and that thereupon defendant for hire by it received,
and to be received, did accept and agree to hold the said deed of conveyance as an escrow to
be by it delivered to the said Nash and Wallace or their assigns, only upon precedent
payments of the sums of money therein mentioned, and then and there agreed that one-half of
said payments should be by it received for plaintiff and be by defendant remitted to plaintiff;
that thereafter, and within the time mentioned in said agreement, the said Nash and the said
Wallace paid to defendant the sum of $3,000 therein mentioned and in pursuance of the terms
and conditions thereof, and that thereupon defendant remitted to plaintiff one-half of said
payment, to wit, the sum of $1,500; that on or about the 9th day of February, A. D. 1907, and
while defendant was the custodian and the holder of the said deed of conveyance hereinbefore
mentioned, defendant then well knowing that plaintiff had never at any time authorized the
delivery of said deed of conveyance to any one except upon the precedent performance of
its conditions specified at the time of its deposit in escrow with defendant as hereinbefore
pleaded, and when in truth and in fact plaintiff has never at any time authorized the
delivery of said deed of conveyance except upon compliance with the conditions
aforesaid, defendant wilfully and deliberately delivered said deed of conveyance to the
said Nash and the said Wallace without requiring as a condition precedent to said delivery
the payment to defendant of any sum of money whatever for or on account of plaintiff,
and that plaintiff has never at any time received from defendant or from any one else any
part of the said $27,000 mentioned in said agreement hereinbefore referred to"; that on
the 25th day of January, 1907, the said A. D. Nash, for a valuable consideration to him
paid by the said Edgar T.
had never at any time authorized the delivery of said deed of conveyance to any one except
upon the precedent performance of its conditions specified at the time of its deposit in escrow
with defendant as hereinbefore pleaded, and when in truth and in fact plaintiff has never at
any time authorized the delivery of said deed of conveyance except upon compliance with the
conditions aforesaid, defendant wilfully and deliberately delivered said deed of conveyance to
the said Nash and the said Wallace without requiring as a condition precedent to said delivery
the payment to defendant of any sum of money whatever for or on account of plaintiff, and
that plaintiff has never at any time received from defendant or from any one else any part of
the said $27,000 mentioned in said agreement hereinbefore referred to; that on the 25th day
of January, 1907, the said A. D. Nash, for a valuable consideration to him paid by the said
Edgar T. Wallace, by deed of conveyance deeded to said Wallace all of the right, title, and
interest of said Nash in and to the said lode mining claims; that on the 5th day of February,
A. D. 1907, for a valuable consideration to them paid by Greenwater Development and
Mining Company, a corporation then created, organized, and existing under and by virtue of
the laws of the State of South Dakota, the said A. D. Nash and the said Edgar T. Wallace by
deed of conveyance deeded to said Greenwater Development and Mining Company all of the
said lode mining claims; that each and all of the said foregoing deeds of conveyance were
made and delivered without the authorization, knowledge, or consent of plaintiff save and
except the deed of conveyance hereinbefore referred to and pleaded by copy as Plaintiff's
Exhibit B,' was signed and acknowledged by plaintiff, but that its delivery to the said A. D.
Nash and the said Edgar T. Wallace as hereinbefore pleaded was without the authorization or
knowledge of plaintiff; that the said deeds of conveyance of the said lode mining claims to
the said Greenwater Development and Mining Company, a corporation, were received by the
said corporation in good faith, for a valuable consideration therefor by it paid, and without
any knowledge by it had of the unauthorized and wrongful execution and delivery of the
deeds of conveyance hereinbefore mentioned and pleaded; that plaintiff elects to demand
and receive from defendant the sum of thirteen thousand five hundred dollars; that from
and on or about the ___ day of September, A. D. 1906, until they and each of them
deeded the said lode mining claims to said Greenwater Development and Mining
Company, as hereinbefore pleaded, the said Nash and the said Wallace were in the actual
and exclusive possession of the same, and engaged in the operation and the development
thereof, and that ever since the conveyance of the said lode mining claims by the said
Nash and the said Wallace to the said Greenwater Development and Mining Company, as
hereinbefore pleaded, the said company has been in the exclusive possession, operation
and development of the said lode mining claims."
hereinbefore mentioned and pleaded; that plaintiff elects to demand and receive from
defendant the sum of thirteen thousand five hundred dollars; that from and on or about the
___ day of September, A. D. 1906, until they and each of them deeded the said lode mining
claims to said Greenwater Development and Mining Company, as hereinbefore pleaded, the
said Nash and the said Wallace were in the actual and exclusive possession of the same, and
engaged in the operation and the development thereof, and that ever since the conveyance of
the said lode mining claims by the said Nash and the said Wallace to the said Greenwater
Development and Mining Company, as hereinbefore pleaded, the said company has been in
the exclusive possession, operation and development of the said lode mining claims.
The answer of defendant, as amended, consists of denials of the main allegations of the
complaint, except as the same may be modified by certain admissions hereinafter set forth,
and new matter set up by way of defense. It is admitted that defendant received the deed
executed by the plaintiff, Lisle, and Beadle, but alleges that said deed was delivered to it by
Lisle and Beadle, and that said Lisle represented that he was the agent and attorney in fact for
the plaintiff and that he acted for said plaintiff and for himself. The answer alleges that the
deed was delivered to the said Lisle, Nash, and Wallace, at the special instance and request
of the said Lisle acting for himself and as attorney in fact for the plaintiff.
For a further and separate defense to the plaintiff's cause of action, the answer, as
amended, alleged: That some time during the month of January, 1907, or the early part of
February, 1907, the said J. Q. Lisle demanded the return of said deed to him, and the said A.
D. Nash and said Wallace agreed to said return; that the defendant herein was informed by the
said J. Q. Lisle that he had the power and was the agent for the said Z. H. Lowman and
entitled to receive said deed; that the defendant herein did then and there deliver up the said
deed to the said J. Q. Lisle, in reliance upon such representations; that the defendant is
informed and believes and, upon such information and belief, alleges the fact to be that the
said Lisle, for himself, and as such agent of the plaintiff herein and T. B. Beadle, entered
into a new agreement with the said Nash and Wallace, which said new agreement so
entered into by said parties entirely superseded and set aside the said agreement set
forth in the complaint herein and entered into on the 14th day of August, 1906, and by
the terms of which agreement it was agreed by and between said parties that said deed
from said Lowman, Beadle, and Lisle should be delivered and recorded prior to the
payment of any of said sum of twenty-seven thousand dollars referred to in said first
agreement, and in said second agreement, and that the said sum of twenty-seven
thousand dollars should be paid on or within thirty days from the 9th day of February,
1907, and 200,000 shares of the capital stock of the Greenwater Development Company
be delivered to said Lowman, Beadle, and Lisle, and that in case said Nash and Wallace
failed to perform the terms and conditions of said contract said property should be
reconveyed to said Lowman, Lisle, and Beadle; that thereafter, to wit, in the early part of
the month of March, 1907, the said J. Q. Lisle informed the plaintiff herein that he had
withdrawn the deed mentioned as Plaintiff's Exhibit B in the complaint from the
defendant herein and had delivered the same to Nash and Wallace to be placed on record,
and that the said Lisle informed the said Lowman of the new agreement or arrangement
entered into by him for the benefit of himself and Lowman and Beadle whereby they were
to receive the said twenty-seven thousand dollars within thirty days and the said 200,000
shares of the capital stock of the Greenwater Development and Mining Company; that the
said Lowman did then and there inform the said Lisle that he had done right, and that he
was perfectly satisfied with the new arrangement or agreement entered into by the said
Lisle for himself and for the plaintiff herein, and that he consented to the arrangements
thus made by the said Lisle; that after the execution of said agreement dated August 14,
1906, the plaintiff herein agreed and consented that the said deed set forth in said
complaint, to wit, the deed in which plaintiff, J. Q. Lisle, and T. B. Beadle were grantors,
and A. D. Nash and Edgar T.
the said Lisle, for himself, and as such agent of the plaintiff herein and T. B. Beadle, entered
into a new agreement with the said Nash and Wallace, which said new agreement so entered
into by said parties entirely superseded and set aside the said agreement set forth in the
complaint herein and entered into on the 14th day of August, 1906, and by the terms of which
agreement it was agreed by and between said parties that said deed from said Lowman,
Beadle, and Lisle should be delivered and recorded prior to the payment of any of said sum of
twenty-seven thousand dollars referred to in said first agreement, and in said second
agreement, and that the said sum of twenty-seven thousand dollars should be paid on or
within thirty days from the 9th day of February, 1907, and 200,000 shares of the capital stock
of the Greenwater Development Company be delivered to said Lowman, Beadle, and Lisle,
and that in case said Nash and Wallace failed to perform the terms and conditions of said
contract said property should be reconveyed to said Lowman, Lisle, and Beadle; that
thereafter, to wit, in the early part of the month of March, 1907, the said J. Q. Lisle informed
the plaintiff herein that he had withdrawn the deed mentioned as Plaintiff's Exhibit B in the
complaint from the defendant herein and had delivered the same to Nash and Wallace to be
placed on record, and that the said Lisle informed the said Lowman of the new agreement or
arrangement entered into by him for the benefit of himself and Lowman and Beadle whereby
they were to receive the said twenty-seven thousand dollars within thirty days and the said
200,000 shares of the capital stock of the Greenwater Development and Mining Company;
that the said Lowman did then and there inform the said Lisle that he had done right, and that
he was perfectly satisfied with the new arrangement or agreement entered into by the said
Lisle for himself and for the plaintiff herein, and that he consented to the arrangements thus
made by the said Lisle; that after the execution of said agreement dated August 14, 1906, the
plaintiff herein agreed and consented that the said deed set forth in said complaint, to wit, the
deed in which plaintiff, J. Q. Lisle, and T. B. Beadle were grantors, and A. D. Nash and Edgar
T. Wallace grantees, be delivered to said Nash and Wallace without the payment of any
money or the delivery of any stock by said Wallace and Nash prior to and without the
performance on the part of said Nash or Wallace of any of the conditions named in said
contract and by them to be performed; that said plaintiff knew that said deed had been
delivered to said Nash and Wallace and acquired {acquiesced) in said delivery, and knew
that said J. Q. Lisle, acting as his agent, had consented to the delivery and recordation of
said deed without the payment of any money or delivery of any stock, and ratified said
action of J. Q. Lisle as his agent."
Wallace without the payment of any money or the delivery of any stock by said Wallace and
Nash prior to and without the performance on the part of said Nash or Wallace of any of the
conditions named in said contract and by them to be performed; that said plaintiff knew that
said deed had been delivered to said Nash and Wallace and acquired (acquiesced) in said
delivery, and knew that said J. Q. Lisle, acting as his agent, had consented to the delivery and
recordation of said deed without the payment of any money or delivery of any stock, and
ratified said action of J. Q. Lisle as his agent.
Upon the trial proof was offered showing that on the 1st day of March, 1906, plaintiff and
said Lisle entered into a written agreement providing that the said Lisle should prospect for
and locate mineral-bearing ground, in which each should own an undivided one-half, also to
examine and report upon other properties that might promote the interests of both parties,
and, if possible, secure options for said Lowman. Said Lowman agreed to pay said Lisle $40
per month for his services and for one-half interest in any mining claims he might locate, and
further, to sell, promote or incorporate any property to the best of his ability which said Lisle
may secure for him, provided the said Lowman considered the same of merit. In pursuance of
this agreement, said Lisle located two groups of claims in the said Greenwater district, one
the C. U. Group in question and the other the Anaconda Group. Prior to the contract in
reference to the C. U. Group, a sale had been made of the Anaconda group, for which
plaintiff had received for his portion about $20,000 net. The agreed purchase price for this
group was $60,000, from which price said Lisle made a discount of about $10,000 on account
of certain claims in conflict. After Lisle informed plaintiff of this transaction, it met with his
approval. Lisle testified in reference to a visit by Lowman to the Greenwater district in July or
august of 1906 and prior to the contract in reference to the C. U. Group, at which time
plaintiff said to Lisle: Now you are up here, and you understand the conditions and the
situation, and I am too old a man to bother with this thing. I am going to leave it all with you,
and you do that to suit yourself,' and I asked him if it would be necessary to have a power of
attorney acknowledged by a notary public or something to that effect.
sary to have a power of attorney acknowledged by a notary public or something to that effect.
I conveyed my meaning to him in that way. I don't know the exact words I used, but he said,
No; you go ahead and handle that to suit yourself.' That was about handling the claims and
buying or selling anything that I wanted to do.
Testimony was admitted of the contents of a letter written by the plaintiff to Lisle, after the
latter had located the Anaconda and C. U. groups, and prior to the negotiations for the
sale thererof. Mr. Lisle testified that the essence of the letter was this: As I was a long ways
from transportation, and in a country that was hard to get at, and that I had acquired some
claims there by location, and that I should be fortunate enough to have a chance to dispose of
them to go right ahead and use my own judgment, and that he would stand by my action.
This letter the witness testified he gave to Mr. Nash when the latter asked what authority he
had to represent Mr. Lowman, and that Nash still retained the letter. Also, that this letter was
exhibited to Mr. Raycraft, the cashier of the defendant bank, at the time the deed was
withdrawn from the defendant bank on February 9, 1907.
A letter from Lowman to Lisle, dated August 9, 1906, was admitted in evidence in which
Lowman, among other things, said: I hope you are getting along nicely and doing well. I am
trying to get things shaped up here in matters you and I and Mr Beadle spoke about, and it
looks so that I may be successfulthat is, regarding the organization of a company. But
should you have a chance in disposing any of the property before I make any arrangements
with any parties here, it is all satisfactory to me. The 12th of this month will soon be here, and
it is only a matter of a few days. Now, I would like to know how you did tie up the property
and what arrangements. What kind of a bond you gave, as I am in the dark about it. The
testimony of Lowman shows that the agreement in reference to the sale of the C. U. Group
was negotiated by Lisle; that he received a telegram from Lisle that he (Lisle) had sold the C.
U. group; that soon thereafter he received from Lisle a letter inclosing the agreement of
August 14, 1906, together with the deed; that he executed the agreement and deed, and
turned them over to his bankers, the Pasadena National Bank of Pasadena, California,
with instructions to forward the same to the defendant bank, which they did,
accompanied by the following letter: "Pasadena, California, September 5th, 1906.
agreement and deed, and turned them over to his bankers, the Pasadena National Bank of
Pasadena, California, with instructions to forward the same to the defendant bank, which they
did, accompanied by the following letter: Pasadena, California, September 5th, 1906. Nye
and Ormsby County Bank, Tonopah, NevadaGentlemen: Enclosed please find two
agreements and deed signed by Z. H. Lowman and wife, covering certain mining claims.
These agreements are to be signed by J. Q. Lisle and T. B. Beadle, parties of the first part, and
A. D. Nash, party of the second part; the deed to be executed by Mr. Lisle and Mr. Beadle.
All papers are to be held by you in escrow according to the terms of the agreement. Please
collect the $3,000 first payment, remitting one-half thereof to this bank for account of Mr.
Lowman, the other half to be held by you for account of Mr. Lisle and Mr. Beadle; the
balance of payments to be remitted for in the same proportion. Yours very truly, H. Newby,
President.
Under the agreement of date August 14th, the first payment of $3,000 was made, and half
thereof forwarded to the plaintiff. Lisle testified that on or prior to February 9, 1907, said A.
D. Nash told him that he had parties in New York who had agreed to purchase the stock of
this corporation (Greenwater Mining and Development Company), or a certain portion of it,
if they acquired title to the property in question. He (Nash) put the proposition to me this
way: The money is on call there, and, if you so transfer, I will give you a side
agreementanother agreementand set this other asidedo away with the first
agreementand you will get your money instead of waiting six months; you can get your
money on or before thirty days from date. * * * I accepted his proposition. I took the deeds
out of escrow and delivered them to Mr. Nash to be filed for record in Inyo County, and took
an agreementa new, entirely new agreement with the purchase pricethat 200,000 shares
of stock of the Greenwater Development Company, * * * the $27,000 and the 200,000 shares
of stock was to be delivered on or before thirty days. A form of agreement executed by Nash
and Wallace, embodying the terms of the new agreement consented to by Lisle was admitted
in evidence for the purpose of showing what the new conditions were to which Lisle
consented, a further provision of which agreement was that if the money was not paid the
property was to be transferred back to the original owners.
what the new conditions were to which Lisle consented, a further provision of which
agreement was that if the money was not paid the property was to be transferred back to the
original owners. Pursuant to this agreement, and upon request of Mr. Lisle the defendant bank
delivered up the deed, which was given to Nash and filed for record.
Concerning the circumstances of the defendant bank's surrender of the deed, its cashier,
Mr. Raycraft, testified as follows: A. Mr. Lisle and Mr. Nash came to the bank, and Mr.
Lisle said he wanted to take the deed that was in escrow to the C. U. group of claims, one to
eighteen, inclusive, I believe, out and send it for record. When it was stated to me what was
desired, I asked Mr. Nash and Mr. Lisle, I think, what they intended to do about it, and Mr.
Lisle stated that he had Mr. Lowman's power of attorney to act in the matter; also Mr.
Beadle's. And before delivering the deed to Mr. Lisle I told him that I wanted some evidence
of this fact. Well, either he or Mr. Nash, I don't know which it was, produced a letter written
by Mr. Lowman to Mr. Lisle. I don't remember all of the contents of the letter, but I
remember part of it referred to this transaction and stated that he knew nothing of the
situation here and that Mr. Lisle could act in the matter as to his best judgmentthat is,
regarding the C. U. group of claims. Considering under that letter that he had authority to
recall the deed, I gave it to him to be sent for record.
Lisle further testified that, at the time defendant bank surrendered the deed, he wrote upon
a letterhead of A. D. Nash the following, and gave the same to the bank: Tonopah, Nevada,
February 9, 1907. To the Nye and Ormsby County Bank: On payment of $27,000 and
200,000 shares of the capital stock of the company formed by Wallace and Nash to which
they have deeded the C. U. Queen claims Nos. 1 to 18, you will deliver the deeds to C. U.
Queen now in custody to Mr. Wallace and A. D. Nash. J. Q. Lisle. T. B. Beadle. Z. H.
Lowman. By J. Q. Lisle, his Attorney in Fact.
Lisle in his testimony stated that the last foregoing letter was given to the bank for the
reason that the deed, after being recorded, was to be returned to the bank and held by it until
the money was paid, and this was to be their instructions.
the money was paid, and this was to be their instructions. The next day, February 10th, Lisle
wrote the plaintiff a letter, principally devoted to the negotiations he had been making in
reference to the sale of other properties in which they were interested. This letter goes on to
state: I have made arrangements to get our money on property already sold. Will be able to
get pay on $60,000 sale by discounting the interest. There is also some fractions that will cut
down that payment some. Have an opportunity to meet all the people next Thursday, fix up
all complaints, and get our money. Will get $27,000 on C. U. Queens in thirty days with no
discount. Money is in the East and they will send it on in a few days. Lisle further testified
that on or about the 10th of March, 1907, he saw the plaintiff in Los Angeles, and told him
that he (Lisle) had taken the deeds to the C. U. Queens out of escrow, and turned them over
to Messrs. Wallace and Nash to enable them to deed the property to the Greenwater
Development Company for the purpose of acquiring money that had been subscribed in New
York, which would enable them to make the payments of the purchase price on the property,
and that in consideration of this they have shortened the time of the last paymentfrom
September, I think it was, to Marchand that they had also wished to capitalize their
company for three million instead of one million which was originally agreed upon, and it
would double our amount of stock. * * * I told him they agreed in case they didn't pay the
money to reconvey the property back to us, * * * that the deeds had been recorded. * * *
Mr.Lowman said: Under the present circumstances of the financial conditions, I consider
that you used good judgment, because under the original agreement it would be impossible
for the deal to go through.' That the way the outlook of the camp was at the present time and
financial conditions getting in bad shape that the property would remain in escrow for six
months. At that time it looked as though it would be an utter impossibility for Nash and
Wallace to raise the money at that time, and he considered that I used good judgment in
allowing them to put the deed on record and raise our money. And we figured up the time
when the money was to be paid, and he said, 'Well, now, that money ought to be there, and
we will go down and telegraph and see if the money has come,' and that is how the
telegram was sent."
he said, Well, now, that money ought to be there, and we will go down and telegraph and see
if the money has come,' and that is how the telegram was sent. The telegram referred to
reads: Los Angeles, March 12, 1907. Nye and Ormsby County Bank, Tonopah, Nevada. Did
Nash make payment in C. U. Queen? Answer Hollenbeck, J. Q. Lisle. This telegram, the
witness testified, was paid for by the plaintiff. Plaintiff, in his testimony, stated that he went
with Lisle when this telegram was sent, and that Lisle showed him an answer thereto to the
effect that the money had not been paid.
A letter of date March 31, 1907, from Nash to plaintiff, in reply to one from plaintiff to
Nash of date March 26th, was introduced in evidence, and which reads: Tonopah, Nevada,
March 31, 1907. Mr. Z. H. Lowman, Los Angeles, CaliforniaMy dear Sir: Your letter of
the 26th inst. was received yesterday morning, on my return to town. As regards the C. U.
Queen deal, I think I can explain the situation satisfactorily to you, barring the very
unimportant fact that as yet we have not complied with the terms of our arrangement with
you, namely, to pay you the balance due you of $27,000. Setting all jokes aside, however, the
reason for this was that Mr. Wallace and myself had to leave New York to clean up some
very important business here, before getting in any money, which had been already
subscribed and was due before March 1st. * * * Mr. Wallace returned to New York about ten
days ago, is now there, and I have no doubt will succeed in getting the proposition lined up
again. Before the 14th day of March, however, we spoke to Mr. Beadle and Mr. Lisle about
getting an extension of sixty days, and they acceded to it, and we and they felt sure that you
would take the same view of it after the circumstances were explained. The C. U. Queen
ground has been incorporated into a company called the Greenwater Development and
Mining Company. This we incorporated in New York, and we got Mr. Lisle and Mr. Beadle
to agree to deed the ground direct to the company instead of to us, so that this deal could be
put through, we guaranteeing that in case the deal did not go through, that the entire
corporation be turned over to you people intact. Hoping this explanation clears up everything
to your entire satisfaction, I remain, yours very sincerely, A. D. Nash.
to your entire satisfaction, I remain, yours very sincerely, A. D. Nash. (F.) I enclose copy of
agreement executed by myself covering extension agreed upon between myself and Lisle and
Beadle.
On May 13, 1907, the Pasadena National Bank wrote the defendant bank a letter which,
after reciting in full their former letter of September 5, 1906, reads: On September 14th, you
remitted to us a San Francisco draft for $2,992.50 which was the payment, less exchange, on
the C. U. group of claims, as per the agreements mentioned in the above letter. Since that date
we have heard nothing from you in regard to additional payments, and our client, Mr.
Lowman, has requested us to write you in regard to the matter. Mr. Lowman claims that a
payment of $13,500 was due in March. Unless this payment has been made, Mr. Lowman
desired that the agreements and deed be returned to us.
In reply to the letter, the defendant bank answered on May 18th as follows: Nye and
Ormsby County Bank, Tonopah, Nevada, May 18, 1907. Pasadena National Bank, Pasadena,
CaliforniaGentlemen: Answering your letter of the 13th in regard to escrow which we hold
on the C. U.' group, we beg to advise you that the payment due in March of $13,500 was not
paid, but that Mr. Lisle was here at that time and made some arrangements for extension of
the payment with Mr. Nash. At that time Mr. Lisle held the powers of attorney of both Mr.
Lowman and Mr. Beadle, and under these circumstances we are in doubt if it would be proper
for us to return these papers to Mr. Lowman unless this request was joined in by Mr. Lisle. As
we presume this is a matter which can be easily arranged between Messrs. Lowman and Lisle,
we would ask you to have Mr. Lisle join Mr. Lowman in this request for the return of the
papers, upon receipt of which we will be glad to make any disposition of them which they
may designate. Awaiting your advice, we are, yours very truly, (Signed) W. A. Shockley, for
Cashier.
A copy of this letter was, by the Pasadena bank forwarded to the plaintiff whose answer
was by the Pasadena bank forwarded to the defendant bank and which reads as follows: Los
Angeles, California, May 22, 1907. Nye and Ormsby County Bank, Tonopah,
NevadaGentlemen: Your letter addressed to the Pasadena National Bank, at Pasadena,
California, in re escrow agreement, etc., in relation to certain mining claims, deeds to
which were placed in your bank, to be delivered to Messrs. A. D.
County Bank, Tonopah, NevadaGentlemen: Your letter addressed to the Pasadena National
Bank, at Pasadena, California, in re escrow agreement, etc., in relation to certain mining
claims, deeds to which were placed in your bank, to be delivered to Messrs. A. D. Nash and
Edgar T. Wallace, under the certain conditions contained in said escrow instructions, has
been by the Pasadena National Bank referred to me, and in answer thereto will state that I
have advised the said bank that I at no time have ever authorized J. Q. Lisle, or any other
person, either by power of attorney or otherwise, to grant any extension of time upon the
payments to be made under the escrow agreement referred to, nor have I by power of attorney
or otherwise, authorized any person to grant permission to, or ratify for me in my place and
stead the taking out of the deed referred to except upon the strict compliance with the articles
of escrow placed with you. I have investigated, and been informed upon reliable authority,
that the deed has been delivered by you to the aforesaid Nash and Wallace, and that the same
has been recorded in the office of the county recorder of Inyo County. This being true, I
therefore look to you for the payment of the sum called for upon the delivery of the deed as
hereinbefore mentioned, and as in the articles of escrow stipulated. Very respectfully, Z. H.
Lowman.
To this letter the defendant bank replied as follows: The Nye and Ormsby County Bank,
Tonopah, Nevada. June 4, 1907. Mr. Z. H. Lowman, Los Angeles, CaliforniaDear Sir:
Replying to your letter of the 23d, forwarded us through the Pasadena National Bank of Los
Angeles, we beg to enclose to you copy of the agreement which is deposited with the escrow
we hold in regard to the C. U. Queen group of claims, and in explanation will say that this
deed was entered into between Mr. Nash and Mr. Lisle, and Mr. Lisle signed as your attorney
in fact. To facilitate handling the property it was deeded to the Greenwater Development
Company, and this deed was placed in escrow with the original deed. Our understanding of
the matter is that Mr. Wallace is now working on the deal in New York, which, if
unsuccessful, the property will be redeeded to you and your partners. As we are informed that
there was no prospect of Messrs.
there was no prospect of Messrs. Nash and Wallace being able to carry through the conditions
as provided for in the original agreement, this arrangement was entered into between Mr.
Nash and Mr. Lisle and your interests were protected by the subsequent agreement. If there is
any other information which you desire in connection with this matter, kindly advise and we
will be glad to give it to you. Yours very truly, W. A. Shockley, for Cashier.
Accompanying the letter of date March 31, 1907, from Nash to the plaintiff, was a
proposed written agreement signed by Nash, the purpose of which was to extend the time of
payment of $27,000 sixty days from the 18th day of March, 1907, which proposed agreement
contained the following: Whereas, under a subsequent agreement, dated the 9th day of
February, 1907, between the same parties, the parties of the second part permitted a deed of
said properties to the Greenwater Development and Mining Company to be placed on record
in Inyo County, California, in order to enable the said A. D. Nash and Edgar T. Wallace to
make payment of the purchase price immediately instead of in the installments called for in
said first agreement.
Plaintiff testified that prior to his visit to the Greenwater district in July, 1906, he had
written several letters to Lisle in which he told him that he could do with the Greenwater
properties as he pleased or as he saw fit, but that after such visit he wrote no such letters;
that prior to the signing of the bond or option of the C. U. Group, he had nothing whatever
to do with it; that the first he heard of it was when Lisle wired him; that Lisle arranged all the
details of the sale to Nash and Wallace. Plaintiff further testified that no such conversation
occurred at Los Angeles between himself and Lisle, on or about March 10, 1907, as testified
to by Lisle; that Lisle did not tell him of the agreement entered into between Nash and Lisle
in February, or that the deed had been withdrawn from the defendant bank and filed; that
when the telegram of date March 12th was sent by Lisle to the defendant bank, he supposed it
was in reference to the payment of $13,500 and not of $27,000 as per the arrangements of
February 9th. He further testified that he never repudiated any action taken by Lisle in
reference to their mining interests excepting that of February 9, 1907.
by Lisle in reference to their mining interests excepting that of February 9, 1907.
Summerfield & Curler, and McIntosh & Cook, for Appellant:
I. Upon the respondent delivering the deed out of escrow in disregard of the terms of the
escrow agreement and directions, and the recordation of the same, appellant had his choice of
two remedies: An action in equity against the various grantors to set aside the subsequent
deeds, or an action at law against respondent for its violation of its contract. He naturally
elected to select the latter remedy, which he had a right to do. (Finch v. Parl, 76 Am. St. Rep.
588; Legard v. Ghalson, 24 Miss. 691; Allen v. Slinger, 74 Ill. 119; Brand v. Williams, 29
Minn. 238.)
II. It is a fundamental principle that, in order to constitute an estoppel in pais, the party
relying upon it must have been influenced by the acts or the silence of the other, and been
caused thereby to act as he would not have otherwise acted. (Sharon v. Minnock, 6 Nev. 377;
McCormick v. Ins. Co., 86 Cal. 260; Boggs v. Merced Co., 14 Cal. 279; Bynum v. Preston, 69
Tex. 287; De Berry v. Wheeler, 128 Mo. 84; Rorer Co. v. Trant, 83 Va. 397; Gardner v.
Pierce, 22 Nev. 154.)
III. It certainly requires no great mental effort to see that respondent could not have been
induced to deliver the deed out of escrow by acts or conduct of appellant which did not occur
until after such delivery had been made. There is no element of estoppel in this case. Neither
was there any state of facts sufficiently pleaded by respondent to tender an issue of estoppel.
To create an estoppel in pais it must be certain, and not a matter of mere inference of opinion.
(Blodgett v. Perry, 97 Mo. 307.)
IV. Under all rules of pleading the affirmative defense of ratification must be sufficiently
pleaded to fully tender issue upon all facts necessary to constitute such defense. The law
requiring Lisle to be empowered by a writing signed by appellant in order to authorize him to
cause the deed to be delivered out of escrow to the grantees, the same form or mode is
necessary to constitute a valid ratification by appellant of Lisle's acts in causing such delivery.
(Edwards v. Carson Water Co.,
Water Co., 21 Nev. 488; McCracken v. City of S. F., 16 Cal. 609; Despatch Line v. Bellamy,
12 N. H. 232; Pollard v. Gibbs, 55 Ga. 45; Palmer v. Williams, 25 Mich. 328; Ragan v.
Chenault, 78 Ky. 545; Blood v. Goodrich, 12 Wend. 525; Videau v. Griffin, 21 Cal. 390;
Mechem on Agency, sec. 136.)
Bartlett, Thatcher & Gibbons, for Respondent:
I. The deed when placed in escrow with defendant was placed there with the intent on the
part of the grantors that, upon the happening of the condition subsequent, the instrument
would take effect as of the date of its original delivery to the bank. (Crooks v. Crooks, 34
Ohio St. 610; Latham v. Udell, 38 Mich. 238; Hunter v. Hunter, 17 Barb. 25.) The delivery to
the bank was an effectual delivery to the grantees; no other delivery was ever contemplated
by the parties. Lowman had the power and authority to verbally authorize the bank to deliver
the deed to the grantees without the payment of any money. If he could do so, his agent could,
and if a person purporting to be his agent did so, Lowman could ratify his actions, and when
ratified was bound by them. Lowman by his agent, Lisle, waived the conditions upon which
the deed was to be delivered. If Lisle was not Lowman's agent, Lowman ratified his acts, and
stands in the same position as if he had personally requested the bank to deliver the deed to
the grantees without the payment of money or delivery of stock.
II. Actual delivery to an escrow is delivery to the grantee named in the deed. No other
delivery is contemplated. Whether the conditions subsequent have been complied with does
not concern the delivery. Appellant must take one horn of the dilemma. Either the delivery
was void, in which case he was not divested of his title and is not damaged, or its delivery
was subject to ratification.
By the Court, Norcross, C. J. (after stating the facts):
In so far as there is any conflict in the evidence upon any material facts, the verdict of the
jury has determined such facts in favor of the defendant.
Section 1624 of the civil code of California provides: The following contracts are invalid,
unless the same, or some note or memorandum thereof, is in writing and subscribed by the
party to be charged, or by his agent: * * * 5.
or memorandum thereof, is in writing and subscribed by the party to be charged, or by his
agent: * * * 5. An agreement for the leasing for a longer period than one year, or for the sale
of real property, or of an interest therein; and such agreement, if made by an agent of the party
sought to be charged, is invalid, unless the authority of the agent is in writing subscribed by
the party sought to be charged. * * *
It is contended that under this provision of the statute of the state in which the property
was situated that Lisle could do no act in reference to the mining properties in question,
binding upon the plaintiff, excepting he was authorized in writing so to do. Further, that the
plaintiff could only ratify the act of his unauthorized agent, in making delivery of the deed, by
the formality of writing. It may be conceded that Lisle did not have a power of attorney that
would authorize him to execute a deed for the plaintiff; but it is not so clear that he was not
authorized by the plaintiff in writing sufficiently to warrant the defendant bank to act upon his
directions in delivering up the deed to be recorded for the purposes detailed in the testimony.
The cashier of the defendant bank was shown a letter from the plaintiff to Lisle in which he
(Lisle) was informed that if he was fortunate enough to have a chance to dispose of any of
their mining interests to go right ahead and use my [Lisle's] own judgment and that he
[Lowman] would stand by my [Lisle's] action. Lisle had previously negotiated the sale of
another group of minesthe Anaconda Groupfor the sum of $60,000, subsequently
made a deduction of $10,000 from the purchase price, and all this without any authority other
than the letters of the plaintiff.
The transfers of the money on all these mining deals was made through the defendant
bank. Only five days before the date of the contract for the sale of the C. U. Group, the
plaintiff wrote a letter to Lisle in which he said, Should you have a chance in disposing of
any of the property before I make any arrangements with any parties here, it is all satisfactory
to me. In the same letter, doubtless referring to the Anaconda deal, the plaintiff says: Now,
I would like to know how you did tie up the property and what arrangements.
ments. What kind of a bond you gave, as I am in the dark about it. Here, it seems to us, was
a recognition that Lisle had from plaintiff very extensive powers to deal with their mining
interests. This letter was written after the plaintiff's visit to the mining properties in July,
1906. Plaintiff testified that prior to his visit to the Greenwater district in July, 1906, he had
written several letters to Lisle in which he told him, that he could do with the Greenwater
properties as he pleased or as he saw fit, but that after such visit he wrote no such letters. In
this latter statement, plaintiff's memory was defective as is shown by his letter of August 9th.
From all the facts and circumstances shown in this case, we think it cannot be said that the
defendant bank did not exercise due care in surrendering the deed upon Lisle's assumption of
authority.
It is contended, however, that all prior dealings between Lisle and plaintiff were merged in
the written contract of August 14th. We are not impressed with this contention. That contract
was negotiated practically in its entirety by Lisle, and the plaintiff did nothing more than
execute the agreement and deed upon its receipt, except to make certain immaterial changes
in the agreement. We are unable to see anything in the execution of this agreement that
should cause the defendant bank to assume that the agency of Lisle had in any sense been
changed. Lisle had made the terms and conditions of the sale under the authority of the
plaintiff's letters. We think the defendant bank was justified in the assumption, from all the
facts in its possession, that Lisle had the authority to modify the terms of the agreement,
especially when it appeared that it was not at all likely that the original agreement could be
carried out, and the change was deemed favorable to the plaintiff's and his associate's
interests.
But, conceding that the showing as to Lisle's authority was insufficient to justify the
defendant bank in surrendering the deed, plaintiff could ratify the action of Lisle and be
bound thereby. Lisle testified that on or about March 10, 1907, he informed the plaintiff fully
as to what had transpired between himself, Nash, and the defendant bank on February 9th
preceding, and that the plaintiff approved of everything.
ceding, and that the plaintiff approved of everything. This testimony of Lisle we must accept
as true for the purposes of this appeal. There are other matters in the case that tend to support
the fact that plaintiff ratified the action of Lisle. Although he knew the first payment of
$13,500 was not made on March 14, 1907, and had received Nash's letter of March 31st in
which the sixty days further additional extension was referred to, as well as the transaction of
February 9th, recited in the proposed agreement accompanying the letter, it was not until May
13th that he caused his bankers to address a letter to the defendant bank demanding return of
the deed unless the payment had been made. This was about the time the money would be due
under the second modification of the original agreement. In any event, the proof of
ratification is sufficient. A delivery of a deed not authorized by a grantor may be ratified by
his subsequent conduct and acts. (13 Cyc. 565; NcNulty v. McNulty, 47 Kan. 208, 27 Pac.
819.)
The judgment and order appealed from are affirmed.
Sweeney, J., did not participate in the foregoing decision.
____________
31 Nev. 326, 326 (1909) Fitchett v. Henley
[No. 1799]
MRS. ANNIE FITCHETT, et al., Appellants, v. W. J. HENLEY,
Justice of the Peace, Respondent.
1. CertiorariExistence of Other RemedyAppeal.
Certiorari will not lie where the right of appeal exists.
On Rehearing
1. Landlord and TenantUnlawful DetainerJurisdiction.
Under the Constitution, art. VI, sec. 8, giving justice courts jurisdiction of actions for the possession of
lands, where the relation of landlord and tenant exists, and when such possession has been unlawfully
withheld, and Comp. Laws, 3835, authorizing actions in justice courts against a tenant unlawfully holding
over, etc., a justice court has jurisdiction to render judgment for plaintiff for the restitution of real estate,
for rent due, and for damages for deprivation of the premises, where defendant in his answer admits the
execution of the lease and the payment of rent under it, as such admission establishes the relation of
landlord and tenant.
2. Landlord and TenantTitle of LandlordEstoppel.
A tenant, sued in unlawful detainer, who admits the execution of the lease and payment of rent under it, is
estopped from attacking the landlord's title by proving that the landlord falsely represented that he owned
the land when he was without title, and a defense relying on such false representations raises no issue.
3. Landlord and TenantTitle of LandlordEstoppel
As prior possession is prima facie evidence of title, and, in the absence of a better title, is deemed
equivalent to title, a tenant, prevented from disputing the landlord's title, may not show that the landlord
had no title by prior possession, or in fee.
4. Landlord and TenantFraud of LessorEffect.
Where a tenant in a lease from a landlord, who falsely represented that he owned the land when he was
without title, had all the right he could have had if the landlord had been the owner in fee, and the right of
the tenant to hold, retain, or remove improvements placed on the land was not affected by the landlord's
misrepresentations, the misrepresentations were immaterial as to the rights of the parties.
5. Landlord and TenantFraud of LessorEffect.
That the tenant had erected improvements on the premises under a prior lease did not give him any right
to repudiate the later lease.
6. Justices of the PeaceDecisions AppealableDefault Judgment.
Where a motion for judgment in the justice court on the pleadings was argued and submitted by consent,
with a motion to remove the cause to the district court, and no request to amend, or offer to amend, the
answer, which was apparently complete in its allegations, was made, there was in effect a submission by
consent on an agreed statement of facts, and the judgment for plaintiff was appealable as against the
objection that it was a default judgment.
7. Justices of the PeaceJurisdictionAmount in Controversy.
Under Constitution, art. VI, sec. 8, providing that justice courts shall not have jurisdiction where the
amount in dispute is a money demand, and, exclusive of interest, exceeds $300, a judgment in a justice
court for $396 treble damages for a tenant wrongfully withholding possession of the premises, and for $100
rent due, is void because beyond the jurisdiction of the court.
8. Justices of the PeaceAppealJurisdiction of District Court.
The district court, on appeal from a justice's judgment, has the same jurisdiction as existed in the justice
court, and a judgment of a justice court, which is void because for a greater amount than a justice has
jurisdiction to render, is not appealable.
9. Justices of the PeaceCertiorariExistence of Remedy by Appeal.
Certiorari lies to annul a justice court judgment, void because in excess of the jurisdiction of a justice
court, since there is no right of appeal.
10. Appeal and ErrorDisposition of Cause on AppealRemission.
The court, on appeal from an order dismissing a writ of certiorari to annul a justice court's judgment,
void because beyond the justice court's jurisdiction, cannot on the offer of respondent remit a part of the
judgment and limit it to a sum within the jurisdiction of a justice court.
Certiorari by Mrs. Annie Fitchett and others against W. J. Henley, Justice of the Peace.
From judgment dismissing the writ, plaintiffs appeal. Affirmed. On petition for rehearing.
Former opinion reversed, and judgment below reversed.
James Donovan, for Appellants.
Pyne, Douglass & Tilden, for Respondent.
Ben Hazelton commenced an action in unlawful detainer in the Justice Court of Goldfield
Township, Esmeralda County, Nevada, against appellants, Mrs. Annie Fitchett, et al. The
appellants in this case, who were the defendants, filed an answer setting up title, possession,
and the right of possession in the defendants. The plaintiff moved for judgment upon the
pleadings, which the court granted.
the pleadings, which the court granted. Later on a writ of certiorari was sued out in the
district court in and for Esmeralda County to review the action of the justice of the peace.
Said writ was granted in May, 1908, and later on a motion was made to vacate and discharge
the writ, which motion was submitted to the judge of the district court, and, after argument by
counsel for the respective parties, sustained, and from which final judgment discharging the
writ appellants appeal to this court, assigning as error the judgment and order of the lower
court dismissing said writ of certiorari.
The appellants had the right of appeal from the judgment rendered against them in the
justice court to the district court. The law is well established that a writ of certiorari will not
lie where the right of appeal exists. (Chapman v. Justice Court, 29 Nev. 154, and authorities
therein cited.)
The judgment and order of the lower court are affirmed.
On Rehearing
Per Curiam:
Being impressed with appellants' application for rehearing, which is apparently urged with
great sincerity, we have considered the case more carefully, and, owing to the importance of
the questions involved, we will give them a more extended review.
In the original complaint filed by Ben Hazelton as plaintiff in the justice's court it is
alleged that he and Mrs. Annie Fitchett, a married woman, and her husband, who are made
defendants therein, entered into a lease whereby he leased to her for a period of one year from
September 15, 1907, a described lot of ground situated in the town of Goldfield, and that by
said lease she agreed to pay as rent for said premises the sum of $175 per month on the 15th
day of each month. A copy of the lease was attached to and made a part of that complaint, and
among others it contained the following provisions:
And it is agreed that if any rent shall be due and unpaid, or if default shall be made in the
performance of any of the covenants herein contained on the part of the party of the second
part, then it shall be lawful for the said party of the first part to reenter the said premises
and remove all persons therefrom.
the first part to reenter the said premises and remove all persons therefrom. And the said party
of the second part does hereby promise and agree to pay to the said party of the first part the
said monthly rent herein reserved in the manner herein specified. * * *
And at the expiration of said term, or any sooner determination of said lease, the said
party of the second part will quit and surrender the premises hereby demised in as good order
and condition as reasonable use and wear thereof will permit, damages by the elements
excepted. And if the party of the second part shall hold over the said term with the consent,
expressed or implied, of the party of the first part, such holding over shall be construed to be
a tenancy only from month to month and said second party will pay the rent as above stated
for such further time as she may hold the same. * * * It is further agreed that any and all
buildings at present standing on said premises, or to be hereafter erected thereon, shall be and
remain as a lien for said rent and shall not be removed from said premises during the term of
this lease without the written consent of the party of the first part first had and obtained. * *
*
The answer filed on her behalf in the justice's court admits the execution of the lease, the
demand for $175 claimed to be due as rent, and the failure to make this payment, denies that
she entered as plaintiff's tenant, and alleges that the lease was changed on or about the 15th
day of December, 1907, and a verbal lease made, whereby it was agreed between the plaintiff
and defendant that the rent should be only $100 per month. The answer further alleged: (1)
That on or about the l5th day of June, 1904, the defendants, being desirous of entering into
business in Goldfield, secured a location therefor, and made inquiry as to the ownership of
the land described in plaintiff's complaint, and by and through representations made by the
plaintiff and his agents and attorneys to the defendants that said plaintiff was the owner in fee
of said land described in plaintiff's complaint, and relying upon said representations so made
by the plaintiff, the defendants entered into an agreement whereby the defendants leased said
ground from the plaintiff. (2) That when said ground was so leased by the defendants from
the plaintiff, the same was open and unoccupied land, and had no improvements thereon.
was so leased by the defendants from the plaintiff, the same was open and unoccupied land,
and had no improvements thereon. Relying upon said representations of the plaintiff
aforesaid, the defendants erected on said vacant ground, as heretofore described, certain
valuable improvements to the extent of $2,000, and, relying upon said representations so
made by the plaintiff, the defendants continued to pay the plaintiff rental therefor from time
to time, and took possession of said ground, relying wholly upon the representations that the
plaintiff was the owner in fee of said land, and continued to pay rent therefor up to the time
set forth in plaintiff's complaint. (3) That during the months of January and February, 1908,
the defendants and each of them began an investigation of the title of the plaintiff, and, after
making such investigations, discovered that the representations so made by the plaintiff to the
defendants, and upon which the defendants relied, which representations so made by the
plaintiff being the basis of the agreement whereby the defendants paid rent to the plaintiff for
the use and occupancy of said ground aforesaid, were false, and that said plaintiff did not own
the fee to said lot, and never had title to the same, although falsely representing to the
defendants that the plaintiff was the owner of said ground aforesaid, and that upon
discovering that said plaintiff was not the owner in fee of said lot aforesaid, defendants and
each of them refused to pay any ground rental therefor. * * *
Among other extended allegations of that answer it was alleged that the land in question
was a portion of what is known as the Goldfield Placer Claim, located about the time of the
discovery of gold in Goldfield; that this placer location was made and recorded without first
having discovered gold within the boundaries of the location; that the ground was located for
the single purpose of platting the surface into town lots for speculation; that the annual
assessment work had not been performed for the years 1906 and 1907; that the defendants
had been in the peaceable, quiet, and uninterrupted possession of the land described in the
lease since the 15th day of June, 1904; that while so in possession of the land, and on or about
the 11th day of May, 1907, which was a date prior to the lease admitted by the answer, an
amended application was made by the settlers of Goldfield to enter certain lands under
the federal town-site act, and that said Goldfield Placer is a part of the land included in
the application so filed; that after certain orders, publications, and proceedings and
proofs made to the General Land Office, on the 13th day of April, 190S, the protest made
on behalf of the Goldfield Placer was by an order of the land office dismissed as being
without any claim or right, and it was further alleged that neither the plaintiff nor his
grantors had any right, claim, interest, possession, or right of possession, to the land
leased, and whatever claim plaintiff and his grantors asserted to this land has been
without right in law or fact, and has been made for the sole purpose of extorting money
from the defendants by falsely representing that plaintiff and his grantors were the
owners in fee of the land; that the land mentioned is now, and at all times before
mentioned has been, the property of the government of the United States, and that the
fee is in the United States subject to the application to town-site the same, and that the
title to the land is now in process of transmission from the federal government to the
judge of the district court as trustee to grant title to each and every person having
improvements on the land within the town-site application; that the defendants are the
owners of, and caused to be placed, all the improvements upon the lot leased.
to the lease admitted by the answer, an amended application was made by the settlers of
Goldfield to enter certain lands under the federal town-site act, and that said Goldfield Placer
is a part of the land included in the application so filed; that after certain orders, publications,
and proceedings and proofs made to the General Land Office, on the 13th day of April, 1908,
the protest made on behalf of the Goldfield Placer was by an order of the land office
dismissed as being without any claim or right, and it was further alleged that neither the
plaintiff nor his grantors had any right, claim, interest, possession, or right of possession, to
the land leased, and whatever claim plaintiff and his grantors asserted to this land has been
without right in law or fact, and has been made for the sole purpose of extorting money from
the defendants by falsely representing that plaintiff and his grantors were the owners in fee of
the land; that the land mentioned is now, and at all times before mentioned has been, the
property of the government of the United States, and that the fee is in the United States
subject to the application to town-site the same, and that the title to the land is now in process
of transmission from the federal government to the judge of the district court as trustee to
grant title to each and every person having improvements on the land within the town-site
application; that the defendants are the owners of, and caused to be placed, all the
improvements upon the lot leased.
It is apparent that the appellant, while holding a lease for the premises by the terms of
which she expressly agreed to surrender possession to Hazelton at the end of the year for
which the lease was given, or sooner upon default being made in the payment of rent, is now
seeking to avoid these written conditions to which she obligated herself, by asserting that
Hazelton falsely represented that he owned the land in fee, when in fact he did not own it and
the title was in the government, by claiming that she is entitled to hold the land regardless of
the lease and the payment of rent, because of her improvements and possession of the land,
and under an application of the inhabitants of Goldfield for a town site made prior to the lease
in controversy, and at a period when she was holding under one of the leases which she
obtained from Hazelton, who was a prior claimant to the land, the first of these dating
back to 1904.
from Hazelton, who was a prior claimant to the land, the first of these dating back to 1904.
Plaintiff moved for judgment on the pleadings, and defendants moved to have the cause
certified to the district court for trial, under the claim that a question involving the title to real
estate was raised which the justice's court could not try, which motions were argued and
submitted together upon the pleadings, and the question of the monthly rental of the premises
was excepted and continued until later. Judgment was rendered in the justice's court in favor
of the plaintiff for the restitution of the premises, for $100 rent from March 15th to the 3d day
of April, 1908, and $132 damages for the deprivation and use of the premises from the 3d day
of April, 1908, and that the last sum be trebled, which with the $100 for rent makes the
judgment aggregate $496 besides costs.
Did the answer raise a question regarding the title to real estate which the justice was
without jurisdiction to try, and which necessitated a transfer of the case to the district court?
We quite agree with the contentions, made on behalf of the appellants, that if a question
involving the title to real estate was properly raised, the justice was without jurisdiction to try
the case, and consequently the judgment would be void, and there would be no appeal to the
district court, and the appellants would be entitled to have the case ordered to the district
court for primary trial. However, we believe the justice had jurisdiction to try the case under
section 8, article VI, of the Constitution, which allows jurisdiction in the justice's court of
actions for the possession of lands and tenements where the relation of landlord and tenant
exists and when such possession has been unlawfully and fraudulently withheld, and under
different sections of the Compiled Laws, including section 3835, which provides: When any
person or persons shall hold over any lands, tenements, or other possessions, after the
termination of the time for which they are demised or let to him, her or them, or to the person
or persons under whom he, she or they hold, or after any rent shall become due, according to
the terms of such lease or agreement, and shall remain unpaid for the space of three days after
demand for payment thereof, in all such case, if the lessor, his heirs, executors,
administrators, assigns, agent or attorney, shall make demand in writing of such tenant
or tenants, or any person in possession of the premises, that he, she or they shall deliver
possession of the premises held as aforesaid; and if such tenant or tenants, or person or
persons in possession of the premises, shall refuse or neglect for the space of three days
after such demand to quit the possession of such lands or tenements, or to pay the rent
due and unpaid as aforesaid, upon complaint therefor to any justice of the peace of the
proper county, the justice shall proceed to hear, try, and determine the same in the
manner in this act provided."
executors, administrators, assigns, agent or attorney, shall make demand in writing of such
tenant or tenants, or any person in possession of the premises, that he, she or they shall
deliver possession of the premises held as aforesaid; and if such tenant or tenants, or person
or persons in possession of the premises, shall refuse or neglect for the space of three days
after such demand to quit the possession of such lands or tenements, or to pay the rent due
and unpaid as aforesaid, upon complaint therefor to any justice of the peace of the proper
county, the justice shall proceed to hear, try, and determine the same in the manner in this act
provided.
The admission in the answer that Mrs. Fitchett executed the lease and paid rent under it
establishes the relation of landlord and tenant. Under this admission the cases, some of which
are cited in the brief, are very numerous holding that the tenant is estopped from denying the
landlord's title. There are some exceptions to this rule, but we are not aware of any which
would allow her to set up as a defense the facts which she alleges in her answer. If these facts
are no defense in law, and are such that she is prevented from setting them up by way of
attack upon the title of the landlord which she recognized by execution of the lease, their
assertion would be of no avail in an effort to have the case removed to the district court for
trial, for if they could not be asserted against the landlord, they cannot be considered as
raising an issue for trial, or as of any force before either the justice's court or district court.
Referring more specifically to the allegations that the lessor falsely represented that he
owned the land in question, when he was without title, and that all the improvements were
placed on the premises by the appellants, these may not only be classed as an attempt to
question the lessor's title, which the lessee is prevented from doing, but may be considered as
immaterial and not affecting the lease, nor in any way damaging appellant under the terms of
the lease. Prior possession is prima facie evidence of title, and, in the absence of a better one,
must be deemed equivalent to title (Rogers v. Cooney, 17 Nev. 117; V. & T. R. R. Co. v.
Lynch, 13 Nev. 93), and hence the rule that the tenant is prevented from disputing the
landlord's title prevents the tenant from claiming that the lessor had no title by prior
possession or in fee.
landlord's title prevents the tenant from claiming that the lessor had no title by prior
possession or in fee. As is said in Goode v. Gaines, 145 U.S. 152, 12 Sup. Ct. 841 (36 L. Ed.
654): The estoppel which prevents a tenant who has acquired possession as such from
claiming title adversely to his landlord does not depend on the validity of his landlord's title.
Large interests in the western states carrying farms, mills, and town property are often held
merely by possession.
So far as it appears, the appellant is secure in all that is purported to be granted her by the
terms of the lease, and is not disturbed in her possession of the premises except by a notice
and demand, resulting from her failure to pay rent according to the terms of the lease. It
would seem that, if the lessor is not the owner in fee of the premises, she still had all the right
and benefit that she would or could have had if he had been the owner in fee. If he
represented that he was such owner as alleged in the answer, such representation would seem
to be as immaterial to the rights of the parties as if he had represented that he was the owner
of a million dollars or the earth, so long as she was undisturbed, and had the full use of the
premises, upon the payment of rent as she agreed.
In McCoy v. Bateman, 8 Nev. 129, the court said: Appellants had enjoyed their term and
received all that they had bargained for. It was not for them to be picking flaws in
respondent's title. * * * Nor does it appear that she has not the same right of holding,
retaining, or removing any improvements on the land that she would have if he were the
owner in fee, or that she has not enjoyed every advantage which would have belonged to her
if he had been such owner, as she claims he represented. If all the rights which she might
acquire under the town-site laws by reason of her possession and improvements did not inure
to the benefit of the lessor from whom she took the lease, as held by so many decisions, it
would seem that under its terms she would be estopped from asserting any adverse title, and
would be obligated to surrender the premises upon the termination of the lease or the failure
to pay rent, as she had agreed. If the lessor falsely represented, as claimed, that he was the
owner of the premises, when he was without title, and by reason of such
misrepresentation and failure of title some damage had resulted to the appellant, she
might be entitled to some relieffor instance, if some one else had owned the premises,
and had ousted the appellant, it would be an injury and a wrong thereafter to require her
to pay rent to the lessor, and the same would be true if she had acquired his right or claim
to the land.
of the premises, when he was without title, and by reason of such misrepresentation and
failure of title some damage had resulted to the appellant, she might be entitled to some
relieffor instance, if some one else had owned the premises, and had ousted the appellant, it
would be an injury and a wrong thereafter to require her to pay rent to the lessor, and the
same would be true if she had acquired his right or claim to the land.
As said by this court in Hoopes v. Meyer, 1 Nev. 444: The text-books lay down the
general proposition that a tenant can only plead an eviction by paramount title as an excuse
for nonpayment of rent. The words paramount title' are used in such cases in a general and
not technical sense, to distinguish an eviction by one having lawful authority to hold as
against the tenant from an eviction by a mere trespasser. If a tenant is evicted by a trespasser,
the law affords him the means of being reinstated. It is his duty to resort to that remedy. He
cannot refuse to pay his rent because of a wrong done to him or his possession by a stranger.
But if he is evicted by one who has the right of possession, one against whom the defendant
could not maintain an action to recover back the possession, then he is excused from paying
his rent.
