Nevada Reports 1940-1943 (61 Nev.) PDF

61 Nev.
1, 1 (1940)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 61
____________
61 Nev. 1, 1 (1940) Hartford Mining Co. v. Home Lumber & Coal Co.
HARTFORD MINING COMPANY, a Corporation, Appellant, v. HOME
LUMBER & COAL COMPANY, a Corporation, Respondent.
No. 3316
November 18, 1940. 107 P.(2d) 128.
ON MOTIONS
1. Appeal and Error.
Where respondent's motions to strike portions of the transcript and to dismiss the appeal were noticed
about a week after appellant's opening brief was served and filed, and about a week before respondent was
required to serve and file answering brief, appellant's motion to strike respondent's motions on ground that
respondent had failed to file or serve answering brief or to obtain extension of time therefor would be
denied, in absence of prejudice to appellant. Rules of Supreme Court, rule XI.
Motions by appellant to strike respondent's motions to strike portions of the transcript and to dismiss
appeal tend to confusion, and are generally held not to be proper practice.
Nothing can become a part of the record on appeal from final judgment unless it is a part of the judgment
roll proper or is embraced in a bill of exceptions. Stats. 1937, c. 32, sec. 38.
On appeal on the judgment roll alone, motion to strike portions of the transcript was granted as to notices
of motions and motions to amend complaint, order requesting points and authorities,
affidavit in support of motions to amend complaint, order granting permission to file
amended complaint, application for entry of default, default, dismissal without
prejudice of certain causes of action, and conclusions of law.
and motions to amend complaint, order requesting points and authorities, affidavit in support of motions to
amend complaint, order granting permission to file amended complaint, application for entry of default,
default, dismissal without prejudice of certain causes of action, and conclusions of law. Stats. 1937, c. 32,
sec. 38.
Generally, motions on the pleadings, including motions to strike and rulings thereon, are not properly part
of the judgment roll, and to become a part of the record on appeal must be preserved by a bill of
exceptions. Stats. 1937, c. 32, sec. 38.
Where motion to strike amended complaint and portions thereof was allegedly a demurrer in substance
and effect, but was not based on statutory grounds for demurrer, such motion and ruling thereon were not
properly parts of the judgment roll, and would be stricken from the transcript on motion, on appeal on the
judgment roll alone. Stats. 1937, c. 32, sec. 38; Comp. Laws, sec. 8596.
On appeal on the judgment roll alone, order overruling demurrer to amended complaint and findings of
fact would not be stricken from the transcript. Stats. 1937, c. 32, sec. 38.
On appeal on the judgment roll alone, notice of appeal, undertaking on appeal, clerk's certificate,
amended complaint, demurrer thereto, order overruling demurrer, findings of fact and judgment as
rendered and as filed were properly in the record. Stats. 1937, c. 32, sec. 38
Where appeal was regularly taken on the judgment roll alone, and portions of transcript, including motion
to strike amended complaint and ruling thereon, were stricken on motion, but complaint, demurrer, order
overruling demurrer, findings of fact, and judgment remained in record, reviewing court would not dismiss
appeal, but would afford counsel further opportunity to brief and argue the case or take other steps on the
record.
Where respondent did not notice its motion to strike portions of the transcript until after appellant had
served and filed opening brief, reviewing court gave appellant opportunity to file another brief after
portions of transcript were stricken on motion.
Appeal from First Judicial District Court, Storey County; Clark J. Guild, Judge.
Action by the Home Lumber & Coal Company against the Hartford Mining Company and
others. From a judgment for plaintiff, the named defendant appeals on the judgment roll
alone. On respondent's motions to strike certain portions of the transcript and to dismiss the
appeal, and appellant's motion to dismiss both of respondent's motions. Decree in
accordance with opinion.
G.A. Ballard, of Reno, for Appellant.
George L. Vargas, of Reno, for Respondent.
OPINION
By the Court, Taber, C.J.:
Several motions are presented on this appeal from a judgment of the First judicial district
court, Ormsby County. Appellant was one of several defendants in the court below. The
appeal is upon the judgment roll alone; there is no bill of exceptions.
The transcript of the record on appeal was filed May 17, 1940, and appellant filed its
opening brief May 31, 1940. On the 7th or 8th of June 1940, respondent noticed two motions,
one to strike certain portions of the transcript on appeal, the other to dismiss the appeal. On
June 20, 1940, appellant noticed a motion to dismiss both of respondent's said motions.
Appellant's motion will be taken up first. It is based upon the ground that the respondent
has failed and neglected to file or serve an Answering Brief within 15 days after the service
upon it of Appellant's Opening Brief upon appeal, and has not within said 15 days, or at all,
solicited or procured from Appellant, this court, or either of the Justices thereof, an extension
of time in which to file or serve its Answering Brief, all contrary to Rule XI of this Court and
the statutes in such cases made and provided."
made and provided. In addition to supreme court rule XI, appellant, in support of its motion,
cites Smith v. Wells' Estate Co., 29 Nev. 411, 91 P. 315, and Midland Elevator Co. v. Harrah,
44 Okl. 154, 143 P. 1168.
Under the provisions of supreme court rule XI, appellant is required to file and serve
points and authorities or brief within 15 days after the filing of the transcript on appeal;
respondent is required to serve points and authorities or brief within 15 days after service of
appellant's points and authorities or brief; and within 15 days thereafter appellant is required
to file and serve points and authorities or brief in reply. Said rule further provides, in part, that
a failure by either party to file points and authorities or briefs under the provisions of this
rule and within the time herein provided, 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.
In Smith v. Wells' Estate Co., supra [29 Nev. 411, 91 P. 316], this court said: On April 1,
without making any reservation, respondent obtained an order allowing it 10 days within
which to file its brief, and this and the fact that it failed to file its brief or make any motion to
dismiss the appeal within 15 days after the filing of appellant's brief we deem to be a waiver
of its right to make the objections offered to the transcript. In Midland Elevator Co. v.
Harrah, supra, plaintiff in error, in compliance with an order of court as to the filing of briefs,
filed its brief setting up the grounds upon which it sought reversal. The defendant in error
failed to file briefs or to offer any excuse for such failure. Under these circumstances the
court held that it was not required to search the record to find some theory upon which the
judgment might be sustained, and as the contentions of plaintiff in error seemed to the court
to be reasonably sustained, the judgment was reversed.
1. In the case at bar, respondent's motions were noticed about a week after appellant's
opening brief was served and filed, and about a week before respondent was required to
serve and file its answering brief.
noticed about a week after appellant's opening brief was served and filed, and about a week
before respondent was required to serve and file its answering brief. Under these
circumstances, and in the absence of any prejudice to appellant, we think that appellant's
motion should not be granted. Bowers v. Charleston Hill Nat. Mines, 50 Nev. 99, 251 P. 721,
256 P. 1058; Ryan v. Snyder, 27 Wyo. 512, 200 P. 105.
2. A further reason for not giving favorable consideration to appellant's motions is that
such motions tend to confusion, and are generally held not to be proper practice. Buehler v.
Buehler, 38 Nev. 500, 503, 151 P. 44, 45; 7 Bancroft's Code Pr. and Rem. 7669, sec. 5792, n.
15; 42 C.J. 517, sec. 174. The motion is denied.
3. We next consider respondent's motion to strike. Section 38 of the 1937 new trials and
appeals act, Stats. of Nevada, 1937, c. 32, p. 66, provides, in part: A party may appeal upon
the judgment roll alone, in which case only such errors can be considered as appear upon the
face of the judgment roll. This court on a number of occasions has held that nothing can
become a part of the record on appeal from the final judgment unless it is a part of the
judgment roll proper or is embraced in a bill of exceptions. Harper v. Lichtenberger, 59 Nev.
495, 498, 92 P. (2d) 719, 720, 98 P. (2d) 1069, 99 P.(2d) 474.
4. Respondent's motion to strike portions of the transcript is granted as to the following
papers: Notice of Motions, and Motion, to amend Complaint, pp. 2-20; Order of October 14,
1938, requesting Points and Authorities, p. 21; Notice of Motion, and Motion, to Amend
Complaint, and Affidavit in Support of said Motion, pp. 22-28; Order of December 16, 1938,
Granting Permission to Plaintiff to File Amended Complaint, p. 47; Application for Entry of
Default, p. 54; Default, p. 55; Dismissal without Prejudice of Certain Causes of Action, p. 56;
and Conclusions of Law, pp. 68, 69 {see Harper v. Lichtenberger, supra).
(see Harper v. Lichtenberger, supra). Among the papers moved to be stricken is a
Memorandum of Costs and Disbursements, but we do not find any such paper in the
transcript.
The amended complaint contained four causes of action. Defendant (appellant) filed a
demurrer to the amended complaint, and on the same day filed a motion to strike. The
demurrer was based upon the grounds that several causes of action had been improperly
united, and that there was a misjoinder of parties defendant. The motion to strike set forth
three reasons for striking the whole of the amended complaint. The court was also asked to
strike certain paragraphs of the first cause of action, certain paragraphs of the second cause of
action, and all of the third and fourth causes of action. We are not concerned with the motion
insofar as it was directed at the third and fourth causes of action, because plaintiff dismissed
both of them before final judgment. Neither the demurrer nor the motion to strike was based,
wholly or in part, upon the ground that the amended complaint failed to state facts sufficient
to constitute a cause of action. The motion to strike certain paragraphs of the first and second
causes of action was based upon the ground that the cause of action attempted to be stated
therein is based upon a new and different theory of law and entirely different state of facts,
and raises entirely new issues from the original complaint herein upon which trial was had
and judgment given plaintiff. The motion to strike was denied and the demurrer overruled.
Appellant filed no answer, and its default was entered. Thereafter the judgment was entered
from which this appeal is taken.
There is, of course, no question about the propriety of incorporating the demurrer and
ruling thereon in the judgment roll. The important question upon which counsel sharply differ
is whether appellant's motion in the lower court to strike the amended complaint and certain
portions thereof, and the ruling on said motion, should be stricken from the transcript on
appeal.
should be stricken from the transcript on appeal. Respondent contends it should be stricken,
because it has no place in the judgment roll. Appellant concedes that motions on the
pleadings and rulings thereon are not, as a general rule, properly part of the judgment roll
under statutes such as ours; but it maintains that the motion to strike made by it in the lower
court was in substance and effect a demurrer, and that the ruling of the court in denying said
motion can be reviewed without a bill of exceptions. In support of this position, cases are
cited from Montana, Missouri, Idaho, and Arkansas.
The Montana case chiefly relied upon is Bank of Commerce v. Fuqua, 11 Mont. 285, 28 P.
291, 14 L.R.A. 588, 28 Am. St. Rep. 461. This case was decided nearly fifty years ago, and
the broad rule there stated has been limited in later decisions. This is apparent from the
comparatively recent case of Paramount Publix Corporation v. Boucher et al., 93 Mont. 340,
19 P.(2d) 223, 224. After pointing out that a motion to strike parts, or the whole, of a
pleading may be taken as a demurrer if the motion is based upon a ground for demurrer, the
court went on to say that under the provisions of the Code, the demurrer and motion each
has its own separate and distinct office, and neither can perform that of the other. Further,
says the court, A demurrer can be interposed only for one or more of the seven grounds
enumerated in section 9131, Revised Codes of 1921, and, if a motion attacks a pleading upon
a ground other than one on which a demurrer can be interposed, the motion cannot be deemed
a demurrer.
Appellant also places much reliance upon two Missouri cases, Kinsely v. Leathe, 256 Mo.
341, 166 S.W. 257, and Shohoney v. Quincy, O. & K. C. R. Co., 231 Mo. 131, 132 S.W.
1059, 1065, Ann. Cas. 1912a, 1143. If the former case tends to support appellant's contention,
the same can hardly be said of the latter when read in its entirety, for in the opinion the court
says: All will agree that the general rule in Missouri, subject to exceptions, is that
motions must be preserved in a bill of exceptions and called to the court's attention by a
motion for a new trial, or an assignment of error, based on a ruling on the motion, is lost
for appellate purposes, and that the trend of the judicial mind is to refuse to carve out
new exceptions to the general rule.
agree that the general rule in Missouri, subject to exceptions, is that motions must be
preserved in a bill of exceptions and called to the court's attention by a motion for a new trial,
or an assignment of error, based on a ruling on the motion, is lost for appellate purposes, and
that the trend of the judicial mind is to refuse to carve out new exceptions to the general rule.
To that the end it has been ruled that a motion for judgment on the pleadings is not preserved
except by a ground lodged in the motion for a new trial and by a bill (Sternberg v. Levy, supra
[159 Mo. 617, 60 S. W. 1114, 53 L. R. A. 438]; Godfrey v. Godfrey [228 Mo. 507] 128 S. W.
970, * * *; [Mechanics'] Bank v. Klein, 33 Mo. 559); that a motion to quash the proceedings
is in the same category (City of Tarkio v. Clark, 186 Mo. 285, 85 S. W. 329); that a motion to
strike out an amended petition because of a departure stands on the same foot (Bick v. Dry,
134 Mo. App. 589, 114 S. W. 1145) * * *. The case just mentioned, Bick v. Dry, is of
particular interest here, as it was there held that a motion to strike out an amended petition on
the ground that it stated a different cause of action from that stated in the first petition cannot
be treated as a demurrer, and that a ruling thereon could not be reviewed on appeal in the
absence of a bill of exceptions. The court said: The present motion did not call in question
the adequacy of the amended petition as a cause of action, but, in effect, conceded it stated a
cause of action which could not be entertained because it was a departure from the one stated
in the original petition.
In another Missouri case, Union Brewing Co. v. Ehlhardt, 139 Mo. App. 129, 120 S. W.
1193, 1195, the court said: As a rule objections to the rulings of the court on the allowance
of amendments must be saved by exceptions.
In Garber v. Missouri Pac. Ry. Co., Mo. Sup., 210 S. W. 377, it was held that a motion to
strike out a count of plaintiff's petition is not in the nature of a demurrer and that its
overruling, therefore, became a matter of exception, which must be preserved in a bill of
exceptions.
and that its overruling, therefore, became a matter of exception, which must be preserved in a
bill of exceptions.
The Idaho case cited by appellant is Warren v. Stoddart, 6 Idaho 692, 59 P. 540. In a later
case, Swanson v. Groat, 12 Idaho 148, 85 P. 384, the court said: The respondent has filed
and presented a motion to strike from the transcript in this case all matter found on page 6
thereof, which appears to be a motion and notice of motion to strike certain paragraphs from
the complaint. This appeal is from the judgment only, and no statement or bill of exceptions
has ever been settled or filed in the case. It therefore follows that under sections 4456 and
4818 of the Revised Statutes of 1887, the motion and notice to strike certain matter from the
complaint has no place in the judgement roll and could only be brought to this court by a bill
of exceptions or statement.
Again, in Perkins v. Loux, 14 Idaho 607, 95 P. 694, 698, the court had under consideration
a motion to strike parts of an answer. In its opinion the court said: From the foregoing
examination and analysis of the different provisions of the statutes of this state, and a
comparison of the same with corresponding provisions of the California Code, we conclude
that the Legislature of this state intended that the orders and rulings of the court to which
exceptions are allowed by statute, as enumerated in section 4427, and which are not made a
part of the judgment roll, must be reviewed on an appeal from an order granting or refusing a
new trial. They clearly cannot be reviewed on an appeal from the judgment where they are not
made a part of the judgment roll or incorporated in a bill of exceptions.
Appellant has also cited American Southern Trust Co. v. Martin et al., 171 Ark. 539, 286
S. W. 802, 803, in which it was held that if a motion to strike attacks the sufficiency of the
pleadings on their face, it is in effect a demurrer, and not a motion to strike. But the court
added: Of course, if the motion had set up collateral matter as a ground for striking the
pleadings, and had not challenged the sufficiency of them, then it would have been
necessary to resort to a bill of exceptions to bring the pleadings thus stricken from the
files back into the record.
matter as a ground for striking the pleadings, and had not challenged the sufficiency of them,
then it would have been necessary to resort to a bill of exceptions to bring the pleadings thus
stricken from the files back into the record. Floyd v. McDaniel, 36 Ark. 484. In Bick v. Dry,
supra, the motion under consideration was one to strike out the amended petition, on the
ground that it stated a different cause of action from that stated in the first petition. The court
held that this raised an issue of law on a collateral matter, instead of on the face of the
pleading.
5. The rule contended for by appellant has been adopted, with various qualifications, in
only some half dozen jurisdictions, and is an exception to the general rule that motions on the
pleadings, including motions to strike and rulings thereon, are not properly part of the
judgment roll, and to become a part of the record on appeal must be preserved by a bill of
exceptions. 4 C.J.S., Appeal and Error, 1218, sec. 740; 3 Am. Jur. 246, sec. 638; 8 Bancroft's
Code Pr. and Rem. 8880, sec. 6697; 2 Cal. Jur. 513, 514, sec. 253, nn. 11-17.
In support of its position that we should follow the exception to the general rule, appellant
cites Klepper v. Klepper, 51 Nev. 145, 271 P. 336, Potter v. Los Angeles & S. L. R. R. Co.,
42 Nev. 370, 177 P. 933, and the concurring opinion of Justice Beatty in Howard v. Richards,
2 Nev. 128, 90 Am. Dec. 520. But in the first two of these cases the motions and rulings
thereon came up to this court in bills of exception, settled by the trial judge in the Klepper
case and by stipulation of the parties in the Potter case. And while Justice Beatty, in most
particulars, concurred in the opinion of the majority of the court in Howard v. Richards,
supra, his concurring opinion is a dissent from the majority on the question whether the
motion to strike the cost bill and the ruling thereon could be reviewed upon an appeal from
the judgment, in the absence of a statement on appeal or bill of exceptions. The majority
opinion squarely held that they could not.
6. Two other Nevada cases convince us that we should follow the general rule; Magee v.
Whitacre, 60 Nev. 202, 96 P.(2d) 201, 203, and First National Bank v. Abel et al., 56 Nev. 6,
11, 12, 41 P.(2d) 1061, 1062, 1063. We are confirmed in this view by the fact that appellant's
motion to strike was not based on any of the grounds for demurrer to complaint specified in
the Nevada statute. N. C. L. 1929, sec. 8596.
In 1907 the California statute was amended to include in the judgment roll, in all cases
where the complaint is answered, all orders striking out any pleading in whole or in part.
Stats. 1907, p. 720. Previous to the adoption of that amendment, the California courts had
held that motions and orders striking out pleadings did not constitute a part of the judgment
roll. Whether the Nevada statute should also be amended is a matter for the consideration of
the legislature.
Appellant's motion to strike and the ruling thereon are ordered stricken from the record on
appeal.
7. Respondent's motion to strike is denied as to (1) the trial court's order overruling the
demurrer to the amended complaint, and (2) the findings of fact, pp. 58-68. The motion is in
error in referring to the findings of fact and conclusions of law as extending from pages 58-71
of the record. Pages 70-73 are a copy of the written final judgment.
8, 9. We come now to respondent's motion to dismiss the appeal. In addition to the notice
of appeal, the undertaking on appeal and the clerk's certificate, there are properly in the record
on appeal the amended complaint, the demurrer thereto, the order overruling said demurrer,
the findings of fact and the judgment as rendered and as filed. As the appeal was regularly
taken, we are not disposed to dismiss it, as the court prefers to afford counsel further
opportunity to brief and argue the case, or take such other steps as it may be advised, upon the
record as it stands after the striking therefrom of the papers hereinbefore specified. The
motion to dismiss the appeal is denied.
10. In view of the fact that respondent did not notice its motion to strike until after
appellant had served and filed its opening brief, we think that appellant should be given an
opportunity, if it so desires, to file another brief in lieu of its opening brief. Accordingly,
appellant is given until and including the 5th day of December 1940, in which to serve and
file such brief, or to take such other steps as it my be advised. Respondent will have fifteen
days after service and filing of appellant's brief within which to serve and file its answering
brief, and appellant fifteen days thereafter in which to serve and file its closing brief.
On the Merits
July 2, 1941. 114 P.(2d)1091.
1. Action.
Several causes of action may be united in the same complaint only when authorized
by statute stating what causes of action may be united. Comp. Laws, sec. 8595.
2. Action.
Two causes of action for the foreclosure of mechanics' liens could not lawfully be
united in the same complaint with two other causes of action for recovery of money
allegedly due on two open accounts. Comp. Laws, sec. 8595.
3. Judgment.
Where trial court had erroneously overruled demurrer to complaint wherein four
cases of action were improperly united, and defendant stood upon its demurrer and did
not answer complaint within time allowed nor make any appearance thereafter, a
default judgment could not properly be entered without affording defendant opportunity
to answer complaint after correction thereof to include only causes of action properly
unitable. Comp. Laws, sec. 8595.
Where trial court overruled demurrer to complaint wherein four causes of action
were improperly joined, and thereafter entered default against defendant which failed to
answer complaint, error in overruling demurrer required reversal, notwithstanding that
plaintiff dismissed two of the causes of action subsequent to the entry of default and
that judgment was given on remaining causes of action which were properly unitable
under statute. Comp. Laws, secs. 8595, 8622.
others, to foreclose mechanics' liens against certain mining property and to recover money
due on an open account for the sale of merchandise. Judgment for the plaintiff and the named
defendant appeals. Judgment reversed and cause remanded with directions.
See, also, 61 Nev. 1, 107 P.(2d) 128.
G. A. Ballard, of Reno, for Appellant.
OPINION
By the Court, Taber, J:
Respondent, as plaintiff, commenced an action in the First judicial district court, Storey
County, against appellant, George Drysdale, Howard W. Squires, H. W. Squires, Jr., and John
Doe and Roe Corporation as defendants. Four causes of action were joined in the amended
complaint, which will be referred to herein simply as the complaint. The first and second
causes of action were for the foreclosure of mechanics' liens against certain mining property
leased by defendants Drysdale, Squires and Squires, Jr., from the owner, defendant Hartford
Mining Company. These liens were filed to secure payment for merchandise alleged to have
been sold by plaintiff to said lessees. The third and fourth causes of action were for the
recovery of other sums of money (not secured by lien) alleged to be due plaintiff, on two open
accounts, for the sale of other merchandise direct to the owner.
Defendant Hartford Mining Company, the only defendant who appeared in the action,
demurred to the complaint upon the ground that several causes of action had been improperly
united therein, and upon the further ground that there was a misjoinder of parties
defendant.
the further ground that there was a misjoinder of parties defendant. The demurrer was
overruled, and no answer was filed to the complaint. After the time for answering had
expired, default was entered, and thereafter judgment by default was awarded plaintiff on the
first and second causes of action only. This appeal is from that judgment, and is upon the
judgment roll alone.
1, 2. Appellant contends that the trial court erred in overruling its demurrer. Respondent
argues that appellant was in no position to object to a misjoinder of parties, for the reason that
the complaint states a cause of action against appellant, and the latter's interests are not
affected by the misjoinder of other parties as defendants. With respect to the other ground of
demurrer, that several causes of action were improperly united, respondent not only fails to
cite any authorities justifying the uniting of the first and second causes of action with the third
and fourth causes, but does not even specify any subdivision of sec. 8595 N. C. L. 1929,
under which the first two causes of action could properly be united with the other two.
Several causes of action may be united in the same complaint only when authorized by said
section. Conceding that the first and second causes of action could be properly united in the
same complaint and that the third and fourth causes could have been properly united in a
separate complaint, this court is satisfied that the four causes could not lawfully be united in
the same complaint, and that the demurrer should have been sustained.
Respondent, however, contends that such error was not prejudicial to appellant and not,
therefore, ground for reversal. In support of this position, respondent cites sec. 8622 N. C. L.
1929; Paterson v. Condos, 55 Nev. 260, 30 P.(2d) 283; Strohecker v. Mutual B. & L. Ass'n,
55 Nev. 350, 34 P.(2d) 1076; Barcellos v. Gompertz, 49 Nev. 326, 245 P. 700; Marks v.
Roberti, 51 Nev. 150, 271 P. 467. These authorities are to the effect that errors in pleadings
or proceedings will be disregarded when they do not affect the substantial rights of the
parties.
effect that errors in pleadings or proceedings will be disregarded when they do not affect the
substantial rights of the parties.
3. A number of California, Texas, Iowa, Washington, and Oklahoma cases are also cited
by respondent in support of the proposition that even though a demurrer on the ground of
misjoinder of causes of action be erroneously overruled, the judgment will not be reversed
where demurrer has suffered no prejudice. In these cases the defendants, after their demurrers
had been erroneously overruled, answered and went to trial, and it appeared in each case that
no prejudice had, or could have, been suffered. But here appellant stood upon its demurrer
and did not answer the complaint within the time allowed by the trial court or make any
appearance thereafter. Johnson v. Yelverton, 31 N. M. 568, 249 P. 99; 5 C. J. S., Appeal and
Error, sec. 1687, pp. 864, 865, n. 22; Am. Jur. 575, n. 16. No default judgment could properly
be entered under these circumstances without opportunity first afforded appellant to answer
the complaint after correction thereof to include only such causes of action as were unitable
under sec. 8595 N. C. L. 1929.
4. In support of its contention that no substantial right of appellant has been affected,
respondent points out that before the final judgment was entered respondent dismissed the
third and fourth causes of action, thus leaving only the first and second causes which were
properly unitable under the statute; and as judgment was asked and given on these two causes
only, appellant, argues respondent, could not possibly have been prejudiced. If the trial court
had sustained the demurrer on the ground of misjoinder of causes of action, the maximum
relief to which appellant would have been entitled under such ruling, according to respondent,
would have been found in respondent's dismissing its third and fourth causes of action
without trial, and thereafter proceeding on its first and second causes of action.
action. Respondent further states that if the judgment in this case should be reversed and the
matter returned for a new trial, such new trial would simply result in respondent's obtaining
judgment upon its first and second causes of action.
The papers brought here on this appeal included a copy of dismissal by the plaintiff,
without prejudice, of the third and fourth causes of action, but that paper was stricken from
the record on respondent's own motion. Hartford Mining Co. v. Home Lumber & Coal Co.,
61 Nev. 1, 107 P.(2d) 128, 130. All that we have before us on this appeal is the judgment roll,
which does not mention or refer in any way to a dismissal of any causes of action.
Respondent refers to our opinion in the case last cited where it was stated that the third and
fourth causes of action had been dismissed; but even if we could, on this appeal, take
cognizance of the fact that the third and fourth causes were dismissed it would avail
respondent nothing, because the dismissal took place after the entry of default, and
respondent does not claim that appellant was given any opportunity to answer the corrected
complaint.
In arguing that, if the judgment should be reversed and the case returned to the trial court,
a new trial would simply result in respondent's obtaining judgment upon its first and second
causes of action, respondent apparently assumes that appellant would not answer the
corrected complaint and go to trial, but there is nothing whatever in the record to indicate that
such would be the case.
The judgment appealed from is reversed and the cause remanded, with direction to the
district court to sustain the demurrer in accordance with the views herein expressed and to
allow defendant a reasonable time in which to answer the corrected complaint.
____________
HARTFORD MINING COMPANY, a Corporation, Appellant, v. HOME
LUMBER & COAL COMPANY, a Corporation, Respondent.
No. 3317
November 18, 1940 107 P.(2d) 132.
ON MOTIONS
Where respondent's motion to strike portions of the record on appeal was noticed about a week after
appellant's opening brief was served and filed, and about a week before respondent was required to serve
and file answering brief, appellant's motion to strike respondent's motion on ground that respondent had
failed to file or serve answering brief or to obtain extension of time therefor would be denied, in absence of
prejudice to appellant.
On appeal on the judgment roll alone, motion to strike portions of the transcript would be granted as to
notice of motion, court minutes, minute order denying motion, notice of decision, and conclusions of law,
which were not properly parts of the judgment roll.
On appeal on the judgment roll alone, findings of fact were properly included in the judgment roll, and
would not be stricken from the transcript.
Where respondent did not notice its motion to strike portions of the record on appeal until after appellant
had served and filed opening brief, reviewing court gave appellant opportunity to file another brief after
portions of the record were stricken on motion.
others. From a judgment for plaintiff, the named defendant appeals on the judgment roll
alone. On respondent's motions to strike certain portions of the record on appeal, and
appellant's motion to dismiss respondent's motion. Decree in accordance with opinion.
OPINION
By the Court, Taber, C.J.:
Two motions are presented on this appeal from a judgment of the First judicial district
court, county of Storey. The parties are the same as in cause No. 3316, 107 P.(2d) 128,
decided this day. As in that case, so in this, the appeal is upon the judgment roll alone, there
being no bill of exceptions.
1. Respondent has moved this court to strike certain parts of the record on appeal.
Appellant has moved for an order dismissing respondent's said motion upon the same
grounds as those set forth in its corresponding motion in case No. 3316. For the reasons given
in the opinion in that case, appellant's motion is denied.
2, 3. Respondent's motion to strike is granted as to the following (page numbers are those
in the Transcript on Appeal): Notice of motion, pp. 18, 19; Court Minutes of October 20,
1939, pp. 20, 21; Minute Order of October 27, 1939, denying defendant's motion made on
October 20, 1939, p. 22; Notice of Decision, p. 23; Conclusions of Law, pp. 26, 27. None of
the aforesaid papers or matters is properly a part of the judgment roll. Respondent's motion is
denied as to the Findings of Fact, pp. 24-26. They are properly included in the judgment roll.
4. As respondent's motion to strike was not noticed until after appellant had filed its
opening brief, appellant is given until and including the 5th day of december 1940 in which to
serve and file, if it so desires, another brief in lieu of its opening brief, or take such other
steps as it may be advised. Respondent will have fifteen days after service and filing of
appellant's brief within which to serve and file it answering brief, and appellant fifteen days
thereafter in which to serve and file its closing brief.
On the Merits
July 2, 1941. 114 P.(2d)1093.
1. Courts.
Where amount sought in each of two causes of action properly united in the same
complaint was a sum less than jurisdictional minimum of $300 for district courts, but
aggregate amount was greater than jurisdictional minimum, the district court had
jurisdiction. Comp. Laws, sec. 8382; sec. 9261, subd. 1; Const. art. 6, secs. 6, 8.
2. Pleading.
The plaintiff's failure to reply to answer including plea of res judicata did not constitute
such an admission of facts pleaded in answer as would justify judgment for the
defendant.
Action by the Home Lumber & Coal Company against the Hartford Mining Company to
recover on two causes of action for goods sold to the defendant. Judgment for the plaintiff,
and the defendant appeals. Judgment affirmed.
See, also, 61 Nev. 1, 107 P.(2d) 132.
OPINION
By the court, Taber, J.:
Respondent, as plaintiff, commenced an action against appellant (defendant) in the First
judicial district court, Storey County, the complaint alleging two causes of action for goods
sold to defendant. In the first cause, merchandise of the value of $210.62 was alleged to have
been sold by plaintiff, while in the second cause, merchandise of the value of $288.89 was
alleged to have been sold by a third party, who assigned his chose in action to plaintiff.
action to plaintiff. Judgment was prayed for in the aggregate sum of $499.51, with interest
and costs.
Defendant demurred to the complaint upon four grounds, only one of which need be
mentioned here, to wit, that the court was without jurisdiction because each of the causes of
action constituted a claim for less than $300. The demurrer was overruled, and thereafter
defendant answered the complaint. The answer included an alleged plea of res adjudicata to
each of said causes, that to the first cause reading as follows: Defendant alleges that plaintiff
should not be permitted to maintain his said first cause of action, and that it is estopped and
debarred therefrom for the reason that on the 28th day of April, 1937, in an action then
pending in this court between the Home Lumber and Coal Company as plaintiff, and the
Hartford Mining Company as Defendant, the same being No. 7198, and for the same cause of
action as set forth in plaintiff's first cause of action in its complaint herein, judgment on the
merits was duly given and entered against the defendant and in favor of the plaintiff herein
for the sum of $210.62, the amount sued for herein. That thereafter an appeal was taken by
this defendant to the Supreme Court of the State of Nevada from said judgment [58 Nev. 361,
81 P.(2d) 1063, 83 P.(2d) 1049], and upon said appeal the said judgment was reversed in all
respects and the case remanded to this court. The plea of res adjudicata to the second cause
of action was the same except for the amount, which was $288.89. Plaintiff did not reply to
defendant's answer. The action came on for trial, and the court gave judgment for plaintiff as
prayed in its complaint, at the same time holding that res adjudicata does not lie in this
action. From this judgment defendant has appealed.
1. The overruling of defendant's demurrer is assigned as error. Section 6 of article VI of
our state constitution provides, in part, that the district court shall have original jurisdiction in
certain specified kinds of cases and in all other cases in which the demand {exclusive of
interest) or the value of the property in controversy exceeds three hundred dollars * * *."
demand (exclusive of interest) or the value of the property in controversy exceeds three
hundred dollars * * *. Section 8382 N. C. L. 1929 contains a similar provision. Section 8 of
said article VI of the constitution contains a provision that justice courts shall not have
jurisdiction * * * Of cases in which the matter in dispute is a money demand or personal
property, and the amount of the demand (exclusive of interest) or the value of the property
exceeds three hundred dollars. Subdivision 1 of sec. 9261 N. C. L. 1929 provides that
justices' courts shall have jurisdiction In actions arising on contract for the recovery of
money only, if the sum claimed, exclusive of interest, does not exceed three hundred dollars.
The two causes of action in this case were properly united in the same complaint, but each
was for a sum less than the jurisdictional minimum for district courts. In the aggregate,
however, the amounts sued for were greater than the jurisdictional minimum. The cases cited
by respective counsel show that there is a conflict of authority on the question whether, under
these circumstances, the district court has jurisdiction. See also 21 C.J.S., Courts, sec. 63;
Annotation 93 A.L.R. 147. This court is of the opinion that the trial court followed the better
rule, and that its action in overruling defendant's demurrer was correct. Hammell v. Superior
Court, 217 Cal. 5, 17 P.(2d) 101; Mosher v. Bellas, 33 Ariz. 147, 264 P.468; 14 Am. Jur. 415,
n. 17; 1 Bancroft's Code Pr. and Rem. 938, sec. 632.
2. With reference to the plea of res adjudicata, appellant's argument is limited to the
following sentence: The plaintiff having admitted the facts pleaded in this answer to the
complaint by not replying thereto, and not having questioned its legal sufficiency, judgment
should have been for defendant. This contention is so clearly without merit as not to require
any discussion.
Judgment affirmed.
____________
61 Nev. 22, 22 (1941) Burlington Transp. Co. v. Wilson
BURLINGTON TRANSPORTATION CO, a Corporation, Appellant,
v. W.A. WILSON, Respondent.
No. 3330
February 13, 1941. 110 P.(2d) 211.
ON MOTIONS
Alleged fact that appellant's bill of exceptions was not timely filed did not authorize dismissal of appeal
which was duly perfected and taken on the judgment roll alone. Stats. 1937, c. 32, sec. 31.
Where appeal was perfected on December 10, 1940, and judgment roll, constituting proposed record on
appeal, was deposited with clerk of the supreme court on January 7, 1941, and at the same time notice of
motion for an order allowing the judgment roll to be filed was filed with the clerk, the judgment roll was
presented within time prescribed by supreme court rule and was entitled to be filed regardless of whether
bill of exceptions was entitled to be filed as a part of the record on appeal. Supreme Court Rules, rule 11.
Depositing judgment roll and at same time seeking permission to file it was equivalent to an actual filing,
especially since failure to file transcript of record on appeal within time required by supreme court rule is
not jurisdictional. Supreme Court Rules, rule 11.
Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.
Action between the Burlington Transportation Company and W. A. Wilson. From an
adverse judgment, the Burlington Transportation Company appeals. On motion to dismiss
appeal and on motion for leave to file the judgment roll. Motion to dismiss appeal denied
and motion for leave to file the judgment roll granted.
Harley A. Harmon, of Reno, Thomas J. Salter, of Winnemucca, and Sanford A. Bunce, of
Lovelock, for Appellant.
H. J. Murrish, of Lovelock, for Respondent.
OPINION
By the Court, Ducker, C.J.:
1. Two motions are before us, a motion to dismiss the appeal and a motion for leave to file
the judgment roll. The motion made by respondent to dismiss the appeal must be denied. It is
made upon the sole ground that appellant's bill of exceptions was not filed within the time
allowed by statute. Stats. 1937, c. 32, sec. 31. Even though this be true it furnishes no ground
to dismiss the appeal, which has been duly perfected and taken on the judgment roll alone.
2. The motion for leave to file the judgment roll should be granted. The appeal was
perfected on December 10, 1940, and the judgment roll, which constitutes the proposed
record on appeal, was deposited with the clerk of this court on January 7, 1941, and at the
same time the notice of the motion for an order allowing the judgment roll to be filed, was
filed with the clerk. Rule 11 of the supreme court provides: The transcript of the record on
appeal shall be filed within thirty days after the appeal has been perfected, and the bill of
exceptions, if there be one, has been settled.
It will be noticed that irrespective of whether a bill of exceptions was entitled to be filed as
a part of the record on appeal, the judgment roll was presented to the clerk within the thirty
days prescribed by the above rule. It was then entitled to be filed.
3. Counsel for appellant stated on the hearing, in reply to a question from one of the
members of the court, as to why he did not then file the judgment roll, that it was out of an
abundance of caution. We thought then, and do now, that such caution should have suggested
the filing. However, we think that depositing the judgment roll and at the same time seeking
permission to file it ought to be considered equivalent to an actual filing. Particularly in view
of our conclusion, several times expressed, that failure to file a transcript within the time
required by the rule is not jurisdictional.
several times expressed, that failure to file a transcript within the time required by the rule is
not jurisdictional.
The motion to dismiss the appeal is denied, and the motion for an order allowing the
judgment roll to be filed is granted. The clerk will file it as of the date of January 7, 1941.
On the Merits
July 3, 1941. 114 P.(2d)1094.
1. Appeal and ErrorAutomobiles.
Where bus company in action for damages sustained when bus collided with
plaintiff's automobile relied on defense of contributory negligence on the part of
plaintiff in that plaintiff's automobile was allegedly parked on wrong side of road, bus
company had burden of proving that automobile was thus parked in order to establish
defense of contributory negligence, and, in the absence of any finding as to where
automobile was parked, it must be assumed that issue of contributory negligence was
decided against bus company.
2. Trial.
On omission of the findings to cover a particular fact or issue is to be deemed a
finding on such fact or issue against the party having the burden of proof.
Where appeal was taken upon the judgment roll alone from a judgment allowing
recovery for personal injuries and property damage sustained when plaintiff's parked
automobile was struck by defendant's bus, and trial court's findings were silent as to
where plaintiff's automobile was parked, evidence was held sufficient to support
conclusion that issue of plaintiff's contributory negligence in allegedly parking
automobile on wrong side of road was decided against the defendant.
Where appeal was taken upon the judgment roll alone, supreme court could not have
recourse to the evidence given in the trial court, but in arriving at a determination of the
reasons for trial court's action was limited to an inspection and consideration of the
findings.
5. Automobiles.
Trial court's findings that plaintiff parked automobile on highway because density of
fog made it impossible for him to proceed, that lights and brakes of bus which struck
automobile were in good condition, and that bus was being driven at such a speed that
it could not be stopped within the distance illuminated by its lights, warranted judgment
against bus company on the ground of negligence in operating bus at an unreasonable
speed.
Appeal from Sixth Judicial District Court, Pershing County; L.O. Hawkins, Judge.
Action by W.A. Wilson against the Burlington Transportation Company, to recover for
property damage and personal injuries sustained when a bus belonging to defendant and
driven by an employee of defendant collided with plaintiff's parked automobile. From a
judgment for plaintiff, defendant appeals. Judgment affirmed.
Harley A. Harmon, of Reno, Thomas J. Salter, of Winnemucca, and Sanford A. Bunce, of
Lovelock, for Appellant.
H. J. Murrish, of Lovelock, for Respondent.
OPINION
By the Court, Orr, J.:
Respondent obtained a judgment in the lower court in an action instituted for the recovery
of damages for the alleged negligent operation of a passenger bus by and through a servant of
the appellant, the charge being that the servant and employee of appellant negligently and
carelessly and at an excessive speed drove a bus belonging to appellant into and against
respondent's automobile, with such force and violence that respondent was injured and his car
greatly damaged.
This appeal is before us on the judgment roll alone.
Appellant defended in the lower court upon the theory that the proximate cause of the
injury was the contributory negligence of respondent in allegedly parking his car on the
wrong side of the highway. In its brief appellant asserts that the findings of the court declare
that as a matter of law respondent Wilson would not be guilty of contributory negligence by
parking his automobile directly in the path of the bus, on the wrong side of the highway. We
fail to discover such a finding.
It may be that appellant refers to finding No. 5, where some argument is set forth relative to
the evidence given at the trial on behalf of appellant, also on behalf of respondent, as to the
position of respondent's automobile at the time of the collision, but the language therein
employed falls far short of a definite finding or determination of the question.
1, 2. Many cases are cited by appellant on the question of contributory negligence. That
question is not before us. Appellant asserts that the court having failed to find that respondent
was parked on his right side of the highway, as alleged in the complaint, it is proper to
assume that he was parked on the wrong side, and on such an assumption is presented for our
consideration the question of contributory negligence. We think the assumption is quite the
contrary. The burden of proving that respondent's car was parked on the wrong side of the
road was on appellant, and the existence of this fact was necessary to establish appellant's
defense of contributory negligence. The findings being silent as to this fact, the presumption
is that it did not exist. 26 R. C. L. p. 1092, notes 6 and 7. In 64 C.J. page 1236, note 34, it is
stated: An omission of the findings to cover a particular fact or issue is to be deemed a
finding on the fact or issue against the party having the burden of proof.
3. Hence, there being no finding on the question of respondent being parked on the wrong
side of the road, it must be assumed that the issue of contributory negligence was decided
against appellant, and the appeal being from the judgment roll alone, the evidence will be
held sufficient to support such a conclusion.
The second alleged error complained of by appellant is: that the trial court found, as a
matter of law, that appellant was negligent in not operating the bus at a rate of speed so that it
could be stopped within the distance the highway was illuminated by its lights. This brings up
for consideration what is referred to in some of the texts as the range of vision rule. For
many years the rule has been adopted in a number of states as a "universal formula" with
a hard and fast application.
years the rule has been adopted in a number of states as a universal formula with a hard and
fast application. Decisions in other states have relaxed the rule and courts have refused to
apply it without qualification because of the circumstances of the particular case. 5 Am. Jur.
page 647, sec. 263; Huddy Encyclopedia of Automobile Law, vol. 3-4, pages 302, 303;
19419th Cumulative Supplement; 44 A.L.R. p. 1403; 58 A. L. R. p. 1493; 87 A. L. R. p.
900; 97 A. L. R. p. 546; Minnesota Law Review, vol. 22, 1937-38, page 877; California Law
Review, vol. 23, 1934-35, page 498.
4. We are not permitted in this case to have recourse to the evidence given in the trial court
and in arriving at a determination of the reasons for the trial court's action are limited to an
inspection and consideration of the findings. The findings disclose the following facts relative
to the collision: That respondent stopped the automobile and parked same on the highway,
because of the fog which at this point was so dense as to make it impossible for respondent to
proceed further. The lights on the bus were in good condition; the brakes worked perfectly;
the bus driver's vision was at least forty feet. At the time the bus driver saw respondent's
parked automobile, he had the lights on the bus lowered and could see the road from forty to
fifty feet ahead of him; the bus was running from twenty-five to thirty miles per hour; the fog
was very dense. That the appellant did negligently drive its bus against respondent's parked
automobile with such violence as to cause respondent and the said car great damage; that at
the said time the appellant, by the testimony of its bus driver, was driving said bus at such a
speed that it could not be stopped within the area disclosed by its light; that by reason of not
being able to stop its bus within the distance that its lights disclosed the highway, it was
driving at an unreasonable speed, regardless of the actual speed of the bus, and was guilty of
negligence.
5. We cannot conclude from a reading of the findings in their entirety, the pertinent parts
of which are quoted supra, that the trial court applied the range of vision rule in all its
rigidity and as a universal formula, for had such been its intention, a mere statement to the
effect that failure to observe the rule was negligence per se would have sufficed. But, on the
contrary, we find the court enumerating situations and conditions existing in this case which
rendered the failure to drive at a speed to enable the bus to be stopped within the distance the
highway was illuminated by its lights negligence. The record before us sustains the view that
the court found no special circumstances justifying the relaxation of the general rule and
which would take the case out of its operation, and, as stated supra, the evidence must be
considered as sustaining the findings.
Judgment affirmed.
____________
61 Nev. 28, 28 (1941) McGill v. Lewis
NEIL A. McGILL and MRS. OZELIO E. McGILL, Husband and
Wife, Appellants, v. FRANCIS E. LEWIS, Respondent.
No. 3329
March 21, 1941. 111 P.(2d) 537.
ON MOTIONS
The statute providing that if a party shall omit or fail to serve and file his bill of exceptions within the
time limited he shall be deemed to have waived his right thereto is mandatory, and unless a bill of
exceptions is served and filed within 20 days after service of notice of decision on motion for new trial,
providing the time has not been extended by stipulation or court order, bill of exceptions will be stricken on
proper motion. Stats. 1937, c. 32, secs. 31, 36.
Where appeal was perfected within time, but appellant did not file and serve bill of exceptions with 20
days after service of written notice of decision on motion for new trial, appellants could not rely on bill of
exceptions, since they waived their right thereto. Stats. 1937, c. 32, sec. 10, subd. 2; secs. 31, 36.
Bill of exceptions filed more than 20 days after service of written notice of decision on motion for new
trial, the time for service and filing of bill of exceptions not having been enlarged by stipulation or court
order, was ordered stricken from the record. Stats. 1937, c. 32, secs. 31, 36.
Where bill of exceptions was not served and filed within 20 days after service of written notice of
decision on motion for new trial, the appeal was on the judgment roll alone.
Stipulation, notice of motion to strike, application for order to show cause, etc., order to show cause and
temporary restraining order, undertaking on issuance of temporary restraining order, assignment of cause,
plaintiff's exhibit on trial, defendant's exhibits on trial, decision, memorandum of defendant's costs and
disbursements, notice of decision, notice of intention to move for a new trial, affidavit in support of motion
for a new trial, plaintiff's exhibit on motion for new trial, notice of filing counter-affidavit in opposition to
plaintiff's motion for new trial, counter-affidavit in opposition to plaintiff's motion for new trial, stipulation,
so-called memorandum of exceptions, notice of making and entry in minutes of court of order refusing new
trial, and minute entry of order denying motion for new trial had no place in judgment roll, and were
ordered stricken therefrom. Comp. Laws sec. 8829.
The most that court would do for failure to comply with court rule requiring service of copy of transcript
of record on appeal to be made on opposite party would be to order compliance with the rule, but where
record had been reduced to judgment roll alone, no useful purpose would be served by such an order. Rules
of Supreme Court, rule 13, subd. 3.