This case is distinguishable from that of Phenix v. Bijelich, 30 Nev. 259. There, although
part of the contract purported to be a lease, it was in effect an agreement of sale, and the
purchaser who had placed valuable improvements might be greatly injured by the failure to
receive title, which, it was alleged, had been represented to exist in the party who had agreed
to convey, when, by reason of the failure to receive the title as represented, he might lose both
his improvements and the title. Here the appellant would have fully as much right to retain or
remove the improvements if the lessor is without title, as she asserts, as she would have if he
owned the premises in fee, as she claims he falsely represented. If she were not estopped by
the lease to deny his title, proof on her part that he was not possessed of any would still be
immaterial; for it would not tend to show any damage, while it stands admitted that she has
received all benefits contemplated by the lease, which she could have obtained if he had
possessed that title.
the lease, which she could have obtained if he had possessed that title.
Although it is alleged that no buildings or improvements were put on the lot by the lessor,
it appears from the allegations and admissions in the answer in the justice's court that the
appellant, under different leases executed by her, paid rent to the lessor from June 15, 1904,
to March, 1907, nearly four years, and that the buildings and improvements had been placed
on the ground by appellant while so leasing, and it is not denied that during this time, and
prior thereto, the lessor held a deed to the ground, and was prior claimant under color of title,
and believed that he was the owner of the lot by conveyance from the locators of the placer
claim or town site, or that the appellant was not aware or was not at least chargeable with
notice during that time, as well as thousands of other inhabitants of Goldfield, that the land
had not been surveyed or patented by the government. As appellant is trying to avoid the last
lease only, the placing of the improvements on the lot by her under an earlier lease would
seem to have the same legal effect as if they had been placed on the ground by some former
tenant of the lessor, which would be in support of his possession and claim. The fact that she
has erected the buildings or made all the improvements on the premises since she entered into
the lease, or into the prior lease with the lessor, would not give her any right to repudiate the
lease; for if, claiming under these improvements, she obtained a patent to the lot, she might
be compelled to convey the title to the lessor, under the decisions of the Supreme Court of the
United States in the Hot Springs cases and others.
In Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. 605, 28 L. Ed. 430, the court said: Lessees
under a claimant or occupant, holding the property for him, and bound by their stipulation to
surrender it on the termination of their lease, stand in no position to claim an adverse and
paramount right of purchase. Their possession is, in law, his possession. The contract of lease
implies, not only a recognition of his title, but a promise to surrender the possession to him
on the termination of the lease. They, therefore, whilst retaining possession are estopped to
deny his rights.
to deny his rights. (Blight v. Rochester, 7 Wheat. 535, 5 L. Ed. 516.) This rule extends to
every person who enters under lessees with knowledge of the terms of the lease, whether by
operation of law, or by purchase or assignment. The lessees on this case and those deriving
their interest under them could therefore claim nothing against the plaintiff by virtue either of
their possession, for it was in law his possession, or of their improvements, for they were in
law his improvements, and entitled him to all the benefits they conferred, whether by
preemption or otherwise. Whatever the lessees and those under them did by way of
improvements on the leased premises inured to his benefit as absolutely and effectually as
though done by himself. This case was followed in Goode v. Gaines, supra.
In Ellis v. Fitzpatrick, 118 Fed. 431, 55 C. C. A. 261, the court said: It was alleged by the
defendant, as the principal ground of demurrer, that the complaint was defective, in that it
nowhere alleged that the plaintiff at the time of or prior to the institution of the suit, had made
any improvements on the demised premises that were of a permanent or substantial character.
It is claimed that the complaint stated no cause of action, because it failed to contain such an
allegation. With reference to this contention on the part of the defendant the court of appeals
in the Indian Territory said, in substanceand we think that the proposition so enunciated is
soundthat a tenant cannot in the Indian Territory, any more than elsewhere, deny the title of
his landlord, under whom he has entered into possession of premises, and to whom he has
paid rent, because there were no valuable improvements on the leased premises when he
entered. We are aware of no rule of law which permits a tenant to deny the title of his
landlord for that reason.
It is claimed that the court improperly granted the motion for judgment on the pleadings;
but, as this was argued and submitted apparently by consent with the motion to remove the
case to the district court, and as the answer appears to be very complete in its allegations, and
no request to amend or offer to allege anything further was made, it would seem that this was
equivalent to submission by consent upon an agreed statement of facts, and it does not
appear that for this reason there was error, or that the judgment in effect is one by
default from which no appeal could be taken.
statement of facts, and it does not appear that for this reason there was error, or that the
judgment in effect is one by default from which no appeal could be taken.
The judgment for $396 treble damages, in addition to $100 rent, was beyond the
jurisdiction of the justice's court, because section 8, article VI, of the Nevada Constitution
provides that justice's courts shall not have jurisdiction of cases in which the matter in dispute
is a money demand, and the amount, exclusive of interest, exceeds $300. The circumstances
were different in the case of O'Callaghan v. Booth, 6 Cal. 63, upon which reliance is placed.
Nor would we feel inclined to adhere to the conclusions reached by the court in that decision
if the facts were applicable to the present case. There the action was commenced in the
justice's court and appealed to the county court, where a judgment was rendered for treble
damages in the sum of $12,150. Under the rule in this state that the district court has the same
jurisdiction on appeal as existed in the justice's court, in the absence of any authorized
exception, we think a judgment for an amount so large rendered in the justice's court or on
appeal, could not be sustained.
In the case of Small v. Gwinn, 6 Cal. 449, the court said: In Zander v. Coe, 5 Cal. 230, we
decided that the legislature could not confer on justices of the peace any jurisdiction where
the amount in controversy exceeds $200. There can be no exception to this rule. * * *
In 9 Ency. Pl. & Pr. 71, it is said: The judgment for damages or rent which may be given
by a justice of the peace, or on a trial de novo on appeal therefrom, must be limited to the
constitutional amount over which the justice has jurisdiction.
In Ballerino v. Bigelow, 90 Cal. 500, 27 Pac. 372, the jurisdiction of the justice of the
peace being limited to cases between landlord and tenant where the rental value of the
property did not exceed $25 per month, it was held that when the evidence showed that the
monthly rental value was in excess of that amount, the judgment rendered by the justice was
coram non judice and void.
In Hoban v. Ryan, 130 Cal. 98, 62 Pac. 296, the court said: The question of jurisdiction
must therefore depend upon the construction of the language used in the constitutional
provision cited, which is 'that said justices shall have jurisdiction in cases of forcible entry
and detainer, where the rental value does not exceed twenty-five dollars per month and
where the whole amount of damages claimed does not exceed two hundred dollars.' Or,
rather, the question depends upon the construction of the clause italicized, and especially
on the definition of the word 'damages.' If this term be construed as including the whole
amount sued forthat is to say, not merely the alleged value of the use and occupation,
but the amount to be adjudged, then the case was beyond the jurisdiction of the justice's
court.
construction of the language used in the constitutional provision cited, which is that said
justices shall have jurisdiction in cases of forcible entry and detainer, where the rental value
does not exceed twenty-five dollars per month and where the whole amount of damages
claimed does not exceed two hundred dollars.' Or, rather, the question depends upon the
construction of the clause italicized, and especially on the definition of the word damages.' If
this term be construed as including the whole amount sued forthat is to say, not merely the
alleged value of the use and occupation, but the amount to be adjudged, then the case was
beyond the jurisdiction of the justice's court. But the meaning of the term is well settled.
Damages [are] the indemnity recoverable by a person who has sustained an injury. * * * The
sum claimed as such indemnity by a plaintiff in his declaration'; and the term includes not
only compensatory,' but also exemplary' or punitive' or vindictive' and double or treble
damages.' (Bouvier's Law Dictionary, word Damages.') * * * There can be no doubt,
therefore, that the term damages' includes the whole amount to be adjudged, and that it is so
used here is indicated by the peculiar form of expression, viz., the whole amount of damages
claimed,' which would lack force if compensatory damages only were intended. It may be
added that the technical is quite in accord with the popular meaning of the term. Hence,
naturally enough, the prayer of the complaint is for treble the amount, as damages for the
unlawful detention.' Nor is it reasonable to assign to the convention the intent to give to
justices' courts in this particular case jurisdiction to an amount double the amount of $300, by
which their ordinary jurisdiction is determined.
In Giddens v. Bolling, 92 Ala. 590, 9 South. 275, the court said: In an action for unlawful
detainer the recovery of rent is a mere incident to the recovery of possession of the land. If the
amount of rent exceeds the amount of jurisdiction of the justice's court, unless the plaintiff is
willing and does release all in excess of the justice's jurisdiction, the rent can only be
recovered in a separate action, in a court having jurisdiction of the amount.
In his brief in this court respondent has offered to remit part of the judgment for the rent,
if we took the view that it was excessive.
part of the judgment for the rent, if we took the view that it was excessive. It is not unusual
to direct the modification or reduction of judgments by us on appeal, but this case is before us
only on appeal from an order dismissing a writ of certiorari or review. We can act only on the
theory that the judgment in the case is in excess of that which the justice has the power to
render, and is void because beyond his jurisdiction. It is different than if the respondent had
offered to remit the excess in the justice's court, and not to take judgment there in an amount
exceeding $300. It was held in Roy v. Whitford, 9 Nev. 371, that a judgment rendered by a
justice of the peace, in a case in which he had acquired no jurisdiction, was void, and that it
would be annulled on certiorari. In Wilson v. Morse, 25 Nev. 376, it was said: By the statute
of this state upon the subject of certiorari, we are restricted to the consideration of the
question of the jurisdiction of the court only. (Pratt v. Stone, 25 Nev. 373.)
The contention of respondent that certiorari will not lie to annul the judgment because the
defendant in the justice's court had the right of appeal, we are convinced, from a more
extended examination, is without merit, and that this case is distinguishable in principle from
the case of Chapman v. Justice Court, 29 Nev. 154, upon authority of which we heretofore
ordered this appeal dismissed. In the Chapman case, supra, the justice of the peace had
jurisdiction of the person and of the offense with which he was charged. His want of
jurisdiction was based solely upon the alleged unconstitutionality of the act, under the
provisions of which the prosecution was being instituted. We held in that case that the justice
had the right to pass upon the constitutional question. Acts of the legislature are presumed to
be constitutional until declared void by a court of competent authority. (State v.
Commissioners, 21 Nev. 238; Evans v. Job, 8 Nev. 322.) Upon its face the judgment in the
Chapman case was regular and within the jurisdiction of the court. An appeal from this
judgment would have given the defendant a trial de novo, and an opportunity to have had the
constitutionality of the act determined as well. In other words, his remedy by appeal was full
and complete, and hence certiorari would not lie.
The prayer for judgment in the complaint of respondent herein in the justice's court was in
the following language: Wherefore plaintiff prays judgment against defendants for the
restitution of said premises and for damages, to wit, the reasonable value of the use and
occupation of said premises from March 15, 1908, to the date of judgment herein, and that
said damages be trebled, and for costs of suit. As before stated, the value of the use and
occupation of the premises was alleged to be $175 per month. The motion for judgment on
the pleadings was interposed April 25, 1908, and judgment rendered the 28th following. The
demand and motion for judgment, read in view of the situation on both these dates, was for an
amount in excess of the jurisdiction of the justice's court. There was no offer to relinquish any
portion of the judgment prayed for before presenting the motion for judgment on the
pleadings.
It may be seriously questioned whether, in the absence of a supplemental complaint, a
plaintiff is entitled, in any event, to recover rent accruing after the institution of the suit. But
in this case both counsel for the plaintiff and the justice proceeded upon the theory that the
pleadings warranted a judgment for treble the amount of rent accruing between the 15th day
of March and the 25th or 28th day of April following. As the justice of the peace was, at the
time, without jurisdiction to enter judgment in excess of $300, the judgment entered in the
action was void upon its face, and was for an amount within the original jurisdiction of the
district court only. The following decisions of this court, we think, support the conclusion that
an appeal from a judgment of a justice of the peace in a case in which it is without
jurisdiction will not confer jurisdiction on the district court, in which the appellate
jurisdiction is the same as the original jurisdiction in the justice's court, and that in the
absence of the right of appeal, the void and excessive judgment will be annulled on
certiorari. (Peacock v. Leonard, 8 Nev. 84; Roy v. Whitford, 9 Nev. 370; Martin v. District
Court, 13 Nev. 85; Wiggins v. Henderson, 22 Nev. 103; Forsyth v. Chambers, 30 Nev. 337.)
The order of the district court dismissing the writ will be vacated, and the district court is
instructed to enter an order directing the annulment of the judgment of the justice's court.
order directing the annulment of the judgment of the justice's court.
____________
31 Nev. 342, 342 (1909) State v. Rodriguez
[No. 1791]
THE STATE OF NEVADA, Respondent, v. EMILE RODRIGUEZ, Appellant.
1. Criminal LawEvidenceReasonable DoubtIntent.
Under Comp. Laws, 4656, the crime of assault with intent to kill consists of two essential elements, the
act of the assaulter and the intent; and to convict one of this crime it is necessary that the intent to kill must
be alleged and proved beyond a reasonable doubt.
2. Criminal LawTrialArguments of Counsel.
In a prosecution for assault upon a woman with intent to kill, it is reversible error for the prosecuting
attorney, in his argument to the jury, to charge the accused with being a macque, although the court
admonished the jury to disregard the statement.
Emile Rodriguez was convicted of assault with intent to kill, and he appeals. Reversed
and remanded.
Clarence C. Ward, for Appellant.
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for
Respondent.
The appellant was indicted by the grand jury of Esmeralda County, Nevada, for the crime
of assault with intent to kill one Louise Alno, on the 10th day of April, 1908, in the town of
Goldfield, Nevada; was regularly tried before a jury; convicted and sentenced to eight years'
imprisonment in the Nevada State Penitentiary by the District Judge of the First Judicial
District Court of the State of Nevada, in and for the County of Esmeralda.
From the judgment and order of the lower court, overruling appellant's motion for a new
trial, appellant appeals, assigning as error the refusal of the district court to grant a motion of
appellant at the conclusion of the direct evidence of the prosecution after it had rested,
instructing the jury to acquit the defendant because of the insufficiency of the evidence
produced by the state to establish the commission of crime charged in the indictment;
secondly, that the court erred in permitting the district attorney, in his closing argument
to the jury, to make statements of fact unsupported by the evidence, and not justified by
the testimony, of such a prejudicial nature as to seriously prejudice the jury against the
rights of the defendant; and thirdly, that the verdict is unsupported by the evidence and
contrary to law.
motion of appellant at the conclusion of the direct evidence of the prosecution after it had
rested, instructing the jury to acquit the defendant because of the insufficiency of the evidence
produced by the state to establish the commission of crime charged in the indictment;
secondly, that the court erred in permitting the district attorney, in his closing argument to the
jury, to make statements of fact unsupported by the evidence, and not justified by the
testimony, of such a prejudicial nature as to seriously prejudice the jury against the rights of
the defendant; and thirdly, that the verdict is unsupported by the evidence and contrary to law.
Section 4656, Comp. Laws, in our criminal practice act, provides as follows: Section 1. In
every crime or public offense, there must be a union or joint operation of act and intention, or
criminal negligence.
The crime of assault with intent to kill consists of two essential elements: The act of the
assaulter, and the intent with which said act was done. (Bishop's New Criminal Law, 8th ed.
sec. 729; People v. Devine, 59 Cal. 630; Russ on Crimes, sec. 438-453; Robinson's
Elementary Law, sec. 472 State v. Wilson, 30 Conn. 500; Washington v. State, 53 Ala. 29;
Cunningham v. State, 49 Miss. 701.)
Where, in an indictment, such as for the crime of assault with intent to kill, where intent is
one of the essential ingredients of the crime, and, to constitute the crime, specific intent enters
into the nature of the act itself, to convict one indicted of this crime it is necessary that the
intent to kill must be alleged and proved beyond a reasonable doubt. (State v. Zichfeld, 23
Nev. 316; State v. Lung, 21 Nev. 209; State v. Newton, 4 Nev. 410; Ogletree v. State, 28 Ala.
693; Walls v. State, 90 Ala. 618, 8 South. 680; Felker v. State, 54 Ark. 489, 16 S. W. 663;
People v. Mize, 80 Cal. 41, 22 Pac. 80; Patterson v. State, 85 Ga. 131, 11 S. E. 620, 21 Am.
St. Rep. 152; Lanier v. State, 106 Ga. 368, 32 S. E. 335; Kimball v. State, 112 Ga. 541, 37 S.
E. 886; Crosby v. People, 137 Ill. 325, 27 N. E. 49; Thompson v. People, 96 Ill. 158; Flint v.
Comm., 81 Ky. 186, 23 S. W. 346; State v. Evans, 39 La. Ann. 912, 3 South. 63; Roberts v.
People, 19 Mich. 401; State v. Stewart, 29 Mo. 419; Ward v. State, 58 Neb. 719, 79 N. W.
725; Botsch v. State, 43 Neb.
Neb. 501, 61 N. W. 730; State v. Colvin, 90 N. C. 717; Sharp v. State, 19 Ohio, 379; Comm.
v. Clark, 6 Grat. 675; State v. Taylor, 70 Vt. 1, 30 Atl. 447, 42 L. R. A. 673; 67 Am. St. Rep.
648; People v. Stites, 75 Cal. 570, 17 Pac. 693; State v. Wells, 31 Conn. 210; Comm. v.
Willard, 22 Pick. 476; People v. Sweeney, 55 Mich. 586, 22 N. W. 50; State v. Butman, 42 N.
H. 490.)
A review of the witnesses on behalf of the state and evidence adduced discloses that
Louise Alno, the party on whom, it is alleged in the indictment, the assault with the intent to
kill was perpetrated by the appellant, called as a witness on behalf of the state, testified that
on the occasion of the assault in question, when she was shot, believing that appellant was
about to commit suicide, when he drew the gun to shoot himself she grabbed the gun, and in
so doing caused the shots to go downward into her leg and heel. There is not a scintilla of
evidence in her testimony wherein she testifies that she believed the appellant intended to kill
her, or, what is more, to do her any bodily harm whatever. Dr. Turner, on behalf of the state,
simply testified to the nature of the wounds when he dressed the same; Vernon Bee testified
to the hearing of the shots, and noticed the defendant walking away from the scene of the
trouble, and the screaming and running away of the woman; Bart Knight testified to arresting
the defendant and taking the gun away from him; and one Charles Webb, who is the only
witness to connect the defendant in any way with attempting to shoot at the woman, and that
only in an inferential answer, which would not be admissible as evidence if objected to, stated
in answer to the following query:
Q. Could you determine from the flash at what the man was shooting? A. No; he was so
Naturally think he was shooting at the lady though. When she ran, he threw the gun down this
way [showing].
It will be observed from his answer to the query of the prosecution that he does not state
positively that the defendant shot at the woman, but that he thought defendant did. Without
passing upon the very questionable sufficiency of the evidence thus produced by the state on
which this verdict was rendered, and which is here cursorily reviewed to emphasize the
possible prejudicial effect on the jury of certain remarks of the district attorney
hereinafter set forth, we will pass to the assignment of error of the appellant alleging as
prejudicial to defendant's rights, certain statements made by the district attorney in his
closing argument to the jury, which we think are of such a prejudicial nature that the
judgment herein must be reversed and a new trial granted.
the possible prejudicial effect on the jury of certain remarks of the district attorney hereinafter
set forth, we will pass to the assignment of error of the appellant alleging as prejudicial to
defendant's rights, certain statements made by the district attorney in his closing argument to
the jury, which we think are of such a prejudicial nature that the judgment herein must be
reversed and a new trial granted.
Appellant assigns as error the following language of the district attorney in his closing
argument to the jury: Mr. SwallowWould you suppose these dear little women would
testify to the truth? Gentlemen, we know they will not, even if she is a state's witness. We
know these dear little French women, who lie in the arms of their macques for many long
months, in a case of this kind are always forgiving, and only too willing to say, Don't punish
him.' * * * There is nothing so damnable, nothing more criminal in the world, than the
treatment of a woman by her macque, and especially is this true among that class of people in
their particular locality. * * * She said she did not remember. I ask you, gentlemen, to wipe
her testimony out for all purposes except one, and that is to show that the other French
macques in that neighborhood have intimidated her so that she dare not go on this stand and
tell the jury Mr. WardWe object to any such remarks by counsel for the state, and move
that they be stricken from the consideration of the jury. The CourtI instruct you, gentlemen,
not to consider the remarks of the district attorney just spoken. It is hardly proper, Mr.
Swallow.
The evidence disclosed in the record, to say the least, without passing on its sufficiency,
lays a very weak foundation on which to support a verdict of assault with intent to kill.
Considering the character of the remarks made against the defendant by the district
attorneyremarks which are unwarranted by any evidence introduced, and which are certain
to prejudice and inflame the minds of any Nevada jury, if they believed them to be true,
because of the natural revulsion, well merited, and loathsome contempt held for men of this
characterwe are of the opinion that said remarks unduly influenced the jury in arriving at
their verdict. It is hard to conceive of any charge that could be made against any man, let
alone an accused in the position of the defendant on trial for assault with intent to kill,
which would tend more to influence a jury against him in this state, than to charge him
with being a macque.
conceive of any charge that could be made against any man, let alone an accused in the
position of the defendant on trial for assault with intent to kill, which would tend more to
influence a jury against him in this state, than to charge him with being a macque. I do not
think it is stating it too strongly to say that, once such a charge is made against a man, if
believed to be true, it would be difficult to find any jury in this state which would not be so
prejudiced as to bring in a verdict of conviction against an accused, no matter on what charge
he was being tried, believing that in so doing that on general principles they would be in a
measure justified in not having strictly adhered to the evidence and instruction of the court.
Considering the character of the case made against the defendant, the seriousness of these
charges, unsupported by the evidence, and the fact that they were made before the jury in the
closing argument when counsel for defendant had no opportunity to criticise or reply to them,
and considering the remarks coming from an officer of the court clothed with authority to
speak for the state, and a public officer whom juries have a right to regard as unprejudiced,
impartial, and nonpartisan, and bent only on seeing justice done and the law vindicated in
accordance with the rules of law, we cannot say that the mere objection of counsel for
defendant, and admonishment of the court to the jury to disregard the statement of the district
attorney, were sufficient to remove from the minds of the jury the poison and prejudice
already sown against the defendant by the district attorney.
We cannot escape the conclusion that the fair and impartial trial to which the defendant
was entitled was prejudiced by the remarks of the district attorney, and that the remarks were
well calculated to influence the jury in the present case. (People v. Bowers, 79 Cal. 415, 21
Pac. 752; People v. Treat, 77 Mich. 348, 43 N. W. 983; State v. Ulrich, 110 Mo. 350, 19 S.
W. 656; Holder v. State, 58 Ark. 473, 25 S. W. 279; State v. Irwin, 9 Idaho, 35, 71 Pac. 608,
60 L. R. A. 716, citing with approval 58 Ark. 473, 25 S. W. 279; Gutzman v. Clancy, 114
Wis. 589, 90 N. W. 1081, 58 L. R. A. 744; Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn.
605, 90 S. W. 623; Ivey v. State, 113 Ga.
1062, 39 S. E. 423, 54 L. R. A. 959; Wilson v. Territory, 9 Okl. 331, 60 Pac. 112; State v.
Balch, 31 Kan. 465, 2 Pac. 609.)
Prosecuting attorneys, unfortunately, too often forget, in their zeal to secure convictions,
that they have a duty to perform equally as sacred to the accused as to the state they are
employed to represent, and that is to see that the accused has the fair and impartial trial
guaranteed every person by our Constitution, no matter how lowly he may be, or degrading
the character of the offense charged, and that it is equally as reprehensible for prosecuting
attorneys to violate their oath as an attorney and officer of the court in this respect, as they are
censurable if they allow the guilty to escape the trial and punishment provided by law. It is
their duty to use all fair, honorable, and lawful means to secure the conviction of those who
may be indicted, but, in so doing, they should also see that nothing but competent evidence is
submitted to the jury, and, above all things, should not in their actions before or statements to
a jury make prejudicial and improper statements which they know would not be admissible
otherwise. It seems to be a peculiar trait and ambition of some prosecuting attorneys, carried
away through misguided zeal, to overprove their case when a conviction is otherwise certain,
and to exert their skill and ingenuity in seeing how far they can trespass on the verge of error,
and, generally in so doing, trespass upon the rights of the accused, thus causing the necessity
of courts of last resort to reverse causes and order new trials, to the expense and detriment of
the commonwealth and all concerned.
The judgment and order of the lower court denying appellant's motion for a new trial are
reversed, and cause remanded for a new trial.
Talbot, J., concurring:
I concur. Considering the different shots fired, which hit and wounded the woman, that
one of the witnesses testified that he saw the defendant shooting at her, and the other
testimony of this character in the record, there was ample evidence to justify the court in
denying the motion for a nonsuit, and for the jury to consider.
____________
31 Nev. 348, 348 (1909) Goldfield-Mohawk v. Leasing Co.
[No.1794]
GOLDFIELD-MOHAWK MINING COMPANY, Appellant, v. THE FRANCES-MOHAWK
MINING AND LEASING COMPANY, et al., Respondents, and
D. MACKENZIE & COMPANY, Respondents.
1. Appeal and ErrorStatementService.
Where in the minutes of the trial court there appeared an entry, motion to release the attachment will be
granted upon giving a sufficient bond, and the order of the judge releasing the attachment was dated
several days before it was filed, plaintiff, appealing from the release, had within twenty days after the filing
to serve his statement.
2. Appeal and ErrorStatementFiling.
Where the only amendment to a statement was one added by stipulation, stating that on a certain date the
court overruled defendant's application to dissolve an attachment, a contention that the appeal from an
order discharging the attachment should be dismissed because the statement was not filed after the addition
of the amendment was of no merit, the parties having stipulated that the foregoing statement, * * * and the
amendments thereto proposed, are agreed upon as setting forth a correct record, and that the same be
certified by the clerk, and that defendant did not waive any right to insist that the statement was not
originally filed within the time required.
3. AttachmentReleaseSuretiesHouseholder.
One keeping house with a hired servant, doing the cooking and housework for him in a house in which he
made his home and residence, and which he rented from a corporation bearing his name, in which he
owned a majority of the stock and controlling interest, was a householder within the statute, so as to
qualify him as a surety on a bond for the discharge of an attachment.
4. AttachmentBondReleaseSureties.
One whose rights depended on a quitclaim deed and possession, and who was not shown to have secured
the government title, was none the less a freeholder so as to qualify him as a surety on a bond for the
discharge of an attachment.
5. AttachmentRelease.
An objection that the trial court should not have granted a motion for the discharge of an attachment
because another motion to dissolve the attachment was pending and undetermined was of no merit; the
earlier motion having been denied before or at the time that the later one was granted.
6. AttachmentDischarge.
The statute, providing that, whenever the defendant shall have appeared in the action, he may apply for
an order to discharge the attachment, does not mean that the defendant can apply for the discharge only at
the time he appears, and no later.
7. AttachmentDischargeSureties.
The fact that the property of the sureties on a bond for the discharge of an attachment issued against a
corporation consisted of stock of defendant did not disqualify them.
8. GarnishmentQuashing or VacatingGrounds.
Where an attachment was issued, and moneys of defendant on deposit in a bank were garnished, and
thereafter the money in excess of plaintiff's claim was released by a stipulation, which recited that the
attachment was levied, defendant could not be heard to say that there was no legal attachment because no
garnishment notice was served on the bank.
9. GarnishmentDischarge on SecurityProperty Which May Be Released.
The statute (section 132 of the practice act; Comp. Laws, 3227) provides that the sheriff shall make a full
inventory of the property attached, and that to enable him to make returns as to debts and credits attached,
he shall request the party owing the debt, etc., to give him a memorandum of the same. Section 139 (Comp.
Laws, 3234) provides that defendant may apply for an order to discharge the attachment upon the filing of
a bond, and that an order may be made releasing the property debts or credits attached. Held, that a
contention that in giving an undertaking only property in the hands of the sheriff could be released, and not
property in a bank which had been garnished, was of no merit.
Action by the Goldfield-Mohawk Mining Company against the Frances-Mohawk Mining
and Leasing Company and others, and another action by the same plaintiff against D.
Mackenzie & Co. From an order in each case discharging an attachment, plaintiff appeals.
Affirmed.
Thomas, Bryant & Malburn and Thomas & Bryant, for Appellant.
R. G. Withers and H. M. Farnam for Respondents.
Both of these actions were brought to recover damages alleged to have resulted from
caving, caused by the improper working by the defendants of mining ground, in violation of
the terms of the lease given to the defendants' assignors by plaintiff.
the terms of the lease given to the defendants' assignors by plaintiff. The legal questions
involved are similar in both cases, and have been argued and submitted together. Attachments
for the amounts claimed, respectively, $100,000 and $25,000, were issued and levied, and
moneys of the defendants on deposit in bank, about $250,000 belonging to D. Mackenzie &
Co., and about $750,000 belonging to the Frances-Mohawk Mining and Leasing Company,
were garnished. Thereafter the money levied upon in excess of the amounts claimed was
released by the stipulation of the parties, in which the right of the defendants to apply to the
court for a discharge or a release of the attachment was expressly reserved. The defendants
moved to dissolve the attachments, on the ground that they had not been legally issued, and
later they moved to have them discharged by proffering an undertaking. These motions were
resisted by the plaintiff and withdrawn by defendants, who filed new motions to discharge the
attachments, and offered in the suit for $100,000 an undertaking upon which D. Mackenzie,
Lillian E. Goodberlet, and L. Estelle Goodberlet became jointly and severally liable in the
sum of $200,000, to which was attached the affidavit of Mackenzie that he was a resident and
householder in Esmeralda County, Nevada, and worth more than that sum, and the affidavit
of Lillian that she was a resident and freeholder in that county, and worth more than that
amount, and the affidavit of Estelle that she was worth more than $10,000exclusive of their
debts and liabilities, and property exempt from execution. In the other case the same persons
gave their joint and several undertakings in the sum of $50,000, with similar affidavits
attached. Plaintiff required the justification of the sureties, and the court, after hearing their
testimony, held that they were sufficient, that the undertakings were good, and ordered that
the attachments be discharged, and the money remaining in the bank be paid to the
defendants. From these orders the appeals are taken.
Respondents moved to dismiss the appeals, claiming, among other designated grounds,
that the statements were not filed or served upon the defendants within twenty days after the
orders appealed from were entered by the district court, and that the statements have not
been filed with the clerk.
orders appealed from were entered by the district court, and that the statements have not been
filed with the clerk. The controlling questions presented relate to the motions to dismiss, and
to the sufficiency of the sureties, and these are the only ones needing extended consideration.
The written order in each case, specifically discharging the attachment, and directing the
release of the moneys from its operation, signed by the judge, is dated May 11th, and filed
May 18th, one week later. The statements were served on June 6th, within twenty days of the
latter date, but more than twenty days after the former. It is claimed that this service was too
late, because the following entry appears in the minutes of the court: Motion to dissolve the
attachment is denied. The motion to release the attachment will be granted upon giving a
good and sufficient bond. To apply in both cases. Assuming that, if an order had been made
in open court and entered in the minutes on the 11th, directing the release of the attachments,
it would have been valid and sufficient, and the time to take proceedings on appeal would
have commenced to run from the date it was made, the minute entry does not indicate that
any final order was made in open court, releasing the attachments or adjudging the
undertaking or sureties sufficient, from which the plaintiff could have been expected to
appeal. The statement that the motion to release the attachment will be granted upon giving a
good and sufficient bond could hardly be construed as an order releasing the attachment, or
as indicating that it would be released until the court took future action, and had passed
judgment on the sufficiency of the sureties and approved the bond. Therefore we must
conclude that the minute order did not require the service of a statement within twenty days,
or any appeal, so far as the questions brought to this court, the sufficiency of the undertaking
and sureties, are concerned. The written order of the judge, dated the 11th but not filed until
the 18th of May, did not become effective until it was filed, and the appellant had until
twenty days thereafter in which to serve the statement. (Schultz v. Winter, 7 Nev. 130.) Any
other rule would jeopardize a party's rights, for the order might not be filed for more than
twenty days after it had been signed and dated, and the period within which the appellant
would be allowed to serve his statement would have expired before he could obtain
knowledge from the records of the court that the order had been made.
been signed and dated, and the period within which the appellant would be allowed to serve
his statement would have expired before he could obtain knowledge from the records of the
court that the order had been made.
The only amendment to the statement was one added by stipulation, stating that on the
11th day of May, 1908, the court overruled the defendant's application to dissolve the
attachment, on the claim that it had been illegally issued. Respondent contends that the appeal
ought to be dismissed because the statement was not filed after the addition of this
amendment. When a statement is amended and changed in such material respects as to make
it a new document, ordinarily it is filed as such, in addition to the previous filing of the
proposed statement. Here the parties stipulated that the annexed and foregoing statement, on
appeal from order discharging the attachment and releasing moneys attached, which was duly
filed with the clerk of the court in the above-entitled cause on the 6th day of June, A. D.
1908, and the foregoing amendments thereto proposed by the defendant, and filed June 11,
1908, are true and correct, and are hereby agreed upon as setting forth a correct record of
what transpired in said cause, and a correct statement on appeal of the same, and it is further
stipulated and agreed that the same shall be certified by the clerk of the court as a settlement
of the case upon appeal. The stipulation provided that the defendant did not waive any right
which the defendant might have to insist that said statement on appeal was not originally filed
with the time allowed by law, but it did not make any other reservation.
The motion to dismiss the appeal is denied.
Upon the examination of the sureties D. Mackenzie testified: that he was a resident and
householder in Goldfield, Esmeralda County; that he kept house there with one servant, who
did the cooking and housekeeping for him; that his wife and boy were in Chicago; that his
wife had refused to come to Goldfield and live there, but that he expected her to come before
very long; that when he came to Goldfield, it was with the intention of making his residence,
and that he maintained a household there for several years; that he owned over 15,000 of the
25,000 shares of the stock of D. Mackenzie & Co.; that these shares were worth over
$200,000, and that the company had about $500,000 in different banks; that of this
money $250,000 were in the Crocker National Bank in San Francisco, $100,000 in the
American National Bank in Los Angeles, and over $50,000 in local banks; that the
company did not owe more than from $10,000 to $25,000; that it was incorporated under
the laws of Arizona; that his stock was in his pocket, and had not been hypothecated, and
that he had no debts; that in addition to these moneys on deposit the company owned
real estate worth $75,000, of which $32,000 in value was in the county, including the
house in which he lived, bank and mining stock, aggregating $1,297,000; that a large
proportion of these stocks were in companies operating in Goldfield.
over 15,000 of the 25,000 shares of the stock of D. Mackenzie & Co.; that these shares were
worth over $200,000, and that the company had about $500,000 in different banks; that of
this money $250,000 were in the Crocker National Bank in San Francisco, $100,000 in the
American National Bank in Los Angeles, and over $50,000 in local banks; that the company
did not owe more than from $10,000 to $25,000; that it was incorporated under the laws of
Arizona; that his stock was in his pocket, and had not been hypothecated, and that he had no
debts; that in addition to these moneys on deposit the company owned real estate worth
$75,000, of which $32,000 in value was in the county, including the house in which he lived,
bank and mining stock, aggregating $1,297,000; that a large proportion of these stocks were
in companies operating in Goldfield.
Lillian E. Goodberlet, another surety, testified: That she was a resident and freeholder in
the county, and owned a one-half interest in a house and lot, where she and L. Estelle
Goodberlet, another surety, resided in Goldfield; that she acquired her interest from Estelle,
and had a quitclaim deed from the Goldfield Town Site Company; that she did not know
whether the title was still in the government of the United States; that she was worth more
than $200,000, consisting principally of a quarter interest in D. Mackenzie & Co., which she
had owned ever since the incorporation of the company; that she had this stock with her, and
that she owned a large amount of stock in other companies, and an interest in an estate in St.
Louis. She gave a list of the shares and values of the mining stocks which she said she owned,
which were valued at $263,000.
L. Estelle Goodberlet testified: That she was a resident and freeholder in the county, and
owned a one-half interest in a house and lot which she bought for a home, where she resided
in Goldfield with Lillian E. Goodberlet; that she owned stocks worth more than $10,000, and
houses and lots in St. Louis valued at $24,000.
The evidence offered is uncontradicted that the sureties are residents of Esmeralda County,
and possessed of ample wealth to enable them to qualify. Technically, do they come within
the terms of the statute requiring them to be freeholders or householders?
the terms of the statute requiring them to be freeholders or householders?
Our conclusion, that keeping house with a hired servant doing the cooking and housework
for him, in a house in which he made his home and residence, and which he rented from a
corporation bearing his name, in which he owned a majority of the stock and controlling
interest, constituted him a householder, finds support in the decisions.
In Lester v. State, 2 Tex. App. 448, the court said: As used in the statute, the word
householder,' though otherwise held, is, we take it, synonymous with housekeeper,' which is
defined by Bouvier to be one who keeps house.' He further says: In order to make the party
a housekeeper, he must be in actual possession of the house'citing 1 Chitt. 288-316; 1 B. &
C. 178; 2 T. R. 406; 1 Bott. 5; Bouv. L. Dic., tit. Housekeeper.' Mr. Burrill, in his law
dictionary, defines a householder to be the occupier of a house.
In Kamer v. Clatsop County, 6 Or. 240: Upon the second point it appears that several of
the petitioners were unmarried men, who, in the language of the transcript, kept houses and
servants.' We are of the opinion that they were householders.
In Aaron v. State, 37 Ala. 113: A person having and providing for a household, is a
householder.' (Griffin v. Sutherland, 14 Barb. 456.) See, also, Rex v. Inhabitants of Rufford, 8
Mod. 40; Slade's Bail, 1 Chitty, 502; Rex v. Poynder, 1 B. & Cress. 178; 3 Petersdorff's Abr.
103. Householder, in our statute, means something more than the mere occupant of a room or
house. It implies in its terms the idea of a domestic establishmentof the management of a
household. (Sallec v. Waters, 17 Ala. 482; Boykin v. Edwards, 21 Ala. 261; Parmele's Case,
2 Mart. O. S. La. 313.)
In Kelley v. McFadden, 80 Ind. 536, it was held that one without a wife, child, or other
dependent, who, with a hired servant, occupies a house and maintains a household, is a
householder within the meaning of the law.
In Lane v. State, 29 Tex. App. 319, 15 S. W. 829: It implies the idea of a domestic
establishmentthe management of a household. It is not requisite that the person should be a
married man.
should be a married man. His family may consist of servants or others occupying the house
with him, but he must be the head or master of the establishment. (9 Am. & Eng. Ency. Law,
p. 783, note, 1; Thomp. on Trials, sec. 53.)
The other sureties were shown to be freeholders. Although their rights depended upon a
quitclaim deed and possession, and it was not shown that the government title had passed to
them, it was not necessary that they hold the patent from the government. Ownership of a
large part of the town and agricultural property in this state has rested on possession for a
generation. In many localities the land has not yet been surveyed, so that patent could be
secured. This court and the Supreme Court of the United States have held that possession
gives a right which may be conveyed, and which is complete against every one excepting the
United States. Courts are not inclined to try the collateral question of superior title in
determining whether a person is a freeholder.
In Shively v. Lankford, 174 Mo. 548, 74 S. W. 838, the court stated: That one may be a
freeholder, and not a householder, or a householder and not a freeholder, seems to be too
plain for argument. Householder' refers to the civil status of a person, not his property, and a
man may be a householder without owning real estate, or any interest therein, whereas a
freeholder is, one who owns a freehold estate; that is an estate in lands, tenements, or
hereditaments of an indeterminate duration, other than an estate at will or by sufferance, as in
fee simple, fee tail, or for life, or durante viduitate, or during coverture,' etc. (2 Minor's Inst.
71, 1c; 1 Thos. Co. Lit., 621 and note c.)
A definition substantially the same is given in Cummings v. Hyatt, 54 Neb. 38, 74 N. W.
411, to the term freeholder.
In Harlan v. State, 136 Ala. 154, 33 South. 858, a man who resided on a lot, which
formerly belonged to his deceased wife, who died intestate, and in which the statute gave him
an interest, was held to be a freeholder.
In Exendine v. Morris, 8 Mo. App. 388, the court said: One in possession of land,
claiming to own it, and commonly reputed as owning it in fee, would be a freeholder within
the meaning of any statute requiring a freehold qualification in an appraiser of land for an
administrator's or guardian's sale, independently of any question as to the validity or
record sufficiency of his title.
appraiser of land for an administrator's or guardian's sale, independently of any question as to
the validity or record sufficiency of his title. It cannot be necessary to go into record evidence
of title to show such a qualification. There may be no record evidence.
We find no error in the conclusions of the district judge that the sureties met with the
requirements of the statute, and were possessed of ample means to protect the appellant in the
payment of any judgment which it may recover.
A number of propositions advanced and cases cited in the briefs, which cover over a
hundred pages, are not deemed to apply to the conditions prevailing here.
It is claimed that the court should not have heard or granted the motion from which the
appeal is taken, because another motion to discharge the attachment was pending and
undetermined. But the earlier motion was denied before or at the same time that the latter one
was granted, and we do not consider that the prior motion to dissolve the attachment, on the
ground that it was illegally issued, was in conflict with the one to discharge the attachment
upon giving an undertaking.
It is argued that, under the language of the statute that whenever the defendant shall have
appeared in the action, he may apply, upon reasonable notice to the plaintiff, to the court in
which the action is pending or to the judge thereof, for an order to discharge the attachment,
the defendant could apply for the discharge only at the time he appeared, and no later. It will
be observed that the statute does not state that when the defendant appears, or whenever he
appears, he may apply for a discharge, but whenever he shall have appeared in the action,
which is equivalent to stating at any time after he appears.
It is also urged that the court had no authority to make the order, because the money had
passed out of the control of the court, and into the hands of the bank as trustee. It is indicated,
in different paragraphs of the stipulation, that the parties contemplated and arranged for the
release of the attachment on all moneys excepting the sum of $100,000 in one action, and
$25,000 in the other, and they did not agree to the release of the attachment on those
amounts, and the stipulation definitely provided that the plaintiff would not hold under
attachment more than those amounts, and expressly reserved to the defendants the right
to apply to the court for the discharge or release of the attachment.
the release of the attachment on those amounts, and the stipulation definitely provided that
the plaintiff would not hold under attachment more than those amounts, and expressly
reserved to the defendants the right to apply to the court for the discharge or release of the
attachment. It is said that the property of the sureties consisted of stock of defendants, and
that they had no property in the state which could be levied upon by execution. The statute
only requires that the sureties be residents and freeholders or householders in the county, and
that they be worth the necessary amounts. As the stockholders are in law individually distinct
from the corporation itself, may they not become sureties if they qualify in compliance with
the statute, and it appears, after the trial judge has heard the evidence, that their financial
standing is such as to meet its requirements and protect the plaintiff? Here two of the sureties
were officers of one of the companies which carried on their principal operations in the
county, and they are uncontradicted in their testimony that they are residents of the county;
and, although their property consists largely of stock in the company, if they are, nevertheless,
worth the requisite amount, we see no reason why they may not act as sureties, and protect
the plaintiff in any judgment it may obtain. The assets of the defendants here are shown to be
mostly cash on deposit in bank, which gave value to the corporate stock owned by the
sureties; and, although the most of this is in foreign corporations, it is not a class of property
which is exempt, so that it cannot be made to meet the obligations of the owners.
It is asserted that no legal attachment of the moneys was made because no garnishment
notice was served upon the bank, but the terms of the stipulation reciting that the attachment
was levied and providing for its release of part of the money, preclude the defendant from
maintaining this position. It is also urged that in giving of an undertaking only the property in
the hands of the sheriff could be released from attachment, and cases are cited giving this
construction to the language of the statute in Colorado. We think it would be too harsh and
unwarranted to so construe our practice act, which treats garnishment as an attachment of
moneys and credits, and makes no distinction as to the kind of property which may be
released.
credits, and makes no distinction as to the kind of property which may be released. It is
provided in section 132 (Comp. Laws, 3227): The sheriff shall make a full inventory of the
property attached, and return the same with the writ. To enable him to make such returns as to
debts and credits attached, he shall request at the time of service the party owing the debt, or
having the credit, to give him a memorandum stating the amount and description of each.
* * * And in section 139 (Comp. Laws, 3234): Whenever the defendant shall have
appeared in the action, he may apply, upon reasonable notice to the plaintiff, to the court in
which the action is pending, or the judge thereof, for an order to discharge the attachment,
wholly or in part, upon the execution and filing of the undertaking mentioned in the next
section. Such order may be granted directing the release from the operation of the attachment,
upon the filing of such undertaking and the justification of the sureties thereon, if required by
the plaintiff, or all or any part of the property, money, debts or credits attached, as the case
may be. * * *
The order from which the appeal is taken is affirmed in each case.
____________
31 Nev. 359, 359 (1909) Goldfield-Mohawk v. Mackenzie & Co.
[No. 1793]
GOLDFIELD-MOHAWK MINING COMPANY, Appellant,
v. D. MACKENZIE & CO., Respondents.
Action by the Goldfield-Mohawk Mining Company against D. Mackenzie & Co. From an
order discharging an attachment, plaintiff appeals. Affirmed.
Thomas, Bryant & Malburn and Bryant & O'Brien, for Appellant.
R. G. Withers and H. N. Farnam, for Respondents.
This case presents the same questions, and has been argued, submitted, and considered
with the one of the Goldfield-Mohawk Mining Company, Appellant, v. Frances-Mohawk
Mining and Leasing Company and D. Mackenzie & Company, Respondents, this day decided.
(31 Nev. 348.)
For the reasons stated in the opinion filed in that case, the order of the district court in this
one is affirmed.
____________
31 Nev. 360, 360 (1909) State v. Williams
[No. 1775]
THE STATE OF NEVADA, Respondent, v. GEORGE WILLIAMS, Appellant.
1. Grand JuryChallenge to the Panel.
The statutory causes of challenge to the panel of a grand jury specified in the criminal practice act of
1861 (Stats. 1861, p. 454, c. 104), sec. 179, do not apply to the changed method of drawing grand jurors
according to Comp. Laws, 3869.
2. Grand JuryAttendance.
It is not necessary to have the full venire of twenty-four present according to Comp. Laws, 3869, before a
grand jury of seventeen is selected; the provisions in the statute for a larger venire than the grand jury
selected being directory.
3. Criminal LawEvidenceJudicial Notice.
Courts take judicial notice of periods within the calendar.
4. HomicideIndictmentTime of Death.
An indictment charging that a mortal wound was inflicted on a date about four months before the finding
of the indictment, and that deceased died from it in the meantime, sufficiently charges that death occurred
within a year and a day after the infliction of the wound.
5. Criminal LawAppeal and ErrorReviewHarmless Error.
The admission of the hearsay evidence as to what was done with the body of deceased after it was found
by the witness is harmless.
6. Criminal LawEvidenceOpinionTime.
Time is provable by the opinion of a witness testifying from his recollection.
7. Criminal LawTrialReception of Evidence.
The time and place of a remark made by the accused having been fixed as the one occasion on which he
came to a camp when the snow fell, the foundation for proof of the remark was sufficient.
8. WitnessesExaminationLeading Questions.
It is discretionary to allow leading questions on the direct examination when the witness is unable to
understand otherwise.
9. Criminal LawAppeal and ErrorReviewHarmless Error.
Error in a question to a witness, and a statement of the court in the presence of the jury implying that a
confession had been made, is cured as soon as the fact is proved by the testimony of the witness and the
accused.
10. Criminal LawTrialRemarks of JudgeComments on Witnesses.
A remark of the court in ruling on the admissibility of leading questions that they are sometimes
necessary to elicit the truth is not objectionable as asserting that the witness is truthful and creditable.
11. Criminal LawTrialProvince of Court and JuryDetermination on Admissibility of Confessions.
The question of the voluntariness of a confession is to be decided primarily by the court after hearing all
the evidence offered by both sides upon that issue, and, if the confession is ruled to be admissible, it is not
improper to submit all the evidence to the jury to be considered in determining the weight to be given to the
confession.
12. Criminal LawEvidenceConfessionsPreliminary Evidence.
The accused is entitled to introduce evidence to rebut the claim of the state that his confession is
voluntary before the court determines whether it is to be submitted to the jury.
13. Criminal LawTrialReception of EvidencePresence of Jury.
If it cannot be easily shown that a conversation sought to be proved was voluntary, without leading the
jury to surmise that a confession has been made, they ought to be excused until the court can hear the
evidence and determine whether the confession ought to be submitted to them.
14. Criminal LawArraignment and Pleas.
The entry of a plea of not guilty in behalf of the accused by the clerk upon the order of the court after
defendant's refusal to plead is equivalent to a plea of not guilty.
15. Criminal LawAppeal and ErrorPresumptions.
All presumptions are in favor of the regularity of the action of the trial court.
George Williams was convicted of murder, and he appeals. Affirmed.
Clarence C. Ward, for Appellant.
Respondent.
On behalf of the appellant it is claimed that the district court erred in impaneling the grand
jury, in denying defendant's motion to quash the indictment, in overruling his demurrer, in
admitting designated testimony offered on behalf of the state, in making certain remarks and
stating before the jury facts and conclusions concerning the evidence, in submitting to the
jury a question of law which should have been decided by the court, and in proceeding with
the trial without a plea being entered by or for the defendant.
The challenge to the panel of the grand jury was upon the grounds specified in section 179
of the criminal practice act passed in 1861. (Stats. 1861, p. 454, c. 104.) It is evident that
these causes of challenge were intended to apply to the statutory method of drawing
grand jurors at that time, but which since have been superseded.
that these causes of challenge were intended to apply to the statutory method of drawing
grand jurors at that time, but which since have been superseded. (State v. Collyer, 17 Nev.
280.) The grand jury was drawn in compliance with the statute now in force, section 3869 of
the Compiled Laws, passed in 1873 and amended in 1879 and 1881.
Some of the grounds on which defendant moved to quash the indictment are similar to
those on which he objected to the impaneling of the grand jury, and some of them are not
sustained by the record. Of the twenty-four persons selected by the district judge and the
county commissioner to be summoned as grand jurors only twenty-three were served by the
sheriff, in whose return it was stated that one of them was not found. It is said that it was
necessary to have the whole twenty-four present in court before seventeen could properly be
selected by the judge to act as a grand jury.
Section 3869 of the Compiled Laws provides: * * * A list of the names so selected as
grand jurors shall be made out and certified by the officers making such selection and be filed
in the clerk's office, and the clerk shall immediately issue a venire, directed to the sheriff of
the county, commanding him to summon the persons so drawn as grand jurors to attend in
court at such time as the judge may have directed; and the sheriff shall summon such grand
jurors, and out of the number so summoned the court shall select seventeen persons to
constitute the grand jury. If from any cause a sufficient number do not appear, or those who
do appear are excused or discharged, an additional number, sufficient to complete the grand
jury, shall be selected from the jury list by the judge and clerk and summoned to appear in
court at such time as the court may direct. This language seems to sanction the practice long
prevailing in this state, which is most convenient without being prejudicial to the rights of the
defendant, of allowing the court to designate seventeen to constitute the grand jury from those
present of the twenty-four previously selected for the venire, although less than that number
be in court. By reason of absence, sickness, or other cause, it may be impossible to secure
service upon, and the attendance in court of, the full twenty-four which had been selected
and placed upon the venire, and wisely the statute allows the court to select the
necessary seventeen to constitute the panel from the number present.
selected and placed upon the venire, and wisely the statute allows the court to select the
necessary seventeen to constitute the panel from the number present.
The failure to have the full twenty-four in court is not designated in the statute as a ground
for challenging the panel nor for quashing the indictment, and so long as the seventeen
required to constitute the grand jury were present and were selected by the court, and none of
them were subject to individual challenge or disqualification, it would seem that defendant
could not be prejudiced because a part of those in excess of this number did not appear. The
fact that the sheriff returned that one of the venire of twenty-four had not been found does not
indicate that there was any purpose on his part to omit any who could have been served. It has
been held that, where the court sustains a challenge by the state to a trial juror and excuses
him without any cause, no prejudicial error results, for the defendant is only entitled to a fair
jury and not to have any particular person on the panel. (State v. Larkin, 11 Nev. 315; State v.
Buralli, 27 Nev. 49.) The same reasoning would be applicable to the omission from the grand
jury of any one named in the venire, and the personnel of the grand jury is not of such vital
importance to the defendant as that of the trial jury. Surely, there is no more necessity for
having the full venire of twenty-four present before a grand jury of seventeen is selected than
for having the full venire of fifty or one hundred or any number of trial jurors present before
twelve disinterested and duly qualified can be impaneled to serve as a trial jury.
Among the decisions holding that statutes providing for venires for a larger number than
are necessary to constitute a grand jury are, in their nature, directory, and that the absence of
part of them does not vitiate the proceedings of the grand jury are: Commonwealth v. Wood, 2
Cush. (Mass.) 149; Mesmer v. Commonwealth, 26 Grat. (Va.) 976; State v. Brainerd, 56 Vt.
532, 48 Am. Rep. 818; Beasley v. People, 89 Ill. 571; People v. Hunter, 54 Cal. 65; People v.
Simmons, 119 Cal. 1, 50 Pac. 844.
The demurrer was based on the omission of any direct allegation that the deceased died
within a year and a day from the time he was shot. It is alleged in the indictment that the
defendant "on the 5th day of November, A. D. 1907, or thereabouts, * * * at the County of
Esmeralda, State of Nevada, did then and there, wilfully, feloniously and unlawfully, with
malice aforethought, deliberately and with premeditation, kill and murder one J. Barney
Griffin, * * * by shooting, etc., thereby inflicting a mortal wound, * * * from which said
mortal wound said J.
the defendant on the 5th day of November, A. D. 1907, or thereabouts, * * * at the County
of Esmeralda, State of Nevada, did then and there, wilfully, feloniously and unlawfully, with
malice aforethought, deliberately and with premeditation, kill and murder one J. Barney
Griffin, * * * by shooting, etc., thereby inflicting a mortal wound, * * * from which said
mortal wound said J. Barney Griffin died on a date to the grand jury unknown, before the
finding of this indictment.
The indictment was found on the 21st day of February, 1908. It is said that the state could
have proved that the shooting occurred on some other date than the one alleged; and this is
true. If the proof had indicated that the wound was inflicted more than a year and a day before
the finding of the indictment, it would have failed to establish murder, but it followed the
allegations closely, and these were sufficient upon demurrer regardless of the evidence
introduced later. Considering the charge that the mortal wound was inflicted on a date about
four months previous to the finding of the indictment and that the deceased had died from it
in the meantime, a simple mathematical calculation which cannot be classed as an inference
would indicate that the death occurred within four months after the infliction of the wound. (1
Bish. Crim. Procedure, 391; State v. Champoux, 33 Wash. 339, 74 Pac. 557; Bowen v. State,
1 Or. 270, and other cases cited in the brief.) Courts take judicial notice of periods within the
calendar, and are capable of making such mathematical computation. The indictment contains
all that is provided in the statutory form of one for murder and more. Section 244 of the
criminal practice act provides: No indictment shall be deemed insufficient, nor shall the trial,
judgment or proceedings thereon be affected by reason of any defect or imperfections of
matters of form which shall not tend to the prejudice of the defendant.
As illustrative of others it will be sufficient to refer to a part of the exceptions taken by the
defendant under his specification that the court erred to his prejudice in admitting
incompetent, irrelevant, and immaterial testimony offered by the state.
the state. The following glimpse of the proceedings on the trial shows the nature of these
exceptions:
In the testimony of Fred Volmer: Q. After seeing the body of Barney Griffin at the point
stated by you, in the manner as testified to, what, if anything, was done with it?
Mr. WardObjected to unless qualified by the statement as to whether the witness knows
or not.
Objection overruled. Exception.
Q. What time of the morning did Barney Griffin and the other party leave, if they left your
cabin? A. I should think something about before noon some time, from 9 to 11.
Mr. WardObjected to as something he should think and not a statement of facts.
In the testimony of War Dance Johnson: Q. What did the defendant, this Indian here, say
to him when he came to his camp?
Mr. WardWe object to that unless the time is fixed when.
Q. At that time he was there?
Mr. WardHe designated it when the snow fell; he has not specified definitely.
The CourtThe witness testified that he only saw him once. The testimony must
necessarily be confined to that particular time.
Q. Ask him if defendant unscrewed that and took it off.
Mr. WardWe object as leading.
Q. Was the defendant on the summit when he saw the train?
Mr. WardObjected to unless he is able to state of his own knowledge whether he knows
he was on the summit or not.
Q. When George Williams left his camp that night, did he watch to see where he went?
WitnessIt was dark, no moon.
Q. What did he say about the horse? InterpreterHe said it was dark and he couldn't see
him, but he went down that way (shows) from his camp.
Q. Did he follow his tracks out when it got light?
Mr. WardObjected to as leading.
Q. Ask him, Pete, if he saw man tracks made by shoes or boots. InterpreterYes, he saw
man tracks.
Q. How far from this camp did the man's tracks go; how far did he follow them?
InterpreterHe got on the horse right where he had it tied.
Q. How far was that from this camp'the length of this roomask him?
Objection overruled. Exception. * * *
Q. Tell us what did he find, what did he see after Fred Bugler told him something?
InterpreterSaid he went out and showed him the tracks.
Q. What kind of tracks were they at first; ask him if he saw any man's tracks?
The CourtOrdinarily, the court does not permit leading questions, but there are times
and occasions when it is absolutely necessary that leading questions be asked in order to elicit
the truth. I think this is one of those cases and for that reason I will permit the question.
As to the objection to the first question set out above, it would appear from the testimony
of the witness that he knew of his own knowledge what was done with the body at the time to
which the question related, which was the one when he and the others were at the place where
the remains of the deceased and his companion were found in the mountains. In any event his
answer, if it had been merely based on hearsay was not in reference to anything which could
have injured the defendant. It was not improper for the witness as a matter of recollection to
say that he thought the time was from 9 to 11 o'clock, and the objection to it as not being a
statement of facts was properly overruled, time being provable by opinion. (Hardy v. Merrill,
56 N. H. 241, 22 Am. Rep. 441; Wigmore on Evidence, sec. 1977; Lawson, Exp. & Opin.
Evidence, 460, and cases there cited.)
Nor was the objection that the witness had not specified definitely the time when he and
the defendant came to the camp well taken. It was not necessary to specify the time and place
when the defendant made the statement as is required in a question laying the foundation for
the impeachment of a witness; and the time and place had already been fixed as the one
occasion upon which the defendant came to the camp when the snow fell. Nor can we say that
the court abused its discretion in allowing leading questions to be put to Indian witnesses,
who did not well comprehend, for it is sometimes discretionary to allow leading questions on
the direct examination when it appears that the witness is unable to understand otherwise, as
well as when he is hostile. (Greenleaf on Evidence, sec. 435.) It was permissible for the court
to receive the testimony of the Indian who had acted as interpreter. (Greenleaf on Evidence,
sec. 432.)
The objection was well taken to the question asked by the district attorney: Where did the
statement and confession take place, and when? Certainly, the question implied a confession
carrying an acknowledgment of guilt at a time when there was no proof that one had been
made, and the exception was placed on this ground. The same is true of the statement of the
court: I do not think it necessary to remove the jury at the present time; I would suggest that
the district attorney had better lay the foundation for the introduction of the confession. But
the error under the question and in the statement of the court implying that a confession had
been made, when none had been proven, was cured so far as any prejudice could result to the
defendant, when later the witness was allowed to testify that a confession was made, and the
defendant himself took the stand and denied that the confession was voluntary, but
acknowledged that one had been made to the witness. (State v. Johnny, 29 Nev. 220.) The
objection against a trial judge stating facts before a jury does not apply to those which are
admitted; and if the judge states facts which are not already proven, the error or injury is
cured or removed as soon as the facts stated are admitted.
It is argued that the statement of the court that there are occasions when it is absolutely
necessary that leading questions be asked in order to elicit the truth, and that the judge
thought that was one of those cases, amounted to an assertion that the witness was
truthful and creditable and, therefore, it was erroneous.
tions be asked in order to elicit the truth, and that the judge thought that was one of those
cases, amounted to an assertion that the witness was truthful and creditable and, therefore, it
was erroneous. Evidently, it was the intention of the court to announce to counsel that he
would permit leading questions in order to enable the witness to understand and give answers,
which would relate the facts or truth. We do not think that the court intended, nor that the jury
could infer, from the language used that the trial judge considered the witness who was
testifying either creditable or unreliable. If we depart from the evident purpose of the
statement, which was a ruling on the permissibility of leading questions, it would rather tend
to discredit the witness or to carry the suggestion that the truth could not be elicited from him
by the usual direct examination. Consequently, the possible tendency of the remarks to
discredit the state's witness could not be unfavorable to the defendant. It is urged that the
court erred in submitting to the jury evidence as to whether the confession made by the
defendant was voluntary, and that this was a question for the determination of the court.
During the trial the under sheriff was placed upon the stand by the state to prove that a
confession had been made by the defendant while he was confined in the county jail.
Defendant's counsel made objection, and urged at different times that it was the duty of the
court to hear evidence in the absence of the jury and determine whether a voluntary
confession had been made. The court refused a motion to have the jury excluded, and an
exception was taken. The witness proceeded to testify that without any promise of reward or
threat of punishment the defendant had told how he had shot J. Barney Griffin and his
companion, how he had opened their pockets and taken their watches, and chopped boughs to
cover their bodies, and went away to Mono Lake. The details of the defendant's confession
were stated by the witness before the jury without any direct objection, and his attorney
proceeded to cross-examine the witness as to whether there had been any threat of
punishment or offer of reward to induce the making of the confession. Thereupon the state
rested its case. At the further request of defendant's counsel the court excluded the jury
while the defendant was placed upon the stand, and testified that in securing the
confession the deputy sheriff had drawn a pistol and threatened to kill him if he did not
tell the particulars in relation to the shooting of the deceased.
the court excluded the jury while the defendant was placed upon the stand, and testified that
in securing the confession the deputy sheriff had drawn a pistol and threatened to kill him if
he did not tell the particulars in relation to the shooting of the deceased. The defendant's
testimony was in the nature of an admission that he had made the confession, but was a denial
that it had been given voluntarily.
After the attorney had further argued that the confession be excluded, the court said: Two
witnesses have testified that the defendant has made a confession to them; they have both
testified that the confession was voluntary, without any hope of reward or threat of
punishment, and now the defendant takes the witness stand and deniesat least, he
testifiesthat there was a promise of reward or threat of punishment. It is submitted to the
court upon voluntary evidence, and the rule of necessity must be that the evidence would be
admissible to go before the jury, because, unless that was the rule, every time the defendant in
a criminal case made a confession, no matter how voluntarily it was made, and afterwards
denied it, the court would then be called upon to determine the weight to give the evidence of
the various parties. As I stated, the rule undoubtedly is that the court might hear the evidence
and exclude the statements made by the defendant as to whether it was voluntary, and it
seems to me the absolutely fair rule would be for the entire matter to go before the jury. This
witness can testify to the circumstances and conditions under which the confession was made,
then it will be a matter for the jury to determine which of the parties are telling the truth. As I
stated before, I am prepared to rule upon the matter now. I am willing to go further, and allow
the defendant to state the conditions and circumstances surrounding the alleged confession to
go before the jury which would be of direct and positive benefit to the defendant. However, if
you don't want that, I will exclude it from the jury.
Counsel then said: If your honor rules that this is a matter that goes to the jury, we shall
insist that every part of it go to the jury. Your honor has permitted testimony on the other side
to go to the jury, and, in support of our motion to strike, we tender this witness for the
purpose of convincing the court that the testimony should be stricken out, and if your
honor rules now that it should not be stricken out, but should go to the jury, then we
insist upon both sides being heard before the jury."
the court that the testimony should be stricken out, and if your honor rules now that it should
not be stricken out, but should go to the jury, then we insist upon both sides being heard
before the jury.
It will be observed that counsel relied more upon his contention in the lower court, which
was in accord with his argument here, that it was the duty of the trial judge in the absence of
the jury to hear the evidence and determine whether the confession was voluntary, than upon
his request to have all the evidence in relation to the confession submitted to the jury, which
he made after his motion to exclude the jury had been denied while the testimony was being
given in behalf of the state in regard to the confession, and his motion to have the jury
excluded while the defendant was testifying in regard to the confession had been granted,
which latter request was more in consonance with the views expressed by the court. As no
objection or exception was taken to the evidence of the confession itself, and the defendant
admitted that he had made it, no question of error in that connection is before us; but we must
determine whether the court acted improperly in regard to the testimony relative to the
voluntariness of the confession. It is claimed that it was error to submit this evidence to the
jury. This would be a more serious proposition, if the record did not indicate that there was
substantial evidence from which the judge apparently concluded that the confession was
voluntary, and that he was willing to give the defendant the benefit of any doubt by letting the
testimony go to the jury.
If the defendant's contention that it is the duty of the court to determine whether the
confession was voluntary be conceded, and the court found that there was evidence to
indicate that it was voluntary, although the testimony was conflicting, and thereupon allowed
proof of the confession to go to the jury, the submission to the jury of the conflicting evidence
as to whether the confession was voluntary would be beneficial rather than prejudicial to the
defendant, and consequently no ground for reversal. The different expressions made by the
district judge indicated that the testimony on the part of the state to the effect that the
confession was voluntary was deemed by him sufficient to allow the confession to go to the
jury, whether the preliminary question regarding its admissibility was passed upon by
him, or the jury were left to determine whether they believed it was voluntary, and reject
the confession if they believed it was not voluntary.
deemed by him sufficient to allow the confession to go to the jury, whether the preliminary
question regarding its admissibility was passed upon by him, or the jury were left to
determine whether they believed it was voluntary, and reject the confession if they believed it
was not voluntary.
It appears that the judge concluded that by the weight of the evidence the confession was
shown to be voluntary, but that he was ready to submit the conflicting testimony in this regard
to the jury, which would be more favorable to the defendant. We are unable to see that this
was prejudicial error, even under the rule that the judge is first to determine whether the
confession is voluntary, or that he could not hear the evidence without excluding the jury,
providing the testimony were given so it would not be detrimental to the defendant if the
confession were not finally admitted. The circumstances proven were apparently conclusive
of defendant's guilt regardless of the confession, so that the omission or any mistake in its
admission probably would not have changed the verdict.
At common law, in many of the states and in some of our district courts, it has long been
the rule, as stated in section 219 of Greenleaf on Evidence, that if seasonable objection has
been made the court must be satisfied that the confession is voluntary before allowing it to be
submitted to the jury. On the trial, the learned district judge recognized this rule, but said that
some of the later and better reasoned cases have a tendency to submit to the jury all the
evidence as to whether the confession was voluntary. There is a lack of harmony among the
decisions which have not followed the original rule.
The English cases down to the year 1852 have been reviewed in Reg. v. Baldry, 12 Eng.
Law & Eq. 590. Lord Campbell stated the rule to be that if there is any worldly advantage
held out, or any harm threatened, the confession must be excluded. Parke, B., said: By the
law of England, in order to render a confession admissible in evidence, it must be perfectly
voluntary; and there is no doubt that any inducement, in the nature of a promise or threat, held
out by a person in authority, vitiates a confession. The decisions to that effect have gone a
long way. Whether it would not have been better to have left the whole to go to the jury, it
is now too late to inquire; but I think there has been too much tenderness towards
prisoners in this matter.
not have been better to have left the whole to go to the jury, it is now too late to inquire; but I
think there has been too much tenderness towards prisoners in this matter. I confess that I
cannot look at the decisions without some shame, when I consider what objections have
prevailed to prevent the reception of confessions in evidence; and I agree with the observation
that the rule has been extended quite too far, and that justice and common sense have too
frequently been sacrificed at the shrine of mercy.
In the note to section 219 of Greenleaf on Evidence (15th ed.) it is stated: In
Massachusetts the rule has varied. In the earlier cases it was considered a question for the
judge. (Chabbock's Case, 1 Mass. 144; Comm. v. Taylor, 5 Cush. 606; Comm. v. Morey, 1
Gray, 461.) Then, in several cases where the question of inducement was a complicated one,
the whole evidence was submitted to the jury, with instructions that, if they were satisfied that
there were such inducements, they should disregard and reject the confession. (Comm. v.
Piper, 120 Mass. 185; Comm. v. Smith, 119 Mass. 305; Comm. v. Cullen, 111 Mass. 436;
Comm. v. Cuffee, 108 Mass. 285.) But in a later case (Comm. v. Culver, 126 Mass. 464) the
court has brought the practice back to the original rule, leaving the question of the
admissibility of the evidence entirely to the court, and its weight to the jury. In a still later
case, the court in Massachusetts say: When a confession is offered in evidence, the question
whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that
it is voluntary, it is admissible; otherwise, it should be excluded. When there is conflicting
testimony, the humane practice in this commonwealth is for the judge, if he decides that it is
admissible, to instruct the jury that they may consider all the evidence, and that they should
exclude the confession if, upon the whole evidence in the case, they are satisfied that it was
not the voluntary act of the defendant.' (Comm. v. Preece, 140 Mass. 276, 5 N. E. 494. And it
seems that there is a tendency at the present time in some states to leave the question whether
the confession was voluntary or not to the jury.
Prof. Wigmore at section 861 of his Work on Evidence states that five distinguishable
attitudes are found and represented in the rulings relating to the admissibility of
confessions, and that "in comparatively recent times the heresy of leaving the question to
the jury has made rapid strides," and that the original English rule that the prosecution
must show that the confession was voluntary is accepted in most of the courts.
states that five distinguishable attitudes are found and represented in the rulings relating to
the admissibility of confessions, and that in comparatively recent times the heresy of leaving
the question to the jury has made rapid strides, and that the original English rule that the
prosecution must show that the confession was voluntary is accepted in most of the courts. At
page 993 he says: In determining the admissibility, (1) the judge must hear the defendant's
evidence (including evidence from cross-examination of the prosecution's witnesses) upon
the issue of voluntariness; although under he heterodox rule this could be logically dispensed
with; (2) the jury, during the hearing of this evidence, may be withdrawn, as is proper during
all proof and arguments upon questions of admissibility * * *; (3) but, when a confession is
ruled to be admissible, the same evidence and all other circumstances affecting the weight of
the confession may be introduced for the jury's ultimate consideration.
Among the cases holding that previous to admitting the alleged confession in evidence
there should be a preliminary inquiry as to its voluntariness, in which the burden is on the
prosecution to show that it was freely made, are: State v. Grover, 96 Me. 363, 52 Atl. 757
(1902); State v. Young, 52 La. Ann. 478, 27 South. 50 (1899); People v. Miller, 135 Cal. 69,
67 Pac. 12 (1901); Green v. State, 96 Md. 384, 54 Atl. 104 (1903); and cases cited in 12 Am.
Cr. Rep. at page 284.
In Comm. v. Antaya, 184 Mass. 326, 68 N. E. 331 (1903), it was held that the question of
the voluntariness of a confession is to be decided primarily by the presiding judge. If he is
satisfied that it is voluntary, it is to be admitted, but otherwise, rejected; but if admitted, the
jury may disregard it if they are not satisfied that it is voluntary.
In Pennsylvania it has been held that the court need not hear the evidence of the defense
before admitting the confession, but such evidence may afterwards be given, and then it
becomes a question for the jury to determine as to whether or not the confession was
voluntary. (Comm. v. Epps, 193 Pa. 512, 44 Atl. 570.)
In State v. Cross, 72 Conn. 722, 46 Atl. 148, the court stated: The trial court, after
hearing all the testimony as to the circumstances attending the declaration or admissions of
the accused, finds that they were made freely and voluntarily, and that the defendant was
not induced to make them by any threats, promises, or inducements made to him by any
one.
circumstances attending the declaration or admissions of the accused, finds that they were
made freely and voluntarily, and that the defendant was not induced to make them by any
threats, promises, or inducements made to him by any one. This finding is upon a preliminary
question of fact. The conclusion is drawn from the conflicting testimony, and may be correct
or incorrect, according to the credit given to the witnesses. We cannot review such finding.
Whether, under these circumstances, the declarations should have been excluded on the
ground that they were of little weight, or liable to be untrue, or that their admission would be,
on the whole, unfair to the prisoner, was a matter of discretion with the trial court, and its
exercise is no ground of error unless this court can see plainly that the discretion was abused.
* * * The trial court, under our practice, may properly exclude an admission of this kind if
deemed of little weight, although our policy has more recently drifted towards a larger trust,
in the jury's discrimination in respect to the weight of relevant testimony, as in the case of
parties in interest.
In Kirk v. Territory, 10 Okl. 46, 60 Pac. 797, it was said in the opinion: It is next
contended that the court erred in permitting the testimony to determine the competency of
confessions to be given in the presence of the jury. It is a well-settled rule of law that the
question of the competency of confessions is one for the court, and should be determined
preliminarily to allowing the confession to go to the jury. The authorities are not harmonious
upon the practice. We think the correct practice and the one sustained by sound reason and
weight of authority is that when testimony is offered to prove a confession, and objection is
made to the competency of the evidence, the court should withdraw the jury, and hear all the
evidence offered on the objection, both for and against the competency, and decide the
question in the absence of the jury. If the court holds the confessions are not proper to be
shown, then no prejudice can result from such action. On the other hand, if the court holds the
confession admissible, then the jury should be recalled, and, if the defendant desires, all the
evidence relating to the competency of such confessions, the circumstances under which
they were given, the condition of mind of the defendant, and all other facts affecting or
tending to affect the weight or credit of such confessions, should be permitted to go to
the jury.
they were given, the condition of mind of the defendant, and all other facts affecting or
tending to affect the weight or credit of such confessions, should be permitted to go to the
jury. In the case at bar no prejudicial error was committed by the trial court in hearing the
evidence on the competency of the confessions in the presence of the jury. When the court
decided that the confessions were competent to be shown, any error of hearing the matter
before the jury was cured. The jury had a right to this testimony, not for the purpose of
passing on the competency of the confessions, but for the purpose of determining what weight
or credit they would attach to them. Had the court, after hearing the testimony on the
competency of the confessions, decided that they were not proper to be shown, then error
might have been predicated upon the improper evidence before the jury.
It is only fair to an accused person on trial not to allow all confessions, including those
which apparently have been extorted by promises, threats, or coercion, to be thrown broadcast
before the jury. To us it seems better, if timely objection is made, to first hear testimony
regarding the voluntariness of the confession and not to submit the confession to the jury,
unless there is evidence that it is voluntary which the court believes warrants its submission
to the jury; and then if the confession goes to the jury, it would not be improper, and certainly
not prejudicial to the defendant, for the trial judge, if he thinks best, to submit the evidence to
the jury, regarding the voluntariness of the confession, if he believes that this evidence raises
any considerable doubt as to whether the confession was voluntary. The defendant should be
allowed to introduce any evidence he offers tending to rebut the claim or testimony of the
state that the confession is voluntary before the court determines whether it is to be submitted
to the jury. (State v. Hill, 65 N. J. Law, 626, 47 Atl. 814; Jackson v. State, 83 Ala. 76, 3
South. 847; Redd v. State, 69 Ala. 255; Rufer v. State, 25 Ohio St. 464.)
Ordinarily, it would seem to be unobjectionable and more convenient for the court to hear
the testimony regarding the voluntariness of the confession without excluding the jury, if the
questions can be put and answered in such a way as not to have them imply that a
confession has been made, as by asking whether any threats or offers or promises were
made to the defendant to induce him to make the statements regarding the offense, but if
it cannot be easily shown that the conversation sought to be proved was voluntary
without leading the jury to surmise that a confession had been made, it would be better
to excuse the jury until the court could hear the evidence and determine whether the
confession ought to be submitted to them, and then if the court believed the confession
was voluntary, but that the evidence relating to its voluntariness was so conflicting as to
leave a serious doubt as to whether the confession was voluntary, it would not be
improper for the court in its discretion to allow all this evidence to go before the jury for
the benefit of the defendant, and for the jury to consider in determining the weight to be
given to the confession.
to have them imply that a confession has been made, as by asking whether any threats or
offers or promises were made to the defendant to induce him to make the statements
regarding the offense, but if it cannot be easily shown that the conversation sought to be
proved was voluntary without leading the jury to surmise that a confession had been made, it
would be better to excuse the jury until the court could hear the evidence and determine
whether the confession ought to be submitted to them, and then if the court believed the
confession was voluntary, but that the evidence relating to its voluntariness was so conflicting
as to leave a serious doubt as to whether the confession was voluntary, it would not be
improper for the court in its discretion to allow all this evidence to go before the jury for the
benefit of the defendant, and for the jury to consider in determining the weight to be given to
the confession.
The specification that the court erred in proceeding with the trial without a plea being
entered is not supported by the record. After reciting that the motion to quash the indictment
and demurrer had been overruled, the minutes of the court state: Thereupon the defendant
was asked if he pleaded guilty or not guilty to the offense charged in the indictment. Upon the
advice of counsel defendant remained mute. Whereupon the court ordered the clerk to enter
the plea of not guilty to the offense charged in the indictment. At the close of the reading of
the indictment to the jury at the beginning of the trial, the clerk said: At the time of the
arraignment, the defendant stood mute, and the court had the order entered as not guilty to the
offense charged in the indictment. Thereupon the court stated: So the jury will understand, I
will explain the matter to them. The defendant at the time he was arraigned to interpose his
plea in this particular case stood mute and would not enter a plea, and under the law the court
thereupon ordered the clerk to enter a plea of not guilty in his behalf.
Other objections are made in relation to which the facts are neither shown nor negatived in
the statement, and as to them the presumptions are in favor of the action of the court, under
the rule through many cases in this state from State v. Kelly, 1 Nev. 226
Kelly, 1 Nev. 226, down. In some instances no grounds for the objection and exception were
stated to the court as required. (McGurn v. McInnis, 24 Nev. 370, and other cases.)
We find no error prejudicial to the defendant. The judgment is affirmed, and the district
court is directed to make and enter an order requiring the warden of the state prison to
execute the judgment carrying the death penalty at a specified time as required by law.
____________
31 Nev. 377, 377 (1909) In Re Bailey's Estate
[No. 1811]
In Re BAILEY'S ESTATE
SAN PEDRO, LOS ANGELES AND SALT LAKE RAILROAD COMPANY, Appellant, v.
LUCILLE BAILEY, Respondent.
1. Executors and AdministratorsDecisions ReviewableAppointment of AdministratorRevocation.
Under Comp. Laws, 3041 (Stats. 1897, p. 158, c. 106, sec. 255), providing that any person aggrieved by
a decision of the district court appointing an executor or administrator or revoking letters may appeal to the
supreme court, an appeal will lie from an order refusing to revoke letters.
2. StatutesConstructionExpressio Unius.
In the construction of statutes, where certain things are enumerated, such as disqualifications, then all
other things are excluded.
3. Executors and AdministratorsRight to AppointmentNonresident.
Comp. Laws, 2823 (Stats. 1897, p. 124, c. 106, sec. 38), provides who shall be appointed as
administrator, and the order of preference. Section 2826 (section 41) enumerates those persons who are
disqualified from receiving letters. Neither of said sections disqualify nonresidents. Section 2834 (section
49) expressly implies that nonresidents may, under certain circumstances, become entitled to letters. Held
that, under the common-law rule allowing a nonresident to act as administrator, and the statute adopting the
common law where it is not repugnant or in conflict with the Constitution and laws of the state, letters of
administration may be granted to a nonresident.
4. Executors and AdministratorsAppointmentBondNecessity.
Under Comp. Laws, 2840 (Stats. 1897, p. 126, c. 106, sec. 55) providing that persons appointed as
administrators shall give bond, unless the will provides otherwise, an order issuing letters on the estate of
an intestate was void, where no bond was required or given.
5. Executors and AdministratorsAppointmentBondNecessity.
That the estate of a deceased was insignificant in value, the principal asset being a claim alleged to be due
for the wrongful death of deceased, was not ground for exempting an administrator from giving bond.
6. Executors and AdministratorsAppointmentVenue.
Under the act of March 23, 1897 (Stats. 1897, p. 119, c. 106; Comp. Laws, 2788), limiting power to issue
letters of administration to the district court of the county in which deceased resided at the time of his
death, and providing that the estate of a nonresident decedent may be settled by the court in any county
wherein such estate may be, the appointment as an administrator of a nonresident by the district court of a
county other than that in which decedent died or left property was unauthorized.
Action by the San Pedro, Los Angeles and Salt Lake Railroad against Lucille Bailey to
revoke letters of administration on the estate of Claude Bailey, deceased. From an order
refusing to revoke said letters, plaintiff appeals. Reversed.
Cheney, Massey & Price, and F. R. McNamee, for Appellant.
Summerfield & Curler, for Respondent.
Claude Bailey, deceased, while in the employ of the appellant, was killed by the explosion
of an engine in Lincoln County, Nevada, dying on the 12th day of August, 1907, near Arden
spur track, in Lincoln County, Nevada. At the time of his death in Lincoln County, Nevada,
there was found in the possession and on the person of said Claude Bailey about $1.90, a gold
ring, and an open-face gold watch, and it is not shown that said Claude Bailey left any other
property in the State of Nevada, or any rights save a right of action against appellant for
damages for the alleged wrongful death of the deceased, due to alleged neglect of appellant.
At the time of his death the said Claude Bailey was a resident and citizen of the State of
California. Lucille Bailey, the respondent, is the widow of said deceased, and also a resident
of California. On the 7th day of April, 1908, respondent filed her petition in the District Court
of Washoe County, Nevada, praying for letters of administration upon the estate of said
Claude Bailey without bond, upon her taking her oath of office therein; said petition being
subscribed and sworn to before a notary public in San Bernardino County, California.
office therein; said petition being subscribed and sworn to before a notary public in San
Bernardino County, California. On the 18th day of April, 1908, her petition was heard, and
the court directed by order that letters of administration issue to respondent upon her taking
oath of office.
On June 1, 1908, respondent attempted to qualify as administratrix by taking the oath
required, and thereupon, without bond, letters of administration were issued, and no bond has
ever been given by Lucille Bailey as administratrix of the said estate. On the same day and
date, June 1, 1908, Lucille Bailey, as administratrix of said estate of deceased, filed her
complaint in said district court, asking for $84,000 damages against the appellant herein, as
damages for the alleged wrongful death of Claude Bailey, and in this complaint she alleges
that she is a resident and citizen of San Bernardino County, State of California. It further
appears that said Lucille Bailey, from the date she qualified as administratrix and filed said
complaint against the appellant, has not resided in, nor become a resident of, the State of
Nevada. On the 15th day of October, 1908, the appellant, which is engaged in the operation
of a railroad in California and Nevada, which said railroad passes only through Lincoln
County in Nevada, and does business only in Lincoln County in Nevada, and has its process
and other agents in Lincoln County, Nevada, filed a petition in said Washoe County District
Court, duly praying for the revocation of the letters of administration formerly issued to
respondent, Lucille Bailey. This appeal is taken from an order of the said district court,
entered on the 26th day of October, 1908, refusing to revoke said letters of administration
theretofore issued by said court to respondent.
Appellant assigns seven alleged errors of the lower court wherein it erred in refusing to
revoke the letters of administration issued to Lucille Bailey; but, before considering these
errors, we will pass upon the objection of counsel for respondent, urging that no appeal lies
from an order refusing to revoke letters of administration. In this contention of respondent we
disagree.
Section 3041 of the Compiled Laws of Nevada (Stats. 1897, p. 158, c. 106, sec. 255)
provides: Sec. 255. Any person interested in, affected by, and aggrieved at the decision
and decree of the district court appointing an executor or administrator, revoking letters,
allowing a final account, or disallowing it, decreeing a distribution or partition, order or
decree, confirming or setting aside a report of commissioners, admitting or refusing a will
for probate, and any other decision wherein the amount in controversy equals or exceeds,
exclusive of costs, one thousand dollars, may appeal to the supreme court of the state, to
be governed in all respects as an appeal from a final decision and judgment in action at
law.' From a mere reading of this section, and the circumstances disclosed by the record
in this case, it is clearly manifest to us that an appeal will lie from the order refusing to
revoke letters of administration.
interested in, affected by, and aggrieved at the decision and decree of the district court
appointing an executor or administrator, revoking letters, allowing a final account, or
disallowing it, decreeing a distribution or partition, order or decree, confirming or setting
aside a report of commissioners, admitting or refusing a will for probate, and any other
decision wherein the amount in controversy equals or exceeds, exclusive of costs, one
thousand dollars, may appeal to the supreme court of the state, to be governed in all respects
as an appeal from a final decision and judgment in action at law.' From a mere reading of this
section, and the circumstances disclosed by the record in this case, it is clearly manifest to us
that an appeal will lie from the order refusing to revoke letters of administration.
Appellant maintains that, upon the record showing that respondent was at the time of her
appointment as administratrix a resident and citizen of the State of California, and ever since
has been a resident and citizen of the State of California, and never was a resident or citizen
of the State of Nevada, the order appointing her administratrix is void, and the court erred,
when these facts were brought properly to its attention, in refusing to revoke said letters of
administration. There is no express provision in the laws of the State of Nevada prohibiting
the court from appointing a nonresident as administratrix. Section 2823 of our Compiled
Laws (Stats. 1897, p. 124, c. 106, sec. 38), which treats of those entitled to letters of
administration on an estate of a person dying intestate, provides: Sec. 38. Administration of
the estate of a person dying intestate shall be granted to some one or more of the persons
hereinafter mentioned, and they shall be respectively entitled in the following order:
FirstThe surviving husband or wife, or such person as he or she may request to have
appointed. SecondThe children. ThirdThe father or mother. FourthThe brother.
FifthThe sister. SixthThe grandchildren. SeventhAny other of the kindred entitled to
share in the distribution of the estate. EighthThe creditors. NinthThe public
administrator. TenthAny of the kindred, not above enumerated, within the fourth degree of
consanguinity.
degree of consanguinity. EleventhAny person or persons legally competent.
There is nothing whatever in this section to indicate that the party applying for letters of
administration shall be a resident. Section 2826 of our Compiled Laws (Stats. 1897, p. 124, c.
106, sec. 41), which enumerates those persons who are disqualified from receiving letters of
administration, provides: Sec. 41. No person shall be entitled to letters of administration
who shall be: First, under the age of majority; or, second, who shall have been convicted of
an infamous crime; or, third, who upon proof shall be adjudged by the court incompetent to
execute the duties of the trust, by reason of drunkenness, improvidence or want of integrity or
understanding. In this section we find no intimation from our legislature disqualifying a
person from receiving letters of administration because of the fact that he may be a
nonresident. The principle is well established in the construction of statutes that, where
certain things are enumerated as disqualifications, then all other things are excluded; this
principle being expressed in the maxim, expressio unius est exclusio alterius. (26 Am. &
Eng. Ency. Law, 2d ed. p. 604, and note 6; V. & T. R. R. v. Elliott, 5 Nev. 358; Dewhurst v.
Fielden, 7 M. & G. 182, 49 E. C. L. 182; Rex v. Cunningham, 5 East, 478; Johnson v. S. P.
Co., 117 Fed. 462, 54 C. C. A. 508.)
Section 2834 of the Compiled Laws of Nevada (Stats. 1897, p. 125, c. 106, sec. 49), which
further treats of letters of administration, strongly intimates, in fact expressly implies, that a
nonresident can under certain circumstances become entitled to letters of administration. Said
section provides: Sec. 49. Administration may be granted to one or more competent persons,
although not entitled to the same, at the request of the person entitled to be joined with such
persons. The request shall be in writing and filed in the court. When the person entitled is a
nonresident of the state his request, acknowledged before a notary public or other officer
having a seal, and authorized by the laws of the state or territory to take acknowledgments,
may be received as prima facie evidence of the identity of the party, upon which the letters
shall be ordered issued as requested, if the person is competent."
shall be ordered issued as requested, if the person is competent.
At common law nonresidence was not a disqualification to one applying for letters of
administration. (1 Williams on Ex. 7th Am. ed. 537.)
The following authorities support the proposition that, in the absence of any direct
prohibition denying a nonresident the right to take out letters of administration, in proper
cases letters will issue to a citizen of another state: Ex Parte Barker, 2 Leigh (Va.) 719; Ehlen
v. Ehlen, 64 Md. 360, 1 Atl. 880; Jones v. Jones, 12 Rich. (S. C.) 623; Robinson v. Oceanic
Co., 112 N. Y. 315, 19 N. E. 625, 2 L. R. A. 636; Libbey v. Mason, 112 N. Y. 525, 20
N. E. 355, 2 L. R. A. 795; In Re Selling (Sur.) 2 N. Y. Supp. 634; Gale v. Corey, 112 Ind. 39,
13 N. E. 108, 14 N. E. 362; Penny's Succession, 10 La. Ann. 290; McLaurin v. Thompson,
Dud. (S.C.) 335; Chicago R. Co. v. Gould, 64 Iowa, 343, 20 N. W. 464; 18 Cyc. 95, and
authorities cited.
In the absence of any direct prohibition in the laws of Nevada that a nonresident may not
take out letters of administration in another state, in view of the statutes of our state above
quoted, which in express terms fail to disqualify a nonresident applicant for letters of
administration, and in view of the intimation of the legislature that nonresidents in certain
cases may be entitled to letters of administration, the common-law rule allowing a
nonresident to act as administrator, and the act of our legislature adopting the common law,
where it is not repugnant or in conflict with the Constitution and laws of our state, to be the
rule of decision of all courts of this state, and the authorities above cited in support of the
proposition that, in the absence of any direct prohibition of a nonresident acting as
administrator, letters of administration may issue to him, we are of the opinion that
appellant's contention in this respect is not well taken, and that letters of administration may
issue in this state in proper cases to nonresidents.
Appellant contends that the district court of Washoe County had no authority whatever to
issue letters of administration without bond, as was done in this proceeding. Section 2840 of
our Compiled Laws (Stats. 1897, p. 126, c. 106, sec.
sec. 55), provides: Sec. 55. Every person to whom letters testamentary (unless the will
otherwise provides) or of administration shall have been directed to issue shall, before
receiving the letters, execute a bond to the people of the State of Nevada, with two or more
sureties to be approved by the district judge. * * * This provision of our statute is
mandatory, and any order which issues letters of administration without bond, save and
except in the case where the will of a deceased expressly provides that no bond shall be
given, we believe to be void. In the present case the record discloses an application praying
for letters without bond, and the order appointing the respondent issues letters to her without
bond, and is therefore void. In the present case the fact and suggestion of counsel for
respondent that the estate consisted of only about $1.90, a gold ring, and a gold watch, as
being insignificant in value, and the further suggestion of respondent's counsel that the value
of the claim alleged to be due for the alleged wrongful death of the said Claude Bailey, being
only of a problematical value, are no sufficient reasons for the avoidance of the mandatory
effect of this provision. The order, therefore, issuing letters of administration to the
respondent without bond was void, and upon this ground the letters of administration should
have been revoked. (Comp. Laws, 2840, 2842, 2843, 2844, and 2846; Healy v. Lassen
County, 127 Cal. 659, 60 Pac. 428; Harris v. Chipman, 9 Utah, 101, 33 Pac. 242; Harris v.
Coates, 8 Idaho, 491, 69 Pac. 475.)
Counsel for the appellant further assign that the district court of Washoe County had no
jurisdiction to name the administrator, for the reason that whatever of the estate deceased left
in this state was situated in Lincoln County. The district courts of this state are by our
Constitution vested with jurisdiction to to settle all cases relating to the estate of deceased
persons, and the legislature, by an act approved March 23, 1907, has limited the powers to
issue letters of administration to the district court of the county in which the deceased was a
resident at the time of his death, and that the estate of a nonresident decedent may be settled
by the court of any county wherein any part of such estate may be. (Section 2786, Comp
Laws; Stats. 1897, p. 119, c. 106.) There is no showing in the record, nor is it maintained
that Claude Bailey left any estate whatever in Washoe County, Nevada, or any other
county in Nevada, except Lincoln County.
no showing in the record, nor is it maintained that Claude Bailey left any estate whatever in
Washoe County, Nevada, or any other county in Nevada, except Lincoln County. It is
undisputed that Claude Bailey was injured and died in Lincoln County, Nevada, and that at
the time of his death there was found on his person about $1.90, a gold ring, and a gold
watch; and, no satisfactory showing appearing to the contrary, this personalty is presumed
still to be in Lincoln County.
Our statute provides that the estate of a nonresident decedent may be settled by the district
court of the county wherein any part of said estate may be. In that a part of Bailey's estate is
shown to have been in Lincoln County at the time of his death, and the presumption is that it
is still there, and as no part of his estate was left in Washoe County, or in any other county in
this state, the lower court upon the showing made was without jurisdiction to have entered the
order appointing the administratrix, and, upon the hearing of the petition of respondent for a
revocation of the letters theretofore issued to appellant showing these facts, should have
revoked the said letters of administration. (Bliler v. Boswell, 9 Wyo. 57, 59 Pac. 798, 61 Pac.
867; City of Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106; Pinney v. McGregory, 102
Mass. 186.)
Being of the opinion that the lower court erred in refusing to revoke the letters of
administration, we deem it unnecessary to pass upon the other errors assigned by appellant.
For the reasons herein given, the order of the lower court refusing to revoke the letters of
administration is reversed, and said court is directed to enter an order revoking said letters.
It is so ordered.
____________
31 Nev. 385, 385 (1909) State v. Weber
[No.1772]
THE STATE OF NEVADA, Respondent, v. HENRY WEBER, Appellant.
1. EmbezzlementPerson.
The president of a corporation is a person, within Comp. Laws, 4804, declaring that any person, agent,
manager, or clerk of a corporation, with whom any money shall be deposited or intrusted, who shall
appropriate it to his own use, shall be guilty of embezzlement.
2. Grand JuryNumber of Jurors.
An indictment, found and returned by at least twelve grand jurors, is valid.
3. EmbezzlementAssets of CorporationsEvidence.
Where defendant, the president of a corporation, was charged with embezzlement in misappropriating the
proceeds of treasury stock sold, it was the duty of the state to prove the legal organization of the
corporation, the amount and character of its capital stock, that the money credited to defendant's bank
account as the proceeds of the stock sold, was applied in whole or in part to his own use, or to that of
another, or that defendant, on demand, had refused to repay the same to the rightful owner.
4. EmbezzlementEvidenceSufficiency.
In a prosecution against the president of a corporation for embezzlement, evidence held insufficient to
sustain conviction.
Appeal from the District Court of the first Judicial District of the State of Nevada,
Henry Weber was convicted of embezzlement, and he appeals. Reversed and remanded.
Thayer & Steele, Bartlett, Thatcher & Gibbons, and Cheney, Massey & Price, for
Appellant:
I. The demurrer to the indictment should have been sustained. To come within the terms of
the statute, the defendant must have been either the agent, manager, or clerk of the
alleged corporation. The indictment described him as president, with nothing more. In the
absence of any further description, we say that the indictment does not bring the defendant
within the terms of the statute, for the reason that the president, as such, is not necessarily or
presumptively either an agent, manager or clerk of the corporation. Generally speaking, it is
thoroughly well settled that the president of a corporation is simply the presiding officer at
the meeting of directors.
31 Nev. 385, 386 (1909) State v. Weber
president of a corporation is simply the presiding officer at the meeting of directors. His
powers and duties are fixed and established by either the articles of incorporation, or by the
by-laws of the company, and sometimes special powers are conferred by resolution of the
trustees or directors. In the absence of such powers so conferred, the president is simply the
presiding officer. He has no inherent power to represent or contract for the corporation. (2
Cook on Corporations.) This indictment was also insufficient in that it did not advise the
defendant in what manner he was connected with, or concerned with, the treasury of the
Doctor Mining Company, or with any of the funds of said company, or of any duty devolving
on him to do with this money, either as directed by Hooper, or by the corporation.
II. The third, fourth, and fifth assignments of error raise the question of variance and
failure of proof. The indictment charges that Weber was intrusted with $10,000, lawful
money of the United States. Upon the trial, in support of this allegation, a personal check of
Mr. Hooper was offered. The question of variance was raised, and, during the discussion, the
state's attorney said: Of course, if it is not followed up by showing that the money was there
to meet the check, and received by the defendant, why this objection would come properly at
the conclusion of the testimony. And, further on, he also said: We offer to connect it and
follow it up by showing that this check was regularly deposited to the credit of Henry Weber,
and that he received the money from the check to his credit. We maintain that the variance
was material and fatal irrespective of such offers of proof, and also that there was an utter
failure to present any testimony which might overcome the variance along the lines suggested
by the state's attorney.
III. As a general proposition the money or property should be described (in embezzlement)
with the same certainty as in an indictment for larceny, and if there has been a change in form
of the property between the time of receipt and the time of embezzlement it should be
described as of the form at the time of the embezzlement. (1 McLain, Crim. Law, sec. 652; 1
Bishop, New Crim. Proc. sec. 486, p. 304; 1 Greenl. Ev. sec.
31 Nev. 385, 387 (1909) State v. Weber
65, p. 103; 1 Whart. Crim. Law, sec. 1044.) Before embezzlement can be established it must
be proven beyond a reasonable doubt that the defendant either applied the money to his own
private use, or refused to deliver the same to the rightful owner upon demand. There is no
showing in the evidence that defendant either applied the money to his own use or refused to
account for the same upon the demand of the Doctor Mining Company. No demand for the
return of the money or that it be deposited in the treasury of the so-called Doctor Mining
Company was shown, nor was any attempt made to prove a demand upon defendant.
IV. The original possession of the check or money by the defendant was lawful. Indeed, if
that be not true, the state's case fails, for the very definition of embezzlement involves the
proposition that the original possession of the thing alleged to have been embezzled by the
accused was lawful. Where there is no proof that the money alleged to have been embezzled
by the accused was misappropriated by him, a demand for the money and a refusal to deliver
the same on account thereof must first be shown before embezzlement can be established. A
reference to the decided cases and elementary principles of law will establish the principle for
which we here contend. The precise question involved in this case came before the Supreme
Court of California in the case of People v. Royce, 39 Pac. 254.
V. The principal error in the instructions to which we wish to call the court's attention is
that they assume as a fact that the Doctor Mining Company is a corporation. In each
instruction, reiterated again and again, the jury is told that the Doctor Mining Company is a
corporation. Every time the Doctor Mining Company is mentioned there immediately follows
the word corporation. Nowhere in these instructions is the jury told that they must find
whether or not such was the fact, but the court takes that fact for granted, and charges the jury
accordingly. In order that these instructions accord with law it was necessary that the word
corporation be followed by some language as this: If you find from the evidence that it
was a corporation. The jury is constantly told that the Doctor Mining Company is a
corporation, not that the jury is to find from the evidence whether or not it was a
corporation.
31 Nev. 385, 388 (1909) State v. Weber
that the jury is to find from the evidence whether or not it was a corporation. Proof as to this
point was essential, and the constant reiteration by the court in its own instructions that the
Doctor Mining Company was a corporation necessarily removed from the jurors' minds all
consideration of this vital point. These instructions told the jury as a fact that the Doctor
Mining Company was a corporation, and therein the lower court invaded the province of the
jury and violated the Constitution of the State of Nevada. Section 12, article VI, of our
Constitution provides as follows: Judges shall not charge juries in respect to matters of fact,
but may state the testimony and declare the law.
R. C. Stoddard, Attorney-General, and A. H. Swallow, District Attorney, for respondent:
I. Particular attention is called to the first two words of the statute (Comp. Laws, 4804)
any person. The statute does not require that the party intrusted with the funds should be an
agent of the party for whose account the same were deposited. Neither does the indictment
allege that the defendant was the agent of the Doctor Mining Company. The allegation that
the money was intrusted to him as the president of the corporation is not an allegation that he
received it as an agent, but is simply a statement of the facts necessary to show that defendant
received the money in a fiduciary capacity for the benefit of another, and not as his own
money. It would have been no different under our statute if the defendant had been the janitor
of the corporation, and had it been so alleged, certainly he still would come within the
description any person.
II. The gist of the offense is not whether the corporation had an existence de jure, or
whether or not the defendant had a legal right to receive the money. It is, Did the defendant
receive the money from the prosecuting witness for the purpose of paying it over to the use
and benefit of a corporation which he represented did exist? Did he afterward appropriate that
money to his own use, or to any other person? Did he use it for the purpose for which it was
intrusted to him? By the Court, Norcross, C. J.:
Appellant was tried and convicted of the crime of embezzlement in the First Judicial
District Court in and for the County of Esmeralda, upon an indictment, the body of which
reads as follows: "The said defendant, Henry Weber, on the 4th day of March, A. D. 1907,
or thereabouts, and before the finding of this indictment, at the County of Esmeralda,
State of Nevada, was then and there the president of the Doctor Mining Company, a
corporation, and as such president of said corporation was then and there intrusted by
Thomas Hooper with $10,000, lawful money of the United States, property of the Doctor
Mining Company, a corporation, for the use and benefit of the said Doctor Mining
Company, a corporation, and to be by him, the said Henry Weber, then and there
deposited in and paid to the treasury of the Doctor Mining Company, a corporation, and
the said Henry Weber did then and there convert and appropriate to his own use the said
sum of $10,000, lawful money of the United States, property of said corporation, and all
thereof, and did then and there fail, and has ever since failed, to deposit or pay the said
sum of $10,000, or any part thereof, in the treasury of the said Doctor Mining Company, a
corporation, all of which is contrary to the form, force, and effect of the statute," etc.
31 Nev. 385, 389 (1909) State v. Weber
Appellant was tried and convicted of the crime of embezzlement in the First Judicial
District Court in and for the County of Esmeralda, upon an indictment, the body of which
reads as follows: The said defendant, Henry Weber, on the 4th day of March, A. D. 1907, or
thereabouts, and before the finding of this indictment, at the County of Esmeralda, State of
Nevada, was then and there the president of the Doctor Mining Company, a corporation, and
as such president of said corporation was then and there intrusted by Thomas Hooper with
$10,000, lawful money of the United States, property of the Doctor Mining Company, a
corporation, for the use and benefit of the said Doctor Mining Company, a corporation, and to
be by him, the said Henry Weber, then and there deposited in and paid to the treasury of the
Doctor Mining Company, a corporation, and the said Henry Weber did then and there convert
and appropriate to his own use the said sum of $10,000, lawful money of the United States,
property of said corporation, and all thereof, and did then and there fail, and has ever since
failed, to deposit or pay the said sum of $10,000, or any part thereof, in the treasury of the
said Doctor Mining Company, a corporation, all of which is contrary to the form, force, and
effect of the statute, etc. From the judgment of conviction, and from an order denying his
motion for a new trial, the defendant, Henry Weber, appeals.
1. It is contended by appellant, first, that the indictment fails to charge a public offense.
The indictment was found under the provisions of section 1 of an act entitled An act to
further define and punish embezzlement (Stats. 1887, p. 81, c. 76; Comp. Laws, 4804),
which reads: Any person, or any agent, manager or clerk of any person, corporation,
association or partnership with whom any money, property or effects shall have been
deposited or intrusted, who shall use or appropriate such money, property or effects or any
part thereof in any manner or for any other purpose than that for which the same was
deposited or intrusted, shall be guilty of embezzlement. It has been urged that, as the
indictment simply describes the defendant as the president of the corporation, he is not
therefore an "agent," "manager," or "clerk" of such corporation within the meaning of the
statute.
31 Nev. 385, 390 (1909) State v. Weber
he is not therefore an agent, manager, or clerk of such corporation within the meaning
of the statute. It may be conceded, as contended, that the receiving and depositing of money
on behalf of a corporation are not within the ordinary duties of the president of such
corporation, nevertheless the president of a corporation is a person; and, if he does receive
and accept money, property or effects of such corporation for and on its behalf, and for the
purpose of depositing the same in the corporation treasury, and converts or appropriates such
money, property, or effects to his own use, he is guilty of embezzlement under the provisions
of the statute. The demurrer was, we think, properly overruled.
2. A motion to quash the indictment was interposed upon the ground that no more than
twelve grand jurors considered and voted upon, or were present when the indictment was
returned into court. It is conceded by counsel for appellant that our statute in question was
adopted from California, and that prior to its adoption the Supreme Court of California had
held that an indictment, found and returned by at least twelve grand jurors, was valid. No
contention is made that we ought now hold to the contrary, doubtless because no reason
therefor suggests itself. (People v. Roberts, 6 Cal. 214; People v. Hunter, 54 Cal. 65.) See,
also, State v. Williams, 31 Nev. 360.
3. The most serious contention upon the part of the appellant is that the evidence does not
justify the verdict, and in this contention we agree. Thomas H. Hooper, upon the part of the
state, testified that about the date mentioned in the indictment the defendant made a
proposition to him to sell to him 100,000 shares of treasury stock of the Doctor Mining
Company at 20 cents a share. Upon the payment of $20,000 for such stock, defendant was to
give him an additional 100,000 shares of bonus stock. That the money to be paid for the
stock was to go into the treasury of the company for development purposes. Hooper further
testified that he subsequently learned who the officers of the company were; that Arthur
Weber was the treasurer of the company; that he made out a check in the treasurer's favor for
$10,000 upon the John S. Cook & Co. Bank of Goldfield for $10,000, delivered the same to
him, and got the treasurer's receipt therefor; that a few days later he made out another
check upon the same bank in favor of the defendant as president, the treasurer not being
around at the time; that he gave the check either to the defendant or to a Mr.
31 Nev. 385, 391 (1909) State v. Weber
ered the same to him, and got the treasurer's receipt therefor; that a few days later he made out
another check upon the same bank in favor of the defendant as president, the treasurer not
being around at the time; that he gave the check either to the defendant or to a Mr. Pattberg, a
clerk in defendant's office; that he had the money in the bank at the time to meet the check;
that the check was subsequently returned to him in the ordinary course of business marked
Paid; that he received 200,000 shares of the stock of the Doctor Mining Company. Eugene
Pattberg testified that he was a bookkeeper in defendant's office, and a director of the Doctor
Mining Company; that on or about the 4th day of March, 1907, he received the check of
Thomas H. Hooper for $10,000, made payable to the defendant as president; that he was
authorized by defendant to indorse all his checks; that he asked the defendant what to do with
this check, and defendant told him to deposit it to defendant's account at John S. Cook &
Co.'s Bank, which he did; that he had access to the books of the Doctor Mining Company
during this period; that the company kept a stock ledger; that in the early part of May he went
to the defendant, and told him that his stock ledger of the Doctor Mining Company, the way
it stood, there was that stock (100,000 shares of Captain Hooper, also some more) charged up
to the treasury account, and yet there was no account opened up at the bank; that defendant
then told him that that stock never should have been treasury; that it was a mistake, and for
me to destroy that ledger, and make out a new ledger showing that stock to be personal; that
he tore up the stock ledger and burned it; that he knew from his familiarity with the books and
concerns of the Doctor Mining Company that there never was any money in its treasury; that
it had no bank account; that the defendant, at the time he told him Captain Hooper was going
to bring in $20,000, remarked about the large treasury the Doctor Company would have for
development purposes; that at the time he deposited the check, he asked defendant if he
should order a check book, and defendant said Yes, and that he ordered it at the bank in the
name of the Doctor Mining Company. D. H. Kehoe testified that he attended a meeting of the
board of directors of the Doctor Mining Company, being employed so to do as the attorney
for Captain Hooper and his people; that at such meeting defendant stated two or three
times there was no money in the treasury, and never had been; that all of the stock he
had sold was personal stock. C. L.
31 Nev. 385, 392 (1909) State v. Weber
of directors of the Doctor Mining Company, being employed so to do as the attorney for
Captain Hooper and his people; that at such meeting defendant stated two or three times there
was no money in the treasury, and never had been; that all of the stock he had sold was
personal stock. C. L. Hogan, the paying teller in the John S. Cook and Co.'s Bank, was called
as a witness upon the part of the state to testify concerning certain entries in the books of the
bank, but, as he was not the party who made the entries, was not permitted to testify
concerning them. He testified that the man who did make the entries was then in the bank.
The foregoing were all of the witnesses called upon the part of the state, and all the testimony
that might be deemed material. The defendant in his own behalf testified that he never told
Captain Hooper that he would give to him 100,000 shares of Doctor Mining Company
treasury stock at 20 cents, and upon the payment of that $20,000 that he would give him
100,000 shares of bonus stock; that he did not at any time ever say anything about destroying,
or directing Eugene Pattberg to destroy, any book of the Doctor Mining Company. These
were the only two points upon which the defendant testified, and he was not cross-examined.
Assuming all of the testimony upon the part of the state to be true, and it fails in essential
particulars to establish the crime of embezzlement. There was no direct testimony offered
showing the legal organization of the Doctor Mining Company, who its officials were, or the
amount and character of its capital stock. There is, however, testimony admitted without
objection, and, nothing appearing to the contrary, from which it may be inferred that the
Doctor Mining Company was a corporation; that the defendant was its president; that Arthur
Weber was its treasurer; and that Eugene Pattberg was a director. There is nothing whatever
in the evidence showing the amount, if any, of the treasury stock owned by the corporation,
unless we should hold that the fact that Pattberg told defendant that his stock ledger showed
that the 100,000 shares of stock of Captain Hooper, also some more, was charged up to the
treasury account, and that there was no account opened up at the bank. Suppose we assume
that we are warranted in inferring that this was the regular stock ledger of the
corporation, and not "his" {defendant's) ledger, still there was no showing whatever that
the corporation owned any treasury stock against which the stock in question could be
charged.
31 Nev. 385, 393 (1909) State v. Weber
we assume that we are warranted in inferring that this was the regular stock ledger of the
corporation, and not his (defendant's) ledger, still there was no showing whatever that the
corporation owned any treasury stock against which the stock in question could be charged. If
the corporation did not own any stock, then defendant could not sell any belonging to the
company, and no proceeds therefrom could belong to the corporation and become the subject
of embezzlement. If a person sold stock claiming it to be treasury stock, when in fact he knew
he was selling his personal stock, he might be guilty of obtaining money under false
pretenses, a matter we are not now called upon to consider, but it is certain he could not be
guilty of embezzlement.
But assuming, for the purposes of this case, that the evidence is sufficient to show that the
Doctor Mining Company was a corporation, owning at the time in question at least 100,000
shares of treasury stock; that the defendant sold such an amount of treasury stock to Captain
Hooper for the agreed price of $20,000, and received from Captain Hooper, on account of
such purchase price, his check made in favor of Henry Weber, Prest. or order, as the check
in question was made out; that the defendant gave the check to his agent, who took the same
to the bank, and the bank debited the account of Captain Hooper with $10,000, and credited
the personal account of the defendant with a like amountstill we have not a case of
embezzlement.
The indictment charges the defendant with having been intrusted by Thomas Hooper with
$10,000, lawful money of the United States, property of the Doctor Mining Company. The
indictment does not charge, and counsel for the state do not claim, that defendant embezzled
the check. The introduction of the check was objected to upon the part of the defendant, and it
was offered and admitted in evidence as preliminary to a showing that the money charged as
having been embezzled was received upon the check. Conceding that the crediting of $10,000
to the defendant's personal account was, in effect, the receipt of that amount by him, and yet
we do not have anything constituting embezzlement. The transaction at the Cook Bank was
nothing more than a matter of bookkeeping.
31 Nev. 385, 394 (1909) State v. Weber
of bookkeeping. The bank owed Captain Hooper at least $10,000 on open account, and when
it received the check, it debited that account and credited defendant's account, thereby
assuming to pay the amount in question to the defendant or order upon demand. There is not a
particle of testimony that the defendant ever received one dollar of money upon this account,
or anything whatever, other than the mere credit to his personal account in the bank. So far as
the evidence is concerned, the account may be still there and intact. If we are entitled to
indulge in any presumption whatever, it is the presumption that the credit still exists. If this
were not the fact, the evidence was at hand for the state to have shown the contrary. The
evidence shows that the Doctor Mining Company never had any treasury account. What was
done with the first $10,000 which was paid upon the check of Captain Hooper to the treasurer
of the company does not appear. So far as we may gather from the evidence, the corporation
authorities never determined where, or in what manner, money belonging to its treasury
should be paid. The mere depositing of the check to defendant's personal account, especially
in the face of a showing that the corporation had not then, and never did have, a regular
depository for its money, and that the treasurer of the company was not present at the time,
certainly, we think, could not be held to constitute a conversion by the defendant of the
money due upon the check. Before the defendant could be legally convicted of
embezzlement, it must be proven, beyond a reasonable doubt, that the money credited to his
personal account upon the check of Captain Hooper belonged to the Doctor Mining
Company, and that the defendant either applied the money so credited to him to his own use,
or to some use or purpose other than that for which the same was intrusted to him, or that he
refused to deliver it to the rightful owner upon demand. There is no showing in the evidence
that the defendant applied the money, or any part of it, to his own use or to any other use
whatever, or ever refused to account for the same upon demand of the Doctor Mining
Company, its treasurer, or any one else, or that any demand whatever was ever made upon
him. See People v. Page, 116 Cal.