Where court rule requiring service of copy of transcript of record to be made on opposite party is not
complied with, the supreme court may follow its announced policy of permitting an appeal to be heard on
the merits wherever possible. Rules of Supreme Court, rule 13, subd. 3.
Where respondent moved for an order striking transcript and certain papers from record and to dismiss
appeal, respondent by entering into stipulation permitting appellants 15 days after decision of motion to file
and serve opening brief did not waive objection to defect in record, since the stipulation was for sole
benefit of appellants.
Where bill of exceptions was stricken from record because not timely served and filed, so that appeal was
left on the judgment roll alone which limited consideration of errors to those appearing
on face thereof, appeal would not be dismissed on ground that no errors appeared
since question was to be left for determination on hearing of appeal proper.
judgment roll alone which limited consideration of errors to those appearing on face
thereof, appeal would not be dismissed on ground that no errors appeared since question
was to be left for determination on hearing of appeal proper.
Appeal from Seventh Judicial District Court, White Pine County; Wm. D. Hatton, Judge
Presiding.
Action between Neil A. McGill and wife and Francis E. Lewis. From the judgment the
former appeal. On motion for an order striking from records and files certain papers and on
motion to dismiss appeal. Motion to strike papers from records and files granted, and
motion to dismiss appeal denied.
C. J. McFadden, of Ely, and A. J. Maestretti, of Reno, for Appellants.
Robert R. Gill, of Ely, for Respondent,
OPINION
Respondent has moved this court for an order striking from its records and files:
(A) The transcript of proceedings certified by the official reporter, filed in the trial court on
November 26, 1940, and filed herein on December 24, 1940;
(B) The whole of the file of papers without formal title, referred to as the transcript of
record on appeal;
(C) The following entitled papers embodied in the so-called transcript of record on appeal,
at the pages thereof hereinbelow indicated:
Title of paper Pages of record
1. Stipulations............................................................................................8, 9
2. Notice of Motion to Strike.................................................................. 46-49
3. Application for Order to Show Cause, etc.........................................50-55
4. Order to Show Cause and Temporary Order......................................56-58
5. Undertaking on Issuance of Temporary Restraining Order59-60 Title of
paper........................................................................................Pages of record
Title of paper Pages of record
6. Assignment of Cause................................................................................ 66
7. Plaintiff's Exhibit A (on trial).......................................................... 67-68
8. Defendant's Exhibit 2 (on trial)................................................................ 69
9. Defendant's Exhibit 3 (on trial)..........................................................70-71
10. Defendant's Exhibit 4 (on trial)..........................................................72-75
11. Decision..............................................................................................76-83
12. Memorandum of Defendant's Costs and Disbursements.......................... 84
13. Notice of Decision.................................................................................... 85
14. Notice of Intention to Move for a New Trial............................................ 95
15. Affidavit in Support of Motion for a New Trial.................................. 96-98
16. Plaintiff's Exhibit A (on Motion for New Trial)..................................99
17. Notice of Filing Counter-Affidavit in Opposition to Plaintiff's Motion
for New Trial....................................................................................100
18. Counter-Affidavit in Opposition to Plaintiff's Motion for New Trial
101-104
19. Stipulations...................................................................................... 105-106
20. So-called Memorandum of Exceptions..........................................107-110
21. Notice of Making and Entry in Minutes of Court of Order Refusing New
Trial.................................................................................................... 111
22. Minute Entry of Order Denying Motion for New Trial.......................... 122
The motion to strike the transcript of proceedings certified by the court reporter is based
upon the ground that the said transcript, which was intended as a bill of exceptions, was not
filed within twenty days after service of written notice of the decision upon motion for new
trial, said time not having been enlarged by stipulation or order of the court.
1. The judgment in the above-entitled action was entered in the lower court on the 5th day
of June 1940; a motion for new trial was thereafter made, and an order entered denying the
same on September 30, 1940. The notice of the denial of said motion for new trial was served
on appellant on October 19, 1940. The transcript of proceedings intended as a bill of
exceptions was served upon respondent on November 26, 1940, more than twenty days
after the entry of judgment and more than twenty days after the notice of decision on
motion for new trial.
was served upon respondent on November 26, 1940, more than twenty days after the entry of
judgment and more than twenty days after the notice of decision on motion for new trial.
Appellants failed to comply with the requirements of section 31 of the new trials and appeals
act, Statutes of Nevada 1937, c. 32, p. 63. Section 36 of said act provides: If a party shall
omit or fail to serve and file his bill of exceptions within the time limited he shall be deemed
to have waived his right thereto. In a number of decisions this court has held this
requirement to be mandatory, and that unless a bill of exceptions is served and filed within
twenty days, providing the time has not been extended by stipulation or order of the court, the
bill of exceptions will be stricken upon proper motion. Markwell v. Gray, 50 Nev. 427, 265
P. 705; Joudas v. Squire, 50 Nev. 42, 249 P. 1068; Water Co. v. Tonopah Belmont Dev. Co.,
49 Nev. 172, 241 P. 1079; McGuire v. Ehrlich, 49 Nev. 319, 245 P. 703; Bowers v.
Charleston Hill National Mines, Inc., 50 Nev. 99, 251 P. 721, 256 P. 1058.
2, 3. Appellants assert they proceeded under paragraph 2 of section 10 of the new trials
and appeals act, found at page 56, Statutes of Nevada 1937, and that they perfected their
appeal within the sixty days allowed by said section. This is quite true, but the section has no
application to the questions raised by the motion. The appeal was perfected within the time,
but not having filed and served a bill of exceptions within the twenty days, appellants cannot
rely on it, being deemed to have waived their right thereto. Said bill of exceptions, being filed
out of time, has no place in the record, and it is ordered stricken.
4. Without a bill of exceptions, the appeal is left upon the judgment roll alone.
5. Respondent has moved to strike a number of papers appearing in the judgment roll
which are not a proper part thereof. Section 8829 N. C. L. 1929 provides what shall constitute
the judgment roll in civil cases, and an inspection of said section discloses that the papers
referred to by respondent in his motion to strike, under paragraph {C), and enumerated
on pages 1 and 2 hereof, as pages S to 95 of the record, have no place in the judgment
roll, and they are ordered stricken therefrom.
the papers referred to by respondent in his motion to strike, under paragraph (C), and
enumerated on pages 1 and 2 hereof, as pages 8 to 95 of the record, have no place in the
judgment roll, and they are ordered stricken therefrom. Those papers enumerated on page 2 of
this opinion and appearing on pages 95 to 122 of the record are annexed to the judgment roll,
but have no proper place there and are also ordered stricken.
6. Under subdivision (B) of the motion the most this court would do would be to order a
compliance with rule XIII, subdivision 3. Lovelock Lands, Inc., v. Lovelock Land &
Development Co., 54 Nev. 1, at page 8, 2 P.(2d) 126, 7 P.(2d) 593, 12 P.(2d) 339. Inasmuch
as the record has been reduced to the judgment roll alone, we think no useful purpose would
be served by such an order.
7. The discretion we have exercised here demonstrates the difference in the mandatory
character of the action directed by section 36 of the 1937 statute, supra, relative to failure to
file a bill of exceptions within the time specified, and the latitude allowed the court by rule
XIII, subdivision 3. In the one the court can follow its announced policy of permitting an
appeal to be heard on the merits wherever possible; in the other the quoted statute has
prescribed the penalty for failure to comply with outlined procedure.
8. Appellants call attention to the stipulation entered into by respective counsel permitting
appellants fifteen days after decision on their motion to file and serve their opening brief, and
contends that by so stipulating respondent waived all objections to defects in the record. The
stipulation is for the sole benefit of appellants, a different situation than appears in the case of
Barbash v. Pitt, 48 Nev. 108, at page 113, 227 P. 1018, 233 P. 844, 236 P. 1101.
9. Respondent has also filed a motion to dismiss the appeal on the ground that without a
bill of exceptions the appeal is upon the judgment roll alone, which limits the consideration
of errors to those appearing on the face thereof, and that no error there appears.
face thereof, and that no error there appears. This question should be left for determination
upon the hearing of the appeal proper. The motion to dismiss is denied.
On the Merits
August 30, 1941. 116 P.(2d) 581.
Where bill of exceptions as well as a number of papers improperly included in the
judgment roll were stricken, reviewing court on appeal was limited to consideration of
the judgment roll alone.
2. Homestead.
A declaration of homestead stating that claimants are the owners as a home of the
premises hereinafter described, and that it is their intention to use and claim the same as
a homestead was not in compliance with statute requiring that the declaration of
homestead shall state that the husband and wife are, at the time of making the
declaration, residing with their family on the premises. Comp. Laws, secs. 3315-3323;
Const. art. 4, sec. 30.
3. Homestead.
To secure the benefits of the constitutional and statutory provisions exempting
homestead from forced sale under process of law, it is necessary that a declaration of
homestead be filed for record as provided by statute. Comp. Laws, sec. 3315.
4. Homestead.
Where declaration of homestead stated that husband and wife are the owners as a
home of the premises hereinafter described, and that it is their intention to use and
claim the same as a homestead and there was nothing in the judgment roll showing
that husband and wife were temporarily absent from homestead by reason of husband's
employment in another city and attendance of son at school, and there being no
showing that husband and wife were in fact residing on premises, the premises were not
exempt from execution sale on ground that they were homestead property. Comp Laws,
secs. 3315-3323; Const. art. 4, sec. 30.
5. Homestead.
The rule of liberal construction can be applied to constitutional and statutory
provisions relating to homesteads only where there is substantial compliance with such
provisions. Comp Laws, secs. 3315-3323; Const. art. 4, sec. 30.
Appeal from Seventh Judicial District Court, White Pine County; Wm. D. Hatton, Judge.
Action to recover and alleged homestead by Neil A.
McGill and wife against Francis E. Lewis. From a judgment for the defendant, plaintiffs
appeal. Affirmed.
C. J. McFadden, of Ely, and A. J. Maestretti, of Reno, for Appellants.
R. R. Gill, of Ely, for Respondent.
OPINION
By the Court, Taber, J.:
In July 1938 an action on a promissory note was commenced by respondent against
appellant Neil A. McGill in the Seventh judicial district court, White Pine County. In that
action an attachment was levied on certain real property in the city of Ely. Upon default of
said appellant, respondent recovered a money judgment in said action and thereafter
execution was levied on said property, which was noticed to be sold by the sheriff on January
18, 1939.
On January 16, 1939, appellants filed for record with the county recorder of White Pine
County their declaration of homestead which, exclusive of the acknowledgement, reads as
follows: Be it known that we, Neil A. McGill and Ozello McGill do hereby declare that they
are husband and wife, and are married, and at the time of making this declaration, are the
owners as a home of the premises hereinafter described, and that it is their intention to use
and claim the same as a homestead. The premises so claimed by us are the real property
situate in the county of White Pine, State of Nevada, and described as follows: The south
thirty-seven and one-half feet of lot nine, Block two, City of Ely, White Pine County, Nevada.
Together with the dwelling house thereupon and appurtenances. That we estimate the cash
value of the said premises to be five hundred dollars. In witness whereof, we have hereunto
set our hands this 12th day of January, 1939. Neil A. McGill. Ozello E. McGill.
The property described in said declaration of homestead is the same as that attached, and
upon which execution was levied, in the promissory note case. Though notified of the filing
of said declaration the sheriff proceeded to sell the said premises to respondent herein, who
was plaintiff in said promissory note action. Thereafter appellants, claiming said property as a
homestead, commenced the present action in said district court, praying for the restitution of
said premises and for other relief. After issue joined, the cause was tried and judgment
rendered and entered for the defendant (respondent on this appeal). A motion for new trial
was denied, and this appeal is from said judgment and order denying a new trial.
1. As the record now stands the court is limited to a consideration of the judgment roll
alone, the bill of exceptions, as well as a number of papers improperly included in the
judgment roll, having heretofore been stricken. McGill et ux. v. Lewis, 61 Nev. 28, 111
P.(2d) 537.
Section 30 of article IV of the constitution of Nevada reads: A homestead, as provided by
law, shall be exempt from forced sale under any process of law, and shall not be alienated
without the joint consent of husband and wife when that relation exists; but no property shall
be exempt from sale for taxes or for the payment of obligations contracted for the purchase of
said premises, or for the erection of improvements thereon; provided, the provisions of this
section shall not apply to any process of law obtained by virtue of a lien given by the consent
of both husband and wife, and laws shall be enacted providing for the recording of such
homestead within the county in which the same shall be situated.
In 1865 the legislature of this state passed the homestead exemption act. Stats. of Nev.,
1865, chap. LXXII, pp. 225-227. Sections 1 and 4 of the act were amended in 1879. Stats. of
Nev., 1879, chap. CXXXI, pp. 140, 141. The act, as amended, will be found in 2 N. C. L.,
1929, secs.
1929, secs. 3315-3323. Section 1, as amended in 1879, reads in part as follows: The
homestead, consisting of a quantity of land, together with the dwelling house thereon and its
appurtenances, not exceeding in value five thousand dollars, to be selected by the husband
and wife, or either of them, or other head of a family, shall not be subject to forced sale on
execution, or any final process from any court, for any debt or liability contracted or incurred
after November thirteenth, in the year of our Lord one thousand eight hundred and sixty-one,
except process to enforce the payment of the purchase money for such premises, or for
improvements made thereon, or for legal taxes imposed thereon, or for the payment of any
mortgage thereon, executed and given by both husband and wife, when that relation exists.
Said selection shall be made by either the husband or wife or both of them, or other head of a
family, declaring their intention in writing to claim the same as a homestead. Said declaration
shall state when made by a married person or persons that they or either of them are married,
or if not married, that he or she is the head of a family, and they or either of them, as the case
may be, are, at the time of making such declaration, residing with their family, or with the
person or persons under their care and maintenance, on the premises, particularly describing
said premises, and that it is their intention to use the claim the same as a homestead. * * *
2. Appellants' declaration of homestead states that they are the owners as a home of the
premises hereinafter described, and that it is their intention to use and claim the same as a
homestead. It is plain that this language does not comply with the requirements of that part
of sec. 3315 N. C. L. 1929 which provides that the declaration of homestead shall state that
the husband and wife are, at the time of making the declaration, residing with their family on
the premises. Appellants contend, however, that the failure in this respect to comply with the
statute cannot operate to deprive them of their constitutional homestead rights; that the
provisions of section 1 of the homestead act of 1S65 should be liberally, not strictly,
construed; that although they were not actually occupying the premises at the time their
declaration was filed, it was still their real home and residence, and that they were only
temporarily absent therefrom in another part of the state, by reason of the fact that Mr.
deprive them of their constitutional homestead rights; that the provisions of section 1 of the
homestead act of 1865 should be liberally, not strictly, construed; that although they were not
actually occupying the premises at the time their declaration was filed, it was still their real
home and residence, and that they were only temporarily absent therefrom in another part of
the state, by reason of the fact that Mr. McGill had secured desirable employment at Reno,
and their son was attending the University of Nevada located there; that while appellants
rented the premises to a third party, this was to be during their temporary absence only, and
that they had at no time abandoned or intended to abandon the property as their residence and
home, but on the contrary, always claimed it as their home from the time they first acquired
ownership of it, and that they intended to return there to live if Mr. McGill should lose his
position as grazing engineer for the United States government at Reno.
3. To secure the benefits of the constitutional and statutory provisions exempting the
homestead from forced sale under process of law (with certain exceptions not here pertinent),
it is necessary that a declaration of homestead be filed for record as provided in sec. 3315 N.
C. L. 1929. Lachman v. Walker, 15 Nev. 422. The case last cited was not overruled in First
National Bank of Ely v. Meyers, 39 Nev. 235, 150 P. 308; Id., 40 Nev. 284, 161 P. 929. In
that case, it is true, no declaration for homestead was filed for record, but the question before
the court was not as to the exemption of the homestead from forced sale; it was whether the
husband alone could mortgage the homestead occupied by him and his family. The
conclusion arrived at by the court, namely, that the mortgage was ineffective unless executed
by both husband and wife, was based upon a provision in section 6 of the act defining the
rights of husband and wife, as amended in 1897, that no deed of conveyance or mortgage of
a homestead as now defined by law, regardless of whether a declaration thereof has been
filed or not, shall be valid for any purpose whatever unless both the husband and wife
execute and acknowledge the same as now provided by law for the conveyance of real
estate."
a declaration thereof has been filed or not, shall be valid for any purpose whatever unless both
the husband and wife execute and acknowledge the same as now provided by law for the
conveyance of real estate. Stats. of Nev. 1897, chap. XX, p. 24, sec. 3360 N. C. L. 1929.
4. If this court had not been compelled by the provisions of the new trials and appeals act
to strike the bill of exceptions and other papers from the record on appeal (McGill et ux. v.
Lewis, supra), we would now have to consider whether, at the time of making their
declaration of homestead, appellants were residing on the premises with their family, and if
so, whether the failure of said declaration to state that at said time they were so residing on
the premises with their family would of itself be fatal to their claim of exemption of the
homestead from sale on execution in the promissory note case. But all that the judgment roll
shows regarding residence is the allegation in the amended complaint that plaintiffs
(appellants) are now and have been residents of the City of Ely, County of White Pine, State
of Nevada; the express denial of said allegation in defendant's answer; the declaration of
homestead; the allegation in the cross-complaint that plaintiffs and cross-defendants were
formerly residents of said County (White Pine), but for some years last past have resided
elsewhere in the State of Nevada; the finding of fact that it is not true that plaintiffs are now
residents of the City of Ely, County of White Pine, State of Nevada; and the finding of fact
that, as alleged in said cross-complaint, plaintiffs and cross-defendants (appellants) were
formerly residents of said county (White Pine), but for some years last past have resided
somewhere else in the State of Nevada.
In the judgment roll, there is nothing relating to the temporary absence of appellants from
the homestead by reason of Mr. McGill's employment in Reno and the attendance of their son
at the University of Nevada in that city. As the record stands, therefore, there is not only a
failure to even substantially comply with that provision of the statute requiring the
declaration of homestead to state that appellants were residing with their family on the
premises at the time of making said declaration, but also a failure to show that at said
time they were in fact residing on the premises; on the contrary, the record shows that at
said time they were not residents of White Pine County.
only a failure to even substantially comply with that provision of the statute requiring the
declaration of homestead to state that appellants were residing with their family on the
premises at the time of making said declaration, but also a failure to show that at said time
they were in fact residing on the premises; on the contrary, the record shows that at said time
they were not residents of White Pine County.
5. This court agrees with appellants that our constitutional and statutory provisions relating
to homesteads should be liberally construed, but the rule of liberal construction can be
applied only where there is a substantial compliance with those provisions
There is an article in vol. 26 of the California Law Review, pp. 241-250, which regards
some of the holdings of the California courts concerning homesteads as being too strict, but
the article recognizes that it is within the spirit of the law to require actual bona fide
residence at the time of filing the declaration.
The judgment and order appealed from are affirmed.
On Petition for Rehearing
November 10, 1941. 118 P.(2d) 702.
1. Homestead.
Under statute providing that no deed of conveyance or mortgage of a homestead
shall be valid unless both husband and wife execute and acknowledge the same as
provided by law for the conveyance of real estate, the quoted words do not include a
sheriff's deed made pursuant to sale on execution. Comp. Laws, sec. 3360.
Contentions not advanced on original hearing will not be considered on petition for
rehearing.
The findings of fact constitute a part of the judgment roll. Comp. Laws, sec. 8829.
Appeal from Seventh Judicial District Court, White Pine County; Wm. D. Hatton, Judge
Presiding.
Petition denied.
For former opinion, see 61 Nev. 34, 116 P.(2d) 581.
Gordon W. Rice, of Reno, for Appellants.
R. R. Gill, of Ely, for Respondent.
OPINION
In their petition for rehearing appellants stress the fact that the judgment in the promissory
note case was against the husband alone. This point was not urged in the briefs on appeal. It
may further be observed that in Lachman v. Walker, 15 Nev. 422, the judgment, as here, was
against the husband only.
1, 2. But appellants insist that the rule in Lachman v. Walker, supra, is no longer the law
of this state. We are referred to secs. 3360, 8844, and 9700 N. C. L. 1929, and sec. 112 of the
1941 act concerning the estates of deceased persons, Statutes of Nevada 1941, ch. 107, p.
186. With reference to said sec. 3360 N. C. L. it is sufficient to say that the words no deed of
conveyance used therein do not include in their meaning a sheriff's deed made pursuant to
sale on execution. The three other sections were not mentioned at all in the briefs on appeal.
Contentions not advanced on the original hearing will not be considered on petition for
rehearing.
In the foreword to the petition for rehearing it is stated that the decision of this court is
based on the failure of appellant's declaration of homestead to state that they were residing on
the premises with their family at the time it was filed. The fact is, as expressly stated in the
original opinion, that besides the failure of appellants to even substantially comply with one
of the provisions of sec. 3315 N. C. L. 1929, the record affirmatively shows that they were
not in fact residents of White Pine County when their declaration was filed.
If the record does not disclose the real truth in this regard, it is not, as we pointed out in our
previous opinion, the fault of this court.
3. Counsel cites two Nevada cases in support of his statement that findings of fact are no
part of the judgment roll. Such was the law when those cases were decided; but the statute
has been changed, and for many years last past it has been, and is now, the law of this state,
that the findings of fact constitute a part of the judgment roll. Section 8829 N. C. L. 1929;
Hartford Mining Co. v. Home Lumber & Coal Co., 61 Nev. 17, 107 P.(2d) 132, 133.
The petition for rehearing is denied.
____________
61 Nev. 42, 42 (1941) Underwriters, Inc. v. Dist. Ct.
INTERNATIONAL LIFE UNDERWRITERS, INC., a Corporation, M. A. OHLSON, R. G.
COLLISON, W. N. KINGSBURY and GEORGE E. McKERNON, Petitioners, v.
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and
for the County of WASHOE, THE HONORABLE WM. McKNIGHT, Judge,
Respondent.
No. 3335
May 26, 1941. 113 P.(2d) 616.
1. Courts.
In original prohibition proceeding, demurrer to petition and motion to strike out petition on ground that
petitioners had a remedy by appeal or intervention would be overruled, since appeal and intervention are
not always speedy and adequate, and a determination whether either or both remedies would be speedy or
adequate in particular case required more than an inspection of the complaint.
2. Courts.
In original prohibition proceeding, demurrer to petition admitted the allegation that directors' meeting at
which receivership proceeding were authorized was clandestine and without notice to petitioners, and
demurrer to petition and motion to strike it out would be overruled.
3. Corporations.
The district court has power to appoint a receiver for corporation under statute relating to the
appointment of receivers for the protection of a corporation with chance of being put on
a sound basis.
receivers for the protection of a corporation with chance of being put on a sound basis. Comp. Laws, sec.
1645.
4. Corporations.
Section 1645 of Compiled Laws provides for the appointment of receiver to take control of an ailing
corporation which has an excellent chance to be put on a sound basis, whereas section 1785 of the
Complied Laws relates to appointment of receiver for the winding up of a corporation past aid. Comp.
Laws, secs. 1645, 1785.
5. Insurance.
Petition for the appointment of a receiver of an ailing insurance company which contained allegations
that company had suspended its ordinary business for want of funds to carry it on, that business had been
and was being conducted at a great loss, greatly prejudicial to interests of creditors and stockholders, was
sufficient to show jurisdiction for appointment of a receiver and sufficiently evidenced that business could
not be conducted with safety to the public. Comp. Laws, sec. 1645.
6. Insurance.
Where court had jurisdiction of petition for appointment of receiver for insurance company, mere fact
that insurance company appeared and admitted allegations of complaint and consented to granting of relief
prayed did not invalidate appointment of receiver. Comp. Laws, sec. 1645.
7. Corporations.
Upon the appearance of a defendant corporation the court has jurisdiction of the subject matter and of the
parties.
8. Constitutional Law.
Appointment of receiver for ailing insurance company, upon appearance of insurance company and
consent to granting of relief asked, did not deprive insurance company or stockholders of property without
due process of law. Comp. Laws, sec. 1645; Const. Nev. art. 1, sec. 8; U.S.C.A. Const. Amend. 14.
9. Prohibition.
Courts are vested with discretion as to the issuance of a writ of prohibition and it will only issue in cases
of great necessity or urgency.
10. Probibition.
If the writ of prohibition would not be in furtherance of justice and there is no usurpation or abuse of
power, the court's discretion will be exercised against the issuance thereof.
Original Proceeding in prohibition by International Life Underwriters, Inc., M. A. Ohlson,
R. G. Collison, W. N. Kingsbury, and George E. McKernon, against Second Judicial District
Court of the State of Nevada in and for the County of Washoe, the Honorable William
McKnight, Judge, in which an alternative writ was issued and a return was filed.
in and for the County of Washoe, the Honorable William McKnight, Judge, in which an
alternative writ was issued and a return was filed. On respondent's demurrer to petition and
motion to strike out petition. Order in accordance with opinion. (Ducker, C.J., dissenting.)
Clarence M. Hawkins, of Auburn, Calif., and Geo. E. McKernon, of Reno, for Petitioners.
W. M. Kearney and Robert Taylor Adams, both of Reno, for Respondent.
OPINION
Petitioners ask for a writ of prohibition, and in their petition allege that of the 250,000
shares of common stock of the Pacific American Life Insurance Company there is issued and
outstanding approximately 94,000 shares; that the petitioners are the holders and owners of
approximately 40,000 shares of said stock; that because of the surreptitious, clandestine and
collusive seizure by the receiver of the said Pacific American Life Insurance Company, the
petitioners present the said petition as stockholders and in behalf of the corporation.
Petitioners allege that with the exception of nine directors, a large majority of the holders of
the outstanding stock are and were opposed to any receivership of said company; that the
board of directors of said company is composed of seventeen; that nine directors of said
company collusively, clandestinely, and without notice to petitioners caused to be prepared a
certain complaint naming themselves as plaintiffs along with other persons, and caused to be
prepared a purported answer to said complaint; that the said nine directors clandestinely and
collusively caused an attorney to be delegated and appointed secretly to appear in a certain
action tried in the Second judicial district court of the State of Nevada, as attorney for the
Pacific American Life Insurance Company and to admit the allegations of the said
complaint and to consent to the appointment of a receiver; that said nine directors
directed and authorized the said especially selected attorney to sign said answer, and that
said attorney did, in following said instructions and not otherwise, sign same.
a certain action tried in the Second judicial district court of the State of Nevada, as attorney
for the Pacific American Life Insurance Company and to admit the allegations of the said
complaint and to consent to the appointment of a receiver; that said nine directors directed
and authorized the said especially selected attorney to sign said answer, and that said attorney
did, in following said instructions and not otherwise, sign same. It is alleged that the
petitioners had no knowledge of the acts of the said nine directors, nor any notice thereof; that
after the said complaint and said answer were prepared, without notice in any respect to the
other eight directors, the said nine directors heretofore referred to, on Saturday, February 1,
1941, caused said complaint and answer to be filed in the office of the county clerk of
Washoe County, Nevada. Petitioners further allege that promptly after the filing of said
complaint and answer, without notice and without the service of summons on any person
whomsoever, the said complaint and answer were presented to the judge of department 1 of
said Second judicial district court, and thereupon, at once and without any hearing or taking
of evidence, said judge granted a motion for the appointment of a receiver of said Pacific
American Life Insurance Company; that the said receiver, after qualifying under the terms
and conditions of said order and after taking possession and control of the properties and
affairs of the said Pacific American Life Insurance Company, seized and entered into the
control of the said Pacific American Life Insurance Company, and threatens to and will
remain in control of same for said court, unless said court is restrained from the alleged
wrongful and illegal proceedings.
An alternative writ was issued February 13, 1941. A return was filed February 27, 1941.
1. Respondent has filed a demurrer to the petition, also a motion to strike. First, it is urged
that the demurrer and motion should be upheld because it appears on the face of the petition
that petitioners have a remedy by appeal or intervention.
appears on the face of the petition that petitioners have a remedy by appeal or intervention.
Appeal and intervention are not always speedy or adequate. A determination as to whether
either or both remedies would be speedy or adequate in this case requires more than a mere
inspection of the complaint.
2. The second ground of demurrer is the petition does not state facts sufficient to warrant
the relief asked. Exhibit A attached to the answer contains a copy of the minutes, from
which it is ascertained that the meeting of the directors at the time the decision was reached to
ask for a receiver and to authorize an attorney to appear for the corporation was a regular
meeting, of which it is presumed all directors would have notice. It is necessary to go to the
return to learn these facts. Paragraph V of the petition, on page 3, alleges that nine directors,
collusively, clandestinely, and without notice to petitioners, held a meeting. The demurrer
admits the allegations of the petition as to the clandestine and secret character of the meeting,
which, if true, would nullify the proceedings instituted for the appointment of a receiver, and
also render null and void other business transacted at such meeting. For this reason, the
demurrer on the ground that the petition does not state sufficient facts is overruled. The same
reasoning applies to the motion to strike, and said motion is denied.
In support of the issuance of the permanent writ the petitioners present the following
points: (1) That the power and jurisdiction of the district court to appoint the receiver
mentioned in the petition must be found in the statute, because a court of equity is without
jurisdiction to appoint a receiver to wind up the affairs of a corporation and dissolve it; (2)
there is no statute in the State of Nevada which empowers a district court to appoint a
receiver for a corporation without a hearing; (3) there is no substantial or essential difference
between sections 1645 and 1646 N. C. L. and sections 1785 and 1786 N. C. L. under
consideration in the case of Golden v. District Court, 31 Nev. 250
the case of Golden v. District Court, 31 Nev. 250, 101 P. 1021; (4) that the complaint filed in
the district court and attached as exhibit A to the petition does not constitute a cause of
action within the jurisdiction of the district court, because: (a) there is no provision or statute
recognizing a receiver by consent; (b) there is no allegation upon which to base any relief
other than a receiver, relief incidental to receivership and dissolution, and this is insufficient
to constitute a cause of action within jurisdiction; (5) the exhibit A, being the complaint
filed in the district court, shows upon its face that the purpose of the proceeding was to secure
employment for the receiver and to hinder and delay creditors, and that such showing renders
the entire proceeding illegal; (6) that to admit to the statute the operation necessary to sustain
the jurisdiction of the district court in the instant action is to place the statute in contravention
of amendment XIV to the federal constitution and in contravention of article I, section 8, of
the Constitution of Nevada, and to take property without due process.
In the determination of the merits of the petition we are concerned with the sole question:
Did the district court have jurisdiction to make the order complained of? We will dispose of
the questions involved in the order presented by petitioners and hereinabove set out.
3, 4. Courts are reluctant, in the absence of statutory authority, to assume they have
jurisdiction to dissolve corporations; but it is admitted that the legislature may confer such
jurisdiction, and in this state such power is given in section 1648 N. C. L. The suit in the
district court of which petitioners complain was instituted under section 1645 N. C. L. and
not under section 1786 N. C. L.; and it is equally apparent the action was not instituted under
section 8749 N. C. L. In the suit in the the district court upon which these proceedings are
based, the dissolution of the corporation is not asked, unless the court shall so order after
determining that the affairs of said corporation cannot be put in shape for the return to it
of the assets and property taken over by the receiver.
that the affairs of said corporation cannot be put in shape for the return to it of the assets and
property taken over by the receiver. Petitioners profess to see no difference between section
1645 and related sections and section 1786 and its related sections. It seems to us that the
difference in the authority granted and procedure permitted is both apparent and real. In
section 1645 provision is made to permit a receiver to take control of a sick and ailing
corporation whose malady is yet in a state where, by careful handling, such corporation has an
excellent chance to shake off the malady and convalesce into a sound and going institution, in
which event its management and property can be handed back to its directors and
stockholders. When the provisions of section 1785 are invoked, it is recognized by those
asking the protection of its procedure that the malady afflicting the corporation has
progressed to a point where it is hopeless, and the only remaining thing to do is to take
advantage of the statute providing for such a corporation's demise, wind up its affairs and take
care of the stockholders and creditors to the extent that the assets will permit. In assailing the
procedure adopted and the action taken by the district court herein, the petitioners rely upon
the cases of Hettel v. District Court, 30 Nev. 382, 96 P. 1062, 133 Am. St. Rep. 730; Golden
v. District Court, 31 Nev. 250, 101 P. 1021; and State ex rel. Nenzel v. District Court, 49
Nev. 145, 241 P. 317, 43 A. L. R. 1331.
The Hettel and Golden cases, above referred to, were instituted under the provisions of
section 1786 N. C. L., and the Nenzel case was instituted under section 8749 N. C. L. The
procedure provided by section 1645 N. C. L. was not in the statute at the time of the decisions
in the Hettel and Golden cases. In the Hettel case dissolution was ordered on an ex parte
hearing. In the Golden case there was no appearance by the corporation, such as in the case in
the district court which we are now considering. A citation was issued in the Golden case to
forthwith show cause why the corporation should not be dissolved, and this court
stressed the point that there was dissolution without notice, and also held that the
directors were necessary parties under section 17S6, chiefly because they had a
preferential right to be appointed receivers.
Golden case to forthwith show cause why the corporation should not be dissolved, and this
court stressed the point that there was dissolution without notice, and also held that the
directors were necessary parties under section 1786, chiefly because they had a preferential
right to be appointed receivers. There is no such preferment given by section 1645, and that
necessity for making the directors parties is not present. We see no jurisdictional requirement
to make any other parties defendants or to give notice, in the absence of a statutory provision
such as appears in section 1786. The action which the court, in the Hettel and Golden cases,
criticized most strongly was the forthwith dissolution of a corporation without notice. In the
Nenzel case the court was considering the procedure outlined in section 5193 (now section
8749 N. C. L.), and refers to the French Bank Case, 53 Cal. 495, construing a California
statute nearly identical with section 5193. The Nenzel and French Bank and other cases cited
by counsel for petitioners state that under section 5193 and similar statutes there must be an
action pending before a receiver can be appointed. We do not think that has any relevancy to
cases brought under our statute, section 1645 N. C. L.
We will dispose of point (2) made by petitioners by stating that we think the return
discloses that there was a hearing and facts presented to the court before a receiver was
appointed.
We have taken care of point (3) in pointing out what appears to us as a substantial
difference between sections 1645 and 1646 N. C. L. and sections 1785 and 1786 N. C. L.
5. Under point (4) the petitioners contend that the complaint in the district court does not
state facts sufficient to constitute a cause of action. A comparison of the allegations of the
complaint with the statute convinces us that the allegations are of the kind and character
which the statute states are sufficient to justify the relief asked.
the relief asked. Section 1645 N. C. L. provides for relief when a corporation shall suspend
its ordinary business for want of funds to carry on the same. We find such an allegation in
paragraph two on page 4 of the complaint. Further, section 1645 provides for relief if its
business [speaking of a corporation] has been and is being conducted at a great loss and
greatly prejudicial to the interest of its creditors or stockholders. We find such an allegation
in paragraph 2 on page 4 of the complaint. Petitioners complain that the allegations of the
complaint referred to supra are but the conclusions of the plaintiffs in the lower court. We
think they are sufficient insofar as the jurisdictional question is concerned. If more
information is desired, same may be had by proper procedure in said court. Section 1645
makes the following provision relative to the issuance of an injunction, viz: If * * * it shall
appear to said court that the corporation has become insolvent and is not about to resume its
business in a short time thereafter, or that its business has been and is being conducted at a
great loss and greatly prejudicial to the interests of its creditors or stockholders so that its
business cannot be conducted with safety to the public. It is petitioner's position that it is the
safety of the public and not creditors or stockholders with which section 1645 is concerned.
Assuming such to be the correct construction, we find in this case a question of real concern
to the public. This corporation is an insurance company; its principal business is selling
insurance policies; the affairs of the corporation having been represented to the court as being
in a condition bordering on collapse, it was the court's duty to take steps to insure the public
against the possible purchase of policies of insurance until the soundness of the financial
structure of the corporation could be ascertained. Injunctive relief against the officers and
agents of the corporation is the protection prescribed. People's Bonded Trustee v. Wight, 72
Utah 587, 272 P. 200; Childress v. Fox Mining Co.,
Childress v. Fox Mining Co., 130 Kan. 402, 286 P. 262, 263; Nelson v. United Elevators Co.,
115 Kan. 567, 223 P. 814; In re Lewis, 52 Kan. 660, 35 P. 287.
6. Under point (4) the contention is that the law does not recognize a receiver by consent.
We do not believe that such was the procedure had. The defendant corporation merely
appeared and admitted the allegations of the complaint and consented that the relief prayed be
granted. The decision as to whether under the circumstances and the facts presented the
appointment of a receiver was authorized remained for the court, and the authorities presented
by petitioners, in order to control here, would have to be enlarged from a holding that
jurisdiction cannot be conferred by consent to the point of holding that a defendant would not
be permitted to admit the allegations of a complaint or consent that the relief asked for be
granted. If the court had jurisdiction, we cannot see wherein a party defendant can be
precluded from making admissions as to the truth of the charges and consent to the granting
of the relief asked. In re Paramount-Publix Corp., D. C., 10 F. Supp. 504; Atwater v.
Community Fuel Corp., D. C., 291 F. 686; Davis v. Consolidated Gold Co., 41 Wash. 480, 84
P. 22; State ex rel. Crawford v. Almeda Con. M. Co., 115 Or. 373, 237 P. 3; Lincoln Printing
Co. v. Middle West Utilities Co., 7 Cir. 74 F. (2d) 779. See, also, Irving Nat. Bank v. District
Court, 47 Nev. 86, 217 P. 962.
7. The following cases hold that upon the appearance of a defendant corporation the court
has jurisdiction of the subject matter and of the parties: Riant Amusement Co. v. Bailey, 80
Colo. 65, 249 P. 7; State v. Tidball, 35 Wyo. 496, 252 P. 499; Draper v. J. G. Robison
Lettuce Farms, 164 Wash. 8, 2 P.(2d) 661.
Point (5) raises the question of collusion, and an examination of the cases heretofore cited
will demonstrate that the mere fact that a corporation appears and consents to the
appointment of a receiver is not of itself sufficient to sustain such a charge, and more has
not been shown by petitioners.
itself sufficient to sustain such a charge, and more has not been shown by petitioners.
8. As to point (6), we do not think that there is anything shown that has been done or is to
be done which will deprive the corporation or stockholders of property without due process.
9. Courts are vested with discretion as to the issuance of a writ of prohibition, and it will
only issue in cases of great necessity or urgency. Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9
L. R. A. 59, 37 Am. St. Rep. 478; Evershaw v. Moran, 57 Nev. 417, 65 P.(2d) 877; Arascada
v. District Court, 44 Nev. 37, 189 P. 621.
10. If the writ would not be in furtherance of justice and there is no usurpation or abuse of
power, the court's discretion will be exercised against the issuance thereof. Walcott v. Wells,
supra; Turner v. Langan, 29 Nev. 281, 88 P. 1088; Metcalfe v. District Court, 51 Nev. 253,
274 P. 5; Ellison Ranching Co. v. Bartlett, 53 Nev. 420, 3 P.(2d) 151.
Petitioners, of course, are familiar with and recognize this rule, but insist there is no
jurisdiction in the lower court, as before stated. With this contention we are not in accord.
We cannot see wherein the issuance of the writ here would be in the furtherance of justice.
Under the careful guidance of the court it is entirely probable that the affairs of the
corporation may be so straightened out as to react to the benefit of all concerned. It seems
apparent, from an inspection of the parties plaintiff in the lower court, that many who
advanced funds for the use of the corporation see in a receivership the only hope of making
some recoupment.
Petition denied.
Taber, J., I concur.
Ducker, C.J., I dissent.
July 30, 1941. 115 P.(2d) 932.
1. Courts.
Petitioners in original prohibition proceedings to prevent district court from
proceeding in matters respecting the appointment of a receiver for an insurance
company could not complain that answer filed in district court was not verified as
required by law, where plaintiffs in district court case were the only parties who could
object to lack of verification, and plaintiffs waived the verification.
2. Courts.
A return to an order to show cause issued out of the supreme court need not be a
formal pleading in nature of an answer.
3. Insurance.
The statute relating to insurance and providing for the regulation of insurance
companies and the manner in which such companies may operate is not retroactive and
does not affect cases commenced prior to its passage. Stats. 1941, c. 189, sec. 157.
Ducker, C. J., dissenting on rehearing.
For former opinion, see 61 Nev. 42, 113 P.(2d) 616.
Clarence M. Hawkins, of Auburn, Calif., and Geo. E. McKernon, of Reno, for Petitioners.
W. M. Kearney and Robert Taylor Adams, both of Reno, for Respondent.
OPINION
We find in the petition for rehearing three propositions not discussed in our original
opinion. Said propositions and our answers thereto follow:
FirstThat the answer in case No. 66620, filed in the district court, was not verified as
required by law.
1. The plaintiffs in that case were the only parties in a position to object, and they not only
failed to object but waived the verification.
SecondPetitioners complain that the return to the order to show cause issued out of this
court was not in proper form, in that it was not signed by the judge of the court to whom it
was directed, and, further, that it was not verified.
2. We think that a complete answer to this point is that a return need not be a formal
pleading in the nature of an answer. State v. Streshley, 46 Nev. 199, 209 P. 712.
ThirdPetitioners assert that the new insurance statute (Stats. 1941, c. 189, p. 451 et seq.)
deprived the district court of jurisdiction in this matter.
3. This statute is not retroactive and does not affect cases commenced prior to its passage.
Virden v. Smith, 46 Nev. 208, 210 P. 129. Further, section 157 of said act makes such an
express exemption; it reads: No action or proceeding commenced before this act takes effect
and no right accrued is affected by the provisions of this act, but all procedure thereafter taken
therein shall conform to the provisions of this act so far as possible.
As to the other matters presented in the petition, we are satisfied with what we said in
relation thereto in the former opinion.
The petition for rehearing is denied.
Taber, J., I concur.
Ducker, C.J., I dissent.
____________
61 Nev. 55, 55 (1941) Cooke v. Gove
H. R. COOKE, Appellant, v. GEORGE GOVE, as Administrator
of the Estate of F. W. Holbert, Deceased, Respondent.
No. 3325
June 5, 1941. 114 P.(2d) 87.
1. Attorney and Client.
Where nothing whatever was said, either by client or attorney, about compensation to be paid attorney for
his services, there was no contract for a contingent fee, and, therefore, the attorney was entitled to recover
only reasonable value of his services.
Where attorney was entitled to recover only reasonable value of his services because there was no
contract for a contingent fee, refusal of trial court to consider belief of attorney, who thought that client was
wholly without means to pay him except from proceeds of the litigation, that any remuneration would
depend upon the success of the litigation was proper.
The reasonable value of attorney's services is not augmented by the fact that they were to be performed
gratuitously if not successful.
In fixing compensation for services rendered by attorney who successfully represented client in an action
to quiet title growing out of the client's alleged right to redeem his ranch property which had been sold for
nonpayment of taxes, the salvage theory was not applicable. Stats. 1933, c. 171.
Judgment awarding $2,650 as attorney's fee for services rendered by attorney in successfully representing
client in an action to quiet title growing out of client's alleged right to redeem his ranch property which had
been sold for nonpayment of taxes was proper. Stats. 1933, c. 171.
Appeal from Sixth Judicial District Court, Humboldt County; L. O. Hawkins, Judge.
Action by H. R. Cooke against George Gove, as administrator of the estate of F. W.
Holbert, deceased, for compensation for legal services and for reimbursement for expenses
and disbursements. From the judgment, plaintiff appeals. Affirmed.
61 Nev. 55, 56 (1941) Cooke v. Gove
J. A. Langwith, of Winnemucca, and H. R. Cooke, of Reno, in pro. per., for Appellant.
Thomas J. Salter, of Winnemucca, and Anthony M. Turano, of Reno, for Respondent.
OPINION
Between April 8, 1933, and December 16, 1937, appellant (plaintiff), an attorney residing
and practicing at Reno, in Washoe County, performed legal services for F. W. Holbert, of
Humboldt County, at the latter's special instance and request. The services consisted in
preparing for and acting as Holbert's attorney at the trial of the case of Stock v. Holbert, an
action to quiet title growing out of Holbert's alleged right to redeem his Humboldt County
ranching property, which had been sold for nonpayment of taxes. Judgment was given in
favor of Holbert, who recovered the property after paying $6,657.26 for past-due taxes,
interest, and penalties.
Holbert died December 16, 1937, and defendant was appointed and qualified as
administrator of his estate. Plaintiff filed a claim against the estate for $5,994.60, being
$119.60 for expenses and disbursements, and $6,025 for attorney's fees, less $150 paid before
Mr. Holbert's death. Following the itemized list of legal services, expenses, and
disbursements, a notation was appended to the claim reading, in part, as follows: And as
Holbert represented throughout (and which claimant believed) that if he lost the ranch, he
would have absolutely nothing left, the employment as to compensation was essentially one
contingent upon saving the ranch. There was no agreement as to amount of attorney's fees, or
how to be paid,the subject was not even mentioned. Claimant's own idea was to save the
ranch for Mr. Holbert if possible, and if successful, claimant felt Holbert would be fair as to
compensation, just as he always had been in a number of suits, etc., over a period of
twelve to fifteen years previous.
61 Nev. 55, 57 (1941) Cooke v. Gove
would be fair as to compensation, just as he always had been in a number of suits, etc., over a
period of twelve to fifteen years previous. If unsuccessful, claimant did not, for the reasons
above, expect to receive any compensation.
The claim was allowed by the administrator in the sum of $2,119.60, being $119.60 for
expenses and disbursements and $2,000 for attorney's fees; it was rejected as to the balance.
Plaintiff (appellant) then commenced an action against defendant (respondent), praying
judgment in the amount of his claim, to wit, $5,994.60. In his answer, defendant admitted that
plaintiff performed legal services for Holbert between the dates alleged in the complaint, but
denied that plaintiff's services were of the reasonable value of more than $1,500, of which
$150 had been paid before Mr. Holbert's death. The case was tried by the court, without a
jury, and judgment awarded to plaintiff in the sum of $2,619.60, being expenses and
disbursements in the sum of $119.60 and attorney's fee in the sum of $2,650, less $150 paid
as aforesaid. From that judgment plaintiff has taken this appeal.
The evidence offered and admitted by and on behalf of plaintiff consisted chiefly of the
file in the Stock v. Holbert case (about 350 typewritten pages), nearly 50 letters and postals
from Mr. Holbert to plaintiff, and the depositions of two Reno attorneys who testified
concerning the value of plaintiff's services.
The main question in this case arises from appellant's contention that the trial court erred
in refusing to award compensation to plaintiff on the basis that such compensation was
contingent upon recovering the ranch property. In this connection we refer, without repeating
it, to the statement made by plaintiff in his claim filed against the Holbert estate. In addition
to this, the attorney-general of Nevada testified that Mr. Holbert, in the presence of plaintiff
and himself, stated that the ranch property involved in the tax matter was the only property
he owned and that unless he got the property back he would be "on the county."