31 Nev. 385, 395 (1909) State v. Weber
386, 48 Pac. 326; People v. Royce, 106 Cal. 173, 37 Pac. 630, 39 Pac. 524; People v. Wyman,
102 Cal. 552, 36 Pac. 932; Kribs v. People, 82 Ill. 425; People v. Pollock, 51 Hun, 613, 4 N.
Y. Supp. 297; Robinson v. State, 109 Ga. 564, 35 S. E. 57, 77 Am. St. Rep. 392; Fitzgerald v.
State, 50 N. J. Law, 475, 14 Atl. 746; State v. Reynolds, 65 N. J. Law, 424, 47 Atl. 644.
The record contains a number of other assignments of error, but the view we have taken
upon the insufficiency of the evidence makes it unnecessary to consider them.
The judgment is reversed, and the cause remanded for a new trial.
____________
31 Nev. 395, 395 (1909) Golden v. Murphy
[No. 1780]
FRANK GOLDEN, Respondent, v. J. C. MURPHY, W. BYERS, THE ROYAL MINING
COMPANY (a Corporation), and ALFRED CHARTZ, Appellants.
1. Mines and MineralsClaimsRelocation.
Where plaintiff and his grantor asserted rights to a mining claim as relocators, on the theory that the claim
had been forfeited for failure to perform the required assessment work, they recognized as relocators the
prior location, which became forfeited by the relocation.
2. Mines and MineralsClaimsAdverse Possession.
A possessor's right to ground covered by a mining claim may be supported by adverse possession alone,
whether the land was subject to location as a mining claim.
3. Mines and MineralsRights AcquiredApexExtralateral Rights.
Adverse possession of a mining claim would give the possessor all ledges or claims apexing within the
claim, and the right to follow them within his side lines extended vertically downward.
4. Mines and MineralsLocationTown-Site Reservation.
A valid and subsisting mining claim on land covered by a town-site patent at the time the patent was
issued does not pass thereunder, nor is the title or right of possession affected thereby, under Rev. St. U. S.,
sec. 2392 (U. S. Comp. St. 1901, p. 1459), declaring that no title shall be acquired under the foregoing
provisions of the chapter to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim, or
possession held under existing laws.
5. Mines and MineralsMining ClaimValidity.
A valid mining claim can only be based on a discovery within the limits of a claim, and the existence of
minerals in such quantities as to render the land more valuable for mining than for any other purpose, or to
justify prudent men in spending their time and money in its exploration and development.
6. CorporationsForeign CorporationsAppearanceEffect of Service.
A foreign corporation, served by delivering a copy to the secretary of state, having appeared and
answered, could not reserve a question of jurisdiction based on the alleged invalidity of such service.
7. Appeal and ErrorMotion for New TrialReviewAffidavits.
Affidavits not filed until after the denial of a motion for a new trial for misconduct of parties could not be
considered on appeal in reviewing the court's alleged error in denying the motion.
8. New TrialMisconduct of PartyFailure to Object.
Where alleged misconduct of plaintiff's guide in conducting the jury to the mine in controversy for a view
was immaterial if defendants' views of the law were sustained, and would probably have been remedied by
an instruction by the court if promptly brought to its attention immediately after the jury returned, but was
not called to the court's attention until by defendants' motion for a new trial, the court's refusal to grant the
motion on that ground, was not error.
9. Mines and MineralsMining ClaimsExtralateral Rights.
The rule that extralateral rights cannot exist through a mineralized hanging or foot-wall formation which
is sufficiently mineralized to sustain a mining location does not apply where a vein containing valuable ore
has well-defined walls, which are of themselves but a part of the mineralized zone which contains ore and
veins of quartz sufficiently valuable to support a mining location; such veins being regarded as separate
and distinct from the mineralized zone.
10. JudgmentApplicability to Verdict.
Where, in an action to establish plaintiff's rights in a mining claim, and to recover for the extraction of
ore, the evidence showed that only two of the defendants were guilty of such wrongful extraction, the court
properly rendered judgment for damages against them only, though the verdict assessed damages against
all the defendants.
Appeal from the District Court of the First Judicial District of the State of Nevada, Lyon
County; John S. Orr, Judge.
Action by Frank Golden against J. C. Murphy and others. From a judgment for plaintiff,
defendants appeal. Affirmed. Petition for rehearing. Denied.
Alfred Chartz, for Appellants:
I. The lower court never obtained jurisdiction over the person of the Royal Mining
Company. The service of summons upon the Royal Mining Company was a substituted
service, made upon the secretary of state, and no personal service was made. (Harkness v.
Hyde, 98 U. S. 476.) This defendant did not waive its rights by its special appearance. (Comp.
Laws, 3594; Cal. Code Civ. Pro. 1014; Powers v. Braley, 75 Cal. 237.) II.
II. The verdict and judgment and decree are not supported by any evidence and are
contrary thereto, and contrary to each other. The verdict is for $500 damages against all the
defendants, whilst the judgment and decree awards damages against Murphy and Byers only.
III. The testimony of the miners introduced in evidence on the part of the defendants
shows that the formation is very encouraging to coax the miner to extend his time and money
in such formation. But defendants on this appeal are satisfied with the reluctant admission of
Mr. Boyle, according to whose testimony the yellow tunnel starts in vein formation, and
continues in vein formation down to the stopes and to the ore in dispute, all within the
patented ground, and under the decision in Book v. Justice Mining Company and the Eureka
case, and the instructions of the court, no extralateral rights can exist against such formation.
Veins through mineralized zones have no extralateral rights. The Comstock is a mimeralized
zone, and adjudicated by this court to be one vein. The statutes of the United States permits
the location of a vein, ledge, lode or mineral deposit, and make no distinction between them,
or any of them. It makes no distinction between the rights of a locator to a seamlet, veinlet,
ledge, lode vein or mineral deposit, or whether it is rich or poor, thick or thin, or how it got
there.
IV. Defendants respectfully submit that under the testimony introduced by plaintiff and by
his witnesses and by defendants that the formation within which the Canyon and the Table
Mountain claims are situated is one big mineralized zone, wider than both locations, and
extends both west and east and north and south of them. Within this formation there are
intrusions of what the miners call blue porphyry, and the scientists and geologists who
testified gave it no other name. But the evidence introduced on the part of plaintiff shows that
the entire formation is a big mineralized zone, in any part of which the miner finds sufficient
encouragement to expend his time and money to explore the same in trying to find pay ore,
and within which pay ore is generally found at the blue porphyry intrusions, and the testimony
shows without denial that all ore shoots and pay bodies in the dispute at bar were found
hugging the blue porphyry intrusions, and all within the patent.
out denial that all ore shoots and pay bodies in the dispute at bar were found hugging the blue
porphyry intrusions, and all within the patent.
V. It was incumbent upon plaintiff to show the locators of any claim in 1860 acquired title
by location and performing all of the acts and things required to be performed according to
the usages, laws and customs of the district embracing the claim, and that the mere
introduction of a notice of location made in 1860 in evidence to prove that the same was a
valid subsisting claim in 1873 when the patent to Silver City town site issued, is insufficient,
because it is absurd to believe or to assume to believe that Silver City District had no
customs, usages or laws requiring the performance of labor. It therefore became incumbent
upon plaintiff not only to show a location, and that said location covered the present Canyon
mining ground, but also to show that it continued as a located mining claim up to the date of
the issuance of the said townsite patent, and that it was at said last-mentioned date known to
be valuable for the mineral contained therein.
VI. In the case at bar it is clearly shown that nothing of value has ever been discovered
within the Canyon ground, and that all valuable discoveries have been made since the
location of the Canyon, and within the patented lines. Even conceding for the purpose of the
argument only (a thing which we deny to be a fact) that the Richmond Ledge Company was
located in 1860, and covered the ground in dispute, and that it was kept alive down to the date
of the issuance of the town-site patent, yet, in order to except mines or mineral lands from the
operation of a town-site patent, it is not sufficient that the lands do in fact contain minerals, or
even valuable minerals, when the town-site patent takes effect; but they must at that time be
known to contain minerals of such extent and value as to justify expenditure for the purpose
of extracting them. (Dower v. Richards, 151 U. S. 663; Merrill v. Dixon, 15 Nev. 401;
Lindley on Mines, sec. 623.)
James B. Jones, for Respondent:
I. The evidence shows, beyond a reasonable doubt, that respondent's ledge, in question,
enters the Canyon claim near the southeast corner and courses through that claim in a
northerly direction, and passes out near the center of the north end-line.
the southeast corner and courses through that claim in a northerly direction, and passes out
near the center of the north end-line. The evidence shows as convincingly that this ledge
continues on its dip down to the ore bodies in question. There can be no possible doubt of this
from the evidence in this case. Then there can be no possible doubt about this ledge being
identified and traced from its apex to its lowest workings, and to all the workings thereon. We
have, then, satisfied the law on this point. From the evidence, this ledge on the surface of the
Canyon claim is well defined, with a strong outcrop, and well within the limits of the
boundaries of said claim, from the place of entering the same, near the southeast corner, until
it passes out near the center of the north end-line. To one trying to partially ascertain the facts
there is not a suggestion that this ledge is broader than the Canyon claim, or that its easterly
wall outcrops east of the easterly side-line of the Canyon line. That being true, we have a
right to follow this ledge on its dip downward. There is not the slightest suggestion that this
ledge on its strike runs into the Table Mountain claim in a northeasterly direction, as
contended by appellants. The evidence clearly shows that this is not a split ledge with one
apex on the Table Mountain.
II. Having established the existence of the Richmond, as the predecessor of the Canyon,
and that the Richmond was located prior to the Silver City town site, the presumption is that
the Richmond continued until a change be established by proof, and no such proof appears.
Were it otherwise it would not benefit the appellants, as mineral land is not granted to
town-site companies. Mining in this state is the paramount industry, and were this action
between the respondent and the town-site company, or one holding under it, we assume, and
properly, we think, that this court would not hesitate to hold that no mineral rights passed to
the town site. But this question does not, and cannot, properly arise herein, for the simple
reason, with many others, that this question cannot be raised by any but the town-site
company or its successors in interest. No such persons appear in this case. The appellants are
contending, because some one else has an alleged right to oppose respondent's action
herein, that they, in the absence of the objection of such party, can interpose it for
appellants' benefit.
right to oppose respondent's action herein, that they, in the absence of the objection of such
party, can interpose it for appellants' benefit. This we contend they have no right to do.
This action was instituted February 18, 1902, against all of the above-named appellants
excepting Alfred Chartz. Upon trial had by jury a verdict was rendered in favor of the
defendants, and judgment entered accordingly. A motion for a new trial was interposed by the
plaintiff, and granted by the court upon the ground that the verdict was not in accordance with
the evidence. An appeal was taken to this court from said order, and the same affirmed.
(Golden v. Murphy, 27 Nev. 379.) Upon a second trial of the case with a jury a verdict was
rendered upon general and special issues in favor of the plaintiff and for $500 damages,
judgment and decree entered accordingly, and for a perpetual injunction. A motion for a new
trial was denied. From said judgment and decree, and from the order overruling the motion
for a new trial, the case again comes to this court upon appeal.
Prior to the second trial the appellant, Alfred Chartz, having succeeded to the property
interests of the defendant Royal Mining Company, was entered as a defendant, and permitted
to file a separate answer to the plaintiff's complaint. The action was brought to recover
damages in the sum of $7,000 for the extraction of ores by the defendants Murphy and Byers
within the exterior lines, extended vertically downwards, of the Table Mountain mine, a
patented claim, upon a part of which they held a lease from the then owner, the said Royal
Mining Company; also for an injunction restraining the defendants from the further working
upon the ledge, which plaintiff alleged has its apex upon the Canyon mining claim, claimed
to be the property of the plaintiff. Prior to the second trial all of the defendants filed amended
answers, and the plaintiff an amended complaint.
The issues raised by the amended pleadings were the same as at the first trial, with the
exception that the defendants by their amended answer attacked the validity of the Canyon
mining claim, and hence the right of the plaintiff to base any extralateral or other rights
thereon, by reason of the alleged fact that the ground covered by the said Canyon mining
claim was embraced within the original town-site patent of Silver City.
extralateral or other rights thereon, by reason of the alleged fact that the ground covered by
the said Canyon mining claim was embraced within the original town-site patent of Silver
City.
The allegations in the several answers of the defendants respecting the Silver City town
site and the invalidity of the Canyon location are as follows: (a) This defendant denies that
plaintiff now is, or ever was, the owner of, or ever entitled to the possession of, the mining
claim described in the complaint, situate in the Devil's Gate and Chinatown Mining District,
Lyon County, Nevada, or any part thereof. And in connection herewith this defendant avers
that in the year 1884 one W. J. Westerfield, being one of the predecessors in interest of
plaintiff, made a location of the Canyon mining claim described in the complaint, but that at
said date the land upon which said location was made had been conveyed by patent to
William Hayden, District Judge of the State of Nevada, Lyon County, as trustee in trust,
granting a town site to the inhabitants of Silver City, Lyon County, Nevada, and that such
attempted location by said W. J. Westerfield gave him no color of title to said mining claim,
or any part thereof, either express or implied, that said Silver City town site was sold by the
government of the United States, as aforesaid, on or about June 26, 1868, under the act of
Congress of 1867, and that the declaratory statement was filed on or about December 2, 1867,
and that the patent of the United States was issued to said William Hayden in trust as
aforesaid, on or about September 20, 1873, and to the successors of said William Hayden,
and that on or about May 8, 1876, the successor of said William Hayden sold and conveyed to
one Joseph Angell and Joseph Monckton lot No. 268 of said patented town site, and on or
about the same day said successor of said William Hayden sold and conveyed to one W. C.
Dovey, lots Nos. 267 and 269 of said town-site patent, which said lots cover all of said
Canyon mining claim attempted location. (b) Defendants are informed and believe, and upon
their information and belief allege the fact to be, that on the date September 20, 1873, being
the date of the issuance of the Silver City town-site patent above described, the land described
in the complaint as the Canyon mining claim was not a valid, existing, located mining
claim, and that at said date said land was not known to be valuable for its minerals, and
that subsequently and on or about the Sth day of March, 1S76, one A. W. Piper and T. S.
Davenport attempted to make a location of said mining ground, and called it the
Richmond G.
in the complaint as the Canyon mining claim was not a valid, existing, located mining claim,
and that at said date said land was not known to be valuable for its minerals, and that
subsequently and on or about the 8th day of March, 1876, one A. W. Piper and T. S.
Davenport attempted to make a location of said mining ground, and called it the Richmond G.
& S. M. Co., and that said ground at said time belonged to the Silver City town site, and was
not locatable, and that on or about the 1st day of January, 1884, said Piper and Davenport
abandoned and forfeited their said attempted location, and that two months and twenty-one
days thereafter, being on the 21st day of March, 1884, one W. J. Westerfield, predecessor in
interest and grantor of plaintiff, Frank Golden, attempted to make a relocation of said
Richmond G. & S. M. Co. claim, and after going through the acts of location, called it the
Canyon mining claim, and that all such attempted locations and acts are contrary to law, and
without right. The only amendment to plaintiff's complaint was in reference to paragraph 3,
which, as amended, reads as follows: That for over ten years immediately preceding the acts
hereinafter complained of, the plaintiff and his grantors was the owner of, and entitled to, the
possession, and in the quiet and peaceable possession of the said Canyon mining claim, and
the ledge thereon.
The allegations contained in defendants' answers relative to the issuance of the town-site
patent to Silver City and the subsequent sale and conveyance of lots within said town site
covering the land embraced within the boundaries of the Canyon mining claim were
established by documentary proof. The record of location of the Canyon mining claim shows
that it was located by W. J. Westerfield, March 21, 1884. The record is designated Notice of
Relocation, and in the body thereof the following statement appears: This is a relocation of
the Richmond G. & S. M. claim and shall be known as the Canyon G. & S. M. claim. The
said Richmond G. & S. M. claim not having had the necessary amount of labor or
improvements made or expended thereon as required by the laws of the United States. This
claim is situated in the Devil's Gate and Chinatown Mining District, Lyon County, State of
Nevada."
State of Nevada. The Richmond G. & S. M. claim is shown to have been located March 8,
1876.
Witnesses upon the part of both the plaintiff and defendants testified to the mining
conditions existing in that part of the district embracing the Canyon claim at and prior to the
time of the issuance of the town-site patent. The record of two mining locations were
admitted in evidence; one the Francis Company O'Connel ledge, covering 800 feet on what
was designated as the O'Connel Ledge, dated August 24, 1860, the other, the Richmond
Company Ledge, dated November 22, 1860, and claiming 1,400 feet of the ledge. A witness
for defendants, Thomas P. Mack, testified that he was familiar with all the ground in question
since 1863; also that he had been the county recorder for Lyon County for eight years, and
that he had searched the records to see if he could find the record of a mining claim covering
the same ground as the Canyon claim, and existing at the date of the town-site patent; that he
could not find any record that he thought would cover it except that of the said Francis
Company O'Connel ledge, which would cover a portion of the claim, the Francis being but
200 feet wide; that he could not tell whether it covered the ledge, part or otherwise. With
regard to the record of the Richmond Company ledge, the witness testified that there was
nothing in the record whereby he could identify what ground it covered. The witness further
testified that the ground covered by the Canyon claim had no reputation as being valuable for
mining ground prior to and at the time of the issuance of the town-site patent; that he knew
the Francis Company claim did not produce ore.
The following is an excerpt from the testimony of the witness Mack, taken from the
transcript:
Q. Was there any ore produced out of claims adjoining? A. I worked some ore from the
Silver Leaf, that was, I think at that timeno, it was called the Silver Leaf; that is a
relocation of the Fire Ball. I worked some ore from the Silver Leaf for Phillip Geyer about
1871 or 1872, made a small run of ore from the Silver Leaf in 1871 or 1872. It was
somewhere from 1869 to 1872 I made a small run for Phillip Geyer.
Q. It would be safe in saying from 1868 to 1872? A. Say from 1868 to 1873.
Q. Now this Silver Leaf is not the same ledge as the Canyon mining claim? A. It is. The
Silver Leaf is the old Fire Ball, which the Francis claim was located as adjoining on the
south.
Mr. BoydQ. It laid to the south of it, did it? A. The Francis lay to the south of the Fire
Ball, or Silver Leaf it was afterwards called when it was relocated.
Mr. MackQ. Did you mill more than once from the Silver Leaf? A. I think not. I don't
recollect making but one milling; possibly I have made more than one.
Q. Did you mill any ore to the west, the western portion of the now so-called Canyon
mining claim? A. No. I never milled any ore out of that.
Q. Do you know of any one that did? A. No. * * *
Q. The fact of the matter is, from the time you have known that country from Silver City
over to American Flat, it has all been covered with locations, has it not? A. The whole
country.
Q. Been claimed as mines by one party and then by another, just the same as any other
mining country, has it not? A. Yes. * * *
Q. And all that country, as a matter of fact, from the Comstock, from Virginia City, clear
down to Dayton, and from Silver City on to the westward and the American Flat, was all
covered with mining locations? A. From Silver City and Virginia City I presume there has
been mining locations made two or three deep on that whole country.
The plaintiff called a witness, Peter Brown, who testified that he had resided in Silver City
since 1860; that he was acquainted with the country in and about Silver City, as far as
locating claims in early times. the following excerpt is taken from his testimony:
Q. How long have you know that country? A. Well, I have known it since 1860, when I
came here. I went around the hills there back of this present quartz mill looking for locations,
and could not find any at that time, so I made locations later than that in different places
around Silver City, but I made no locations west, where this suit is at the present time.
but I made no locations west, where this suit is at the present time.
Q. You know about the ground now in litigation, do you? A. I know where it lays, of
course.
Q. How long have you known that to be located? A. Well, the claim I took ore out of was
located in 1864. I took out ore in 1864 from a claim. The ledge is still there today, about fifty
feet back from the mill on the edge of the ravine, with a shaft on it. I had ore out of it.
Q. What has been the general reputation of that country as to being mining country? A. All
mining country since I came; and the ledge away above that is called the O'Connel, I believe,
the Silver Leaf has been relocated. * * *
Q. You took ore out of a big ledge that runs south from the Silver Leaf ledge? A.
Certainly.
Q. That ledge was known, as you understand it, as the Daniel O'Connel ledge, is that right?
A. Yes.
Q. At the time you first went to Silver City in 1860 was the country to the west and across
that ravine from Silver CityI understood you to say it was all covered with locations? A.
That is, as far as I could see, because I went prospecting myself to find locations and could
not find one, not right there, but in other parts of Silver City I made some locations later on. *
* *
Mr. BoydQ. You testified that you knew of that country being located with mining
claims in 1860? A. As far as I could see, because I went looking around for locations and
could not find one.
Q. Could not find any? A. No; not right there, in back of the mill there, in the
neighborhood you are having this suit about now.
Q. Why was it that you could not make a location there then? A. Well, I might have, I
don't consider that I am perfect.
Q. I am asking why you could not make a location? A. Because it was all located as far as I
could see.
Q. As far as you could see it was all located? A. It was all located; yes, as far as I could
see. Q.
Q. Has that country been worked as a mining country since 1860? A. Yes. * * *
Q. Did you know of its being well-known mining ground to the west of Silver City in
1867? A. Certainly.
Q. And in 1868? A. Yes.
Q. And in 1869? A. Certainly.
Q. And in 1870? A. Certainly.
Q. In 1871? A. Yes.
Q. In 1872? A. Certainly.
Q. And in 1873? A. Yes, sir.
Q. And in 1874? A. Yes, sir.
Mr Thomas Connors, a witness for the plaintiff, testified that he had lived in Silver City
since 1868; that he was familiar with the country in and about Silver City; that all the country
from the Dayton mine to the Silver Leaf was well-known mining ground when he knew it in
1868, and has been well-known mining ground since that time.
Following the testimony of the witness Connors, the transcript shows the following:
Mr. BoydWe have one more witness to the same effectMr. Wilson. He has been taken
very suddenly with a severe illness, and his testimony would be about the same as Mr.
Brown's. I think counsel will admit that.
Mr. ChartzThat if present and sworn he would testify that that ground was well-known
mining ground.
Mr. BoydAnd that the ledges existing thereon were well-known ledges; that he was
familiar with the O'Connel ledge, and also with the ledge subsequently called the Richmond
ledge. Those are the two facts, and that those were well-known ledges there I think in 1862 or
1863.
Mr. ChartzI am not disputing there is a ledge there; it is all ledge. I will admit that if Mr.
Wilson were here present and sworn to testify, that he would testify, as Mr. Connors did, that
this was well-known mineral country all through west of Silver City, that there is a ledge
known to exist, as Mr. Brown testified, that runs into the old Daniel O'Connel mine, now
known as the Silver Leaf, and that it extends down that way towards the south.
Mr. BoydAnd that it was known when it reached in there as the Richmond ledge?
Mr. ChartzThat I do not know; that has not been testified to that it is known as the
Richmond ledge.
Mr. BoydIn the Silver Leaf it was called the O'Connel ledge, south of the Silver Leaf,
subsequently located as the Richmond ledge. That is the same ledge, if you will admit that.
Mr. ChartzBy all those names, I don't care what name you call it by.
The map offered in evidence shows that the southerly end-line of the Silver Leaf mining
claim is identical with the northerly end-line of the Canyon claim; also that lots Nos. 267 and
268 of the town site covered the southerly portion of this Silver Leaf claim. The town-site
patent offered in evidence contains the following reservation: No title shall be hereby
acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or
possession held under existing laws of Congress mineral surveys, Nos. 44, 45 and 46 as
shown on accompanying diagram are specially excludedMineral survey No. 45, therein
mentioned, being the said Table Mountain Claim. The position of counsel for defendants
relative to the effect of the Silver City town-site patent upon the validity of the Canyon claim
is stated in his brief as follows: The conclusions of defendants are that the Canyon mining
ground was not known to be valuable for its minerals at any time during the application for
patent to the Silver City town site down to the date of its issuance, and that any claim that
might have been located in 1860 is not identified as covering the present Canyon ground, or
any part there, and that the certificate of location introduced in evidence by plaintiff of any
location made in 1860 utterly fails to make any such identification, and that said Canyon
mining ground cannot be identified therefrom, as shown by the testimony of Mr. Mack.
The record shows without question that the ground embraced within the boundaries of the
Canyon claim had been held as a mining claim from the date of the location of the Richmond
G. & S. M. claim, March 8, 1876. The plaintiff and his grantor asserted rights to the Canyon
claim as a relocation of the Richmond G.
the Richmond G. & S. M. claim. As relocators, they recognized the validity of the prior
location, which, having become subject to forfeiture, was forfeited by relocation. Plaintiff's
right to the ground covered by the Canyon claim, regardless of whether or not it was subject
to location as a mining claim, may be supported by adverse possession alone. Such
possession would give him all ledges or veins apexing within the boundaries of the claim, and
the right to follow them within his side lines, extended vertically downwards, but whether
such adverse possession would carry with it extralateral rights, in the event the ground passed
to the town site for town-site purposes under its patent, is a question, and one which we do
not find to have ever been passed upon.
As the validity of plaintiff's location can be determined upon other facts of the case, we
shall not now attempt its solution. If the ground in question never passed under the town-site
patent, then it is not questioned but that the plaintiff is entitled to any extralateral rights which
he may have established by proof in this case. The reservation in the town-site patent is in
accordance with the provisions of the acts of Congress of March 2, 1867, c. 177, 14 Stat. 541,
and of June 8, 1868 (chapter 53, 15 Stat. 67), as united and incorporated into section 2392 of
the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1459), which reads as
follows: No title shall be acquired under the foregoing provisions of this chapter to any mine
of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under
existing laws.
Counsel for appellants urges that the evidence shows without conflict that the land
embraced within the Canyon claim was not known to be valuable for its minerals prior to, and
at the time of, the issuance of the town-site patent, and hence that it passed to the town site
under the patent, and, having so passed, no valid mining claim could be initiated thereon. In
support of this position counsel cites and relies upon a number of decisions of the Supreme
Court of the United States, and particularly the cases of Davis v. Weibbald, 139 U. S. 520, 11
Sup. Ct. 628, 35 L. Ed. 238; Dower v. Richards, 151 U. S. 658, 14 Sup. Ct. 452, 38 L. Ed.
395, and Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423.
Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423. The cases supra were in each instance
controversies growing out of conflicting claims to the ground between holders of town-site
lots under the town-site patent and mining claimants, whose alleged rights to the ground were
in some instances based upon mining locations instituted subsequent to the town-site patent.
This case presents a different situation, particularly from the fact that it is not a controversy
between the town-site lot owners and a mineral claimant.
A reading of the statute discloses that not only any mine of gold, silver, cinnabar or
copper is exempted from the provisions of the statutes, but, in addition, the exemption
extends to any valid mining claim or possession held under existing laws. There is evidence
in this case that the ground covered by this Canyon location was covered by mining claims as
early as 1860, and located and relocated thereafter and held as mining ground ever since.
There is evidence to the effect, and counsel for appellant concedes, that the Canyon claim was
well-known mining ground at the time of the issuance of the town-site patent, but he
contends that it was not known to be valuable for mining purposes, and hence would not be
exempt from the town-site patent. It is true, however, that the mining claimants have never
had their possession disturbed by any one claiming under the town site. The location of the
Richmond G. & S. M. claim antedates the sale of the town lots under the town-site patent,
covering the same ground, and it does not appear that the town-site lot purchasers ever
successfully, or at all, disputed the title of the locators of the mining claim.
We may properly take judicial notice of the fact that the property in question in this suit
was in the region of the earliest discoveries of gold in Nevada, a region whose history is part
and parcel of the history of the Comstock lode, which in turn is a part of the history of this
government, of such importance as to merit recordation, as long as the nation, which the
Comstock helped so effectually to maintain, shall last. Into this region, from 1859 until and
after the early 70's, came the miners from the diggings of California, and other
adventurous spirits from all parts of the nation and the world.
world. Here was a large portion of the country located in accordance with the customs and
rules of the miners, for there was no other law, prior to 1866, when Congress enacted the first
legislation upon the subject, under the leadership of that distinguished lawyer, statesman, and
citizen of this state, Hon. Wm. M. Stewart, whose recent death removes the most conspicuous
figure in the mining legislation of this country.
The rights of miners upon the public domain prior to 1866 may be gathered from the
following excerpt from the opinion of Field, J., in Jennison v. Kirk, 98 U. S. 453, 458, 25 L.
Ed. 240: Until 1866 no legislation was had looking to a sale of the mineral lands. The policy
of the country had previously been, as shown by the legislation of Congress, to exempt such
lands from sale. In that year the act, the ninth section of which we have quoted, was passed.
In the first section it was declared that the mineral lands of the United States were free and
open to exploration and occupation by citizens of the United States, and those who had
declared their intention to become citizens, subject to such regulations as might be prescribed
by law and the local customs or rules of miners in the several mining districts, so far as the
same were not in conflict with the laws of the United States. In other sections it provided for
acquiring the title of the United States to claims in veins or lodes of quartz bearing gold,
silver, cinnabar, or copper, the possessory right to which had been previously acquired under
the customs and rules of miners. In no provision of the act was any intention manifested to
interfere with the possessory rights previously acquired, or which might be afterwards
acquired; the intention expressed was to secure them by a patent from the government. The
senator from Nevada, Hon. Wm. M. Stewart, the author of the act, in advocating its passage
in the Senate, spoke in high praise of the regulations and customs of miners, and portrayed in
glowing language the wonderful results that had followed the system of free mining, which
had prevailed with the tacit consent of the government. The Legislature of California, he said,
had wisely declared that the rules and regulations of miners should be received in evidence in
all controversies respecting mining claims, and, when not in conflict with the Constitution or
laws of the state or of the United States, should govern their determination; and a series
of wise judicial decisions has molded these regulations and customs into 'a
comprehensive system of common law, embracing not only mining law, properly
speaking, but also regulating the use of water for mining purposes.' The miner's law, he
added, was a part of the miner's nature.
laws of the state or of the United States, should govern their determination; and a series of
wise judicial decisions has molded these regulations and customs into a comprehensive
system of common law, embracing not only mining law, properly speaking, but also
regulating the use of water for mining purposes.' The miner's law, he added, was a part of the
miner's nature. He had made it, and he trusted it and obeyed it. He had given the honest toil of
his life to discover wealth, which, when found, was protected by no higher law than that
enacted by himself, under the implied sanction of a just and generous government. And the
act proposed continued the system of free mining, holding the mineral lands open to
exploration and occupation, subject to legislation by Congress and to local rules. It merely
recognized the obligation of the government to respect private rights which had grown up
under its tacit consent and approval. It proposed no new system, but sanctioned, regulated,
and confirmed a system already established, to which the people were attached. (Cong.
Globe, 1st Sess. 39th Cong. pt. iv, pp. 3225-3228.) These statements of the author of the act
in advocating its adoption cannot, of course, control its construction, where there is doubt as
to its meaning; but they show the condition of mining property on the public lands of the
United States, and the tenure by which it was held by miners in the absence of legislation on
the subject, and thus serve to indicate the probable intention of Congress in the passage of the
act.
The following excerpt from the opinion of the court by Mr. Justice Field in the case of
Davis v. Weibbald, supra, will not only show the construction placed by the court of last
resort upon the federal statutes relative to town-site patents embracing mineral lands, but will
enable us to determine whether the conclusions reached in that case are decisive adversely to
plaintiff's title as a mining claimant, under the facts shown in this case, as claimed by
appellants' counsel:
Chapter 8, tit. 32, of the Revised Statutes, contains the law for the reservation and sale of
town sites on the public lands. Among other things, it provides for the entry, at the local land
office, of any portion of the public lands occupied as a town site by its corporate
authorities, or, if the town be unincorporated, by the judge of the county court of the
county in which the town is situated; the entry to be 'in trust for the several use and
benefit of the occupants thereof, according to their respective interests,' and the
execution of the trust and the disposal of the lots in the town to be conducted under such
regulations as may be prescribed by the legislative authority of the state or territory in
which the town is situated.
as a town site by its corporate authorities, or, if the town be unincorporated, by the judge of
the county court of the county in which the town is situated; the entry to be in trust for the
several use and benefit of the occupants thereof, according to their respective interests,' and
the execution of the trust and the disposal of the lots in the town to be conducted under such
regulations as may be prescribed by the legislative authority of the state or territory in which
the town is situated. It also provides that the entry shall include only such land as is actually
occupied by the town, and the title to which is in the United States, and declares that, where
mineral veins are possessed, which possession is recognized by local authority, and to the
extent so possessed and recognized, the title to town lots to be acquired shall be subject to
such recognized possession and the necessary use thereof,' with the reservation, however, that
nothing in the section shall be so construed as to recognize any color of title in possessors for
mining purposes as against the United States. By another section of the chapter, and near its
close, it is enacted that no title shall be acquired' under its provisions to any mine of gold,
silver, cinnabar or copper; or to any valid mining claim or possession held under existing
laws.' (Section 2392.)
In Deffeback v. Hawke we said of this statement of the legislation of Congress that it was
plain that no title from the United States to lands known at the time of sale to be valuable for
its minerals of gold, silver, cinnabar, or copper could be obtained under the preemption or
homestead laws, or the town-site laws, or in any other way than as prescribed by the laws
specially authorizing the sale of such lands, except in certain states, not affecting the question
before us, commenting particularly upon the terms known' and valuable,' used in connection
with the minerals in public lands, implying that they must be of that character to bring the
lands within the exception of mineral lands from sale or grant by the United States. In that
case there was no dispute as to the mineral character of the land claimed by the plaintiff under
his mining patent, when the town site was entered by the probate judge at the local land
office. Proceedings for the acquisition of the mining claim had been previously initiated, the
entry of the same had been had, and payment of the price made to the government, and,
when the patent subsequently issued, it took effect by relation at the date of the entry;
that being the earliest evidence of any movement for the acquisition of the title of the
government.
the entry of the same had been had, and payment of the price made to the government, and,
when the patent subsequently issued, it took effect by relation at the date of the entry; that
being the earliest evidence of any movement for the acquisition of the title of the government.
Here the case is different; here the Butte town site had been entered at the local land office by
the probate judge of the county, and the patent of the United States in due form issued to him
in trust for the occupants of the town, before the date of the mining patent, or the entry of the
mining claim at the local land office, and before that time a deed had been made by the
probate judge to the defendant of the premises occupied by him, to recover which the present
action is brought.
When the entry of the town site was had, and the patent issued, and the sale was made to
the defendant of the lots held by him, it was not knownat least it does not appear that it was
knownthat there were any valuable mineral lands within the town site, and the important
question is whether, in the absence of this knowledge, the defendant can be deprived, under
the laws of the United States, of the premises purchased and occupied by him because of a
subsequent discovery of minerals in them and the issue of a patent to the discoverer. After
much consideration we have come to the conclusion that this question must be answered in
the negative. It is true the language of the Revised Statutes touching the acquisition of title to
mineral lands within the limits of town sites is very broad. The declaration that no title shall
be acquired' under the provisions relating to such town sites and the sale of lands therein, to
any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held
under existing laws,' would seem on first impression to constitute a reservation of such mines
in the land sold, and of mining claims on them, to the United States; but such is not the
necessary meaning of the terms used. In strictness they import only that the provisions by
which the title to the land in such town sites is transferred shall not be the means of passing a
title also to mines of gold, silver, cinnabar or copper in the lands, or to valid mining claims or
possessions thereon. They are to be read in connection with the clause protecting existing
rights to mineral veins, and with the qualification uniformly accompanying exceptions in
acts of Congress of mineral lands from grant or sale.
clause protecting existing rights to mineral veins, and with the qualification uniformly
accompanying exceptions in acts of Congress of mineral lands from grant or sale. Thus read,
they must be held, we think, merely to prohibit the passage of title under the provisions of the
town-site laws to mines of gold, silver, cinnabar, or copper, which are known to exist, on the
issue of the town-site patent, and to mining claims and mining possessions, in respect to
which such proceedings have been taken under the law or the custom of miners, as to render
them valid, creating a property right in the holder, and not to prohibit the acquisition for all
time of mines which then lay buried unknown in the depths of the earth. The exceptions of
mineral lands from preemption and settlement, and from grants to states for universities and
schools, for the construction of public buildings, and in aid of railroads and other works of
internal improvement, are not held to exclude all lands in which minerals may be found, but
only those where the mineral is in sufficient quantity to add to their richness, and to justify
expenditure for its extraction, and known to be so at the date of the grant. There are vast
tracts of country in the mining states which contain precious metals in small quantities, but
not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that
the term mineral' in the sense of this statute is applicable. * * *
On this subject there has been great uniformity of decision by those courts of the states
and of the United States which have had the most frequent occasion to consider the subject,
and by the land department. It would seem from this uniform construction of that department
of the government specially intrusted with supervision of proceedings required for the
alienation of the public lands, including those that embrace minerals, and also of the courts of
the mining states, federal and state, whose attention has been called to the subject, that the
exception of mineral lands from grant in the acts of Congress should be considered to apply
only to such lands as were at the time of the grant known to be so valuable for their minerals
as to justify expenditure for their extraction. The grant or patent, when issued, would thus be
held to carry with it the determination of the proper authorities that the land patented
was not subject to the exception stated.
with it the determination of the proper authorities that the land patented was not subject to the
exception stated. There has been no direct adjudication upon this point by the court, but this
conclusion is a legitimate inference from several of its decisions. It was implied in the
opinion in Deffeback v. Hawke, already referred to, and in the cases of the Colorado Coal &
Iron Co. v. United States, 123 U. S. 307, 328, 8 Sup. Ct. 131, 31 L. Ed. 182, and United
States v. Iron Silver Mining Co., 128 U. S. 673, 683, 9 Sup. Ct. 195, 32 L. Ed. 571. * * *
In connection with these views it is to be borne in mind, also, that the object of the
town-site act was to afford relief to the inhabitants of cities and towns upon the public lands
by giving title to the lands occupied by them, and thus induce them to erect suitable buildings
for residence and business. Under such protection many towns have grown up on lands
which, previously to the patent, were part of the public domain of the United States, with
buildings of great value for residence, trade, and manufacture. It would in many instances be
a great impediment to the progress of such towns if the title to the lots occupied by their
inhabitants were subject to be overthrown by a subsequent discovery of mineral deposits
under their surface. If their title would not protect them against a discovery of mines in them,
neither would it protect them against the invasion of their property for the purpose of
exploring for mines. The temptation to such exploration would be according to the suspected
extent of the minerals, and, being thus subject to indiscriminate invasion, the land would be
to one having the title, poor and valueless, just in proportion to the supposed richness and
abundance of its products. We do not think that any such results were contemplated by the act
of Congress, or that any construction should be given to the provision in question which
could lead to such results. Our conclusion, as already substantially stated, is that Congress
only intended to preserve existing rights to known mines of gold, silver, cinnabar, or copper,
and to known mining claims and possessions, against any assertion of title to them by virtue
of the conveyances received under the town-site act, and not to leave the titles of purchasers
on the town sites to be disturbed by future discoveries.
In Deffeback v. Hawke the mining patentee's rights antedated those of the occupants
under the town-site law, and, wherever such is the case, his rights will be enforced against the
pretensions of the town-site holder; but, where the latter has acquired his rights in advance of
the discovery of any mines and the initiation of proceedings for the acquisition of their title or
possession, his rights will be deemed superior to those of the mining claimant. It is not
necessary in this case to state in what manner it must be shown that the existence of mines
was known at the time the patent for the town site was issued. If the mining patent states any
initiatory steps in acquiring title which antedates the title of the town site, that may suffice in
an action at law. In the absence of such statement the development and working of a mine
would be a controlling fact; so, also, perhaps would be the location of the claim patented, and
notice thereof required by law, or the custom of miners. But in this case the patent does not
show any such initiatory steps; it merely refers to the entry of the mining claim, and that was
after the patent was issued to the town site. No proof was offered to show when the mining
claim was originally located; and it does not appear that the want of it was made an objection
to the plaintiff's recovery, except as that may be implied from the defendant's offer to prove
that, at the time the patent to the Butte town site was issued to the probate judge, the premises
embraced by the Gold Hill lode were not known to be valuable for minerals of any kind. That
proof was excluded on the ground that the mining patent to the plaintiff established that the
premises contained valuable minerals. Such was the effect of the patent, if there were any
jurisdiction in the land department to issue a mining patent at all under the circumstances of
this case. Assuming, for the present, that there was jurisdiction, the question was not whether
there were valuable minerals at the time that patent was issued, but whether such minerals
were known to exist within the premises at the date of the town-site patent to the probate
judge. The plaintiff not having offered any proof upon this point, but having relied upon the
fact as a matter of presumption merely, the defendant should have been permitted to
establish the negative of it.
to establish the negative of it. The absence of any proceedings required by law or the custom
of the mining district to initiate a right to a mining claim, which he might perhaps have
shown, would have been very persuasive that no mine was then known to exist. We think that
the court erred in excluding the proof of the defendant. * * *
Proceedings for the acquisition of title to a mining claim within a town site, commenced
before the issue of a town-site patent, could undoubtedly be prosecuted to completion
afterwards. The right initiated by the location of the mining claim would not be defeated by a
subsequent conveyance of the title to the land in which the mining claim was situated. But it
is not perceived where the jurisdiction exists under the laws of the United States to grant a
patent for a mine on lands owned by private individualswhich was the case hereif the
lots for which defendant received a deed were included within the town-site patent, and the
location of the mining claim was subsequently made. * * * They (town-site patents) are
conclusive in such actions of all matters of fact necessary to their issue, where the department
had jurisdiction to act upon such matter, and to determine them; but, if the lands patented
were not at the time public property, having been previously disposed of, or no provision had
been made for their sale, or other disposition, or they had been reserved from sale, the
department had no jurisdiction to transfer the land, and their attempted conveyance by patent
is inoperative and void, no matter with what seeming regularity the forms of law have been
observed.
In the several cases to which we have been referred in the fifth and sixth Montana
Reports (Silver Bow Mining and Milling Co. v. Clark, 5 Mont. 378, 5 Pac. 570; Talbott v.
King, 6 Mont. 76, 9 Pac. 434; Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858),
which involved contests between parties claiming under mining patents, and others claiming
under town-site patents, and in which very able and learned opinions were given by the
Supreme Court of the Territory of Montana, the mining claim patented had been located, and
the rights of the mining claimant had thus attached, before the town-site patent was issued.
The patent which subsequently followed was a mere perfection of the right originated by
the location, and to which it took effect by relation.
quently followed was a mere perfection of the right originated by the location, and to which it
took effect by relation. It was held, in accordance with this opinion, that the prior mining
location was not affected by the town-site entry.
See, also, Iron Silver Co. v. Mike & Star Co., 143 U. S. 394, 12 Sup. Ct. 543, 36 L. Ed.
201; Dower v. Richards, 151 U. S. 658, 14 Sup. Ct. 452, 38 L. Ed. 305; Noyes v. Mantle, 127
U. S. 448, 8 Sup. Ct. 1132, 32 L. Ed. 168.
It is clear from the language used in the statute, and from the opinions expressed by the
Supreme Court of the United States, particularly in the Davis v. Weibbald case, supra, that
land, held as a valid and subsisting mining claim at the time of the issuance of the town-site
patent, does not pass under such patent, nor is the title or right of possession of the location at
all affected thereby.
As said in Belk v. Meagher, 104 U. S. 279, 283, 26 L. Ed. 735: A mining claim perfected
under the law is property, in the highest sense of that term, which may be bought, sold, and
conveyed, and will pass by descent.' It is not, therefore, subject to the disposal of the
government. (Noyes v. Mantle, 127 U. S. 353, 8 Sup. Ct. 1134; 32 L. Ed. 168.)
A valid mining claim can only be based upon a discovery within the limits of the claim,
and the existence of mineral in such quantities as to render the land more valuable for mining
than for any other purpose, or as will justify a prudent man in the expenditure of time and
money in its exploration and development. (Lindley on Mines, sec. 176.)
It may be seriously questioned whether a discovery, sufficient to support a valid mining
location so as to exempt such location from the provisions of a town-site patent, could be
held to the same degree of strictness as would be required in the case of a mine known, or
claimed to be known, to exist at the time of the issuance of such town-site patent, but which
had not previously been located. In the case at bar, while it appears that the ground embraced
within the Canyon claim was sold as town lots under the town-site patent, it does not appear
that the lot purchasers ever acquired, or attempted to acquire, possession from the claimants
to the ground under prior existing mining locations. The evidence is conclusive, we think,
that the ground covered by the Canyon claim has been held as a valid and subsisting
mining claim from a time long prior to the date of the town-site patent down to the
present.
conclusive, we think, that the ground covered by the Canyon claim has been held as a valid
and subsisting mining claim from a time long prior to the date of the town-site patent down to
the present. No one in a position to question the right of the plaintiff, his grantor, and prior
locators of the ground covered by the Canyon claim to hold the same as mining ground, has
ever established, or attempted to establish, so far as the record shows, a superior right to the
ground. Under this state of facts it follows as a matter of law that the Canyon mining claim is
a valid mining claim unaffected by the town-site patent.
2. It is contended by counsel for appellant that the court never acquired jurisdiction over
the defendant the Royal Mining Company, and hence that the judgment is void as against
such defendant. This contention is based upon the fact that such defendant is a foreign
corporation, and that no valid service or process was had upon it. It appears that this
defendant did not have an agent residing in the state, and that service was made upon the
secretary of state, under a provision of our statute relative to service of foreign corporations
doing business in this state, and which have not a resident agent upon whom process may be
served. It appears that the company appeared specially, and moved to quash the service of
summons. This motion was denied, after which the company filed an answer to the complaint
and participated in the trial, but sought to reserve the question of service. We think by
answering to the merits the defendant waived any question of service, and that it could not at
the same time answer and reserve a question of jurisdiction based upon a matter of service of
process. (Curtis v. McCullough, 3 Nev. 202; Higley v. Pollock, 21 Nev. 198; Comp. Laws,
3594.)
3. Irregularity of the Adverse Party: One of the grounds of the defendants' motion for a
new trial is alleged irregularity of the adverse party. Upon the conclusion of the taking of
testimony the record shows the entry of the following order: By agreement of both parties
the order is entered by the court that the jury be taken to view the premises described in
plaintiff's complaint, and that Mr. J. C. Murphy on the part of the defendants, and Mr. Emmet
Boyle on the part of the plaintiff, accompany the court and the jury, and point out such
places as the court may direct; the expense of conveying the court and jury to and from
the ground to be borne by both parties."
part of the plaintiff, accompany the court and the jury, and point out such places as the court
may direct; the expense of conveying the court and jury to and from the ground to be borne by
both parties. Prior to the submission of the cause to the jury the attention of the court was
not called to any alleged irregularity upon the part of the plaintiff or jury during their visit to,
and inspection of, the premises involved in the suit. After the verdict was rendered and
judgment entered, and in support of defendants' motion for a new trial, the affidavit of the
said defendant J. C. Murphy was filed, charging the said Emmet Boyle with making many
statements and arguments to the jury while investigating the premises in pursuance of the
order of the court, and which were made contrary to the provisions of said order. Further, that
upon the street in Silver City he drew a diagram of the properties, and argued to the jury that
plaintiff's claim was on the hill, and defendants' claim was in the canyon below the hill,
which was not true, except to the extent of showing that the Canyon claim lies above
defendants' claim, thus arguing that the apex must necessarily be within the Canyon ground.
The affidavit contains the following charges in reference to the conduct of Mr. Boyle,
while the jury was inspecting the mining properties involved in the suit: That soon thereafter
said jury went upon said ground, and entered the tunnel referred to in the testimony as the
yellow tunnel, marked upon the map Tunnel 27 feet above main tunnel,' and affiant and
some of the jurors went down the Murphy winze at the end of said tunnel to the ore stopes,
and said Boyle remained in said tunnel with others of the jurors, and affiant could hear said
Boyle talking to said jurors, but do not know what was said, and soon thereafter the
remaining of said jurors and said Boyle reached the bottom of said winze, and said Boyle
called the attention of said jurors to what he called the hanging wall' of said Canyon vein,
and gave his reasons why the same was the hanging wall of said Canyon vein. He said,
among other things, that taking the pitch of the said wall at said place, the same would come
out on the Canyon ground; that at and about said point said formation has many different
pitches, and that said Boyle took a pitch favorable to plaintiff, but taking other pitches at
or about the same point said vein and formation would apex on the Table Mountain
patent.
pitches, and that said Boyle took a pitch favorable to plaintiff, but taking other pitches at or
about the same point said vein and formation would apex on the Table Mountain patent. * * *
That from the bottom of said Murphy winze said Boyle said, in substance and effect, Now,
gentlemen, I will take you from this point to the surface of the Canyon, all the way in ledge,'
and in going through to the surface of the Canyon he remarked to the jury, This is all in
ledge,' and argued the testimony on the part of defendants, as introduced through Mr.
Osmont, that a certain place on the way was a foot wall. On reaching point L' on the map
said Boyle, in the presence of said jury, said, Now, Murphy, Osmont has admitted this is the
foot wall, and it is in evidence, and you can't dispute it.' * * * From said point L the jury
proceeded on the main tunnel level, being tunnel A, and at a point near said point L and
southwesterly therefrom there is a filled tunnel, and said Boyle said, with reference thereto:
If you could get in there, you would see the foot wall is back in there.' * * * From said point
L said jury proceeded westerly and southerly on said tunnel A, and during the progress
thereof said Boyle remarked and argued to said jury that they were proceeding in ledge all the
way. That on reaching a certain stope in the Canyon ground, being the first stope lying west
of tunnel A traveling southwesterly from point L, said Boyle remarked and argued to the jury
that he could take them up to the surface of the Canyon ground on the foot wall of the ledge.
* * * That from the stope last mentioned said jury went to point N on the main tunnel level,
and to what plaintiff claims is the hanging wall through which tunnel O breaks, and at said
point where plaintiff claims is the hanging wall of said Canyon vein, said Boyle remarked and
argued to the jury, in substance as follows: Gentlemen, this is tunnel O, from which Ed
Powers [who had testified on behalf of defendant] said all of the rock that came out of this
tunnel was milled, and you can plainly see by examination that there is nothing but country
rock showing in there.' That * * * said jury never went through said tunnel O to its portal.
That subsequently said jury went to the surface on the Canyon ground, and Judge Orr
complained of being exhausted, and remained behind, and said Boyle insisted on said jury
going through tunnel Q and back into the mine, and that in said tunnel Q, and without the
presence of said judge, said Boyle remarked and argued to the jury, 'Now, gentlemen, you
can see this is the same broad vein, and here is the stope, and now from this point I can
take you down through and all the way to the ores in dispute in vein matter, all the way.'
That said jury proceeded on said way until they reached a point near Murphy shaft No.
behind, and said Boyle insisted on said jury going through tunnel Q and back into the mine,
and that in said tunnel Q, and without the presence of said judge, said Boyle remarked and
argued to the jury, Now, gentlemen, you can see this is the same broad vein, and here is the
stope, and now from this point I can take you down through and all the way to the ores in
dispute in vein matter, all the way.' That said jury proceeded on said way until they reached a
point near Murphy shaft No. 2, when said Boyle remarked that said jury were still in Canyon
ground, when in fact they were in Table Mountain ground * * * That from thence said jury
proceeded to climb up and through Murphy shaft No. 2 to the surface, and at a point about
eleven feet from the bottom of the shaft, said Boyle remarked and argued to said jury in
substance as follows: Gentlemen, this is the hanging wall of the Canyon ledge, and from here
up it doesn't amount to anything.' That * * * from thence on they simply climbed the ladder
way, and paid no attention to the formation, but looked out for their own safety in climbing
said ladders. * * * That upon reaching the surface at the top of Murphy's shaft No. 2 said
Boyle asked said jury to go to point marked 108 feet above main tunnel level, and about
one-half of them went in, and the others refused to go in, and he explained to those that went
in that said tunnel at said point was in the croppings of said Canyon ledge.
We have omitted from the affidavit, supra, all allegations which are the mere conclusions
of the affiant. There was no counter-affidavit filed prior to the hearing of the motion for a
new trial, and the question presented rests solely upon the sufficiency of this affidavit. After
the decision of the trial court denying the motion for a new trial, a further affidavit was filed
by Mr. Chartz, himself a defendant, and also the attorney for the defendants. After the appeal
was perfected, an affidavit by Mr. Boyle was filed. We have not been advised upon what
theory counsel expected that these affidavits could be considered, and it is too manifest for
argument that they cannot be noticed upon this appeal.
The trial court, in passing upon the motion for new trial, concerning the question presented
by the affidavit, said: The representatives of the respective parties were to point out to
the jury the different places in and about the mining premises, concerning which
testimony had been given by the respective witnesses.
representatives of the respective parties were to point out to the jury the different places in
and about the mining premises, concerning which testimony had been given by the respective
witnesses. The court also accompanied the jury, but in passing through the different tunnels
and drifts the members of the jury in examining the premises were not always entirely
together, and the court did not remain in the mines during the entire time which the jury were
there; and, while the court does not recollect of hearing any of the particular statements
alleged to have been made by Boyle, as stated in the affidavit of Murphy, or similar
statements, still it is entirely possible for any or all of such statements to have been made
without the hearing of the judge who presided at the trial. The judge was also not with the
members of the jury for a brief time after the arrival of the jury at Silver City, and therefore
the diagram alleged to have been made by Boyle on the street of Silver City could have been
made without the knowledge of the presiding judge. The court does not hesitate to say that, if
the statements were made by Boyle, as alleged in Murphy's affidavit, the same was improper,
as was also the drawing of the diagram, and it was the duty of the defendant Murphy, upon
the return of the jury to the court-room, to have called to the attention of the court the alleged
misconduct of the said Boyle, in order that the court might have an opportunity to have called
the same to the attention of the jury, and give them the proper instructions in reference to
disregarding all such alleged statements or misconduct, and, if such statements and
misconduct were true, to have adjudged the said Boyle in contempt of court. However, the
said defendant Murphy evidently chose to remain quiet and take the chance of a favorable
verdict, and keep the misconduct of the said Boyle in reserve. The statements in the affidavit
as to the jury being influenced by the statements or misconduct of Boyle are not supported by
the affidavits of any of the jurors, or any other persons, and are mere conclusions of the
affiant. Furthermore, the alleged statements of Boyle are in general conformity to his
testimony given during the trial, and, the parties failing to bring this matter to the attention of
the court before the rendering of a verdict, which they had ample opportunity to do, in the
opinion of the court it now comes too late, and that they have waived their right to now
complain in reference to the alleged misconduct of the witness Boyle."
they had ample opportunity to do, in the opinion of the court it now comes too late, and that
they have waived their right to now complain in reference to the alleged misconduct of the
witness Boyle.
That the affidavit of J. C. Murphy charges conduct upon the part of Mr. Boyle that was
highly improper there can be no question. It appears, however, that the affiant frankly admits
that, in a measure at least, he sought to do the same thing by attempting to show the jury his
views, but was utterly unable to cope with said Boyle in said matter. In the absence of a
showing that Mr. Murphy called his counsel's attention promptly to the irregularity, one is
naturally impressed that he did not, at the time, consider it a serious matter. It is not charged
in the affidavit that the statements of Boyle were not in accordance with his testimony given
upon the witness stand, and the opinions of the trial court is that the alleged statements of
Boyle are in general conformity to his testimony given during the trial. This view of the trial
court has not been attacked in appellants' brief. After the decision of the trial court denying
the motion for a new trial, counsel for defendants and appellants filed an affidavit setting
forth that he was not informed by Mr. Murphy of this matter until after the verdict and
judgment, and hence had not opportunity to combat it. As we have before stated, we are
unable to see how we could give this affidavit any consideration, and counsel has failed to
point out any authority for its consideration. Certainly neither the trial court nor opposing
counsel had any opportunity to consider this latter affidavit.