61 Nev. 55, 58 (1941) Cooke v. Gove
property he owned and that unless he got the property back he would be on the county. As a
matter of fact Holbert, at the time of his death and for some time prior thereto, had between
nine and ten thousand dollars in addition to the ranch property. At the trial of this case in the
lower court plaintiff informed the court that he learned of this at Mr. Holbert's funeral, after
all his services had been performed. In support of his representation to the court that up to the
time of the funeral he believed that Holbert had no other assets besides the ranching property,
plaintiff points to the admitted fact that he advanced costs, expenses, etc., for Holbert in the
suit, aggregating $119.60.
1. The trial court's holding was that even if plaintiff believed his remuneration dependent
on the success of the Stock litigation, such belief was not entitled to any consideration in
determining the amount of the fee. The record shows, and it is undisputed, that nothing
whatever was said, either by Holbert or plaintiff, about the compensation to be paid the latter
for his services. It is clear that there was no contract for a contingent fee. Ellis v. Woodburn,
89 Cal. 129, 131, 26 P. 963. Plaintiff, therefore, was entitled to recover only the reasonable
value of his services. Shackleford v. Arkansas Baptist College, 181 Ark. 363, 26 S. W.(2d)
124.
Appellant admits that his cause of action is based upon the reasonable value of his
services; but it is his contention that in fixing such value the trial court, contrary to law,
refused to consider, along with other circumstances, the fact that his only hope of
remuneration depended upon the success of his efforts in recovering the ranching premises
for Mr. Holbert. He argues that it is the fact of contingency which should control, rather than
the precise method of its creation, or the presence or absence of any agreement for a
contingent fee; and that the fact of contingency is as well established where the attorney
knows that his client is wholly without means to pay him except from the proceeds of the
litigation, as where there is an express contract that the fee shall be contingent.
61 Nev. 55, 59 (1941) Cooke v. Gove
shall be contingent. Appellant cites Epp v. Hinton, 102 Kan. 435, 170 P. 987. In that case no
agreement was made as to the amount of the fee, but there was an agreement that no
compensation was to be paid except on the contingency of the success of the litigation.
2, 3. The refusal of the district court to consider appellant's belief that any remuneration
would depend upon the success of the litigation was, in the opinion of this court, correct. To
hold otherwise would in effect be adding a provision to the contract of employment which the
parties themselves, both competent to contract, and between whom the relation of attorney
and client had existed for some twelve or fifteen years, did not see fit to incorporate in it.
This, we think, the court cannot do. Crumlish's Adm'r. v. Shenandoah Valley R. Co., 40 W.
Va. 627, 22 S.E. 90; 7 C.J.S., Attorney and Client, sec. 186, p. 1063, note 40. The reasonable
value of the services is not augmented by the fact that they were to be performed gratuitously
if not successful. In re Duffill's Estate, 188 Cal. 536, 206 P. 42; Walbridge v. Barrett, 118
Mich. 433, 76 N. W. 973. In Robbins v. Harvey, 5 Conn. 335, plaintiff attorney, without any
agreement as to the amount of compensation which he should receive, undertook, at the
request of client defendant, to investigate her claim, with no other prospect of remuneration
for his services than what he might receive from the estate expected to be recovered. The
supreme court held that these facts had no bearing on the question as to the worth of the
service rendered, and that the value of the services could not be affected by the poverty of the
defendant.
Appellant places much reliance upon three bankruptcy cases, In re Osofsky, D.C., 50
F.(2d) 925, In re Barceloux, D.C., 9 F. Supp. 146, and in re Barceloux, 9 Cir., 74 F.(2d) 288,
289. In the Osofsky case [50 F.(2d) 927], Judge Woolsey, after mentioning six elements
properly to be considered when the fees of an attorney have not been agreed on beforehand,
went on to say: In bankruptcy cases, however, there seems to me to be another element
which has to be considered.
61 Nev. 55, 60 (1941) Cooke v. Gove
another element which has to be considered. That is the fact that in bankruptcy very often
futile quests for assets have to be made. Many times, however much ingenuity and time
attorneys may expend, they may not be able to get anything for the estate by their efforts. It is
then a question, as in salvage at sea, of no cure, no pay. When the efforts of attorneys cause a
material increase in the bankruptcy estate, or, as here, create it, they should be well rewarded;
otherwise there will not be any incentive to attorneys to put forth their best efforts in cases
which appear unpromising. It thus appears that a special rule now applies in bankruptcy
cases, and that it was followed in the two Barceloux cases, supra.
Appellant takes the position that he saved the ranching properties for Mr. Holbert, and that
the trial court should, therefore, have fixed a larger fee than $2,650 on the same theory that
the courts in the bankruptcy cases made extra allowances because the attorneys, through
special efforts, succeeded in materially and substantially increasing the assets of the
bankruptcy estates. Briefly, the situation in the case of Stock v. Holbert was this: Holbert
having failed to pay taxes in 1932, the property was conveyed by tax deed to the county
treasurer and ex officio tax collector as trustee; thereafter, and before the property was sold at
tax sale, Holbert offered to pay all the delinquent taxes, together with penalties, interest and
costs, in an attempt to comply with the 1933 act for the compromise and settlement of claims
for delinquent taxes. Stats. of Nevada 1933, chap. 171, p. 235. He laid the facts and his offer
before the county commissioners, district attorney, and attorney-general and the offer would
have been accepted had not Stock protested and threatened litigation. By reason of his hostile
intervention, however, the district attorney and county commissioners refused to accept the
offer, and the property was sold at tax sale to Stock. Holbert refused to give up possession,
whereupon Stock opened the gates, ran his livestock upon the property, and finally brought
suit to quiet title, recover possession, and for damages.
61 Nev. 55, 61 (1941) Cooke v. Gove
property, and finally brought suit to quiet title, recover possession, and for damages. The
court held that Holbert's offer should have been accepted, and he was awarded the property
upon payment of the delinquent taxes, penalties, interest and costs.
4. Said case of Stock v. Holbert, in which appellant performed the services for which
compensation is here sought on a quantum meruit, does not, in our opinion, belong in the
same category as those cases where, through the efforts of the attorney, the estate has been
created, or its assets materially or substantially increased; nor do we think that the salvage
theory is applicable in such a case. Irwin v. Swinney, D.C. 45 F.(2d) 890, 896. And see In re
Owl Drug Co., D.C. 16 F. Supp. 139, 142, 143.
5. The record in the case at bar shows affirmatively that the trial court determined the
reasonable value of plaintiff's services from all the facts and circumstances in evidence in
the Stock case; that said court took into consideration the work, thought and skill
contributed by plaintiff to the success of defendant's contention in that case; and that all the
elements or factors enumerated on page 1081 of 7 C.J.S., Attorney and Client, sec. 191,
likewise received the court's consideration.
Appellant assigns as error the ruling of the trial court excluding from evidence certain
carbon copies of letters written by plaintiff to Holbert, and further contends that said court
practically disregarded the testimony of the expert witnesses. This court does not feel called
on to discuss these matters, for the reason that in appellant's closing argument, while urging
his contention that the uncertainty of his remuneration should have been weighted by the trial
court and given consideration in fixing the amount of the fee, he said: And that is why I
complain of Judge Hawkins' decision. If this had been an ordinary case and Holbert had said:
I will pay you cash. I have the cash to pay it. Send in your bill,' $2,500.00 may not have been
out of the way. Coming from appellent, this court regards said statement tantamount to an
admission on his part that the compensation fixed by the district court was reasonable
unless he was entitled to have it determined on a contingent basis.
61 Nev. 55, 62 (1941) Cooke v. Gove
statement tantamount to an admission on his part that the compensation fixed by the district
court was reasonable unless he was entitled to have it determined on a contingent basis. If we
were of the opinion that the fee should be fixed on such basis, it would then be proper to
consider the other assignments of error.
Judgment affirmed.
____________
61 Nev. 62, 62 (1941) Mitrovich v. Pavlovich
CHRIS MITROVICH, Appellant v. STEVE PAVLOVICH, Respondent
No. 3320
July 1, 1941. 114 P.(2d)1084.
1. Automobiles.
In automobile guest's action for personal injuries sustained in accident, substantial evidence supported
finding that guest was injured while riding in defendant's automobile upon highway in State of California as
a guest accepting a ride in the automobile without giving compensation for the ride. Vehicle Code Calif.
sec. 403, Stats. 1935, p. 154.
2. Automobiles.
In automobile guest's action for injuries sustained while riding in defendant's automobile on highway in
State of California, the fact that the defendant driver did not have and had not applied for driver's license
was immaterial.
3. Automobiles.
In automobile guest's action for injuries sustained in automobile accident on highway of California,
evidence sustained finding that defendant knew that there was risk in driving the automobile with his lack
of experience, and that it was dangerous for him to do so, but that he did not do so with appreciation of the
fact that injury to his guest would be probable result thereof, and that he did not drive the automobile with
a wanton and reckless disregard of its probable result or with a positive, active and absolute disregard of
the possible consequences. Vehicle Code Calif., sec. 403, Stats. 1935, p. 154.
4. Automobiles.
In guest's action for injuries sustained in automobile accident in California, question whether defendant
driver was guilty of willful misconduct was required to be determined from a consideration of the facts in
the light of the California law. Vehicle Code Calif., sec. 403, Stats. 1935, p. 154.
5. Automobiles.
Willful misconduct within California statute providing in part that no person who as guest accepts a
ride in vehicle has any right of action for civil damages against the driver unless the plaintiff establishes
that the injury proximately resulted from willful misconduct of driver, involves deliberate, intentional
conduct in doing or omitting to perform an act either with knowledge on the part of the culpable person
that it is likely to result in serious injury or with a wanton and reckless disregard of the probable
consequences. Vehicle Code Calif., sec. 403, Stats. 1935, p. 154.
6. Automobiles.
Where automobile host had driven automobile on two prior occasions and had driven some miles just
prior to accident on California highway, and he was driving in the daytime at a speed of 50 miles per hour
on straight paved highway under favorable weather conditions and visibility was not restricted by
approaching automobiles or otherwise, the host was not guilty of willful misconduct within California
statute and was not liable for injury sustained by guest when automobile left highway and crashed into a
fence. Vehicle Code Calif., sec. 403, Stats. 1935, p. 154.
Appeal from Second Judicial District Court, Washoe County; Edgar Eather, Judge
Presiding.
Personal injury action by Chris Mitrovich against Steve Pavlovich. From an adverse
judgment and from an order denying a motion for new trial, plaintiff appeals. Affirmed.
William M. Kearney and Robert Taylor Adams, both of Reno, for Appellant.
Harland L. Heward, of Reno, for Respondent.
OPINION
This is an action for damages for injuries received in an automobile accident, which
automobile was owned and operated by respondent and in which appellant was riding as a
guest at the time of the accident.
riding as a guest at the time of the accident. The complaint charges respondent with being
guilty of willful misconduct. The action was tried by the court without a jury, and the trial
resulted in a judgment that appellant take nothing by his complaint. His appeal is from the
judgment and order denying his motion for a new trial. The court found as follows:
(1) On April 6, 1939, Chris Mitrovich, the plaintiff, and Sam Armanko and Daisy Midzor
accompanied the defendant as his guest in his twelve-cylinder Lincoln Zephyr automobile on
a pleasure trip from Reno, Nevada, to Susanville, California, to visit a mutual friend. The
defendant and Daisy Midzor sat in front seat and the plaintiff and Sam Armanko sat in the
rear seat. Daisy Midzor drove the car from Reno to a point in California some distance
beyond the state line, when the defendant took the wheel. The change of drivers was made at
the request of defendant. Defendant's experience in the operation of an automobile consisted
in his having previously driven his car on two occasions from his home at 1019 Riverside
Drive to the Grand Central Garage, a distance of approximately one mile, at a speed of not
over twenty-five miles. The defendant had never before driven any car on the public highway,
nor had he ever applied for a driver's license. At the time of taking the wheel the defendant
did not advise the plaintiff that he was an inexperienced driver.
(2) The defendant drove the car a few miles, the exact number not being definitely shown,
at a speed of approximately fifty miles per hour, without any objection or protest from the
plaintiff or either of the other guests. Suddenly the right wheels of the car ran off the paved
surface of the highway, the car skidded along the right shoulder for a short distance, then in a
diagonal direction across the pavement and along the left shoulder for a short distance, and
then left the highway and crashed into a fence, tearing loose some five posts, situated eight or
ten feet apart.
(3) The accident happened about 10:30 o'clock in the morning on a clear day, about two
miles south of Doyle, in Lassen County, California. The highway at the place of the accident
was level and straight for a considerable distance each way, and was perfectly dry. No cars, or
other obstructions of any kind interfered with the vision of the driver. At the time of taking
the wheel the defendant knew that there was risk in driving the car with his lack of
experience, and that it was dangerous for him to do so, in the sense that there is always the
possibility of an accident, but he did not think about that phase of the matter. He believed that
he could control the car, and he wanted to learn to drive. He intentionally took the wheel and
drove the car, and he did not do so with knowledge or appreciation of the fact that danger was
likely to result therefrom or that injury to his guests would be a probable result thereof. He
did not drive the car with a wanton or reckless disregard to its possible result, or with a
positive, active, and absolute disregard of its possible consequences. The driving of the car
was not done under such circumstances as would justify the reasonable inference that he
should have known that injury to his guests was a possible result. The defendant never
thought that the car would get out of his control, or that an accident would happen, or that
anyone would get hurt. The defendant exercised his best skill and judgment in driving the car
and in attempting to get it back on the paved highway after the wheels ran off, and did
everything within his power to avoid an accident.
Findings 4 and 5 set out the extent of the injuries sustained, the expenses resulting
therefrom, and that section 403 of the Vehicle Code of the State of California was in full
force, virtue, and effect during all of 1939 and 1940 to date.
(6) That at the time plaintiff was injured, he was riding in the defendant's motor car upon a
highway in the State of California as a guest accepting a ride in said vehicle without giving
compensation for such ride.
said vehicle without giving compensation for such ride.
1. The findings are supported by substantial evidence and our opinion, therefore, will be
predicated upon them.
2. The facts that he did not have and had not applied for a driver's license were immaterial.
3. Appellant makes much of some testimony elicited from respondent on
cross-examination as indicating knowledge of danger from his inexperience in driving so fast,
and a reckless disregard of the probable consequences, but we think the testimony taken in its
entirety supports the findings of the trial court.
The question presented is whether respondent was guilty of willful misconduct
proximately causing appellant's injuries.
Appellant's contention is that respondent's inexperience in driving an automobile, plus the
speed of the vehicle at the time of the accident, amounted to willful misconduct within the
meaning of section 403, supra. The section reads: No person who as a guest accepts a ride in
any vehicle upon a highway without giving compensation for such ride, nor any other person,
has any right of action for civil damages against the driver of such vehicle or against any
other person legally liable for the conduct of such driver on account of personal injury to or
the death of such guest during such ride, unless the plaintiff in any such action establishes
that such injury or death proximately resulted from the intoxication or willful misconduct of
said driver. Stats. Calif. 1935, p. 154.
4, 5. As the accident occurred in California we must reach a decision from a consideration
of the facts in the light of California law. The above statute has been construed a number of
times by the California courts. The accepted definition of willful misconduct as found therein,
we believe, is that it necessarily involves deliberate intentional conduct in doing or omitting
to perform an act either with knowledge on the part of the culpable person that it is likely to
result in serious injury or with a wanton and reckless disregard of the probable
consequences.
injury or with a wanton and reckless disregard of the probable consequences. Porter v.
Hofman, 12 Calif.(2d) 445, 85 P.(2d) 447.
6. The application of the rule as thus established creates no difficulty, for it is clear that the
facts of this case do not bring it within the rule. The respondent was not an experienced
driver, yet he was not without some experience, little it is true, in handling an automobile. He
had driven it in the city of Reno twice and in addition had driven some miles just prior to the
accident. It may be said he was learning to drive. He was driving it in the daytime at a speed
of fifty miles per hour on a straight paved highway under favorable weather conditions.
Visibility was not restricted by approaching automobiles or otherwise. It is obvious that
respondent in driving the car had no intent to injure himself or friends. We are decidedly of
the opinion also that the facts as found by the trial court show no wanton or reckless disregard
of the probable consequences of his unskillful driving. Our attention is called to the fact that
respondent was exceeding the speed limit of forty-five miles an hour. This in itself does not
constitute willful misconduct. Del Bosque v. Kakoo Singh, 19 Calif. App.(2d) 487, 65 P.(2d)
951; Rhoads v. Studley, 15 Calif. App.(2d) 726, 59 P.(2d) 1082. In the latter case the court
said: Excessive speed in the operation of a vehicle, unless coupled with other evidence from
which an inference might be drawn that the driver believed or expected injury would be
probable, does not constitute willful misconduct.
Respondent's inexperience does not warrant an inference of that character.
The assignments of error relating to objections sustained were waived.
The judgment and order denying a motion for a new trial should be affirmed.
It is so ordered.
____________
61 Nev. 68, 68 (1941) In Re Taylor's Estate
In the Matter of the Estate of JOSEPH A. TAYLOR, Deceased.
MARY TAYLOR, Petitioner and Appellant, v. HAZEL A. TAYLOR, as Administratrix of
the Estate of Joseph A. Taylor, Deceased, Objector and Respondent.
No. 3338
July 2, 1941. 114 P.(2d)1086.
1. Executors and Administrators.
The provisions of statute fixing preference as to who is entitled to letters of administration are
mandatory, and court has no discretion but to appoint one preferred by the statute if otherwise competent.
Comp. Laws, sec. 9637.
An intestate's divorced wife who was in the eleventh class under statute fixing preference as to who is
entitled to letters of administration did not have a prior right to letters of administration over intestate's
sister who was in the fifth class under statute, on ground that wife was guardian of estate of intestate's
minor child, who because of minority could not exercise duties of administratrix, since wife's status as
guardian of child conferred upon wife no legal right to letters of administration. Comp. Laws, secs. 9637,
9882.
3. Executors and Adminisktrators
Where legislature in repealing statute specified persons entitled to letters of administration with their
priorities and a guardian of a minor was not named, axiom expressio unius est exlusio alterius applied as
against contention that repealed statute which had entitled a guardian to letters was merely declaratory of
the common law, which was not repealed by repealing statute. Comp. Laws, secs. 9637, 9882.
The repeal of statute which had made provision that when person entitled to letters of administration was
a minor, letters should be issued to guardian, repealed the common law of which such statute was
declaratory, where repealing statute was a revision of whole subject of settlement of estates of deceased
person and appointment of legal representatives. Comp. Laws, secs. 9637, 9882.
A court has discretion to refuse to appoint as administrator one otherwise preferred by statute if statutory
disqualification is clearly made to appear by competent and substantial proof and is not confined to
allegations contained in written objections to appointment, since the strict rule that findings of court
must be within the issues formed cannot be applied in probate proceedings as they
must be in ordinary civil proceedings.
court must be within the issues formed cannot be applied in probate proceedings as they must be in
ordinary civil proceedings. Comp. Laws, secs. 9637, 9640.
In determining whether intestate's sister acted improvidently in ordering an expensive funeral service so
as not to be entitled to letters of administration over intestate's divorced wife, court was bound to consider
fact that sister could not bind the estate for an excessive amount, and that in payment of the expense, not
only value of estate, but extent of sister's personal resources, were to be considered. Comp. Laws, sec.
9640.
In determining whether a person is incompetent to be appointed administrator, each case must rest upon
its particular facts, and evidence of incompetency must be clear to defeat the right to letters of
administration. Comp. Laws, sec. 9640.
Evidence that intestate's sister had been employed for over nine years at salary of $85 per month, that
sister who thought value of estate to be around $5,000, selected a funeral service priced at $1,250, that she
intended to use her own funds to make up difference between what court would allow and cost of funeral,
and who thereafter selected a funeral service costing over $900, $100 of which was payable by veterans'
association, did not show improvidence under statute prohibiting issuance of letters of administration to
improvident persons. Comp. Laws, sec. 9640.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
In the matter of the estate of Joseph A. Taylor, deceased, wherein Mary Taylor and Hazel
A. Taylor both filed petitions to be appointed administratrix. From an order appointing the
last-named petitioner administratrix, the first-named petitioner appeals. Reversed and
remanded, with instructions.
John Davidson and H. R. Cooke, both of Reno, for Appellant.
A. J. Maestretti, and Harold O. Taber, both of Reno, for Respondent.
OPINION
Joseph A. Taylor died intestate, leaving an estate of the value of approximately $5,000.
The respondent, Hazel A. Taylor, is the divorced wife of said deceased. Shirley May Taylor, a
minor daughter, was the only issue of the marriage, and by provisions of the divorce decree
the custody of the child was awarded to the said Hazel A. Taylor. The said Hazel A. Taylor
was appointed special administratrix of the said estate, and was also appointed guardian of
the person and the estate of the said infant child. Mary Taylor, sister of the deceased and
appellant herein, as did Hazel A. Taylor, petitioned the lower court to be appointed
administratrix of the estate of said deceased. The respondent stated in her petition inter alia,
that if she should be appointed guardian of said minor she would be entitled to letters of
administration upon the estate in preference to any other person, and at the time of the hearing
of her petition she had been appointed such guardian. The appellant based her right to
appointment by reason of her relationship to deceased, namely, that of a sister.
The petition of respondent was heard on January 22, 1941, and on January 27, 1941,
appellant's petition for letters came on regularly for hearing. On January 20, 1941, Mary
Taylor filed objections to the petition of Hazel A. Taylor on the grounds: First, that the
petition of Hazel A. Taylor did not state facts sufficient to show she was one of the persons
designated by law as having a prior right over objector Mary Taylor; second, that the facts
stated in the said petition of Hazel A. Taylor showed that objector Mary Taylor, as the
surviving sister of said deceased, had a prior and preferred right over said Hazel A. Taylor;
third, that said Mary Taylor had filed her petition praying for letters; fourth, that the right of
Hazel A. Taylor to have letters issued to her was subordinate to the right of Mary Taylor,
sister of the deceased.
have letters issued to her was subordinate to the right of Mary Taylor, sister of the deceased.
On Janurary 13, 1941, Hazel A. Taylor filed objections to the petition of Mary Taylor, as
follows: First, that Mary Taylor was a resident of California; second, that the minor child was
a resident of Washoe County; third, that the said Hazel a. Taylor had filed a petition for
letters of guardianship of the person and estate of said minor; fourth, that said Hazel A.
Taylor was the mother of said minor, residing in Reno, and by the terms of the divorce decree
had the custody and control of said minor child; fifth, that said Hazel A. Taylor was, on
January 3, 1941, appointed special administratrix of the estate of said deceased; sixth, that
said Hazel A. Taylor had filed a petition for letters of administration based upon her
relationship to the minor, who is the legal heir to said deceased; seventh, that Mary Taylor,
as sister of said deceased, was subordinate to the right of said minor for letters of
administration, as provided by the terms of the statute of this state.
The petition of Hazel A. Taylor came on for hearing first, and at the conclusion of the
hearing appellant promptly moved for an order denying the petition of Hazel A. Taylor, on
the ground that it appeared from the record that the right of Hazel A. Taylor, the divorced
wife of deceased, was subordinate and junior to the right of Mary Taylor. The matter was
postponed until January 27, 1941. The hearing being resumed on said date, Mary Taylor
testified that she was employed at San Francisco at a salary of $85 per month, and had been
previously employed for nine and a half years; that she was the only living near relative of the
deceased, except the minor child; that she heard of her brother's death, came to Reno and
selected a funeral service priced at $1,250; that she thought the value of the estate to be
somewhere in the neighborhood of $5,000, but that she expected to and intended to use as
much of her own funds as would be necessary to make up the difference between what the
court would allow and the actual cost of the funeral service; however, after a conference
with Hazel A.
to make up the difference between what the court would allow and the actual cost of the
funeral service; however, after a conference with Hazel A. Taylor, who expressed the opinion
that the service selected was too expensive, Mary Taylor selected a less expensive one,
costing something over $900, $100 of which was payable by the veterans' association. Mary
Taylor also testified that she knew the amount of funeral expenses chargeable against the
estate was a matter which the court would pass upon and control.
1. The Nevada statute fixing the preference as to who is entitled to letters of administration
is section 9637 N. C. L. Under the classifications made by the statute, Mary Taylor, sister of
the deceased, was in the fifth class, and Hazel A. Taylor, his divorced wife, was in the
eleventh class. It is the law that the provisions of the statute relative to the priorities of
appointment are mandatory, and the court has no discretion but to appoint one preferred by
statute, if otherwise competent. 23 C.J. 1033, sec. 92, note 84; In re Bauquier's Estate, 88
Calif. 302, 26 P. 178, 532; In re Nickals' Estate, 21 Nev. 462, 34 P. 250; In re Webb's Estate,
90 Colo. 470, 10 P.(2d) 947.
2. However, respondent Hazel A. Taylor asserts that she has a prior right to letters of
administration over appellant, sister of deceased, because she is the guardian of the estate of
Shirely May Taylor, the infant child of said deceased, the contention being that while the
child is not entitled to exercise the duties of an administrator, because she is under the age of
majority, even in the absence of a statute so providing her guardian should represent her. We
do not agree. The respondent's status as guardian of the child confers upon her no legal right
to letters. Section 9637 N. C. L. fixes the classifications and priorities. Section 57 of the act to
regulate settlement of the estates of deceased persons, c. 55, approved November 29, 1861,
which was in force until March 23, 1897, made provision that when persons entitled to letters
were minors, letters should be issued to the guardian of said minors.
to the guardian of said minors. This act was expressly repealed by the Act of March 23, 1897,
being section 9882 N. C. L., which said section eliminates the provision relative to the right
of a guardian to be appointed. The Act of March 23, 1897, was almost entirely taken from
California. The California act contained a provision as follows: If any person entitled to
administration is a minor or an incompetent person, letters must be granted to his or her
guardian * * *. Such is the law of California today, and was the law when the Nevada
legislature adopted practically the entire Probate Code of California. But the foregoing,
section 1368 of the California Code of Civil Procedure, was omitted, and it must have been
intentional, the idea being that the right of a guardian to be appointed should no longer obtain
in this state.
3, 4. Respondent maintains that said section 57, entitling a guardian to letters, was merely
declaratory of the common law, and she calls attention to the rule that the repeal of a statute
which is declaratory of the common law does not necessarily effect an abolition of the
common law, the common law, so far as it is not repugnant, being the rule of decision in this
state, hence the repeal of the express statute leaves the common-law rule still in effect. We
conclude that, the legislature having specified the persons entitled to letters, with their
priorities, and a guardian not being named in the statute, the axiom expressio unius est
exclusio alterius applies. And, again, the Act of March 23, 1897, appears to be a revision of
the whole subject of the settlement of estates of deceased persons and appointment of legal
representatives, and being such a revision, any and all common law of which the statute of
1861 was declaratory was thereby repealed. See Gill v. Goldfield Consol. Mines Co., 43 Nev.
1, 176 P. 784, 184 P. 309; Thorpe v. Schooling, 7 Nev. 15; State v. Lee, 28 Nev. 380, 82 P.
229; State v. Rogers, 10 Nev. 319. See, also, 59 C.J. 922, note 57; Boston Ice Co. v. Boston,
etc., R. Co., 77 N.H. 6, 86 A. 356, 45 L. R. A. (N.S.) 845, Ann. Cas.
1914a, 1090; Aetna Life Insurance Co. v. Swayze, 30 Kan. 118, 1 P. 36.
Mary Taylor being in the fifth class and Hazel A. Taylor being in the eleventh class, said
Mary Taylor was clearly entitled to letters of administration unless found to be incompetent
under some provision of the statute.
Section 9640 N. C. L. reads: No person shall be entitled to letters of administration who
shall be: FirstUnder 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.
The trial court based its decision in refusing to appoint Mary Taylor upon one of the
disqualifications contained in the statute, namely that the said Mary Taylor was improvident.
Appellant contends that the trial court was without authority to make a finding relative to the
improvidence of Mary Taylor because no such disqualification was alleged in the objections
filed by the contestant, Hazel A. Taylor, it being the position of appellant that a probate court
is confined to the issues raised by the petition and the grounds set forth in the written
objections filed; and appellant finds support for her contention in the following cases: In re
Gordon's Estate, 142 Cal. 125, 75 P. 672; In re McCausland's Estate, 170 Cal. 134, 148 P.
924; In re Rollins' Estate, 189 Cal. 392, 208 P. 280; In re McClellan's Estate, 27 S. D. 109,
129 N. W. 1037, Ann Cas. 1913c, 1029.
5. In considering this question we have encountered much difficulty in attempting to
reconcile the principle announced in the cases, supra, with our conception of the duty of a
probate court relative to the appointment of administrators. We have been unable to find a
satisfactory answer to the question of how the court can follow the injunction of the statute
to appoint a competent person if it be confined to the allegations contained in written
objections, should those allegations fail to point out a disqualification which clearly
appears in the evidence.
follow the injunction of the statute to appoint a competent person if it be confined to the
allegations contained in written objections, should those allegations fail to point out a
disqualification which clearly appears in the evidence. We think the better reasoning to be
that a court has discretion to act and refuse to appoint one otherwise preferred by statute if a
statutory disqualification is clearly made to appear by competent and substantial proof, and
that the same strict rule that the findings of the court must be within the issues formed cannot
be applied in probate proceedings as they must be in the ordinary civil proceedings. An
extreme case serves to illustrate the point we are endeavoring to make. Suppose issues have
been formed relative to disqualification on the ground of drunkenness and want of integrity,
and upon the hearing these charges are not sustained, but it is made to clearly appear from
evidence introduced that the party was unable to execute the duties of the trust by reason of a
want of understanding because of some form of insanity. Could it be said that the court is
bound to appoint an insane person merely because the issue had not been presented in the
objections filed? The answer is obvious. In Re Morgan's Estate, 209 Mich. 65, 176 N. W.
606, at page 609, it is said: That some discretion rests in the probate court there can be no
doubt. If a fair issue of fact is raised by the evidence of those denying the widow's
competency because of unsound mind, lack of normal understanding or average intelligence
[etc.], the discretion of the probate court can readily be conceded.
The case of In re Nickals' Estate, 21 Nev. 462, 34 P. 250, is cited in support of the
proposition that incompetency must be alleged and proved. In that case the court uses the
words neither allegation nor proof. What the opinion of the court would have been had
there been proof of incompetency remains open for speculation.
The argument made that only disqualifications set out in the statute can be recognized,
while true, is not of much importance here, because of the fact that improvidence, the
disqualification acted on by the lower court, is contained in our statute.
out in the statute can be recognized, while true, is not of much importance here, because of
the fact that improvidence, the disqualification acted on by the lower court, is contained in
our statute.
We conclude that if a statutory disqualification is made to appear by substantial evidence,
a court has a right to use its discretion and act thereon and refuse to appoint a disqualified
person, even though such disqualification may not be alleged in the written objections,
believing such a holding to be necessary in order to permit a court to properly safeguard an
estate and to withhold administration thereof from the hands of incompetent persons.
6-8. The trial court refused to grant letters of administration to petitioner Mary Taylor
because said court found her to be improvident, basing such finding upon the fact that she had
ordered the $1,250 funeral in the first instance, later reducing it to something over $900,
when the estate was of a value of around $5,000. We may admit at the outset that to order a
$1,250 funeral, or even a $900 funeral, to be paid for out of an estate of that value, would be
evidence of a person having little concern for the proprieties of the situation. But in this case,
in making the finding, we do not think the propriety of the action of Mary Taylor can be made
to rest alone upon the value of the estate, for to do so is to disregard some very important
evidence given by her and which stands uncontradicted. We think the proper method of
evaluating her action is to not only take into consideration the value of the estate, but, further,
the fact that she knew that the final decision as to the amount that would be paid out of the
estate towards funeral expenses rested with the court; that in ordering a funeral service with
such thought in mind she obligated the estate to the extent only as was reasonable, taking into
consideration its value and the future of the minor child, this because such considerations
would doubtless enter into the trial court's determination of the amount that would be
allowed.
allowed. In determining whether or not she acted improvidently in ordering the expensive
funeral service, the court was bound to consider the fact that she could not bind the estate for
an excessive amount, and that in the payment of that expense not only the value of the estate
but the extent of her personal resources were to be considered. There is nothing in the
evidence to dispute the fact that she was amply able financially to take care of any excess
over and above the amount allowed by the court. The extent of her assets does not appear.
They must be considered here to have been ample, no contradiction appearing. So it appears
that the finding that she was improvident by reason of the fact that she ordered the expensive
funeral service was not based upon all of the evidence appearing in the case, but merely on
the evidence as it related to the value of the estate. Mary Taylor testified that her future was
assured. She had been employed for many years. It is reasonable to conclude from her
testimony that out of a rather meager salary she had been able to build up somewhat of a
competence. If she has been able to accomplish this, then she must have some conception of
the value of money, and through the years has not been accustomed to squander her funds or
live beyond her station in life. Such circumstances clearly do not demonstrate such a habit of
mind as would unfit her for the trust of administratrix of this estate. Each case must rest upon
its particular facts, and the evidence of incompetency must be clear to defeat the right to
letters. Estate of Bauquier, 88 Cal. 302, 26 P. 178, 532. The evidence here of purchasing a
funeral service to be paid for by the estate and out of the personal funds of Mary Taylor does
not show a habit of mind or such general conduct as to bring the case within the definition of
improvidence as the term is used in our statute. See In re Flood's Will, 236 N.Y. 408, 140
N.E. 936; Nichols v. Smith, 186 Ala. 587, 65 So. 30; In re Brinckmann's Estate, 89 Misc. 41,
152 N. Y. S. 542; Emerson v. Bowers, 14 N.Y. 449; In re Connors' Estate, 110 Cal.
Estate, 110 Cal. 408, 42 P. 906; Matter of Greene's Estate, 48 Misc. 31, 96 N.Y.S. 98; Matter
of Manley's Estate, 12 Misc. 472, 34 N.Y.S. 258; 31 C.J. 353.
The order of the trial court appointing Hazel A. Taylor administratrix is reversed, and the
case remanded, with instructions to the lower court to grant the petition of Mary Taylor.
____________
61 Nev. 78, 78 (1941) Tsirikos v. Hatton
CHARICLEA TSIRIKOS, Et Al., Appellants v. W. D. HATTON, as Executor of the Last
Will and Testament of M. G. Kanda, Deceased, Respondents.
No. 3331
July 29, 1941. 116 P.(2d) 189.
1. Wills.
The cardinal rule of interpretation of wills is to ascertain the testator's intention.
2. Wills.
A court must give effect to the plain provisions of a will unless they violate some rule of law or public
policy.
3. Wills.
Where holographic will, though showing some illiteracy on the part of the testator, clearly expressed his
intent as to who should be the recipients of his bounty, there was no need for judicial interpretation as to
who was to receive his estate.
4. Perpetuities.
Where fund and income from will vested at once in testator's brother named in will and the brother's
children, the rule against perpetuities was not applicable. Const. art. 15, sec. 4.
5. Wills.
Generally, a gift of the interest, income, or produce of a fund without limit as to time and without other
disposition of the corpus will pass the fund itself, regardless of whether the bequest is direct to the
beneficiaries or through a trustee.
6. Wills.
The general rule that a gift of the interest, income, or produce of a fund without limit as to time and
without other disposition of the corpus will pass the fund itself, regardless of whether the bequest is direct
to the beneficiaries or through a trustee, always will give way to the cardinal rule that the interpretation of
wills is to ascertain the testator's intention.
7. Wills.
Where the language employed in a will reasonably admits of a construction favorable to testacy, such
construction should obtain.
8. Wills.
In suit by testator's heirs, to have the will declared invalid in respect to a trust appearing therein and its
probate in that respect revoked, and to have the property descend to the heirs, trial court did not err in
refusing to allow counsel fees out of the estate for the unsuccessful attorneys of the heirs.
9. Wills.
The statute providing that attorneys for absent or nonresident heirs shall receive compensation primarily
out of the estate of the distributee so represented by him in proceedings involving estates, and to such
extent as might be determined by the court, conferred no authority on court to allow counsel fees to the
heirs in a suit to have a will declared invalid in respect to a trust appearing therein and its probate in that
respect revoked and the property descend to the heirs. Stats. 1937, c. 16.
10. Wills.
The statute providing that attorneys for absent or nonresident heirs shall receive compensation primarily
out of the estate of the distributee so represented by him in proceedings involving estates and to such extent
as might be determined by the court, refers to heirs entitled to a distributive share in the estate out of which
counsel fees should be allowed, and clothes the court with a broad discretion, and if the court is otherwise
vested with authority, to direct the payment of counsel fees out of the estate of a decedent to an attorney for
an heir, in a proceeding brought by such heir for the construction of the will, it must necessarily be of a
largely discretionary character. Stats. 1937, c. 16.
Appeal from Fifth Judicial District Court, Nye County; Clark J. Guild, Presiding Judge.
Suit by Chariclea Tsirikos and others against W.D. Hatton, as executor of the last will and
testament of M. G. Kanda, deceased, and others, to have the will construed and declared
invalid in respect to the trust appearing therein, and its probate revoked, and to have the
property of the estate included in the trust, descend to the heirs at law of the decedent as
though he had died intestate. From an adverse judgment and order, the plaintiffs appeal.
Affirmed.
I. A. Lougaris, of Reno, H. G. Metos, of Salt Lake City, Utah, and G. A. Ballard, of Reno,
for Appellants.
Lowell Daniels, of Tonopah, for Respondent W. D. Hatton.
OPINION
M. G. Kanda, a resident of Nye County, Nevada, died on the 3d day of April 1939, seized
and possessed of real and personal estate. He left a holographic will disposing of said estate,
which was duly admitted to probate, and W. D. Hatton, one of the respondents, was
appointed executor thereof. The will is dated September 12, 1938, and reads:
To Whom it may concern I M. G. Kanda the undersigned have in my sefty Box. #142 in
Tonopah Bank Banking acount Books Tonopah Mg. Co. Checks and nots. up to June 30,
1938 as showing sum of ove sixty thousand Dollars. if I die an Natural Judg W. D. Hatton
Judge W. D. Hatton andminister my Estate. as Judge W.D. Hatton is one of the sinciest and
honest man I know on that line. acording to my wish, arount 400.00 for my Funeral 1000.00
in cash to Jas. Currie and 1000.00 to A. R. Wardle of Tonopah Som Juwlery and 9. Pounds of
Gold specements in the sefty Box $142 when sold and the Balance of this Estate of Mine
Judge W. D. Hatton place this mony as a Trust Fonds for years to com, as he sees feet for.
K.my
#2
For my Brother and his chil-dren Name Guss G. Kandas 113 Karaiskow St-Piraus Greece no
cash be giveing them. I want them drowing the interest, and som day I know thing will be
appreceated. by haveit on Trust fonds. My patner B. ornelas on Tonopah Mg. Co-Retain the
Lease with all of our Imptments. Mr. Oscar Oram holding 300.00 in cash of mine mony and
he should give me 100.00 at least. and his not for 200.00 the Tonopah Mg.
Oram holding 300.00 in cash of mine mony and he should give me 100.00 at least. and his
not for 200.00 the Tonopah Mg. Co- and the state in 19 day of Sept. 1937 over charged me
for Bullion Tax over 300.00 Oscar Oram working on that case. and the loss of interest of 3
outsstanding checks since Sept. -19th-1937 sum of 16726.63c as showing in sefty Box. have
no ralative in u. s. a. some names in Utah
#3
like mine but no ralative of mine. nobudy be alowtid to enterfer on my Estate Judge W. D.
Hatton only. I don't ow a peny to no man at no place. signed by my hand this day of
12th-Sept-1938
signed M. G. Kanda
Tonopah Nev-u.s.a.
Som incom to be paid to Govemunt for 1938 after the labor and expenditure is diducted to
which B. Ornelas knows all aboutit.
Tonopah, Nev-Sept-13th
I also have on 1938 checking acount in Tonopah over Eight thousand Dollars.
signed M. G. Kanda.
The suit was brought by the two sisters of the above-named decedent and nine children of
his deceased sisters and brothers, all of adult age, against said executor and Oscar Oram as
attorney for the absent heirs of decedent, for the purpose of having the will construed and
pursuant thereto declared invalid in respect to the trust appearing therein, and its probate in
that respect revoked, and to have the property of the estate included in the trust descend to the
heirs at law of decedent as it would have done if decedent had died intestate. Relief to the
several parties for their expenses and counsel fees is also sought.
The complaint alleges, inter alia, that the will in respect to the trust, attempted to set up
therein in favor of the said Guss G. Kanda and his children, is illegal and void, as in the
contemplation of the donor decedent the said trust was to continue in indefinite duration
and to exist in perpetuity and against the constitutional prohibition against perpetuities."
decedent the said trust was to continue in indefinite duration and to exist in perpetuity and
against the constitutional prohibition against perpetuities.
The trial court, sitting without a jury, rendered judgment that plaintiffs take nothing by
their complaint, and denied their motion for a new trial.
The appeal is from the judgment and order.
Appellants contend that the will shows that the trust created therein is null and void, both
on the grounds of uncertainty and of attempting to create a perpetuity.
1, 2. As often reiterated, the cardinal rule of interpretation of wills is to ascertain the
intention. The court must give effect to the plain provision of a will unless they violate some
rule of law or public policy. 69 C.J. pp. 43, 44. While the writer of the will showed some
illiteracy, his intent as to who should be the recipients of his bounty is clearly expressed. The
two special bequests are definitely stated. In addition the testator says:
If I die an Natural Judge W. D. Hatton and minister my Estate as Judge W. D. Hatton is one
of the sinciest and honest man I know on that line. * * * and the Balance of this Estate of
Mine Judge W. D. Hatton place this money as a Trust Fonds for years to com, as he sees feet
for.
#2
For my Brother and his chil-dren Name Guss G. Kandas, 113 Karaiskow St-Piraus Greece
no cash be giveing them. I want them drowing the interest, and som day I know thing will be
appreaceated by haveit on Trust Fonds. * * * have no relatives in u.s.a. some names in Utah
#3
like mine but no ralative of mine. nobudy be allowtid to enterfer on my Estate Judge W. D.
Hatton only. * * *
3. Aside from the special bequests, his brother named, and the children of the brother are
to have his estate.
estate. This is manifested by direct designation and by language clearly intended to restrict the
disposition of the estate to them. There is, then, no need for judicial interpretation of the
testator's intent in this respect. There is nothing uncertain about it.
Does the will run counter to the constitutional inhibition as to perpetuities? Const. art. XV,
sec. 4.
Appellants contend that the estate involved in the trust failed on that account and the
property vested in the heirs at law on the death of the decedent. They argue that it was the
testator's design to separate the income from the fund and only the former, and therefore the
corpus could not vest within the period permitted by the perpetuity rule.
4, 5. We are of the opinion that the rule against perpetuities is not applicable, for the
reason that the fund and the income therefrom vested at once in the brother named in the will
and his children. The general rule which we find applicable is, that a gift of the interest,
income or produce of a fund without limit as to time and without other disposition of the
corpus, will pass the fund itself, regardless of whether the bequest is direct to the
beneficiaries or through a trustee. 69 C.J. 403, and cases cited in note 27. See, also, 1
Schouler on Wills (5th ed.), sec. 507; Page on Wills, sec. 491.
There can be no doubt, said the court in Bishop v. M'Clelland's Ex'rs. (N.J.), 16 A. 1,
that a gift of the interest, income, or produce of a fund, without limitation as to time, will,
according to a settled rule of construction, be held to pass the fund itself; and this will be the
effect given to a gift made in this form, whether the gift be made directly to the legatee, or
through the intervention of a trustee.
6. Appellants rely on In re Hartung's Estate, 39 Nev. 200, 155 P. 353, 159 P. 864, in
support of their position. It is true that this court in that case held that the income only from
the decedent's estate was bequeathed to the applicant, but the intent to do so was clearly
derivable from the will.
bequeathed to the applicant, but the intent to do so was clearly derivable from the will. The
court recognized the general rule we have stated, and in all cases quoted from in the court's
opinion there is a similar recognition. Of course the intention of the testator must govern, and
the general rule last adverted to will always give way to that cardinal rule of interpretation.
But such contrary intention must clearly appear. Bentley v. Kauffman, 86 Pa. 99, 101; 69 C.J.
403.
Can such intention be inferred from the will before us? The income is not limited as to
time, and there is no other disposition of the corpus. The statement in the will, no cash be
giveing them was merely to reiterate his desire that the property be kept in trust. And the
statement som day I know thing will be appreaceated. by haveit on Trust Fonds indicated
his thought that they would appreciate his way of handling the property, and the word it
evidently referring to the property as a whole.
7. While we are satisfied that the general rule is applicable, we are at the same time giving
effect to the rule that where the language employed in a will reasonably admits of a
construction favorable to testacy, such construction should obtain. In re Wallace's Estate, 11
Cal. (2d) 338, 79 P.(2d) 1094.
8, 9. Other points made by appellants against validity of the will are without merit. There
was no error in the refusal of the court to allow counsel fees out of the estate for appellant's
attorneys. The stature on which they rely, chap. 16, Stats. 1937, page 30, does not confer
authority on the court to allow counsel fees to a party in a proceeding like this. The part of the
statute relied on reads: Attorneys for absent of nonresident heirs shall receive compensation
primarily out of the estate of the distributee so represented by him in such cases and to such
extent as might be determined by the court.
10. This clearly refers to heirs entitled to a distributive share in the estate out of which
counsel fees could be allowed, and clothes the court with a broad discretion.
could be allowed, and clothes the court with a broad discretion. If the court is otherwise
vested with authority to direct the payment of counsel fees out of the estate of a decedent to
an attorney for an heir, in a proceeding brought by such heir for the construction of the will, it
must necessarily be of a largely discretionary character. This is not a case that would call for
its exercise.
The judgment and order denying a new trial are affirmed.
September 19, 1941.
Per Curiam:
Rehearing denied.
____________
61 Nev. 85, 85 (1941) Snyder v. Garrett
ELMER H. SNYDER, Appellant, v. CLYDE A. GARRETT, OPAL H. GARRETT,
CLINTON H. GARRETT, W. H. GOULD, BRUCE GOULD, WILD HORSE
QUICKSILVER MINING COMPANY, a Corporation, and RICHARD ROE,
Respondents.
No. 3327
August 2, 1941. 115 P.(2d) 769.
1. Statutes.
In interpreting reenacted statutes, court will follow the construction which they received when previously
in force, under presumption that legislature knew their original effect and intended that they should again
have the same effect, unless contrary intention is clearly made to appear.
In partial reenactment of new trials and appeals act, omission of statement that motion for new trial must
be made and determined before appeal is taken on ground of insufficiency of evidence did not manifest
intent to change former procedure which required motion for new trial before consideration of sufficiency
of evidence could be had in supreme court. Comp. Laws, sec. 8884; Stats. 1935, c. 90, secs. 9, 12, 34;
Stats. 1937, c. 32, secs. 8, 9, 12, 34.
Where plaintiff did not move for new trial after judgment for defendants, reviewing court
refused to hold that trial court erred in denying motion to add to and modify findings.
for defendants, reviewing court refused to hold that trial court erred in denying motion to add to and
modify findings.
4. Statutes.
In construing partial reenactment of new trials and appeals act which omitted statement that motion for
new trial must be made and determined before appeal is taken on ground of insufficiency of evidence,
supreme court could assume that the legislature in making the partial reenactment had full knowledge of the
practices as it theretofore existed. Stats. 1937, c. 32, secs. 8, 9, 12, 34.
Appeal from First Judicial District Court, Churchill County; Wm. D. Hatton, Presiding
Judge.
Action by Elmer H. Snyder against Clyde A. Garrett and others to quiet title to mining
claim. From a judgment for defendants, plaintiff appeals. Affirmed. (Taber J., dissenting.)
Douglas A. Busey and Springmeyer & Thompson, all of Reno, for Appellant.
A. L. Haight, of Fallon, for Respondent Wild Horse Quicksilver Mining Co.
M. A. Diskin and Chas. A. Cantwell, both of Reno, Amici Curiae.
OPINION
Appellant brought this action to quiet title to a certain lode mining claim situate in
Churchill County.
The respondent, Wild Horse Quicksilver Mining Company, a corporation, answered
denying all the essential allegations of the complaint and set up a further defense by way of
cross complaint and counterclaim. The court rendered judgment in favor of the mining
company. Appellant's motion to add to and modify respondents' proposed findings of fact and
conclusions of law was denied, and the court adopted and signed the findings of fact
submitted by respondents.
the findings of fact submitted by respondents. A full, true and correct transcription by the
official court reporter of all proceedings had and testimony given, was duly filed as a bill of
exceptions. This appeal is from the judgment alone, no motion for a new trial having been
made.
The first question presented by the assignment of error is whether the findings are
supported by the evidence. Respondents contend that we cannot consider the evidence in the
case because no motion for a new trial was made. Appellant insists that since the enactment
of the new trials and appeals act, approved March 2, 1937 (Stats. of Nevada, 1937, c. 32, p.
53), no such procedure is necessary, but that an appeal may now be taken with or without
moving for a new trial, and that a bill of exceptions embodying the evidence may be filed and
considered by this court in either case. We considered the question of such importance that
we appointed two prominent members of the state bar, as amici curiae, who prepared and
filed a brief on the question. The said act of 1937 repealed the new trials and appeals act of
1935, c. 90, in its entirety, but reenacted many provisions thereof. It also repealed a number
of sections of the Nevada Compiled Laws relating to practice in civil cases, including section
8884. The latter section read:
Where the appeal is based upon the ground that the evidence is insufficient to justify the
verdict or decision of the court, or to support the findings, or upon alleged errors in ruling
upon the evidence, or upon instructions claimed to be erroneous, a motion for a new trial
must be made and determined before the appeal is taken. In all other cases the party aggrieved
may appeal with or without first moving for a new trial; but by appealing without first
moving for a new trial, the right to move for a new trial is waived.
The provisions of the latter section were substantially reenacted in section 9 of the act of
1935 but were omitted from that section in the act of 1937. Sections 12 and 34 of the later
act are a reenactment of sections 12 and 34 of the 1935 act.
12 and 34 of the later act are a reenactment of sections 12 and 34 of the 1935 act. They read
respectively:
Sec. 12. Upon an appeal from a judgment, the court may review the verdict or decision,
and any intermediate ruling, proceeding, order or decision which involves an issue of law or
the merits or which necessarily affects the judgment, or which substantially affects the rights
of a party, which comes within the specifications of error and record on appeal or is embraced
in the bill of exceptions. The provisions of this section do not authorize the court to review
any decision or order from which an appeal might have been taken.
Sec. 34. Bills of exceptions provided for by this act must be prepared, served, and filed,
as herein provided, and not otherwise, and all errors relied upon which may have occurred
during the proceedings or at the trial, or which may be alleged against the findings, or
exceptions to the findings as made, and all errors based upon any ground for a new trial, may
be included therein, and all such errors may be reviewed by the supreme court on appeal from
the judgment or order denying or granting the motion for a new trial.
Sec. 8. Any party aggrieved may appeal from the final judgment rendered in any action,
case or proceeding prescribed in this act with or without first moving for a new trial.
Sec. 9. Where a motion for a new trial is made, it must be based upon the causes or
grounds, or either of them, designated in section 2 of this act, as causes or grounds for a new
trial, and the notice of intention to move for a new trial, stating therein such causes or
grounds intended to be relied upon, must be served by the unsuccessful party in the action or
proceeding upon the prevailing party and filed as in this act prescribed.
Appellant stresses the omission of the provisions of said section 9 of the act of 1935 from
the act of 1937, now in force, as convincing evidence of a legislative design to permit this
court to consider the sufficiency of the evidence to support the findings, decision of a
court, or verdict of a jury, on an appeal from the judgment without the necessity of
moving for a new trial.
the evidence to support the findings, decision of a court, or verdict of a jury, on an appeal
from the judgment without the necessity of moving for a new trial. His counsel characterizes
it as a new streamlined procedure and claims to be the promoter of the statutory scheme.
Amici curiae were not so sanguine of the soundness of this position. While reaching no
definite conclusion they were of the opinion that a proper solution of the question was
dependent largely upon the determination by this court of the applicability of the decision of
the court in Neill v. Mikulich, 57 Nev. 307, 64 P.(2d) 612, 614, in view of the change in
section 9 of the act of 1937. In that opinion sections 12 and 34 of the act of 1935 were
definitely construed in connection with section 9, omitted from the act of 1937. As to section
12 the court said:
From a reading of the last sentence of this section it is clear that the only way this court
can consider the insufficiency of the evidence to justify the verdict, the rulings upon
instructions, and other rulings enumerated in section 9 of the act, is for the aggrieved party to
make his motion for a new trial and to appeal from an adverse ruling. The last sentence of
section 12 clearly contemplates such procedure.
In reference to section 34, the court said: That portion of section 34 which provides that
all such errors may be reviewed by the supreme court on appeal from the judgment or order
denying the motion for a new trial' must be construed to mean that an aggrieved person can
appeal from the judgment only in cases in which a motion for a new trial may not be made,
for if we hold otherwise the result would be to say that it is not necessary to file a motion for
a new trial in any case, and the section itself contemplates the necessity of making such a
motion in an appropriate case.
1. These sections, as we have seen, were reenacted in the act of 1937. The general rule in
this regard may be thus stated:
In the interpretation of reenacted statutes the court will follow the construction which
they received when previously in force.
will follow the construction which they received when previously in force. The legislature
will be presumed to know the effect which such statutes originally had, and by reenactment to
intend that they should again have the same effect. 2 Lewis' Sutherland Statutory
Construction (2d ed.), sec. 403; Sessions v. Romadka, 145 U.S. 29, 42, 12 S. Ct. 799, 36 L.
Ed. 609; Logan v. United States, 144 U.S. 263, 301, 12 S. Ct. 617, 36 L. Ed. 429.
This presumption must prevail unless a contrary intention is clearly made to appear from
the language of the act. The Abbotsford, 98 U.S. 440, 25 L. Ed. 168; In re Li Po Tai, 108 Cal.
484, 41 P. 486; Board of Com'rs. v. Conner, 155 Ind. 484, 58 N.E. 828; Endlich Interp. St.
secs. 367, 369; Black on Interp. Laws, 161, 162.
There is nothing in the change in the language of section 9 of the 1937 act from that of
section 9 of the 1935 act to show it. The language of section 9 of the 1937 act merely affects
the mode of making a motion for a new trial and notices thereof. The mere omission of the
matter formerly found in section 9 does not, in our opinion, show an intention to change the
procedure in the manner claimed by appellant.
A desire for greater conciseness or simplicity of language often accounts for the omission
of words in subsequent enactments. If the legislature adopted sections 12 and 34 with the
construction placed upon them by this court in Neill v. Mikulich, supra, then the language in
section 9 of the act of 1935 was wholly unnecessary in the act of 1937 to effect the legislative
purpose of those reenactments.
2-4. The part as to the insufficiency of the evidence to justify the verdict or decision of the
court, never was necessary to enforce such a rule. This language first appeared in section 386
of our former practice act effective January 1912, sec. 5328, R. L. Its inclusion in said section
wrought no change in the practice, and, if our view is correct, neither did its exclusion in
1937.
It was merely an enactment of a rule of practice recognized and enforced by the decisions of
this court from the earliest days of our civil jurisprudence. Whitmore v. Shiverick, 3 Nev.
288; Cooper v. Pacific Mutual Life Ins. Co., 7 Nev. 116, 8 Am. Rep. 705; James v.
Goodenough, 7 Nev. 324; Conley v. Chedic, 7 Nev. 336; Beck v. Truckee Lodge, 18 Nev.
246, 2 P. 390; Burbank v. Rivers, 20 Nev. 81, 16 P. 430; State v. Sadler, 21 Nev. 13, 23 P.
799.
In Whitmore v. Shiverick, supra, the court said: Our Practice Act was copied almost
verbatim from the California Practice Act as it stood at the time ours was enacted. Under the
California code of practice, the Supreme Court of that State had almost uniformly refused to
review the facts of a case unless there had been a regular statement and motion for new trial.
In Burbank v. Rivers, supra, it was held that the rule had application in cases in equity, as
in cases at law. The reason of the long established rule for requiring that a motion for a new
trial be made, and passed upon, before a consideration of the evidence can be had, is, as
stated in Giannotti v. De Bock, 47 Nev. 332, 221 P. 520, that the trial court may first have an
opportunity to rectify an error, if one was made, without subjecting the parties to the expense
and annoyance of an appeal. We may assume that the legislature in enacting the act of 1937
had full knowledge of the practice as it theretofore existed. It is therefore not reasonable to
believe that if it intended such a radical change in the practice existing for almost
three-quarters of a century, it would have resorted to explicit language to denote its intention.
When the California legislature desired to make such a change in the practice existing over a
long period of time, it did so in language of unmistakable import. Sec. 939, Code of Civ.
Prac.; Hayne New Trial and Appeal, sec. 96.
We agree with the statement in the brief of amici curiae that it may readily be argued that
the legislature has definitely accepted by reenacting sections 12 and 34, the interpretation
previously placed thereon by this court and clearly intended that there should be no
appeal with review of the evidence unless a motion for a new trial has been made in the
trial court."
and 34, the interpretation previously placed thereon by this court and clearly intended that
there should be no appeal with review of the evidence unless a motion for a new trial has
been made in the trial court.
We think such argument is most logical and must prevail, as we consider the opinion in
Neill v. Mikulich, supra, of controlling influence. The trial court committed no error in
denying the motion to add to and modify the findings.
The findings support the judgment.
It should be and is affirmed.
Orr. J., I concur.
Taber, J., dissenting.
In construing and applying sections 12 and 34 of the 1935 new trials and appeals act this
court, in the case of Neill v. Mikulich cited in the prevailing opinion, was influenced by the
language of section 9 of the same act. A comparison of sections 8 and 9 of the 1937 new trials
and appeals act with the corresponding sections (8 and 9) of the 1935 act shows, in my
opinion, a definite intent on the part of the 1937 legislature to permit consideration by this
court, on appeal from a judgment and without a motion for new trial having been made, of the
question of the sufficiency of evidence to justify the decision of the trial court. The testimony
and evidence must, of course, be brought to this court by bill of exceptions incorporated in
the record on appeal, as was done in this case. Entertaining these views, I think the appellant
is entitled to have his appeal considered on the merits.
____________
61 Nev. 93, 93 (1941) Cunningham v. Cunningham
SYLVIA H. CUNNINGHAM, Appellant, v. FRANCIS
J. CUNNINGHAM, Respondent.
No. 3307
August 29, 1941. 116 P.(2d) 188.
1. Divorce.
In action wherein wife obtained divorce on ground of extreme cruelty, where trial court's findings were
supported by substantial evidence, the comparative value of the property awards to husband and wife and
alimony award to wife were not so disproportionate in favor of husband as to establish an abuse of the
discretion conferred upon the trial court by statute so as to warrant reversal of such awards. Comp. Laws
sec. 9463, as amended by Laws 1939, c. 25.
2. Divorce.
Trial court is better adapted to consider and weigh equitable matters with respect to division of property
of parties in divorce action and award of alimony than the appellate court, which has no opportunity of
seeing, hearing and examining the witnesses.
Action for divorce by Francis J. Cunningham against Sylvia H. Cunningham, who filed a
cross-complaint for divorce. From the portion of divorce decree for cross-complainant,
awarding alimony and dividing property of the parties and from an order denying her motion
for a new trial, cross-complainant appeals. Decree and order affirmed.
See, also, 60 Nev. 191, 102 P.(2d) 94, 105 P.(2d) 388.
Bert Goldwater, of Reno, for Appellant.
Harlan L. Heward, of Reno, for Respondent.
OPINION
The appellant, who cross-complained against her husband in his action for divorce,
obtained a decree on the ground of extreme cruelty.
ground of extreme cruelty. A division of their property was made and she was awarded
alimony in the sum of fifty dollars per month for ten months from the date of the decree,
February 17, 1940. The division of the property of the parties is as follows: That the
defendant and cross-complainant herein be, and she hereby is, allowed to retain certain
separate property now standing in her name, consisting of real estate described as follows:
All of Lot Twenty-nine (29) in Block numbered Seven (7) of the Newton Tract, a
sub-division to the town of East Reno, now City of Sparks, according to the official map or
plat of said tract now on file in the office of the County Recorder of Washoe County, Nevada;
together with the furnishings of the house on said property.
That the defendant and cross-complaintant be and she is hereby awarded the 1936
Chevrolet sedan automobile.
That the plaintiff be, and he is hereby awarded certain real estate described as follows:
Lots numbered Thirteen (13) and Fourteen (14) in Block numbered Seven (7) of the
Robison Addition, a subdivision to the town of East Reno, now the City of Sparks, according
to the official map of said addition now on file in the office of the County Recorder of
Washoe County, Nevada: together with the contents of the house now standing on said real
estate and household furnishings, all community property of the parties.
That the plaintiff herein be, and he hereby is permitted to retain as his own separate
property the proceeds of two insurance policies, of which he is the beneficiary, on the life of
one John R. Shekell, now deceased.
No appeal was taken from the decree of divorce. Her appeal is from the alimony award,
and from the real estate award to respondent, and from the order denying her motion for a
new trial.
She assigns as error, abuse of discretion as to the last two mentioned awards.
As we understand appellant's position, it is not contended that there is not substantial
evidence in support of the trial court's findings. Indeed this could not be maintained. But it is
asserted that the comparative value of the property awards and alimony is so out of proportion
in favor of the husband as to show absolute unfairness on the part of the trial court.
1. We are not inclined to this view. As a review of the evidence would serve no useful
purpose, we will not undertake it. It is enough to say that the evidence reveals that the
division and alimony were well within the latitude of discretion conferred upon the trial court
by the statute. Section 9463 N.C.L., as amended by Stats. 1939, p. 18.
2. By reason of its opportunity of seeing, hearing, and examining the witnesses, the trial
court is far better adapted to consider and weigh the equitable matters appearing from the
evidence than the appellate court, which views only the written word. As we said in
Wittenberg v. Wittenberg, 56 Nev. 442, 55 P.(2d) 619, 623: In cases such as this, on issues
of fact, much must be left to the wisdom and experience of the presiding judge, who sees and
hears the parties and their witnesses, scrutinizes their testimony and studies their demeanor.
See, also, Albee v. Albee, 38 Nev. 191, 147 P.452.
As previously stated, the property awards and alimony are supported by substantial
evidence and we are not prepared to say that the trial court abused its discretion. In other
words, such abuse does not plainly appear.
The judgment in all respects and order denying a motion for a new trial are affirmed.
____________
61 Nev. 96, 96 (1941) Hart v. Kline
GRACE HART, Appellant, v. DUDLEY KLINE, Respondent.
No. 3337
September 9, 1941. 116 P.(2d) 672.
1. Automobiles.
Under automobile guest statute term gross negligence is substantially and appreciably higher in
magnitude and more culpable than ordinary negligence and is equivalent to failure to exercise even a slight
degree of care and is materially more want of care than constitutes simple inadvertence and is an act or
omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise
ordinary care, but gross negligence falls short of being such reckless disregard of probable consequences as
is equivalent to a willful and intention wrong. Laws 1933, c. 34, sec. 1.
2. Evidence.
Physical facts which speak the truth unerringly, cannot be overcome by oral testimony.
3. Automobiles.
Where automobile left road, ran over some rocks and came to a stop at railroad tracks and physical facts
demonstrated that driver did not have sufficient time or opportunity after automobile left road to comply
with a guest's request to stop and let her out and that events must have happened with such great rapidity
that it was improbable that guest could have determined, as she testified, that driver accelerated speed after
leaving road, evidence was insufficient as a matter of law to show that the driver was guilty of either
willful misconduct or gross negligence and guest was not entitled to recover for injuries. Laws 1933, c.
34, sec. 1.
Action by Grace Hart against Dudley Kline for injuries sustained while riding as a guest in
defendant's automobile. From a judgment for the defendant, plaintiff appeals. Affirmed.
(Taber, J., dissenting in part).
William S. Boyle and Thomas H. Grimm, both of Reno, for Appellant.
Morley Griswold and George L. Vargas, both of Reno, for Respondent.
61 Nev. 96, 97 (1941) Hart v. Kline
OPINION
Plaintiff brought this action to recover damages for personal injuries she sustained while
riding as a guest in defendant's automobile, which he was driving at the time of the accident.
Her causes of action were based on gross negligence and willful misconduct. When she
closed her case defendant moved for a nonsuit, which was granted.
The salient facts are: That around ten or eleven o'clock on the night of February 10, 1940,
plaintiff accepted an invitation from defendant to go with him for a ride in his automobile.
The car he was driving was a 1935 Packard coupe. They proceeded west from Reno about
five miles from the city limits to the Pit Club, a resort situated on the Verdi-Reno highway,
route No. 1, on the south side thereof. Route No. 1 is the main traveled highway extending
easterly and westerly. The Southern Pacific Railroad tracks where the accident happened are
located about one hundred yards south of route No. 1, and at that point parallel each other
generally. The south Verdi road, which also extends east and west at the point where the
accident happened, is about twenty-five feet south of the railroad tracks. The parties were at
the Pit club for about an hour and a half, and during that time drank four to six scotch and
sodas, two of those taken by defendant being what is called doubles. An hour or so after
midnight they left the Pit Club to return to Reno. Defendant drove across the railroad tracks
on a connecting road to the south of Verdi and turned towards Reno. Plaintiff objected to
their returning by this road on account, as she stated, of the night being snowy and the road
muddy, slippery, a very lonesome and desolate place. After going east about ten yards on
this road defendant stopped the car, and backed it up about forty yards, stopping on the road
at a point west of the railroad crossing and about twenty-five feet south of the railroad
tracks.
61 Nev. 96, 98 (1941) Hart v. Kline
about forty yards, stopping on the road at a point west of the railroad crossing and about
twenty-five feet south of the railroad tracks. They remained at this point a few minutes
arguing, and then defendant said, all right in an angry tone and started the car forward,
intending to go back over the railroad crossing and connecting road to route No. 1. From the
point where he started to the crossing the road makes almost a U-turn and ascends to the
crossing at an elevation of about three feet in the last twenty-five feet. It is about forty yards
from that starting point to the crossing. The southerly set of railroad rails where they approach
the railroad crossing on the east are on banks of earth about eighteen inches high, the rails
being about seven inches high. Near this point a few feet from the southernmost rail are
some rocks. Defendant failed to make the U-turn. The car left the road at the latter point
striking the rocks and continued on until stopped by striking the southernmost rail of the
tracks or embankment. Plaintiff also testified that when defendant started the car to go over
the crossing, he turned it to the left with great speed; that when he ran into the rocks, she
sort of screamed, Good Heavens, stop'; that when the car hit the rocks he continued to
drive right over them and stepped on the gas and went into the mound of earth and onto the
railroad tracks with terrific force. * * * When he hit the rocks I lost my balance and before I
could regain my balance I was hurled against the windshield and my head went through it. A
further version was given by her on cross-examination as follows:
A. After hitting the rocks, he continued on, stepped on the gas and we went right in here
between the mound of earth and the railroad track with terrific force.
Q. You continued right straight ahead to the railroad tracks? A. Yes, as if he tried to just
plow right over the railroad tracks to get back into the connecting road.
61 Nev. 96, 99 (1941) Hart v. Kline
Q. And you stopped when you hit the railroad tracks, then, is that it, at that point? A.
After hitting the rocks, we drove right over the rocks into the railroad tracks.
Q. And when he hit the rocks, that is when you made the exclamation that you testified to
yesterday? A. Yes.
Q. And after you made that exclamation, then was when he hit the railroad tracks, is that
right? A. Yes.
Q. And all that at terrific speed? A. Yes, he stepped on the gas when he went into the
railroad tracks.
Q. Well, how far was that distance? A. Just a very fewjust a few yards.
Q. Just a few yards? A. Yes.
On redirect she supplemented the above by the following:
Q. At what point then, did Mr. Kline, as you testify, step on the gas when he was over
here in these rocks? A. After he hit the rocks and stopped him, he stepped on the gas to
continue over the rocks and to plow over the railroad tracks.
Q. What, if anything, then, did you say at that junction, when he pulled into the rocks? A.
Told him, Good Heavens, stop the car and let me get out.'
Immediately after the impact defendant backed the car through the rocks to the connecting
road and drove back to the Pit Club. Plaintiff was injured about the head, and the car was
damaged. Under these circumstances, we are to say whether the law required the submission
of the case to the jury.
The Nevada vehicle guest statute (Stats. of Nevada 1933, ch. 34, p. 29, 30) provides in
part:
Any person who as a guest accepts a ride in any vehicle, moving upon any of the public
highways of the State of Nevada, and while so riding as such guest receives or sustains an
injury, shall have no right of recovery against the owner or driver or person responsible for
the operation of such vehicle. * * *
61 Nev. 96, 100 (1941) Hart v. Kline
Nothing in this section contained shall be construed as relieving the owner or person
responsible for the operation of a vehicle from liability for injury to or death of such guest
proximately resulting from the intoxication, willful misconduct, or gross negligence of such
owner, driver or person responsible for the operation of such vehicle.
The statute defines a guest as being a person who accepts a ride in any vehicle without
giving compensation therefor. It places the burden upon plaintiff to establish that such
intoxication, willful misconduct, or gross negligence was the proximate cause of such death
or injury. Intoxication is not in issue.
1. Counsel for the parties have presented many authorities on gross negligence and willful
misconduct. Gross negligence cannot be precisely defined. The best and most comprehensive
definition of gross negligence, distinguishing it from ordinary negligence, and from a willful
and intentional wrong, that we have been able to find, was given in Shaw v. Moore, 104 Vt.
529, 162 A. 373, 374, 86 A. L. R. 1139. It is the accepted definition of gross negligence in
that state, and is as follows:
Gross negligence is substantially and appreciably higher in magnitude and more culpable
than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a
slight degree of care. It is materially more want of care than constitutes simple inadvertence.
It is an act or omission respecting legal duty of an aggravated character as distinguished from
a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight
diligence, or the want of even scant care. It amounts to indifference to present legal duty, and
to utter forgetfulness of legal obligations so far as other persons may be affected. It is a
heedless and palpable violation of legal duty respecting the rights of others. The element of
culpability which characterizes all negligence is, in gross negligence, magnified to a higher
degree as compared with that present in ordinary negligence.
61 Nev. 96, 101 (1941) Hart v. Kline
negligence, magnified to a higher degree as compared with that present in ordinary
negligence. Gross negligence is manifestly a smaller amount of watchfulness and
circumspection than the circumstances require of a prudent man. But it falls short of being
such reckless disregard of probable consequences as is equivalent to a willful and intentional
wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind
from willful and intentional conduct which is or ought to be known to have a tendency to
injure.
The Vermont court adopted the above from the definition formulated by the supreme court
in Altman v. Aronson, 231 Mass, 588, 121 N.E. 505, 4 A. L. R. 1185. As stated by that court,
the definition is supported by the great weight of authority in other jurisdictions.
The trial judge was thoroughly conversant with the rule, as his oral opinion shows, and
properly applied it to the facts in granting the nonsuit. As a matter of law the jury could not
have legally found defendant guilty of either willful misconduct or gross negligence.
2, 3. The physical facts refute plaintiff's testimony as to the immediate happenings after the
car left the road to such an extent as to render it valueless. Physical facts, which speak the
truth unerringly, cannot be overcome by oral testimony. Weck v. Reno Traction Co., 38 Nev.
285, 149 P. 65. We have the testimony of plaintiff that the distance from where the car struck
the rocks to the railroad track was a few yards. The evidence is that from the point where the
car made its start from the standing position to the railroad embankment, the place of impact,
is forty yards. An inspection of exhibit 1 discloses the distance from the point where the car
left the road to the point of impact to be but a small portion of that distance. Physical facts
demonstrate that defendant did not have sufficient time or opportunity to comply with
plaintiff's request to stop and let her out. Defendant could not have become apprehensive of
danger until the car left the road, and in the short distance and almost split seconds given
him in which to act, he could not have avoided the crash.
61 Nev. 96, 102 (1941) Hart v. Kline
become apprehensive of danger until the car left the road, and in the short distance and almost
split seconds given him in which to act, he could not have avoided the crash. Keeping in mind
that the gross negligence imputed to defendant is alleged to have occurred between the time
the car left the road and after hitting the rocks, the element of time is further reduced, and the
consequent inability of the driver to act further demonstrated. The physical facts demonstrate
that the events must have happened with almost as great rapidity as the successive thoughts of
her mind, sudden realization of peril, followed by immediate injury. It is improbable that a
person thrown off balance and engaged in endeavoring to save herself from harm would be
able to take account of the amount of pressure being exerted on the throttle. Giving the
testimony of plaintiff, to the effect that the car was traveling at great speed, a most
conservative interpretation, and taking, for example, a speed of forty miles per hour, and also
a liberal view of the distance from the point the car left the road to the point of impact, and
placing such distance at thirty feet, then the time required for the car to travel said distance at
said speed, would be about half a second, and it would require 128 feet to stop the car,
traveling at forty miles per hour. Here defendant had about thirty feet in which to act. Stress is
laid on the testimony that the rocks acted as an impediment to the speed and lengthened the
elapsed time required to travel the approximate thirty feet from the time the car left the road
to the point of impact. Again we have recourse to the physical facts. Comparing the size of
the rocks with other objects as they are disclosed in exhibit 1, we find the rocks not to be
large boulders such as would materially block the path of the car, but they are of a size that a
car with the power known to be possessed by a Packard coupe, traveling at a reasonably high
speed, could pass over without an appreciable lessening of the speed. What does plaintiff say
about this? "When he hit the rocks I lost my balance and before I could regain my balance
I was hurled against the windshield and my head went through it."
61 Nev. 96, 103 (1941) Hart v. Kline
does plaintiff say about this? When he hit the rocks I lost my balance and before I could
regain my balance I was hurled against the windshield and my head went through it. These
were crowded moments. The car would plow through those rocks without requiring further
acceleration than the speed of forty or more miles per hour. The defendant had no difficulty in
backing the car through the rocks to the road.
Failing to stop and let plaintiff out in the fraction of a second involved, and applying the
gas after hitting the rocks, are the dereliction and act relied on to establish willful misconduct
or gross negligence. The circumstances do not sustain the proposition. Speed and distance
traveled, the exigency of the situation all refute it.
The judgment of nonsuit should be affirmed, and it is so ordered.
Orr, J., I concur.
Taber, J., dissenting in part:
I think the trial court was right in taking the case from the jury on the issue of willful
misconduct. 22 Cal. Law Rev. 119, 121; 2 Cal. Jur., 10 Year Supp., Automobiles, sec. 373,
pp. 575-577. On the issue of gross negligence, however, it is my opinion that the case should
have gone to the jury.
Section 8793 N. C. L. 1929, as amended (Stats. of Nev. 1939, ch. 36, p. 33), provides, in
part, that a judgment of nonsuit may be entered by the court, upon motion of the defendant,
when upon the trial the plaintiff fails to prove a sufficient case for the court or jury. If, on the
evidence in this case, reasonable men could come to only one conclusion, namely, that
plaintiff's injury was not the proximate result either of defendant's willful misconduct or gross
negligence, his motion for nonsuit was properly granted. Crosman v. Southern Pac. Co., 44
Nev. 286, 194 P. 839; Blinn v. Hatton, Mont., 114 P.{2d) 51S.
61 Nev. 96, 104 (1941) Hart v. Kline
Mont., 114 P.(2d) 518. If, on the other hand, reasonable men could fairly conclude from the
evidence that plaintiff's injury was the proximate result of defendant's willful misconduct or
gross negligence, or both, then the case should not have been withdrawn from the jury. Weck
v. Reno Traction Co., 38 Nev. 285, 149 P. 65. The burden was upon plaintiff to establish a
prima facie case.
In considering the trial court's ruling granting the nonsuit, this court must take as proven
every fact which the plaintiff's evidence tended to prove, and which was essential to her
recovery, and give her the benefit of all legal presumptions arising from the evidence. Patchen
v. Keeley, 19 Nev. 404, 14 P. 347; Fox v. Myers, 29 Nev. 169, 86 P. 793; Burch v. Southern
Pacific Co., 32 Nev. 75, 104 P. 225, Ann. Cas. 1912b, 1166; McCafferty v. Flinn, 32 Nev.
269, 107 P. 225; Weck v. Reno Traction Co., supra; Crosman v. Southern Pacific Co., supra;
Cann v. Williams Land & Livestock Co., 56 Nev. 242, 48 P.(2d) 887.
In Gough v. Smalley, 160 Wash. 193, 294 P. 1007, 1010, the court says: In view of the
many other facts with which the record bristles, were we the triers of the fact we would have
no difficulty in reaching the conclusion that the evidence failed to establish gross negligence,
but we are not here the triers of the fact. We are only permitted to determine whether there
was any substantial evidence from which a reasonable inference might be drawn by the jury
that the driver, Smalley, did not exercise even slight care, and we are convinced that a jury
believing the witnesses we have quoted might have drawn such an inference. See, also,
Wigmore on Evidence (3d ed.), vol. 9, pp. 304, 305; Reid v. Maryland Casualty Co., 5 Cir.,
63 F.(2d) 10, 11; 64 C.J., Trial, secs. 1028, 1030.
If defendant, after negligently driving off the road, had been guilty of no further
negligence, I would agree that plaintiff had not made out a prima facie case for the jury.
61 Nev. 96, 105 (1941) Hart v. Kline
the jury. DeSimone v. Pedonti, 308 Mass. 373, 32 N.E. (2d) 612. But we have the positive
testimony of plaintiff that when the car ran into the rocks she asked defendant to stop the car
and let her out, but that instead of doing so, he stepped on the gas to continue over the rocks
and to plow over the railroad track. Thus defendant, having already negligently brought
plaintiff, as well as himself, into a dangerous situation, increased the peril by a new and
further act of negligence. This, in my opinion, was sufficient to carry the case to the jury on
the question of gross negligence. White v. McVicker, 216 Iowa 90, 246 N.W. 385, 390.
My associates take the view that plaintiff's testimony relating to the happenings after the
car left the road is refuted by the physical facts to such an extent as to render it valueless. The
general rule that undisputed physical facts which speak the truth unerringly cannot be
overcome by oral testimony is well settled in this state, as well as in other jurisdictions. Weck
v. Reno Traction Co., supra; 20 Am. Jur. 1033, 1034, Evidence, sec. 1183. But, as stated in
the last two sentences of said sec. 1183, It is often said, however, that an extraordinary case
is required to authorize the court to regard sworn testimony as manifestly impossible and
untrue. So frequently do unlooked-for results attend the meeting of interacting forces that
courts should not indulge in arbitrary deductions from physical law and fact except where
they appear to be so clear and irrefutable that no room is left for the entertainment, by
reasonable minds, of any other.
The general rule, though recognized in the Weck case, was held to be inapplicable under
the facts in that case. The court, however, gave an example to which the rule would be
applicable [38 Nev. 285, 149 P. 67]: If two engines had approached each other along a
railway track at the rate of 25 miles an hour and were 400 feet apart, it could be told exactly
how long it would have taken them to meet. In this supposed case we have two fixed,
positive facts to figure on, namely, the distance the engines are apart and the exact speed
at which they are traveling.
61 Nev. 96, 106 (1941) Hart v. Kline
fixed, positive facts to figure on, namely, the distance the engines are apart and the exact
speed at which they are traveling. If a witness were to testify that it took two minutes for the
two engines to collide, we could ascertain the correctness of his testimony by invoking the
science of mathematics. In the present case we have no such fixed, positive facts to figure
on; and where, as here, we are dealing with a motion for nonsuit, the rule should be applied
only when the physical facts so clearly contradict the oral testimony that reasonable minds
could not accept it as the truth.
The majority opinion states that defendant did not have sufficient time or opportunity to
comply with plaintiff's request to stop and let her out; it appears to be based upon the idea
that by reason of the short distance from the road through the rocks to the track, and the speed
of the car, the only reasonable conclusion is that the car, after leaving the road, went through
the rocks and crashed into the railroad track or embankment in only a fraction of a second of
time, and without being slowed up to any appreciable extent. This view, in my opinion, not
only fails to give plaintiff's testimony the favorable consideration to which it is entitled on a
motion for nonsuit, but also takes from the jury several questions of fact which properly
should receive its consideration, for instance, whether the rocks may have slackened the
speed of the car to an extent which would have enabled defendant to further decelerate its
speed instead of accelerating it as testified by plaintiff. When asked at what point defendant
stepped on the gas, plaintiff replied After he hit the rocks and stopped him, he stepped on the
gas to continue over the rocks and to plow over the railroad track. When considered with
other testimony of plaintiff concerning the happenings after the car left the road, the words
and stopped him could be understood by a jury of reasonable men to mean that the car was
slowed up when it ran into the rocks. So, if defendant had then depressed the brake instead of
the accelerator, reasonable men might conclude that defendant could have stopped the car
entirely before it struck the railroad embankment, or at least have checked its speed to
such an extent that plaintiff, if hurt at all, would have been injured much less seriously
than she was.
61 Nev. 96, 107 (1941) Hart v. Kline
conclude that defendant could have stopped the car entirely before it struck the railroad
embankment, or at least have checked its speed to such an extent that plaintiff, if hurt at all,
would have been injured much less seriously than she was. If for any reason defendant did not
or could not apply the brakes, he could at least have refrained from accelerating the car's
speed.
The rate of speed at which the car was traveling when it left the road is a question which
should properly receive the consideration of the jury. The prevailing opinion says that from
the point where the car made its start from the standing position to the railroad embankment,
is forty yards. In respondent's answering brief it is said that the car was stopped within ninety
(90) feet of where the accident took place. The testimony is that after going ten yards
towards Reno on the south Verdi road, the car was stopped and backed up forty yards. The
prevailing opinion also fixes forty miles per hour as a conservative estimate of the speed of
the car; but in view of the short distance, the muddy road, the up-grade, the sharp curve, and
the start from a standing stop, it is submitted that a jury could reasonably estimate the rate of
speed as substantially less than forty miles per hour.
My associates take the view that the rocks were of such a size that the car could have
passed over them without an appreciable lessening of the speed. This, I think, is also a
question which should have been left to the jury. Defendant's photographic exhibit 1 shows,
by comparison with the seven-inch rails, that some of the rocks appear to be at least nine or
ten inches long. Furthermore, they are not smooth and rounded, but rough and irregular in
shape. Those nearest the railroad embankment appear to be but a few feet from it, but
defendant's photographic exhibit 2 shows that the rocks extend from this point for a distance
of some ten or fifteen feet at least. According to plaintiff's testimony, the distance from where
the car hit the rocks to place it struck the railroad embankment was a few yards, not just a
few feet.
61 Nev. 96, 108 (1941) Hart v. Kline
place it struck the railroad embankment was a few yards, not just a few feet. Nor should it be
overlooked that plaintiff requested the trial court to permit the jury to view the scene of the
accident. Had this application been granted, the jury could not only have seen the size, shape,
number and arrangement of the rocks, but also could have observed the distance from where
the car started to the place it left the road, and the distance from the latter point to the railroad
embankment.
An automobile, leaving a road and running into rocks, may have its speed retarded very
little by them, may be stopped completely, or be slowed up to any extent between these two
extremes according to the size, shape, number and arrangement of the rocks, and other
factors. This being true as a matter of fact, I find myself unable to say as a matter of law that
reasonable men might not conclude, from plaintiff's testimony, that when the car ran into the
rocks it was slowed up appreciably at least. That defendant was able to back the car away
from the embankment is strong evidence that the rocks were not such as to stop the car
entirely when it was driven off the road into them; it is by no means, however, conclusive
evidence that the rocks did not appreciably diminish the speed of the car when it left the road
and struck them. The record is silent as to whether any difficulty was encountered in backing
the car away from the railroad.
While unable to agree with the trial court that plaintiff's evidence was insufficient to make
a case for the jury under the guest statute, I am in full accord with that court's statement that
plaintiff's testimony should be taken most favorably to her. In this connection the trial judge,
in his oral opinion, said: We have the evidence, and it must be taken most favorably to the
plaintiff, that the car struck some rocks, and that she asked to be permitted to get out and that
instead of permitting her to get out the driver stepped on the accelerator and the car hit the
embankment or railroad tracks and she was thrown through the windshield."
61 Nev. 96, 109 (1941) Hart v. Kline
and she was thrown through the windshield. Thus the position of the trial court appears to be
that plaintiff's evidence, even when taken, as it should be on motion for nonsuit, most
favorably to her, is insufficient to make a case for the jury on the issue of gross negligence.
The court does not, so far as I can see, hold that the physical facts refute the oral testimony, or
make it valueless. The physical facts discussed in the majority opinion are not so fixed, or
established with such certainty or definiteness, as to justify the application of the physical
facts rule.
As neither of plaintiff's causes of action was based upon intoxication she could not, of
course, recover on that ground; but the fact that defendant had had some drinks, that he was
angry, and that plaintiff requested him to stop the car and let her out, are circumstances
properly to be considered with all the other facts and circumstances in the case as having a
bearing upon the question of the host's indifference to and disregard of his guest's safety.
O'Neill v. McDonald, 301 Mass. 256, 16 N. E.(2d) 866; Berry, Automobiles, Seventh Ed.,
vol. 5, p. 136; Fenstermacher v. Johnson, 138 Cal. App. 691, 32 P.(2d) 1106, 1107.
The writer is not to be understood as saying that, had defendant rested his case
immediately after plaintiff rested hers, and the case then been given to the jury, it would have
been the duty of the jury to find that defendant had been guilty of gross negligence. The jury,
after weighing the testimony, could reasonably have concluded that plaintiff had failed to
make out a case of gross negligence on the part of defendant; but I think it is just as true that
as reasonable men they could have found that defendant was guilty of gross negligence. The
trial court, as shown by its oral opinion, proceeded upon the theory that in case of this kind
plaintiff must show such facts that the court can say, as a matter of law from those facts that
there has been gross negligence. I cannot agree with that view.
61 Nev. 96, 110 (1941) Hart v. Kline
It is true that under the guest statute plaintiff has the burden of proving the alleged gross
negligence; but, as against a motion for nonsuit, that burden is met when he presents
substantial evidence from which a jury could reasonably conclude that defendant was grossly
negligent. Gough v. Smalley, supra; Storm v. Thompson, 155 Or. 686, 64 P.(2d) 1309, 1312.
October 2, 1941
Per Curiam:
Rehearing denied.
Taber, J., dissenting.
____________
61 Nev. 110, 110 (1941) Garaventa v. Garaventa
THE STATE OF NEVADA, on Relation of FRANK L. GARAVENTA, Relator, v.
GARAVENTA LAND & LIVESTOCK COMPANY, a Corporation, JOSEPH A.
GARAVENTA, as Director, President, and Treasurer, and WILLIAM E.
GARAVENTA, as Director of said Corporation, Respondents.
No. 3347
November 6, 1941. 118 P.(2d) 703.
1. Discovery.
In mandamus proceeding to compel corporation officers to deliver corporation's books and records to
relator as secretary of corporation or exhibit them to him as stockholder for inspection, questions raised by
respondents on hearing of relator's motion to require respondents to permit inspection of certain books and
records as to whether complaint in main proceeding states facts sufficient to constitute cause of action,
whether proceeding is to try title to office, whether mandamus is proper remedy, and whether relator has
plain, speedy and adequate remedy in ordinary course of law by quo warranto, must be determined from
face of complaint, regardless of denials in answer. Comp. Laws, secs. 1679, 8963.
2. Corporations.
A stockholder as such is not an officer of corporation, but secretary thereof is such an officer and holds
office until his successor is chosen and qualifies.
3. Mandamus.
Mandamus is proper remedy to compel corporation officers to deliver corporation's books, records and
papers to its secretary and permit inspection thereof by him as stockholder. Comp. Laws, sec. 1679.
4. Discovery.
In mandamus proceeding, complaint held to state facts sufficient to constitute cause of action, not to try
title to office, but to compel corporation officers to deliver its books, records and papers to relator as
corporation's secretary and permit inspection thereof by him as stockholder, so as to require granting of his
motion to require respondents to allow such inspection, as questions whether relator was or is stockholder
and secretary of corporation and entitled as such to custody and control of its books, records, etc., must be
tried and determined in main proceeding. Comp. Laws, secs. 1679, 8963.
5. Courts.
In mandamus proceeding, brought in supreme court, to compel corporation's officers to deliver its books,
records, etc., to relator as its secretary or exhibit them to him for inspection as stockholder, relator's motion
to require respondents to allow inspection of described books, records, etc., by relator should be heard and
determined in supreme court as court in which main proceeding is pending, not in district court, but
supreme court may order trial in district court of issues raised by respondent's return and answer to
alternative writ and complaint. Comp. Laws, secs. 1679, 8963, 9247.
6. Discovery.
In mandamus proceeding to compel corporation's officers to deliver its books, records, etc., to relator as
its secretary or exhibit them to him for inspection as stockholder, relator, filing motion to require
respondents to permit him to inspect and take copies of described books, records and papers of
corporation, entitled to order for inspection and copies of corporation's bylaws and minutes of its board of
directors only, as such minutes may be expected to show who is corporation's secretary, though other books
and records thereof may also contain something indicating secretary's identity. Comp. Laws, secs. 1635,
1679, 8963.
7. CorporationsDiscovery.
In absence of statute giving custody or control of corporation's books, papers and records to its secretary,
its stockholders or directors may prescribe person who shall have custody thereof, so that corporation's
bylaws and minutes of directors' and stockholders' meetings must be inspected to ascertain whether
secretary has right to such custody and control.
8. Courts.
In mandamus proceeding to compel corporation's officers to exhibit its books, bylaws and stock ledger to
relator for inspection, supreme court will not grant relator's motion to require respondents to permit
inspection of corporation's stock certificate book and stock ledger or duplicate
thereof, though such book and ledger would be expected to show whether relator is
stockholder of corporation, as granting of such motion would award him right of
inspection prayed for in main proceeding.
require respondents to permit inspection of corporation's stock certificate book and stock ledger or
duplicate thereof, though such book and ledger would be expected to show whether relator is stockholder
of corporation, as granting of such motion would award him right of inspection prayed for in main
proceeding. Comp. Laws, secs. 1679, 8963.
Original Proceeding by the State, on the relation of Frank L. Garaventa, for a writ of
mandamus commanding the Garaventa Land & Livestock Company, Joseph A. Garaventa, as
Director, President, and Treasurer thereof, and another to deliver its seal, books, records,
bylaws, documents and papers to relator as its secretary or exhibit them for his inspection as
stockholder and permit him to make extracts therefrom. On relator's motion to require
respondents to permit relator to inspect and take copies of certain books, records and papers
of respondent corporation. Order that respondent permit relator, his agents and attorneys
to inspect and take copies of corporation's bylaws and minute books of its stockholders'
and directors' meeting within stated time.
H. R. Cooke and John Davidson, both of Reno, for Relator.
Springmeyer & Thompson, of Reno, for Respondents.
OPINION
In August of the present year relator filed a verified complaint in this court praying for a
writ of mandamus. The complaint alleged that at the time of its filing and when the demands
hereinafter mentioned were made, relator was a stockholder in and a director and the
secretary of respondent corporation; that at said times respondent Joseph A. Garaventa was a
director and the president and treasurer of said corporation, and resident agent in charge of
its principal office; that the bylaws provided that the secretary of the corporation should
at all times have charge and custody of its seal, books, records, papers, and documents;
that at said times respondent Joseph A.
and resident agent in charge of its principal office; that the bylaws provided that the secretary
of the corporation should at all times have charge and custody of its seal, books, records,
papers, and documents; that at said times respondent Joseph A. Garaventa had possession of
the seal and all the books, records and documents of said corporation; that prior to the filing
of said complaint relator demanded of said respondent that he deliver said seal, books,
records and documents to relator, and further demanded that said respondent permit relator to
inspect all of said books, documents and records; that relator's said demands have not been
complied with, as the result of which he has been deprived of information necessary to enable
him to decide and determine upon the value of his stock and his future course as a
stockholder of respondent corporation.
The prayer of the complaint asked that an alternative writ be issued directed to respondent
Joseph A. Garaventa, (a) commanding him to deliver said seal, books, records, bylaws,
documents, and papers to relator as secretary of the corporation; (b) commanding said
respondent, in the event such delivery be deferred, or not granted as prayed for, to exhibit to
relator for his inspection the books, bylaws and stock ledger of said corporation and permit
relator to make extracts from said records; and (c) commanding said respondent to exhibit to
relator for his inspection the bylaws of said corporation and the book of record containing the
minutes of meetings of the board of directors and of stockholders, and to permit relator to
take extracts therefrom.
Upon presentation of the complaint to one of the justices of this court, an order was made
that the alternative writ issue as prayed for, whereupon it was issued by the clerk, who used
the form prepared by relator's counsel. The recitals of the writ conform to those in the
complaint, but the only mandate in the writ is that respondent Joseph A. Garaventa deliver to
relator, as secretary of the corporation, its seal and all its books, records, bylaws, documents
and papers in his possession or under his control, or show cause for not doing so.
its books, records, bylaws, documents and papers in his possession or under his control, or
show cause for not doing so. The writ does not command that any inspection be allowed, or
the taking of any copies permitted.