It is part of the moving party's case to show want of knowledge. The moving party must
show affirmatively that neither he nor his counsel had knowledge of the irregularity in time to
avoid its consequences, and that they were not guilty of negligence in failing to make proper
inquiry. (Hayne on New Trial and Appeal, sec. 27, subd. 3, p. 101.)
The party affected by an irregularity should bring the matter to the attention of the court
in time to admit of its correction, if possible; otherwise it is waived. The general rule: The
rule does not mean (at least in California) that there must be a formal objection or
exception, such as is required for the review of 'errors in law.' Its foundation is that,
where the consequences of an irregularity might have been avoided if the attention of the
court had been called to the matter at the proper time, it would be unjust to permit the
party to take his chances of a favorable verdict, keeping in reserve the power to obtain a
new trial, if the verdict should be unfavorable.
must be a formal objection or exception, such as is required for the review of errors in law.'
Its foundation is that, where the consequences of an irregularity might have been avoided if
the attention of the court had been called to the matter at the proper time, it would be unjust
to permit the party to take his chances of a favorable verdict, keeping in reserve the power to
obtain a new trial, if the verdict should be unfavorable. By silence after knowledge of the
occurrence the party is held to have impliedly consented to it, and to have waived all
objections which may exist in connection with it. This principle is of extended operation, and
it is applied in almost every stage of judicial proceedings. So infinitely numerous and
complex are the possible combinations of circumstances during the progress of a cause that
without the healing operation of the rule in question there would be few verdicts that would
stand. The rule is well established, and its operation is illustrated by numerous decisions.
(Hayne, supra, subd. 1, pp. 98, 99.)
Another rule generally applicable to irregularities relates to the conduct of the party
himself who claims to have been injured by the irregularity alleged. He must show that there
has been no delay on his part in seeking a correction of the evil or a removal of its effects;
and, if this can be accomplished by bringing it to the attention of the court, that should be
done at the earliest possible moment. Failure to do so as soon as practicable will be construed
as amounting to acquiescence and waiver of the right to complain. Herein the courts enforce,
in cases to which it is applicable, an equitable estoppel. In other words they hold that it would
be inequitable to permit a party to remain silent, having knowledge of an act or episode
pending or during the trial which might prejudicially affect him, taking the chances of a
favorable decision, and after an unfavorable decision taking advantage of his knowledge,
ofttimes exclusive, to deprive the opposite party of its benefits. (Spelling on New Trial and
Appellate Proc. sec. 62.) See, also, Bayles on New Trials and Appeals, p. 590; 17 Am. &
Eng. Ency. Law, 2d ed. p. 1206; Wood v. Moulton, 146 Cal. 317, 80 Pac. 92.
It does not appear from the showing that this is a case within any exception to the rule,
for it cannot be said, we think, that had the matter been called to the attention of the
court promptly, any injury, possibly inflicted, could not have been remedied.
within any exception to the rule, for it cannot be said, we think, that had the matter been
called to the attention of the court promptly, any injury, possibly inflicted, could not have
been remedied. Counsel for appellants' main contention upon the merits of this case is that, as
a matter of law, deduced from the testimony of all the witnesses, both for the plaintiff and the
defendant, extralateral rights cannot exist where the formation is as described by the
witnesses. The statements of Boyle, made to the jury while viewing the premises, could
scarcely have had any effect upon this contention; for, if appellants' view of the law is correct,
such statements would have been immaterial. In so far as they might have had any effect in
convincing the jury that the Canyon claim possessed a vein distinguishable from the
formation which comprised its walls, and which, upon its dip, passed across the side lines,
extended vertically downwards, of the patented claim, the court, upon the matter having been
promptly brought to its attention, could doubtless have remedied the matter; at least we
cannot say that it could not. The affidavit being insufficient under the authorities quoted, the
court did not err in denying a new trial upon this ground.
4. The contention of counsel for appellant that the verdict is not supported by the evidence
requires no extended consideration at this time, in so far as the evidence itself is concerned.
The position of counsel in regard to the evidence is substantially the same as that taken upon
the former trial, and which was extensively considered upon the former appeal. It is sufficient
now to observe that it cannot be said that there is not substantial evidence to support the
verdict, unless we agree entirely with appellants' position upon the law. Counsel for
appellants contends, as a matter of law, that no extralateral right can legally exist through a
mineralized hanging and foot-wall formation, which is sufficiently mineralized to sustain a
mining location, and to induce the miner and prospector to expend his time and money in the
exploration thereof, even though scientists and geologists and hired experts might find
sufficient provocation to swear that they detect walls to any formation which they call an
independent vein coursing through such mineralized formation. We do not think counsel's
contention can be supported as an inflexible rule of law.
not think counsel's contention can be supported as an inflexible rule of law. We think that
counsel fails to distinguish between what is sufficient in the law to constitute a discovery
sufficient to support a valid location of a mining claim and what constitutes a vein having
defined walls, and to which extralateral rights attach. If we understand counsel correctly, he
takes the position that there is no distinction, and in this we think he is in error. Suppose a
vein containing valuable ore has well-defined walls, which are themselves but a part of a
mineralized zone, which carries small values, and which in places contains seams of quartz
sufficiently valuable to support a mining location, can it be said that such vein cannot be
regarded as separate and distinct from the mineralized zone? We think it cannot be so said.
What may constitute a discovery sufficient to validate a location may be, and frequently is, a
very different thing from what constitutes an apex of a vein which will entitle the owner
thereof to extralateral rights.
In the case of Grand Central Mining Co. v. Mammoth Mining Co., 29 Utah, 490, 575, 83
Pac. 648, the Supreme Court of Utah, after quoting definitions from the Eureka case, 4 Saw.
302, Fed. Cas. No. 4,548, Iron Silver Mining Co. v. Cheesman, 116 U. S. 529, 6 Sup. Ct. 481,
29 L. Ed. 712, and United States v. Iron S. M. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed.
571, by Bartch, C. J., said: In all these definitions, as will be noticed, the essential elements
of a vein are mineral or mineral-bearing rock and boundaries, and no doubt that, when one of
these elements is well established, very slight evidence may be accepted as to the existence
of the other.' It would seem, therefore, that where one claims extralateral rights under the acts
of Congress, because of a vein existing and apexing in his ground, but which has no
well-defined boundaries, he, when his claim is controverted, must, in order to exercise such
rights, show a ledge or body of mineral or mineral-bearing rock of such value as will
distinguish it from the country rock, or from the general mass of the mountain. The material
must in texture and value be such as to show the existence of a vein, and the mere fact, as has
been stated, or proof of the fact, that the rock is broken, shattered, and fissured and mixed
with calcareous substance, though it may show a conglomerate mass, does not establish,
in the sense of the statutes, a vein.
fissured and mixed with calcareous substance, though it may show a conglomerate mass, does
not establish, in the sense of the statutes, a vein. When, however, the walls or boundaries are
well defined, the vein differentiated from the adjacent country, and the kind of material
mentioned constitutes the filling, evidence of slight value in mineral will, it seems, be
sufficient.
It is insisted for the appellant, however, that a lode, within the meaning of the statute, is
whatever the miner can follow with a reasonable expectation of finding ore,' that though he
sees no ore, yet if he sees gangue and vein matter, he discovers the lode, and that whatever
material would be sufficient to render valid a location thereon would be sufficient evidence of
apex to justify one in following therefrom downwards, beyond the side lines of the location,
in the same kind of material, to and beneath the surface of this neighbor's property. We do not
thus interpret the law. What may constitute a sufficient discovery to warrant a location of a
claim may be wholly inadequate to justify the locator in claiming or exercising any rights
reserved by the statutes. What constitutes a discovery that will validate a location is a very
different thing from what constitutes an apex, to which attaches the statutory right to invade
the possession of and appropriate the property which is presumed to belong to an adjoining
owner. The question of a sufficient discovery of a vein, or of the validity of a notice of
location, upon which the cases cited by the appellant on this point are authority, is
substantially different from one relating to the continuity of a vein on its dip from the apex,
and which tests the rights of the undisputed owner of the surface to what lies underneath and
within his own boundaries. It is the object and policy of the law to encourage the prospector
and miner in their efforts to discover the hidden treasures of the mountains, and therefore, as
between conflicting lode claimants, the law is liberally construed in favor of the senior
location; but, where one claims what prima facie belongs to his neighbor, because of an apex
in the claimant's location, a more rigid rule of construction against the claimant prevails, and,
as we have already observed, he has the burden to show, not merely that the vein on its dip
may include the ore bodies in the adjoining ground, but that in fact it does so include
them.
include the ore bodies in the adjoining ground, but that in fact it does so include them. Until
he establishes such fact beyond reasonable controversy he has no rights outside his side lines
in another's ground.
In determining what constitutes such a discovery as will satisfy the law and form the
basis of a valid mining location, we find, as in the case of the definition of the terms lode or
vein, that the tendency of the courts is toward marked liberality of construction where a
question arises between two miners who have located claims upon the same lode, or within
the same surface boundaries, and toward strict rules of interpretation when the miner asserts
rights in property which either prima facie belongs to some one else, or is claimed under laws
other than those providing for the disposition of mineral lands, in which latter case the
relative value of the tract is a matter directly in issue. The reason for this is obvious. In the
case where two miners assert rights based upon separate alleged discoveries on the same vein
neither is hampered with presumptions arising from a prior grant of the tract, to overcome
which strict proof is required. In applying a liberal rule to one class of cases and a rigid rule to
another the courts justify their action upon the theory that the object of each section of the
Revised Statutes, and the whole policy of the entire law, should not be overlooked.' (1
Lindley on Mines, 2d ed. sec. 336.)
The Supreme Court of Montana, in Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 273, 30
L. R. A. 803, 52 Am. St. Rep. 665, observed: When it is said that a location may be
sustained by the discovery of mineral deposits of such value as to at least justify the
exploration of the lode in the expectation of finding ore sufficiently valuable to work, it is a
very different question from telling a jury that the geological fact of the continuity of the vein
to a certain point may be determined by what a practical miner might do in looking for some
hoped-for continuity.' (Migeon v. Montana Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. 156;
Bonner v. Meikle, 82 Fed. 697; United States v. Iron Silver Mining Co., 128 U. S. 673, 9 Sup.
Ct. 195, 32 L. Ed. 571.)
Reverting to the characteristic of a vein or lode, appearing from the definitions above
quoted, that its filling must consist of a body of mineral or mineral-bearing rock, what
value such material should contain is a matter not devoid of difficulty, and no standard of
value applicable to all such cases has yet, and probably never will be, devised.
from the definitions above quoted, that its filling must consist of a body of mineral or
mineral-bearing rock, what value such material should contain is a matter not devoid of
difficulty, and no standard of value applicable to all such cases has yet, and probably never
will be, devised. It must necessarily depend upon the characteristics of the district or country
in which the vein or lode, in any particular instance claimed to exist, is located, and upon the
character, as to boundaries, of the vein itself. If the country rock, or the general mass of the
mountain outside of the limits of the vein, is wholly barren, slight values of the vein material,
as before stated, would seem to satisfy the law; but if, on the other hand, the rock of the
district generally carries values, then undoubtedly the values in the vein material, where the
boundaries of the vein are not well or not at all defined, either on the surface or at depth,
should be in excess of those of the country rock, else there can be no line of demarcation, nor,
where the rock is generally broken, shattered, and fissured, anything to separate it from the
adjacent country. Values, therefore, of the filling of a vein, must be considered with special
reference to the district where the vein or lode is found. It is likewise as to a definition of a
vein or lode. In Migeon v. Montana Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. 156, it was said:
The definition of a lode must always have special reference to the formation and peculiar
characteristics of the particular district in which the lode or vein is found.' (Bonner v. Meikle,
supra.)
The mineral zone in question in this case is described as country rock cut by a series of
independent ledges of an approximately parallel dip, any one of which ledges has its entire
system of walls. Within this country rock comprising the mineral zone, at wide intervals, as
you would find in the bedding and cracks of any rock, are found quartz seamlets. The fact
that the Canyon ledge passes through a mineral zone of this character does not, we think,
make it an inseparable part of the general mass of rock comprising the zone, but, upon the
contrary, that it may be regarded separate and distinct therefrom, and may be followed upon
its dip. In the former appeal of this case, we said: If small pieces of quartz, narrow seams,
and little pockets of ore embodied in porphyry be deemed sufficient to sustain a location,
we do not understand that they give the owner any greater rights against veins apexing
on other claims dipping under this ground than he would have if his location were based
upon a substantial and well-defined ledge."
narrow seams, and little pockets of ore embodied in porphyry be deemed sufficient to sustain
a location, we do not understand that they give the owner any greater rights against veins
apexing on other claims dipping under this ground than he would have if his location were
based upon a substantial and well-defined ledge.
5. The contention of counsel for appellants that: The verdict and judgment and decree are
not supported by any evidence, and are contrary thereto, and contrary to each other in this:
The verdict is for $500 damages, and against all the defendants, whilst the judgment and
decree awarded damages against Murphy and Byers onlyis, we think, not well taken. We
think the lower court had power to enter up a judgment and decree in accordance with the
proofs, which showed, without contradiction, that all damages for the wrongful extraction of
ore was occasioned by the defendants Murphy and Byers, and not by the other defendants in
the action. Had the judgment for such damages been entered against all of the defendants, we
would have had power, upon this appeal, to have modified the judgment in the form in which
it was entered in the lower court, and it would have been our duty to have done so.
The record contains a number of other assignments of error, but the view which we have
taken upon the main questions heretofore considered makes it, we think, unnecessary to
consider them.
Counsel for appellants has filed a petition for a rehearing in which he contends that this
court should consider the affidavit of Alfred Chartz, filed after the motion for a new trial had
been determined in the lower court, because there was no suggestion of diminution of record
or motion to strike, and that both parties impliedly agreed that the court should consider the
affidavits filed, which are conceded to be dehors the record; also that the conclusion reached
by this court on the town-site question is contrary to the decisions of the Supreme Court of
the United States cited by us in support of the opinion heretofore rendered.
the town-site question is contrary to the decisions of the Supreme Court of the United States
cited by us in support of the opinion heretofore rendered.
Our former ruling, that the affidavit referred to cannot be considered upon the appeal is
abundantly supported by numerous decisions of this court. (Simpson v. Ogg, 18 Nev. 28;
Marshall v. Golden Fleece M. Co., 16 Nev. 156; State v. McMahon, 17 Nev. 365; State v.
McLane, 15 Nev. 345, 371.)
Upon the town-site question, the petition does not present any points not thoroughly
covered by the original brief. On account of the importance of the question, however, we
have again carefully considered the decisions of the Supreme Court of the United States and
others not cited, and we are still of the opinion that the conclusions heretofore reached are not
in conflict with the decisions of the Supreme Court of the United States, but are in harmony
therewith.
The petition is denied.
____________
31 Nev. 433, 433 (1909) Reno Brewing Co. v. Packard
[No.1786]
RENO BREWING COMPANY (Incorporated), Respondent,
v. IRA PACKARD and GEO. F. WELLS, Appellants.
1. BoundariesMeandered Waters.
A patent of government lots located on a river conveys to the river, and not merely to the meander line.
2. EvidenceRecords.
The record of a patent from the United States is admissible in evidence, Comp. Laws, 324, making
special provisions for recording such patents and the use of such records as evidence.
3. Adverse Possession.
Color of title in plaintiff and its payment of the taxes on the land make it impossible, under Comp. Laws,
3709, for title by adverse possession to be acquired by defendant, whose possession was subordinate even
to that of one who occupied the premises in subordination to the title of plaintiff, and virtually as its tenant.
1. EjectmentTitle to Support ActionRecognition of Plaintiff's Title.
In ejectment, under civil practice act, sec. 256, et seq. (Comp. Laws, 3351, et seq.), authorizing an action
by any person in possession by himself or tenant against one claiming an interest adverse to him, to
determine the adverse interest, etc., that defendant relied on a deed from a third person, who acknowledged
the paramount title in plaintiff, and that his possession was that of a tenant, and that defendant had no
interest other than that obtained from the deed, authorizes a judgment for plaintiff.
2. Appeal and ErrorHarmless ErrorDenial of NonsuitDefects Supplied Subsequently.
Where defendant, after the court refused a nonsuit, introduced evidence which supplied defects in
plaintiff's case, the appellate court will not reverse the judgment for plaintiff.
Action by the Reno Brewing Company against Ira Packard and another. From a judgment
for plaintiff, defendant George F. Wells appeals. Affirmed. Petition for rehearing. Denied.
J. B. Dixon, for Appellant:
I. It is universally held that the plaintiff in ejectment must recover upon the strength of his
own title, and will not be permitted to rely on the weakness of his adversary.
be permitted to rely on the weakness of his adversary. The reason for this rule is that the
person in possession, or the prima facie owner of the property, ought not to be required to
give up the possession, however weak his title is, until the true owner establishes his title.
The right of defendant to set up a subsisting or outstanding title in a stranger rests on the
same foundation. It is a general rule that the plaintiff must prove title in himself; that he had a
right to the immediate possession of the premises at the commencement of the action. The
rule most broadly stated is that the plaintiff in ejectment must prove a regular chain of title to
some grantor in possession, or the government. Where plaintiff relies on documentary proof
of title, a complete and perfect title must be shown; and if a material link in the chain be
wanting, he fails. Plaintiff must show an ouster by defendant. (3 Elliot, Ev. sec. 2039, and
cases cited; 2 Greenl. Ev. secs. 303, 304, 331; 15 Cyc. 15, 39, 117; Abbott, Trial Ev. 2d ed.
872, 873.)
II. There is no statutory or other provision for the proof of a patent by the record. Comp.
Laws, 2669, provides only for instruments that are acknowledged, certified and recorded.
The patent in this case was neither acknowledged nor certified.
James T. Boyd and A. N. Salisbury, for Respondent:
I. The defendant Wells seemed to think that the land lying between the meander line on the
southern part of lots 1, 2, 3, and 4 and the river was open public land subject to location, and
in his testimony he asserted that he thought the land lying between the meander line and the
river was subject to location the same as any other land. To secure title from the government
upon what he thought was public land he located two mill sites. Packard was a mere occupier
of the premises, as a favor from Samuel Brown, and occupied the premises solely on
consideration that he would take care of them. He continued such occupancy under the Reno
Brewing Company. At best he was only a tenant at will. (Washburn, Real Property, sec. 765.)
The relation between Brown and Packard was that of landlord and tenant.
II. The original entry of Packard was unlawful, but his agreement with Brown to take
care of the property was a recognition of Brown's superior title.
agreement with Brown to take care of the property was a recognition of Brown's superior title.
Brown's death terminated the agreement between Brown and Packard, and after that Packard
merely held by sufferance. (Washburn, Real Property, sec. 825, et seq.) Packard's agreement
with the brewing company, dated January 26th, would have given him a right to have lived
upon the premises until May, 1907, and created the relationship of landlord and tenant
between him and the brewing company. This relationship was terminated by Packard when he
attempted to assert a right adverse to that of his landlord, and entitled the landlord to the right
of immediate possession. (Washburn, Real Property, sec. 773.) Packard, while in the
possession of the property, was estopped from denying the title of the plaintiff or its grantors.
No matter how defective the landlord's title might be, the tenant must surrender the
possession to the landlord, and to him only can a valid possession be given. He cannot assign
nor convey an estate at will. He cannot assert a paramount title in himself until he has first
surrendered possession to his landlord. (18 Am. & Eng. Ency. Law, 411, 413, 414;
Washburn, sec. 774.)
III. There are five essential elements necessary to constitute an effective adverse
possession: (1) the possession must be hostile, under a claim of rights; (2) it must be actual;
(3) it must be open and notorious; (4) it must be exclusive, and (5) it must be continuous. If
any of these constituents are wanting, the possession will effect a bar of the legal title. (1 Am.
& Eng. Ency. Law, 795, and authorities therein cited.) The actual and peaceable possession of
land does not necessarily make the possession adverse to the true owner. It depends upon the
intention of, and the character of the claim asserted by, the party in possession. (McDonald v.
Fox, 20 Nev. 364.) An adverse and hostile possession is one held for the possessor as
distinguished from one held in subordination to the rights of another; in other words, it is a
possession inconsistent with the possession or the right of possession by another. (1 Am. &
Eng. Ency. Law, 789.) The intention with which possession is taken or held is regarded as a
controlling factor in determining whether or not it is adverse.
There must be an intention to claim the title as owner and in derogation of the rights of the
true owner. (McDonald v. Fox, 20 Nev. 364; Thompson v. Pioche, 44 Cal. 509; Abernathie v.
Con. Virginia M. Co., 16 Nev. 261.)
IV. The appellant does not claim any title by reason of a purchaser without notice, nor does
he claim any title except such as he acquired by reason of his residence under the permission
from Packard. The work that he and Packard did on the place was simply complying with the
agreement originally entered into with Samuel Brown. (Devlin on Deeds, sec. 465, et seq.,
and cases cited therein.)
This is an action commenced by the above-named respondent against the above named
defendants to have said defendants ejected from certain premises, comprising about five and
three-quarters acres of land situated upon the north bank of the Truckee River, and between
said bank and the meander line of said river, in section 12, township 19 north, range 19 east,
in the County of Washoe.
The defendant I. Packard appeared in the action, and filed a disclaimer of any interest in
the premises in controversy, and the case as to him was dismissed. The defendant Wells filed
an answer to the plaintiff's complaint, in which he set up a right of possession in himself to
the land in controversy. He alleged in his answer that he had acquired title to the premises as
against the plaintiff and its grantors by adverse possession; further, that the land lying
between the meander line and the north bank of the Truckee River was public land of the
United States, upon which he had located two mill sites, and was then the owner and holder
of such lands by virtue of said mill sites. Upon the part of the plaintiff there was offered in
evidence the record copy of a patent of the United States to one Peter Countryman, conveying
lots numbered 1, 2, 3, and 4 of section 12, township 19 north, range 19 east, dated February 5,
1869. Plaintiff claims title to the land in question under and by virtue of this patent, and by
mesne conveyances from the said Peter Countryman and his grantees to the plaintiff. The
Truckee River crossing, as it does, the north half of said section 12, the land, when
surveyed, was designated as lots, instead of the ordinary subdivisions, with the exception
of the northwest quarter of the northwest quarter of said section.
north half of said section 12, the land, when surveyed, was designated as lots, instead of the
ordinary subdivisions, with the exception of the northwest quarter of the northwest quarter of
said section.
The defendant's claim of right of possession to the land in controversy by virtue of his
mill-site locations may be determined by ascertaining what lands passed from the government
under and by virtue of the Countryman patent. If the southerly boundary line of said lots 1, 2,
3, and 4 is the north bank of the Truckee River at low-water mark, then the defendant could
not, under any circumstances, have made a valid location of a mill site, for the reason that the
land in question had ceased to be a part of the public domain. Counsel for defendant and
appellant, however, contends that the meander line of said Truckee River is the boundary of
the land conveyed by the government under the patent, and that the land between the meander
line and the river remained a part of the public domain. That counsel is in error in this
contention is well settled, we think, by the decisions of this and other state courts, as well as
by the federal courts.
In Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428, the Supreme
Court of the United States by Bradley, J., said: The meander lines, run along or near the
margin of such waters, are run for the purpose of ascertaining the exact quantity of the upland
to be charged for, and not for the purpose of limiting the title of the grantee to such meander
lines. It has frequently been held, both by the federal and state courts, that such meander lines
are intended for the purpose of bounding and abutting the lands granted upon the waters
whose margins are thus meandered, and that the waters themselves constitute the real
boundary. (Railroad Co. v. Schurmeir, 7 Wall. 272, 19 L. Ed. 74; Jefferis v. East Omaha
Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; Middleton v. Pritchard, 3 Scam.
510, 38 Am. Dec. 112; Canal Trustees v. Haven, 5 Gilman, 548, 558; Houck v. Yates, 82 Ill.
179; Fuller v. Dauphin, 124 Ill. 542, 16 N. E. 917, 7 Am. St. Rep. 388; Boorman v.
Sunnuchs, 42 Wis. 233, 235; Pere Marquette Boom Co. v. Adams, 44 Mich. 403, 6 N. W.
857; Clute v. Fisher, 65 Mich. 48, 31 N. W. 614; Ridgway v. Ludlow, 58 Ind.
Ind. 248; Kraut v. Crawford, 18 Iowa, 549, 87 Am. Dec. 414; Forsyth v. Smale, 7 Biss. 201,
Fed. Cas. No. 4,950; Rev. St. secs. 2395, 2396.) Mr. Justice Clifford in the case first cited
says: Meander lines are run in surveying fractional portions of the public lands bordering
upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the
sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the
land in the fraction subject to sale, and which is to be paid for by the purchaser. In preparing
the official plat from the field notes the meander line is represented as the border line of the
stream, and shows to a demonstration that the water course, and not the meander line, as
actually run on the land, is the boundary.'
In Shoemaker v. Hatch, 13 Nev. 261, this court, in an opinion by Beatty, J., considering a
question involving the land on the south bank of the Truckee River, and immediately opposite
that involved in this suit, held that the water course, and not the meander line by which it is
surveyed, is the boundary of the fractional subdivisionsciting Railroad Co. v. Schurmeir,
supra. The case of Hendricks v. Feather River Canal Co., 138 Cal. 423, 71 Pac. 496,
presented a question practically identical with that here involved. Respondents had located
mining claims between the meander line and the bank of the river, upon the theory that such
land was public domain. The courts held the locations void, and affirmed the judgment
quieting title in the lot owners, for the reason that the lots were bounded by the river and not
by the meander line.
See, also, Kirby v. Potter, 138 Cal. 688, 72 Pac. 338; Turner v. Parker, 14 Or. 340, 12
Pac. 495; Schurmeir v. Railroad Co., 10 Minn. 82 (Gil. 59); 88 Am. Dec. 59.
The defendant's claim to the right of possession of the premises in controversy by reason
of adverse possession is little, if any, stronger than his claim to said land by virtue of his
mill-site locations. The record discloses that one Samuel Brown came into possession of lots
1, 2, 3, and 4 of said section 12 by virtue of a written conveyance made in the year 1876, and
recorded in the records of Washoe County. From that time, until his death on the 26th day of
January, 1899, the said Samuel Brown claimed and held said lots by virtue of such
conveyance.
the said Samuel Brown claimed and held said lots by virtue of such conveyance. By decree of
the district court in and Washoe County the said property was distributed to the heirs at law
of said Brown. On the 29th day of January, 1899, all of the said heirs at law of Samuel
Brown, deceased, made and executed a power of attorney to Sardis Summerfield, of Reno,
Nevada, empowering him to sell and transfer the interests of said heirs and distributees in
said lots of land, which power of attorney was duly recorded. On the 19th day of May, 1906,
a tract of land described by metes and bounds, and comprising a portion of said lots 1, 2, 3,
and 4, and inclusive of the land in controversy in this action, was conveyed by the said heirs
and distributees of Samuel Brown to the plaintiff herein, and duly executed by the said heirs
through the said attorney in fact, Sardis Summerfield.
Ever since said deed last mentioned, and at the time of bringing this action against said
defendants, the plaintiff has been in the possession, and claiming the right of possession,
under and by virtue of said last-mentioned deed. The record discloses that during the time the
said Sardis Summerfield held the power of attorney of the said heirs and distributees of
Samuel Brown, deceased, he paid the taxes for them upon all of the land distributed to them,
as aforesaid, which included the land in controversy. While the defendant's answer alleges
that defendant had paid all the taxes assessed against the land in controversy, he admitted
upon the trial that he had never paid any taxes thereon, and made such allegation solely upon
the theory that said land belonged to the government, and was not assessed. The record
discloses that about twelve years prior to the institution of this suit the defendant Packard
entered into the possession of a vacant cabin upon the land in controversy, and remained
thereon, occupying the same as his home, until a short time prior to the institution of this
action. It clearly appears, however, that Packard never at any time asserted any ownership to
the land in question, but that he recognized the ownership thereof in the said Samuel Brown
up until the time of his death; that he thereafter recognized that the said Sardis Summerfield
exercised control and supervision over the same; that after the plaintiff purchased the land,
he recognized plaintiff's title thereto in writing.
the plaintiff purchased the land, he recognized plaintiff's title thereto in writing.
Shortly before the institution of this action, the said Packard made and executed a deed of
the premises in controversy to the defendant Wells, but it is clear from the facts stated that the
defendant Wells acquired no title by virtue of this deed, for Packard had none to convey. The
record discloses that the defendant Wells first entered upon the land in controversy in
September or October of 1900, and has since that time occupied a cabin upon said premises,
which cabin was upon the property prior to his entry thereon; that he entered and began to
live in said cabin by the consent of one Thomas Donnelly, who was living thereon by the
consent of said Packard, who in turn was remaining on the property by the consent and
sufferance of the said Samuel Brown and his successors in interest; that the defendant Wells
did not openly assert any claim or right of possession to the property in controversy until after
the plaintiff had purchased the land from the heirs of Samuel Brown, deceased.
We think it manifest from the evidence that the defendant Wells did not conclude to assert
any claim or ownership to the property until he had concluded in his own mind that the land
between the meander line and the river was public domain, and that he concluded then to
assert rights of adverse possession because of this supposed discovery upon his part. Section
3709, Compiled Laws of Nevada, provides: In every action for the recovery of real property,
or the possession thereof, the person establishing a legal title to the premises shall be
presumed to have been possessed thereof within the time prescribed by law; and the
occupation of such premises by any other person shall be deemed to have been under and in
subordination to the legal title, unless it shall appear: First, that it has been protected by a
substantial inclosure; or, second, that it has been cultivated or improved in accordance with
the usual and ordinary methods of husbandry; provided, that in no case shall adverse
possession be considered established unless it be shown, in addition to the above
requirements, that the land has been occupied and claimed for the period of five years,
continuously, and that the party or persons, their predecessors and grantors, have paid all
taxes, state, county, and municipal, which may have been levied and assessed against
said land for the period above mentioned."
sons, their predecessors and grantors, have paid all taxes, state, county, and municipal, which
may have been levied and assessed against said land for the period above mentioned.
Counsel for appellant assigns a number of errors in the admission of certain of the
plaintiff's muniments of title. The first of these assignments goes to the admissibility of the
record of the patent from the United States to Peter Countryman. He asserts that such record
was not admissible under the provisions of Comp. Laws, 2669. We need not consider whether
it was admissible under the provisions of this section, as section 324 of the Compiled Laws
makes specific provisions for the recording of such patents and the use of such record as
evidence.
We need not go into an examination of the numerous objections made to the other
instruments admitted, for we think they were admissible for the purpose of showing color of
title in the plaintiff and its grantors at the very least. Color of title in the plaintiff and its
grantors, taken together with the fact that the taxes upon the land were paid by the plaintiff's
grantors, and that the defendant Packard occupied the premises in subordination to such title,
and virtually as the tenant of the plaintiff and its grantors and predecessors in interest, made it
impossible for the defendant Wells to acquire any adverse title, when it appears undisputed
that the possession of the defendant Wells was subordinate even to that of Packard.
The judgment and order of the lower court are affirmed.
Counsel for the appellant has filed a lengthy petition for a rehearing, in which he urges that
this court should have passed upon the numerous objections and exceptions to the
introduction in evidence of the plaintiff's record title, which objections and exceptions were
learnedly and elaborately argued in more than thirty pages of brief. Even if we were to hold,
with counsel for appellant, that the proper foundation was not laid for the introduction of the
record of the various instruments constituting the plaintiff's paper title, and for that and other
reasons assigned the court erred in admitting such record, nevertheless the judgment
should be affirmed; hence, it would serve no purpose to determine whether the trial court
erred in this respect.
that and other reasons assigned the court erred in admitting such record, nevertheless the
judgment should be affirmed; hence, it would serve no purpose to determine whether the trial
court erred in this respect.
Upon the whole case, as finally submitted to the court, it is clear that plaintiff was entitled
to judgment. The appellant Wells, in order to establish his alleged title by adverse possession,
was obliged to rely upon the possession of the defendant Packard. He offered in evidence a
deed from Packard, dated March 2, 1907, to the premises in controversy. Packard, at the time
of executing this deed, had no pretense of any claim upon the property, other than possibly
that of a tenant. His testimony upon the trial was to the effect that he had recognized title first
in Samuel Brown, secondly in the heirs of Samuel Brown, the immediate grantors of the
respondent, and lastly in the respondent. On January 25, 1907, Packard signed and delivered
to respondent the following writing: Reno, Nevada, Jan. 25th, 1907. I, Ira Packard, for the
priveledge [privilege] of occupying a certain cabin as a place of abode which is owned by the
Reno Brewing Co., Inc., of Reno, Nevada, and is situated along the bank of the Truckee River
and lying across the track of the Southern Pacific Railway Company, and immediately south
of the plant of said Reno Brewing Co., Inc., do agree to look after said property and to vacate
the same on the 1st day of May, 1907. Ira Packard.
Subsequently Packard presented a claim to the respondent in the sum of $1,200 for his
services in taking care of the premises for six or seven years. The fact that Packard is shown
to have acknowledged the paramount title in the respondent, and that his possession was at
the most only that of a tenant, and that Wells had no interest other than that obtained through
Packard, was alone sufficient to entitle the plaintiff to recover. While proceedings of this
character are commonly referred to as actions in ejectment, the same as an action for claim
and delivery of personal property is usually referred to as an action in replevin, nevertheless it
should be borne in mind that the action of ejectment, as recognized at common law, has been
modified by statute in this state.
(Civil Practice Act, sec. 256, et seq.; Comp. Laws, 3351, et seq.; Alford v. Dewin, 1 Nev.
207.)
We need not consider, we think, the contention of counsel for appellant that the trial court
should have sustained the motion for a nonsuit. Whatever, if anything, was lacking to
establish plaintiff's right of recovery at the time it rested its case, was certainly furnished by
the testimony of the defendants. Where such a condition exists, the appellate court would not
be warranted in reversing a judgment. (Power v. Stocking, 26 Mont. 478, 68 Pac. 857; City v.
Lewis, 34 Wash. 413, 75 Pac. 982.)
The petition for a rehearing is denied.
____________
31 Nev. 444, 444 (1909) Kapp v. District Court
[No. 1833]
CHARLES F. KAPP, Petitioner, v. THE DISTRICT COURT OF THE SEVENTH
JUDICIAL DISTRICT OF THE STATE OF NEVADA, Et Al., Respondents.
1. CertiorariReviewScope.
The inquiry on a writ of certiorari will not be extended further than to determine whether the inferior
tribunal has jurisdiction to make the orders complained of; and, if the record discloses that it has complete
jurisdiction, any error in an order will not be considered.
2. DivorceCruel and Inhuman TreatmentComplaintSufficiency.
A complaint, in an action by wife for divorce, alleging that defendant inhumanly caught plaintiff by the
throat in an angry and threatening manner, and forced her out of the house; threatened her and commanded
that she leave; called her vile and opprobrious names, thereby causing her to become weak and nervous,
fearfully suffering bodily injury at defendant's handssufficiently alleged extreme cruelty.
3. DivorceAlimony Pendente LiteModification of Order.
Under Comp. Laws, 507, providing that in any suit for divorce the court may, at any time after the filing
of the complaint, require the husband to pay such sums as may be necessary to enable the wife to carry on
or defend such suit, and for her support, etc., pending such suit, the court may, where it has jurisdiction,
during a divorce action, increase or diminish the allowance from time to time as the circumstances may
require.
4. DivorceAlimonyReviewCertiorari.
Where the court has jurisdiction of divorce action, and has discretion to make such an allowance to the
wife as the circumstances warrant pendente lite, the supreme court will not annul such an order by writ of
certiorari.
Original proceeding. Application for a writ of certiorari by Charles F. Kapp against the
District Court of the Seventh Judicial District of the State of Nevada, and others. Dismissed.
Detch & Carney, for Petitioner.
Thompson, Morehouse & Thompson, for Respondents.
This is an original proceeding in certiorari, brought to review certain orders made in the
respondents' court by the respondent judge in a divorce suit therein pending, modifying and
increasing the amount of alimony granted respondent pendente lite from $100 to $200
per month, and adjudging petitioner guilty of contempt of court for failure to comply with
the order of the court increasing said alimony.
ing and increasing the amount of alimony granted respondent pendente lite from $100 to $200
per month, and adjudging petitioner guilty of contempt of court for failure to comply with the
order of the court increasing said alimony.
The complainant, Margaret G. Kapp, commenced an action on the 28th day of August,
1908, in the above-entitled district court against the petitioner herein, Charles F. Kapp, upon
the ground of extreme cruelty. Upon the filing of said complaint said court issued an
injunction restraining the said petitioner from interfering with the said Margaret G. Kapp, and
enjoining him from transferring or disposing of any of his property pending the termination of
the suit. Thereafter the plaintiff applied to the district court for alimony pendente lite, and the
parties to the suit through their respective counsel entered into a stipulation respecting the
alimony to be allowed pendente lite, granting respondent alimony of $100 per month, and
certain court costs and counsel fees, which the court ordered in conformity with said
stipulation, which was filed. Subsequently, on the 27th day of November, 1908, the
respondent Margaret G. Kapp moved the court, upon due and regular notice and motion, to
set aside the former order for $100 alimony, and grant plaintiff $400 per month pendente lite
for several reasons assigned. This motion was contested upon affidavits and heard by the
court, and the court, after hearing the application, increased the alimony from $100 to $200
per month. The defendant refused, failed, and neglected to comply with this last order
commanding him to pay alimony, whereupon an affidavit was filed, and an order made citing
defendant to show cause why he should not be punished for contempt. In compliance with the
order to show cause he duly appeared and filed an affidavit, setting forth, in effect, that there
was nothing in the change of situation of the respective parties to warrant the increase of the
alimony averred, and that the court was without power, authority, or jurisdiction to enter such
an order, and that for these reasons he could not be adjudged guilty of contempt, and moved
to set aside and vacate the order fixing the alimony at $200 per month. After a hearing of the
citation his motion was denied, and he was adjudged guilty of contempt for not obeying the
order of the court, and sentenced, upon failure to comply with the order by 10 o'clock of
the 12th day of April, 1909, to be committed to the county jail of the said Esmeralda
County until the said order was complied with.
ing the order of the court, and sentenced, upon failure to comply with the order by 10 o'clock
of the 12th day of April, 1909, to be committed to the county jail of the said Esmeralda
County until the said order was complied with.
This court has repeatedly and uniformly held that the inquiry upon the writ of certiorari
will not be extended further than to determine whether the inferior tribunal has jurisdiction to
make the orders complained of, and that if the record discloses it has complete jurisdiction,
any error in the order of the court will not be considered. (Maynard v. Railey, 2 Nev. 313;
State v. County Commissioners of Washoe County, 5 Nev. 317; State ex rel. Fall v. County
Commissioners of Humboldt County, 6 Nev. 100; State ex rel. Mason v. County
Commissioners of Ormsby County, 7 Nev. 392; Hetzel v. County Commissioners of Eureka
County, 8 Nev. 359; Maxwell v. Rives, 11 Nev. 213; In re Wixom, 12 Nev. 219; State v.
District Court, 16 Nev. 76; State v. District Court, 26 Nev. 253; Florence-Goldfield M. Co. v.
First Judicial District Court, 30 Nev. 391; 4 Ency. Pl. & Pr. 127.)
It is contended by petitioner that the facts set forth in plaintiff's complaint do not constitute
a cause of action, in that the allegations in said complaint of cruel and inhuman treatment do
not show any acts of physical violence, or any acts showing any threatening of injury, or facts
sufficient to warrant the court in finding that the mental suffering arising therefrom
sufficiently endangers the plaintiff's health, physically or mentally, to constitute extreme
cruelty. Paragraph 3 of plaintiff's complaint alleges: That shortly after their said marriage,
defendant commenced toward plaintiff a course of cruel and inhuman conduct, of such
character as, plaintiff alleges, constitutes extreme cruelty in this, to wit: That on divers
occasions, without any fault, at their own residence here, in Goldfield, said defendant cruelly,
wantonly, and inhumanly caught plaintiff by the throat, in an angry and threatening manner,
and forced her out of the house, and threatened her, and directed and commanded that she
leave and depart from their residence, and from her own home, and on divers and sundry
occasions, the days and date whereof plaintiff cannot state with particularity, the said
defendant spoke, of and concerning plaintiff, without cause therefor, vile and opprobrious
names, with the intent and purpose to wound, annoy, fret, worry, and disturb the said
plaintiff.
and concerning plaintiff, without cause therefor, vile and opprobrious names, with the intent
and purpose to wound, annoy, fret, worry, and disturb the said plaintiff. That plaintiff is a
weak and nervous woman, of education and refinement, and having, prior to her said
marriage with the defendant, been brought up in good society, with good social, refined, and
educated surroundings, and has all her life lived a virtuous and upright life, conducting
herself in a ladylike and respectable manner, and has always sought to perform her part of her
marital obligation to and with the defendant, but said defendant, without cause therefor, has
so conducted himself toward the plaintiff, by reason of assaulting her physically and
wounding and injuring her physically, and by calling her vile and opprobrious epithets, that
plaintiff has become weak and nervous, and is in that weak and nervous condition that it is
impossible for her to live with said defendant without serious injury to her health, and that by
reason of the facts aforesaid said plaintiff has been compelled to and has lived separate and
apart from said defendant in the same dwelling; that she is afraid of her life by reason of the
conduct of the said defendant, and fearful of suffering great bodily injury at his
handswherefore said plaintiff avers that said defendant has been and is guilty of extreme
cruelty toward the plaintiff.
We believe this allegation sufficient, if properly proven, to constitute extreme cruelty
under the laws of this state.
This court, in the case of Kelly v. Kelly, 18 Nev. 55, 51 Am. Rep. 732, in passing upon the
question of extreme cruelty, said: In considering extreme cruelty as a ground of divorce
courts have cautiously given it negative, rather than affirmative, definitions. The difficulty in
giving an affirmative definition arises from the fact that cruelty is a relative term; its
existence frequently depends upon the character and refinement of the parties, and the
conclusion to be reached in each case must depend upon its own particular facts. We do not
divorce savages and barbarians because they are such to each other,' said the Supreme Court
of Pennsylvania, in Richards v. Richards. We can exercise no sound judgment in such cases
[divorce cases] without studying the acts complained of in connection with the character of
the parties, and for this we want the common sense of the jury rather than fixed legal
rules.' {37 Pa.
connection with the character of the parties, and for this we want the common sense of the
jury rather than fixed legal rules.' (37 Pa. 228.)
In the great case of Evans v. Evans, 1 Hagg. Cons. 35, Lord Stowell laid down certain
principles which have been universally approved. He said: What is cruelty? In the present
case it is hardly necessary for me to define it, because the facts here complained of are such as
fall within the most restricted definition of cruelty; they affect not only the comfort, but they
affect the health and even the life of the party. * * * What merely wounds the mental feelings
is in few cases to be admitted, when not accompanied with bodily injury, either actual or
menaced. Mere austerity of temper, petulance of manner, rudeness of language, a want of
civil attention and accommodation, even occasional sallies of passion, if they do not threaten
bodily harm, do not amount to legal cruelty; they are high moral offenses in the marriage state
undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against
which the law can relieve. * * * In the older cases of this sort which I have had an opportunity
of looking into, I have observed that the danger of life, limb, or health is usually inserted as
the ground upon which the court has proceeded to a separation. This doctrine has been
repeatedly applied by the court in the cases that have been cited. The court has never been
driven off this ground. It has been always jealous of the inconvenience of departing from it,
and I have heard no case cited in which the court has granted a divorce without proof given of
a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court
is not to wait until the hurt is actually done; but the apprehension must be reasonable. It must
not be an apprehension arising merely from an exquisite and diseased sensibility of the mind.'
Adopting the principle that the element of danger to life, limb, or health, or the
reasonable apprehension of such danger, must exist in order to constitute legal cruelty, can it
be affirmed as matter of law that the plaintiff may not have established a cause of action
under the complaint? If the conduct of which the defendant confesses to have been guilty,
and which she admits drove the plaintiff from his home, could have resulted in injury to
health, then the judgment must be allowed to stand.
and which she admits drove the plaintiff from his home, could have resulted in injury to
health, then the judgment must be allowed to stand. The result which the law is intended to
prevent may be accomplished without any physical violence. The health of a sensitive wife
may be as effectually destroyed by systematic abuse, and humiliating insults and annoyances,
as by blows and batteries. It would be a reproach to the law, as is said by Mr. Bishop in his
work on Marriage and Divorce, to say that a husband may not by personal violence ruin the
health of his wife or kill her, and yet allow him to produce the same result in some other way.
(Section 733.)
Upon this subject the Pennsyvlania court of common pleas employed the following
language: A husand may, by a course of humiliating insults and annoyances, practiced in the
various forms which ingenious malice could readily devise, eventually destroy the life or
health of his wife, although such conduct may be unaccompanied by violence, positive or
threatened. Would the wife have no remedy in such circumstances under our divorce laws,
because actual or threatened personal violence formed no element in such cruelty? The
answer to this question seems free from difficulty when the subject is considered with
reference to the principles on which the divorce for cruelty is predicated. The courts intervene
to dissolve the marriage bond under this head for the conservation of the life or health of the
wife, endangered by the treatment of the husband. The cruelty is judged from its effects, not
solely from the means by which those effects are produced. To hold absolutely that, if a
husband avoids positive or threatened personal violence, the wife has no legal protection
against any means short of these which he may resort to, and which may destroy her life or
health, is to invite such a system of infliction by the indemnity given to the wrongdoer. The
more rational application of the doctrine of cruelty is to consider a course of marital
unkindness with reference to the effect it must necessarily produce on the life or health of the
wife, and, if it has been such as to affect or injure either, to regard it as true legal cruelty. This
doctrine seems to have been the view of Sir H.
Jenner Fust, in Dysart v. Dysart, where he deduces from what Sir William Scott ruled in
Evans v. Evans, that if austerity of temper, petulance of manner, rudeness of language, a want
of civil attention, occasional sallies of passion, do threaten bodily harm, they do amount to
legal cruelty. This idea, expressed axiomatically, would be no less than the assertion of this
principle: That, whatever form marital ill-treatment assumes, if a continuity of it involves the
life or health of the wife, it is legal cruelty.' (Butler v. Butler, 1 Par. Eq. Cas. Pa. 344.)
We scarcely need the aid of judicial authority for the enforcement of the truth that there
may be cruelty without personal violence, and that such cruelty, working upon the mind, may
affect the health. Wretchedness of mind can hardly fail to have this result. In cases of divorce
upon the ground of cruelty, wives appear as complainants more frequently than husbands.
This arises from the fact that the husband is generally physically stronger than the wife, and
less susceptible to the effect of ill-treatment than she. He, too, may in fact frequently restrain
the wife's violence by the exercise of marital power in the domestic forum, without the aid of
courts. But the law does not encourage him to measure strength with her. The fact that the
husband can defend himself is the very grievance. It is because he may be tempted, in
defending himself, to retaliate upon his wife that the court is bound to interfere, and to decree
a judicial separation when such acts are proved. When a man marries an ill-tempered woman
he must put up with her ill humor; but the moment she lifts her hand against him, the court
must interfere, for, if it does not, how can it answer the husband if he should subsequently
allege that he had been forced to use violence in self-defense.' (Forth v. Forth, 36 Law J. 122,
cited in Browning on M. and D. 111.)
The statute contemplates cases in which the husband may be the complaining party, and
in such cases expressly affords him the same relief which it extends to a complaining wife.
Although he is generally physically stronger than she, he may be the weaker party. And cases
may arise in which the wife may cause the husband to suffer as seriously, mentally and
physically, as she would were he the aggressor. To reverse this judgment would be to say,
as matter of law, that no such cases could exist.
reverse this judgment would be to say, as matter of law, that no such cases could exist. * * *
In the case of Reed v. Reed, 4 Nev. 397, the following was said and quoted with approval
by this court: The application for the divorce being founded upon the statutory ground of
extreme cruelty, it becomes necessary to determine what acts or character of treatment will in
the eye of the law amount to such cruelty. This is a question which has often received the
consideration of courts, but as it is a matter which must in a great measure be determined by
the character of the respective parties, and the peculiar circumstances of each case, no general
rule sufficiently comprehensive to embrace all cases can well be established. In the case of
Morris v. Morris, 14 Cal. 76, 73 Am. Dec. 615, this language is employed by the court: We
construe the expression extreme cruelty, as used in our statute, to mean the same thing as
the saevitia, or cruelty of the English ecclesiastical courts, and the offense may be defined in
general terms to be any conduct in one of the married parties which furnishes reasonable
apprehension that the continuance of the cohabitation would be attended with bodily harm to
the other. Courts do not interefere in these cases so much to punish the offense already
committed as to relieve the complaining party from an apprehended danger.'
This is the general language of the books, and it will be observed that physical injury
alone seems to merit consideration, whilst the subtle torture of mental anguish, unless
occasioned by personal violence done or apprehended, is entirely overlooked. There may be
extreme cruelty without the slightest violencethe happiness of a life may be destroyed by a
course of conduct which could furnish no ground for apprehending bodily harm or injury. The
rule as enunciated in Morris v. Morris furnishes no redress for that more refined brutality
which inflicts its violence upon the mind. In our judgment it is the effect and probable
consequence of the misconduct complained of which should control the action of the courts
more than anything else. Hence, if it appear probable that the life of one of the parties is
rendered miserable by any character of misconduct on the part of the other, although no
personal violence be apprehended, or if there be reason to apprehend bodily harm, if the
marriage relation be continued, the separation should be decreed.
although no personal violence be apprehended, or if there be reason to apprehend bodily
harm, if the marriage relation be continued, the separation should be decreed. It is evident that
much must be left to the discretion of the court and jury in determining whether certain acts,
or course of conduct, amount to extreme cruelty, or it is manifest from the nature of things
that acts which would be extreme cruelty under some circumstances would not be so under
others; and so, too, a course of conduct toward one person might be deemed extreme cruelty
which towards another would not be so considered by any one.
But in case of an act of violence, where there is no apprehension of its repetitionwhen
it is the result of rashness rather than malignityor when the misconduct complained of is
temporary, and not likely to occasion continued suffering, the divorce should be denied,
because this relief is not granted to punish the party guilty of the misconduct, but to relieve
the other party from future suffering or violence. The language of Pothier is very appropriate
even under the statute of this state. He says, in substance, a blow or stroke of the hand would
not be a cause of separation under all circumstances, unless it was often repeated. The judge,
he says, ought to consider if it was for no cause, or for a trivial one, that the husband was led
to this excess, or if it was the result of provoking language on the part of the wife, pushing his
patience to extremity. He ought also to consider whether the violence was a solitary instance,
and the parties had previously lived in harmony. (Traite du Contrat de Mariage, 509.)
Nor is a divorce ever granted where it appears that the party complaining willfully
provoked the violence or misconduct complained of, unless such violence be extremely out of
proportion to the provocation. (Poor v. Poor, 8 N. H. 308, 29 Am. Dec. 664; Morris v.
Morris, 14 Cal. 76, 73 Am. Dec. 631.) Such is certainly a just and proper rule, for it would be
revolting to every sense of right to award a divorce to a person founded upon the
consequences of his or her own misconduct. * * *
In the present case, however, the allegation above quoted alleges actual violence, by
catching her by the throat, and "commanding her to leave her home," which allegation,
together with the other assertions of misconduct therein alleged, which could and should
be more specifically pleaded in order to aid the trial court in determining the amount of
proof sufficient in making a finding of extreme cruelty, yet as a whole sufficiently alleges
extreme cruelty, and, together with the other allegations of the complaint and the
appearance regularly entered by the defendant, the lower court acquired jurisdiction over
the person and subject-matter in this action.
commanding her to leave her home, which allegation, together with the other assertions of
misconduct therein alleged, which could and should be more specifically pleaded in order to
aid the trial court in determining the amount of proof sufficient in making a finding of
extreme cruelty, yet as a whole sufficiently alleges extreme cruelty, and, together with the
other allegations of the complaint and the appearance regularly entered by the defendant, the
lower court acquired jurisdiction over the person and subject-matter in this action. (Reinhard
v. Reinhard, 96 Wis. 555, 71 N. W. 803, 65 Am. St. Rep. 66; Caruthers v. Caruthers, 13
Iowa, 266; Smedley v. Smedley, 30 Ala. 714; Morris v. Morris, 14 Cal. 76, 73 Am. Dec. 631;
Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912; Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L.
R. A. 660; Fleming v. Fleming, 95 Cal. 430, 30 Pac. 566, 29 Am. St. Rep. 124; 14 Cyc.
603-609.)
Counsel for petitioner assert that the court had no jurisdiction to make an order increasing
the alimony from $100 to $200 per month. Section 507 of our Compiled Laws, which treats
of the authority of a judge to grant alimony pending a suit, among other things, states: * * *
In any suit for divorce now pending, or which may hereafter be commenced, the court or
judge may, in its discretion, upon application, of which due notice shall have been given to
the husband, or his attorney, at any time after the filing of the complaint, require the husband
to pay such sums as may be necessary to enable the wife to carry on or defend such suit, and
for her support and the support of the children of the parties during the pendency of such suit;
and the court or judge may direct the application of specific property of the husband to such
object, and may also direct the payment to the wife for such purpose of any sum, or sums, that
may be due and owing to the husband from any quarter, and may enforce all orders made in
this behalf, as is provided in section 24 of this act.
The law is well settled that a trial court, where it has jurisdiction, during the pendency of
an action for divorce, can increase or diminish the allowance from time to time as the
circumstances may require (1 Ency. Pl. & Pr. 430; 2 Bishop on Mar. Div. and Sep. sec. 958;
Blake v. Blake, 75 Wis. 339, 43 N. W. 114; Ex Parte Cottrell, 59 Cal.
43 N. W. 114; Ex Parte Cottrell, 59 Cal. 417; Stevens v. Stevens, 31 Colo. 188, 72 Pac.
1061); and this court, in the case of Lake v. Lake, 16 Nev. 363, has also held that alimony can
be granted pendente lite, and the amount to be given is vested in the discretion of the trial
court, and sustains the rule that the alimony can be ordered increased or diminished by citing
with approval the case of Forrest v. Forrest, 5 Bosw. 672, a New York case, saying that,
although alimony pendente lite had once been fixed and allowed to the plaintiff, the amount
may be altered and increased, upon its appearing that the necessities of the plaintiff require it,
and the amount of defendant's property is such that the increased allowance is reasonable.
(Morrell v. Morrell, 2 Barb. 480.) The reasonableness of this rule is illustrated by the present
case.
Where the court is vested with jurisdiction, and has the discretion to make such an
allowance as the circumstances warrant pendente lite, this court will not annul such an order
by a writ of certiorari. (State of Nevada v. District Court, 26 Nev. 253; State v. Second
Judicial District Court, 23 Nev. 243; Ketchum v. Superior Court, 65 Cal. 494, 4 Pac. 492;
People v. Walter, 68 N. Y. 403; People v. Board of Commissioners, 97 N. Y. 37; People v.
Kelly, 24 N. Y. 74; Tiedt v. Carstensen, 61 Iowa, 334, 16 N. W. 214; State v. Busby, 44 N. J.
Law, 627; Livingston v. Rector, 45 N. J. Law, 230; Grannis v. Superior Court, 143 Cal. 630,
77 Pac. 647.)
The court unquestionably had the authority and jurisdiction to increase or decrease the
amount of the allowance made to plaintiff during the pendency of this action, and whether or
not the circumstances and conditions presented in the application for the increase warranted
the court in making this increase, its action in that respect is not reviewable on certiorari. All
orders of this character made during the pendency of a suit are always subject to change.
(Dent v. Superior Court, 7 Cal. App. 683, 95 Pac. 672; Voorman v. Superior Court, 149 Cal.