In due time respondents, in one pleading, filed their return to the alternative writ and their
answer to the complaint. In this pleading respondents deny, among other things, that relator is
a stockholder in or a director or the secretary of the corporation, deny that at the times when
the demands for delivery and inspection were made relator was, or has at any time since been,
a stockholder in or a director or the secretary of respondent corporation, and deny that the
bylaws provide that the secretary of the corporation should at all times have charge and
custody of its seal, books, records, papers and/or documents.
A few days after the respondents filed their said return and answer, relator noticed a
motion for an order requiring respondents to give him an inspection and permission to take a
copy of the following described books, records or papers of respondent corporation: Stock
certificate book, stock ledgers, duplicate stock ledgers, copies of income tax returns, copies of
capital stock tax returns, minute book, bylaws of said respondent corporation and canceled
certificates of stock. It is this motion that is now before the court. It is based on the ground
that such inspection and taking of copies is necessary to enable relator to establish the
allegations of his complaint, and that he cannot safely proceed to trial without such inspection
and taking of copies. The motion is made under the provisions of sec. 8963 N.C.L. 1929, the
pertinent part of which reads: Any court in which an action is pending, or a judge thereof
may, upon notice, order either party to give to the other within a specified time an inspection
and copy, or permission to take a copy of any book, document, or paper in his possession, or
under his control, containing evidence relating to the merits of the action, or the defense
therein.
1. Respondents contended that the motion should be denied, for the reason that the
complaint in the main proceeding does not state facts sufficient to constitute a cause of
action. They assert that the proceeding is in effect one to try title to an office, that mandamus
is not the proper remedy in such a case, and that relator has a plain, speedy and adequate
remedy in the ordinary course of law, namely, quo warranto. These questions must be
determined from the face of the complaint, regardless of any denials in the answer.
The complaint alleges that relator is, and at the time of the demands hereinbefore
mentioned was, secretary of respondent corporation, and that under the provisions of the
bylaws, as such secretary, he is entitled to have charge and custody of the seal, books,
records, papers and documents of the corporation. It further alleges that relator is, and at the
time of said demands was, a stockholder in said corporation. Section 1679 N.C.L. 1929
provides in part that the stock ledger, or duplicate thereof, shall be open daily, except
Sundays and holidays, during at least two business hours, for inspection by any stockholder,
who may also make extracts therefrom.
Whether relator was or is the secretary of and a stockholder in the corporation, or either
such secretary or stockholder, are, it is true, material issues; but the main purpose of the
action is not to try title to an office, but to compel delivery of the seal, books, records and
papers to relator as secretary; or, in the alternative, to compel respondents to permit relator to
inspect said books, records and papers and take extracts therefrom.
2. A stockholder as such is not an officer of a corporation. The secretary, however, is an
officer of the corporation who holds office until his successor is chosen and qualifies; but it is
nowhere alleged that any person other than relator is claiming the office, or that it is being
filled, de facto or otherwise, by any other person.
3, 4. Relator has chosen the proper remedy. 18 C.J.S., Corporations, sec. 191, p. 611, n.
54; 13 Am.
Jur. 491, n. 13. It is also the opinion of the court that the complaint states facts sufficient to
constitute a cause of action, both for the delivery of the books, records, and papers to relator
as secretary, and for inspection by him as a stockholder. Whether relator was or is a
stockholder is a question to be tried and determined in the main proceeding; so, also, is the
question whether he was or is the secretary of the corporation, and if so, whether he is entitled
to have the custody and control of its seal, books, records and papers.
5. Respondents contend that in view of the provisions of sec. 9247 N. C. L. 1929 this
motion, as well as the main proceeding, should be heard and determined in the district court;
but sec. 8963 N. C. L. 1929, under the provisions of which this motion has been made,
expressly provides that it is the court in which the action is pending that may order either
party to give the other an inspection and copy. The questions which may be tried in the
district court under the provisions of said sec. 9247 are those raised by the pleadings in the
main proceeding. An order made under the provisions of said sec. 8963 does not direct the
trial of any issue. As this court is the one in which the main proceeding is pending, the order,
if any, for discovery should be made here; but this court under the provisions of sec. 9247
may order the issues raised by respondents' return and answer to the alternative writ and
complaint to be tried in the district court.
6. We think relator is entitled to an order of inspection and copy in connection with his
prayer that the seal, books, records, and papers of the corporation be delivered to him as its
secretary; but the order should be limited to bylaws and minutes. As the secretary, under our
statute (sec. 1635 N. C. L. 1929), is chosen by the board of directors, the minutes of that
board may be expected to show who the secretary is. The fact that there might be something
in some of the other books, papers, records, and documents of the corporation to indicate who
the secretary is, is not, in our opinion, sufficient basis for a sweeping pre-trial inspection of
all of them.
sufficient basis for a sweeping pre-trial inspection of all of them.
7. Our statute does not give custody or control of the corporation's books, papers and
records to the secretary. In the absence of such statute, and the corporation itself being the
owner and entitled to the possession of its books, papers and records, the stockholders or
directors may prescribe the person who shall have custody of them. 18 C. J. S., Corporations,
sec. 191, p. 611. To ascertain, therefore, whether the secretary of a Nevada corporation has
the right to the custody and control of its books, papers and records, it is the bylaws, and the
directors' and stockholders' minutes which are to be inspected.
8. We have now to consider relator's motion with reference to the prayer for inspection
contained in his complaint. It is true that the stock certificate book and the stock ledger or the
duplicate stock ledger would be expected to show whether relator is a stockholder; but, if the
court were at this time to grant him the right to inspect those books, it would be awarding
him, on the motion now before the court, the right of inspection prayed for in the main
proceeding. This, as we view it, would not be a proper exercise of discretion.
It is the order of the court that respondents give to relator, his agents and attorneys, an
inspection and permission to take copies of the bylaws of respondent corporation, and of the
minute books of all stockholders' and directors' meetings of said corporation; that a certified
copy of this opinion be forthwith sent to respective counsel by registered mail with return
receipt demanded, and that said right to inspect and permission to take copies be given relator
by respondents within ten days of the receipt by counsel for respondents of said certified copy
of this opinion.
____________
61 Nev. 118, 118 (1941) Quilici v. Thompson
D. E. QUILICI, Appellant, v. F. P. THOMPSON, Respondent.
No. 3341
December 3, 1941. 119 P.(2d) 710.
1. Bankruptcy.
Where bankruptcy schedule, in listing judgment, did not give judgment creditor's address nor state that
his address was unknown, the claim was not duly scheduled and hence was not discharged in absence of
actual knowledge of the bankruptcy by creditor. Bankr. Act secs. 7, 17, 11 U. S. C. A. secs. 25, 35.
2. Bankruptcy.
A discharge in bankruptcy does not release a bankrupt from a provable debt which has not been duly
scheduled in time for proof and allowance, unless creditor had notice of the bankruptcy proceedings.
Bankr. Act secs. 7, 17, 11 U. S. C. A. secs. 25, 35.
3. Bankruptcy.
Where claim against bankrupt was not duly scheduled, bankrupt had burden of showing that creditor had
notice of the bankruptcy proceedings as ground for claiming discharge in bankruptcy. Bankr. Act. secs. 7,
17, 11 U. S. C. A. secs. 25, 35.
4. Bankruptcy.
Where stipulation recited that notices were sent to creditors by mail at the address mentioned in the
schedule, the presumption that a letter duly directed and mailed was received in regular course of mail had
no effect to show actual notice of bankruptcy proceedings to creditor whose address was not mentioned
in the bankruptcy schedule. Bankr. Act secs. 7, 17, 11 U. S. C. A. secs. 25, 35; Laws 1931, c. 50, p. 60,
sec. 558g, subd. 24.
5. Evidence.
The presumption that a letter duly directed and mailed was received in regular course of mail is
rebuttable. Laws 1931, c. 50, p. 60, sec. 558g, subd. 24.
6. Bankruptcy.
Where judgment debtor, without knowledge of assignment of judgment, went through bankruptcy but did
not duly schedule the debt in the name of anyone, the debt survived bankruptcy discharge, and when
judgment was reassigned to original judgment creditor he became subrogated to assignee's rights. Bankr.
Act secs. 7, 17, 11 U. S. C. A. secs. 25, 35.
7. Bankruptcy.
A bankrupt must schedule a claim in the name of an assignee only if he has notice of the assignment, and
assignee who does not give such notice cannot complain that claim was not scheduled in his name
if debt has been discharged by duly scheduling it in name of original holder.
was not scheduled in his name if debt has been discharged by duly scheduling it in name of original holder.
Bankr. Act secs. 7, 17, 11 U. S. C. A. secs. 25, 35.
Appeal from Fourth Judicial District Court, Elko County; L. O. Hawkins, Presiding Judge.
Proceeding by F. P. Thompson against D. E. Quilici, to enforce judgment. From an
adverse judgment, defendant appeals. Affirmed.
H. U. Castle, of Elko, for Appellant.
J. Garrison Gemmill, of Los Angeles, Calif., and Milton B. Badt and Orville R. Wilson,
both of Elko, for Respondent.
OPINION
We have before us two propositions for determination:
First, was the judgment procured by respondent on the 6th day of November 1933, in the
District Court of Elko County, discharged by bankruptcy proceedings subsequently instituted
by appellant on the 10th day of September 1934 in the District Court of the United States for
the District of Nevada;
Second, if the said judgment was not discharged by said bankruptcy proceedings, is
respondent in a position to assert his right thereto and thereunder in view of the fact that the
said judgment was assigned by respondent to Harry Beer before the said bankruptcy
proceedings were instituted by appellant.
The facts are as follows:
On November 6, 1933, respondent secured a judgment in the District Court of Elko
County against appellant, in the sum of $2,073.38, with costs and interest. On December 7,
1933, respondent assigned said judgment to Harry Beer, as security for the payment of a
promissory note given by respondent to said Harry Beer.
to Harry Beer, as security for the payment of a promissory note given by respondent to said
Harry Beer. On the 10th day of September 1934 appellant filed his voluntary petition in
bankruptcy in the District Court of the United States for the District of Nevada, and on the
same date he filed schedules in bankruptcy, and in the said schedules set forth the judgment
of respondent as follows:
Judgment in favor of F. P. Thompson,
District Court, Elko County, Nevada........$2,083.38
(with interest from Nov. 6, 1933)
A referee was designated by the United States district court for this proceeding, and
proceeded to administer the bankrupt's estate. Proof of action taken by the referee in giving
notice to creditors is contained in a stipulation filed in this cause, which reads, in part:
That notice of the first meeting of creditors and the notice of the final meeting of
creditors in the matter mentioned above were both published as required by law and also a
copy of the notices mentioned was sent to each of the creditors by mail at the address
mentioned in the Schedule within the time required by law. Each notice mailed as aforesaid
was sent in a sealed envelope and postage thereon paid in advance, and on the upper left hand
corner of the envelope was printed the address of the referee in bankruptcy acting in said
matter, and none of the notices mailed as aforesaid, were ever returned.
Respondent testified that his address on September 10, 1934, and his place of residence,
was the Colonial Hotel, Reno, Nevada; that he had resided at that place since the spring of
1929, except for a sojourn in the State of Idaho for about a year in 1932 and 1933, and that he
maintained his legal residence in Reno, Nevada, during said time; that appellant was in
business in Reno in 1929 and 1930, and visited respondent at his place of residence at the
Colonial Hotel in Reno, Nevada. Respondent testified that he did not receive notice of the
first meeting of creditors, nor of the final meeting, nor did he receive any notice of the
bankruptcy proceedings, and did not know of the proceedings for discharge in bankruptcy
until September 1939.
nor did he receive any notice of the bankruptcy proceedings, and did not know of the
proceedings for discharge in bankruptcy until September 1939. With reference to the lack of
notice, the trial court found in accordance with the testimony of respondent.
On the 14th of September 1939, Harry Beer reassigned the said judgment to respondent,
and respondent testified that he attempted to levy execution upon the property of appellant
after said reassignment, and then learned for the first time of the bankruptcy proceedings and
purported discharge in bankruptcy.
1, 2. The trial court found that the bankruptcy proceedings did not discharge respondent's
judgment, and we believe such finding is correct. A discharge in bankruptcy does not release
a bankrupt from a provable debt which has not been duly scheduled in time for proof and
allowance, unless the creditor had notice or actual knowledge of the proceedings in
bankruptcy. 11 U. S. C. A. sec. 35.
It will be noted that in scheduling the debt due the respondent from appellant because of
said judgment, no address of the judgment debtor was given, nor was his address given as
unknown. By such failure the bankrupt did not comply with 11 U. S. C. A. sec. 25, which
prescribes: The bankrupt shall * * * prepare * * * a schedule * * * showing * * * a list of his
creditors, showing their residences, if known, if unknown that fact to be stated * * *.
No compliance being made with said 11 U. S. C. A. sec. 25, relative to residence, the
claim was not duly scheduled. See 6 Am. Juris. 617, sec. 509, sec. 60; Gilbert's Collyer on
Bankruptcy (4th ed.) secs. 561, 562, and 563.
3-5. The creditor's claim not having been duly scheduled, the next question is: did the
creditor have actual knowledge of the bankruptcy proceeding? The burden of showing that
the creditor had notice or actual knowledge of the bankruptcy proceedings rests upon
appellant. Remington on Bankruptcy (4th ed.), p. 804, sec. 3578.
The respondent met the required prima facie showing of lack of notice. This was established
by the direct testimony of the respondent. Appellant attempts to refute such direct testimony
by reference to various inferences and presumptions. The chief inference sought to be drawn
by appellant is that respondent was advised of the proceedings by notices mailed to him by
the referee in bankruptcy, and relies on the presumption that a letter duly directed and mailed
was received in the regular course of the mail. Subsection 24, under sec. 558g, chap. 50 of
the 1931 session laws of Nevada. We fail to see wherein the said presumption can have any
force or effect in the instant case. The stipulation referred to, supra, recites that notices were
sent to the creditors by mail at the address mentioned in the Schedule. There was no
address given in the schedule for F. P. Thompson, hence a notice to him could not have been
duly directed. Further, the presumption relied on is a rebuttable one, and the direct evidence
given by respondent as to his failure to receive notice was accepted by the trial court, and we
see no sufficient reason to disturb the trial court's finding in respect thereto.
6, 7. Taking up the second proposition urged by appellant, we find no notice was given
appellant Quilici of the assignment to Beer, and at the time of the scheduling of his debts by
the bankrupt, insofar as he was advised, respondent was the owner and holder of the
judgment. Appellant's position, as we understand it, is that ownership of the claim at the time
the bankruptcy proceedings were pending determines the person who could take advantage of
failure to duly schedule the claim. It seems that in determining this question we should not
concern ourselves so much with the ownership of the claim during the period mentioned as
we should with the procedure followed by the bankrupt in attempting to discharge the said
claim, and thus ascertain whether the debt is valid and subsisting after the bankruptcy
proceedings, or was discharged thereby.
The bankruptcy law has wisely provided that a person taking advantage of its provisions
should not be placed under the necessity of searching out records and to indulge in other
activities in order to ascertain the ownerships of debts owing, and that unless he has been
advised to the contrary he may proceed on the assumption that the original debtor is the
owner and holder of the debt in question, and may proceed to discharge the debt by duly
scheduling the same in the name of the original owner. A debt, to be discharged, must be duly
scheduled in the name of some one. Here, Quilici had no knowledge of the assignment; the
law gave him the privilege of scheduling the judgment in the name of Thompson, and had he
done so he could have discharged the debt without concern as to whether or not an
assignment to Beer had been made. Having failed to duly schedule the debt in the name of
any one, the debt survived the bankruptcy discharge, in the hands of Beer, and when the
judgment was reassigned to Thompson, he became subrogated to the rights of Beer.
Calmenson v. Moudry, 137 Minn. 123, 162 N. W. 1076. After such reassignment by Beer to
Thompson, Thompson could sue on the debt, as the owner thereof. The fact that Thompson
was the original owner of the judgment and did not own it during the bankruptcy proceedings
would not change his position in relation thereto after the reassignment, in any manner
whatsoever. The bankrupt is under obligation to schedule a claim in the name of an assignee
only in the event that he has notice of such an assignment, and if an assignee fails to give
such notice, such assignee cannot complain that a claim was not scheduled in his name, in the
event that the said debt has been discharged by duly scheduling it in the name of the original
holder. We think this follows irrespective of whether an assignment has been perfected or
not.
We have carefully considered the cases cited by appellant in support of the proposition that
respondent Thompson is not in a position to question the regularity of the bankruptcy
proceedings because of the assignment to Beer, and we find nothing contained in said
cases which is contrary to the conclusions we have reached.
Thompson is not in a position to question the regularity of the bankruptcy proceedings
because of the assignment to Beer, and we find nothing contained in said cases which is
contrary to the conclusions we have reached. The appellant strongly relies on the case of
Morency v. Landry, 79 N. H. 305, 108 A. 855, 9 A. L. R. 123. As we read that case, it merely
affirms the rule that a claim is to be scheduled in the name of an assignee only when
knowledge of the assignment is given the bankrupt, but when no notice is given of the
assignment, the bankrupt is not thus relieved of the positive duty of duly scheduling a claim,
and if he fails in that duty the debt is not discharged and survives the bankruptcy proceedings.
Here the judgment in question was not duly scheduled; the discharge in bankruptcy did not
extinguish the debt represented thereby, and it remained a valid obligation against Quilici,
which could be asserted by any rightful owner thereof; this Thompson became at the time of
the reassignment.
The judgment is affirmed.
____________
61 Nev. 125, 125 (1941) Martinez v. Johnson
ANNIE MARTINEZ, Appellant, v. LULU B. JOHNSON, Respondent.
No. 3345
December 9, 1941. 119 P.(2d) 880.
1. Master and Servant.
The statute limiting the hours of labor of women in private employment is an exertion of the police
power of the state for the preservation of health of female workers in private employment in the interests
of public welfare. Stats. 1937, c. 207, sec. 2, as amended by Stats. 1939, c. 78, sec. 1; sec. 10.
2. Statutes.
The supreme court would take judicial notice of a statute, although statute was not pleaded.
3. Contracts
If a transaction on which plaintiff founded a claim for compensation for overtime employment was illegal
because of statute limiting hours of labor of women in private employment, defendant could not waive
the statute by failure to plead it, and supreme court was bound to raise the statute in interest of due
administration of justice. Stats. 1937, c. 207, secs. 1, 2, as amended by Stats. 1939, c. 78, sec. 1; sec. 10.
4. Contracts.
Generally, an act done or contract made in disobedience of law creates no right of action which a court
will enforce.
Where defendant allegedly employed plaintiff as a maid in defendant's hotel, and plaintiff worked 16
hours per day and seven days per week during each week of employment, and there was no duress or
deception and parties were on a contractual parity, the employment was in violation of statute limiting
hours of labor of women in private employment, and plaintiff and defendant, although not particeps
criminis and not in pari delicto, were both in delicto to such extent that no implied contract to pay for
overtime employment could be inferred, and plaintiff could not recover for overtime, notwithstanding that
plaintiff was not subject to penal provisions of statute. Stats. 1937, c. 207, secs. 1, 2, as amended by Stats.
1939, c. 78, sec. 1; sec. 10.
Under statute limiting the hours of labor of women in private employment, the employer alone is made
criminally liable for violation of statute. Stats. 1937, c. 207, secs. 1, 2, as amended by Stats. 1939, c. 78,
sec. 1; sec. 10.
Plaintiff could not take advantage of her own wrong in aiding defendant in the commission of a violation
of statute limiting hours of labor of women in private employment so as to enable plaintiff to recover
compensation from defendant for overtime employment as a maid in defendant's hotel. Stats.
1937, c. 207, secs. 1, 2, as amended by Stats. 1939, c. 78, sec. 1; sec. 10.
8. Contracts.
A servant may claim neither an express nor an implied contract for services rendered under a contract of
employment which is in violation of laws fixing a penalty for doing the act upon which recovery is sought.
9. Contracts.
An alleged contract by defendant to pay plaintiff, a woman, compensation for overtime employment as a
maid in defendant's hotel in which plaintiff was allegedly required to work 16 hours per day and seven days
per week during each week of employment was against declared public policy of statute limiting the
hours of labor of women in private employment, and such contract was void. Stats. 1937, c. 207, secs. 1, 2,
as amended by Stats. 1939, c. 78, sec. 1; sec. 10.
10. Contracts.
If an agreement binds the parties or either of them to do, or if the consideration is to do, something
opposed to public policy of the state or nation, the agreement is illegal.
11. Contracts.
As regards contracts, the benefit of a statute designed to conserve the public interest may not be waived
by one for whose protection the statute is also designated, and such a person cannot thwart the public
interest.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by Annie Martinez against Lulu B. Johnson to recover compensation for overtime
employment. From an adverse judgment, plaintiff appeals. Affirmed.
Ham & Taylor, of Las Vegas, for Appellant.
J. R. Lewis, of Las Vegas, for Respondent.
OPINION
This is an action to recover compensation for overtime employment.
Plaintiff, a female person, alleged in her complaint: That defendant employed her to work
in the latter's hotel or rooming house in Las Vegas, as a clerk, housekeeper, and maid, at
the agreed price of three dollars per day for six days each week; that pursuant to that
agreement plaintiff started to work for defendant in her hotel on the 3d day of July 1939,
and worked for her in said capacity continuously up to and including the 3d day of March
1941.
hotel or rooming house in Las Vegas, as a clerk, housekeeper, and maid, at the agreed price of
three dollars per day for six days each week; that pursuant to that agreement plaintiff started
to work for defendant in her hotel on the 3d day of July 1939, and worked for her in said
capacity continuously up to and including the 3d day of March 1941.
It is alleged that during that time defendant required plaintiff to work sixteen hours per day
and seven days per week, for each and every day and week of the said term, and paid plaintiff
eighteen dollars per week for eighty-seven weeks, and no more. It is alleged that for such
overtime so worked plaintiff is entitled to $3,132.
Defendant, in her answer admits the employment and term of service. She denied that the
compensation agreed on was three dollars per day for six days each week, and in this regard
alleged that in addition to furnishing plaintiff an apartment in the hotel or rooming house as
her home, it was agreed that the compensation was to be fourteen dollars per week, which
was paid weekly. Defendant alleged that no hours of active employment were agreed on, and
that all the labor performed by plaintiff during the time of her employment did not exceed
three hours per day.
The action was tried by the court without a jury. Judgment was rendered that plaintiff take
nothing by her action.
After consideration of the case for a time, this court thought that final decision might turn
on a question not raised by defendant. Accordingly we directed counsel in the case to furnish
briefs on the following: Were plaintiff and appellant and defendant particeps criminis in
violation of the provision of chapter 207, Statutes of 1937, as amended by chapter 78 of the
Statutes of 1939, and if so, can plaintiff and appellant maintain this action for overtime
employment as alleged in the complaint? Counsel have furnished such briefs.
Section 2 of chapter 207, pp. 467, 468, Stats. of 1937, as amended by section 1 of chapter
78, p. 74, Stats. of 1939, reads in part: "It shall be unlawful for any person, firm,
association or corporation, or any agent, servant, employee or officer of any such firm,
association, or corporation employing females in any kind of work, labor, or service in this
state, except as hereinafter provided, to employ, cause to be employed, or permit to be
employed any female for a longer period of time than eight hours in any twenty-four-hour
period, or more than forty-eight hours in any one week of seven days; * * *."
1939, reads in part: It shall be unlawful for any person, firm, association or corporation, or
any agent, servant, employee or officer of any such firm, association, or corporation
employing females in any kind of work, labor, or service in this state, except as hereinafter
provided, to employ, cause to be employed, or permit to be employed any female for a longer
period of time than eight hours in any twenty-four-hour period, or more than forty-eight hours
in any one week of seven days; * * *.
Section 10 of said chapter 207 provides: Every person, firm, association or corporation,
or any agent, servant, employee or officer of any such firm, association or corporation,
violating any of the provisions of this act shall be deemed guilty of a misdemeanor and upon
conviction thereof shall be punished by a fine of not more than five hundred ($500) dollars or
by imprisonment in the county jail for not more than six months, or by both such fine and
imprisonment.
It will be seen that the statute does not merely declare what shall constitute a day's work, it
expressly limits the hours of labor of females in private employment, making a violation of its
provisions a misdemeanor punishable by fine or imprisonment or both.
The beneficial purposes sought to be accomplished by the statute are declared in section 1
of said chapter 207 as follows:
That with respect to the employment of females in private employment in this state it is
the sense of the legislature that the health and welfare of female persons required to earn their
livings by their own endeavors require certain safeguards as to hours of service and
compensation therefor. The health and welfare of the female workers of this state are of
concern to the state and the wisdom of the ages dictates that reasonable hours, not to exceed
eight in any one day, are necessary to such health and welfare, and, further, that compensation
for the work and labor of female workers must be sufficient to maintain that health and
welfare. The policy of this state is hereby declared to be that eight hours in any one
twenty-four-hour period and not more than forty-eight hours in any one week is the
maximum number of hours female workers shall be employed in private employment,
with certain exceptions in emergencies, and that no less than three dollars for one day of
eight hours, or eighteen dollars for one week of six days of eight hours each shall be paid
such female workers in this state."
policy of this state is hereby declared to be that eight hours in any one twenty-four-hour
period and not more than forty-eight hours in any one week is the maximum number of hours
female workers shall be employed in private employment, with certain exceptions in
emergencies, and that no less than three dollars for one day of eight hours, or eighteen dollars
for one week of six days of eight hours each shall be paid such female workers in this state.
1-3. Declaratory so then, and in fact the statute is an exertion of the police power of the
state for the preservation of the health of female workers in private employment in the
interest of the public welfare. It was not pleaded in defense in this action, but this court took
judicial notice of the statute and propounded the foregoing queries. If the transaction on
which plaintiff founds her claim for compensation is illegal because of the statute, defendant
could not waive it by failure to plead it, or otherwise. It is an objection the court itself is
bound to raise in the interest of the due administration of justice. Sheldon v. Pruessner, 52
Kan. 579, 35 P.201, 22 L. R. A. 709; Oscanyan v. Winchester Repeating Arms Co., 103 U.S.
261, 26 L. Ed. 539.
4. The general rule is that an act done, or contract made, in disobedience of the law,
creates no right of action which a court of justice will enforce. 13 C. J. sec. 440; 17 C. J. S.,
Contracts, sec. 272; Drexler v. Tyrrell, 15 Nev. 114.
5. It is plain that, under section two of the statute, the employment alleged in the complaint
was in violation of law. The employment did not come within any of the provisions relaxing
the prohibition against more than eight hours of service in any twenty-four-hour period, or
more than forty-eight hours in any one week of seven days.
6. Appellant concedes the general rule above stated, but contends that the facts do not
bring this case within its scope. It is insisted that it falls within exceptions to it. It is argued
that the case is without the scope of the general rule because plaintiff is not subject to the
penal provisions of the act.
the general rule because plaintiff is not subject to the penal provisions of the act. We agree
with the construction of the statute that the employer alone is, by its terms, made criminally
liable. The parties are therefore not particeps criminis. While they are not in pari delicto they
are both in delicto to such an extent that no implied contract to pay for the overtime
employment can be legally inferred.
7. Plaintiff concurred in an illegal act. Defendant committed an offense, and plaintiff aided
and abetted its commission. While both are not criminally liable, both are equally guilty in
combining to frustrate the purpose of an act designed to promote the public welfare. The
statute could not have been violated in this case without plaintiff's cooperation. To permit her
to recover under such circumstances would allow her to take advantage of her own wrong in
encouraging a crime which tended to thwart a benevolent legislative design. We see no room
in principle for the operation of a different rule in this case than where both the employer and
employee are particeps criminis in the violation of an act designed for the public good, in the
interest of public policy.
8. The leading case of Short v. Bullion-Beck & Champion Min. Co., 20 Utah 20, 57 P.
720, 45 L. R. A. 603, is of that character, and it was held that a servant may claim neither an
express nor an implied contract for services rendered under a contract of employment which
is in violation of laws fixing a penalty for doing the act upon which recovery is sought. The
above case was approved in Wolfe v. Bedford-Chervolet Sales Corp., D. C., 31 F.(2d) 124.
We regard the decision of the Utah supreme court as controlling here, notwithstanding
both parties were there amenable to the penal provisions of the statute. It is a distinction
without any real difference. By the nature of the act before us, it being one for the protection
of the female and for the benefit of the state, plaintiff was impliedly forbidden to assist
defendant in its violation.
violation. Both knew the law and willfully cooperated to override it. A different conclusion as
to the legal inference of an implied contract on which plaintiff could recover might be logical
if the statute were not affected with a public interest and plaintiff were not on equal terms
with defendant, or had been overreached in some manner, or if the public interest would be
best served by a recovery despite the contributing fault of plaintiff. The case might then come
within one of the exceptions to the general rule claimed by plaintiff and noted in the
authorities cited by her. But such is not this case. The public interest is involved and plaintiff
and defendant were on contractual parity. There was no intervening element of duress,
deception or the like which might, in a given case, operate equitably to relieve a party of fault.
9. The controlling factor in this case is that the contract on which plaintiff seeks to recover
is against the declared public policy of the statute. This court has established the rule that
such contracts are void. King v. Randall, 44 Nev. 118, 190 P. 979, 13 L. R. A. 730; Burns
International Detective Agency v. Doyle, 46 Nev. 91, 208 P. 427, 26 A. L. R. 600.
In the former case it was held all contracts, the purpose of which is to create a situation
which tends to operate to the detriment of the public interest and against public policy, are
void, whether in a particular case the purpose of the contract is effectuated.
10. The rule is thus stated in 17 C. J. S., Contracts, sec. 211, p. 563: If an agreement binds
the parties or either of them to do, or if the consideration is to do something opposed to the
public policy of the state or nation it is illegal. * * *
11. Moreover, as previously indicated, the benefit of a statute designed to conserve the
public interest may not be waived by one for whose protection the statute is also designated.
17 C. J. S., Contracts, sec. 210, p. 562; Short v. Bullion-Beck & Champion Min. Co., supra;
Atchison, T. & S. F. R. Co. v. Fronk, 74 Kan.
519, 87 P. 698, 11 Ann. Cas. 174; Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 52 A. 531,
93 Am. St. Rep. 887. Such a person is not permitted to thwart the public interest. This is an
important exception to the general rule that a person may lawfully waive by agreement the
benefit of a statutory provision. Guilford Lumber Mfg. Co. et al. v. Johnson et al., 177 N. C.
44, 97 S. E. 732.
The judgment and order denying the motion for a new trial are affirmed.
February 6, 1942.
Per Curiam:
Rehearing denied.
____________
61 Nev. 132, 132 (1941) State v. Cushing, Et Al.
THE STATE OF NEVADA, Respondent, v. PAUL CUSHING
and R. L. RANKIN, Appellants.
No. 3343
December 16, 1941. 120 P.(2d) 208.
1. Criminal Law.
An information charging that accused, with intent to procure miscarriage by woman pregnant with child,
used and instrument to procure miscarriage, and that use of instrument was not necessary to preserve the
life of the woman or of the child, charged crime of unlawful abortion by use of an instrument, and it was,
therefore, not error to give instruction authorizing conviction of unlawful abortion on theory that no such
crime was charged in information, where information was read to jury so that they knew the acts which
were charged. Comp. Laws, sec. 10129.
2. Criminal Law.
Where court, in prosecution for abortion, defined acts constituting abortion by repeating language of
information charging that defendants, with intent to produce miscarriage, used instrument when use thereof
was not necessary to preserve life of woman or child, contention that court by use of phrase unlawful
abortion, in the instructions, did not define acts constituting the offense, and that defendants were
prejudiced thereby, was untenable, particularly where court further instructed that
burden was on prosecution to prove, beyond reasonable doubt, that defendants were
guilty as charged in information.
thereby, was untenable, particularly where court further instructed that burden was on prosecution to prove,
beyond reasonable doubt, that defendants were guilty as charged in information. Comp. Laws, sec. 10129.
3. Abortion.
Though evidence disclosed that two of accused were not present at time and place of alleged abortion,
nevertheless, if they were accessories before the fact, in that abortion was performed in carrying out a
common plan or scheme to perform unlawful abortions, they were chargeable as principals, under the law
abolishing distinctions between an accessory before the fact and principal in first and second degrees.
Comp. Laws, secs. 9958, 10129, 10869.
4. Criminal Law.
Instruction on liability of defendants for procuring an abortion was not objectionable as misleading jury
into belief that accused could be held culpable as accessory before the fact, even though the scheme or plan
was for performance of lawful abortions only, in view of other instructions. Comp. Laws, secs. 9958,
10129, 10869.
5. Criminal Law.
Instruction in a criminal case must be considered as a whole.
6. Criminal Law.
In prosecution for abortion on theory that defendant, who had been discharged and who became witness
for state, actually performed the act charged in pursuance of common plan or scheme entered into with
other defendants, instruction was properly refuses as tending to mislead jury into believing that because
one defendant had been discharged, the other defendants could not be convicted, and that discharged
defendant's conviction was essential to their prosecution. Comp. Laws, secs. 9958, 10129, 10869.
7. Criminal Law.
The statute providing that one who aids and abets in commission of an offense, whether present or absent,
is a principal and may be prosecuted, tried, and punished as such, is a departure from, and abrogates,
common-law rule that conviction of principal is essential to prosecution of an accessory. Comp. Laws,
secs. 9958, 10869.
8. Criminal Law.
Under statute abolishing distinction between an accessory before the fact and a principal in the first and
second degree, it is not essential to conviction of accessories before the fact that prosecution first prove the
guilt of the principal, but it is only necessary to show that a crime has been committed and that defendant,
if present, aided and assisted, or, if not present, advised and encouraged it. Comp. Laws, secs. 9958,
10869.
9. Criminal Law.
The fact that a defendant who actually performed abortion charged was discharged from the information
and became witness for state did not bar prosecution of other defendants, on theory that abortion
committed was in pursuance of a previous common scheme or design between all defendants. Comp. Laws,
secs. 9958, 10129, 10869.
10. Criminal Law.
The fact that state might not, in a given case, be able to prove identity of principal offender should not
become a shield to all who might have been concerned as accessories before the fact under statute
abolishing distinctions between accessory before the fact and principal in the first and second degree.
Comp. Laws, secs. 9958, 10869.
11. Criminal Law.
In prosecution for abortion in which defendant charged in information with having actually committed the
offense was discharged to become witness for state, court properly charged that discharge of such
defendant was deemed an acquittal, and the legal effect thereof was not to discharge the other defendants
and had no bearing on their guilt or innocence, except insofar as discharged defendant's testimony may
have tended to prove question. Comp. Laws, secs. 9958, 10129, 10869.
12. Criminal Law.
In prosecution in which defendant charged with actually committing the abortion was discharged to
become witness for state, instruction requested by other defendants charged on theory that they were parties
to a plan or scheme to commit abortions, that when statute makes offense to consist of an act combined
with a particular intent, that intent is as necessary to be proved as the act in itself and must be found as a
matter of fact before jury can find verdict of guilty, though correct as an abstract proposition of law, was
properly refused as inapplicable, and in view of other instructions given. Comp. Laws, secs. 9958, 10129,
10869.
13. Criminal Law.
If a common criminal plan or scheme was entered into by defendants, the particular offense alleged in the
information need not have been the direct result thereof, to incriminate them, but it is enough if the crime
alleged, in the ordinary course of things, was an actual or probable consequence of the common plan or
scheme. Comp. Laws, secs. 9958, 10869.
14. Criminal Law.
An accessory before the fact need not have intended the particular crime committed by principal, but
is liable for any criminal acts which in ordinary course of things was an actual or probable consequence of
the crime that he advised or commanded, though such consequence may not have been intended by him.
15. Criminal Law.
One who counsels the commission of an act is liable for the actual and probable consequences attendant
on commission of the contemplated act. Comp. Laws, secs. 9958, 10869.
16. Criminal Law.
In prosecution for abortion, instruction that if jury found that defendant performed operation on pregnant
woman and that operation was necessary to preserve her life, no crime was committed, was properly
refused where there was no evidence tending to show that operation was necessary to preserve life. Comp.
Laws, secs. 9958, 10129, 10869.
17. Criminal Law.
Instruction to find defendants guilty of abortion if jury found from evidence beyond reasonable doubt that
unlawful abortion was performed by any person at time and place and in manner set forth in information
and that defendants aided, abetted, hired, commanded or procured another to perform the abortion in
pursuance of a common scheme or plan to perform unlawful abortions, was not prejudicial because
quoted phrase assumed facts not in evidence and because instruction invaded province of jury in assuming
that an abortion had been performed, where uncontradicted evidence showed abortion had been performed
as alleged. Comp. Laws, secs. 9958, 10129, 10869.
18. Abortion.
In prosecution for abortion brought on theory that defendants on trial aided, counseled, and arranged for
unlawful abortion under a common plan or scheme to perform abortions, and that abortion involved was
performed by defendant discharged to become state's witness, evidence, independent of testimony of
accomplices, held sufficient to make defendants' guilt a question of fact for jury. Comp. Laws, secs. 9958,
10129, 10869.
Paul Cushing and R. L. Rankin were convicted of abortion, and they appeal. Affirmed.
Anthony M. Turano, of Reno, for Appellants.
Gray Mashburn, Attorney-General, W. T. Mathews and Alan Bible, Deputy
Attorneys-General of Carson City; Ernest S. Brown, District Attorney, and Myron R. Adams
and Nash P. Morgan, Deputy District Attorneys of Reno, for Respondent.
OPINION
By the Court, Ducker, C. J.:
The appellants, Cushing and Rankin, together with Ruth Barnett and Valentine St. John,
were charged in the district court with a felony. The charging part of the information is as
follows: That the said defendants on the 14th day of November, 1940, or thereabouts, and
before the filing of this information, at and within the County of Washoe, State of Nevada,
did then and there willfully, unlawfully and feloniously use and employ a certain instrument,
the exact nature of which said instrument is to this affiant as yet unknown, in and about and
upon and within the body of one B. Price, the said B. Price being then and there a woman
pregnant with child, as defendants then and there well knew, with intent thereby, then and
there, to procure the miscarriage of her, the said B. Price, the use of said instrument as
aforesaid not being then there nor at all necessary to preserve the life of the said B. Price, or
that of the child whereof she was pregnant.
The appellants pleaded not guilty. The jury found them guilty as charged in the
information. During the course of the trial the defendant Ruth Barnett, on motion of the
district attorney, was discharged and became a witness for the state.
The defendant Valentine St. John, who had been admitted to bail, failed to appear for trial.
Cushing and Rankin have appealed from the judgment and order denying their motion for a
new trial.
The state does not contend that appellants actually committed the acts alleged in the
information, or that being present they participated in their commission. It was the theory of
the state that prior to the time alleged in the information appellants and defendants St. John
and Barnett entered into a common plan or scheme to perform unlawful abortions in the state
of Nevada, and that pursuant thereto Ruth Barnett performed the acts alleged in the
information, and that by reason of such plan or scheme appellants became accessories
before the fact to the crime chargeable and punishable as principals.
alleged in the information, and that by reason of such plan or scheme appellants became
accessories before the fact to the crime chargeable and punishable as principals. The trial
court instructed the jury to that effect.
Before passing on the number of errors assigned, it is deemed advisable to state the facts
which the state claims show such common plan or scheme on the part of the persons
heretofore designated. In this statement they will be referred to as Cushing, Rankin, St. John
and Ruth Barnett.
During the month of July 1940, Rankin and Cushing resided in San Francisco, California,
St. John resided in Oakland, California, and Ruth Barnett resided in Portland Oregon.
According to her testimony she was a naturopath and had been engaged in performing
abortions. Rankin, who had known her and St. John for several years, went to Portland in the
month of July where he had arranged to meet her, and explained to her that he wanted to
promote a big spa at Steamboat Springs, Nevada. Shortly afterwards she flew down to San
Francisco and met Rankin, who flew with her to Reno and together they visited Steamboat
Springs and Lawton Hot Springs in that vicinity.
In the first part of July, Rankin was in Reno and visited Norman Biltz, a real estate broker,
at the latter's office, representing to Biltz that he was in the finance business and wanted
office space in Reno. Biltz suggested that he look at the E. C. Lyon Building, of which he was
part owner and manager. Rankin inspected the premises the same day and returned to the
office and inquired about the rent and as to whether the offices would be redecorated. He said
that he saw some adjoining space there that some clients of his in California, that he did some
financing for, might be interested in, and that he would see them in California. Later in July,
according to Norman Biltz, Cushing came to his office in Reno and said that he had been in
conversation with Rankin, who was secretary to St. John, and they were interested in
opening a clinic in Reno.
and they were interested in opening a clinic in Reno. They discussed the space in the Lyon
Building, what improvements could be put in by the building, and the type of lease. A lease
was executed on the 16th day of July 1940 for the space in the building which composed
rooms numbered 301-2-3-4-5-6 and 7, between Biltz and associates, as lessors, and St. John
as lessee, by his agent Cushing, for the term of five years commencing in September 1940, at
a total rent of $12,225.
During Cushing's first conversation with Biltz concerning the procuring of office space in
the Lyon Building, he explained what sort of medical work they contemplated doing in the
Lyon Building, which was the treatment of women's diseases, and included curettements and
abortions. He explained that St. John was retired but had controlled clinics which operated in
the treatment of women's diseases and did curettements for doctors; that St. John had spent
his lifetime developing the method and instruments that they used to do it, and that the
doctors liked the technique they had developed over a period of thirty years, because it was
painless and safe. Cushing said he would like to contact the doctors in the community to see
if their services were wanted by them and asked Biltz what he thought the attitude of the
community at large would be, and what the attitude of the law would be. Biltz said if they
operated through the law he was sure they would have no trouble, and gave him a list of
doctors in Reno.
Later, about the 20th of July 1940, Cushing came to the Biltz office in Reno with St. John,
and a discussion ensued concerning Steamboat Springs. St. John said he was interested in
purchasing Steamboat Springs and wanted to get a license in Nevada, but thought he could
not get it in this state because of the fact that he was educated and graduated from a foreign
university. Biltz sent him to see Dr. Cantlon of Reno concerning this. St. John was unable to
obtain a license to practice in Nevada. Biltz, acting as agent for St. John, contacted the owner
of Steamboat Springs for the purpose of purchasing the property.
the owner of Steamboat Springs for the purpose of purchasing the property. The deal was
never consummated.
Cushing was considerably exercised about the failure of St. John to obtain a license, and
on July 31, 1940, in San Francisco, wrote to Biltz in Reno expressing his disappointment. In
this letter he said: The difficulty lies in our absolute necessity of having a regularly licensed
physician to act as titular head of the Reno offices. You will understand that the
disappointment regarding St. John's license was a considerable set-back in our plans. Efforts
are now being made here to find a man eligible to receive a Nevada license for this purpose.
In the interim, can you suggest a man in your locality who would, for a consideration, be
interested in lending his name to the office? Naturally such an individual would have no
responsibilities other than those implied in the use of his license and name.
Again, on August 9, 1940, from San Francisco, Cushing wrote to Biltz saying: Our search
for a proper man to head the Reno office continues; hence my delay in getting in touch with
you this past week.
After efforts to obtain a license for St. John or a substitute to act in his stead had failed,
Ruth Barnett came to San Francisco on August 19, 1940. Cushing met her at the St. Francis
Hotel, drove her to Oakland and introduced her to St. John at the Leamington Hotel. A
conversation took place between them relative to the premises, 307 Lyon Building, in Reno.
They wanted her to go over and rush the completion of the carpenter work in fixing up the
offices. At the time they both knew that she was an abortionist and it was understood that she
was going to Reno to perform abortions in the premises known as 307 Lyon Building. Later
in the day she had a discussion with St. John and Rankin as to what use was to be made of
those premises. It was to be used as a clinic, St. John was going to take care of many kinds of
cases and also therapeutic abortions. They wanted her to go there and arrange the office and
pick out furniture and drugs.
pick out furniture and drugs. It was understood that she was to perform abortions. Rankin had
known for several years that she was an abortionist. Later she discussed that particular kind of
work with St. John several times. On the 23d of September 1940, Rankin signed and executed
a written contract with G. Warren Campbell, contractor for Biltz and associates, providing for
the remodeling of the premises which had been formerly leased by the latter to Cushing. Prior
to Ruth Barnett coming to Reno to work in and take charge of the Reno office of Cushing,
Rankin, and St. John, and in Oakland, she and St. John and Cushing bought an operating
table, knee crutches and surgical instruments to furnish the premises 307 Lyon Building in
Reno. This equipment was shipped to Reno and used in the office in the Lyon Building.
Certain abortion instruments were found in the Reno office in a bag at the time of the arrest
of Ruth Barnett. She testified that she brought them with her from Portland.
Ruth Barnett came to Reno on the 14th of October 1940 in company with Rankin, and
took charge of the premises 307 Lyon Building, picking out furniture for it and other items
and generally arranging the whole office. In selecting these articles in Reno she was assisted
by a Mr. Perry of Sparks, who had been introduced to her by Rankin in July. The latter told
Perry as a favor to take her to the different establishments to make such selections. They were
paid for by Perry with money furnished by Rankin, who said they were being made on behalf
of St. John. When she came to Reno in October it was her understanding that St. John would
get his license to practice in Nevada, and when he did not get it she made complaint to
Rankin. The next day, November 2, 1940, Rankin, his son, and St. John went to Las Vegas,
Nevada, to contact an old friend of St. John, one Dr. Z. A. d'Amours, who had a license to
practice medicine in Nevada. They paid the latter $50, with the understanding that he would
be available to come to Reno to head the office.
available to come to Reno to head the office. He was never notified to come to Reno, and
never did so. He knew nothing of the unlawfulness in the set-up. On November 2, 1940, the
day the trio went to Las Vegas, Ruth Barnett had the name Z. A. d'Amours painted on the
door of room 307 in the Lyon Building. She did not know him. St. John told her to put the
name on the door before he went to Las Vegas. On November 14, 1941, in the surgery room
connected with room 307 Ruth Barnett performed an abortion upon the person of B. Price,
named in the information.
Twenty-three errors are assigned and we have examined all of them. Some of them are
trivial and will not be discussed.
1. The first assignment is that it was error to instruct that appellants could be convicted of
an unlawful abortion, since no such crime is charged in the information. There is no merit
in this assignment. The crime of unlawful abortion by the use of an instrument is defined in
sec. 10129 N. C. L. as follows:
Every person, who, with intent thereby to produce the miscarriage of a woman, unless the
same is necessary to preserve her life or that of the child whereof she is pregnant, shall
1. * * *
2. Use, or cause to be used, any instrument or other means;
Shall be guilty of abortion, * * *.
A reference to the charging part of the information will show that it contains all the
elements of the crime thus defined. This information was read to the jury, both by the district
attorney, after they were sworn, and by the court in its instructions. They knew, therefore,
what acts were charged as an unlawful abortion.
2. The contention that the court, by the use of the phrase an unlawful abortion in its
instructions, without defining what acts constituted the same, and that appellants were
prejudiced thereby, is untenable. The court did define these acts by repeating the language
of the information.
court did define these acts by repeating the language of the information. Moreover, the court
instructed the jury in another instruction: The law imposes upon the prosecution the duty of
proving to the satisfaction of the jury beyond a reasonable doubt that the defendants are guilty
in the manner and form as charged in the information. And I further instruct you that in this
case the burden of proof rests upon the prosecution to make out and prove to the satisfaction
of the jury, beyond a reasonable doubt, every material allegation in the information, and
unless the same has been done, you should find the defendants, R. L. Rankin and Paul
Cushing, not guilty.
The italicizing is ours. In view of these instructions, the suggestion that the jury might
have concluded that all abortions are unlawful, and punishable as felonies, except when
performed by a duly licensed surgeon, is quite unlikely. The jury were repeatedly referred to
the information, which alleged that the use of the instrument was not necessary to preserve
the life of said B. Price, or that of the child whereof she was pregnant.
3. The next assignment is that the phrase common plan or scheme to perform unlawful
abortions was misleading. While the evidence discloses that appellants were not present at
the time and place of the crime charged, yet if they were accessories before the fact, they were
chargeable in the manner of the information by reason of the laws of this state, abolishing the
distinction between an accessory before the fact, and a principal in the first and second
degree. In this respect sec. 9958 N. C. L. provides as follows:
Every person concerned in the commission of a felony, gross misdemeanor or
misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in
its commission, and whether present or absent; and every person who directly or indirectly
counsels, encourages, hires, commands, induces or otherwise procures another to commit a
felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against
and punished as such.
proceeded against and punished as such. The fact that the person aided, abetted, counselled,
encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal
intent, shall not be a defense to any person aiding, abetting, counselling, encouraging, hiring,
commanding, inducing, or procuring him.
And sec. 10869 N. C. L. provided: No distinction shall exist between an accessory before
the fact and a principal in the first and second degree in cases of felony and all persons
concerned in the commission of a felony whether they directly commit the act constituting the
offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted,
tried and punished as principals, and no other facts need be alleged in any indictment or
information against such an accessory than are required in an indictment or information
against his principal.
4, 5. The jury were properly instructed as to the effect of these statutes. In this connection
the jury were also instructed: You are instructed in this case that it is not necessary for the
State of Nevada to prove that the defendants or either of them actually performed the crime
charged in the information, in person or while present. If you find from the evidence beyond a
reasonable doubt, that an unlawful abortion was performed by any person at the time, place
and in the manner set forth in the information, and that the defendants, R. L. Rankin and Paul
Cushing, or either of them, aided, abetted, encouraged, counseled, hired, commanded,
induced or procured another to perform the unlawful abortion in pursuance to a common
scheme or plan entered into by defendants, R. L. Rankin, Paul Cushing, Valentine St. John
and Ruth Barnett, and the same was the natural or probable result of such common plan or
scheme to perform unlawful abortions, you should find the defendants, R. L. Ranking and
Paul Cushing, or either of them, guilty as charged. This is so even should you find from the
evidence in this case that said defendants or either of them were not present during the time
of the actual performing of an abortion on B.
the time of the actual performing of an abortion on B. Price, and that such defendants did not
or could not form a criminal intent in respect to the particular abortion charged in the
information. It is sufficient for you to return a verdict of guilty, that the evidence taken as a
whole convinces you beyond a reasonable doubt that an unlawful abortion as charged in the
information was committed at the time and in the manner set forth in the charge and that the
defendants, R. L. Rankin and Paul Cushing, or either of them, aided, abetted, counseled,
encouraged, hired, commanded, induced or procured the same directly or indirectly and
whether present or absent at the time an unlawful abortion was performed.
We do not see wherein the instruction is misleading. It seems to be the thought of
appellants that if Ruth Barnett committed an unlawful abortion as alleged in the information,
the jury could have been mislead by the instruction into the belief that appellants would have
been held culpable as accessories before the fact even though the scheme and plan was for the
performance of lawful abortions only. The instructions of the court covered the field of
principals and accessories quite thoroughly, and must be considered as a whole. The court
guarded against any false impression being gained by the jury in the manner feared by
appellants, in the following instruction: You are instructed that an accused person cannot be
convicted of an independent crime committed by a confederate, unless such crime took place
in the execution of a common plan or scheme. If you find that Ruth Barnett's operation on
Mrs. Price was an illegal abortion, but you also find that Ruth Barnett's act was not a part of a
common plan or scheme previously entered into by her with Rankin and Cushing, you must
find the defendants, Rankin and Cushing, not guilty.
The jury could not have been mislead in this regard.
6. The next assignment we will discuss is the refusal of the trial court to instruct the jury as
to the necessity of a guilty principal, as a prerequisite of a guilty accessory.
of a guilty principal, as a prerequisite of a guilty accessory. The instruction refused is as
follows: You are instructed that, although Mrs. Barnett has been discharged as a defendant
in this case, upon motion of the district attorney, you cannot convict the defendants Rankin
and Cushing unless you first find that Mrs. Barnett was guilty of the offense charged in the
information, and unless you further find that Rankin and Cushing aided or abetted or
encouraged her in the said offense, if it was an offense.
7, 8. It was refused on the ground that it was not an accurate statement of the law. In this
we concur and think also that it was misleading in that the jury could have gained from it the
notion that because Ruth Barnett had been discharged from the information, the appellants
could not be convicted; in other words, that her conviction was essential to their prosecution.
This is not the law. As we have seen, under our statutes, he that aids and abets in the
commission of an offense, whether present or absent, is a principal and may be prosecuted,
tried and punished as such. This is a departure from the common-law procedure. At common
law the conviction of the principal was essential to the prosecution of an accessory. Under the
statute of some states this is still the rule. Our statutes have also abrogated the common-law
rule in that respect. In the case of State v. Jones, 7 Nev. 408, it was held that under our
statutes it is not essential to the conviction of accessories before the fact, that the prosecution
first prove the guilt of the principal; it is only necessary in such case to show that a crime has
been committed, and that defendant, if present, aided and assisted, or, if not present, advised
and encouraged it. In this connection the court said: The instruction [rejected] would seem to
assume that the principal should be identified and his guilt proven; whereas it is only
necessary first to prove the unlawful taking, and then that the defendants had such connection
with them as would bring them within the statute.
The holding of our supreme court to that effect is recognized in 22 C. J. S., Criminal Law,
sec. 105, p. 179, wherein it is said in note 59 to the text: In Nevada, under such a statute as is
contemplated by the text [statutes which abolish the distinction between principals and
accessories], while the prosecution must show that a felony has been committed and that the
accused instigated its commission, still it has been held not necessary to prove by whom the
felony was committed. State v. Jones, supra.
9, 10. It is argued that there cannot be a guilty accessory without a guilty principal, and
that the discharge of Ruth Barnett from the information was an acquittal under the statute
operating as a bar to the prosecution of appellants. The first proposition is true as a matter of
logic, but the latter does not follow as a matter of law. The effect of the statute was to
exonerate the party discharged, but the order of court discharging her did not and could not
have the effect of exonerating those the order was designed to enable her to testify against. It
did not find that no crime had been committed. To attribute to it such an effect would be to
charge the legislature with enacting a vain act as to any case where a principal and an
accessory might be jointly accused. It would give the state a right which, if exercised, would
defeat the end designed. While the state might not, in a given case, be able to prove the
identity of the principal offender, that fact should not become a shield to all who may have
been concerned as accessories before the fact. As stated in People v. Mangiapane, 219 Mich.
62, 188 N. W. 401, 402: The effect of our statute is to permit the prosecution of one who
aids and abets, without regard to the conviction or acquittal of one who, under the common
law, would have been called the principal. That is what the statute intended to accomplish in
abrogating the common-law rule. See People v. Smith, 271 Mich. 553, 260 N. W. 911.
But we are not dealing with a case of an unidentified principal.
principal. The important fact on this phase of the instant case is as to the unlawful abortion
charged in the information. We are of the opinion that there is evidence aside from the
testimony of the accomplices which tends to show that Ruth Barnett committed that crime.
The question of her guilty was therefore resolved against appellants by the verdict of the jury.
We have examined the cases cited by them, but they were decided by courts which follow the
common-law rule.
11. What we have said on this assignment also applies to the next assignment that the
court erred in refusing to instruct the jury as to the legal effect of the discharge of the only
principal offender. The legal effect, as we have said, was not as appellants contend, to
discharge appellants. The court properly instructed the jury in the matter of Ruth Barnett's
discharge as follows: You are instructed that Ruth Barnett, upon motion of the District
Attorney, has been discharged as one of the defendants in this case; and you are further
instructed that her discharge is deemed an acquittal.
Her discharge had no bearing whatever upon the guilty or innocence of appellants, except
insofar as her testimony may have tended to prove.
12. Appellants have assigned as error the refusal of the court to give the following
instruction: When a statute makes an offense to consist of an act combined with a particular
intent, that intent is just as necessary to be proved as the act itself, and must be found by the
jury as a matter of fact before the jury can find a verdict of guilty.
The proposed instruction is correct as an abstract proposition of law, but in view of the
nature of this case and the instructions given, which stated the principle applicable, its refusal
was not an error. We have already set out in this opinion some of these instructions and will
not repeat them.
13. Appellants cite Wagner v. State, 43 Neb. 1, 61 N. W. 85, in which it was held that if a
specific intent is an essential ingredient of the crime, the accessory must have entertained
such intent or known that the principle entertained it.
must have entertained such intent or known that the principle entertained it.
This principle is not applicable to the facts of this case. If such a common plan or scheme
was entered into by the persons, the particular offenses alleged in the information need not
have been the direct result thereof to incriminate them; it is enough if the crime alleged in the
information in the ordinary course of things was the natural or probable consequence of such
common plan or scheme.
14. As stated in 22 C. J. S., Criminal Laws, sec. 92, p. 164: It is well settled, however,
that he [an accessory before the fact] need not necessarily have intended the particular crime
committed by the principal; an accessory is liable for any criminal act which in the ordinary
course of things was the natural or probable consequence of the crime that he advised or
commanded, although such consequence may not have been intended by him. So also the fact
that the crime is not committed in the particular way designated by the procurer or conspirator
does not prevent him from being liable as an accessory before the fact, but for crimes which
are the outcome of a total or substantial departure from his counsel agreement, directions, or
instructions he is not liable.
15. The principle applicable is ably discussed in People v. King, 30 Cal. App. 185, 85
P.(2d) 928, 938, as follows:
The numerous cases cited by appellants in support of the proposition that the criminal
responsibility of aiders and abettorsaccessories before the fact at common lawis no
greater than the intent formed by them, and that this intent is limited to the particular criminal
act contemplated, do not go to the point that such an accessory is not liable for all the natural
and probable consequences attendant upon the commission of the contemplated act. These
cases are authority only in support of the rule that one is not bound by the act of another
foreign to and different from the act counselled and advised.
another foreign to and different from the act counselled and advised. The guilt of an accessory
in the crime actually committed, though not advised, is illustrated in the case of Regina v.
Bernard, 1 F. & F., 240, 242: * * * As if A. advised B. to rob C., and in robbing him B.
kills him, either upon resistance made, or to conceal the fact; or if A. solicit B. to burn the
house of C., and B. does it accordingly, and the flames taking hold of the house of D., that
likewise is burnt; in these cases A. is accessory to B. both in the murder of C. and in the
burning of the house of D.; the events, though possibly falling out beyond his original
intention, were, in the ordinary course of things, the probable consequences of what B. did
under the influence and at the instigation of A.''
That one is not liable who has counselled a particular criminal act, and the perpetrator has
committed a different one not falling within the probable consequences of that advised, as
illustrated in note 37, 16 Corpus Juris, 135, as follows: If one advises another to beat a man
and the latter dies as the result of the beating, it is murder, and the advisor is an accessory to
the murder; but if the advice is to burn a house and the person advised breaks in the commits
larceny therein, but does not burn it, the adviser is not an accessory to the burglary, for that is
a distinct and separate offense. (Reg. v. Henry, 9 C. & P., 309, 38 E C L 187; 4 Blackstone
Comm., p. 37; 1 Hale P. C., p. 617.'
In Workman v. State, 216 Ind. 68, 21 N.E. (2d) 712, 715, 23 N.E. (2d) 419, also cited by
the state, the court said: There can be no doubt of the general rule of law, that a person
engaged in the commission of an unlawful act is legally responsible for all the consequences
which may naturally or necessarily flow from it, and that, if he combines and confederates
with others to accomplish an illegal purpose, he is liable criminaliter for everything done by
his confederates which follows incidentally in the execution of the common design, as one of
its probable and natural consequences, even though it was not intended as a part of the
original design or common plan."
of its probable and natural consequences, even though it was not intended as a part of the
original design or common plan.
See 22 C. J. S. Criminal Law, sec. 87, pp. 155, 156, where this principle is also
expounded.
16. Error was predicated upon the refusal of the court to charge the jury as follows: You
are instructed that if you find that Ruth Barnett performed an operation on Mrs. Price, and
that such operation was necessary to preserve the life of Mrs. Price, then no crime has been
committed by any person in this case, and you must find that the defendants Rankin and
Cushing are Not Guilty.'
The instruction was properly refused because there was no evidence tending to show that
such operation was necessary to preserve the life of Mrs. Price.
We have examined all the other claims of error as to instructions given and refused and
find them to be without merit, and say likewise as to the other errors claimed to have occurred
at the trial.
17. It is assigned as error that the phrase common plan or scheme to perform unlawful
abortions was prejudicial in that it stated assumed facts not in evidence.
The instruction in which the phrase complained of appears has already been set out in this
opinion and we think it is a correct statement of the law. It is criticized on the ground that it
was an invasion of the province of the jury in assuming that an abortion had been preformed
on B. Price. A reading of the entire instruction will reveal that there is no such invasion. The
evidence shows without contradiction that there was an abortion performed on that person at
the time and in the manner alleged in the information. This is conceded. And as previously
stated, the evidence tends to show that it was an unlawful abortion. It was performed by one
whom the evidence shows was an abortionist of considerable experience and who was acting
with appellants and St. John in a common plan or scheme for the treatment of women's
diseases and ailments.
of women's diseases and ailments. The plan or scheme included the performance of abortions.
The argument that there is no evidence whatever to show that the enterprise included the
performance of unlawful abortions, does not persuade us to that belief. Our summarization of
the evidence, while extensive, was not exhaustive, but we think enough appears therefrom,
slight though it is, to warrant a legitimate inference that the scope of the enterprise included
the performing of illegal abortions.
18. The margin is close to the line between evidence sufficient to support the verdict and a
number of highly suspicious circumstancesso close as to make, as was said in State v.
Jones, supra, a hard case. There is enough evidence, however, independently of the testimony
of the accomplices to make appellants' guilt a question of fact. Our inquiry, therefore, can
proceed no further. For the reasons given, a new trial was properly denied.
The judgment and order appealed from should be affirmed.
It is so ordered.
____________
61 Nev. 152, 152 (1941) Ex Parte Crawford
In the Matter of the Application of JAMES W.
CRAWFORD, for a Writ of Habeas Corpus.
No. 3356
December 19, 1941. 120 P.(2d) 207.
1. Indictment and Information.
In indictment for statutory offense it is necessary to negative an exception which is such as to render the
negative of it an essential part of the definition or description of the offense charged, so that ingredients
thereof cannot be accurately and definitely stated if the exception is omitted, but where the exception or
proviso is separable from the description and not an ingredient thereof, it is a matter of defense and need
not be noticed in the accusation.
An information for rape of female child under age of 18 need not allege that such child was not
defendant's wife, since statutory exception as to husband's rape of wife was not part of the definition of the
crime. Stats. 1939, c. 20.
3. Rape.
The amendment of rape statute concerning husband's rape of wife manifests intent to codify the
common-law rule that defendant may show that prosecutrix was his wife, and to state the common-law
exception to such rule applicable when husband is an accessory to the crime by a third person. Stats. 1939,
c. 20.
Original Proceeding by James W. Crawford for a writ of habeas corpus for release from
imprisonment under conviction of rape. Writ discharged, proceeding dismissed, and
petitioner remanded.
William S. Boyle and Thomas H. Grimm, both of Reno, for Petitioner.
Attorneys-General, of Carson City; Ernest S. Brown, District Attorney, and Myron R. Adams,
Deputy District Attorney, both of Reno, for Respondent.
OPINION
This is and original proceeding in habeas corpus.
The petitioner pleaded guilty in the district court to an information charging rape, and
was committed to the Nevada state prison, where he is now confined.
an information charging rape, and was committed to the Nevada state prison, where he is now
confined. The charging part of the information is as follows:
That the said defendant on the 21st day of September, A. D. 1941, or thereabouts, and
before the filing of this information, at and within the County of Washoe, State of Nevada,
did then and there, he being a male person over the age of sixteen years, to-wit: Of the age of
thirty-one years, willfully, unlawfully and feloniously have carnal knowledge of one Juanita
E. Rollins, a female child under the age of eighteen years, to-wit: Then and there being of the
age of sixteen years, with the felonious intent then and there to rape her, the said Juanita E.
Rollins.
Petitioner contends that he is illegally restrained of his liberty because the information
does not allege that said female child was not his wife. The statute pursuant to which the
information was drawn provides in the part necessary to be considered here: And any person
of the age of sixteen years or upwards who shall have carnal knowledge of any female child
under the age of eighteen years, either with or without her consent, shall be adjudged guilty of
the crime of rape and punished as before provided. A husband may not be convicted of the
rape of his wife unless he is an accomplice or accessory to the rape of his wife by a third
person. Stats. 1939, c. 20, p. 15.
That part of the statute concerning a husband was enacted therein by amendment by the
legislature of 1939.
The question presented for solution is whether the provision of the amendment that a husband
may not be convicted of the rape of his wife is an essential ingredient of the offense defined.
If so, it was a necessary allegation in the information. This court has dealt several times with
the question of pleading, in a criminal charge, an exception in a statute defining a felony, and
has held in each instance that is was unnecessary to allege the exception. State v. Robey, 8
Nev. 312; State v. Ah Chew, 16 Nev. 50, 40
State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488; Ex parte Davis, 33 Nev. 309, 110 P. 1131.
The rule is ably discussed in State v. Ah Chew, supra. The section of the statute there
construed reads:
It shall be unlawful for any person or persons, as principals or agents, to sell, give away,
or otherwise dispose of any opium in this state, except druggists and apothecaries, and
druggists and apothecaries shall sell it only on the prescription of legally practicing
physicians. Stats. 1877, p. 69.
1. The indictment did not allege that the defendant was not within the exception. It was
held unnecessary. In substance it was said that in an indictment for a statutory offense it is
only necessary to state the negative to an exception to the statute when the exception is such
as to render the negative of it an essential part of the definition or description of the offense
charged. This is a general rule.
In 31 C.J. 269, it is thus stated: It is necessary to negative an exception contained in a
statute defining an offense where it forms a portion of the description of the offense, so that
the ingredients thereof cannot be accurately and definitely stated if the exception is omitted.
Where, however, the exception or proviso is separable from the description and is not an
ingredient thereof, it need not be noticed in the accusation, being a matter of defense.
2. The application of this rule to the statute before us impels us to conclude that it was
unnecessary to negative the marital relation in the information.
3. Petitioner stresses the fact that the provision of the statute concerning a husband was
enacted therein by amendment, as giving force to his argument that it was intended that such
provision be an essential part of the definition of the crime of rape. If not, he says, why the
amendment? This view does not impress us as of that significance. Rather, it is more logical
to conclude that it was intended to codify the common-law rule that it was competent for a
party to show, in defense of a charge of rape, that the prosecutrix was his wife.
defense of a charge of rape, that the prosecutrix was his wife. And also to state the
common-law exception to it, namely, when the husband was an accessory to the crime by a
third person. At common law it was not necessary to allege that the prosecutrix was not the
wife of the defendant. Commonwealth v. Fogerty, 8 Gray, Mass., 489, 69 Am. Dec. 264. In
that case the court said:
Such an averment has never been deemed essential in indictments for rape, either in this
country or in England. The precedents contain no such allegation. See authorities before
cited. A husband may be guilty at common law as principal in the second degree of a rape on
his wife by assisting another man to commit a rape upon her; Lord Audley's Case, 3 Howell's
State Trials, 401.
The cases cited by petitioner asserting a contrary doctrine are not applicable. The statutes
construed are unlike ours, and their structure was such as to persuade the courts that the
additional element that prosecutrix was not the wife of the accused had been injected into the
definition as an essential ingredient of the crime of rape. The language of our statute defining
the offense is so entirely separable from the exception that the ingredients constituting the
offense are accurately and clearly defined without any reference to the exception. United
States v. Cook, 17 Wall. 168, 21 L. Ed. 538. Its location in the statute, coupled with a
provision whereby a husband may be convicted of rape of his wife, makes illogical a
deduction that the negative is an essential part of the offense.
It follows from the views we have expressed, that the writ heretofore issued herein must be
discharged, the proceeding dismissed, and petitioner remanded to the custody of the warden
of the state prison of the state of Nevada.
It is so ordered.
____________
61 Nev. 156, 156 (1942) In Re Torres Estate
In the Matter of the Estate of ALBINA TORRES,
Deceased.
SIMON HERNANDEZ, Appellant v. JULIA TORRES, CRUZ
TORRES, and JUSTO TORRES, Respondents.
No. 3342
January 7, 1942. 120 P.(2d) 816.
1. Descent and Distribution.
The court could not read into statute providing that if deceased wife leaves no issue, nor father, nor
mother, surviving husband should receive one-half of her separate property, an implied exception barring a
husband guilty of desertion and abandonment from inheriting any part of the separate property. Comp.
Laws, sec. 9859.
2. Descent and Distribution.
In absence of statute, husband would not be barred from taking any part of deceased wife's estate by his
misconduct in deserting and abandoning her under the doctrine of equitable estoppel. Comp. Laws, sec.
9859.
A party, on appeal, cannot assume an attitude inconsistent with that taken by him at the hearing below.
Where primary allegation of objector to administrators' petition for distribution in court below was that
he was surviving husband of deceased, an appeal by objector questioning only that part of decree which
held that objector was estopped to claim any portion of estate by reason of misconduct and failure to
support deceased was not a violation of rule prohibiting a party, on appeal, from assuming an attitude
inconsistent from that taken below.
5. Pleading.
Where appellant's complaint was not with facts alleged by respondents and found by trial court in support
of respondent's plea of equitable estoppel, but rather was with trial court's conclusion that such facts
operated to bar appellant from any inheritance in decedent's estate, appellant's failure to file a reply to
respondent's answer was not an admission that the facts constituted an equitable estoppel.
Proceeding in the matter of the estate of Albina Torres, deceased. Simon Hernandez filed
written objections to petition for distribution filed by the administrator in which Julia Torres,
Cruz Torres and Justo Torres were named as next of kin and only heirs at law.
Torres were named as next of kin and only heirs at law. From an adverse decree, Simon
Hernandez appeals. Reversed, with directions.
C. D. Breeze, of Las Vegas, for Appellant.
A. S. Henderson, T. A. Wells, and Alfred H. McAdoo, all of Las Vegas, for Respondents.
OPINION
Albina Torres and Simon Hernandez were married in the Republic of Mexico on or about
the 17th day of May 1904, and lived there together for about ten years. Hernandez then
deserted and abandoned his wife Albina without any sufficient cause and cohabited with
another woman. Albina was left in destitute circumstances, and about four years later one of
her brothers went to Mexico and brought her to Las Vegas, Nevada. She was entirely without
means or property of any kind. After deserting his wife, Hernandez did not at any time
communicate with or see her, nor contribute anything for her support. She died in the fall of
1937, leaving an estate of $6,600, which was her separate property, having been earned and
accumulated by her after she was abandoned and deserted by Hernandez, who did not at any
time assert any interest therein, but allowed her to appropriate to her own use all of said
earnings and accumulations.
Besides said husband, the deceased left surviving her a sister Julia and two brothers, Cruz
and Justo. The Eighth judicial district court, Clark County, issued letters of administration to
Cruz and Julia, who in February 1941 filed their final account, report and petition for
distribution, wherein the sister and brothers were named as the next of kin and only heirs at
law, and the court was asked to distribute the residue of the estate "to the persons
entitled thereto."
court was asked to distribute the residue of the estate to the persons entitled thereto.
On March 1, 1941, said Simon Hernandez filed written objections to said petition for
distribution upon the grounds that the estate left by the deceased is community property,
having been acquired by her subsequent to said marriage, and that he is the surviving husband
and sole heir at law of said Albina Torres. The sister and brothers filed a written answer to
said objections, setting forth that the estate is separate property, and that if there ever was a
marriage between said Albina Torres and Simon Hernandez (which they deny), he is estopped
in equity from inheriting any of her said estate, because he abandoned and deserted her, left
her in destitute circumstances, was not her husband in fact and in truth for nearly forty years,
and wholly failed to support or maintain her during all of that period.
After hearing upon said objections and the answer thereto, the trial court found the facts as
set forth in the first paragraph of this opinion, and ordered the objections overruled upon the
grounds that the estate is separate property, and that objector is estopped to claim or take any
portion of said estate by reason of his said misconduct and failure to support his said wife,
and his failure in every respect to meet the duties, obligations, and liabilities of a husband, all
without cause. Thereafter said court distributed all of the residue of the estate to the said sister
and brothers of the deceased. This appeal has been taken by the husband from the trial court's
order and decree insofar as they exclude appellant from any inheritance and distribute all the
estate to the sister and brothers. It is his contention that one half of the residue of the estate
should be distributed to him.
Respondents admit that ordinarily appellant would take one half of decedent's estate under
that provision of the second subdivision of sec. 9859 N. C. L. 1929 which reads, If he or she
shall leave no issue, nor father, nor mother, * * * one-half of the separate property of the
intestate shall go to the surviving husband or wife, and the other half thereof shall go in
equal shares to the brothers and sisters of the intestate * * *."
father, nor mother, * * * one-half of the separate property of the intestate shall go to the
surviving husband or wife, and the other half thereof shall go in equal shares to the brothers
and sisters of the intestate * * *. But they contend in support of the trial court's decree: 1.
That to said sec. 9859 there is an implied exception which bars a husband guilty of desertion
and abandonment from inheriting any part of the separate property of his deceased wife. 2.
That appellant is also barred from such inheritance by reason of his misconduct, under the
doctrine of equitable estoppel.
In support of their argument that a husband guilty of desertion and abandonment of his
wife cannot inherit any part of her separate estate under the provisions of said sec. 9859 N. C.
L. 1929, they cite sec. 3364 N. C. L. 1929, as amended, Stats. of Nev. 1935, chap. 110, p.
232, and section 1 of chap. 198, Stats. of Nev. 1937, pp. 417, 418, the former relating to the
disposition of community property on the death of either spouse, the latter to the disposition
of such property upon the death of the wife. Said two sections read as follows, respectively:
Upon the death of either spouse the entire community property belongs, without
administration, to the survivor, except that in case the husband shall have abandoned his wife
and lived separate and apart from her without such cause as would have entitled him to a
divorce, the half of the community property subject to the payment of its equal share of the
debts chargeable to the estate owned in community by the husband and wife, is at her
testamentary disposition in the same manner as her separate property, and in the absence of
such disposition goes to her descendants equally, if such descendants are in the same degree
of kindred to the decedent; otherwise, according to the right of representation; and in the
absence of both such disposition and such descendants, goes to her other heirs at law,
exclusive of her husband.
Upon the death of the wife the entire community property shall vest, without
administration, in the surviving husband, except that in case the husband shall have
abandoned his wife and lived separate and apart from her without such cause as would
have entitled him to a divorce, the half of the community property subject to the payment
of its equal share of the debts chargeable to the estate owned in community by the
husband and wife, is at her testamentary disposition in the same manner as her separate
property, and in the absence of such disposition goes to her descendants equally, if such
descendants are in the same degree of kindred to the decedent; otherwise, according to
the right of representation; and in the absence of both such disposition and such
descendants, shall vest in her other heirs at law, exclusive of her husband."
property shall vest, without administration, in the surviving husband, except that in case the
husband shall have abandoned his wife and lived separate and apart from her without such
cause as would have entitled him to a divorce, the half of the community property subject to
the payment of its equal share of the debts chargeable to the estate owned in community by
the husband and wife, is at her testamentary disposition in the same manner as her separate
property, and in the absence of such disposition goes to her descendants equally, if such
descendants are in the same degree of kindred to the decedent; otherwise, according to the
right of representation; and in the absence of both such disposition and such descendants,
shall vest in her other heirs at law, exclusive of her husband.
1. It may well be that if the matter had been called to the attention of the legislature, that
body would before now have incorporated in sec. 9859 N. C. L. 1929, an exception similar to
those contained in the statutory provisions last quoted; but we are satisfied that if this court
should read such an exception into sec. 9859, it would be encroaching upon the field of the
legislature. Clark v. Clark, 17 Nev. 124, 130, 28 P. 238; Nolan v. Doss, 133 Ala. 259, 31 So.
969; Meyers' Adm'r. v. Meyers, 244 Ky. 248, 50 S. W. (2d) 81; Crawford on Statutory
Construction, sec. 168; 25 R. C. L., p. 1023.
2. The great weight of authority is against respondents' contention that appellant is barred
by his misconduct from taking any part of decedent's estate. Wilson v. Randolph, 50 Nev.
371, 261 P. 654; In re Estate of M. D. Foley, 24 Nev. 197, 213, 51 P. 834, 52 P. 649; Cox v.
Cox, 95 Okl. 14, 217 P. 493, 34 A. L. R. 432; Somers v. Somers, 27 S. D. 500, 131 N. W.
1091, 36 L. R. A., (N. S.) 1024; Wooten v. Carmichael, Tex. Civ. App., 267 S. W. 344;
Newland v. Holland, 45 Tex. 588; In re Meredith's Estate, 279 Mich. 298, 272 N. W. 683;
Meyers' Adm'r. v. Meyers, supra; Parks v. Parks, 169 Ga. 712, 151 S.E. 340, 71 A. L. R. 271;
Nolan v. Doss, supra; Vreeland's Executors v. Ryno's Executor, 26 N. J. Eq.
N. J. Eq. 160, 163; Stegall v. Stegall, 22 Fed. Cas., p. 1226; 26 C. J. S., Descent and
Distribution, sec. 59, p. 1077; 18 C. J. 857, Descent and Distribution, sec. 100; 14 Cyc. 83,
84.
Respondents rely upon Arthur v. Israel, 15 Colo. 147, 25 P. 81, 10 L.R.A. 693, 22 Am. St.
Rep. 381; Richeson et al. v. Simmons, 47 Mo. 20; and an annotation in 71 A. L. R. 277, at
pages 285, 286. In said annotation, at page 285, it is said that Desertion or abandonment is
generally held to be a bar to any right to share in the estate of the deceased spouse. Six of the
seven jurisdictions cited to support this proposition (Connecticut, Indiana, New Hampshire,
North Carolina, Pennsylvania and West Virginia) have express statutory provisions barring a
surviving spouse guilty of desertion or abandonment from sharing in the estate of the
deceased spouse. The case cited from the other of said jurisdictions (In re Miller's Estate, 158
Cal. 420, 111 P. 255) was also decided in the light of certain statutory provisions, and did not
lay down or approve the proposition that in the absence of statutes to the contrary, desertion,
abandonment, nonsupport or adultery will bar the right of inheritance of the offending spouse.
It may also be observed that in Re Newman's Estate, 124 Cal. 688, 57 P. 686, 687, 45 L. R.
A. 780, the court, referring to the Colorado case relied upon by respondents, said this: The
case of Arthur v. Israel, 15 Colo. 147, 25 P. 81 [10 L. R. A. 693, 22 Am. St. Rep. 381], was a
hard case, and perhaps was well disposed of. There is nothing in it which has any bearing
upon this case. The matter of succession is purely statutory, and it would be better for the
legislature to provide for such cases, which may arise anywhere, rather than put the court to
the necessity of such logic to do justice.
In Arthur v. Israel, supra, a wife, without cause, deserted her husband to live in adultery
with another man, whom she married after learning that her husband had procured a divorce
from her. Thereafter, and following the death of her first husband, she brought suit to have
the divorce decree adjudged void for want of proper service of process so that she could
claim the estate as his widow and sole heir.
brought suit to have the divorce decree adjudged void for want of proper service of process so
that she could claim the estate as his widow and sole heir. The court held that while the
divorce decree was void, the wife, having attempted to profit by it and having exercised the
resulting privilege of remarriage would not be permitted to question the validity of the
divorce decree for the mere purpose of obtaining property. In the case at bar there was no
divorce and no remarriage. In the Colorado case the court did not decide that where there is
no divorce or remarriage desertion and adulterous conduct will, in the absence of statute,
operate to bar the offending surviving spouse from inheriting any part of the estate of the
deceased spouse. Whether the court would have reached the conclusion it did had there been
no divorce or remarriage does not appear; it does, however, affirmatively appear that the
decision was not based on misconduct alone, but upon the further consideration that the
offending wife, after accepting the fruits of a void decree, was seeking to avoid the same in
order to place herself in a position to inherit the estate of her lawful deceased husband. In any
event this court, as has been seen, has aligned itself with the decided weight of authority in
holding that wrongful conduct, however reprehensible, will not bar a guilty surviving spouse
from inheriting the estate of the deceased spouse, or such portion thereof as is given him or
her, under the plain provisions of the statute of descent and distribution.
The Missouri case, Richeson v. Simmons, supra, was also a case in which there was a
divorce and remarriage. It was a suit for specific performance and did not involve any
question of inheritance or any statute of descent and distribution.
3, 4. Respondents contend that appellant should not be permitted on this appeal to urge
that he is entitled to one-half of the estate of the deceased, for the reason that in the lower
court he based his objections upon the ground that decedent's estate was community property
and that he was therefore the sole heir and entitled to have the whole of the estate
distributed to him.
and that he was therefore the sole heir and entitled to have the whole of the estate distributed
to him. He should not, they argue, be permitted to present his case to this court on a theory
other than that upon which the case was tried in the district court. They also point out that
appellant did not file any reply or other pleading to their answer, and contend that their plea
of equitable estoppel therefore stands admitted.
Respondents say that appellant based his position in the trial court entirely upon the
proposition that the estate was community property. Such is not the case. His primary
allegation, denied by respondents, was that he was the surviving husband of the deceased, and
the trial court so found. Respondents have not complained of this finding on this appeal.
The issue as to whether the estate was community or separate property was decided against
appellant; but he accepted the court's finding on this issue, and does not question it on this
appeal, which is based on a different question entirely. Under these circumstances appellant is
not to be considered as having violated the rule which does not permit a party, on appeal, to
assume an attitude inconsistent with or different from that taken by him at the hearing below.
5. Referring finally to appellant's failure to file a reply to respondents' answer: It is not
necessary to decide whether it was necessary for appellant to file a reply to the new matter in
the answer, because the controversy regarding such new matter was one purely of law.
Appellant's complaint on this appeal is not with the facts alleged by respondents and found by
the trial court in support of the plea of equitable estoppel. His grievance grows out of that
court's conclusion that those facts operated to bar him from any inheritance in decedent's
estate. His failure to file a reply could not in any event be deemed an admission that said facts
constituted an equitable estoppel.
The order and decree appealed from, insofar as they exclude appellant from any
inheritance or participation in decedent's estate and distribute all of said estate to her
sister and brothers, are reversed, and the district court is directed to modify said decree
by distributing one half of the residue of said estate to appellant, one sixth thereof to
decedent's sister, and one sixth thereof to each of her brothers.
in decedent's estate and distribute all of said estate to her sister and brothers, are reversed, and
the district court is directed to modify said decree by distributing one half of the residue of
said estate to appellant, one sixth thereof to decedent's sister, and one sixth thereof to each of
her brothers.
____________
61 Nev. 164, 164 (1942) Ex Rel. Newitt v. Dist. Court
THE STATE OF NEVADA, Ex Rel. SUE A. HAZELL NEWITT, Petitioner, v. THE
FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, In and
for the County of Elko, and HONORABLE JAMES DYSART, Presiding Judge
Thereof, Respondents.
No. 3355
January 26, 1942. 121 P.(2d) 442.
1. Pleading.
Where before plaintiff's motion to strike out certain portions of the answer and demurrer to the answer
were disposed of, defendant's motion for judgment on the pleadings was presented and granted, the
judgment was voidable and not void since the entry of the judgment was at most premature and
inadvertent.
2. Judgment.
The premature entry of a judgment is not a jurisdictional defect and does not avoid the judgment, but at
most makes it irregular and voidable.
3. Mandamus.
Where before plaintiff's motion to strike out certain portions of answer and demurrer to answer were
disposed of, defendant's motion for judgment on the pleadings was presented and granted, the judgment
being valid and subsisting until set aside by appropriate action, supreme court could not ignore it and by
writ of mandate compel the lower court to set for hearing the motion to strike out and the demurrer.
4. Mandamus.
Where before plaintiff's motion to strike out certain portions of answer and demurrer to answer were
disposed of, defendant's motion for judgment on the pleadings was presented and granted, mandamus was
not proper remedy to obtain consideration of validity of the judgment on the pleadings, since plaintiff had
adequate remedies by way of direct appeal from the judgment or a motion to set the judgment aside.
5. Mandamus.
Mandamus will not lie to compel the vacation of a judgment where another adequate remedy is available.
Proceeding for writ of mandate by the State of Nevada on the relation of Sue A. Hazell
Newitt against the Fourth Judicial District Court of the State of Nevada in and for the County
of Elko and Honorable James Dysart, Presiding Judge Thereof. Petition denied.
Milton B. Badt and Orville R. Wilson, both of Elko, for Petitioner.
H. U. Castle, of Elko, for Respondents.
OPINION
Relator instituted an action in the respondent court on January 23, 1941, wherein Sue A.
Hazell Newitt was plaintiff and Clarence E. Dawe, as executor of the last will and testament
of William J. Dawe, deceased, was defendant. Thereafter certain proceedings were had and
filings made, until said action reached the point where the plaintiff had filed an amended
complaint and the defendant in said action had filed an answer thereto; plaintiff had filed a
motion to strike portions of the answer, also a demurrer. Both plaintiff and defendant had
filed motions for judgment on the pleadings. While plaintiff's motion to strike and demurrer
to the answer were still pending and undisposed of, and before plaintiff's time to reply to the
answer had commenced to run, defendant presented his motion for judgment on the
pleadings. At the time of the presentation of said motion, plaintiff objected to its
consideration, on the ground that said motion to strike and said demurrer to the answer
remained undisposed of. The court overruled the objection and proceeded to hear
defendant's motion for judgment on the pleadings, and thereafter granted the motion and
entered a judgment.
court overruled the objection and proceeded to hear defendant's motion for judgment on the
pleadings, and thereafter granted the motion and entered a judgment. Subsequent to the entry
of the judgment, the plaintiff moved the court to set for hearing the motion to strike and
demurrer to the answer, and also asked that a time be fixed for plaintiff to reply to said
answer. This motion was also denied.
The reason given by respondent court for proceeding to hear defendant's motion for
judgment on the pleadings without first determining the motion to strike portions of the
answer and the demurrer thereto was that plaintiff was estopped to object to the hearing of the
motion for judgment on the pleadings, because of laches in bringing said motion to strike and
demurrer to the attention of the court. Respondent court declined to fix a time for plaintiff to
reply to the answer, because the granting of such a motion would require the setting aside of
the judgment theretofore entered.
Relator asks this court for a writ of mandate compelling the respondent court to set for
hearing the said motion to strike certain portions of the answer and the said demurrer to the
answer, and, in the event the demurrer is overruled, to grant time to the relator to file a reply
to the said answer. The petition does not ask that the judgment entered by the respondent
court be set aside. Relator takes the position that the said judgment should be completely
ignored because it is void, having been inadvertently and mistakenly entered by respondent
court. We entertain a contrary view. The judgment must first be disposed of; we cannot
by-pass it and act upon the demurrer to the answer, the motion to strike and the awarding of
time in which to reply. If we could agree with relator that the said judgment is void, then, of
course, the question of determining whether or not the respondent court should be required to
set for hearing the motion and demurrer and to provide time in which to file a reply would be
within the province of the petition for a writ of mandate, and we could proceed directly to
a consideration thereof.
within the province of the petition for a writ of mandate, and we could proceed directly to a
consideration thereof.
1, 2. We are convinced that the circumstances under which the judgment on the pleadings
was entered in this case makes said judgment voidable, and not void. The entry of the
judgment, with the motion to strike and the demurrer pending, was, at most, premature and
inadvertent. The court had jurisdiction of the parties and of the subject matter, and the mere
premature entry of a judgment is not a jurisdictional defect, and therefore does not avoid the
judgment, but at most makes it irregular and voidable. 34 C. J. p. 63, note 50.
In Chehalis Coal Co. v. Laisure, 97 Wash. 422, 166 P. 1158, at page 1160, in speaking of
the premature entry of judgment, it is said: If * * * through inadvertence or mistake, it
thereafter entered a judgment prematurely or while a motion was pending undisposed of and
without notice, the judgment was irregularly entered. It was voidable, not void.
See, also, Stockholders First National Bank v. First State Bank's Receiver, 163 Ky. 790,
174 S. W. 473; Wisconsin Chair Co. v. Barton, 189 Mich. 548, 155 N. W. 405; Marshall &
Ilsley Bank v. Hyman et al., 84 Wis. 23, 53 N. W. 1126; Wheeler v. Russell, 93 Wis. 135, 67
N. W. 43.
3. The judgment being valid and subsisting until set aside by appropriate action by the
court, we cannot ignore it and compel some action behind it.
4, 5. Further, if it be contended that the petition herein is sufficiently broad to enable us to
consider the validity of the judgment, we must decline to do so, because mandamus is not the
proper remedy to employ in this case. Other adequate remedies exist.
Mandamus will not lie to compel the vacation of a judgment where another adequate
remedy is available, such as by motion to set it aside. 38 C. J. p. 636, sec. 142, notes 81, 82,
83 and 84.
Here relator has two adequate remedies: a direct appeal from the judgment, or a motion to
set the judgment aside. State ex rel. Grogan et al. v. District Court of the Ninth Judicial
District, in and for the County of Gallatin, 44 Mont. 72, 119 P. 174, at page 175.
Relator is fully aware of the remedies herein mentioned, but does not consider them either
adequate or expedient, feeling that a direct appeal from the judgment or from an order
denying a motion to vacate, in the event such appeals were successful, would leave relator in
much the same situation she now finds herself. We are unable to understand why, in the event
the judgment was set aside because of premature entry, directions to correct errors in
procedure, if found to exist, could not be made.
Petition denied.
____________
61 Nev. 168, 168 (1942) Calvert v. Calvert
NAIDENE PARKER CALVERT, Appellant, v. WILLIAM
JAY CALVERT, Respondent.
No. 3348
February 19, 1942. 122 P.(2d) 426.
1. Judgment.
To authorize the vacation of a decree for fraud, the fraud must be extrinsic.
2. Divorce.
Where allegations of complaint of divorced wife, seeking decree vacating divorce decree on ground of
fraud, indicated that wife had assistance and advice of competent counsel of her own choosing, that she
could have informed her counsel of alleged fraudulent practices and could have had the protection of her
counsel and of court but she alleged that she did not disclose true conditions because of fear of physical
violence, social degradation and ostracism threatened by husband, the alleged facts disclosed intrinsic
fraud and precluded the vacation of divorce decree.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Action by Naidene Parker Calvert against William Jay Calvert to vacate a decree of
divorce. From a decree dismissing the action, plaintiff appeals. Affirmed.
Morely Griswold, George L. Vargas, and Bert Goldwater, all of Reno (John H. Parker, of
Reno, of counsel), for Appellant.
E. J. Botts, of Honolulu, T. I., Homer Mooney, of Carson City, and F. K. Unsworth, of
Reno, for Respondent.
OPINION
On December 2, 1940, appellant filed in the Second judicial district court a complaint
asking that a decree of divorce entered in said court on the 14th day of January 1939,
dissolving the bonds of matrimony theretofore existing between the appellant and respondent,
be vacated and set aside, for the reason that said decree was obtained by duress and coercion
exerted upon appellant by respondent. Respondent filed a general demurrer to the said
complaint, and thereafter the court sustained said demurrer and gave appellant ten days in
which to serve and file an amended complaint. Appellant did not elect so to do, and thereafter
a judgment and decree dismissing the said action with prejudice was made and entered. From
the said judgment and decree appellant has taken this appeal.
The complaint filed in the district court alleges, in substance, that the decree entered
therein in favor of appellant was obtained by an exertion of duress and coercion on the part of
respondent against the appellant, and that pressure and restraint used by respondent against
the appellant, compelled the appellant to act against her will; that respondent, by use of
physical violence, threats, and intimidation against the appellant, and in addition, by exertion
of control irrespective of the manifestation or apprehension of physical force, compelled said
appellant to conduct herself according to the desires of respondent and virtually took away
and destroyed any free agency on the part of appellant."
took away and destroyed any free agency on the part of appellant.
It is further alleged that for many years prior to November 1938, while appellant and
respondent were living together as man and wife, respondent had treated appellant with
mental and physical cruelty, insulted and neglected appellant on numerous occasions, and
used force and violence upon the appellant, which consisted of brutal beatings and chokings;
that appellant was estranged from respondent for a number of years because of certain
physical ailments suffered by respondent; that respondent during the year 1937 and for some
months thereafter encouraged a friendship between appellant and another, and encouraged
appellant to divorce the respondent and marry another; and that a certain party referred to in
the complaint and the respondent conspired to have appellant procure a divorce from
respondent, and induced the appellant to believe that the party mentioned would marry and
support and care for the appellant, but that these protestations were merely for the purpose of
permitting respondent to get rid of the appellant as his wife; and that thereafter the
respondent, having encouraged the said friendly relations between the appellant and the party
mentioned, threatened to intimate publicly that the said relations and friendship were not
proper; that the whole conduct of the respondent was to commit a fraud upon the appellant
and deprive the appellant of her home by threats and coercion, to the effect that respondent
would expose appellant to ridicule and social ostracism, and that said threats were
accompanied by physical violence and the manifestation of the control exercised by a
husband over a wife; that on or about the 4th day of July 1938, the respondent demanded of
appellant that appellant procure a divorce; that said demand was accompanied by force and
threats of such extreme violence that appellant was compelled to act against her will; that
respondent threatened to sue appellant for a divorce if appellant failed to comply with the
demands of respondent; that respondent threatened to circulate a story concerning
appellant composed of malicious untruths, calculated to bring social contempt upon
appellant, and threatened to involve the son of appellant and respondent and bring
disgrace upon said son and ruin his social and military position; that the respondent
professed to know certain stories concerning appellant which he threatened to expose,
and thereby malign and injure the appellant.
appellant for a divorce if appellant failed to comply with the demands of respondent; that
respondent threatened to circulate a story concerning appellant composed of malicious
untruths, calculated to bring social contempt upon appellant, and threatened to involve the
son of appellant and respondent and bring disgrace upon said son and ruin his social and
military position; that the respondent professed to know certain stories concerning appellant
which he threatened to expose, and thereby malign and injure the appellant. That respondent
demanded that the appellant leave their domicile in Virginia and proceed to Reno, Nevada,
and there procure a divorce; that appellant was coerced by threats, violence and cruelty to
leave Virginia and go to Reno, Nevada; that appellant remained in Reno and employed
counsel and caused a divorce action to be instituted in the district court. She alleges that all of
her acts were under compulsion by reason of fear for her physical safety and a public scandal
which would result if she disobeyed the directions of the respondent. It is further alleged that
the appellant was not free to confide in her counsel concerning the duress and coercion which
she had and was then suffering. That at the time of the demand upon her by respondent that
she procure a decree of divorce, appellant was forty-five years of age and had been married to
respondent for twenty-five years; that under the agreement executed between them, the
appellant was to receive two hundred dollars a month for the period of twenty-five months,
which said sum she has received from respondent.