266, 86 Pac. 694.)
It is contended by counsel for petitioner that the court had no authority to increase this
alimony because it was stipulated between the parties that the allowance should be $100, but
the record discloses that the court, upon the filing of the stipulation, made the order
granting plaintiff the allowance of $100 with the specific statement in said order that the
amount should be as stipulated "until the further order of the court" {petition, page 20),
thereby specifically reserving the power to modify it in the future if circumstances arose
necessitating such a change.
ulation, made the order granting plaintiff the allowance of $100 with the specific statement in
said order that the amount should be as stipulated until the further order of the court
(petition, page 20), thereby specifically reserving the power to modify it in the future if
circumstances arose necessitating such a change. Therefore there is no merit in this
contention of counsel. Further than this, the stipulation was based on certain contingencies, as
shown by the affidavit of respondent; but, viewing the law as we do, it is unnecessary to
further elaborate on this assignment of error. The court having jurisdiction of the person and
subject-matter of the suit in controversy, and the authority to grant alimony pendente lite and
increase or diminish the same, it naturally follows that it had the authority to enforce its
lawful orders, and, the defendant having violated such an order, the court had authority and
jurisdiction, after defendant was personally legally served with process and regularly
appeared and had his day in court, to adjudge him guilty of contempt, and punish him therefor
for violating its decree.
It appearing to us that the court had jurisdiction to make the several orders complained of,
the writ is dismissed.
It is so ordered.
____________
31 Nev. 456, 456 (1909) State v. State Bank & Trust Co.
[No. 1812]
THE STATE OF NEVADA, ex rel. JOHN SPARKS, et al., as the Board of Bank
Commissioners, Respondent, v. THE STATE BANK AND TRUST COMPANY, et al.,
Appellants.
1. StatutesSubjects and Titles.
The act of March 26, 1907 (Stats. 1907, p. 229, c. 119), entitled An act creating a board of bank
commissioners, defining their duties, providing for the appointment of a bank examiner, prescribing his
duties, fixing his compensation, providing penalties for the violation of the provisions of this act, and other
matters relating thereto, though providing by section 10 for action by the attorney-general against a
banking corporation, on the decision by the bank examiner and commissioners that it is unsafe for it to
continue business, and that if the court shall find it unsafe, it shall appoint a receiver, does not contravene
the Constitution art. IV, sec. 17, providing that each law shall embrace but one subject and matters properly
connected therewith, which subject shall be expressed in the title.
2. Banks and BankingProceedings for DissolutionParties.
The state is a proper party plaintiff to the action which the act of March 26, 1907 (Stats. 1907, p. 232, c.
119), sec. 10, provides the attorney-general shall bring to prohibit the doing of business by a banking
corporation reported by the bank examiner and commissioners to be unsafe.
3. StatutesSpecial Legislation.
The act of March 26, 1907 (Stats. 1907, p. 232, c. 119), sec. 10, is not open to the objection of being
special legislation because providing for appointment of receivers for insolvent banks only; banks being a
subject which may be legislated on alone.
4. Constitutional LawJudicial PowersDelegation.
The act of March 26, 1907 (Stats. 1907, p. 232, c. 119), sec. 10, providing that, on the determination by
the bank commissioners that it is unsafe for a bank to continue business, they shall order the bank examiner
to take possession of its property till the court makes an order, and the attorney-general shall bring action to
enjoin it from transacting business, and if on the hearing the court finds it solvent, it may dismiss the
action, and order the bank restored to possession of its property, does not confer judicial power on an
executive board.
Ormsby County; F. P. Langan, Judge.
Action by the State, on the relation of Governor John Sparks and others, constituting the
Board of Bank Commissioners of the State of Nevada, against The State Bank and Trust
Company and others. From an adverse judgment, defendants appeal.
ment, defendants appeal. Affirmed. Petition for rehearing. Denied.
Summerfield & Curler, Cheney, Massey & Price, and S. S. Downer, for Appellants:
I. As a valid law in this state can embrace but one subject and matter properly connected
therewith, which subject shall be briefly expressed in the title, the first inquiry naturally is,
What is the subject of the act in question? When that is ascertained, the next inquiry will be
whether that subject is expressed in the title. An examination of the act in question shows that
sections 1, 2 and 3 designate who shall constitute the board of bank commissioners, and
authorizes the appointment by them of a bank examiner, naming his qualifications, fixing his
salary and term of office. Section 4 provides that the duties of the bank examiner shall be to
furnish to every person, individual or corporation in this state doing a banking business,
except national banks, a license to transact banking business; to receive reports of banks, to
prepare and make demands for statements of banks, and to make semiannual reports showing
the condition of all banks in this state. Section 5 requires the bank examiner, at least twice a
year, to make an examination of every banking corporation doing business in this state; to
inspect the books, papers, notes, bonds or evidence of debt of banking corporations; to
ascertain its condition, its solvency, its ability to fulfill its obligations, and to report the same
to the bank commissioners. Section 6 requires the bank examiner to examine under oath the
officers, agents and servants of banking corporations with respect to the banking affairs and
conditions of such corporation, and makes it a misdemeanor for any person to refuse to
appear and testify before the bank examiner in regard to the discharge of his duties for such
banking corporation. Section 7 makes it a felony, punishable by fine or imprisonment, or
both, for the bank examiner to neglect to report the insolvency or unsafe condition of any
banking corporation in this state of which he had knowledge. Section 8 prescribes the penalty
of any corporation, firm or individual for using the name or transacting business of a bank
without having obtained a license provided for in section 4 of the act.
for using the name or transacting business of a bank without having obtained a license
provided for in section 4 of the act. Section 9 sets out in detail the kind of reports which the
officers of the banking corporation shall make to the bank examiner whenever required by
him so to do, which reports must show the exact financial condition of said banks. Section 10
provides what shall be done with the banking corporation after the bank examiner has found
that it is violating its charter or the laws of this state, or is conducting its business in an unsafe
manner, and the steps which he may take to correct it. This section also authorizes the bank
commissioners to decide whether it is safe or unsafe for banking corporations to continue to
transact business, and if they decide it is unsafe for any such corporation to continue to
transact business, they shall authorize the bank examiner to take possession and control of the
property of the bank, enjoining and prohibiting it from the transaction of any further business.
This section also purports to give the court jurisdiction to hear the action so commenced, to
determine whether the corporation is solvent or may safely continue its business, to dismiss
the action, or to order the corporation into involuntary liquidation and issue an injunction
restraining it from transacting its ordinary business, and direct the examiner to surrender the
property to the receiver by the court appointed in such proceedings therefor. Section 11 refers
to the reports of the examiner. Section 12 provides for the payment of the examiner's salary
and fixes the license to be paid by the several banks for the privilege of carrying on their
business, depending upon the amount of the bank's capital; and provides what shall be done
with funds so collected. Section 13 prohibits the use of the word bank, or word of similar
meaning, by any persons except those engaged in business, or the granting of licenses to
persons not so engaged, and fixes the penalty for violation of its terms. To properly ascertain
what is the one subject of an act which must be expressed in its title, all the terms and
provisions of the act shall be considered, and then, the one general object being expressed in
the title, the act may properly embrace all instrumentalities requisite to the accomplishments
of that object. The title of the act must express its subject-matter, and not simply the
instrumentalities by which the object of the act is to be accomplished.
subject-matter, and not simply the instrumentalities by which the object of the act is to be
accomplished. (State v. Commissioners of Washoe County, 22 Nev. 405, 406.)
II. For what reason, then, is an act, the title to which is simply for the appointment of bank
commissioners and bank examiner, fix their duties, salary, etc., sufficient to embrace
provisions which determine when banks must suspend, when the attorney-general shall begin
certain actions, what the court may do in those suits, how licenses shall be imposed, who
liable to punishment for not carrying on the banking business as there required, how and
when a receiver shall be appointed, the property of the bank seized, and judicial writs
immediately dissolved? This title could not have suggested or drawn the legislature's
attention to the fact that provisions of such scope and importance were embraced in the body
of the bill. Numerous instances, similar to these, will readily suggest themselves, and yet we
are quite unable to see in what essential particular statutes of this character containing such
provisions would be unlike the statute in question. Had the title of this act been An act
regulating banks and banking, or words of similar meaning, many of these matters might be
construed as properly connected with the title. The legislature chose its own title. That title
defines the scope of legislation possible to be embraced therein. The provisions essential to
sustain this action are outside of any subject indicated in the title. The courts are powerless to
extend or enlarge the effect of a restrictive title, and this action must fall for want of valid
statutory authority to support it. The effect of a restrained and limited title to defeat
provisions in an act, which might have been sustained under a title which was sufficiently
comprehensive to express the real subject of the act, has been enforced in the following cases
from other jurisdictions: Village of Fairview v. City of Detroit, 113 N. W. 368; Jones v.
Mayor of Morristown, 49 Atl. 440; Rouse v. Thompson, 81 N. E. 1109, 1112; State v.
Merchant, 92 Pac. 890; Cahoon v. Iron Gate L. I. Co., 23 S. E. 767; Rajio v. State, 6 S. W.
401; Matter of Application of Paul, 94 N. Y. 497; Anderson v. Hill, 20 N. W. 549; Jersey
City v. Elmendorf, 47 N. J. Law, 283; Commissioners of Madison County v. Baker, 80 Ind.
374; Matter of Petition of Blodgett, S9 N. Y. 392; Dixon v. Poe, 65 N. E. 51S; Henderson v.
London Co.,
Matter of Petition of Blodgett, 89 N. Y. 392; Dixon v. Poe, 65 N. E. 518; Henderson v.
London Co., 135 Ind. 23, 34 N. E. 565; State v. Young, 47 Ind. 150; Clark v. Board of
Commissioners, 39 Pac. 225; People v. Congdon, 43 N. W. 986; State v. Folk, 105 S. W.
733-735.
III. The statute is invalid because it embraces more than one subject. It creates two
separate offices and defines their separate duties. To create a board of bank commissioners
and define its duties is the proper subject of the act. It may be a part of the board's duties to
appoint a bank examiner, but to define his duties, fix his salary, and authorize the imposition
and collection of a license tax to raise a fund to pay him, is no part of the duties of the board
of bank commissioners, nor properly connected therewith. On the other hand, an act to create
the office, providing for the appointment and fixing the duties and salary of a bank examiner
is a proper subject for an act, but under that title there will be no authority to establish a board
of bank commissioners, define its duties and determine its jurisdiction. The two matters are of
equal rank and each a proper and separate subject for legislative action. The framer of this act
apparently deemed it necessary to name both of the above subjects in the title. The joining in
one act of provisions creating two or more offices, and thereby offering opportunity for
log-rolling, is to sanction one of the evils which it was the very purpose of our Constitution
to prevent.
IV. Section 10 of this act is unconstitutional in that it attempts to delegate to an executive
board judicial functions and powers in violation of the express inhibition contained in section
1 of article III of the Constitution of Nevada. No more striking example of the exercise of a
purely judicial function can be conceived than that of judging ex parte, without notice,
opportunity to be heard, upon the mere report of the bank examiner, and even without that
and upon only the personal knowledge of the bank commissioners that a private banking
corporation is managing its private business unsafely, and ordering that it be disseized of, and
ousted from the control of, its own property. By the act it undoubtedly appears that the board
of bank commissioners is only an executive board.
board. It is not legislative, and it is not judicial in its elementary composition. It is
unquestionably true that it is competent for the legislature to enact a law delegating a power
to determine some fact or state of things upon which the law makes, or intends to make, its
own action depend, but it cannot go further than such determination and follow the same by a
seizure of property and wresting its control from its owner. Upon the courts alone has this
power been conferred, and the exercise of this function is in the highest sense judicial.
Whenever an act determines a question of right, or obligation, or of property, as the
foundation upon which it proceeds, such act is to that extent judicial. (Sinking Fund Cases,
99 U. S. 761; Wulzen v. Supervisors, 101 Cal. 15; Seattle v. Bellingham Co., 29 Wash. 491.)
V. By the express and positive terms of our Constitution the judicial power of the state is
exclusively vested in courts, and not in persons. (Constitution, art VI, sec. 1; Meagher v.
County, 5 Nev. 244; Kilbourn v. Thompson, 103 U. S. 168; People v. Keeler, 99 N. Y. 463;
Missouri Co. v. National Bank, 74 Ill. 217; In re Pacific Railway Commission, 32 Fed. 267.)
The Constitution vests the judicial power in every instance, and the legislature in none. The
legislature has no judicial power, and can confer none upon any person or tribunal. Under the
Constitution it may establish courts, but it does not invest courts with judicial power. The
Constitution alone can do that, for all judicial power comes from that instrument, and is
vested by it in courts and judges. (State v. Noble, 118 Ind. 350; People v. Maynard, 14 Ill.
419; People v. Bolton, 55 N. Y. 50.) It is submitted because section 10 plainly attempts
deprivation of possession, control and ownership of private property upon mere individual
alleged knowledge, rumor, or report, and without giving the owner notice or opportunity to be
heard or to protect his rights, it is the taking of property without due, or any, process of law,
and for that reason it is violative of our organic law, and must fall before proper judicial
attack. Appellants do not wish to be understood as contending that by due process of law is
exclusively meant judicial process. The point in view is that whatever its nature it must be of
such a character as to secure the citizen against any arbitrary deprivation of his rights,
whether relating to his life, his liberty, or his property.
the citizen against any arbitrary deprivation of his rights, whether relating to his life, his
liberty, or his property. Our contention is there must be some process, not absence of any
process.
VI. Said section 10 denies to appellants equal protection of the laws and therefore is in
conflict with section 1 of article XIV of the amendments to the Constitution of the United
States, and is consequently void and inoperative. The business of banking is a lawful
business, and those engaged in it are entitled to the equal protection of the laws. That The
State Bank and Trust Company is a corporation does not preclude it from claiming such equal
protection. (Santa Clara Co. v. S. P. Co., 118 U. S. 384; Pembina Co. v. Pennsylvania, 125
U. S. 650.) That the aforesaid section is discriminatory against bankers and banking
corporations is self-evident. Why they should be subjected to summary disseizure of their
property, while all the world goes free, can be attempted to be justified only upon capricious
and whimsical foundations.
R. C. Stoddard, Attorney-General, and Mack & Green, for Respondent:
I. The title to the act is full, ample and complete. It embraces the subject of the act with the
most specific particularity and minuteness of detail. It is conceded by appellants that the one
general subject being expressed in the title, the act may properly embrace all instrumentalities
requisite to the accomplishment of that object. This act does not attempt to regulate the
practice of courts or to do anything save to announce a rule of law applicable to a certain state
of facts, all of which are germane to the subject expressed in the title, but even if it did, it
would not be unconstitutional for that reason, and, even if so much of the act as related to the
practice of courts was unconstitutional, it would not destroy the equitable jurisdiction with
which courts of equity are inherently invested. It is not necessary that the most perfect
expression of the subject should be adopted. It is sufficient if the title does substantially
express the subject. (People v. Superior Court, 100 Cal. 105; People v. Coler, 173 N. Y. 103;
State v. Crosby, 99 N. W. 636.) It makes no difference how many matters may be contained
in the act so long as they are "properly connected with one general subject briefly
expressed in the title."
many matters may be contained in the act so long as they are properly connected with one
general subject briefly expressed in the title. (State v. Commissioners, 22 Nev. 410; Ex Parte
Livingston, 20 Nev. 387; State v. Humboldt Co., 21 Nev. 235; State v. Irwin, 5 Nev. 120;
People v. Parks, 58 Cal. 635; State v. Ah Sam, 15 Nev. 227.)
II. This act applies to every part of the state and to the whole of the class falling within its
operation, and therefore cannot be special. (Holmes v. City of Multoon, 11 Ill. 27; Van Riper
v. Parsons, 29 Am. Rep. 210.) The law is not local law, and it is not special if the
classification which it makes is based upon intrinsic differences requiring different
regulations. (Rode v. Siebe, 119 Cal. 518; People v. C. P. R. R., 105 Cal. 576; Youngblood v.
Birmingham L. & S. Co., 95 Ala. 521.) The constitutionality of a similar classification has
been many times affirmed. An act putting the assets of insolvent traders into the hands of a
receiver is a general law and is constitutional. (Allen v. Nusbaum, 87 Ga. 470, 13 S. E. 635.)
III. The attorney-general is authorized to proceed against the corporation alone and for the
sole purpose in effect of winding up its business; in other words, he represents the interests of
the people in a matter of public concern. (Home Savings Bank v. Superior Court, 103 Cal. 27;
Crane v. Pacific Bank, 106 Cal. 70.)
IV. Practically all of the objections to the constitutionality of the act here urged have been
passed upon and determined adversely to the appellants by the Supreme Court of California
in the case of People v. Bank of San Louis Obispo, 97 Pac. 306, based upon a statute identical
with ours, and from which our statute was taken in its entirety.
Per Curiam:
The appeal is from a judgment of the district court declaring that it was unsafe for the
defendant The State Bank and Trust Company to continue business, ordering the bank into
liquidation, enjoining its directors from transacting any of its business, appointing a receiver,
and directing the bank examiner to deliver to the receiver all property of the bank. We have
presented for consideration the constitutionality of an act entitled "An act creating a board
of bank commissioners, defining their duties, providing for the appointment of a bank
examiner, prescribing his duties, fixing his compensation, providing penalties for the
violation of the provisions of this act, and other matters relating thereto," approved
March 26, 1907 {Stats.
act entitled An act creating a board of bank commissioners, defining their duties, providing
for the appointment of a bank examiner, prescribing his duties, fixing his compensation,
providing penalties for the violation of the provisions of this act, and other matters relating
thereto, approved March 26, 1907 (Stats. 1907, p. 229, c. 119).
Among other things this statute provides that the governor, secretary of state, and state
treasurer shall constitute a board of bank commissioners, and this board shall appoint a
thoroughly expert bank examiner, and it shall be his duty to examine the accounts and report
the condition of all banks throughout the state; to prepare and furnish to every bank, banking
firm, corporation, and company doing a banking business a license in the form prescribed by
him, authorizing the transaction of a banking business; to furnish on demand to all banks
blank forms of statements as may by law be required of them, twice in each year, and as much
oftener as in his judgment it may be deemed necessary, and without previous notice to visit
and make full examination of all banking corporations. Section 7 provides a penalty for the
failure of the bank examiner to report to the bank commissioners the insolvency or unsafe
condition of any banking corporation. Section 8 provides that no corporation, firm, or
individual shall transact a banking business without the requisite license, and section 9 directs
that banking corporations, including banks in liquidation or insolvency, whenever required by
the bank examiner, shall make a report showing their exact financial condition.
The principal attacks made by the imposing array of counsel are directed against the title,
as designated above, and section 10, which provides: * * * If it shall appear to said examiner
that it is unsafe for any such corporation to continue to transact business, it shall be the duty
of such examiner to immediately report the condition of such corporation to the bank
commissioners; and if the bank commissioners, either from the report of the bank examiner,
or from their own knowledge, decide that it is unsafe for any such corporation to continue to
transact business they shall authorize the bank examiner to take such control of such
corporation, and of the property and effects thereof, as may be by them deemed necessary
to prevent waste, or diversion of the assets, and to hold possession of the same until the
order of court hereinafter mentioned, and it is hereby made the duty of the
attorney-general, upon being notified by the bank commissioners, to immediately
commence suit in the proper court against such corporation and the directors and
trustees thereof to enjoin and prohibit them from the transaction of any further business.
of the property and effects thereof, as may be by them deemed necessary to prevent waste, or
diversion of the assets, and to hold possession of the same until the order of court hereinafter
mentioned, and it is hereby made the duty of the attorney-general, upon being notified by the
bank commissioners, to immediately commence suit in the proper court against such
corporation and the directors and trustees thereof to enjoin and prohibit them from the
transaction of any further business. If upon the hearing of the case the court shall find that
such corporation is solvent, and may safely continue business, it may dismiss the action, and
order that the corporation be restored to the possession of the property. But if the court shall
find that it is unsafe for such corporation to continue business, or that such corporation is
insolvent, said court shall by its decree order such corporation into involuntary liquidation,
and shall issue the injunction prayed for, and shall cause the same to be served according to
law, and shall order the bank examiner to surrender the property of the corporation in his
possession to a receiver appointed by the court for the purpose of liquidation. * * *
It is claimed that this act is in violation of section 17, article IV, of our State Constitution,
in that the subject of the act is not expressed in the title; that the statute is invalid because it
embraces more than one subject; that the provisions of section 10 are in violation of section
20, article IV, of the Constitution, which forbids the passage by the legislature of local or
special laws regulating the practice of courts of justice; that because the action is brought in
the name of the state, on the relation of the bank commissioners, there is no proper party
plaintiff; that section 10 of the statute is void, in that it attempts to delegate to an executive
board judicial functions, in violation of section 1, article III, of the Constitution; and that this
section of the act denies appellants equal protection of the laws, and is therefore in conflict
with section 1 of the fourteenth amendment to the Constitution of the United States.
The main principles controlling these questions have been well-nigh settled by this and
other courts. That section 17, article IV, of the Constitution, providing that each law enacted
by the legislature shall embrace but one subject and matters properly connected
therewith," is mandatory must be conceded.
enacted by the legislature shall embrace but one subject and matters properly connected
therewith, is mandatory must be conceded. In regard to this objection we need only
determine whether this action and the decree of the district court relate to matters germane to
the subject expressed in the title of the act, or to what is properly connected therewith. It
appears to be admitted that if the title had simply specified that the act was one regulating or
relating to banking, the statute might be sustained, although it is urged, in another division of
the brief, that the act is void because it relates to more than one subject. If it does so relate,
the part properly connected with the title would not be void, while the remainder might be
open to rejection. If the different provisions of this statute could be deemed sufficiently
connected under a title simply designating it as An act relating to banking, we see no reason
why they may not be considered so with a title which designates one or more of the matters to
which the others are properly connected. Under the language of the Constitution no necessity
appears for requiring separate acts, or even separate designations in the title, for all the
different provisions in this statute.
The creation and specification of the duties of the board of bank commissioners, and the
definition of their powers, is properly connected with the appointment and duties of the bank
examiner, who is appointed by, and reports to, this board, and the same may be deemed true
of the suit which the board is authorized to have brought through the attorney-general against
any bank which is not solvent or in a safe condition to do business, and of the appointment of
the receiver to whom the bank examiner is directed to surrender the property. We are unable
to see that the suit and the appointment of a receiver are not connected with the duties of the
board and the bank examiner and their duties in instituting the suit and surrendering the
property to the receiver. Under the argument presented it could be claimed that, if the title of
the act further provided that it was for the bringing of actions, and of the appointment of
receivers against insolvent or unsafe banks, the title related to three or more matters not
properly connected; or, if the title simply stated that it was an act providing for the
regulation and liquidation of insolvent or unsafe banks, the creation of the bank
commission and the appointment of the bank examiner were matters relating to officers,
and not germane to any provisions authorizing suit against the bank.
it was an act providing for the regulation and liquidation of insolvent or unsafe banks, the
creation of the bank commission and the appointment of the bank examiner were matters
relating to officers, and not germane to any provisions authorizing suit against the bank.
Instead of allowing the legislature to provide for all these matters so interwoven in one act,
which seems most convenient and unobjectionable, the appellant's contention, if sustained,
would require one or more statutes relating to this board, one or more relating to the bank
examiner, one or more relating to the attorney-general, and one or more relating to the action
and power of the court.
The act in California, containing provisions substantially the same as those to which
objections are taken here, is entitled An act creating a board of bank commissioners and
prescribing their duties and powers, approved March 24, 1903 (Stats. 1903, p. 365, c. 266).
It will be perceived that this title is not as comprehensive as, and contains only a part of, the
reference embraced in our statute, and yet the court there held that the provisions of the act
related to, or were properly connected with, the subject embraced in the title, and that it was
not unconstitutional for other reasons, and in People v. Bank of San Louis Obispo, 97 Pac.
(Cal.) 307, said: It is claimed that the act is unconstitutional in so far as it purports to give
any authority to the attorney-general to bring or prosecute this action, for the reason that the
title of the act does not mention duties, authority, or power of the attorney-general,' and
section 24, article IV, of the Constitution provides that every act shall embrace but one
subject, which shall be expressed in its title, and that any act shall be void as to any subject
embraced therein which is not expressed in its title. The title of the act of March 24, 1903, is
the same as that of March 30, 1878 (Stats 1877-78, p. 740, c. 481). In People v. Superior
Court, 100 Cal. 105, 34 Pac. 492, section 11 of the act of 1878, corresponding to section 10
of the act of 1903, providing for such an action by the attorney-general, was assailed on
various grounds; one being that the title did not sufficiently express the subject-matter of said
section. The court said: We think that the title of the act sufficiently expresses the subject of
the act, and is sufficiently general in its scope.
general in its scope. It is not necessary that the title to the act should embrace an abstract of
its contents. (Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; Ex Parte Liddell, 93 Cal. 633, 29 Pac.
251.)' We see no reason to doubt the correctness of this ruling. * * * As we have seen the act
in terms provides that the court in such an action brought to enjoin and prohibit them from
the transaction of any further business,' if it finds that the corporation is insolvent, shall order
the commissioners to surrender the property * * * to a receiver appointed by the court for the
purpose of liquidation in such proceedings,' etc. This authorized the court to appoint the
receiver as a part of the relief sought by the action, in the event of a finding of insolvency,
without any allegation of the necessity therefor in the complaint. The appointment of a
receiver for purposes of liquidation was a part of the method provided by the act for the
winding up of the affairs of the corporation, and, under the terms of the act, necessarily
followed the adjudication of insolvency.
The title An act to provide for the incorporation of mutual fire insurance companies, and
defining their powers and duties, was held sufficient to embrace, without particular mention,
provisions for winding them up and for the appointment of a receiver. (Wardle v. Townsend,
75 Mich. 385, 42 N. W. 950, 4 L. R. A. 514.) Under the clause of the Kentucky Constitution,
providing no law enacted by the general assembly shall relate to more than one subject, and
that shall be expressed in the title (Constitution of Kentucky, art. II, sec. 37), the Supreme
Court of the United States held that a provision directing the issuance of new bonds was
germane to, and properly included in, an act authorizing counties to compromise and settle
with the holders of certain indebtedness. (Carter County v. Sinton, 120 U. S. 517, 7 Sup. Ct.
650, 30 L. Ed. 701; Montclair v. Ramsdell, 107 U. S. 155, 2 Sup. Ct. 391, 27 L. Ed. 431.)
Other cases may be found in the note in 1 L. R. A. 362, and also in People v. Bank, 53 App.
Div. 298, 65 N. Y. Supp. 766.
In Ex Parte Pittman, 31 Nev. 43, decided the early part of this year after mature
consideration, we held that the prosperity of the country is largely influenced by public
confidence in its banking institutions, that the banking business is in a class by itself, that
it may be regulated, and that it is of the highest importance to the public that it be
regulated, by wise legislation.
in its banking institutions, that the banking business is in a class by itself, that it may be
regulated, and that it is of the highest importance to the public that it be regulated, by wise
legislation. Our views regarding the propriety of the legislature passing laws limited to the
banking business are so fully expressed, and are supported by citations from so many other
courts, that little further need be said in this connection. After referring to cases in our own
and other states sustaining our conclusions, we quoted with approval from Judge Cooley:
The legislature may also deem it desirable to prescribe peculiar rules for the several
occupations, and to establish distinction in the rights, obligations, duties, and capacities of
citizens. The business of common carriers, for instance, or of bankers may require special
statutory regulations for the general benefit, and it may be a matter of public policy to give
laborers in one business a specific lien for their wages when it would be impracticable or
impolitic to do the same for persons engaged in some other employments. If the laws be
otherwise unobjectionable, all that can be required in these cases is that they be general in
their application to the class or locality to which they apply, and they are then public in
character, and of their propriety and policy the legislature must judge.
In State v. Exchange Bank of Milligan, 34 Neb. 201, 51 N. W. 766, the court said: The
power of the legislature to prescribe the terms and conditions upon which a corporation or an
individual may transact a banking business within this state will not be seriously
controverted. The purpose of the act, viz., to protect depositors and insure solvent banking
institutions, is not only within the constitutional powers of the legislature, but is certainly a
judicious exercise of such power. The legislature has by this act not only prescribed the
conditions upon which any corporation, firm, or individual may engage in the business of
banking, but has provided that, in case of a violation of its provisions by a failure to comply
with the conditions or terms imposed, the state may interfere by means of the agencies
provided by law in order to protect those interested, and to prevent a diversion of the funds
from the purpose to which they should be applied. Whether the application for a receiver to
impound the funds of an insolvent bank is addressed to this court or the district court, the
effect is the same.
is addressed to this court or the district court, the effect is the same. It is an exercise of the
sovereign power of the state for a purpose and in a manner plainly provided by law. It is
suggested by counsel that the statute does not provide that the proceeding shall be in the name
of the state. True, it is not in express terms provided that the State of Nebraska shall be the
plaintiff, or that the application shall be on the relation of the state. The omission, however, is
in our judgment unimportant. Whatever may be the form of the proceedings or the title
adopted, it is the action of the state. The attorney-general in making the application is obeying
an imperative command of the statute. He is manifestly the representative of the state as
effectually for all purposes as in a civil action to recover money due the state.
Statutes regulating insurance and other lines of business have often been sustained. In Ivy
v. Western Union Tel. Co. (C.C.) 165 Fed. 372, decided last November, considering the
objection that because the act applied only to telegraph companies, and not to other
corporations, it was class legislation, and violative of the provisions of the fourteenth
amendment, the court said: These objections are clearly untenable, in view of the numerous
decisions of the courts. Whatever doubt might have existed at one time on this question has
been removed by a uniform line of decisions of all courts, and especially the Supreme Court
of the United States. Cases directly in point are: Atchison, Topeka & Santa Fe Railway Co. v.
Matthews, 174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909; St. Louis, I.M. & S.R. Co. v. Paul,
173 U. S. 404, 19 Sup. Ct. 419, 43 L. Ed. 746; Fidelity Association v. Mettler, 185 U. S. 308,
22 Sup. Ct. 662, 46 L. Ed. 922; Farmers' & Merchants' Ins. Co. v. Dobney, 189 U.S. 301, 23
Sup. Ct. 565, 47 L. Ed. 821; Missouri Railway Co. v. May, 194 U. S. 267, 24 Sup. Ct. 638, 48
L. Ed. 971; Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243, 27 Sup. Ct. 126, 51 L. Ed.
168; Bachtel v. Wilson, 204 U. S. 36, 27 Sup. Ct. 243, 51 L. Ed. 357; Bacon v. Walker, 204
U. S. 311, 27 Sup. Ct. 289, 51 L. Ed. 499; Ozan Lumber Co. v. Union County Bank, 207 U.
S. 251, 28 Sup. Ct. 89, 52 L. Ed. 195; Heath & Milligan Co. v. Worst, 207
U. S. 338, 28 Sup Ct. 114, 52 L. Ed. 236; Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324,
52 L. Ed.
551; Seaboard Air Line Ry. Co. v. Seegers, 207 U. S. 73, 28 Sup. Ct. 28, 52 L. Ed. 108; and
the following late decisions of the Supreme Court of the State of Arkansas: Union Sawmill
Co. v. Felsenthal, 85 Ark. 346, 108 S. W. 217; Arkansas Insurance Company v. McManus
(Ark.) 110 S. W. 797; Ozan Lumber Co. v. Biddie (November 2, 1908), 113 S. W. 796.
It is apparent that the contention that the state is not a proper party plaintiff, and that it has
no grievance to be remedied, no property to be recovered, and no beneficial interest in the
result of the action, cannot be sustained. The authorities cited, and what we have already
stated, indicate that the requirement that the banking business be safely conducted is so
essential to the prosperity of the people that it may be regulated, and actions for that purpose
may be maintained by, and in the name of, the state.
It is claimed that by section 10 of the act the legislature has attempted to authorize the
courts to appoint receivers of banking corporations by special enactments not applicable to
other corporations or citizens. This contention is met also by the fact that, as banks are to
such a degree connected with, and responsible for, the financial welfare of the state, they are
subject to regulation, and therefore laws may be passed pertaining to them which are not
applicable to other corporations or citizens generally. It is not necessary that the
commissioners and examiner be authorized to investigate the affairs of all others doing
business before banks may be examined or regulated. When the proceedings authorized
against an insolvent or unsound bank have progressed to the institution of suit, and a showing
is made that a receiver is necessary, no good reason appears why one may not be appointed in
a special suit to settle and liquidate the affairs of the bank similarly and with the same results
as if appointed under the section of the statute relating to the appointment of receivers
generally.
As to the claim that the act attempts to confer judicial powers upon an executive board,
and authorizes it to proceed ex parte without a hearing, the reply is that the appeal is from a
decree made by the court after the parties affected had an opportunity to be heard and present
their evidence. The taking over of the assets of the bank by the examiner to preserve them
until the parties can appear and the court determine the controversy is only a temporary
holding in the nature of an attachment, and for the preservation of the property until the
court can adjust the rights of the parties in interest.
serve them until the parties can appear and the court determine the controversy is only a
temporary holding in the nature of an attachment, and for the preservation of the property
until the court can adjust the rights of the parties in interest. Appellants had an opportunity to
present their defense upon the trial, to make their showing, and ask for relief under that part
of section 10 which provides: If upon the hearing of the case the court shall find that such
corporation is solvent and can safely continue business, it may dismiss the action, and order
that the corporation be restored to the possession of the property. Statutes regulating the
banking business are of such public concern, and so generally upheld and enforced in
different states, that the power of the legislature to enact these laws can hardly be questioned
longer. We do not find that the provisions of the statute assailed are in conflict in any way
with the State or Federal Constitution.
Holding these views, it is unnecessary to consider the motion to dismiss the appeal of
some of the appellants, or the motion to dismiss the motion to dismiss.
The decree of the district court is affirmed.
Per Curiam:
Counsel for appellants have filed a petition for a rehearing, in which it is contended that
our former decision in this case is at variance with two recent decisions of this court, viz.,
Bell v. District Court, 28 Nev. 280, and State v. Gibson, 30 Nev. 353.
To hold that the act involved in this case is constitutional, we do not think has made
necessary any different construction of the provisions of section 17 of article IV of the
Constitution than that applied in former decisions of this court. Sometimes expressions may
occur in an opinion not essentially necessary to its determination, and, taken alone, might be
susceptible of too broad or too restricted a construction, but, viewed in the light of the entire
decision, cannot be said to modify an established rule. The two cases, supra, we think are
clearly distinguishable from the case at bar.
The gist of the opinion in Bell v. District Court, supra, is contained in the following
extract: "The subject of the act in question is elections.
contained in the following extract: The subject of the act in question is elections. Its purpose
and object is the orderly electing of public officers by the qualified voters of the state. The
trial of an officer, after he has been so elected, for malfeasance in office, his removal, and the
appointment of his successor because of such removal has no proper connection whatever
with the subject of elections.
The case of State v. Gibson involved the constitutionality of section 2 of an act entitled
An act to provide for the appointment of stenographers upon the hearing of preliminary
examinations before committing magistrates in this state, and to regulate the compensation
therefor (Stats. 1907, p. 59, c. 32), which reads: When such report is made, the same, when
transcribed and sworn to as aforesaid, shall be deemed a correct statement of the evidence and
proceedings given and had therein, and shall be admissible in evidence on the trial of the
case, as prescribed in section 151 of the criminal practice act of the State of Nevada. In that
case we said: An examination of the title to the act in question reveals that it has reference
only to the appointment of a stenographer and fixing the compensation therefor. Nowhere in
the title of the act is there any reference to the testimony being thereafter used as evidence, or
at all. Section 2 of said act, therefore, clearly violates section 17 of article IV of the
Constitution of our state, because the subject-matter is not embraced in the title of the act, nor
can it be said that the subject-matter of section 2 is germane to the subject-matter defined in
the title of the act. The above section was held, also, to violate other provisions of the
Constitution not in question in the case at bar.
The contention of counsel for appellants that in this case we have departed from
established precedents is clearly without merit. A few extracts from former decisions of this
court will be sufficient answer to this contention.
In the case of State v. Ah Sam, 15 Nev. 27, 27 Am. Rep. 454, this court, by Beatty, C. J.,
said: But in dealing with this particular objection to parts of statutes, which, as a whole,
embrace but one subject of legislation, the courts of the different states have adopted an
exceedingly liberal rule of construction in favor of their validity.
construction in favor of their validity. The decisions on this point are very numerous, but it
would be unnecessary and unprofitable to attempt a review of them; for in scarcely a single
instance is an attempt made to lay down any rule or principle more definite than is to be
gathered from the remark of Judge Cooley (Con. Lim. 146) that there has been a general
disposition to construe the constitutional provision liberally, rather than to embarrass
legislation by a construction, whose strictness is unnecessary to the accomplishment of the
beneficial purposes for which it has been adopted.' The beneficial purposes' designed to be
accomplished by the provision in question are said to have been the prevention of surprise or
fraud upon the legislature by means of provisions in bills of which the titles gave no
intimation, and which might therefore be overlooked, and carelessly and unintentionally
adopted,' and to fairly apprise the public of the subjects of legislation under consideration by
their representatives, in order that they might have an opportunity of being heard thereon by
petition, or otherwise. (Cooley's Con. Lim. 142, 143.) It is not inconsistent with these
purposes to give some slight enlargement to the literal meaning of the title of a law, and there
are numerous precedents that will justify us in saying that the title of this act, to prohibit the
keeping of places of resort,' etc., is substantially equivalent to for the suppression of places
of resort,' etc. (Cooley's Con. Lim. 141-150, and notes.)
In the case of State v. Commissioners, 22 Nev. 399, 407, this court, by Bigelow, C. J.,
said: We have often held, and still hold, that the Constitution is to be liberally construed, to
the end that there shall be no unnecessary hampering of legislation, but there is a wide
difference between liberal construction and nullification, which would be the effect of
deciding that an act, passed under a title so misleading as this, is, notwithstanding, a valid
law. The section might as well be stricken from the Constitution at once as a dead letter. This
distinction is well illustrated by cases heretofore decided by this court. Those of State v. Ah
Sam, 15 Nev. 27, 27 Am. Rep. 454; Ex Parte Livingston, 20 Nev. 287, and State v. Board of
Commissioners of Humboldt County, supra, 21 Nev. 235, of which we entirely approve, and
which in our judgment contain nothing in conflict with what is here held, were all cases in
which, by liberal construction, the court was unable to uphold the validity of the acts then
under consideration; while, on the other hand, the cases of State v. Silver, supra, 9 Nev.
227, State v. Hallock, 19 Nev. 3S4, and State v. Hoadley, 20 Nev. 317
we entirely approve, and which in our judgment contain nothing in conflict with what is here
held, were all cases in which, by liberal construction, the court was unable to uphold the
validity of the acts then under consideration; while, on the other hand, the cases of State v.
Silver, supra, 9 Nev. 227, State v. Hallock, 19 Nev. 384, and State v. Hoadley, 20 Nev. 317,
fell on the other side of the line, and, notwithstanding the rules of liberal construction, the
acts then being reviewed were held to be unconstitutional.
See, also, State v. Commissioners, 17 Nev. 96, 102; State v. Atherton, 19 Nev. 332, 345;
State v. Commissioners, 21 Nev. 235, 239.
The case of Brooks v. People, 14 Colo. 413, 24 Pac. 553, cited and quoted from in State v.
Gibson, supra, may, and we think does, give a too restricted construction to the constitutional
provision in question, and is not in entire harmony with the uniform liberal construction
adopted by this and other courts generally. The rule laid down by the Colorado court in the
Brooks case supported our contention, but went further and to an extreme which was not
necessary to a determination of the Gibson case, the opinion in which, taken as a whole, is in
line with the uniform views expressed by this court. The question presented in the Gibson
case was practically identical with that in State v. Commissioners, 22 Nev. 399, supra.
The petition for rehearing is denied.
____________
31 Nev. 476, 476 (1909) Oliver v. Little
[No. 1822]
FRANK OLIVER, Appellant, v. THEODORE LITTLE, Respondent.
1. Specific PerformanceServicesPaymentContract for Delivery of Stock.
An alleged contract to pay for plaintiff's services in the stock of a corporation, without designating the
number of shares, was not proper subject for specific performance.
2. Specific PerformanceReliefActionPleading.
Where a complaint to enforce specific performance of a contract to pay for complainant's services by
delivery of corporate stock alleged that the services were performed for defendant, at his request, and were
of the value of $25,000, it stated a cause of action on a quantum meruit, on which plaintiff could recover,
though he was not entitled to specific performance.
3. BrokersServicesCommissionsReasonable Value.
Where a broker's services in selling mining stock were reasonably worth 10 per cent, such percentage
should be computed on the value of the stock at the time the services were rendered.
Esmeralda County; J. P. O'Brien, Judge.
Action by Frank Oliver against Theodore Little. From a judgment in favor of defendant,
plaintiff appeals. Reversed and remanded. Petition for rehearing. Denied.
Henry M. Farnam and Thompson, Morehouse & Thompson, for Appellant.
Rufus C. Thayer, for Respondent.
This action is based on a complaint which alleges that the defendant hired and employed
the plaintiff to render and perform for defendant certain services in connection with a mining
right held by him; that the plaintiff performed the services; that the defendant promised and
agreed to pay the plaintiff his reasonable compensation for said services in the capital stock
of a corporation which should thereafter be organized, * * * which said compensation was
worth and of the reasonable value of 25,000 shares of the capital stock of said corporation to
be issued to the defendant as trustee for the plaintiff; * * * that in pursuance of said
agreement, employment, and understanding the defendant caused to be duly incorporated
* * * a corporation * * * called the Little-Florence Mining Company, with a capital stock
of $1,000,000, divided into 1,000,000 shares of $1 each, and thereafter caused to be
issued to the defendant * * * 300,000 shares of said capital stock, in which was included
therein the 25,000 shares hereinabove referred to; * * * that the services performed as
aforesaid were reasonably worth said 25,000 shares of stock, and at the time of the
issuance thereof as aforesaid were, and ever since have been, and still are, of the
reasonable value of $25,000."
ment, employment, and understanding the defendant caused to be duly incorporated * * * a
corporation * * * called the Little-Florence Mining Company, with a capital stock of
$1,000,000, divided into 1,000,000 shares of $1 each, and thereafter caused to be issued to
the defendant * * * 300,000 shares of said capital stock, in which was included therein the
25,000 shares hereinabove referred to; * * * that the services performed as aforesaid were
reasonably worth said 25,000 shares of stock, and at the time of the issuance thereof as
aforesaid were, and ever since have been, and still are, of the reasonable value of $25,000.
The prayer of the complaint demanded, among other things: * * * That said defendant as
said trustee be by said judgment of the court ordered to specifically perform said trust, and
assign and deliver in good and sufficient form said 25,000 shares of capital stock as above set
forth; * * * that alternatively if said defendant has heretofore sold, assigned, and delivered
said 25,000 shares, judgment be entered against said defendant for the sum of $25,000, * * *
and for such other and further relief as to the court shall seem just and equitable to the
plaintiff herein.
The evidence is undisputed that the defendant held a lease on a block of mining ground in
Goldfield; that he went to plaintiff and told him that he had stopped work and must make
some other arrangement, and that he would be glad if the plaintiff would give him any
assistance he could in finding some one to finance the lease; that plaintiff sent the defendant
to Mr. Truitt and also to Dr. Robinson, and assisted defendant in obtaining from Dr.
Robinson an agreement by which Dr. Robinson was to work the lease and to give one-half the
proceeds to the defendant, and after more delay and dispute a second agreement, under which
the Little-Florence Mining Company was incorporated for 1,000,000 shares with 400,000
placed in the treasury and 300,000 set over to the defendant.
The parties substantially agree in their testimony that at the time of the conclusion of the
negotiations Dr. Robinson said to plaintiff in effect: We will take care of you, and the
plaintiff and Dr. Robinson testified that the defendant answered: "Yes, certainly," but in this
regard the defendant stated on the stand: "At that time, after we had concluded our
negotiations and the matter was wound up, Dr.
answered: Yes, certainly, but in this regard the defendant stated on the stand: At that time,
after we had concluded our negotiations and the matter was wound up, Dr. Robinson got up
and said he felt very much pleased with what Mr. Oliver had done, and said, We are going to
do something for him, aren't we, Mr. Little?' I didn't feel as he did. I didn't feel that I had
anythingI had surrendered a better and taken a poorer agreement. I didn't feel generous or
like volunteering anything. Mr. Oliver didn't ask me if I would give anything. Dr. Robinson
simply said: We are going to do it.' I didn't say, We are going to do anything.' I expressed
gratitude for Mr. Oliver's services in general. I didn't feel that he had assisted me in that part
of the deal. Dr. Robinson testified that previously he went to see the defendant for the
particular purpose, and told him he would like to have some understanding about his paying
Mr. Oliver, as Mr. Oliver had been the cause of their getting together; that he told the
defendant that he wanted to know if he was going to take care of Mr. Oliver, and the
defendant answered, I am. Then Dr. Robinson's testimony continued:
Q. Did he agree to take care of Mr. Oliver? A. Yes, sir.
Q. What method of payment was provided for in the understanding you had with him? A.
Stock payment.
Q. Was it agreed that he was to be paid out of stock he was to receive from this deal? A.
As soon as we struck ore; he was to be taken care of if we struck ore.
Q. Out of this 300,000? A. Yes, sir.
Q. Did you afterwards strike ore? A. We did.
Q. In large quantities? A. Yes, sir.
Q. High grade? A. Yes, sir. * * *
Q. Was it a requirement on your part, before entering into the agreement, that he should
take care of Mr. Oliver? A. That was my understanding of it.
Q. Was it agreed that he should pay him out of the stock he was to receive from this
Little-Florence Mining Company? A. It was.
That plaintiff's assistance rendered at the request of the defendant brought the parties
together, and led to the financing of the lease through Dr. Robinson, is not disputed, and for
this reason the conflict in the testimony as to whether the defendant "agreed to take care
of the plaintiff" by making payment in stock if they found ore need not be considered as
controlling the case.
for this reason the conflict in the testimony as to whether the defendant agreed to take care
of the plaintiff by making payment in stock if they found ore need not be considered as
controlling the case.
There is no evidence, allegation, or claim on the part of the plaintiff that the defendant
agreed to compensate the plaintiff with 25,000 or any specified number of shares of the stock.
Plaintiff seeks to recover the stock as being held in trust for him, and there is no pretense that
there was any agreement for this or any other number of shares. He has proceeded on the
theory that if the defendant agreed to pay for his services in stock without any number of
shares being mentioned, he could recover such a number as would be a reasonable
compensation. If the defendant by written agreement at the time had promised to deliver to
the plaintiff 25,000 shares upon the finding of ore or on a given date, and upon the arrival of
the contingency had refused to deliver the stock, the plaintiff would have been unable to
recover it, and still less so in this case, when it is not even claimed that the defendant agreed
to deliver any specified number of shares. If such an agreement as plaintiff claims were made,
it would be too indefinite to be enforced. The recent cases of State v. Jumbo Ext. M. Co., 30
Nev. 192, and Turley v. Thomas, 31 Nev. 181, in which we considered this question at length,
are conclusive that shares of stock cannot be recovered in an action for specific performance
when they are without any peculiar or unusual value and the plaintiff has a remedy at law.
Although the prayer of the complaint asks for equitable relief, and the plaintiff sought it at
the trial, the allegations of the complaint that the services were performed for the defendant at
his request, and were of the value of $25,000, states a better cause of action at law, and
warrants a recovery for the services on a quantum meruit. The defendant filed a brief in the
district court citing a number of cases holding that recovery cannot be had on an implied
contract when an express one is alleged. A contrary and more equitable rule prevails in this
and some of the other states. As said in Burgess v. Helm, 24 Nev. 249: Under an allegation
of a contract to pay a specified rate of compensation plaintiff may prove a promise to pay
what the services were really worth, or an implied promise to pay the usual
compensation.' {Abbott's Trial Ev. 367, and cases cited.)" {Livingston v. Wagner, 23 Nev.
57
prove a promise to pay what the services were really worth, or an implied promise to pay the
usual compensation.' (Abbott's Trial Ev. 367, and cases cited.) (Livingston v. Wagner, 23
Nev. 57.) By way of admission it is said in the brief of respondent: A considerable part of
appellant's brief is devoted to showing by authority what would have been really conceded,
namely, where an answer is put in, the court is not limited by the prayer of the complaint in
the granting of relief.
The district court in a carefully prepared opinion properly held that the plaintiff could not
recover the stock, but apparently overlooked or ignored the question as to whether he was
nevertheless entitled to the value of the services, which it is conceded he rendered, or
assumed that compensation for them could not be recovered under the complaint. Several
brokers testified for plaintiff that the usual commission for selling stock in Goldfield was 10
per cent. It was also testified that the value of the stock of the Little-Florence Mining
Company was 5 cents a share when the first 100,000 of the treasury shares were placed,
shortly after the rendition of the plaintiff's services, and that the stock was worth $1 or more
per share at the time the suit was brought. The plaintiff sought to recover 25,000 shares or
their enhanced value, amounting to $25,000, when 10 per cent of the 300,000 shares which
the defendant received in the company organized with 1,000,000 shares, and based on the
lease interest which he held, would amount to 30,000 shares, 25,000 of these at the time of, or
directly after the rendition of, the services were worth only $1,250, which as the evidence
now stands is apparently all he could recover on a 10 per cent basis. Plaintiff is entitled upon
an implied contract only to such percentage or compensation as may be considered fair, based
on the value of the property at the time the services were rendered.
For these reasons the judgment of the district court is reversed, and the case is remanded
for a new trial.
Per Curiam:
The petition for rehearing is denied.
____________
31 Nev. 481, 481 (1909) Hoffman v. Owens
[No. 1817]
F. P. HOFFMAN, Respondent, v. J. J. OWENS, Sheriff of Nye County,
and A. J. POMMER COMPANY, Appellants.
1. Appeal and ErrorUndertaking on AppealWaiver.
Under the civil practice act, sec. 341 (Comp. Laws, 3436), providing that to render an appeal effectual an
undertaking shall be executed, and upon the authority of Marx v. Lewis, 24 Nev. 306, an undertaking
cannot be waived by stipulation.
On Rehearing
1. Appeal and ErrorUndertaking on AppealWaiver.
Under the civil practice act, sec. 348 (Comp. Laws, 3443), providing that the undertaking may be waived
by the written consent of the respondent, and Comp. Laws, 2621, providing that an attorney may bind his
client in any of the steps of the action by his agreement filed with the clerk, an undertaking on appeal is not
essential where the attorney for respondent entered into a written stipulation waiving an undertaking; such
stipulation being filed with the clerk. (Marx v. Lewis, 24 Nev. 306, reversed.)
2. Fraudulent ConveyancesChange of PossessionSufficiency.
The object of Comp. Laws, 2703, providing that every sale, unless accompanied by an immediate
delivery, and followed by an actual and continued change of possession, shall be conclusive evidence of
fraud as against creditors, is the prevention of fraud, and what will amount to change of possession within
the statute must be determined in each case, having relation to the character and situation of the property at
the time of sale.
3. Fraudulent ConveyancesChange of PossessionPossession of Former Owner as Employee of Grantee.
A saloon keeper sold his business and liquors to his brother in payment of a prior debt, and executed a
bill of sale, which was properly recorded. The brother took possession, and continued the business as
before. Both worked a shift as bartenders substantially as before, with the exception that the brother acted
as proprietor and the other worked on a salary. The saloon sign, containing only the surname, was not
changed. Business houses and customers were notified of the change. Neither the lease on the premises nor
the license was transferred. Held, that the sale was not fraudulent in law, within Comp. Laws, 2703,
providing that every sale unless accompanied by an immediate delivery, followed by an actual and
continued change of possession, shall be conclusive evidence of fraud as against creditors, as the
possession of the buyer was not a concurrent or joint possession with the seller, but was exclusive.
4. Appeal and ErrorFraudulent TransferQuestion for the Trial Court.
Whether a sale was fraudulent in fact as against creditors of the seller is for the trial court to determine.
Action by F. P. Hoffman against J. J. Owens, Sheriff of Nye County, and another. From a
judgment in favor of plaintiff, defendants appeal. Dismissed. On rehearing. Former opinion
overruled, and judgment and order affirmed.
P. E. Keeler, for Appellants:
I. Since there was no such change of possession as the statute contemplates, the
conveyance was void and the property remained subject to attachment by the creditors of J.
H. Hoffman. (Goard v. Gunn, 29 Pac. 918; Cook v. Rockford, 12 Pac. 568; Goldstein v.
Nunan, 6 Pac. 451; Allen v. Massey, 17 Wall. 351; Lloyd v. Williams, 40 Pac. 243; Stevens v.
Irwin, 15 Cal. 503; Grady v. Baker, 19 N. W. 417; 24 Cent. Digest, cols. 608, 714, sec. 481.)
Recording of bill of sale is not a substitute for change of possession. (Bassinger v. Spangler,
10 Pac. 813; Kuydendall v. McDonald, 57 Am. Dec. 212.) If the vendor remains in
possession as agent, it is not such actual change of possession as the law contemplates.
(Grant v. Lewis, 80 Am. Dec. 785; Rothgerber v. Gough, 52 Ill. 436; Young v. Youngman, 25
Pac. 209; Steinburger v. Schulin, 45 Mo. 521.)
II. The possession must be exclusive and the change such as to give evidence to the world
of the claims of the new owner. (Gray v. Sullivan, 10 Nev. 429; Ewing v. Merkley, 4 Pac.
248; Stevens v. Irwin, 15 Cal. 503; Bassinger v. Spangler, 10 Pac. 813.) The delivery of the
bill of sale was not even symbolic delivery of the personalty. (Comaita v. Kyle, 19 Nev. 38.)
III. Plaintiff must recover on the strength of his own title and must show a valid sale by a
preponderance of the evidence. (Gallick v. Bordeaux, 78 Pac. 583.)
L. A. Gibbons, for Respondent.
The record on appeal in this cause does not contain an undertaking on appeal, but, in lieu
thereof, counsel for the respective parties have stipulated "that the giving of an
undertaking on appeal by the defendants and appellants in the above-entitled action be,
and the same is hereby, waived, and the said appeal may be considered and heard by the
Supreme Court of the State of Nevada in all respects as if an undertaking on appeal had
been duly filed."
respective parties have stipulated that the giving of an undertaking on appeal by the
defendants and appellants in the above-entitled action be, and the same is hereby, waived, and
the said appeal may be considered and heard by the Supreme Court of the State of Nevada in
all respects as if an undertaking on appeal had been duly filed. Section 341 of the civil
practice act (Comp. Laws, 3436) provides: To render an appeal effectual for any purpose, in
any case, a written undertaking shall be executed on the part of the appellant by at least two
sureties, etc.
In the case of Marx v. Lewis, 24 Nev. 306, this court specifically held that an undertaking
on appeal could not be waived. We quote from the opinion in that case the following excerpt:
The method of procedure in taking appeals is regulated by statutes. Section 327 of the civil
practice act (Comp. Laws, 3422) in direct terms confers authority upon this court to review
judgments and orders from which appeals can be taken in the manner prescribed in the act,
and not otherwise.' * * * Under the language used in these sections we have no power or
authority to review any question presented in this record. The attempt to stipulate a waiver of
the notice and undertaking can be of no effect, for the reason that such attempt is doing that
which the statute says cannot be done. The language used and not otherwise,' precluded the
intention of conferring authority to review appeals under such stipulation as completely as it
would were such intention expressed in direct terms. The same may be said of the language
used in section 341, supra, requiring the undertaking to render an appeal effectual for any
purpose.'
Authorities may be found that an undertaking upon appeal may be waived, and a number
of these so holding are cited in the prevailing opinion in the case of Smith v. Wells Estate Co.,
29 Nev. 411, 416. Whether or not any of the authorities cited are opposed to the decision of
the question heretofore rendered by this court would depend upon the provisions of the statute
controlling in the particular case. Authorities also exist taking the same position as the Marx
v. Lewis case, supra; for example, the case of Santom v. Ballard, 133 Mass. 464. The court is
inclined to view that a more liberal rule in matters pertaining to perfecting appeals would
be advantageous, but we are not at liberty, in view of the statute, to declare such rule,
especially so, after this court has construed the statute in question as it did in the Marx v.
Lewis case.
rule in matters pertaining to perfecting appeals would be advantageous, but we are not at
liberty, in view of the statute, to declare such rule, especially so, after this court has construed
the statute in question as it did in the Marx v. Lewis case. If the statute in this respect is more
strict than it ought to be, the remedy is with the legislature.
For the reasons given, the appeal is dismissed.
Sweeney, J.: I concur.
Talbot, J., concurring:
With some reluctance I concur in the judgment, for the reason that this court so construed
the law in the case of Marx v. Lewis, 24 Nev. 306.
The construction given follows more strictly the letter than the spirit of the practice act. In
using language stating that an appeal shall not be effective for any purpose unless an
undertaking is given, the legislature evidently wished to protect the respondent in the
recovery of his costs if the appellant was unsuccessful on the appeal. By the use of this
language it is doubtful if the lawmakers had any intention or purpose of preventing a
respondent from waiving the provision, which was inserted for his benefit, and especially so
when proper effect is given to section 71 (Comp. Laws, 3166), which provides that the court
shall, in every stage of an action, disregard any error or defect in the pleadings or
proceedings, which shall not affect the substantial rights of the parties.
Clearly it was intended to give the respondent the right to insist upon being protected by a
bond on every appeal, but no good reason appears to me why he may not waive this provision
for his benefit. A waiver might be of material advantage to the appellant, and save him the
inconvenience of furnishing an undertaking, and at the same time work no injury to the
respondent, if he is satisfied that the appellant is able financially to meet any judgment which
may be rendered or affirmed against him by the appellate court. Although having high regard
for the great learning and ability of the Supreme Court of Massachusetts, I am unable to see
the weight of the conclusion reached in the case cited from that state, holding that the
failure to require an undertaking might lead to frivolous appeals, nor that the most
meritorious cases could not be appealed without the requirement of an undertaking, if
waived, while the most frivolous may be appealed by giving a small bond.
state, holding that the failure to require an undertaking might lead to frivolous appeals, nor
that the most meritorious cases could not be appealed without the requirement of an
undertaking, if waived, while the most frivolous may be appealed by giving a small bond. As
held by this and other courts, appeals will be dismissed where there is no real controversy
between the parties. Apparently that court modified its views in a later case, and held that a
motion to dismiss an appeal upon the ground that no bond to the adverse party had been filed
as required by the statute came too late after the first term. (Wheeler & Wilson M. Co. v.
Burlingham, 137 Mass. 581.)
So far as I am aware, an appeal bond is required in all the state and appellate courts.
Nevertheless, it has often been held that the undertaking and other requirements may be
waived. The word waiver implies that something may be relinquished.
In Kingsbury v. Buckner, 134 U. S. 681, 10 Sup. Ct. 648 (33 L. Ed. 1047), the court said:
It is further contended that the Supreme Court of Illinois could not entertain the appeal from
the decree dismissing the cross-bill of Buckner and wife without an appeal bond being
executed by them, and that it was not competent for Beckwith to waive the giving of such
bond. * * * A mere failure to execute the bond within due time may be ground for dismissing
an appeal, but does not deprive the court of the right to proceed to a determination of the
appeal. So here, the waiver by the infant's guardian ad litem and next friend of a bond by
Buckner and his wife upon their appealthe latter having waived an appeal bond on his
partdid not affect the jurisdiction of the court. And such is the rule of practice in the
Supreme Court of the United States. (Edmonson v. Bloomshire, 7 Wall. 306, 311, 19 L. Ed.
91; Richardson v. Green, 130 U. S. 104, 114, 9 Sup. Ct. 443, 32 L. Ed. 872; Evans v. State
Bank, 134 U. S. 330, 10 Sup. Ct. 493, 33 L. Ed. 917.) The cases cited by counsel from the
latter court do not announce any different rule.
In Dillinghan v. Skein, Fed. Cas. No. 3,912a, Hempst. 181, it was said: The parties
having appeared before that court, and the appellee making no objection that an appeal bond
had not been given, thereby waived it; and the absence of an appeal bond in no manner
affected the jurisdiction of the court."
had not been given, thereby waived it; and the absence of an appeal bond in no manner
affected the jurisdiction of the court.
It was held in Ross v. Tedder, 10 Ga. 426, that it was competent for the parties to appeal
by consent without giving a bond, and in Gardner v. Investment Co., 129 Cal. 528, 62 Pac.
110, that by joining in a stipulation for additional time defects in a single undertaking given
on two distinct appeals were waived.
In Weidner v. Matthews, 11 Pa. 336, Norris v. Monroe, 128 Mass. 386, and Engle v.
Rowan (Tex. Civ. App.) 48 S. W. 757, it was held that objections to recognizance on appeal
must be taken within a reasonable time or they will be considered as waived.
In my judgment, if the question were before this court for the first time, a construction
opposite to the one given in Marx v. Lewis, supra, ought to be applied, but under the
circumstances it would be better for the legislature to amend the statute.
On Rehearing
Following the prior decision of this court in Marx v. Lewis, 24 Nev. 306, this appeal was
dismissed upon the ground that an undertaking on appeal was an essential statutory requisite
to invest this court with jurisdiction, and that such undertaking could not be waived. Upon
our attention being called on petition for a rehearing to the fact that all of the statutory
provisions having a bearing upon the question were not referred to or considered in the Marx
v. Lewis case, supra, a rehearing was granted. By section 348 of the civil practice act (Comp.
Laws, 3443) it is provided that in all cases the undertaking or deposit may be waived by the
written consent of the respondent. This important provision of the statute appears clearly to
have been inadvertently overlooked both by the court and counsel in the Marx v. Lewis case.
Section 10 of An act relative to attorneys and counselors at law (Comp. Laws, 2621)
provides: An attorney and counselor shall have authority: FirstTo bind his client in any of
the steps of an action or proceeding, by his agreement filed with the clerk, or entered upon
the minutes of the court, and not otherwise."
the clerk, or entered upon the minutes of the court, and not otherwise. Where the attorney for
the respondent enters into a written stipulation waiving an undertaking on appeal and such
stipulation is filed with the clerk, it is a compliance with the provisions of the statute. In so
far as the opinion in the Marx v. Lewis case holds that an undertaking on appeal cannot be
waived, it is overruled. Likewise the opinion heretofore rendered in this case.
This is an appeal from the decision and judgment in favor of the plaintiff, respondent
herein, and from an order denying defendants' (appellants herein) motion for a new trial. The
only point urged upon the appeal is that the decision and judgment of the trial court is not
supported by the evidence. This action is in claim and delivery to recover the possession of
certain personal property consisting of a stock of wines, liquors, and cigars, bar fixtures, and
certain other saloon furnishings. The property in question was attached by the said sheriff of
Nye County as the property of J. H. Hoffman, a brother of the respondent herein, in an action
instituted by the appellant A. J. Pommer Company, against the said J. H. Hoffman and two
others on the 8th day of February, 1907. Proof was offered to the effect that on the 21st day of
January, 1907, the said J. H. Hoffman executed and delivered to the plaintiff a bill of sale of
the property in question, together with the saloon business conducted by him, and known as
The Hoffman, and an automobile, in payment and extinguishment of a prior existing debt
in the sum of $5,250 owed by him to the plaintiff. The said bill of sale was thereupon filed for
record and recorded in the office of the county recorder of Nye County at the town of
Tonopah, where the property was situated and the record in the recorder's office published in
the paper.
After the making of the bill of sale, the plaintiff took possession and conducted the saloon
business in substantially the same manner as his brother had previously conducted it. Both
Hoffmans worked a shift as bartenders substantially as they had done before the execution of
the bill of sale, with the exception that the respondent acted as proprietor and J. H. Hoffman
worked upon salary. The only sign about the saloon before the transfer was the words "The
Hoffman," and this was not changed.
saloon before the transfer was the words The Hoffman, and this was not changed. Neither
of the brothers had ever had their name used otherwise about the premises, either before or
after the sale. The business houses and persons from whom supplies for the saloon had been
purchased were notified when they presented their bills that the saloon business had changed
hands, and that the plaintiff was the owner, and would be responsible for debts in the future.
Customers of the place coming in were also informed of the transfer. It was also brought out
in the testimony of J. H. Hoffman that at the time of the execution of the bill of sale that he
did not make any transfer of his lease upon the premises, nor was any change made in the
county license. He testified that he did not consider it necessary to transfer the lease, and that
in reference to the license that he did not know until afterwards that the saloon could not
legally be conducted under the quarterly license taken out by him the 1st of January, and
explained that former purchasers of the saloon prior to himself had continued to do business
under the prior existing license.
The action brought by A. J. Pommer Company, against J. H. Hoffman, was for an
indebtedness contracted by the latter's wife while engaged in conducting a music store in
Tonopah. Both the plaintiff and the said J. H. Hoffman testified that at the time of the transfer
they were unaware of such indebtedness, and that the sale and transfer of the property in
question was not made to hinder, delay, or defraud any creditors of either J. H. Hoffman or
his wife.
It is contended by appellant that the evidence was insufficient to establish a valid sale of
the property in controversy as against the creditors of J. H. Hoffman under the statute of
frauds. Section 64 of an act concerning conveyances (Comp. Laws, 2703) provides: Every
sale made by a vendor of goods and chattels in his possession or under his control, and every
assignment of goods and chattels, unless the same be accompanied by an immediate delivery,
and be followed by an actual and continued change of possession of things sold or assigned,
shall be conclusive evidence of fraud, as against the creditors of the person making such
assignment, or subsequent purchasers in good faith."
creditors of the person making such assignment, or subsequent purchasers in good faith.
This court in Tognini v. Kyle, 17 Nev. 209, 212, 45 Am. Rep. 442, said: In sales of
personal property the statute requires that it must be taken into the actual possession of the
vendee in order to be operative against the creditors of the vendor. This requirement of the
statute is based upon the principle that permitting the former owner to remain in the apparent
ownership of the property may be the means of giving him a false credit. There is no
difficulty in the application of the statute to sales of personal property capable of actual
delivery, as, for instance, in the case of the sale of a few bushels of charcoal, but the
application of the statute to sales of cumbrous property, such as twelve thousand bushels of
charcoal, has been fruitful of litigation. What will amount to a change of possession sufficient
to satisfy the requirements of the statute in one case will fall short of its demands in another.
Each case must be decided with relation to the character and situation of the property at the
time of the sale. The object of the section of the statute, supra, is the prevention of frauds
which would necessarily result from the practice of permitting the right of property to be in
one person and the possession and all the indicia of the right of property being in another.
(Doak v. Brubaker, 1 Nev. 221; Wilson v. Hill, 17 Nev. 406.)
This case was tried before the court without a jury. No specific findings of fact were filed in
the case, but the following appears in the written opinion of the trial judge: The evidence in
this case shows that the sale was made in good faith and without any intention to hinder or
defraud any of the creditors of J. H. Hoffman, and particularly the A. J. Pommer Company.
Indeed, the evidence shows that neither the plaintiff nor J. H. Hoffman knew of the existence
of the claim of the Pommer Company; the fact being that the account accrued for musical
instruments and goods sold and delivered to the wife of J. H. Hoffman. If J. H. Hoffman had
sold the property described in the complaint to some person other than his brother in payment
of a debt amounting to the value of the property, and if such person had taken possession
thereof before the levy of attachment, without notice of the existence of the claim of the
attaching creditor, it could not be seriously contended that the vendee was not a
purchaser in good faith, and that he would not be protected against the creditors of J. H.
Hoffman.
the value of the property, and if such person had taken possession thereof before the levy of
attachment, without notice of the existence of the claim of the attaching creditor, it could not
be seriously contended that the vendee was not a purchaser in good faith, and that he would
not be protected against the creditors of J. H. Hoffman. Does the fact that the transfer was
made to the brother of the vendor change the rule, all of the other facts being the same?
Manifestly not. The fact that J. H. Hoffman and F. P. Hoffman are brothers and that the bill of
sale was given in extinguishment of an antecedent debt are circumstances that might create a
suspicion as to the good faith of the transfer, still these circumstances are not sufficient to
overcome the direct and positive testimony of the two Hoffmans that the sale was made in
good faith and free from fraud, and that there was an immediate delivery and an actual and
continued change of possession. It will be observed that absolutely no testimony whatever
was offered by the defendants to contradict or impeach the testimony of the Hoffmans, or to
show that the plaintiff was not a purchaser in good faith, and that the provisions of the statute
requiring a delivery and change of possession had not been complied with. The most that can
be said in support of the defendants' contention is that these circumstances cast a cloud and
suspicion upon the transfer. It is an inflexible rule of law that fraud cannot be assumed, but
must be established by clear, convincing and unequivocal proof. The testimony offered in
behalf of the plaintiff, it seems to me, cannot be overcome by suspicions, surmises, or
inferences, however cunningly awakened or eloquently depicted. When the attachment was
levied in the Pommer suit, the plaintiff herein filed his claim of ownership with the sheriff, as
required by law, and the want of delivery and the question of the good faith of the transfer
were submitted to a sheriff's jury. This jury decided in favor of the plaintiff in this case. The
verdict of the jury in that case must have been based upon the conviction in the mind of the
jury that the sale was made in good faith, and that there was an immediate delivery and an
actual and continued change of possession. While the conclusion of the jury in that
proceeding is not binding upon the court in this case, still it shows how the jury regarded
the weight of the evidence offered in support of these questions."
in this case, still it shows how the jury regarded the weight of the evidence offered in support
of these questions.
The only question which might be regarded as at all serious in this case is whether it could
be said that the possession of the respondent vendee was a concurrent or joint possession with
the vendor and not exclusive as required by the statute. (20 Cyc. 541.)
This court by Hawley, C. J., in the case of Gray v. Sullivan, 10 Nev. 416, 424, said: It is
well settled that the employment of the vendor in a subordinate capacity is only colorable, and
not conclusive, evidence of fraud. (Godchaux v. Mulford, 26 Cal. 324; Billingsley v. White,
59 Pa. 466.) Certainly no stronger rule ought to be adopted against the employment of the
mere servant of the vendor. The court, in Godchaux v. Mulford, discussing the question of the
employment of the vendor, said: It was competent for the defendants to prove the fact as
tending to show that there had been no actual and continued change of possession; but, when
proved, it did not become conclusive of that question, * * * but only an element of proof to be
weighed by the jury.'
See, also, the case of McKibbin v. Martin, 64 Pa. 352, 3 Am. Rep. 588, cited with
approval in Tognini v. Kyle, supra.
In the McKibbin case, the court, by Sharswood, J., said: The law undoubtedly is that not
only must possession be taken by the vendee, but that possession must be exclusive of the
vendor. A concurrent possession will not do. There cannot in such case,' said Mr. Justice
Duncan, be a concurrent possession. It must be exclusive, or it would by the policy of the
law be deemed colorable.' (Clow v. Woods, 5 Serg. & R. 287, 9 Am. Dec. 346.) And, again,
in Babb v. Clemson, 10 Serg. & R. 428, 13 Am. Dec. 684: There cannot be a concurrent
possession in the assignor and assignees. It must be exclusive, or it is deemed colorable and
fraudulent. To defeat the execution, there must have been a bona fide substantial change of
possession. It is mere mockery to put in another person to keep possession jointly with the
former owner. A concurrent possession with the assignor is colorable.' But what is the
concurrent possession which will be deemed such as matter of law? Evidently as owner, or
accompanied with the ordinary indicia of ownershipsuch as will lead any person not in
the secret to infer that there has been no actual change.
the ordinary indicia of ownershipsuch as will lead any person not in the secret to infer that
there has been no actual change. The vendor must appear to occupy the same relation to the
property as he did before. In such a case the court must pronounce it fraudulent and colorable
per se. * * * Certainly it may be considered as settled by abundant authority in this court that
where there has been a sufficient actual or constructive delivery to the vendee, and he is in
possession, the fact that the vendor is employed as a clerk or a servant about the
establishment, in a capacity which holds out no indicium of ownership, does not constitute
such a concurrent possession as the law condemns. In such cases it is a question for the jury
whether the change or possession has been actual and bona fidenot pretended, deceptive,
and collusive. If there are facts tending to show that he had a beneficial interest in the
business; that the proceeds of it went to him beyond a reasonable compensation for his
services; that he had an unlimited power to draw upon the till; or that with the knowledge of
the vendee he took money to pay his own debtsthese are facts for the jury. * * * In
Billingsley v. White, 59 Pa. 464, two partners sold out a store of goods to the brother of one of
them. One of the vendors continued in the store as a hired hand. If,' said Mr. Justice
Williams, Billingsley's acts and declarations as a salesman had been such as to leave it
doubtful whether he was acting as owner or agent, then his presence and connection with the
goods would have been such evidence or retained possession as to render the sale fraudulent.
But if his acts and declarations were professedly and apparently those of a mere agent, and
were so understood by the parties with whom he dealt, as all the evidence tends to show, then
they constituted no such badge of fraud or evidence of retained possession as would justify
the court in declaring the sale fraudulent.'
It cannot, we think, be said from the facts in this case that the sale was fraudulent in law. It
was the province of the trial court to determine whether it was fraudulent in fact.
____________
31 Nev. 493, 493 (1909) State v. Martin
[No. 1846]
THE STATE OF NEVADA, ex rel. J. G. KAUFMAN, et al., Relator, v.
C. T. MARTIN, et al., Respondents.
1. StatutesConstruction.
Courts will construe the language of a statute so as to give effect to, rather than to nullify, it.
2. CountiesCounty-SeatRemoval.
Comp. Laws, 5007, provides that whenever three-fifths of the qualified electors of any county, each
elector being a taxpayer of said county, shall petition the county commissioners for the removal of the
county-seat, the commissioners shall cause an election to be held, etc. Held, that the words each elector
being a taxpayer of said county refer to the preceding word electors, and hence the petition is sufficient
when three-fifths of the qualified taxpaying electors are signers of the petition.
3. MandamusTo County CommissionersCounty-SeatElection.
Comp. Laws, 5007, requires the county commissioners to cause an election on the question of the
removal of the county-seat to be held when a petition for such removal, signed by three-fifths of the
qualified taxpaying electors of any county, as appears by the last assessment roll, etc., is presented. Section
5010 provides that every such petition shall be accompanied by a certificate of the registry agent of the
district, showing that all the petitioners are qualified electors of such county, as appears by the registry list
of said district, or the affidavits on file, of persons not registered at the last election, but who are qualified
electors of said county. Held, that the determination of the questions as to whether the signers were on the
last assessment roll and as to whether they had taken the oath prescribed by law for the registration of
electors, when that fact was certified by the registry agent, are ministerial acts, and that mandamus will lie
to compel the board to call an election, if a petition is filed by three-fifths of the taxpaying voters, as shown
by the roll and registration certified, although the board has already acted and denied the petition.
Original proceeding. Application by the State, on the relation of J. G. Kaufman and others,
for writ of mandate against C. T. Martin and others, Board of County Commissioners of Lyon
County. Demurrer to application overruled.
The facts are sufficiently stated in the opinion.
Huskey & Springer, for Relator:
I. Respondents in the present case were vested with no discretion whatever in deciding
upon the sufficiency of the petition presented to compel action on their part, but acted in a
ministerial capacity.
II. Mandamus will not lie until respondent is in actual default, and he is not in actual
default until the time passes within which he may legally do the act enjoined.
default, and he is not in actual default until the time passes within which he may legally do
the act enjoined. In the meantime no threat or determination not to act will serve to put him in
default. (State v. Gracey, 11 Nev. 233; State v. Rising, 15 Nev. 165; State v. Noyes, 25 Nev.
48; Hardin v. Guthrie, 26 Nev. 251.)
III. In reference to the question of statutory construction, we invite the attention of the court
to the general rule of statutory construction that where a question of construction is before
the court, words and phrases may be transposed, and grammatical sense does not always
control.
C. H. Miller and Mack & Green, for Respondents:
I. It has been repeatedly and uniformly held by this court that mandamus does not lie to
review or control the exercise of judicial functions. To entitle a relator to a writ of mandamus,
his right must be a clear legal one. Mandamus will never issue to enforce an equitable right.
(13 Ency. Pl. & Pr. 496, and cases cited; 26 Cyc. 151.) The writ of mandamus was never
designed to displace or supersede other legal or equitable remedies. In an application for a
writ of mandamus the relator must show a clear legal right to the relief demanded. (State v.
Noyes, 25 Nev. 32; State v. Stoddard, 25 Nev. 452; Pyne v. LaGrave, 22 Nev. 417; State v.
Boerlin, 98 Pac. 402; State v. Meder, 22 Nev. 226.)
II. The petition presented to the board was not sufficient to invoke the authority of the board
to call a special election. The petition prayed for a special election to move the county-seat of
Lyon County from the town of Dayton to the city of Yerington. Under the law no election
could be held for such purpose, and the board was perfectly right in denying the petition. The
law authorizes the filing of a petition to move the county-seat merelynot to remove it to a
particular place, for that is a question to be determined by the votersand it was right for the
board of county commissioners to deny the petition under these circumstances regardless of
whether it contained the requisite number of names or not. There can be no presumption
indulged in by the board of county commissioners that the signers of the petition could have
been induced to sign the petition under any other condition than that the election would
be held for the purpose of moving the county-seat from the town of Dayton to the city of
Yerington.
induced to sign the petition under any other condition than that the election would be held for
the purpose of moving the county-seat from the town of Dayton to the city of Yerington.
Relators affirm that the prayer for a removal to the city of Yerington is but a surplusage, and
it could be said that it would have been fair for the board of county commissioners of Lyon
County to call a special election on the petition of qualified electors and taxpayers of said
county who had been induced to sign it under the guise that the city of Yerington would
become the county-seat, and under no other consideration.
III. Where the language is plain, clear and unambiguous, there is no room for construction
or interpretation. (Brown v. Davis, 1 Nev. 409; Wall v. Blasdel, 4 Nev. 241; Fitch v. Elko
County, 8 Nev. 271; Hess v. Commissioners, 6 Nev. 104; V. & T. R. R. Co. v. Lyon County, 6
Nev. 68, Lewis v. Doron, 5 Nev. 400; Odd Fellows Bank v. Quillen, 11 Nev. 109; Sutherland,
sec. 408.)
Per Curiam:
By demurrer respondents question the sufficiency of the application for a writ of mandate
by which it is sought to compel respondents to order an election for the purpose of enabling
the voters of Lyon County to determine whether the county-seat should be moved.
Among other things it is alleged in that application that on the 7th day of June, 1909, there
was filed with respondents, as the board of county commissioners, a petition, duly
accompanied by the proper certificate of the registry agent of each of the districts where the
persons signing the same resided, praying for the removal of the county-seat from the town of
Dayton; that it appears by the registry lists of the several precincts 962 qualified electors were
duly registered at the last election in that county, which was a special one; that in addition
two qualified electors who did not register for the last election executed and filed with the
registry agents of their respective precincts affidavits showing them to be qualified electors of
the county; that of the qualified electors whose names appear on the registry lists of the last
election, or, who, though not registered at such election, were nevertheless shown by such
affidavits on file with the registry agents of the several precincts of the county to be duly
qualified electors, 404 were taxpayers, as appears by the last assessment roll; that the
petition was signed by more than three-fifths of the qualified electors of the county who
had taken and subscribed the oath or affirmation prescribed by law for registration of
electors and whose names appeared on the last assessment roll; and that 255 of the 404
qualified electors were taxpayers as shown by the last roll and had signed the petition for
removal.
by such affidavits on file with the registry agents of the several precincts of the county to be
duly qualified electors, 404 were taxpayers, as appears by the last assessment roll; that the
petition was signed by more than three-fifths of the qualified electors of the county who had
taken and subscribed the oath or affirmation prescribed by law for registration of electors and
whose names appeared on the last assessment roll; and that 255 of the 404 qualified electors
were taxpayers as shown by the last roll and had signed the petition for removal. On June 7,
1909, the respondents, as such board of county commissioners, ordered that the petition be
denied, for the reason that it appears from the petition that less than three-fifths of the
qualified electors of Lyon County were subscribers thereto.
It is provided by section 5007 of the Compiled Laws: Whenever three-fifths of the
qualified electors of any county of this state, each elector being a taxpayer of said county, as
appears by the last assessment roll, who have taken and subscribed to the oath or affirmation
prescribed by law for the registration of electors in this state, shall petition the board of
county commissioners of such county for the removal or location of the seat of justice of said
county, the said county commissioners shall, within sixty days thereafter, cause an election to
be held at the various places of voting in said county, the said county commissioners giving
thirty days' notice in some newspaper published in the county or by posting written or printed
notices at the several voting precincts in the county. * * * Section 5010 directs: Every
petition for the purpose mentioned in section 1 of this act shall be accompanied by the
certificate of the registry agent of the district where the persons signing such petition reside,
showing that all persons whose names are signed to said petition are qualified electors of said
county, as appears by the registry list of said district, or the affidavits on file in his office of
persons not registered at the last general or special election, but who are qualified electors of
said county. * * *
Respondents seem to rely largely upon State v. County Commissioners of Eureka County,
8 Nev. 310, and State v. County Commissioners of Washoe County, 6 Nev. 104. The statute
and the facts and circumstances controlling those cases are different from those here.
ferent from those here. In the Eureka County case it became incumbent for the board to
determine whether 500 qualified electors had signed the petition, and the statute did not make
any provision for certificates by the registry agent or reference to the assessment roll, from
which the number of electors might be determined ministerially, as under the statute which
controls the present proceeding. These provisions may have been inserted in this later
enactment for the purpose of making the action of the board ministerial and compulsory in
calculating and acting upon the number of taxpaying voters as indicated by the roll and the
certificates of the registry agents showing the registration of voters and the making by them of
the affidavits of their qualifications, to avoid any holding by the courts that the determination
by the board of whether the petitioners were in fact qualified voters, instead of whether they
appeared on the roll and had registered and made the affidavit, was a judicial act, which could
not be controlled. It was set up as a defense there that 138 of the signers had asked that their
names be withdrawn, leaving the number of signers less than the required 500. In the
application, which is deemed true so far as the demurrer is concerned, it is alleged that the
required number of qualified taxpaying voters signed the petition, and so far there is no
showing that the requisite number have not petitioned, or that some have withdrawn, so that
the necessary number do not remain as petitioners. This leaves the respondents as admitting
that three-fifths of the taxpaying qualified voters as shown by the tax roll and registry lists
have petitioned, and yet contending that they need not call an election, as they are directed to
do by the statute when that proportion of this class of voters petition. The reason designated
in the order of the board for refusing to call an election, namely, that three-fifths of the
qualified voters had not petitioned, does not excuse compliance with the demand of section
5007 that an election be called if petitioned for by three-fifths of the qualified taxpaying
voters as shown by the roll and certificates of registration.
In the Hess or Washoe County case, the board called an election for a time more distant
than provided by statute, and it was held to be without that power.
it was held to be without that power. As the refusal of the respondents here to call an election
presents a somewhat different question, we need neither follow nor overrule that case.
However, we are of the opinion, if an act of the legislature directs a board to do a certain act
upon the arising of a contingency, and it is not disputed that the conditions as intended by the
legislature have arisen, and the statute vests no discretion in the board, it makes the act a
ministerial one, and the board can be compelled to comply with the statute, and cannot be
excused from such compliance by asserting their failure to comply within the time prescribed
by the act.
In State v. Young, 6 S. D. 406, 61 N. W. 165, it was held that the designation of a day for
an election is so far directory that, if from any cause no election is held on that day, it is the
duty of the board to call an election at the earliest day practicable thereafter and make the
necessary provisions therefor.
Quoting in part with approval from high authority, the Supreme Court of Florida, in
McConihe v. McMurray, 17 Fla. 261, said: So in this country it has been held that an
election of municipal officers may be held after the charter day, and that a mandamus may be
granted to compel the proper officers to give notice thereof.' (2 Dillon's Municip. Corp. 675;
Tap. on Mandamus, p. 165.) * * * Nor is it any objection that the precise date at which the
election was to be held has passed. (4 East, 142; State v. Baltimore County Commissioners,
29 Md. 523.) Such a doctrine would practically abolish the remedy by mandamus in such
cases. The writ does not lie before, but only after, default in the performance of a ministerial
duty (Tap. Man. 290; 8 A. and E. 911); and, if it be a good defense to allege that the time
fixed for its performance has passed, it is evident that the very ground upon which you must
base your application for the writ becomes a sufficient reply to the alternative writ when
granted. See, also, cases there cited, and People v. Trustees of the Town of Fairbury, 51 Ill.
149; People v. Schiellein, 95 N. Y. 124; 26 Cyc. 272.
We are unable to agree with respondents' contention that section 5007 requires that the
petition for removal of county- seats be signed by a number of qualified electors shown on
the roll to be taxpayers equivalent to three-fifths of all the voters in the county.
seats be signed by a number of qualified electors shown on the roll to be taxpayers equivalent
to three-fifths of all the voters in the county. It was contended, and admitted on the argument,
that such construction would in effect nullify the act, because in no county in the state are
three-fifths of the voters taxpayers. In the language at the beginning of section 5007, that
whenever three-fifths of the qualified electors of any county of this state, each elector being
a taxpayer of said county, as appears by the last assessment roll, who have taken and
subscribed to the oath or affirmation prescribed by law for the registration of electors in this
state, shall petition, the words each elector being a taxpayer of said county would naturally
be held to relate, under the well-known rule of construction, to the word electors in the first
line, which it follows, more closely than to three-fifths, which is the second word in the
section. If the meaning were doubtful a similar construction would be placed upon the statute,
under the rule that courts will so construe the language as to give effect to, rather than nullify,
an act of the legislature. It would seem that respondents took a different view; for the only
reason for denying the petition stated in their order is that it was not signed by three-fifths of
the qualified electors of the county. We think that the allegation that it was signed by
three-fifths of the qualified taxpaying electors of the county, as shown by the last assessment
roll, who had taken and subscribed the oath or affirmation prescribed for the registration of
electors, if true, and they had not withdrawn, was sufficient to require the board to order the
election, and that the determination of the questions as to whether the signers were on the last
assessment roll, and as to whether they had taken and subscribed to the oath or affirmation
prescribed by law for the registration of electors, when this fact was certified by the registry
agent under section 5010, were ministerial acts. It was evidently the intention of the
legislature to require a petition of three-fifths of the taxpaying voters, who would have to
contribute to the expense of changing the county-seat and of an election, to petition before
one could be called, and in addition to require a majority of all the voters at the election to
favor removal before a county-seat could be removed. If the construction for which
respondents contend were correct, and if taxpaying voters equivalent to three-fifths of all
the voters in the county must petition before an election can be ordered, it would seem
vain and useless to have an election held, when one would require the expression of the
wishes of a less number of voters than had already petitioned for removal.
struction for which respondents contend were correct, and if taxpaying voters equivalent to
three-fifths of all the voters in the county must petition before an election can be ordered, it
would seem vain and useless to have an election held, when one would require the expression
of the wishes of a less number of voters than had already petitioned for removal. If the
legislature had intended to require that the petition be signed by taxpaying voters equivalent
to three-fifths of all the voters in the county, it is apparent that the statute would have been so
framed as to require the board of county commissioners to remove the county-seat on the
filing of a petition so signed, without requiring in addition the formality and expense of an
election, which would not result differently and would be useless.
Counsel for respondents have sought to rely upon the well-established rule that mandamus
will lie to compel a board to act, but not how to act; and it is urged that, as the board has
already acted and denied the petition, it has exhausted its jurisdiction and cannot be required
to act again. This would be true, if the act were of a judicial nature and vested the board with
discretionary powers; but it confers none, and the language is positive in directing the board
to call an election if a petition is filed by three-fifths of the voting taxpayers as shown by the
roll and registration certified. (26 Cyc. 192.)
The demurrer is overruled.
____________
31 Nev. 501, 501 (1909) Anderson v. Feutsch
[No. 1825]
SOPHIA ANDERSON, Respondent, v. C. FEUTSCH and
J. GASSER, Appellants.
1. Master and ServantInjuries to ServantIndependent ContractorDelegation of Work.
An excavation in a sidewalk in a traveled thoroughfare is so inherently dangerous that the person making
it cannot escape responsibility for injuries to others by having the work done by an independent contractor;
he being bound to protect others from injury therefrom.
2. Municipal CorporationsExcavation in StreetInjuriesActionSufficiency of Evidence.
In an action for injuries sustained by falling into an excavation in a sidewalk in front of defendants'
premises, evidence held to sustain a finding that the excavation was not safeguarded until after the
accident.
3. Appeal and ErrorReviewEvidence.
The supreme court will only disturb a judgment for want of evidence where it is without any substantial
evidence to support it.
4. Appeal and ErrorProvince of Trial CourtCredibility of Witnesses.
The trial court is the exclusive judge of the credibility of witnesses.
1. Municipal CorporationsDefective StreetsExcavationsFailure to GuardStatutesConstruction.
Comp. Laws, 271, provides that any person or persons who shall make any excavation, or being the
owners or in possession of any excavation, whether used for mining or for any other purpose, shall, during
the time they may be employed in excavating, or after they may have ceased work on or abandoned the
same, erect substantial safeguards, and keep the same in good repair, around such works or shafts,
sufficient to securely guard against danger to persons or animals from falling into such excavation. Held,
that such act was not limited to excavations for mining purposes, but required the guarding of excavations
in streets, made for the benefit of abutting owners, rendering them liable for injuries to a traveler because
of their failure to comply therewith.
Appeal from the District Court of the Seventh Judicial District of the State of Nevada,
Esmeralda County; Theron Stevens, Judge.
Action by Sophia Anderson against C. Feutsch and another. From a judgment for plaintiff
and an order denying a motion for new trial, defendants appeal. Affirmed. Petition for
rehearing. Denied.
Thompson, Morehouse & Thompson, for Appellants:
I. Section 271 of the Compiled Laws does not apply. The title of that act is An act to
secure persons and animals from danger arising from mining and other excavations. It has no
relation to streets or excavations in streets. The words other excavations are ejusdem
generis. They mean simply excavations made in and about mines, excavations of the same
class or kind. The rule is where there are general words following particular and specific
words, the former must be confined to things of the same kind. (Suth. Stat. Const. 422, 423;
Edgecomb v. Creditors, 19 Nev. 149.)
II. Before plaintiff can recover, she must establish as a fact that her injury was the result from
some act or omission of D. B. Gallagher, some act or omission which D. B. Gallagher as a
prudent man could have, or should have, foreseen or contemplated, for the rule is: The
defendant is not liable in negligence where no injurious consequence could have reasonably
been contemplated as a result of the act or omission complained of. (21 Am. & Eng. Ency.
Law, 2d ed. 486.) She must show some act or omission, something which Gallagher should
have done and which he did not do. But she did not prove any act or omission of Gallagher or
of these defendants. Her testimony, that at 9:30 p.m. there was no barrier, raises no
presumption as against positive evidence that it was fully protected at 6 p.m. Her testimony
simply establishes that a change had taken place. The burden of proof is upon her to establish
negligence, for the rule is: Negligence is not presumed from the mere fact of injury, but must
be established by the evidence.
T. C. McDevitt, for Respondent:
I. Section 271 of the Compiled Laws, being An act to secure persons and animals from
danger arising from mining and other excavations, approved February 8, 1866, states that
said excavation must be guarded. Both of said sections provide a fine in case of the violation
thereof, and neither of them is confined in its operations to incorporated cities or towns, as
contended for by counsel. This hole was dug by defendants, in direct violation of these
statutes, and consequently illegally and unlawfully, and a violation of a statute is
negligence per se.
quently illegally and unlawfully, and a violation of a statute is negligence per se. (Siemers v.
Inas, 54 Cal. 418; Barry v. Terkildsen, 72 Cal. 254; Smith v. Simmons, 103 Pa. St. 32;
Congreve v. Smith, 18 N. Y. 79.)
II. It appears that said contract calls for the doing of something that is inherently
dangerous, to wit, to excavate the entrance to basement of warehouse on Miner Avenue, and
it is well settled that if the work contracted for is of such a character that it is intrinsically
dangerous, or will probably result in injury to a third person, one contracting to have it done
is liable for such injuries, though the injury might be avoided if the contractor took proper
precaution. (16 Am. & Eng. Ency. Law, 2d ed. 210; Donovan v. Oakland Rapid Transit Co.,
102 Cal. 245; Hexamer v. Webb, 101 N. Y. 377; Barry v. Terkildsen, 72 Cal. 254; Congreve
v. Smith, 18 N. Y. 79; Chicago v. Robinson, 2 Black, 418; Creed v. Hartman, 29 N. Y. 591.)
Stipulation in the contract that contractor should use due care to prevent injury does not
relieve him, since the employer is bound at his peril to see that such care is used. (16 Am. &
Eng. Ency. Law, 2d ed. 202, notes; Colgrove v. Smith, 102 Cal. 220; McCamus v. Citizens
Gaslight Co., 40 Barb. 380.)
This is an action brought by the plaintiff, respondent herein, against the defendants,
appellants herein, to recover damages in the sum of $10,000 for personal injuries sustained by
the plaintiff on account of falling into an excavation alleged to have been made by the
defendants in the sidewalk on the south side of Miner Avenue, in the town of Goldfield, and
in front of the premises of defendants, which said excavation, it is alleged, the defendants had
negligently failed to properly safeguard to prevent accidents to pedestrians passing along and
upon said Miner Avenue. The case was tried by the court without a jury, and a judgment for
damages awarded in favor of plaintiff for the sum of $3,500. From the judgment and from an
order denying defendants' motion for a new trial, this appeal is taken.
That plaintiff fell into the excavation which was admittedly dug for the benefit of
defendants and appellants, and thereby sustained serious injuries, is not disputed, nor is
it claimed upon this appeal that the damages are excessive, considering the injuries
sustained, but it is contended that defendants are not legally responsible therefor.
dug for the benefit of defendants and appellants, and thereby sustained serious injuries, is not
disputed, nor is it claimed upon this appeal that the damages are excessive, considering the
injuries sustained, but it is contended that defendants are not legally responsible therefor. The
defendants interposed two defenses: FirstThat the excavation was made by an independent
contractor who contracted for a certain specific price to dig the excavation and to properly
protect it so as to prevent accidents to those who might be traveling upon the street.
SecondThat defendants exercised due care in thoroughly safeguarding the excavation.
1. In support of the defense first mentioned defendants offered in evidence the following
written instrument: Goldfield, Nevada, May 4, 1907. The undersigned agree to excavate the
entrance to basement of warehouse on Miner Avenue for Feutsch & Gasser, for the sum of
Ten Dollars ($10.00), and to keep same covered for the protection of pedestrians until
permanent doors are put in place. D. B. Gallagher. Witnesses: John M. McNulty. A. Carlin.
Objection having been interposed to its admission, it was admitted subject to objection, and
later, when the court came to decide the case, it was stricken out.
The court rendered a written opinion in the case from which we quote the following, with
reference to this writing: In fact, the paper itself and taken in connection with other facts
introduced in evidence has a very strong tendency to discredit this paper as being a bona fide
instrumentwhatever it may be called. The evidence of the defendant Feutsch shows that
Gallagher had the contract for the excavation of this basement, and it would seem rather
peculiar under the circumstances that an independent writing should be drawn up with so
much care, executed in the presence of two witnesses, for a $10 contract, and especially
relieving the defendants for a violation of the statutes. Again, the only thing that the
defendant Feutsch seemed to know about this instrument was that the signature of Gallagher
was genuine. He did not see him sign the instrument. He did not know who wrote the
instrument. He knew nothing whatever about it, except the fact that Gallagher's signature was
genuine. No witnesses were called to prove the execution of this instrumentneither
Gallagher, nor McNulty, nor Carlin, whose signatures appear to be attached as witnesses.
were called to prove the execution of this instrumentneither Gallagher, nor McNulty, nor
Carlin, whose signatures appear to be attached as witnesses. In fact, I think the paper is
entirely discredited.
In any event, this is not such a case that the defendants could be relieved of responsibility
by showing that, if negligence existed, it was the fault of an independent contractor. An
excavation of the character of the one in question in this case dug in a well-traveled street or
thoroughfare is inherently dangerous to third persons traveling thereon, and likely to lead to
injury to them unless thoroughly safeguarded, and it is incumbent upon the proprietor to
foresee such mischief, and to take precautions against it, and he cannot shift the responsibility
to an independent contractor so as to relieve himself. (1 Thompson, Com. on Negligence,
secs. 652, 653; Village of Jefferson v. Chapman, 127 Ill. 438, 20 N. E. 33, 11 Am. St. Rep.
136; Barry v. Terkildsen, 72 Cal. 254, 13 Pac. 657, 1 Am. St. Rep. 55; Colgrove v. Smith,
102 Cal. 220, 36 Pac. 411, 27 L. R. A. 590; Spence v. Schultz, 103 Cal. 208, 37 Pac. 220;
Gaslight Co. v. Norwalk, 63 Conn. 495, 28 Atl. 32; Railroad Co. v. Morey, 47 Ohio St. 207,
24 N. E. 269.) See, also, Comp. Laws, 271. Thompson, supra, sec. 653, says: This principle
has often been applied so as to charge a proprietor with liability for damages to a traveler in
consequence of one who has contracted with the proprietor to do work on his premises having
made a dangerous excavation in the street, and failed properly to guard the same for the
protection of the traveling public. These decisions generally proceed upon the principle that
where work to be done necessarily constituted an obstruction or defect in the street which
renders it dangerous to travelers, unless properly guarded or shut off from public use, the
principal for whom the work is done cannot defeat a just claim for damages by proving that
the work which constituted the defect or obstruction was the work of an independent
contractor.
2. From the opinion of the trial judge we quote the following: We now come to the next
defensethat is, that the excavation was thoroughly safeguarded by being entirely covered
with three planks 2 x 12 inches wide and by a door which entirely covered the excavation
rendering it absolutely impossible for any one to fall into it.
entirely covered the excavation rendering it absolutely impossible for any one to fall into it. In
addition to that, it is alleged, and there was evidence to prove, there were four barrels placed,
one at each corner of the excavation, with planks laid on the top of the barrels, constituting a
railing or fencing around the excavation. If this was done, then it certainly was a safeguard to
protect pedestrians, as it would be impossible under the circumstances for any one to fall into
the excavation without removing the planks or door. The evidence, however, fully establishes
the fact that the plaintiff did fall into that excavation, and that by such fall she was injured.
The testimony further shows that at the time she fell into the excavation there was no
safeguard whatever around it, no barrels, no plank, nor anything in the nature of a covering or
a fence or any obstruction whatever to prevent the plaintiff from falling. The evidence of the
plaintiff and of her sister clearly establishes the fact that the plaintiff fell into the excavation.
It establishes the fact without a contradiction that the sister went into the saloon and got the
bartender to assist her in dragging the plaintiff out of this excavation. The evidence of Mrs.
Osborn shows that it was very dark at the place where this excavation was sunk; that herself,
her husband, and two others came out to hunt for the $5 which plaintiff claimed to have lost
when she fell into the excavation; that her husband got down into the excavation; that there
was loose dirt and rock in the bottom of the same, and that, when he stood up in the bottom,
his head barely reached the top of the excavation; that he is about five feet, eight inches tall.
Her evidence also corroborates the evidence of plaintiff and her sister that it was very dark,
and that there was no light by which they could see this excavation, and that they had to light
matches. She also testifies that there was no covering of any kind, no safeguards of any kind
whatever around this excavation to prevent any one from walking right into it. As we have
before shown by the statute (section 271 of the Compiled Laws), it was the duty of the
defendants to see that the excavation was substantially safeguarded, sufficient to securely
guard against danger to persons and animals from falling into the same. The defendants do
not claim that they ever ordered any safeguards whatever to be placed around this
excavation, or that they personally placed any safeguards, or that they knew any
safeguards had been placed around it, except the defendant Feutsch testifies that he saw
this place some time between 5 and 7 o'clock of the evening on which the accident
occurred, and that these safeguards were around the place as has been testified to by the
witness Nolting.
guards whatever to be placed around this excavation, or that they personally placed any
safeguards, or that they knew any safeguards had been placed around it, except the defendant
Feutsch testifies that he saw this place some time between 5 and 7 o'clock of the evening on
which the accident occurred, and that these safeguards were around the place as has been
testified to by the witness Nolting. But the credibility of this evidence is to be tested, first, by
the interest of the defendant Feutsch in the result of this trial; second, by other facts and
circumstances connected with the transaction and occurring immediately after the accident
happened. It does not appear that during the night of the accident any of the defendants or any
one connected with the defendants even suggested that this excavation had been safeguarded
in any way. On the contrary, the defendant Feutsch at the house of the plaintiff in the presence
of the plaintiff, her sister, and the witness Maggie Walters stated, as testified to by all three of
the last-named persons, that he was sorry the plaintiff was hurt, he was sorry that the hole or
excavation had not been covered, and for them to take good care of the plaintiff and that he
would pay all expenses. This evidence is not contradicted by the defendant Feutsch in any
manner whatever. In fact, it is corroborated by the evidence of Feutsch himself, who testifies
that he proposed to pay the expenses and the doctor bills. At that time he had apparently no
other idea than that the defendants were liable for the injuries which had been suffered by the
plaintiff. Afterwards he seemed to have discovered that the defendants were not liable and
then not only declined to pay any expenses whatever, but even regretted that he had given the
plaintiff a bottle of whisky because he was in no way responsible for the injury. In view of all
the evidence and the facts surrounding the case as testified to by the witnesses, I cannot
escape the conviction that no safeguards whatever were placed around that excavation, and
that it was left entirely unprotected. It is true that the witness Olson and the witness Nolting
testified that they saw the excavation at about 6 o'clock on the evening of the accident, and
that the same was safeguarded as heretofore described. In view of all the facts, however, I
have grave doubts as to the correctness of the testimony of the witnesses in that respect.
the correctness of the testimony of the witnesses in that respect. They may have testified
honestly as to having seen the excavation covered by planks and a door and protected by the
barrels and planks, but, as to the date when they saw them, I think they must be mistaken, and
I have no doubt but that the excavation was thoroughly guarded the next day after the
accident, at which time extraordinary efforts were made to guard against further accident.
They not only from the description of the safeguards completely covered the excavation so
that persons could safely walk across the same, but in addition to that placed barrels all
around it so that it could not be reached.
It is very strenuously urged upon this appeal that the finding of the trial court to the effect
that the excavation was not safeguarded prior to the accident is contrary to the evidence. It is
true that two witnesses other than the defendant Feutsch testified that on the evening of the
accident and prior thereto they had observed the excavation, and that it was safeguarded, and
that they were positive of the date because it was the evening of the circus. Defendant Feutsch
testified to the same effect. Upon the other hand, there is positive testimony that there were
no safeguards around the excavation at the time of the accident; that it was not protected
either by electric lights, candles, barrels, or lumber. Nothing at all, rough dirt thrown on the
sides. The plaintiff, her sister, and another witness testified that upon the evening of the
accident and shortly after it occurred the defendant Feutsch stated that he was very sorry the
place was not covered up, or was sorry the hole wasn't covered. In his testimony he does
not deny that he made such statements. It would be quite remarkable if the defendant knew
that the excavation was protected in the manner claimed prior to the accident that he would
not comment upon the removal of the safeguards, but, upon the contrary, the testimony stands
uncontradicted that he expressed a regret that the hole was not covered.
Counsel for appellants' theory of the case appears to be that the excavation was
safeguarded as claimed prior to the accident, but that in the meantime some unknown person
or persons, without the knowledge of defendants, had removed the barriers.
sons, without the knowledge of defendants, had removed the barriers. Defendant Feutsch
testified: I know they had three planks and they used the same ones every night. He also
says he saw the door and the four barrels, saw the hole for three or four weeks thereafter until
the door was put in place. He did not go to look at the hole that night after the injury, and did
not see it until the next day about noon. He testified: I know that they covered it up when I
came back.
From all of the evidence in the case we cannot say that the conclusion of the trial court that
the excavation was not safeguarded until after the accident is contrary to the evidence. The
trial court is the exclusive judge of the credibility of the witnesses, and, as this court has
frequently decided, only in cases where a judgment is without substantial evidence to support
it is this court authorized to disturb the judgment for want of evidence.
The judgment and order denying the motion for a new trial are affirmed.
It is urged, on petition for rehearing, that in the opinion heretofore rendered we did not
pass upon appellants' contention that there was a failure upon the part of the plaintiff to show
that any duty was imposed upon the defendants to guard the excavation, for the reason that it
was not within a lawfully established street or public highway, and not within the portion
thereof being used by the public as a thoroughfare. We did not deem it essential to determine
whether Miner Avenue in the town of Goldfield was a public highway, as that term is used
in the statute, for the reason that we considered appellants' liability established independent of
that question. It was a street or highway in fact being used by the public as such. We cited
section 1 of an act entitled An act to secure persons and animals from danger arising from
mining and other excavations, approved February 8, 1866 (Comp. Laws, 271), which reads:
Any person or persons, company or corporation, who shall hereafter dig, sink, or excavate,
or cause the same to be done, or being the owner or owners, or in the possession, under any
lease or contract, of any shaft, excavation, or hole, whether used for mining or otherwise,
or whether dug, sunk, or excavated, for the purpose of mining, to obtain water, or for any
other purpose, within this state, shall, during the time they may be employed in digging,
sinking, or excavating, or after they may have ceased work upon or abandoned the same,
erect, or caused to be erected, good and substantial fences or other safeguards, and keep
the same in good repair, around such works or shafts, sufficient to securely guard against
danger to persons and animals, from falling into such shafts or excavations."
tion, or hole, whether used for mining or otherwise, or whether dug, sunk, or excavated, for
the purpose of mining, to obtain water, or for any other purpose, within this state, shall,
during the time they may be employed in digging, sinking, or excavating, or after they may
have ceased work upon or abandoned the same, erect, or caused to be erected, good and
substantial fences or other safeguards, and keep the same in good repair, around such works
or shafts, sufficient to securely guard against danger to persons and animals, from falling into
such shafts or excavations.
The trial court held, and we think correctly so, that the appellants were bound, under the
provisions of this statute, to keep the excavation in question protected. The earnestness and
apparent sincerity with which counsel for appellants contended that the provisions of this act
only apply to excavations for mining purposes may have entitled them to a more extended
consideration of the point than that given in our former opinion. We have never been
impressed, however, that the contention possessed any considerable force. We think it clear,
both from the title and body of the act, that it was the intention of the legislature to protect
persons and animals from all excavations, regardless of the purpose for which they were dug.
Mining excavations were mentioned particularly, we think, only because they comprise the
great majority of all excavations in this state. The great purpose of the act was to protect
persons and animals from injury resulting from falling into unprotected excavations. The
same injury would result from falling into a certain particular excavation, regardless of the
purpose for which it was made. For the purpose designed to be accomplished by this act, all
excavations are in a common class, and the fact that the legislature saw fit to specifically
designate those made for mining purposes and to comprehend all others in general terms does
not, we think, limit the provisions of the law to mining excavations only.
While this court has never before been called upon to construe this statute, its provisions
were involved in the case of Wiggins v. Henderson, 22 Nev. 103. In that case two Wiggins
brothers had been convicted and fined in the justice court for leaving a well unprotected.
While the judgment in that case was annulled on certiorari because the provisions of the
act as to procedure had not been complied with, no one appeared to question that a well
would be within its provisions.
was annulled on certiorari because the provisions of the act as to procedure had not been
complied with, no one appeared to question that a well would be within its provisions. The
Wiggins case cannot, of course, be regarded as even indirectly determining the question here
presented; but it is of some significance, possibly, that the position taken by counsel in this
case did not suggest itself to any one connected with that case, where the proceeding was
based primarily upon the statute.
A rehearing is denied.
____________
31 Nev. 511, 511 (1909) State v. Jackman
[No. 1815]
THE STATE OF NEVADA, Respondent, v. ALBERT T. JACKMAN, Appellant.
1. CourtsDistrict CourtsTermsStatutory Provisions.
The Constitution of Nevada (art. VI, sec. 7) provides that the times of holding the supreme and district
courts shall be as fixed by law. Prior to Stats. 1885, p. 60, sec. 5 (Comp. Laws, 2571), the terms of the
district courts had been definitely fixed. That section provided that they should always be open for
transaction of business; and section 9 provides that court should be held in each county at least once in
every six months. Section 9 was repealed by Stats. 1895, p. 56 (Comp. Laws, 2573), which, however,
retained the provision that court should be held in each county at least once in every six months. Held, that
there are no terms of the district court; the courts being always open and sessions had at the convenience of
the judges and as the business may require.
2. Criminal LawTrialAdjournment.
Comp. Laws, 4364, providing that while the jury are absent the court may adjourn from time to time, as
to other business, but it shall be deemed to be open for every purpose connected with the cause submitted
to the jury until a verdict be rendered or the jury discharged, and Comp. Laws, 4365, providing that a final
adjournment of the court discharges the jury, refer to the situation existing after the jury has been
impaneled and sworn and have the case under deliberation, and not where only seven jurors have been
passed, subject to peremptory challenge.
3. Criminal LawTrialBeginning.
The trial of a criminal case does not begin, strictly speaking, until the jury is impaneled and sworn, in
view of Comp. Laws, 4320, stating the order of proceedings of trial.
4. JuryImpanelingChallenge.
On September 25th the court ordered the issuance of a venire of 150 names, returnable on October 5th,
and names to that number were regularly drawn and the venire issued. On September 30th the court vacated
the order of September 25th, and directed that the names in the venire then in process of being
served be restored to the trial jury box, and that 150 names be drawn from the trial
jury box, and a venire issued for those persons to attend October 7th to complete the
panel in the case; seven jurors having been passed.
the venire then in process of being served be restored to the trial jury box, and that 150 names be drawn
from the trial jury box, and a venire issued for those persons to attend October 7th to complete the panel in
the case; seven jurors having been passed. Thereafter on the same date the 150 names were returned to the
box, and the judge and clerk of court drew therefrom 150 names to complete the panel, and a venire was
issued to serve the names so drawn. Held, that, conceding irregularity, there was not a material departure
from the forms provided by statute, expressly made ground for challenge to the panel by Comp. Laws,
4288; material departures being only such as affect the substantial rights of a defendant in securing an
impartial jury.
5. JuryImpanelmentVacation of VenireDiscretion of Court.
It is within the discretion of the court to vacate an order under which a venire has issued before the return
day thereof, and if it is so vacated the names thereon should be returned to the jury box, under Comp.
Laws, 3877, providing that when a juror drawn is not summoned, or fails to appear, or after appearing is
excused, his name shall be returned to the box to be drawn again.
6. HomicideAppealReviewHarmless ErrorAdmission of Evidence.
In a murder case, decedent was shot twice, and accused admitted firing both shots. The first shot he
contended was fired in self-defense, and the second as the result of an accidental discharge of his weapon.
A witness who saw the shooting subsequently performed an autopsy, and testified, describing the course of
each bullet, and that the wound from either shot was sufficient to cause death. Held, that, if it was error to
permit the witness to give his opinion as to which was the first wound received, it was not prejudicial.
7. HomicideAppealHarmless ErrorInstructions.
In a murder case, a charge that it is only necessary that the act of unlawful killing be preceded by a
concurrence of the will, deliberation, and premeditation on the part of the slayer, if erroneous for omitting
the words and the result of, after preceded by, it was not prejudicial, where accused was convicted of
second-degree murder.
Albert T. Jackman was convicted of murder, and appeals. Affirmed.
The facts sufficiently appear in the opinion. See, also, 29 Nev. 403, and page 106 of this
volume.
Thompson, Morehouse & Thompson, for Appellant:
I. The court erred in proceeding with the trial and overruling defendant's objection to the
jurisdiction of the court, because the judge of the court, Hon. Frank P. Langan, left the
County of Esmeralda, and opened and held court in the County of Ormsby.
the County of Esmeralda, and opened and held court in the County of Ormsby. This ended the
term of the Esmeralda County district court, by operation of law. While the First Judicial
District contains the Counties of Esmeralda, Ormsby, Lyon, Douglas and Storey, yet each
county is a separate district court, and when the judge opened court in Ormsby, the court
ended here, because it is an impossibility that the court could be open and the same judge
preside in both courts at the same time. (Ex Parte Gardner, 22 Nev. 280; Const. Nev. art. II,
sec. 7; Ency. Pl. & Pr. 632; Bates v. Gage, 40 Cal. 183; In Re Patzwald, 50 Pac. 139; Barrett
v. State, 1 Wis. 175.)