1. It is insisted by appellant that the foregoing allegations are sufficient to justify the
vacation of the decree of divorce upon the ground of fraud. To authorize the vacation of a
decree for fraud, in this state, the fraud must be extrinsic. Confer v. Second Judicial District
Court, 49 Nev. 18, 234 P. 688, 236 P. 1097; Chamblin v. Chamblin, 55 Nev. 146, 27 P.(2d)
1061.
2. A distinguishing feature appearing in the cases as to when fraud will justify the
vacation of a decree is whether or not the wife has had the opportunity of consulting
counsel of her own choosing, and the opportunity afforded to present the matters
complained of to independent counsel and to the court, so that protection could be
afforded.
as to when fraud will justify the vacation of a decree is whether or not the wife has had the
opportunity of consulting counsel of her own choosing, and the opportunity afforded to
present the matters complained of to independent counsel and to the court, so that protection
could be afforded. Such an opportunity stamps the fraud as intrinsic. The allegations of the
complaint admit of the conclusion that appellant had the advice and assistance of competent
counsel of her own choosing, that she could have informed her counsel of the fraudulent
practice, and that she could have had the protection of her counsel and of the court. Appellant
alleges, however, that she did not disclose to her counsel the true conditions existing, because
of the fear of physical violence, social degradation and ostracism threatened by respondent.
She attempts to differentiate this case upon that theory; that notwithstanding she was some
three thousand miles from the respondent, had employed and consulted with competent
counsel, yet she was so much under the domination of the respondent that she could not really
act. Such an allegation cannot justify a reclassification of the fraud. She could have had a full
and complete hearing on those points during the pendency of the action. It is opportunity to
disclose the facts and have them acted on that controls. Here the opportunity given places this
case squarely in line with the weight of authority denying relief under such circumstances,
and squarely within the rule announced in the case of Hendricks v. Hendricks, 216 Cal. 321,
14 P.(2d) 83, the facts of which are strikingly similar to those of the case at bar, and in which
said case the fraud was held to be intrinsic. There the court said:
Where, however, evidence of the coercion or duress or the fraud could have been
presented to the court or to an attorney of the complainant's own choosing during the
pendency of the action so that full examination of the facts could be made and full protection
given to the rights of the parties, equity will not interfere but will leave the parties to the
fraudulent transactions where they have placed themselves."
leave the parties to the fraudulent transactions where they have placed themselves.
The case of Kellett v. Kellett, Cal. App., 26 P.(2d) 859, follows the same rule, and quotes
extensively from the case of Hendricks v. Hendricks, supra. And in the case of Lanktree v.
Lanktree, 42 Cal. App. 648, 183 P. 954, at page 955, it is stated:
Even though the alleged cruelty of the husband was such as to amount to coercion by
which the plaintiff was induced to enter into the oral agreement to procure a collusive
divorce, that coercion could not have acted upon her when she was represented by counsel, as
she must have been to carry the prohibitive bargain into effect. If she had told her attorneys or
the court that she had been coerced into making the bargain, she might have been fully
protected in regard to her marital rights.
See, also, Godfrey v. Godfrey, 30 Cal. App. (2d) 370, 86 P.(2d) 357; Bancroft v. Bancroft,
178 Cal. 359, 173 P. 579, L. R. A. 1918f, 1029; Robinson v. Robinson, 77 Wash. 663, 138 P.
288, 51 L. R. A. (N.S.) 534; Johnson v. Johnson, 185 Wash. 677, 56 P.(2d) 679; Thompson
v. Thompson, 38 Cal. App. (2d) 377, 101 P.(2d) 160.
Appellant has cited the cases of Dennis v. Harris, 179 Iowa 121, 153 N. W. 343; Burton v.
Burton, 176 Okl. 494, 56 P.(2d) 385, 104 A. L. R. 728; Cobb v. Cobb, 43 S. D. 388, 179 N.
W. 498; Snyder v. Snyder, Tex. Civ. App., 279 S. W. 897; Graham v. Graham, 54 Wash. 70,
102 P. 891, L. R. A. 1917b, 405, 18 Ann. Cas. 999. An examination of these cases will
disclose that in each the wife was denied the assistance of counsel of her own choosing; the
husband either furnished the counsel or dominated the choice, which distinguishes them from
the instant case and destroys their force as authority.
The judgment appealed from is affirmed.
____________
61 Nev. 174, 174 (1942) Ex Parte Kramer
In the Matter of the Application of JOHN A.
KRAMER for a Writ of Habeas Corpus.
No. 3358
February 28, 1942. 122 P.(2d) 862.
1. Habeas Corpus.
In habeas corpus proceedings, any new matter alleged in traverse and answer is deemed denied.
2. Habeas Corpus
A return to petition for habeas corpus was not insufficient on ground that original warrant of execution
was not exhibited to the supreme court at time the return was examined by the court and filed with the
clerk, where the attested triplicate copy which constituted the authority of warden for the imprisonment and
execution of petitioner and certified copy of warrant of execution executed thereafter constituted the
written authority by virtue of which petitioner was detained within contemplation of statute. Comp. Laws,
secs. 11066, 11384, subd. 3.
Where stay of execution was ordered when defendant sentenced to death for first degree murder applied
to federal district court for a writ of habeas corpus, and after affirmance of order of such court denying the
petition, state trial court caused another warrant of execution to be drawn signed by trial judge, attested by
clerk of trial court and delivered to warden of state prison, defendant was not denied due process of law
or equal protection of the law because the warrant of execution was drawn, signed and attested without
notice to him and without his being present. Comp. Laws, sec. 11077; U. S. C. A. Const. Amend 14.
A defendant who was sentenced to death by trial court after conviction of first degree murder by jury was
not denied due process of law on theory that under statute the exclusive power to fix punishment in first
degree murder cases is vested in jury where defendant is found guilty by jury, since the only discretion
given jury under statute is to fix the penalty at life imprisonment which it cannot do by using the words
and recommend leniency, and when verdict is silent as to punishment or jury cannot agree upon penalty,
the law fixes the penalty at death and requires trial court to adjudge that punishment. Comp. Laws, sec.
10068; U. S. C. A. Const. Amend. 14.
5. Statutes.
The statute adopted from California that every person convicted of murder in first degree shall suffer
death or life imprisonment at discretion of jury was intended by Nevada legislature to be construed in
accordance with then existing views of the California supreme court.
views of the California supreme court. Comp. Laws, sec. 10068.
6. Statutes.
If, subsequent to enactment of statute by adopting state, highest court of original state places a different
construction upon the statute from that placed upon it by that court prior to its enactment by legislature of
the adopting state, courts of the latter will follow the construction placed on the statute by the highest court
of original state before its enactment in the adopting state.
7. Habeas Corpus.
Even if neither petition for writ of habeas corpus nor petitioner's traverse and answer to return alleged
that court's language in refusing to accept jury's verdict confused the jury, the supreme court would grant
the writ if record showed that the jury was confused and misled and though not wishing to bring in a
verdict requiring death penalty, was compelled to do so by erroneous, contradictory, and unresponsive
instructions. Comp. Laws, sec. 10068.
8. Habeas Corpus.
The trial court's statement to jury which brought in verdict of guilt of first degree murder with
recommendation of leniency that This is not a verdict in accordance with the law. It is not determinative
nor consistent was not prejudicial on ground that it confused the jury and deterred them from bringing in
intended verdict imposing a sentence of life imprisonment, where jury had been instructed clearly that if
they returned verdict of guilt of first degree murder, jury had discretion of fixing penalty at life
imprisonment, and counsel requested that jury should be advised that recommendation of leniency could
not be considered by court. Comp. Laws, sec. 10068.
To meet requirements of due process of law assistance of counsel must be effective and attorney
appointed to defend accused should be competent, the right to counsel being not formal but substantial.
U. S. C. A. Const. Amend. 14.
10. Criminal Law.
Accused is entitled to have counsel before as well as at the trial and at every stage of the proceedings. U.
S. C. A. Const. Amend. 14.
11. Criminal Law.
The conduct of defense should be zealous and active and not merely pro forma, and from time of
arraignment until beginning of trial, when consulation, investigation, and preparation are vitally important,
accused has right to aid of counsel in a real sense. U. S. C. A. Const. Amend. 14.
12. Habeas Corpus.
While the burden is on petitioner in habeas corpus proceeding to show that he was denied his
constitutional right to the assistance of counsel, the record must be scrupulously reviewed
where such denial is asserted. U. S. C. A.
the assistance of counsel, the record must be scrupulously reviewed where such denial is asserted. U. S. C.
A. Const. Amend. 14.
13. Criminal Law.
A judgment in criminal case will not be set aside because of incompetency or neglect of counsel, unless it
is so great that defendant is prejudiced and thereby deprived of a fair trial. U. S. C. A. Const. Amend. 14.
14. Habeas Corpus.
Evidence including showing that counsel appointed to defend accused charged with first degree murder
was an experienced criminal lawyer, who in all matters regarding interest of the accused acted with at least
ordinary skill, failed to show such incompetency or neglect as to warrant reversal of conviction on ground
that accused was denied his constitutional right to assistance of counsel. U. S. C. A. Const. Amend. 14.
15. Constitutional LawHabeas Corpus.
The failure of attorney appointed by court to defend accused to move for new trial following conviction
of first degree murder did not warrant reversal of conviction on ground that accused was denied due
process of law where attorney testified that he had not discovered any new evidence and knew of no
ground upon which in good conscience he could have moved for a new trial, and grounds for motion for
new trial suggested on habeas corpus hearing would have proved unavailing. U. S. C. A. Const. Amend 14.
16. Habeas Corpus.
The plan of counsel appointed by court to defend accused in first degree murder prosecution whereby
counsel relied upon accused to be a witness in his own behalf which plan counsel was unable to carry
through because of accused's last minute refusal to take the witness stand did not show such incompetence
as to warrant reversal of conviction on ground that accused was denied constitutional right of assistance of
counsel. U. S. C. A. Const. Amend. 14.
Original Proceeding in habeas corpus by John A. Kramer. Proceeding dismissed, and
petitioner remanded to custody of the warden of state prison.
Oliver C. Custer, Grant L. Bowen, and John E. Robinson, all of Reno, for Petitioner.
Attorneys-General, of Carson City, and John W. Bonner, District Attorney of Ely, for
Respondent.
OPINION
An information was filed on February 20, 1940, in the Seventh judicial district court,
White Pine County, charging petitioner with the crime of murder of the first degree. On the
same day he appeared for arraignment, and informed the court that he was without means to
employ counsel. Thereupon the court assigned Mr. James M. Collins, of Ely, as counsel to
defend him. Arraignment was forthwith made, and upon request of petitioner's counsel he
was given until February 26, 1940, to plead to the information. On that date he entered a plea
of not guilty, and the trial was set for March 19, 1940. The trial commenced on that day and
continued until March 22, 1940, when the jury returned a verdict of guilty of murder of the
first degree. On March 25, 1940, petitioner was sentenced to death, and two days later placed
in custody of the warden of the state prison, in whose custody he has remained until the
present time.
1. No motion for new trial was made, but in May 1940 petitioner appealed to this court
from the judgment of the district court, being represented on the appeal by Mr. Lewis W.
Rogers, of Reno. The judgment of the trial court was affirmed November 19, 1940. Kramer v.
State, 60 Nev. 262, 108 P.(2d) 304. No petition for rehearing was filed, but petitioner applied
to the United States district court for a writ of habeas corpus. After a hearing, that court
denied the writ, and petitioner appealed to the United States circuit court of appeals which, on
September 9, 1941, affirmed the order. Kramer v. State of Nevada, 9 Cir., 122 F.(2d) 417. On
November 29, 1941, petitioner applied to this court for a writ of habeas corpus. An
alternative writ was issued, to which on December 3, 1941, respondent, as warden of the state
prison, filed his return, and his response to said petition. On December 4, 1941, petitioner
filed his traverse and answer to said return. Respondent did not file a reply to petitioner's
traverse and answer, but this was not necessary because, under the well-established
practice in habeas corpus proceedings, any new matter alleged in the traverse and
answer is deemed to be denied.
file a reply to petitioner's traverse and answer, but this was not necessary because, under the
well-established practice in habeas corpus proceedings, any new matter alleged in the traverse
and answer is deemed to be denied. A full hearing was had, including the taking of
considerable testimony, and on January 7, 1942, the matter was submitted to this court for
decision. In all proceedings since the state district court's judgment of conviction was
affirmed by this court, petitioner has been represented by Messrs. Grant L. Bowen, Oliver C.
Custer, and John E. Robinson, all of Reno.
2. Petitioner excepted to the sufficiency of respondent's return upon the ground that the
original warrant of execution was not produced and exhibited to this court at the time said
return was read, heard, and examined by the court and filed with the clerk. This exception
was argued by counsel and overruled by the court. We think the ruling was correct, for the
reasons that follow. The exception was based upon that portion of sec. 11384 N. C. L. 1929,
which reads: If the party be detained by virtue of any writ, warrant or any other written
authority, a copy thereof shall be annexed to the return, and the original shall be produced and
exhibited to the judge on the hearing of such return. Subd. 3. Said sec. 11384 is sec. 10 of
the habeas corpus act of 1862. Laws of Nevada Territory, 1862, chap. XCIII, pp. 98-103. It
has remained unchanged since its enactment. When the habeas corpus act was passed and for
many years thereafter, executions of persons sentenced to death took place at the respective
county seats. Section 454 of the act to regulate proceedings in criminal cases, approved
November 26, 1861, and in effect when the habeas corpus act was passed the following year,
provided in part: When judgment of death is rendered, a warrant, signed by the judge and
attested by the clerk, under the seal of the court, shall be drawn and delivered to the sheriff; *
* *. Laws of Nevada Territory, 1861, chap. CIV, p. 435, at p. 484.
This provision was superseded many years ago by sec. 11066 N. C. L. 1929, which reads:
When a judgment of death has been pronounced, a certified copy of the entry thereof in
the minutes of the court shall be forthwith executed and attested in triplicate by the clerk
under the seal of the court. There shall be attached to said triplicate copies a warrant signed
by the judge, attested by the clerk, under the seal of the court, which shall recite the fact of the
conviction and judgment, and appoint a week within which the judgment is to be executed,
which must not be less than sixty days nor more than ninety days from the time of judgment,
and must direct the sheriff to deliver the prisoner to such authorized person as the warden of
the state prison shall designate to receive the prisoner, for execution, such prison to be
designated in the warrant. The original of such triplicate copies of the judgment and warrant
shall be filed in the office of the county clerk, and two of such triplicate copies shall, by the
clerk, be immediately delivered to the sheriff of the county; one of said triplicate copies to be
delivered by the sheriff, with the prisoner, to such authorized person as the warden of the
state prison shall designate, which shall be the warrant and authority of the warden of such
state prison aforesaid for the imprisonment and execution of the prisoner, as therein provided
and commanded, and the warden shall return his certified copy of the judgment to the county
clerk of the county whence it was issued, and the other triplicate copy of such judgment and
warrant to be the warrant and authority of said sheriff to deliver the prisoner to such
authorized person so designated by the warden of the state prison; said last-mentioned copy to
be returned to the county clerk by said sheriff with his proceedings endorsed thereon.
The triplicate copy, attested March 25, 1940, constituted the warrant and authority of the
warden of the state prison for the imprisonment and execution of petitioner. It was produced
and exhibited to this court on the hearing of the return, and a copy annexed to the return.
the hearing of the return, and a copy annexed to the return. At the same time there was
produced and exhibited to this court a certified copy of the warrant of execution which, on
November 10, 1940, the trial court caused to be drawn, signed by the trial judge, attested by
the clerk of the trial court, and delivered to respondent. A copy of this warrant was also
annexed to the return. We hold that the attested triplicate copy of March 25, 1940, and the
certified copy of the warrant of execution of November 10, 1940, constituted the original
warrant and written authority by virtue of which petitioner was detained, within the
provisions of said sec. 11384 N. C. L. 1929.
3. A stay of execution was ordered when petitioner applied to the United States district
court for a writ of habeas corpus. After the order of that court denying the petition was
affirmed by the United States circuit court of appeals, Kramer v. State of Nevada, 9 Cir., 122
F.(2d) 417, the state trial court on November 10, 1940, caused another warrant of execution
to be drawn, signed by the trial judge, attested by the clerk of the trial court, and delivered to
respondent. Petitioner contends that he was denied due process of law and equal protection of
the laws under the constitution of the United States amend. 14, because said warrant of
execution was drawn, signed, and attested without notice to him, and without his being
present. There is no merit in this contention. Section 11077 N. C. L. 1929; People v. Sloper,
198 Cal. 601, 246 P. 802; Agnes v. People, 104 Colo. 527, 93 P.(2d) 891; Schwab v.
Berggren, 143 U. S. 442, 12 S. Ct. 525, 36 L. Ed. 218; In re Spagnoli (Ex parte Wolfgang),
193 Cal. 472, 225 P. 274; Wolfgang v. People, 270 U.S. 627, 46 S. Ct. 206, 70 L. Ed. 768.
4, 5. Petitioner's contention that he was denied due process of law because the trial judge
fixed the penalty without any jurisdiction so to do, thus usurping the function of the jury, is
based chiefly upon the proposition that under the provisions of sec. 10068 N. C. L.
1929, the exclusive right and power to fix the punishment in first degree murder cases is
vested in the jury where a defendant is found guilty upon trial by jury. It is the court's opinion
now, as it was when the case of Kramer v. State, 60 Nev. 262, 108 P.(2d) 304, was decided,
that the only discretion given the jury under that section is to fix the penalty at life
imprisonment; that in this state the jury does not fix the penalty at life imprisonment by using
the words and recommend leniency, and that when the verdict is silent as to the
punishment, or the jury cannot agree upon the penalty, the law fixes the penalty at death and
requires the trial court to adjudge that punishment. We are convinced that when the statutory
provision in question was adopted from California, it was the intention of the Nevada
legislature that the statute should be construed in accordance with the views expressed in the
early decisions of the California supreme court discussed in Kramer v. State, supra. The court
is supported in this view by the authorities cited in that case. In one of the cases there cited,
this court said:
It is a rule of construction too familiar to require the citation of authorities, that where one
State adopts the statute of another, it is adopted with the construction placed upon it by the
highest Court of judicature of the State from which it is taken. The reason upon which this
rule rests, gives it an importance and weight which should not be disregarded except upon the
most urgent reasons. When the Legislature of one State adopts the laws of another, it is
presumed to know the construction placed upon those laws in the State from which they are
adopted, and therefore that it adopts that construction with the lawthat it incorporates into
the law the construction which is placed upon it at the time it is adopted. Hence, for the
Courts of the State adopting such laws to disregard such construction would be almost as
unjustifiable as to disregard the clearly, expressed will of the Legislature itself. McLane v.
Abrams, 2 Nev. 199, 206, 207.
6. It is also the rule that if, subsequent to the enactment of the statute by the adopting state,
the highest court of the original state places a different construction upon the statute from that
placed upon it by that court prior to its enactment by the legislature of the adopting state, the
courts of the latter will follow the construction placed on the statute by the highest court of
the original state before its enactment in the adopting state. See cases cited in 59 C. J., p.
1072, n. 19; and in Crawford, Statutory Construction, sec. 235, p. 444.
There are, it is true, exceptions to the foregoing general rules, but no good reason appears
for departing from them in this case. People v. Welch, 49 Cal. 174, and People v. French, Cal.
Sup., 7 P. 822, rehearing 69 Cal. 169, 10 P. 378, were decided at times when the supreme
court of California was presumably familiar with the history of legislation concerning the
penalty for first degree murder. That both of those cases received the careful attention of the
court is evidence by the fact that a rehearing was had and a further opinion written in each of
them. Section 110 of the article on homicide, in 13 Cal. Jur. at p. 746, indicates that the
construction placed on the statute by these early cases was accepted as the law of California
until years after the provision was adopted in this state. That said construction carried out the
true intent of the legislature is further indicated by the fact that no change was made in the
wording of the provision in question after the Welch and French cases were decided.
7. In petitioner's brief, counsel contend that when the jury brought in the verdict
recommending leniency, and the trial court then said to them, This is not a verdict in
accordance with the law. It is not determinative nor consistent, the court's language tended to
confuse the jury and deter them from bringing in their true and intended verdict. There is no
allegation to this effect either in the petition for the writ, or in petitioner's traverse and answer
to the return. Notwithstanding this, however, the court would now grant the writ if the record
showed, as claimed by petitioner, that the jury was confused and misled, "gave up in
despair" and, though not wishing to bring in a verdict requiring the death penalty, was
compelled to do so by erroneous, contradictory, and unresponsive instructions; and this
the court would do in any criminal case, whether capital or not.
if the record showed, as claimed by petitioner, that the jury was confused and misled, gave
up in despair and, though not wishing to bring in a verdict requiring the death penalty, was
compelled to do so by erroneous, contradictory, and unresponsive instructions; and this the
court would do in any criminal case, whether capital or not.
8. In both verdicts the jury found defendant guilty of murder in the first degree. When they
first retired for deliberation, they were instructed in clear and unmistakable language that if
they returned such a verdict they had the discretion of fixing the penalty at life imprisonment,
and a form of such verdict was handed them. At no time was any other instruction given or
any remark made by the court, which in the slightest degree contradicted or was inconsistent
with the aforesaid instruction. The trial court did not say that the verdict including the words
and recommend leniency was not in accordance with the facts, or with the evidence; it did
say that said verdict was not in accordance with the law, and that statement was correct. The
court's further statement that the verdict was not determinative nor consistent was not
erroneous, and any reasonable possibility of the jury's being confused was obviated by what
immediately followed: Mr. Collins: I feel that the Jury should be advised that a
recommendation of leniency is no part of a verdict and cannot be considered by your Honor.
Court: That is the law. Mr. Bonner: That's right. When the trial court then directed the jury
to retire for further deliberation, its action was not only proper and in accordance with law,
but most favorable to petitioner in that it afforded the jury the opportunity, if such was its real
intent, to fix the penalty at life imprisonment. No instruction or remark of the court
complained of, either on the appeal or in this proceeding, was erroneous, contradictory,
inconsistent, or confusing. Counsel for petitioner take the view that the jury were of the
opinion that defendant was guilty of murder of the first degree, but were not agreed upon
the penalty.
but were not agreed upon the penalty. If such be the case, the jury rendered the only verdict it
could lawfully return. There was no disagreement among court and respective counsel
concerning any of the instructions now complained of. They all took the same view of the
law, which was the correct view, and it was made plain to the jury that the only way of
showing mercy was for the jury to exercise its discretion by fixing the penalty at life
imprisonment. The trial transcript shows that from the time when the jury first came into
court after retiring for deliberation, the court complied with and acceded to every request and
suggestion made by petitioner's counsel.
The matters thus far considered involve questions of law only. We have now to consider
petitioner's further contention that he was denied his constitutional right to the assistance of
counsel in connection with his trial in the state district court. Before scrutinizing the sharply
conflicting testimony given on this hearing in support of and in opposition to this contention,
it is necessary that we summarize the principal facts and circumstances constituting and
surrounding the commission of the crime.
Pursuant to appointment, petitioner and Frances Jones, wife of Harry Jones, met in front of
a building on the corner of Sixth and Aultman streets in the city of Ely, between seven thirty
and eight o'clock on the evening of February 15, 1940. Aultman Street is the main business
street of Ely, and runs easterly and westerly. Petitioner and Mrs. Jones became involved in an
argument a few feet from the corner of the building, and as two men were passing them on
the sidewalk, she called to one of them, Buster, come here. Petitioner, in an ordinary tone
of voice, said to this man, keep going, or You stay out of this, and drew a pistol from the
right pocket of his overcoat. The two men proceeded west on Aultman Street, and when they
had reached a point about halfway across Sixth Street petitioner, who had taken hold of the
woman's right arm with his left hand, fired four shots into her body while she was trying to
get away from him.
with his left hand, fired four shots into her body while she was trying to get away from him.
He then gave her a shove and she staggered toward and fell into Aultman Street, where she
died within about ten minutes.
Immediately after the shooting, petitioner walked fast around the corner of the building
and then broke into a run as he proceeded north to an alley in the rear. He then turned east
into the alley. A Mrs. Courtney ran after him along the side of the building and into the alley.
He called her an offensive name and told her that if she did not stop he would kill her. About
this time he ran into a dark place in the alley where there were some dogs which frightened
Mrs. Courtney, who then went back after telling another man who had also been following
petitioner, to remain while she called the police.
One witness testified that petitioner, on his way north between Aultman Street and the
alley, stopped a few seconds about twenty feet before reaching the alley, at which time the
witness heard two clicks sounding like the opening and shutting of a revolver in ejecting
empty cartridges. Later in the evening, along the west side of the building about twenty-five
feet north from the Sixth and Aultman streets corner, officers found five discharged cartridges
and one loaded cartridge. They also found a slug, or leaden pellet, in the gutter on Aultman
street into which Mrs. Jones had fallen after being shot. On the following day the sheriff took
from petitioner's suitcase an empty cartridge box, the label on which indicated 32.20 caliber,
the same as that of the cartridges found on Sixth Street the evening before. Near the spot
where these cartridges were found, the officers also picked up a Ten-High whisky bottle
which did not have the cork on; the cork was lying near the bottle. On the morning following
the shooting, a bottle of Old Taylor whisky was found in Firemen's Hall in the city hall
building, where petitioner was arrested.
So far as appears from the record, no one except petitioner knows where he was from the
time he ran into the dark place in the alley until a few minutes before seven o'clock the
following morning, when Charles Bondurant, a county employee, walked into the fire
truck room in the city hall building on his way to the washroom.
the dark place in the alley until a few minutes before seven o'clock the following morning,
when Charles Bondurant, a county employee, walked into the fire truck room in the city hall
building on his way to the washroom. As he rounded the front of the truck, he saw petitioner
sitting in the fire chief's chair and asked him what he was doing there. Petitioner replied, I
am just resting, and asked Bondurant what he was doing, to which the latter replied, I just
came in to wash up, and then went on back to the washroom. When he came out of the
washroom he asked petitioner how he was getting along, and he said all right. Petitioner
asked whether Bondurant had heard about the shooting down town the night before, and was
informed that the latter had just heard of it that morning when he came to breakfast. Petitioner
said he had heard that a woman had been shot, and asked how she was. Bondurant told him
he had heard she was dead. After hesitating a little while, petitioner said, I am the guy that
done the shooting. Bondurant asked petitioner what had gotten into him, and he replied that
he didn't know. Bondurant then left and informed an officer that petitioner was in the
firehouse. Officer Neill went to the city hall and kind of rushed into the truck room through
a side door. Petitioner was sitting in the fire chief's chair. As Neill started toward him,
petitioner pointed a pistol at him and said, Don't move. Petitioner's hand was steady as he
pointed the revolver. Neill backed out, went into the marshal's office and telephoned the
sheriff. When the sheriff arrived, he and other officers called in to petitioner to come out and
surrender, but he made no reply and did not come out. After some gas bombs had been
procured, some of them were thrown into the truck room, and petitioner then went into the
washroom and closed the door. A little later the big doors of the truck room were opened in
order to ventilate it, and several rounds of shots were fired through the partition between the
washroom of the city hall proper and that into which petitioner had gone. The purpose of this
shooting was to try to force petitioner out of the washroom.
to try to force petitioner out of the washroom. When the truck room had been cleared of some
of the gas, several officers went in and called to petitioner to come out of the washroom.
Petitioner did not come out at first. Officer Schloerb opened the door slightly, stuck his gun
in through the opening and told petitioner to drop his gun. Petitioner was on his knees with
his pistol in his right hand. He dropped the pistol, then Schloerb went in, stuck his gun into
petitioner's rib, brought him out and pushed him into the arms of the other officers. He then
returned to the washroom and picked up petitioner's pistol. It was a 32.20 Spanish make
revolver, and was loaded. Shortly after petitioner was arrested, Deputy Sheriff Aljets heard
petitioner say that in the evening earlier on the 15th of February he had seven twenty dollar
bills, six ten dollar bills, a five dollar bill and some silver in his pocket, and a watch. For the
purpose of trying to locate where the money was, Mr. Aljets tried to get petitioner to recall his
trip from the scene of the shooting to the city hall and fire department building; but petitioner
never did give him the route he followed between these two places.
At the hearing in this court in the present proceeding, it was brought out that petitioner, in
an affidavit made November 18, 1941, and presented to the board of pardons and parole
commissioners, stated, among other things, that: About the 12th of February, 1940 I had a
date with Frances Jones to meet me at a certain place, and when I arrived at the place she was
not there. When I next saw her, about the 13th of February 1940 I asked her why she had
broken the date. She then proceeded to bawl me out and abuse me. After considerable talk we
made a date for February 15, 1940. She was to meet me in front of the Collins Hotel at 8:00
P.M. on that night. (The Collins Hotel building, part of which was occupied by Sewell's
Store, was the building at the corner of Sixth and Aultman streets in front of which the crime
was committed.)
In his affidavit before the board of pardons and parole commissioners petitioner said that
when he left the Bank Club to meet Frances Jones on the evening of the shooting he did
not go direct along Aultman Street but went around the block another way, and did not
know just how he got to the appointed place.
commissioners petitioner said that when he left the Bank Club to meet Frances Jones on the
evening of the shooting he did not go direct along Aultman Street but went around the block
another way, and did not know just how he got to the appointed place. On the hearing in this
proceeding he testified: A fellow by the name of Johnny Murphy told me I did walk around
the other way. Why I did, I couldn't tell you myself.
Petitioner did not take the witness stand in the lower court. That he killed Frances Jones
was proved by eye witnesses, and has never been denied by him; but no motive was shown at
the trial. Upon this hearing, however, there was some evidence tending to show why the
crime was committed. Petitioner gave the following testimony relating to conversation
between Frances and him just before the shooting:
Q. Did you have some conversation with Frances Jones when you met her in front of the
Collins Hotel? A. Very little.
Q. What did you say to her? A. If I could recall the exact words I would tell you, but I
don't know.
Q. Can you recall any of the conversation, at this time? A. None.
Q. None? A. Except that conversation passed, and I couldn't tell you what was said. But
little was said. She was going to a car raffle, I believe; I am not even positive of that.
Q. And what did you say then? A. Well, I don't know just exactly what I said.
Q. Well, did you say anything? A. Yes. I said something about breaking dates, and I
believe I did say: That is no excuse, to go some place'; I am not even positive of that.
Q. Did you say to her at that meeting at that time and that place that she had been lying
too much to you? A. I don't think the conversation went that far.
Q. I will read to you, Mr. Kramer, from the same affidavit, to which you said your
signature is affixed: 'As near as I can recall, because it has always been blurred in my
mind, I said to Frances Jones: "Where are you going?"
As near as I can recall, because it has always been blurred in my mind, I said to Frances
Jones: Where are you going? She replied: I am going to a raffle. I then said: Never mind
the raffle. You are going to stay right here. You have been lying too much to me, and I don't
like it.' Did you say those words to Frances Jones at that time and place? A. I wouldn't say
yes or no; perhaps I did.
Q. Will you say now that your statement in this affidavit is not correct? A. So far it is, I
guess.
Q. The statement in the affidavit is true, is it? A. I presume so, yes.
James M. Collins, counsel for petitioner at the trial in the court below, was asked, in this
proceeding, by counsel for petitioner: What defense did you want to present on behalf of Mr.
Kramer. He replied as follows: Mr. Kramer would testify, he told me, that he was madly in
love with Frances; that he had become very jealous of other men; that when he went down to
meet her that nightthat he had an appointment to meet her, and I asked him where, I
remember distinctly, and he said that he was to meet her in one of those saloons there in that
block, either the Monte Carlo or the La Paloma; that he remembered going down from the
direction of the Scott house, which is northerly and westerly from the corner on which the
shooting was alleged to have taken place; that when he reached the corner he saw Frances' car
parked there; that when he reached the corner he had a recollection that he grasped Frances'
hand, and she said to him: Let go.'; that he replied: No, I am going to hold this hand now,
and you can keep the other one for the fellow you were out with Sunday night.' And he said
then he shot. And after that, he told me, he did not know what had happened on that night.
But when I had gotten the information from Panguingui Red, he told me he was in error when
he told me he didn't know what happened the rest of that night. But I asked him if he would
testify that he was very much in love with Frances, and all that sort of business, and he
said 'Yes.' And that was to be the general story, as he told it to me."
he was very much in love with Frances, and all that sort of business, and he said Yes.' And
that was to be the general story, as he told it to me.
Petitioner's contention that he was denied his constitutional right to counsel in the court
below is based upon the alleged facts that the attorney appointed to defend him was negligent,
careless, incompetent and unmindful of his duties. The particulars in which he is alleged to
have been so are set forth in detail in the petition, and also appear in the summary of
testimony given at some length later in this opinion. It suffices here to say that petitioner's
chief causes of complaint arise out of counsel's alleged failure: to confer with petitioner as
frequently or as much as he was in duty bound to do, before as well as during the trial; to
contact and call as witnesses persons who would have proved that at the time of the shooting
petitioner was so intoxicated that he did not know the difference between right and wrong and
was incapable of forming any premeditated intention to kill Frances Jones; to present any
defense at the trial; to take any real interest in petitioner's case; and to move for a new trial.
The alternative writ in this proceeding was made returnable December 3, 1941. On that
day petitioner moved for a continuance, the motion naming nine witnesses he desired to call.
The continuance was granted, and as all said witnesses reside at Ely or Kimberly, both more
than three hundred miles from Carson City were this court sits, it was ordered, with the
consent of the parties, that their testimony be taken at Ely before Honorable James Dysart,
judge of the Fourth judicial district court, as referee. The order further provided for the calling
by petitioner of one other named witness, also four more provided it should appear that their
names had been given Mr. Collins by petitioner before the trial started. Petitioner called only
six witnesses to testify before the referee, notwithstanding all the others were available, and
the referee did not deny petitioner the right to have the testimony of any of the other eight.
other eight. The order also provided that respondent would be permitted to offer rebuttal
testimony before the referee, and three witnesses gave such testimony. After the testimony of
said nine witnesses had been certified to this court, petitioner, attorney Collins, and deputy
sheriff Russell gave their testimony before this court in its courtroom at Carson City. It is
necessary that we give the substance of the pertinent testimony in this proceeding taken
before the referee and in this court.
O. A. Wilson, mine foreman at Kimberly, about nine or ten miles from Ely, called by
petitioner, testified: That after petitioner left his employment at Kimberly in the fall of 1939,
witness saw him occasionally in Ely, usually at the Capitol Club and the Bank Club; that
witness would not testify that on such occasions he saw petitioner drinking at the bar, because
he didn't recall any instance; that witness and petitioner had had a drink together at the bar of
the Bank Club; that petitioner drank on different occasions; that on such occasions, when they
talked together, he smelled intoxicating liquor on petitioner's breath, but he supposed there
were times when they talked together that he did not notice intoxicating liquor on petitioner's
breath; that attorney Collins never talked to him about acting as a witness for petitioner, never
subpoenaed him as a witness, and never discussed petitioner's drinking with witness.
Ben Affleck, of Kimberly, called by petitioner, testified: That he was employed at the
Consolidated Copper Mines at Kimberly, and that petitioner had also been employed there;
that since petitioner left Kimberly in October 1939, witness had seen him at various times on
the street at Ely, and had seen him several times at the Bank Club bar; that he had seen him
drinking intoxicating liquor, but could not say that he had had a chance to smell his breath;
that attorney Collins had come to see him and ask him to testify as a witness for petitioner,
but had never sent him a subpena.
Mrs. Barbara Wilson, of Ely, called by petitioner, testified: That she was employed as a
waitress in the cocktail lounge of the Bank Club bar and cabaret in Ely; that in the fall of
1939 petitioner was in the Bank Club nearly every day; that he drank beer and whisky; that
she frequently served him drinks; that on some days petitioner would stay in the Bank Club
just a few minutes, and at other times, for hours, that she didn't remember when petitioner
started to drink, but knew he did drink quite a bit; that she saw him in there practically every
day drinking; that petitioner was always a perfect gentleman when he was drinking; that she
never saw him out of line at any time; that she couldn't remember that she had ever seen
him staggering; that he acted just as a normal person would, and better than the most of
them, better than the average normal person; that attorney Collins never requested her to
testify as a witness for petitioner, nor did he ever subpena her as such witness; that Mr.
Collins never discussed with her the subject of petitioner's drinking; that she and Mr. Collins
had talked about the case quite a bit, and that she had conversations with him relating to
petitioner.
H.A. Reinhart, of Ely, called by petitioner, testified: That he was employed as a bartender
at the Bank Club; that from about the middle of October 1939 until February 15, 1940, he had
served petitioner a few drinks of liquor; that he had not served petitioner drinks right up until
February 15it was just in a periodical way he would come in there occasionally and then
he wouldn't see him for awhile; that witness's hours of employment were from midnight
until eight o'clock in the morning; that most of the liquor he served petitioner was either
bottled Budweiser or Blue Ribbon bottled beer; that petitioner never drank anything besides
beer on witness's shift; that when petitioner drank this beer he acted just as normal as
anybody else; that in witness's presence petitioner acted at all times as a gentleman, just like
an ordinary person; that he did not know whether he served petitioner any drinks on
February 15, 1940; that attorney Collins had never requested him to testify as a witness
on behalf of petitioner, and had never served him with a subpena.
whether he served petitioner any drinks on February 15, 1940; that attorney Collins had never
requested him to testify as a witness on behalf of petitioner, and had never served him with a
subpena.
Harold Frederick Able, of Ely, called by petitioner, testified: That he was employed as a
bartender at the cocktail bar in the Bank Club; that from the middle of October 1939 until
about the middle of February 1940, petitioner was in and out quite frequently; that he served
him drinks, most of the time beer and a little whisky; that he saw petitioner in the cocktail bar
on February 15, 1940, a couple of hours or so before the shooting; that petitioner had a few
drinks; that when witness saw petitioner the last time before the shooting, he couldn't exactly
say what the latter was drinking; that he drank a lot of beer, but he couldn't say whether he
drank more beer or more whisky; that when petitioner drank he acted all right, always acted a
gentleman, never out of line at any time; that witness had never seen petitioner staggering,
and had never seen him drunk; that attorney Collins had never asked witness to testify for
petitioner, and had never served him with a subpena; that witness had talked about the case
several times with Mr. Collins.
Frank Simpson, of Ely, called by petitioner, testified: That he was a coowner of and
working in the Bank Club; that from the middle of October 1939 until and including February
15, 1940, he saw petitioner at the Bank Club bar most every day and most every night; that
petitioner was drinking along a little every night, had drinks every night, around there every
night; that he was also around there in the afternoons sometimes; that he drank beer and Old
Taylor highballs; that he saw petitioner in the Bank Club at approximately 6:00 or 6:30 p. m.
on February 15, 1940, first at the back bar and then at the front bar; that petitioner was
drinking, and shortly after that somebody came in and said that Frances Jones was killed; that
while petitioner was in the Bank Club before the shooting took place, he asked witness to
have a drink and petitioner had a highball as witness came along at the front bar; that
when witness saw petitioner drinking the last time before the shooting, he acted all right
as usual; that there was nothing out of the ordinary in his actions; that he always acted
the perfect gentleman; that he was not staggering around any, and that witness did not
notice that petitioner looked any different when he was in the Bank Club last before the
shooting than on any other occasion when he had seen him in there; that witness
imagined petitioner acted the same as counsel or witness would, just normal, the same as
usual; that witness was unable to state how many drinks petitioner had had that
afternoon, but did see him drinking at both bars at six o'clock in the evening, or
thereafter; that he had never seen petitioner "out of line" or staggering; that attorney
Collins had never asked witness to testify at petitioner's trial, nor did he ever send him a
subpena; that Mr.
place, he asked witness to have a drink and petitioner had a highball as witness came along at
the front bar; that when witness saw petitioner drinking the last time before the shooting, he
acted all right as usual; that there was nothing out of the ordinary in his actions; that he
always acted the perfect gentleman; that he was not staggering around any, and that witness
did not notice that petitioner looked any different when he was in the Bank Club last before
the shooting than on any other occasion when he had seen him in there; that witness imagined
petitioner acted the same as counsel or witness would, just normal, the same as usual; that
witness was unable to state how many drinks petitioner had had that afternoon, but did see
him drinking at both bars at six o'clock in the evening, or thereafter; that he had never seen
petitioner out of line or staggering; that attorney Collins had never asked witness to testify
at petitioner's trial, nor did he ever send him a subpena; that Mr. Collins had mentioned the
Kramer case to witness several times, not much of a discussion but he mentioned the trial.
William B. Neill, a deputy sheriff of White Pine County, called by respondent, testified:
That when he walked into the fire station in the city hall around seven o'clock on the morning
following the shooting, he saw petitioner sitting in a chair with a gun in his right hand,
pointed at witness; that he told petitioner he had come after him, and petitioner told witness
to stand still and not move; that the gun wasn't shaking, and petitioner was holding it steady;
that from petitioner's appearance and demeanor witness would say that he had not been
drinking; that he did not smell petitioner's breath nor give him any examination to determine
whether he had been drinking; that he did not know whether petitioner was drunk or drinking
the night before when the shooting occurred.
Mary Roache, called by respondent, testified: That on February 15, 1940, she was
employed as a waitress serving food at the tables in the Bank Club cafe; that the last time
she saw petitioner eating there was around eight o'clock in the evening of February 15,
1940; that it was the dinner hour; that petitioner was quite angry because toast did not
come with his order of chicken; that otherwise he was quite natural, quite normal; that as
far as she knew, he acted the same as he always had; that he had been eating at the cafe
for two or three months, and on the evening of February 15, 1940, acted just about as he
always did on other occasions; that she did not see anything wrong with him; that he was
always very cranky about his food; that to her knowledge she wouldn't say that petitioner
appeared to be at all intoxicated; that he didn't look intoxicated; that he wasn't
staggering noticeably, and that his speech was not impaired; that he appeared normal to
witness; that it was less than an hour from the time petitioner had his dinner until
witness heard of the shooting.
the last time she saw petitioner eating there was around eight o'clock in the evening of
February 15, 1940; that it was the dinner hour; that petitioner was quite angry because toast
did not come with his order of chicken; that otherwise he was quite natural, quite normal; that
as far as she knew, he acted the same as he always had; that he had been eating at the cafe for
two or three months, and on the evening of February 15, 1940, acted just about as he always
did on other occasions; that she did not see anything wrong with him; that he was always very
cranky about his food; that to her knowledge she wouldn't say that petitioner appeared to be at
all intoxicated; that he didn't look intoxicated; that he wasn't staggering noticeably, and that
his speech was not impaired; that he appeared normal to witness; that it was less than an hour
from the time petitioner had his dinner until witness heard of the shooting.
Dorothy Vuksan, called by respondent, testified: That she was the owner of the Bank Club
cafe, her husband being the manager; that she was working there February 15, 1940; that she
did not know petitioner until the evening of that day; that she saw him in the cafe during the
dinner hour; that it was somewhere within the dinner hour, 5:00 to 8:00, that petitioner had
his dinner in the cafe that evening, and made a very unpleasant complaint about the meal; that
she saw nothing wrong with petitioner, only that he was cranky, and she didn't like the way he
spoke to the waitress; that to her knowledge he appeared to be as a normal person; that she
had very often seen intoxicated people in the cafe and was more or less familiar with people
who are intoxicated; that she would say, so far as my knowledge, that petitioner was not
intoxicated at the time in question; that he could have been intoxicated, but it wasn't
noticeable; that he looked normal to witness, otherwise he would not have been served; that
they refused service to intoxicated people in the cafe, and that so far as she knew, petitioner
was not intoxicated; that after petitioner complained about the meal, witness told the
waitress not to pay any attention to chronic kickers, and that petitioner finished his meal
and went away; that witness did not go up and smell petitioner's breath to see whether
he was intoxicated; that a person could be intoxicated without staggering; that petitioner
might have been intoxicated, and witness not have known it; that witness couldn't say
petitioner was not intoxicated, and couldn't say that he was.
told the waitress not to pay any attention to chronic kickers, and that petitioner finished his
meal and went away; that witness did not go up and smell petitioner's breath to see whether
he was intoxicated; that a person could be intoxicated without staggering; that petitioner
might have been intoxicated, and witness not have known it; that witness couldn't say
petitioner was not intoxicated, and couldn't say that he was.
Petitioner testified: That he never knew he could ask the trial court to appoint some other
lawyer than Mr. Collins to represent him; that from the time counsel was appointed he came
to see petitioner six times; that on one of these visits petitioner was asleep and was not
awakened, the other visits being on February 20, 21 and 22 and March 18 and 19 (1940); that
on the first four visits counsel wanted to know why petitioner shot Frances; that he said
nothing further about petitioner's defense except that he wanted to know whether petitioner
could procure money with which to hire experts to testify regarding his mental condition; that
thereafter petitioner was promised $250, but the party who was to put up the money said, I
am not going to give it to Mr. Collins; that on the March 18 visit counsel and petitioner went
over the names of the venire of the jury, and had no other conversation; that on the opening
day of the trial, March 19th, petitioner attempted to give counsel a list of witnesses he had
prepared, whose testimony petitioner considered essential to his defense, Vincent Andrews,
Mike Clifford, Henry Jones, Roy Dano, Lester Hardy, Mrs. Lester Hardy, Harold Able, Heine
Reinhart, Weiners Martella, Mrs. Barbara Wilson, Bennie Affleck, Joe McClellan, O. A.