II. When the court left Esmeralda County the term ended, and, having ended, there is no
term until the court has made the order and notices have been given in pursuance to Rule 3 of
the district court, because the law nowhere by statute fixes the terms of the district court
except by Comp. Laws, 2537, where it says And court shall be held in each county at least
once in every six months. But this section does not fix the beginning or ending of any term.
All through the statute the word term is used.
III. While Judge Langan is away holding court in Ormsby County the sheriff has seven
jurors, passed in impanelment, subject to peremptory challenge, in his custody. Suppose some
one attempts to embrace them. Could he be punished for contempt? No order could be made
by Judge Langan while in Ormsby County, says Ex Parte Gardner, 22 Nev. 280, and no order
could be made in Esmeralda County, because Judge Langan is not in Esmeralda County, and,
as a court cannot exist without a judge, there is no court in Esmeralda County, and therefore
no contempt of court. Suppose the sheriff chooses to release the seven jurors, what power has
the court in the premises to do anything? Absolutely none, because there is no court in
Esmeralda County. But, says that court, The functions of the court cannot be suspended and
the functions of the jury continue. But the functions of the court in our case were suspended,
and an attempt was made to continue the functions of the jury. After citing many things
surrounding a jury, and the powers of the court, that court further says: All these privileges
and safeguards are in a great measure for the protection of the rights of the defendant, and
nothing but the existence and presence of the court during every part of the proceedings
of his trial can insure them to him."
great measure for the protection of the rights of the defendant, and nothing but the existence
and presence of the court during every part of the proceedings of his trial can insure them to
him. (Delafield v. Lewis Mercer Const. Co., 115 N. C. 21; Boyd v. Yeague, 111 N. C. 246;
Foley v. Blank, 92 N. C. 476; Branch v. Walker, 92 N. C. 87.)
IV. The court erred in giving his fourth instruction, because he says: It is only necessary
that the act of unlawful killing be preceded by a concurrence of the will, deliberation, and
premeditation on the part of the slayer. This instruction omits the qualifying words, but
should read: It is only necessary that the act of killing be preceded by, and the result of a
concurrence of will, etc. This instruction was squarely passed upon by the Supreme Court of
California in People v. Maughs, 149 Cal. 253, 86 Pac. 187, and was held to be reversible
error.
Respondent:
I. In 1864 the legislature, in a general act relating to courts generally, created nine judicial
districts and provided that the terms of holding court shall be as provided by law in each
district, and that each term shall continue so long as the business may require or until the day
fixed for the commencement of another term in the same district, and may be adjourned from
time to time, in the discretion of the court (Stats. 1864, p. 110). In 1869 the legislature
changed the number of districts and fixed the terms of court in each judicial district (Stats.
1869, p. 133). During the intervening period from 1869 to 1885 each succeeding legislature
changed the number of districts and refixed the terms of court therein. In 1885 the legislature
changed the law so as to establish but one judicial district with three district judges (Stats.
1885, p. 60). Section 5 of this act provided that the district court shall always be open for the
transaction of business. Section 9 of said act also provided that the judges should select one
of their number as presiding judge, who should have power to direct the judges to hold court
in the several counties of the district as the public business may require, and that court
shall be held in each county "at least once in every six months and as often and as long as
the business of the county requires."
court shall be held in each county at least once in every six months and as often and as long
as the business of the county requires. In 1895 section 9, above referred to, was expressly
repealed, and what is now section 2573 of Compiled Laws was enacted. (State v. Atherton, 19
Nev. 333.)
Appellant upon a second trial was convicted in the First Judicial District Court in and for
Esmeralda County of murder in the second degree and sentenced to life imprisonment. From
the judgment, and from an order denying his motion for a new trial, this appeal is taken. This
case was heretofore before this court upon an appeal from a judgment of murder in the first
degree; the case being reported in 29 Nev. 403.
The case was regularly set down for trial on the 28th day of September, 1908, and continued
by order of court until the following day. The court having denied the motion of both parties
for a further continuance, the selection of a jury to try the cause was undertaken. At the close
of the day the jury list in the court-room trial jury box was exhausted, seven jurors having in
the meantime been passed, subject to peremptory challenge. Thereupon the court continued
the case until the 7th day of October, 1908, at the hour of 2 o'clock p.m. Upon the arrival of
the time specified in the last aforesaid adjournment, an additional venire of 150 names having
been returned by the sheriff, the case was called for further proceeding. At this point counsel
for defendant objected to proceeding with the case upon the ground that the court was then
without jurisdiction to proceed with the trial, for the reason that the trial judge had, during the
time intervening between the adjournment on the 29th day of September and the 7th day of
October, left the County of Esmeralda, and gone to another county in his district, to wit,
Ormsby County, and had opened court therein and heard and determined a number of judicial
proceedings pending therein, which act upon the part of the judge it was contended, and is
now contended, operated to end the term of court theretofore held in Esmeralda County and
to discharge the seven jurymen passed as aforesaid and all jurymen appearing upon the
venire made returnable upon that date; that the court was without jurisdiction to proceed
with the trial until another term of court had regularly been convened in the manner
required by law.
as aforesaid and all jurymen appearing upon the venire made returnable upon that date; that
the court was without jurisdiction to proceed with the trial until another term of court had
regularly been convened in the manner required by law.
It is not disputed that the trial judge did the act alleged; that he in the meantime held a
session of the First Judicial District Court in and for the County of Ormsby, which last-named
county, together with Esmeralda County and three others, then constituted the first Judicial
District, presided over by one judge. Section 7 of article VI of the Constitution of the state
provides: The times of holding the supreme court and the district courts shall be as fixed by
law. The terms of the supreme court shall be held at the seat of government, and the terms of
the district courts shall be held at the county-seats of their respective counties. * * * While
the act of the legislature of January 26, 1865, entitled An act concerning the courts of justice
of this state, and judicial officers (Comp. Laws, 2508-2565) prescribed four terms in each
year for the supreme court, which provision is still in force, no similar provision as to district
courts now exists. Prior to an act of the legislature passed in 1885 (Stats. 1885, p. 60, c. 56,
sec. 5; Comp Laws, 2571) the terms of the district courts had been definitely fixed. The act
last above mentioned provided that the district court shall always be open for the transaction
of business. By an act entitled An act concerning the district courts of the State of Nevada
and the judges thereof, approved March 13, 1895, (Stats. 1895, p. 56, c. 59; Comp. Laws,
2573), it is provided, among other things: If the public business requires, each judge may try
causes and transact judicial business in the same county at the same time. Each judge shall
have power to transact business which may be done in chambers at any point within the state,
and court shall be held in each county at least once in every six months, and as often and as
long as the business of the county requires. All of this section is subject to the provision that
each judge may direct and control the business in his own district, and shall see that it is
properly performed.
In the case of State v. Atherton, 19 Nev. 332, 347, this court, referring to the provisions
of section 9 of the act of 1SS5, supra, said: "The provision in section 9 that the courts
shall be held in each county at least once in every six months is a compliance with section
7, art. VI, of the Constitution
referring to the provisions of section 9 of the act of 1885, supra, said: The provision in
section 9 that the courts shall be held in each county at least once in every six months is a
compliance with section 7, art. VI, of the Constitution, which declares that the times of
holding the * * * district courts shall be as fixed by law.' The Constitution does not require
the law to specify when the terms of court shall be held. Its language is that the terms of the
district courts shall be held at the county-seats of their respective counties.' * * * The said
section 9, supra, was repealed by the said act of 1895, supra; but the provision requiring that
court shall be held in each county at least once in every six months was retained in the
latter statute.
In the case of Horton v. New Pass Co., 21 Nev. 184, 194, this court said: Under the
system prevailing in this state, there are no terms of the district court. The courts are always
open, and the sessions are held at the convenience of the judges, and as the business may
require. Under the statutes of this state now in force, counsel for appellant's contention that
terms of the district court exist, and that the fact of the trial judge going into another county in
his district, where he opened and held a session of court therein, operated as an adjournment
of the term in Esmeralda County, so as to leave the court without jurisdiction then to proceed
with the case, we think, is without merit.
If a jury had been impaneled and sworn to try the case, and especially if the trial had so far
advanced that the case was submitted to the jury for its deliberation, a different situation
might be presented, if the judge should leave the county where the trial was in progress, and
go into another county and open and hold court; but whether or not this would amount to a
mistrial is not necessary now to consider. This is the situation presented in the leading case
relied upon by counsel for appellantIn Re Patzwald, 5 Okl. 789, 50 Pac. 139.
Section 399 of our criminal practice act (Comp. Laws, 4364) provides: While the jury are
absent, the court may adjourn from time to time, as to other business, but it shall nevertheless
be deemed to be open for every purpose connected with the cause submitted to the jury, until
a verdict be rendered or the jury discharged."
be rendered or the jury discharged. Section 400 of the same act (Comp. Laws, 4365)
provides: A final adjournment of the court discharges the jury. These sections refer to the
situation existing after the jury has been impaneled and sworn and have the case under
deliberation.
At the time the trial judge left Esmeralda County, and went to Ormsby County, and held a
session of court, the trial of defendant had not in fact begun. Strictly speaking, the trial does
not begin until the jury is impaneled and sworn. (Comp. Laws, 4320; United States v. Curtis,
4 Mason, 232, 25 Fed. Cas. 726; Commonwealth v. Soderquest, 183 Mass. 199, 66 N. E. 801;
Hunnel v. State, 86 Ind. 431; Alexander v. Commonwealth, 105 Pa. 1; 8 Words and Phrases
7099, et seq., and authorities cited.)
In United States v. Curtis, supra, Justice Story, after considering the question at some
length, concludes: In short, so far as authorities, or reasoning, or forms go, there can be no
legal doubt that by the term trial' is generally intended, in the law, the actual trial of the
prisoner by the jury. The Constitution of the United States, too, in the sixth amendment,
which provides that the accused shall enjoy the right to a speedy and public trial by jury,
manifestly uses the term in the same sense; and, indeed, it pervades the general structure of
our laws.
In the case of Alexander v. Commonwealth, supra, the court said: After the names of
forty-nine jurors had been drawn from the box, which had contained sixty, and eight jurors
had been separately sworn, it appeared that eleven of the paper pellets had been clandestinely
removed, whereupon the court directed the clerk to prepare eleven pellets in place of those
which had been removed, and again put all the pellets in the box, and further ordered that the
drawing of the jury be commenced de novo. The defendant complains that the tendency of
that order was to put him twice in jeopardy, and that the court had no power to make it. He
was not in jeopardy at the time of making the order. The trial begins when the jury is charged
with the defendant, and that is at the moment a full jury is impaneled and sworn. He is not in
jeopardy before. Up to that point the court may postpone the trial as lawfully at one stage of
the proceedings as another.
pone the trial as lawfully at one stage of the proceedings as another. A man is not in peril
from the verdict of a jury till the full number are qualified to hearken unto the evidence and
make deliverance.
2. Upon the resumption of the case upon the 7th day of October, 1908, counsel for
defendant interposed a challenge to the panel of jurors. Section 4288 of the Compiled Laws
provides: A challenge to the panel can only be founded on a material departure from the
forms prescribed by statute in respect to the drawing and return of the jury, or on the
intentional omission of the sheriff to summon one or more of the jurors drawn. The facts
upon which the challenge was based were the following: Upon the 25th day of September,
1908, the court made an order for the issuance of a venire of 150 names, returnable before the
court on October 5th following, and names to that number were regularly drawn from the jury
box and the venire issued. On the 30th day of September, 1908, the court of its own motion
made an order vacating and setting aside the said order of September 25th, and directed that
such names as were in said venire, then in process of being served, be restored to the trial jury
box from whence they were drawn, and the further order made that 150 names be drawn from
the trial jury box, and a venire issued to the sheriff commanding him to summons the persons
whose names were so drawn to attend court on October 7th, for the purpose and the only
purpose of completing the panel in this case. Thereafter, and on said date, the 150 names
theretofore drawn and placed upon the venire then in the hands of the sheriff were returned to
the trial jury box, and the judge and the clerk of the court proceeded to draw from said trial
jury box 150 names to complete the panel in the cause. Thereupon a venire was issued to the
sheriff to serve the names so drawn.
Conceding, for the purposes of this case, that there may have been some irregularity in the
manner in which the previous venire was discharged and the second drawn, yet we do not
think that it can properly be said that there was a material departure from the forms provided
by statute. It is not claimed, nor could it properly be said, we think, that the defendant did
not have the benefit of a fair and impartial jury, nor that the defendant was deprived of
any substantial right in the manner in which the jury was drawn. "Material departures are
only such as affect the substantial rights of a defendant in securing an impartial jury."
{People v. Sowell, 145 Cal.
the defendant did not have the benefit of a fair and impartial jury, nor that the defendant was
deprived of any substantial right in the manner in which the jury was drawn. Material
departures are only such as affect the substantial rights of a defendant in securing an impartial
jury. (People v. Sowell, 145 Cal. 296, 78 Pac. 717; State v. Johnny, 29 Nev. 203; 24 Cyc.
255.)
Comp. Laws, 3877, provides: When a juror drawn is not summoned, or fails to appear, or
after appearing is excused by the judge from serving, his name shall be returned to the box to
be drawn again. It would seem, from a reading of the foregoing section, that the legislature
intended that where any one whose name was regularly in the jury box, and whose name was
drawn and placed upon a venire, and who did not actually appear and perform jury service, or
stand ready to perform such service, his name should be returned to the jury box, subject to
future drawings. While it is claimed that some were summoned under the first venire, it is not
contended that any persons whose names were upon the first venire ever appeared thereunder.
It is true that the time for appearing had not arrived when the order was made vacating the
prior order; but, when the appearance was made unnecessary by the order of court, we cannot
see any substantial reason why that situation should make any difference.
We think it a matter in the discretion of the trial court to vacate an order under which a
venire had issued and before the return day thereof, and, if it is so vacated, that the names
thereon ought to be returned to the jury box, under the plain intent of the statute. A large
public expense is attached to the summoning and appearance of a venire containing the
number of names of the one in question. If a case is not ready to proceed upon the day set for
the return of the venire, and there is no other business to engage the immediate attention of
the jury, the expense for the per diem fees of the jury must be met, without the giving of any
equivalent whatever. If this expense can be saved by vacating the order, returning the names
to the jury box, and drawing a new venire, we see no reason why it ought not be done. Other
equally good reasons might present themselves. Of course, if the order was vacated under
circumstances that might be regarded as questionable, the situation might be different.
the order was vacated under circumstances that might be regarded as questionable, the
situation might be different.
3. Error is assigned in the overruling of an objection interposed to the following question
asked Dr. Turner, a witness upon the part of the state: Supposing, Doctor, that both the
decedent and the party firing the shot were in an erect position at the time of the firing of the
first shot, which, in your opinion, was the first wound received by the deceased? We need
not, we think, go into a discussion of the question of whether or not the ruling of the court in
this regard was error. Conceding, for the purposes of this case, that the question was not a
proper subject for expert testimony, we do not perceive wherein it could have been
prejudicial to the defendant's case. The decedent was shot twice, and defendant admitted
firing both shots. The first shot he contended was fired in self-defense, and the second he
testified was the result of an accidental discharge of his weapon. Dr. Turner, who was a
witness to the shooting and subsequently performed an autopsy upon the deceased, described
the course of the bullet from each shot. The wound resulting from either of the shots, he
testified, was sufficient to produce death. Both of the shots fired being sufficient to produce
death, it became immaterial which was the first. (People v. Lemperle, 94 Cal. 45, 29 Pac.
709; People v. Hill, 116 Cal. 568, 48 Pac. 711.)
4. Error is assigned in the giving of instruction No. 4 of the court's own motion.
Concerning this assignment counsel in his brief says: The court erred in giving his fourth
instruction, because he says: It is only necessary that the act of unlawful killing be preceded
by a concurrence of the will, deliberation, and premeditation on the part of the slayer.' This
instruction omits the qualifying words, but should read: It is only necessary that the act of
killing be preceded by and the result of a concurrence of will,' etc. This instruction was
squarely passed upon by the Supreme Court of California in People v. Maughs, 149 Cal. 253,
86 Pac. 187, and held to be reversible error. Instruction No. 4 in question contains about
seven hundred words and appears to have been drafted to cover the law of murder in the first
degree. What the full instruction was, which was given in People v. Maughs, supra, does not
appear in that decision.
People v. Maughs, supra, does not appear in that decision. Taking the instruction as a whole,
we cannot see how the jury could have been misled by it, even if we might indulge in the
presumption that the jury would resort to the minute analysis of language indulged in by the
court in the Maughs case regarding the instruction there under consideration. Had defendant
in this case been convicted of murder in the first degree, we would have gone into a more
extended consideration of the point made, and its possible effect upon the minds of the jury.
In the Maughs case the defendant was convicted of murder in the first degree; the defendant
in this case, of murder in the second degree. For the crime for which the defendant was
convicted, the instruction, in any event, could not have been prejudicial.
We think there is sufficient evidence to support the judgment, and, as the other
assignments of error discussed are covered by the views already expressed, our opinion is that
the judgment be affirmed.
It is so ordered.
____________
31 Nev. 523, 523 (1909) Finnegan v. Ulmer
[No. 1818]
LILLIAN MAY FINNEGAN, Respondent, v. BERT ULMER, et al., Appellants.
1. Appeal and ErrorReview of Evidence.
Where there was no assignment that the judgment was not supported by the evidence, and no motion for a
new trial or statement on motion for a new trial under which the evidence could be reviewed by the trial
court or the supreme court, the question whether the evidence supports the judgment is not properly before
the supreme court.
2. PleadingComplaintAmendment to Conform to Evidence.
In an action for rent, an amendment to the complaint to conform to the evidence, and alleging a much
earlier possession by plaintiff and his grantors than was asserted in the original complaint, was proper,
since under either, a prior possession by plaintiff was acknowledged or implied by the lease, and such prior
possession would give as complete a right at law as if it were held for the longer time set out by the
amendment.
3. PleadingComplaintAmendment.
In an action for rent under a lease, an amendment to the complaint to conform to the evidence, and
consisting in the allegation that defendant occupied the premises longer than was alleged in the original
complaint, was proper; such fact being admitted in defendant's answer and testimony.
4. PleadingComplaintAmendments to Conform to Evidence.
An amendment to the complaint to conform to the proofs was not prejudicial to defendant as changing the
issues and preventing him from disproving the allegations of the amended complaint where he made no
showing, when the amendment was allowed, that he had or could supply evidence to disprove such
allegations, and from the testimony it could not be presumed that he could have produced such evidence.
Action by Lillian May Finnegan against Bert Ulmer, William Mulholland, and others.
From a judgment for plaintiff, defendant Mulholland appeals. Affirmed.
Bartlett, Thatcher & Gibbons, for Appellant William Mulholland.
Pyne, Douglass & Tilden, for Respondent.
The appeal is taken by the defendant Mulholland from a judgment in favor of the plaintiff
for rent or the value of the use, and for the restitution, of the possession of leased premises.
The record contains the judgment roll and a bill of exceptions. The only specification of error
is to the order of the court allowing the complaint to be amended to conform to the evidence,
made after the trial and before final entry of judgment.
It is claimed that this order was erroneous (1) because upon the pleadings and evidence the
defendant Mulholland was entitled to judgment against the plaintiff; (2) because there was no
evidence sustaining the allegations contained in the amendment allowed to be made; (3)
because the amendment changed the issues in the action, and prevented the defendant from
answering and introducing evidence to disprove the allegations contained in the amendment;
(4) because the defendant Donnelly conveyed his interest in the lease, and gave possession of
the premises to the defendant Mulholland; (5) because the amendment injected into the case
an issue which the defendant Mulholland had no opportunity to refute; and (6) because the
allowance of such amendment was a gross abuse of discretion of the court, and deprived the
defendant from meeting the issues thereof.
It is said that this court may determine whether the evidence supports the judgment
without any specification of error stating wherein the evidence is insufficient. This might be
true if the defendant brought the evidence here in a statement on motion for a new trial with
an assignment of error that the decision was not supported by the evidence, without
specifying wherein the evidence was insufficient, under section 197 of the civil practice act
(Comp. Laws, 3292), which as amended provides: When the notice designates, as the
ground upon which the motion will be made, the insufficiency of the evidence to justify the
verdict or other decision, it shall be a sufficient assignment of error to specify that the verdict
of the jury, or the decision, or judgment, or decree of the court, is not supported by the
evidence, or is contrary to the evidence. In such case where it appears that the evidence taken
altogether does not support the verdict, or decision, or judgment, or decree of the court, a
new trial shall be granted, or, upon appeal, the case shall be reversed without regard to
whether there are express findings upon all the issues, or whether the specifications
particularly point out the finding or findings, either express or implied, that are not
supported by the evidence, or are contrary thereto.
taken altogether does not support the verdict, or decision, or judgment, or decree of the
court, a new trial shall be granted, or, upon appeal, the case shall be reversed without regard
to whether there are express findings upon all the issues, or whether the specifications
particularly point out the finding or findings, either express or implied, that are not supported
by the evidence, or are contrary thereto. When the notice designates, as the ground of the
motion, error in law occurring at the trial and excepted to by the moving party, the statement
shall specify the particular errors upon which the party will rely. If no specifications be made,
the statement shall be disregarded. * * * Section 191 (Comp. Laws, 3286) directs that the
point of the exception shall be particularly stated. (McGurn v. McInnis, 24 Nev. 370;
Schwartz v. Stock, 26 Nev. 150, and cases cited; State v. Williams, 31 Nev. 360.)
As there was no assignment that the judgment was not supported by the evidence, and no
motion for a new trial nor statement on motion for a new trial under which the evidence could
be reviewed by the trial court or this tribunal, consequently the question whether it supports
the judgment which has been extensively argued is not properly before us under the rule so
often laid down. (Candler v. Ditch Co., 28 Nev. 163; Burbank v. Rivers, 20 Nev. 81, and
cases cited; Simpson v. Ogg, 18 Nev. 28; Hayne on New Tr. & App. sec. 96.) There is good
reason for this practice because questions relating to the facts and sufficiency of the evidence
are more directly for the consideration of the trial court, which is in a better position to
observe the demeanor of the witnesses and has a better opportunity to properly determine and
review these questions. Section 195 of the civil practice act allows as one of the grounds for a
new trial the insufficiency of the evidence to justify the verdict or decision, or that it is
against law. Here it appears that the appellant has proceeded under section 3860 of the
Compiled Laws or section 4 of An act to regulate appeals in the courts of justice of this
state, which provides: During the progress of a cause a party may take his bill of exceptions
to the admission or exclusion of testimony, or to the ruling of judges on points of law, and it
shall not be necessary to embody in such bill anything more than sufficient facts to show
the point and pertinency of the exceptions taken.
sary to embody in such bill anything more than sufficient facts to show the point and
pertinency of the exceptions taken. The presiding judge shall sign the same as the truth of the
case may be, and such bill shall then become a part of the record, and a party against whom
judgment is rendered may appeal from such judgment without any further statement or
motion; and on such appeal it shall only be necessary to bring to the supreme court the
transcript of the pleadings, the judgment and the bill or bills of exception so taken.
It is not claimed that there is any error on the face of the judgment roll itself, and therefore
we are limited under the only specification in the bill of exceptions to determining whether
the court properly made the order allowing the amendment. Does an examination of the
amendment in connection with the original complaint, the answer, and the evidence show that
the court erred in making the order? The original complaint alleged that a lease had been
executed by the plaintiff to the defendant Ulmer, and different transfers thereof, and that
appellant entered and occupied the premises under the defendants Ulmer, Toohey, and
Donnelly, who had entered under the original lease, which indicated that the appellant had
obtained his possession by reason of this lease and the possession obtained thereunder. The
amendment alleged a much earlier possession obtained thereunder. The amendment alleged a
much earlier possession by plaintiff and grantors than was asserted in the original complaint,
but under either a prior possession by plaintiff was acknowledged, or implied by the lease,
and such prior possession by plaintiff, if for only a day, would give as complete a right at law
as if it were held for the longer time set out by the amendment. The amendment went more
into detail regarding the holding of possession by the appellant, but it is not necessarily or
materially in conflict with his own testimony. Even if his contentions relating to notice,
abandonment, and rights under the town-site act, which are treated at length in the briefs,
could be considered and upheld if the case were before us on an appeal from an order denying
a motion for a new trial, the amendment allowed, to which exception is confined, would not
have injured the appellant under his own evidence, the original complaint, and the answer,
with the possible exception of the allegation that he had occupied the premises longer
than was stated in the original complainta fact that he admitted by his testimony and
answer, thereby making the amendment in that regard proper.
the original complaint, and the answer, with the possible exception of the allegation that he
had occupied the premises longer than was stated in the original complainta fact that he
admitted by his testimony and answer, thereby making the amendment in that regard proper.
In alleging an earlier possession the amendment was also supported by the evidence, and the
fact that plaintiff's grantor had lived upon and occupied the premises and had leased the same
to the parties in interest from whom the appellant acquired his claim to possession was
apparently conceded, so that the amendment did not allege any new material facts against the
appellant which were not supported by the allegations of the original complaint or answer or
by testimony given by himself and others.
The claim that the amendment changed the issues and prevented the appellant from
refuting and disproving its allegations is also met by the fact that he did not make any
showing to the court at the time the amendment was allowed that he had or could supply any
evidence which could disprove them, and, in view of the testimony given by the appellant and
others on the trial, it cannot be presumed that he could have produced any such evidence, or
that he was deprived of his rights, and not given an opportunity to disprove something which
he did not claim that he could prove, and which would apparently have been in conflict with
his own testimony. The practice of allowing pleadings to be amended during and after trial to
conform to the proofs is so common and proper as to hardly need the citation of authorities
for its support.
In McCausland v. Ralston, 12 Nev. 202, 28 Am. Rep. 781, it was said: Courts in allowing
pleadings to be amended are necessarily clothed with discretionary powers which cannot,
owing to the varying circumstances of each particular case, be governed by any general rule.
The vital question is whether the court has grossly abused its discretion in this respect, or
whether, by the allowance of the amendments, manifest injustice has been done to appellant.
* * * There is no showing that appellant was misled to his prejudice, or that he was deprived
of introducing any testimony that he might wish to offer in consequence of the amendments.
* * * This court has always been quite liberal in sustaining the action of the lower courts in
allowing or refusing amendments to pleadings, to the end that substantial justice may be
done between the parties.
lower courts in allowing or refusing amendments to pleadings, to the end that substantial
justice may be done between the parties. * * *
____________
31 Nev. 528, 528 (1909) Weir v. Washoe Hardware & Supply Co.
[No. 1821]
B. C. WEIR, Appellant, v. WASHOE HARDWARE
AND SUPPLY COMPANY, Respondent.
1. PleadingsAmendmentsStriking Out.
An amended complaint filed by plaintiff without asking leave of court or in any way complying with
District Court Rule 17 (page 22, ante), providing that, where the right to amend any pleading is not of
course, the party desiring to amend shall serve with the notice of application to amend an engrossed copy
of the pleading, with the amendment incorporated therein, etc., or with section 68 of the civil practice act
(Comp. Laws, 3163), authorizing the court to allow amendments, etc., was properly stricken out on motion.
2. Appeal and ErrorAppealable OrdersOrder Striking Amended Complaint from Files.
An order striking an amended complaint from the files for failure to comply with mandatory requirements
of the statute and rules of the district court regarding amended pleadings is not appealable.
Action by B. C. Weir against the Washoe Hardware and Supply Company, a corporation.
From an order striking an amended complaint from the files of court, plaintiff appeals.
Dismissed.
O. H. Mack, for Appellant.
Boyd & Salisbury, for Respondent.
The record discloses that the above-entitled action was commenced in the Second Judicial
District Court of the State of Nevada in and for the County of Washoe by filing a complaint
therein on the 5th day of May, 1908, and the issuance of a summons thereon. On the morning
of the 20th day of May, 190S, the plaintiff, through his attorney, O. H. Mack, had a default
entered in said action against defendant, and, upon the submission of his evidence, the
court ordered a judgment by default entered against defendant.
May, 1908, the plaintiff, through his attorney, O. H. Mack, had a default entered in said
action against defendant, and, upon the submission of his evidence, the court ordered a
judgment by default entered against defendant. At 1:30 o'clock p.m. of the same day the
defendant, through its counsel, appeared and moved that the judgment by default entered in
the morning against his client be set aside on the ground of insufficient service of summons,
and the court granted the motion and ordered the default and judgment set aside. The plaintiff
caused a new summons to be issued and served on defendant, whereupon the defendant filed
a general demurrer to the complaint upon the ground that the complaint did not state facts
sufficient to constitute a cause of action. The demurrer coming on to be heard on the 27th day
of June, 1908, counsel for the defendant not appearing, the demurrer was overruled without
argument. Defendant then interposed its answer, denying the liability of its client to plaintiff,
and interposed as a further separate defense to plaintiff's cause of action that the complaint on
file did not state facts sufficient to constitute a cause of action.
The court, after listening to the argument of counsel upon the sufficiency of the plaintiff's
complaint, at the conclusion of the testimony introduced on behalf of the plaintiff, made the
following finding: The court finds as a matter of law that the complaint does not set forth
facts sufficient to constitute a cause of action. Whereupon a recess was taken until the
further order of the court. (Statement on Appeal, p. 10, line 22.)
So far as the record discloses, the court never entered at the time any judgment whatever in
the case, and there is no record to this date of any judgment having been entered or final
disposition made of the cause. Counsel for plaintiff thereafter, to wit, on the 15th day of
October, 1908, without asking leave of court, or without in any way complying with Rule 17
of the rules of the district court (see page 22 of this volume), and section 68 of our civil
practice act (Comp. Laws, 3163), filed an amended complaint, to which amended complaint
the attorneys for defendant upon due and proper notice moved the court for an order striking
it from the files of the court, which the district court, in view of the premises, very properly
granted.
which the district court, in view of the premises, very properly granted.
Undoubtedly if, upon a proper showing, counsel for appellant had asked the court the
privilege of amending his complaint, the permission would have been granted. In the case of
Horton v. Ruhling & Co., 3 Nev. 498-503, this court held that in a case where the complaint
failed to state a cause of action, where there had been a trial, the court below should either
have dismissed the action without prejudice or given the plaintiff an opportunity to amend his
pleading. The liberal practice of courts allowing amendments to pleading to conform to the
proofs in proper cases in this state during and after trial is as common as it is proper, and
courts, recognizing the justice of this rule, universally, upon proper demand, grant the
privilege. (Finnegan v. Ulmer, Mulholland, et al., 31 Nev. 523.) But, to avail a client of this
privilege, counsel must comply with the rules of the court allowing amendments, and
certainly counsel in this case cannot be heard to complain of a right denied him, when he has
not as yet properly applied for the same. The record discloses that counsel for the appellant
never prior to the filing of the said amended complaint asked permission of the court to
amend his complaint, nor in any way complied with the mandatory requirements of the statute
and rule of the district court regarding amended pleadings.
An examination of the record presented makes it manifest that counsel for the appellant in
view of the absence of any judgment or appealable order ever to this date having been
rendered against his client by the lower court in the present status of the case, is to say the
least, premature in his appeal to this court, and that the motion of the respondent to dismiss
the appeal must be granted.
It is so ordered.
____________
31 Nev. 531, 531 (1909) In Re Somers
[No. 1831]
In the Matter of an Application for a Writ of Prohibition
against PETER SOMERS.
1. Criminal LawFormer JeopardyConviction of Lower as Acquittal of Higher Degree of Offense.
Where one charged with murder is convicted of involuntary manslaughter, a lower degree of homicide,
and on appeal a new trial is granted him because of a mistrial in the first instance, or for irregularity or
prejudicial error committed against him, the reversal and remanding sets aside the result of the former trial
and leaves accused in the same position as if he had never been tried; and he cannot plead former acquittal
of crimes of a greater degree than the one of which he was convicted, in view of Comp. Laws, 4392,
providing that a new trial is a reexamination of the issue in the same court before another jury after a
verdict has been given, and places the parties in the same condition as if no trial had been had, etc.
2. Criminal LawFormer JeopardyWaiver of Constitutional Right.
Under such circumstances accused is estopped from pleading rights under the Constitution, art. I, sec. 8,
providing that no person shall be subject to be twice put in jeopardy for the same offense, or under Comp.
Laws, 3996, providing that no person shall be subject to a second prosecution for a public offense for
which he has been prosecuted and duly convicted or acquitted, and waives his rights thereunder.
Original Proceeding. George Gibson applies for a writ of prohibition against Peter Somers,
Judge, and another. Denied.
D. S. Truman, for Petitioner.
Respondent.
This is an application for a writ of prohibition to restrain the judge of the respondent court
from proceeding to try the petitioner for murder or any other crime under an indictment for
murder in this case. The petitioner was indicted on or about the 25th day of September, 1907,
by the grand jury of Esmeralda County for the crime of murder, and on the trial thereof was
convicted of involuntary manslaughter and sentenced to three years' imprisonment in the
Nevada State Prison.
31 Nev. 531, 532 (1909) In Re Somers
Prison. A motion for a new trial was duly made and overruled, and an appeal from said order
perfected to this court, and the case reversed, and the cause remanded to the district court for
retrial. Thereafter the cause was set down for a new trial in the district court, and the
petitioner interposed a plea of former acquittal as to the crime of murder, murder in the
second degree, voluntary manslaughter, and all other crimes or offenses coming within said
indictment. At the same time the defendant moved the lower court to be discharged from said
indictment, and that no further proceedings be had under and by virtue of said indictment
whatsoever. The lower court overruled the motion to discharge the petitioner or to allow his
plea of former acquittal, and proceeded to set the cause down for trial upon the former
indictment for murder.
The questions involved in this plea for a writ of prohibition may all be resolved, for the
purpose of determining this case, into the query of whether or not, when a defendant is tried
upon an indictment for murder and convicted of one of the lesser crimes of homicide, if the
case should be reversed, whether or not on a new trial the defendant can interpose the plea of
formal acquittal to all crimes of a greater degree than the one of which he was convicted. On
this question there is some contrariety of opinion in the various courts, there being many
authorities holding with the contention of petitioner. We are of the opinion, however, that
these cases are not founded upon sound reasoning, and believe the weight of reason is with
the line of authorities which hold that where a cause is reversed and remanded for new trial,
and the indictment is not impaired by the judgment of reversal, the petitioner stands in the
same position as though he had never been tried upon the indictment. (State v. Gillis, 73 S.C.
318, 53 S. E. 487, 5 L. R. A. 571, 114 Am. St. Rep. 95, 6 Am. & Eng. Ann. Cas. 993; State v.
McCord, 8 Kan. 232, 12 Am. Rep. 469; Veatch v. State, 60 Ind. 291; People v. Palmer, 109
N. Y. 413, 17 N. E. 213, 4 Am. St. Rep. 477; Commonwealth v. Arnold, 83 Ky. 1, 4 Am. St.
Rep. 114; State v. Cross Roads Commissioners, 3 Hill, 239; People v. Carty, 77 Cal. 213, 19
Pac. 490; State v. Behimer, 20 Ohio St. 575; Briggs v. Commonwealth, 82 Va. 554; Chapman
v. State, 120 Ga. 855, 48 S. E. 350; Ex Parte Bradley, 4S Ind.
31 Nev. 531, 533 (1909) In Re Somers
Parte Bradley, 48 Ind. 548; State v. Miller, 35 Kan. 328, 10 Pac. 865; Lesslie v. State, 18
Ohio St. 390; Jarvis v. State, 19 Ohio St. 585; Wharton on Homicide, 834, 3d ed.; State v.
Bradley, 67 Vt. 465, 32 Atl. 238; State v. Kessler, 15 Utah, 142, 49 Pac. 293, 62 Am. St. Rep.
911; Trono v. United States, 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Ed. 292; State v. McGee,
55 S. C. 247, 33 S. E. 353, 74 Am. St. Rep. 741; United States v. Harding, Fed. Cas. No.
15,301, 1 Wall. Jr. 127.)
An examination of the authorities pro and con on this proposition will reveal the courts of
those jurisdictions having a similar provision in their criminal procedure act to ours, which
we here quote, holding with the opinion we entertain in this matter. Sec. 427. A new trial is
a reexamination of the issue in the same court before another jury, after a verdict has been
given. It places the parties in the same condition as if no trial had been had. All the testimony
must be produced anew, and the former verdict cannot be used or referred to either in
evidence or in argument. (Comp. Laws, 4392.) The proposition under consideration, viewed
in the light of this provision of our criminal practice act and the authorities cited,
unquestionably sustains our opinion that where, on a trial on an indictment for murder, the
defendant is found guilty of a lower degree of homicide, and appeals from the judgment
rendered against him in the lower court, demanding a new trial, and a new trial is granted him
because of a mistrial in the first instance, or for some irregularity or prejudicial error
committed against him, the reversal and remanding of the cause for a new trial in legal effect
operates to set aside all the results of the former trial and leaves the defendant in the same
position as though he had never been tried. To hold otherwise, we believe, would be a
grievous miscarriage of justice and the means of creating an unwarranted additional loophole
in the procedure of our criminal law for the guilty to escape.
There are many cases where a cold-blooded murderer, through the eloquence of his
attorney, or sympathy for his relatives or those dependent upon him, or where a majority of a
jury, believing the defendant guilty of murder in the first degree, in order to appease some
member of the jury, or for other reasons, rather than to allow the accused to escape some
punishment, or prevent a mistrial or total miscarriage of justice, agree to bring in a
verdict of a lesser degree of homicide, when, as a matter of right and justice, the
defendant, if he got his just deserts, should be hanged by the neck until he be dead.
31 Nev. 531, 534 (1909) In Re Somers
other reasons, rather than to allow the accused to escape some punishment, or prevent a
mistrial or total miscarriage of justice, agree to bring in a verdict of a lesser degree of
homicide, when, as a matter of right and justice, the defendant, if he got his just deserts,
should be hanged by the neck until he be dead. The people of the state, representing the
victim of the accused, on a new trial, if they can prove a clear and conclusive case of murder
in the first degree, ought to be entitled to exact the full penalty of the law with equally as
good a right as the defendant has to receive only the punishment provided by law for the
lesser degree of crime, and to hold otherwise, we believe, would be a travesty of justice.
When a new trial is demanded by a defendant, and the cause reversed and remanded for a new
trial, the verdict and proceedings had in the lower court are necessarily set aside, and, the
verdict being entire and indivisible, nothing remains but the original indictment on which to
proceed with the new trial, and the case is in the same position as it was at the starting of the
former trial.
The Supreme Court of Ohio, in the case of State v. Behimer, in considering this
proposition, said: The effect of setting aside the verdict finding the defendant guilty was to
leave at issue and undetermined the fact of the homicide; also the fact whether the defendant
committed it, if one was committed. The legal presumption on this plea of not guilty was of
his innocence, and the burden was on the state to prove every essential fact. The only effect,
therefore, that could be given to so much of the verdict as acquitted the defendant of murder
in the first degree, after the rest of it had been set aside, would be to regard it as finding the
qualities of an act while the fact of the existence of the act was undetermined. This would be
a verdict to the effect that, if the defendant committed the homicide, he did it without
deliberate and premeditated malice.' There can be no legal determination of the character of
the malice of a defendant, in respect to a homicide which he is not found to have committed,
or rather, of which, under his plea, he is in law presumed to be innocent. The indictment was
for a single homicide. The defendant could, therefore, only be guilty of one offense, and
could be subject to but one punishment.
31 Nev. 531, 535 (1909) In Re Somers
one offense, and could be subject to but one punishment. The degree of the offense differed
only in the quo animo with which the act causing the homicide was committed. The question
of fact was whether a criminal homicide had been committed, and, if so, whether the
circumstances of aggravation were such as to raise it above the grade of manslaughter. If the
finding as to the main fact be set aside, the finding as to the circumstances necessarily goes
with it. (20 Ohio St. 572.)
Counsel for the petitioner in the present case, because of the fact that the petitioner was
indicted for murder and convicted of involuntary manslaughter, contends that involuntary
manslaughter, which does not contain all the elements of murder, acquits the defendant of
murder in the first or second degrees and voluntary manslaughter, and is privileged to
interpose a plea of former acquittal and of being once in jeopardy as to these crimes, and that
on a retrial he cannot be tried for either murder or any other crime under the indictment.
While we are duly impressed with the fact that involuntary manslaughter does not contain the
same heinous ingredients necessary to make up the crime of murder in the first or second
degree, or of voluntary manslaughter, yet we are clearly of the opinion that, it being an
unlawful transgression of the law against homicide, it may properly be considered a lesser
degree of homicide, and that a jury, under an indictment for murder, may properly return in
proper cases a verdict of involuntary manslaughter. Being of the opinion, as above expressed,
that where a defendant is indicted for murder, and upon his demand the cause reversed and
remanded for a new trial, the accused must be tried under the original indictment as though he
had never been tried before, if said indictment is not impaired by the judgment of the supreme
court, and that involuntary manslaughter, being of the same species of crime, though of a
much lesser degree of homicide than murder, we fail to see the merit of the contention of
petitioner in his plea of former acquittal or of being once in jeopardy interposed to any greater
offense under the indictment than that for which he was convicted.
We are not unmindful in so holding, nor do we any the less fail to recognize, the merit and
sacredness of the great constitutional right secured for us by the blood of our forefathers,
now incorporated in the principle which has descended to us from Magna Charta, and now
found imbedded in our Federal and State Constitutions, wherein it is guaranteed that "no
person shall be subject to be twice put in jeopardy for the same offense {sec.
31 Nev. 531, 536 (1909) In Re Somers
tutional right secured for us by the blood of our forefathers, now incorporated in the principle
which has descended to us from Magna Charta, and now found imbedded in our Federal and
State Constitutions, wherein it is guaranteed that no person shall be subject to be twice put
in jeopardy for the same offense (sec. 8, art. I, Const. Nev.), and the additional safeguard
extended and thrown around this principle by our legislature that no person shall be subject
to a second prosecution for a public offense for which he has been prosecuted and duly
convicted or acquitted (Comp. Laws, 3996); but we are of the opinion, and we believe the
law is well settled, that where a defendant is convicted, and he asks for a second trial to
relieve himself of the jeopardy in which he finds himself by reason of the conviction and
judgment, and his prayer is granted, he is estopped from asserting a formal acquittal on his
second trial, and waives his constitutional right of pleading being once in jeopardy, or that
this right has been in any way infringed, because by his own voluntary consent, act, and
petition he has been relieved of the bar which prevents him from interposing this plea.
The Supreme Court of the United States, in the case of Trono v. United States, 199 U. S.
521, 26 Sup. Ct. 121, 50 L. Ed. 292, in a very able opinion by Justice Peckham, sustains the
case of People v. Palmer, 109 N. Y. 413, 17 N. E. 213, 4 Am. St. Rep. 477, wherein the
Supreme Court of New York held as constitutional sections in their criminal procedure act
similar to section 4392 of our Compiled Laws, above referred to, saying:
In the case of People v. Palmer, 109 N. Y. 413, 419, 17 N. E. 213, 4 Am. St. Rep. 477,
the effect of the statute of New York, known as sections 464, and 544 of the code of criminal
procedure, was under consideration. These sections enacted as follows:
Sec. 464. The granting of a new trial places the parties in the same position as if no trial
had been had. * * *'
Sec. 544. When a new trial is ordered, it shall proceed in all respects as if no trial had
been had.'
The statute was held valid, and that it did not violate the constitutional provision against
subjecting a person to be twice put in jeopardy for the same offense, as the jeopardy was
incurred with the consent of and as a privilege granted to the defendant upon his
application. And generally it may be said that the cases holding that a new trial is not
limited in the manner spoken of proceed upon the ground that in appealing from the
judgment the accused necessarily appeals from the whole thereof, as well that which
acquits as that which condemns; that the judgment is one entire thing, and that as he
brings up the whole record for review he thereby waives the benefit of the provision in
question, for the purpose of attempting to gain what he thinks is a greater benefit, viz., a
review and reversal by the higher court of the judgment of conviction.
31 Nev. 531, 537 (1909) In Re Somers
twice put in jeopardy for the same offense, as the jeopardy was incurred with the consent of
and as a privilege granted to the defendant upon his application. And generally it may be said
that the cases holding that a new trial is not limited in the manner spoken of proceed upon the
ground that in appealing from the judgment the accused necessarily appeals from the whole
thereof, as well that which acquits as that which condemns; that the judgment is one entire
thing, and that as he brings up the whole record for review he thereby waives the benefit of
the provision in question, for the purpose of attempting to gain what he thinks is a greater
benefit, viz., a review and reversal by the higher court of the judgment of conviction.
Although the accused was, as is said, placed in jeopardy upon the first trial, in regard not only
to the offense of which he was accused, but also in regard to the lesser grades of that offense,
yet by his own act and consent, by appealing to the higher court to obtain a reversal of the
judgment, he has thereby procured it to be set aside, and when so set aside and reversed, the
judgment is held as though it had never been. This was in substance decided in United States
v. Harding (tried in the United States Circuit Court in 1846), 1 Wall. Jr. 127, Fed. Cas. No.
15,301, before Mr. Justice Greer, then a member of this court, and this is the ground
substantially upon which the decisions of the other courts are placed. * * *
In the Supreme Court of the United States, speaking through Peckham, J., in the same
case, the opinion of this court is sustained in the view it takes of holding that where a
defendant is found guilty of a lower degree of homicide than the highest degree charged in the
indictment, and on his motion a new trial is granted, the effect of the new trial is to set aside
the whole verdict upon the same issue as the first trial, and that in appealing the defendant
waives his constitutional right to interpose the plea of having been once in jeopardy, in the
following convincing language:
* * * In our opinion the better doctrine is that which does not limit the court or jury, upon
a new trial, to a consideration of the question of guilt of the lower offense of which the
accused was convicted on the first trial, but that the reversal of the judgment of conviction
opens up the whole controversy and acts upon the original judgment as if it had never
been.
31 Nev. 531, 538 (1909) In Re Somers
reversal of the judgment of conviction opens up the whole controversy and acts upon the
original judgment as if it had never been. The accused by his own action has obtained a
reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be
proceeded against as if no trial had previously taken place. We do not agree to the view that
the accused has the right to limit his waiver as to jeopardy when he appeals from a judgment
against him. As the judgment stands before he appeals, it is a complete bar to any further
prosecution for the offense set forth in the indictment, or of a lesser degree thereof. No power
can wrest from him the right to so use that judgment; but, if he chooses to appeal from it and
ask for its reversal, he thereby waives, if successful, his right to avail himself of the former
acquittal of the greater offense, contained in the judgment which he has himself procured to
be reversed. It is urged, however, that he has no power to waive such a right, and the case of
Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262, is cited as authority for that view.
We do not so regard it. This court held in that case that in the territory of Utah the accused
was bound, by provisions of the Utah statute, to be present at all times during the trial, and
that it was not within the power of the accused or his counsel to dispense with such statutory
requirement. But on an appeal from a judgment of this nature there must be a waiver to some
extent on the part of the accused when he appeals from such judgment. When the first trial is
entered upon he is then put in jeopardy within the meaning of the phrase, and yet it has been
held, as late as United States v. Ball, 163 U. S. 662, 671, 16 Sup. Ct. 1192, 41 L. Ed. 300, and
nobody now doubts it, that if the judgment of conviction be reversed upon his own appeal, he
cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense of
which he was convicted. And this is generally put upon the ground that by appeal he waives
his right to the plea, and asks the court to award him a new trial, although its effect will be, if
granted, that he will be again tried for the offense of which he has been once convicted. This
holding shows that there can be a waiver of the defense by reason of the action of the
accused.
31 Nev. 531, 539 (1909) In Re Somers
defense by reason of the action of the accused. As there is, therefore, a waiver in any event,
and the question is as to its extent (that is, how far the accused by his own action may be
deemed to have waived his right), it seems much more rational and in better accord with the
proper administration of the criminal law to hold that, by appealing, the accused waives the
right to thereafter plead once in jeopardy, when he has obtained a reversal of the judgment,
even as to that part of it which acquitted him of the higher while convicting him of the lower
offense. When at his own request he has obtained a new trial, he must take the burden with
the benefit, and go back for a new trial of the whole case. It does not appear to us to be a
practice founded on solid reason to permit such a limited waiver by an accused party, while
himself asking for a reversal of the judgment. There is also the view to be taken that the
constitutional provision was really never intended to, and, properly construed, does not, cover
the case of a judgment under these circumstances, which has been annulled by the court at the
request of the accused, and there is, therefore, no necessity of relying upon a waiver, because
the correct construction of the provision does not make it applicable. * * * (199 U. S. 521,
26 Sup. Ct. 121, 50 L. Ed. 292, 4 Am. & Eng. Ann. Cas. 776.)
We further cite Waller v. State, 104 Ga. 505, 30 S. E. 835; Veatch v. State, 60 Ind. 291;
Cooley's Const. Lim. 5th ed. 401; State v. Thompson, 10 Mont. 557, 27 Pac. 349; State v.
Rover, 10 Nev. 400, 21 Am. Rep. 745; Bohanan v. State, 18 Neb. 57, 24 N. W. 390, 53 Am.
Rep. 791; State v. Billings, 140 Mo. 205, 41 S. W. 778; State v. Faile, 43 S. C. 57, 20 S. E.
788; Commonwealth v. Murphy, 174 Mass. 369, 54 N. E. 860, 48 L. R. A. 393, 75 Am. St.
Rep. 353; 12 Cyc. 279.
For the reasons given, the application for a writ of prohibition restraining the respondent
court from proceeding to try the petitioner upon the original indictment is denied.
It is so ordered.
____________
31 Nev. 541, 541 (1909) In Memoriam
PROCEEDINGS
in the
Supreme Court of the State of Nevada
____________
Saturday, April 30, 1910.
PresentHon. F. H. Norcross, Chief Justice,
Hon. J. G. Sweeney,
Hon. G. F. Talbot,

}
Associate Justices,

and officers of the court.
The committee heretofore appointed to draft appropriate resolutions expressing the sorrow
of the court and bar due to the death of Honorable Michael a. Murphy, formerly a Chief
Justice of this court, presented the following memorial:
To the Honorable Supreme Court of the State of Nevada:
Your committee, appointed to prepare a memorial of the late Judge Michael A. Murphy,
who died in Carson City, Nevada, October 26, 1909, respectfully report as follows:
Michael A. Murphy was born in the State of New York on the 29th day of September,
1837.
In 1853 he crossed the continent and located in Trinity County, California, but in 1863 the
mining excitement at Aurora, Nevada, allured him, and on the 16th day of April of that year
he arrived there, and thus began his career in Nevada, which was destined to continue for
almost half a century, and which was to bring to him among the highest professional and
public honors that the friendship and devotion of a people could confer.
In 1867 Judge Murphy was admitted to the bar, and commenced the career which
covered many years in public office and in the realm of professional endeavor.
31 Nev. 541, 542 (1909) In Memoriam
menced the career which covered many years in public office and in the realm of professional
endeavor.
The year following his admission to the bar Judge Murphy was elected Assessor of
Esmeralda County, but with the resolution firmly fixed in his mind to pursue his legal studies
while holding this office, and to acquire additional knowledge of the law, so that when he
should begin his real career as a lawyer he would be well grounded in the elements of the law.
After serving for four years as Assessor a loyal constituency proudly elevated him to the
office of District Attorney, and thereby afforded him an opening in the great profession in
which his ambition had become centered and in which time and destiny were to exalt him to
the highest rank as a lawyer and jurist.
In 1878 his prominence had become state-wide and he was chosen to the office of
Attorney-General, which office he held for the term of four years.
In 1883 Judge Murphy began his career on the bench by becoming the District Judge of
Esmeralda County.
In 1888 he was elected to the Supreme Bench of the State of Nevada, and the opinions
rendered by him display that great care, caution and research which ever marked his efforts.
In 1903 he again became a District Judge and served for the term of four years.
This distinguished jurist retired from the bench in January, 1907, and resumed the practice
of his profession, with his office in Carson City. Clients came to him immediately, and he
was employed to represent some of the most important land and mining interests of the State.
In land and mining law he was preeminent.
Judge Murphy was not an orator, and neither did he possess what may be termed a
scintillating mind, but he owned a firm and steady intellect, unfailing industry, and a
confidence that loyal service has its reward, and with these attributes he won success and
died honored and loved by thousands.
31 Nev. 541, 543 (1909) In Memoriam
owned a firm and steady intellect, unfailing industry, and a confidence that loyal service has
its reward, and with these attributes he won success and died honored and loved by
thousands.
Judge Murphy is survived by a son and a daughter, who were present at his death. His
wife, who was Martha J. Meyers, and to whom he was married in 1859, died in December,
1892.
Blessed with success in his profession and with domestic happiness, he died looking back
upon the successful years that devotion to duty had won.
Judge Murphy was prominent in Masonic circles. He was a member of Carson Lodge No.
1, F. and A. M., and Lewis Chapter No. 1, R. A. M., having held the highest offices within
the gift of these lodges. He was also a member of Islam Temple, Mystic Shrine, of San
Francisco, and De Witt Clinton Commandery No. 1, K. T., of Reno. He was Master for may
years of Esmeralda Lodge No. 6, of Hawthorne, Nevada. In 1885 and 1886 he was Grand
master of the F. and A. M. of Nevada, and in 1900 he was Grand High Priest of the R. A. M.
In disposition he was kind and generous and ever true to his friends. His whole life was
characterized by a sincere devotion to the cause of charity. It is doubtful whether the State
ever afforded a more striking example of kindly benevolence. His thoughts were constantly of
those he loved, and his countless acts of comforting kindness, sometimes at great personal
sacrifice, come as a sweet and noble heritage to those he left behind.
Therefore Be It Resolved, That this court be requested to cause this memorial to be spread
upon the records of this court as a mark of the esteem and respect of the bench and bar of this
State, that a copy thereof be published in Volume XXXI of the Nevada Reports, and that a
certified copy thereof be forwarded to the son and the daughter of Judge M.
31 Nev. 541, 544 (1909) In Memoriam
XXXI of the Nevada Reports, and that a certified copy thereof be forwarded to the son and
the daughter of Judge M. A Murphy.
Respectfully submitted,
R. C. Stoddard,
Samuel Platt,
Alfred Chartz,
C. H. Belknap,
M. S. Bonnifield.
The resolutions were approved by the court and ordered to be spread upon the minutes and
published in the next report, and the Clerk was directed to forward copies to the son and the
daughter of deceased.
In further honor of his memory the court adjourned for the day.
31 Nev. 541, 545 (1909) In Memoriam
State in an official capacity, and every duty that he owed to the State and Government as a
citizen, faithfully and well. And I believe this Court could no more fittingly honor the
deceased than by adjourning out of respect to his memory.
Benjamin Curler and Prince A. Hawkins also delivered short tributes to the memory of
Justice Bonnifield.
The Chief Justice responded:
The bench joins the bar in deploring the loss of this distinguished jurist, who formerly
presided over the Court. He was one of those bold and adventurous spirits who left the
comforts of home while young to face the dangers and undergo the hardships incident to a
new country. He possessed not only exceptional ability, but a pleasing appearance, poise, and
dignity to an unusual degree. He was so strong that these good qualities were not lessened by
rough experiences. With his sturdy character and robust constitution, after enduring the
privations of a pioneer, he lived far beyond the average life allotted to mortal man. His was
the exceptional honor of having delivered two Fourth-of-July orations in the same town,
Unionville, fifty years apart. Notwithstanding the good age to which he survived, we are
never ready to part with men so distinguished and useful.
The Court thanks the committee for the appropriate resolutions, and the addresses are
appreciated. The resolutions will be spread upon the minutes and will be published in the next
volume of decisions of the Court. A copy of the resolutions will be sent to the family of the
deceased, and the Court will adjourn for the day out of respect to his memory.
____________

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