Wilson, and Frank Simpson; that counsel looked the list over once and found that out of the
fourteen names there was only one he didn't know; that counsel wanted to know who that
party was, and laid down the list on the table, that was the last petitioner heard of it; that
petitioner had asked counsel to take the list and interview the witnesses before the trial, but
that counsel didn't show up"; that when petitioner gave the list of witnesses to counsel on
the opening day of the trial, the latter said, "What the h do theses people know about
your case?"; that none of said fourteen witnesses was called to testify for petitioner at
the trial; that Mr.
up; that when petitioner gave the list of witnesses to counsel on the opening day of the trial,
the latter said, What the h do theses people know about your case?; that none of said
fourteen witnesses was called to testify for petitioner at the trial; that Mr. Collins called but
one witness, deputy sheriff Aljets, to testify for the defense, and this was done without
consulting petitioner; that during the course of the trial counsel did not consult with petitioner
at all regarding his defense; that after the state rested its case, counsel talked to petitioner in a
private room about the latter's taking the witness stand; that counsel wanted him to take the
stand and tell about where he met Frances and all the inimate details; that petitioner refused
to take the stand unless counsel called witnesses to corroborate what he would say; that there
were also other reasons, private, why petitioner did not wish to take the stand, namely, that it
would have brought people into notoriety that were married and had children, and there was
not necessity of doing that; that petitioner didn't want the name of Frances' sister harmed by
his testimony; that after the jury had brought in its verdict, counsel never came into the jail or
any other place to consult with petitioner regarding a motion for new trial; that petitioner's
education was just common school, eighth grade; that prior to March 19, 1940, petitioner had
had no experience in courts and legal procedure; that from about October 1939 until the
shooting of Frances Jones, petitioner was unemployed and spent his time mostly drinking, I
believe; that he guessed he drank every day and every evening; that he drank considerably;
that he frequently bought a quart of whisky and drank it in his room at night; that his drinking
continued right up to February 15, 1940, increasing as time went on; that on February 14,
1940, he was fairly well drunk and had a quart bottle with him when he went home; that he
believes he drank that quart of whisky that night; that on the morning of February 15 he got
up about six or seven o'clock, got a pint bottle of whisky and drank some of it; that in the
afternoon of February 15 he was mostly around the Bank Club bar and had quite a few
drinks, "whisky, I guess"; that whisky is all he drank, practically, that afternoon; that he
stayed at the Bank Club until late in the evening and doesn't know exactly where he went
after leaving the Bank Club "until I came to myself in front of the Collins Hotel" {the place
where the shooting took place); that before leaving the Bank Club bar he had had many
drinks of intoxicating liquor; that all his drinking from October 1939 to the time of the
shooting was voluntary; that he drank quite a bit of Blue Ribbon beer, but drank more
whisky than beer; that in the daytime he would drink a lot of beer; that during his trial he
did not inform the court that he wanted any witnesses called, or that he had not had a fair
trial; that after the trial and before petitioner was taken to the state prison, he told some
half dozen people that his attorney was incompetent; that Mr.
and drank some of it; that in the afternoon of February 15 he was mostly around the Bank
Club bar and had quite a few drinks, whisky, I guess; that whisky is all he drank,
practically, that afternoon; that he stayed at the Bank Club until late in the evening and
doesn't know exactly where he went after leaving the Bank Club until I came to myself in
front of the Collins Hotel (the place where the shooting took place); that before leaving the
Bank Club bar he had had many drinks of intoxicating liquor; that all his drinking from
October 1939 to the time of the shooting was voluntary; that he drank quite a bit of Blue
Ribbon beer, but drank more whisky than beer; that in the daytime he would drink a lot of
beer; that during his trial he did not inform the court that he wanted any witnesses called, or
that he had not had a fair trial; that after the trial and before petitioner was taken to the state
prison, he told some half dozen people that his attorney was incompetent; that Mr. Collins
never gave him a chance to tell him what the witnesses would testify to; that the only times he
had been in court prior to his trial were for drinking and fighting, but never in the last thirty
years that he could remember; that he didn't know much of anything on February 15, 1940, by
reason of his drinking; that he presumed he knew that he came in front of the Collins Hotel
when he met Frances; that he believed he had an appointment with some one at that place, but
doesn't remember at what time; that he presumes he kept the appointment, that he must have,
and that it was some time in the evening.
Mrs. Christine M. Russell, a deputy sheriff of White Pine County, testified: That she took
care of all the book work and acted as matron in the sheriff's office; that fifteen minutes after
Mr. Collins was appointed to defend petitioner, he visited him in the jail; that thereafter he
never let more than two or three days lapse without calling on petitioner; that this continued
from February 20 to March 19, 1940; that on one occasion after counsel had come from
visiting petitioner, witness said to the former "How is everything?" and he replied,
"Kramer will talk on every subject but the one I am most interested in, the shooting"; that
on one occasion counsel, after visiting petitioner, asked witness if she would take up
paper and a pencil to petitioner as he was going to make some notes for him; that she
took the paper and pencil to petitioner; that petitioner never at any time made a
statement to her or in her presence that he objected to Mr.
after counsel had come from visiting petitioner, witness said to the former How is
everything? and he replied, Kramer will talk on every subject but the one I am most
interested in, the shooting; that on one occasion counsel, after visiting petitioner, asked
witness if she would take up paper and a pencil to petitioner as he was going to make some
notes for him; that she took the paper and pencil to petitioner; that petitioner never at any
time made a statement to her or in her presence that he objected to Mr. Collins being his
attorney; that she would say Mr. Collins called on petitioner at least twelve times from the
time of the arraignment until the trial; that there were never more than two days elapsed
between counsel's visits to petitioner; that she couldn't say that counsel came to see petitioner
after the jury brought in its verdict.
James M. Collins, attorney appointed by the trial court to defend petitioner, testified: That
he had resided in Ely about thirty-four years; that since 1928 he had been an attorney at law,
practicing in Ely; that he thought he had defended more criminal cases perhaps than any other
lawyer in Ely, being paid sometimes by the client and sometimes by the county; that upon
being appointed to defend petitioner, the first thing he did was to go to the sheriff's office and
talk with petitioner; that the next time he visited petitioner was either the following day or the
day following that; that he went to see petitioner perhaps five times during the first week,
daily, he might say; that after the first week he didn't think three successive days ever passed
that he didn't visit petitioner, and this continued until the time of the trial; that to the best of
his recollection he did not visit petitioner on the morning when the trial commenced, but
spent, as he recalled, the greater part of the Sunday afternoon preceding the trial with
petitioner at the jail, and on that occasion made notes of what his testimony would be at the
trial; that the purpose of his visits to petitioner was to converse with him in preparation for
the approaching trial and to obtain from him, if possible, all the facts and circumstances
surrounding the case, and particularly the names of any witnesses that he might think
would be of benefit to him; that he had difficulty from the beginning in getting petitioner
to discuss the case, and it took him about a week, he thought, before he could get
petitioner to talk on the subject of the case; that soon after his appointment he said to
petitioner, "Jack, there are two in whom we must all have confidence, our doctor and our
lawyer"; that he explained to petitioner the reasons for this, and then said, "Now I want
you to tell me all about this affair"; that petitioner replied, "That is something I will never
tell anybody"; that a week or ten days after the arraignment, he asked petitioner for a list
of witnesses that would be pertinent to his defense, and a day or two afterwards
petitioner handed him a list written on a pieced of wrapping paper from a package; that
after looking over the list, witness said, "Jack, what do these fellows know about the
case?", and petitioner replied, as near as witness could repeat his language, "Nothing at
all. They all knew that woman"; that witness kept said list of witnesses in his pocket for a
day or two and saw the different witnesses; that later, when talking to petitioner, witness
took the list from his pocket and told him that all of the witnesses on that list were hostile
to petitioner; that they would not testify positively as to the woman's moral character,
and that in his judgment, if they did, their testimony would not be admissible, and that if
witness were to call them to the stand and ask them questions they would testify "just
the opposite"; that petitioner then said, "You can call them and make them testify, can't
you?", and witness replied, "Yes, Jack; but when their answers are detrimental to you the
damage is done"; that there were only six names on the list which had been handed
witness by petitioner, namely, Bert Riddick, Vincent Andrews, Weiners Martella, Roy
Dano, Henry Jones and Mickey Clifford; that he
with him in preparation for the approaching trial and to obtain from him, if possible, all the
facts and circumstances surrounding the case, and particularly the names of any witnesses that
he might think would be of benefit to him; that he had difficulty from the beginning in getting
petitioner to discuss the case, and it took him about a week, he thought, before he could get
petitioner to talk on the subject of the case; that soon after his appointment he said to
petitioner, Jack, there are two in whom we must all have confidence, our doctor and our
lawyer; that he explained to petitioner the reasons for this, and then said, Now I want you to
tell me all about this affair; that petitioner replied, That is something I will never tell
anybody; that a week or ten days after the arraignment, he asked petitioner for a list of
witnesses that would be pertinent to his defense, and a day or two afterwards petitioner
handed him a list written on a pieced of wrapping paper from a package; that after looking
over the list, witness said, Jack, what do these fellows know about the case?, and petitioner
replied, as near as witness could repeat his language, Nothing at all. They all knew that
woman; that witness kept said list of witnesses in his pocket for a day or two and saw the
different witnesses; that later, when talking to petitioner, witness took the list from his pocket
and told him that all of the witnesses on that list were hostile to petitioner; that they would
not testify positively as to the woman's moral character, and that in his judgment, if they did,
their testimony would not be admissible, and that if witness were to call them to the stand and
ask them questions they would testify just the opposite; that petitioner then said, You can
call them and make them testify, can't you?, and witness replied, Yes, Jack; but when their
answers are detrimental to you the damage is done; that there were only six names on the list
which had been handed witness by petitioner, namely, Bert Riddick, Vincent Andrews,
Weiners Martella, Roy Dano, Henry Jones and Mickey Clifford; that he talked with all six
witnesses, but did not ask any of them to testify because they were so hostile that he
knew their testimony would be harmful rather than helpful to petitioner; that he knew it
would be obnoxious to these witnesses to testify as to the character of Fances Jones, and
that they told him if he called them for that purpose they would "make a monkey out of
him"; that he discussed petitioner's drinking with said witnesses, except Dano and Jones;
that these two made it very plain to him as to just how they felt and what they would
testify to, and he knew from what they told him that their testimony would be adverse;
that in his conversations with said six witnesses, not one of them told witness that he
would testify that petitioner was drunk on the 15th of February 1940; that petitioner
never mentioned to witness the names of Lester Hardy, Mrs.
and Mickey Clifford; that he talked with all six witnesses, but did not ask any of them to
testify because they were so hostile that he knew their testimony would be harmful rather than
helpful to petitioner; that he knew it would be obnoxious to these witnesses to testify as to the
character of Fances Jones, and that they told him if he called them for that purpose they
would make a monkey out of him; that he discussed petitioner's drinking with said
witnesses, except Dano and Jones; that these two made it very plain to him as to just how
they felt and what they would testify to, and he knew from what they told him that their
testimony would be adverse; that in his conversations with said six witnesses, not one of them
told witness that he would testify that petitioner was drunk on the 15th of February 1940; that
petitioner never mentioned to witness the names of Lester Hardy, Mrs. Lester Hardy, Harold
Able, Henry Reinhart, Barbara Wilson or Ben Affleck; that with regard to Joe McClellan,
witness thought he was a man known as Panguingui Red or Tonopah Red, but was told
afterwards he was mistaken, and perhaps he was; that he talked to the man he thought was
Joe McClellan many times about the Kramer case, but he never gave witness any
informations which, in his opinion, was valuable to petitioner; that with respect to O. A.
Wilson, witness thought he was an ex-husband of Barbara Wilson; that petitioner did not give
witness the name of O. A. Wilson as a witness, nor that of Frank Simpson; that witness talked
to Simpson, however, but obtained no information from him that would have been of value to
petitioner; that petitioner did not give witness a list of witnesses on March 18 or 19, 1940, nor
at any other time, except as already stated; that nothing was ever said between petitioner and
witness in regard to securing money for expert witnesses; that the only conversation about
money was on one occasion when petitioner said to witness Now, no matter what happens,
you get paid any way, don't you?, to which witness replied, Jack, the sum of $100 is
allowable, the maximum in cases of this character, and I assume the court will allow me
that much in this case.
maximum in cases of this character, and I assume the court will allow me that much in this
case. But that makes absolutely no difference; it wouldn't make any difference to me whether
I got $100 or a million, I will do my best; that petitioner then said, Don't you bother
yourself about what should be done in this case; you just go ahead and do as you see fit; that
between two and three weeks prior to the trial witness suggested to petitioner that he take the
witness stand at the trial; that on the occasions of his visits to the jail witness talked to
petitioner as to what had taken place and what he would testify to, and on the 17th day of
March 1940 witness talked to petitioner at greater length in regard to what his testimony
would be; that some time before March 17 witness told petitioner of the attitude of the
witnesses and what he thought the result would be that it would not help him, and petitioner
then said, All right, let it go, and never spoke of the witnesses thereafter; that it was
witness's understanding on the Sunday next before the trial that petitioner would be a witness
in his own behalf, and that remained his understanding until the morning of the last day of the
trial; that on that morning he went early to the jail to see petitioner, because it was witness's
intention to put him on the stand immediately after the state had rested its case; that when
witness asked petitioner whether he rested all right the night before, the latter replied, Yes,
and I made up my mind what I am going to do. I am not going on the stand, and I am not
going to let you say a word either; that witness remained with petitioner as long as he could,
trying to persuade him to change his mind and telling him what in witness's opinion it would
mean to petitioner not to take the stand, but that no matter what he said to petitioner the latter
said, I told you what I am going to do, and that is that; that later in the morning witness
secured a short recess, took petitioner to the county commissioner's room and again made
what he thinks was the most ardent appeal he ever made to any one, for him to take the stand,
and he steadfastly refused, and told witness he would not do so; that petitioner did not
tell him his reasons for not wanting to testify; that when, previous to the trial, witness,
referring to the list of witnesses given him by petitioner, said, "What do any of these
people know about this case?", and petitioner replied, "Nothing at all, but they knew that
woman," it was witness's understanding that petitioner wanted them to testify as to
Frances Jones' character, and witness told petitioner they would not do so; that then
petitioner said, "Well, why should I testify to a thing when they know as much about it as
I do?"; that shortly after the arraignment, petitioner informed witness that he did not
wish to take the stand and testify about Frances Jones because it might injure the
reputation of her married sister; that petitioner did not say to witness that he did not
want to go on the stand and testify about Frances Jones unless the witnesses petitioner
desired called would be used to corroborate his testimony; that witness made every effort
he could to find witnesses and evidence to present in behalf of petitioner; that witness did
not know at the time of the trial and did not know now of any matter which he could have
submitted in behalf of petitioner that would have been beneficial to his defense, except
the testimony of petitioner himself, which he said he would give, but which he thereafter
absolutely refused to give; that witness never contacted O. A. Wilson, and did not know
him; that he had the wrong man in mind, and that his name was not given him by
petitioner; that petitioner did not give Mr.
he steadfastly refused, and told witness he would not do so; that petitioner did not tell him his
reasons for not wanting to testify; that when, previous to the trial, witness, referring to the list
of witnesses given him by petitioner, said, What do any of these people know about this
case?, and petitioner replied, Nothing at all, but they knew that woman, it was witness's
understanding that petitioner wanted them to testify as to Frances Jones' character, and
witness told petitioner they would not do so; that then petitioner said, Well, why should I
testify to a thing when they know as much about it as I do?; that shortly after the
arraignment, petitioner informed witness that he did not wish to take the stand and testify
about Frances Jones because it might injure the reputation of her married sister; that
petitioner did not say to witness that he did not want to go on the stand and testify about
Frances Jones unless the witnesses petitioner desired called would be used to corroborate his
testimony; that witness made every effort he could to find witnesses and evidence to present
in behalf of petitioner; that witness did not know at the time of the trial and did not know now
of any matter which he could have submitted in behalf of petitioner that would have been
beneficial to his defense, except the testimony of petitioner himself, which he said he would
give, but which he thereafter absolutely refused to give; that witness never contacted O. A.
Wilson, and did not know him; that he had the wrong man in mind, and that his name was not
given him by petitioner; that petitioner did not give Mr. Affleck's name to witness but that,
knowing Affleck worked at Kimberly, witness tried to elicit from him something that might
help petitioner, particularly with reference to his drinking, but was unable to obtain anything
from him that was beneficial; that witness had conversed with Barbara Wilson many times,
because she was a waitress in the Bank Club, and witness knew that she and her husband had
gone out to dinner with petitioner and Babe London; that witness talked to Mrs. Wilson
particularly, but she told him that while she knew petitioner to take a drink or two
occasionally, he was always a gentleman, and that on occasions when they went out to
dinner, she never saw him drunk, he would have a cordial or two, but that is all; that
witness talked with Mr.
particularly, but she told him that while she knew petitioner to take a drink or two
occasionally, he was always a gentleman, and that on occasions when they went out to dinner,
she never saw him drunk, he would have a cordial or two, but that is all; that witness talked
with Mr. Reinhart on different occasions and asked him if he had ever seen Jack under the
influence of liquor, to which he replied, he had not; that the same was true of Harold Able,
with whom witness talked many, many times; that witness talked with Mr. Simpson probably
five or six times before the trial, and on one occasion Simpson asked him if he would like to
get some information regarding a certain point, to which witness replied he certainly would;
that Simpson then said, Don't mention me in the matter, but ask Panguingui Red.; that
witness did ask Panguingui Red, but the information the latter gave him was entirely adverse
to that which petitioner had given him on the same subject; that for a period of about sixty
days before the shooting witness had seen petitioner quite frequently in the Bank Club,
usually in the lounge, and had seen him drink liquor, but had never seen him drunk; that he
had seen petitioner take a drink of beer and wouldn't say that he did or did not take a drink of
whisky, but he knew that he was what witness would call a beer drinker and what he would
call a moderate drinker; that he never saw petitioner in a condition such that he would be able
to testify that he had taken a drink if he hadn't seen him take it; and this was about as strong
testimony as witness could obtain from any one else; that in an affidavit dated November 28,
1941, and filed with the board of pardons and parole commissioners, witness stated, I knew
that Mr. Kramer had been drinking steadily for a period of days before Frances Jones was
shot, and that was to be a part of his testimony which I thought would be a great benefit to
him if he would take the stand; that witness had seen petitioner drinking, but never to
excess; that he knew he had been drinking for a period of days prior to the shooting, just the
same as he had seen many other men drink every day, probably two or three times; that
petitioner had told witness about things that took place in saloons other than the Bank
Club, principally the La Paloma and the Monte Carlo, and witness himself knew that
petitioner had at times gone into the Capitol Club; that witness visited those places and
talked with bartenders and others in an effort to get some information regarding
petitioner's drinking there; that witness had talked to Barbara Wilson, Mr.
shooting, just the same as he had seen many other men drink every day, probably two or three
times; that petitioner had told witness about things that took place in saloons other than the
Bank Club, principally the La Paloma and the Monte Carlo, and witness himself knew that
petitioner had at times gone into the Capitol Club; that witness visited those places and talked
with bartenders and others in an effort to get some information regarding petitioner's drinking
there; that witness had talked to Barbara Wilson, Mr. Reinhart, Mr. Able and Mr. Simpson
previous to the trial and knew what they would testify to, but did not subpena them because
they would hurt petitioner rather than help him; that it was not on March 17, 1940, when
witness had a long talk with petitioner at the jail, that the latter told him he would not take the
witness stand; that witness visited petitioner in his cell on that day for the purpose of taking
notes of the testimony petitioner would give at the trial; that witness did not call any
witnesses from the Bank Club bar to testify about petitioner's being in there drinking in the
afternoon and evening before the shooting occurred, because he could get no such testimony;
that the only testimony he could ever get from any of them was that they had never seen Mr.
Kramer other than in a normal condition; that he thought they would do more harm than
good; that the fact that they jury first brought in a verdict recommending leniency was not
considered by witness a good ground upon which to base a motion for a new trial; that he did
not think the jury might have been confused on the charges given by the court and did not feel
that a motion for new trial should be made for that reason; that he did not feel that there were
grounds on which he could, in good conscience, make a motion for a new trial; that under all
the circumstances, he did not think that his appointment as petitioner's counsel covered the
necessary steps in making a motion for new trial, and that he thought he had performed his
full duty to petitioner; that it did not occur to witness to have Mr.
Affleck testify as a character witness, because after a short talk with him he was convinced he
could not obtain any evidence from Mr. Affleck that would be of any benefit whatsoever; that
witness had had rather extensive experience in practicing criminal law at Ely; that he had
defended defendants in many important criminal cases, many more than any other practicing
lawyer in Ely; that he did not think he knew of more than three murder cases in Ely since he
had been practicing, and that he had defended all of them; that notwithstanding the long time
petitioner worked at Kimberly and his wide acquaintance there, witness did not feel he could
obtain testimony there favorable to witness, because the people from Kimberly that witness
talked with were all very hostile to petitioner; that witness did not go to Kimberly to talk to
people there, because he could talk to them as easily at Ely, as they came there when off shift;
that many of the men at Kimberly would not eat at the same table with petitioner, and were
very hostile; that witness thought it very ridiculous to think that if one or two character
witnesses had been produced the jury would have recommended life imprisonment; that
witness was left in a position of not having any evidence by reason of petitioner's refusal to
take the witness stand after promising to testify; that it is not true that petitioner refused to
take the stand because witness would not get any witnesses to corroborate him; that witness
prepared instructions and found them either covered or given by the judge who did not in any
way refuse to instruct the jury on the points he requested instructions on, and the only
instruction he prepared which was not covered was the one referring to the defendant taking
the stand; that he agreed that the action of the jury was inexplicationI think you would
make the same statement, Mr. Custer, when they came in with a verdict of first degree murder
recommending leniency. I knew that that verdict meant the death sentence for Mr. Kramer,
and I certainly felt that if they wanted to give him leniency, after the judge gave them
another chance they would do so, by fixing the life penalty instead of the death penalty.
Their action was certainly inexplicable to me."; that as to preparing a trial brief, he did
what he felt he was required to do to properly present the case; that he didn't think he
had the trial brief in this case, because after a case is concluded he does not keep matters
he doesn't think will be of benefit thereafter; that he couldn't say whether there was a
copy of instructions in his office or not; that deputy sheriff Aljets was the only witness for
the defense; that witness doesn't think he consulted with petitioner before calling Mr.
after the judge gave them another chance they would do so, by fixing the life penalty instead
of the death penalty. Their action was certainly inexplicable to me.; that as to preparing a
trial brief, he did what he felt he was required to do to properly present the case; that he didn't
think he had the trial brief in this case, because after a case is concluded he does not keep
matters he doesn't think will be of benefit thereafter; that he couldn't say whether there was a
copy of instructions in his office or not; that deputy sheriff Aljets was the only witness for the
defense; that witness doesn't think he consulted with petitioner before calling Mr. Aljets; that
the reason for calling Mr. Aljets was that the latter had told him something about a whisky
bottle and when that bottle was not produced he considered it good practice to have him
produce it, and called him for that purpose; that witness had given this case more time and
attention than any other criminal case he ever had, and was never more interested in the
successful preparation and presentation of any criminal case he ever had than he was in this
one; that notwithstanding this, he was unable to procure a single witness to testify on behalf
of the petitioner; that if, after the verdict of the jury, he had at any time had any idea that the
case had not been properly tried or that there might be some evidence that could be secured
for petitioner, he would in that event undoubtedly have moved for a new trial; that while the
first verdict of the jury was inexplicable, there was no way in which witness could have
avoided it; that he was not in doubt as to whether the jury, because of its long confinement,
had perhaps been confused regarding the instructions; that he didn't think they were confused;
that he thought they had another reason for remaining out so long.
9-12. To meet the requirements of due process, assistance of counsel must be effective.
Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527; 11 Am. Jur.
1107, n. 4. The attorney appointed to defend accused should be competent. 23 C. J. S.,
Criminal Law, sec.
C. J. S., Criminal Law, sec. 982, p. 325, note 61. The right to counsel is not formal, but
substantial. Johnson v. United States, 71 App. D. C. 400, 110 F.(2d) 562. Accused is entitled
to have counsel before as well as at the trial, and at every stage of the proceedings. Harris v.
State, 203 Ind. 505, 181 N. E. 33; 23 C.J.S. Criminal Law, sec. 979, p. 319, note 10. The
conduct of the defense should be zealous and active, not merely pro forma. From the time of
the arraignment until the beginning of the trial, when consultation, investigation, and
preparation are vitally important, accused has the right to the aid of counsel in a real sense.
Powell v. Alabama, supra; Avery v. State of Alabama, 308 U. S. 444, 60 S. Ct. 321, 84 L. Ed.
377; 23 C. J. S., Criminal Law, sec. 979, p. 319, note 12. While the burden is on petitioner to
show that he was denied his constitutional right to the assistance of counsel, the record must
be scrupulously reviewed where such denial is asserted. Avery v. State of Alabama, supra.
13. A judgment in a criminal case will not be set aside on account of the incompetency or
neglect of counsel, unless it is so great that the defendant is prejudiced and thereby deprived
of a fair trial. State v. Jukich, 49 Nev. 217, 242 P. 590; 23 C. J. S., Criminal Law, sec. 1443;
24 C. J. S., Criminal Law, sec. 1948, p. 1112.
14. Applying the law to the testimony taken on this hearing, the court is satisfied that
petitioner was not denied his constitutional right to the assistance of counsel in the court
below. The appointment of attorney Collins was in all respects regular. Petitioner was given
six days to plead to the information, and it was almost a month from the arraignment until the
trial. There was ample time for conference, investigation, and preparation. Mr. Collins's
experience and success in defending persons accused of crime, up to the time he was
appointed to defend prisoner, have not been challenged. In selecting the jury, applying to the
court to have the witnesses put under the rule, cross-examining witnesses, objecting to
testimony offered by the state, resisting objections made by the state of testimony offered
in behalf of petitioner, succeeding in excluding exhibits offered against the defense and
procuring admission in evidence of exhibits favorable to petitioner, in guarding the
interests of petitioner with reference to instructions to the jury, and in all other matters
during the course of the trial, counsel acted with at least ordinary skill and with a careful
regard for the interests of his client.
objections made by the state of testimony offered in behalf of petitioner, succeeding in
excluding exhibits offered against the defense and procuring admission in evidence of
exhibits favorable to petitioner, in guarding the interests of petitioner with reference to
instructions to the jury, and in all other matters during the course of the trial, counsel acted
with at least ordinary skill and with a careful regard for the interests of his client.
Petitioner's testimony that his attorney failed to confer with him before the trial as much as
he should have is wholly uncorroborated, while that of the attorney to the effect that he had
numerous conferences with petitioner is satisfactorily corroborated by the testimony of deputy
sheriff Russell.
Petitioner's testimony that his attorney failed to cooperate with him is not supported by the
evidence on this hearing; on the contrary, the testimony indicates that petitioner failed to
properly cooperate with and confide in counsel. The most conspicuous example of such
failure was petitioner's admitted refusal to heed counsel's urgent advice that he take the
witness stand in his own defense.
By its ruling in this proceeding, the court opened the doors wide in order to afford
petitioner the opportunity to show that counsel could have offered testimony to support his
contention that he was so intoxicated at the time of the shooting that he did not know what he
was doing, and was incapable of forming the deliberate intent to commit first degree murder.
He was given permission to produce testimony covering the period from the middle of
October 1939 to the time of the shooting on the evening of February 15, 1940.
Notwithstanding this, and the fact that during all that period he claims to have spent a large
part of his time in the Bank Club and other resorts, he was unable to produce a single witness
to testify that he was intoxicated on February 15, 1940, or at any time since the middle of
October 1939. It is significant that petitioner, who told of purchasing bottles of whisky and
drinking them at night in his room, has not only failed to produce a single witness to testify
from whom, or at what place or places he purchased any bottled whisky, but has not even
named any person from whom or any place where he purchased such bottle liquor.
his room, has not only failed to produce a single witness to testify from whom, or at what
place or places he purchased any bottled whisky, but has not even named any person from
whom or any place where he purchased such bottle liquor. Furthermore, the sheriff testified
that the officers had tried, without success, to find where petitioner had purchased such
liquor. Petitioner on this hearing emphasized the extent of his drinking on the night of
February 14 and on the following day up to the time of the shooting. He says he purchased a
quart bottle of whisky on the evening of February 14, and drank it that night, and purchased a
pint bottle of whisky on the morning on the 15th, but he neither tells us from whom or where
he purchased these bottles or either of them, nor produces any witnesses to support his
testimony. It thus appears that while petitioner unquestionably drank to some extent during
the period in question, his testimony relating to his intoxication remains without any
substantial corroboration whatsoever.
In cross-examining attorney Collins on this hearing, counsel asked whether there might not
have been a different verdict had character witnesses testified for petitioner at the trial.
Nowhere in petitioner's pleadings is anything said regarding counsel's failure to produce
character witnesses. Aside from that, however, petitioner has not offered any witnesses to say
that if called they would have testified that his reputation for peaceableness was good. Mr.
Collins testified that he was unable to procure any character witnesses, that every person he
talked with from Kimberly, where petitioner worked so many years, was hostile, and that
many of the men petitioner had worked with there would not eat at the same table with him.
Attorney Collins testified further that after talking with various persons for the purpose of
procuring witnesses for the defense, he conferred with petitioner regarding their attitude and
what they would testify to if called, and petitioner then agreed that none of them should be
called.
if called, and petitioner then agreed that none of them should be called.
During the trial, the prior thereto, petitioner made no complaint about his attorney. He said
nothing to the court, and made no effort to communicate with the judge. He is neither
illiterate, young, nor ignorant, as were the defendants in the Scottsboro cases (Powell v. State,
supra). It was a long time after the verdict before petitioner complained to any court about not
having had the effective aid of counsel at and before the trial.
There was not, in this case, any arbitrary or hostile conduct on the part of the trial judge,
any misconduct of the prosecuting attorney, any mob spirit or undue haste. Counsel was never
denied the right to confer with petitioner, and no officer mistreated him or refused to deliver
any messages from him to the trial judge or any one else.
The trial judge was not aware that petitioner was in any way dissatisfied with his attorney,
and was given no opportunity to inquire into any claim on the part of petitioner that he was
not properly represented and was not being fairly tried. Attorney Collins testified that
petitioner made no complaint to him regarding his services either before or during the trial.
15. It is contended that the attorney's failure to move for a new trial shows that petitioner
did not have the efficient aid of competent counsel. Mr. Collins testified that he had not
discovered any new evidence, and that he knew of no ground upon which, in good
conscience, he could have moved for a new trial. The grounds for a motion for new trial
suggested by counsel for petitioner on this hearing would have proved unavailing. Another
attorney might have moved for a new trial; but the fact that attorney Collins did not was
insufficient, under the circumstances, to constitute denial of due process. Fambles v. State, 97
Ga. 625, 25 S. E. 365, 366.
The preparation for and defense of this case was a difficult assignment. There was no
question that petitioner did the killing, and no pretense of any legal justification for his act. A
long time after his conviction, petitioner for the first time puts forward the contention that
when he shot Frances Jones he was so intoxicated that he didn't know the difference between
right and wrong, and couldn't form any premeditated intention to kill. But the record shows
that he knew enough: to go around the block instead of directly down the main street to keep
his appointment with Frances Jones; to take with him a loaded revolver concealed in his
overcoat pocket; to quarrel with Mrs. Jones about her failing to keep appointments with him
and keeping appointments with other men; to tell a man to whom Mrs. Jones had called for
help to keep on going; and to take flight into a dark alley after shooting a defenseless woman.
Petitioner also knew, according to attorney Collins' testimony, where he had been from the
time of the shooting until he was arrested next morning, though he told counsel at first that he
did not remember where he had been during that time. Counsel had to take these facts into
consideration in planning a defense.
16. In preparing for the trial counsel was confronted with a situation where a number of
witnesses would testify that petitioner had been drinking, but not one of them that he had
been intoxicated, either on February 15, 1940, or at any other time since October 1939.
Another attorney might have decided to take a chance on calling these witnesses; but it can be
understood that Mr. Collins, experienced in the defense of murder as well as other criminal
cases, and realizing the danger of adverse witnesses, thought best to rely on the testimony of
petitioner himself and such facts as the finding of the whisky bottles and petitioner's presence
in the firehouse the morning after the shooting. It was not counsel's duty to attempt to
fabricate a defense, nor to ask persons to testify that petitioner was intoxicated, after being
told by them that they had never seen him so.
so. Counsel was relying definitely upon petitioner to be a witness in his own behalf, and it
was not until the last moment that, in defiance of his attorney's advice, he refused to do so.
The self-willed attitude of petitioner frustrated counsel's efforts in his behalf. Whether
counsel used the best judgment in planning a defense, and whether his plan was the best that
could have been devised, need not be determined. The plan, which counsel was unable to
carry through because of petitioner's last minute refusal to take the witness stand, did not
show negligence, incompetence or lack of interest sufficient to constitute denial of the
constitutional right to assistance of counsel.
In the order directing testimony to be taken before the referee at Ely, it was ordered, with
the consent of the parties, that objections to testimony should be stated in the referee's report
and ruled upon by this court. It is now ordered that all said objections be, and they are hereby
overruled. The motion to strike appearing at line 19 on page 33 of the referee's transcript is
granted, as is also the motion to strike appearing at lines 2, 3 on page 35 thereof. It is further
ordered that the objection appearing in folio 56 of the reporter's transcript of testimony taken
in this court on this hearing be, and the same is hereby overruled.
This proceeding is dismissed, and petitioner is remanded to the custody of the warden of
the state prison.
March 21, 1942.
1. Habeas Corpus.
A petition for rehearing after final judgment in a habeas corpus proceeding cannot be
considered.
Rehearing denied.
Oliver C. Custer, Grant L. Bowen, and John E. Robinson, all of Reno, for Petitioner.
Attorneys-General, of Carson City, and John W.
and Alan Bible, Deputy Attorneys-General, of Carson City, and John W. Bonner, District
Attorney of Ely, for Respondent.
OPINION
A petition for rehearing has been filed in the above-entitled matter, but cannot be
considered in a case of this kind. Ex Parte Washer, 200 Cal. 598, 254 P. 951, 956; Eureka
County Bank Habeas Corpus Cases, 35 Nev. 80, 151, 129 P. 308; Ex Parte Robinson, 71 Cal.
608, 12 P. 794; Ex Parte Shoemaker, 25 Cal. App. 551, 144 P. 985; Application of Travers,
48 Cal. App. 764, 192 P. 454; Scott and Roe, Habeas Corpus, p. 72.
Petition denied.
____________
61 Nev. 214, 214 (1942) Los Angeles & Salt Lake R.R. v. Umbaugh
LOS ANGELES & SALT LAKE RAILROAD COMPANY, a Corporation,
Et Al., Appellants, v. EDNA L. UMBAUGH, Respondent.
No. 3339
March 4, 1942. 123 P.(2d) 224.
1. Evidence.
In action for death of truck passenger killed in collision with train at crossing, evidence was sufficient to
show that university professor of mechanical and aeronautical engineering was competent to answer
hypothetical questions concerning approximate distance required to stop train and proximate speed of train
at time of application of brakes under conditions existing at time of collision.
2. Evidence.
The judgment of a skilled witness testifying as an expert may be based in part at least on the results of
experiments made by himself or others.
3. Evidence.
In action for death of truck passenger killed in collision with train at crossing, where expert witness who
was asked hypothetical questions concerning approximate distance required to stop train and proximate
speed of train at time of application of brakes stated that an accurate calculation would have to be
based on an experiment under the same conditions but that he could make an
approximation, data from which witness concluded amount of air pressure applied to
brakes at the time affected the weight of his testimony and not its competency or
admissibility.
would have to be based on an experiment under the same conditions but that he could make an
approximation, data from which witness concluded amount of air pressure applied to brakes at the time
affected the weight of his testimony and not its competency or admissibility.
4. Evidence.
In action for death of truck passenger killed in collision with train at crossing, expert witness, to answer
hypothetical questions concerning approximate distance required to stop train and proximate speed of train
at time of application of brakes, was not required to make an experiment under the same or substantially
similar conditions.
5. Trial.
The rules of evidence are not intended to be subversive of the ends for which they are adopted, and it is
more important to obtain the truth than to quibble over impractical distinctions.
6. Railroads.
In action against railroad, its engineer, and fireman for death of truck passenger killed in collision with
train at crossing, in absence of legislative authority or offer of proof thereof exempting a lessor railroad
from responsibility to the public for lessee's torts, railroad's lessee was its agent for whose torts railroad
was liable.
7. Railroads.
A railroad lessor is not relieved from liability for negligence of its lessee without legislative sanction
expressly exempting it.
8. Railroads.
In action against railroad, its engineer, and fireman for death of truck passenger killed in collision at
crossing, in absence of legislative authority or offer of proof thereof exempting a lessor railroad from
responsibility to the public for lessee's torts, trial court did not err in sustaining objections to certified
copies of lease between railroad as lessor and another railroad as lessee and of interstate commerce
commission's approval of lease or to other offer of proof that train was being operated by lessee or in
rejecting an offered instruction on that point.
The trial court's ruling denying defendant's challenge to venireman was not prejudicial where venireman
was later excused from the jury by reason of exercise of defendant's third peremptory challenge, it did not
appear that they would have employed another peremptory challenge had they been entitled to it, and there
was no suggestion that an impartial jury was not obtained.
10. Railroads.
In action for death of truck passenger killed in collision with train at crossing within defendant railroad's
yard limits in city, requested instruction assuming that ringing of engine bell or
sounding of whistle or both justified any rate of speed at crossing, absolving railroad
even though passenger was exercising reasonable care, was properly refused as
containing an incorrect statement of the law.
in city, requested instruction assuming that ringing of engine bell or sounding of whistle or both justified
any rate of speed at crossing, absolving railroad even though passenger was exercising reasonable care, was
properly refused as containing an incorrect statement of the law. Comp. Laws, sec. 10267.
11. Railraods.
yard limits in city, whether speed of train was negligent under conditions existing at crossing was for the
jury, even if trainmen complied with statute requiring bell to be rung or whistle to be sounded at least 80
rods from crossing and until locomotive had passed over crossing. Comp. Laws, sec. 10267.
12. Railroads.
A railroad must exercise a degree of care commensurate with the danger and hence must exercise greater
care in the matter of speed at greatly traveled crossings in cities than at unfrequented crossings in the
country, and that duty is independent of and in addition to statutes or ordinances requiring a railroad to
perform certain precautionary acts in approaching a crossing.
13. Railroads.
Railroads in crossing public highways at grade must use all reasonable care to avoid collision and provide
for the safety of travelers who enjoy privileges in common with them, and the degree of care varies with the
character of the crossing, with the use made of the highway by the traveling public, and with the speed and
frequency of passing trains.
14. Railroads.
Whether the care actually exercised by a railroad at a highway crossing is reasonable or whether by the
omission of such precautionary measures as were proper or as railroad had accustomed travelers on
highway to expect, railroad has been guilty of negligence are questions of fact for the jury under all of the
circumstances.
15. Railroads.
Though a railroad is not required to stop its train at a public crossing except as at any other place in case
of a known or probable danger, it must regulate its speed according to the danger.
16. Trial.
A requested instruction covered by another instruction was properly refused.
17. Railroads.
yard limits in city, instruction that persons operating train in approaching crossing were required to propel
and cause train to be propelled at a reasonable rate of speed and with due regard to the safety of
persons who might be crossing highway on tracks was proper.
the safety of persons who might be crossing highway on tracks was proper.
18. Railroad.
yard limits in city, evidence was sufficient for jury to find that train was traveling at excessive speed and
that railroad was guilty of negligence proximately causing collision.
19. Railroads.
In action for death of 11-year old girl who was killed when truck in which she was riding collided with
passenger train at crossing within defendant railroad's yard limits in city, whether girl was contributorily
negligent was for the jury.
20. Railroads.
On question of railroad's liability for death of 11-year old girl who was killed when truck in which she
was riding collided with train at crossing within railroad's yard limits in city, rights of girl and railroad to
use crossing were mutual and reciprocal.
21. Negligence.
A person having normal faculties of sight and hearing is presumed to have heard and seen that which was
in the sight and range of vision.
22. Railroads.
In action for death of 11-year old truck passenger killed in collision with train at crossing within
defendant railroad's yard limits in city, railroad had burden of making out its defense of contributory
negligence.
23. Negligence.
The law never holds it imprudent in any one to act on the presumption that another in his conduct will act
in accordance with the rights and duties of both.
24. Trial.
yard limits in city, failure of amended complaint to allege negligence based on the last clear chance
doctrine did not preclude the trial court from giving an instruction on that doctrine.
25. Negligence.
An allegation of negligence based on the last clear chance doctrine is not necessary to authorize the
admission of evidence and recovery under that doctrine, particularly in view of rule making contributory
negligence an affirmative defense to be alleged and proved by the defendant.
It could not be contented that an instruction on the last clear chance doctrine was erroneous for failure to
charge that the doctrine could not be considered unless plaintiff's decedent was found to be contributorily
negligent, in absence of a request to qualify instruction in that respect or to give an
affirmative instruction to that effect.
request to qualify instruction in that respect or to give an affirmative instruction to that effect.
27. Trial.
In action for death of 11-year old truck passenger killed in collision with train at crossing within
defendant railroad's yard limits in city, offered instructions concerning passenger's duty to look and listen
for an approaching train as truck approached crossing were properly refused in view of other instructions
covering passenger's duty in that regard.
28. Death.
Contributory negligence which will bar a recovery in a death action must be that of the person from
whom the cause of action is derived or the beneficiary or some one standing in such a relation to the
beneficiary that the rule that the acts of an agent are the acts of the principal may be invoked, and a wife
does not from the mere marital relation occupy such a position in the care and custody of a minor child.
29. Death.
A mother is not the agent of the father in the care of children any more than father is the agent of the
mother within the rule that the acts of an agent are the acts of the principal, but they are both equal before
the law, and the common interest or common duty of the parents toward the children will not of itself make
one the agent of the other or responsible for the other's negligence.
30. Negligence.
The mere existence of the marital relation does not have the effect of making the negligence of one
spouse imputable to the other.
31. Death.
In mother's action for death of 11-year old adopted daughter who was killed when truck in which she was
riding collided with train at crossing within defendant railroad's yard limits in city, negligence, if any, of
father who was driving truck was not imputable to mother and could not be invoked to defeat her right of
recovery, where there was no showing that mother and father stood in such relation of privity that the rule
that the acts of an agent are the acts of the principal applied.
32. DeathHusband and Wife.
Proceeds from a mother's exercise of her statutory right to maintain an action for the death of a minor
adopted child would not constitute community property as acquired after marriage within statute, and
hence father's negligence, if any, was not imputable to mother and could not be invoked to defeat recovery.
33. Husband and Wife.
Under statute providing that all property acquired after marriage by either husband or wife, with certain
exceptions, shall be community property, the word acquired embraces wages, salaries, earnings,
or other property acquired through the toil or talent or other productive faculty of
either spouse.
wages, salaries, earnings, or other property acquired through the toil or talent or other productive faculty of
either spouse. Comp. Laws, sec. 3356
Where plaintiff did not appeal from order reducing damages but filed a remittitur, alleged error in
reducing damages was waived and could not be urged on appeal, since by filing remittitur plaintiff
consented to order.
An appeal does not lie from a consent order or judgment.
Appeal from Eighth Judicial District Court, Clark County; Roger Foley, Judge.
Action by Edna L. Umbaugh against the Los Angeles & Salt Lake Railroad Company and
others to recover damages for the death of Willa Umbaugh, deceased. From a judgment for
plaintiff and from an order denying a motion for new trial, the named defendant and another
appeal, and plaintiff assigns cross error. Judgment and order affirmed.
Leo A. McNamee and Frank McNamee, Jr., both of Las Vegas, and Malcolm Davis, of Los
Angeles, California, for Appellants.
A. W. Ham and Ryland G. Taylor, both of Las Vegas, for Respondent.
OPINION
The plaintiff, respondent here, brought this action to recover damages for the death of her
adopted daughter, Willa Umbaugh, who was killed on the 10th day of November 1938 in a
collision between the truck in which she was riding and a passenger train alleged to have been
operated by the said railroad company. The truck was being driven by plaintiff's husband,
father of the deceased child by adoption, who was also killed. The child was eleven years of
age.
The collision occurred at the Charleston Boulevard in the city of Las Vegas, within the
yard limits of the railroad company. The amended complaint contains two charges of
negligence against the railroad company; (1) that it caused its trains to cross said boulevard at
a great and negligent rate of speed of more than fifty miles per hour and without sounding any
bell or whistle, and (2) that it failed to maintain at said crossing any automatic signalling
device, flagman, gate, or other signal or warning of an approaching train. The answer set up
two defenses; (1) that defendants were guilty of no negligence, and (2) that the deceased,
Willa Umbaugh, was guilty of contributory negligence. A jury trial resulted in a verdict of
$25,000 against all defendants, who, in addition to said railroad company, were Ralph T. Salt
and Ben VanBuren, engineer and fireman respectively, on the train at the time of the accident.
A motion for a new trial by all the defendants was granted as to the fireman unconditionally,
but as to the railroad company and engineer it was ordered that, if on or before a special date
plaintiff shall serve upon them and file a remittitur in the amount of $16,985, a new trial is
denied and the verdict for the residue, to wit, $8,015, shall stand as the verdict on which a
judgment will be entered; otherwise they will be granted a new trial.
Within the time limited plaintiff filed with the clerk of the court, her remittitur, remitting
of the judgment theretofore filed and recorded, the sum of $16,985, which resulted in the
denial of the motion for a new trial as to the railroad company, and the engineer. Their appeal
is from the order and judgment. The railroad company will be generally referred to as such.
The home of plaintiff, husband and child, was near the southwesterly outskirts of Las
Vegas and they usually came into the city in the truck, traveling easterly over the Charleston
Boulevard, which crosses the railroad company's main track at grade. The father and child
were traveling the usual route when killed. It was about 7:35 a.m. and he was on his way to
his place of business in Las Vegas, intending to leave the daughter at school.
about 7:35 a.m. and he was on his way to his place of business in Las Vegas, intending to
leave the daughter at school. In the vicinity of the crossing the railroad track is a straight track
extending north and south. The grade of the track is downward towards the city, a fall from
the south to north of 4.39 feet in 2,500 feet, .169 percent, and constant both ways from the
crossing. There are no obstructions at or near the crossing. One approaching it on the
boulevard from the west can see some distance along the railroad track to the south. At the
time of the accident there was no automobile signalling device maintained at the crossing, nor
wig-wag, nor flagman, nor gate. The engineer testified that he was acquainted with these
conditions. The train was two hours and thirty-seven minutes late on this morning.
A number of errors are assigned within the general one that the court erred in overruling
defendant's motion for a new trial. The first two, which can be considered together, go to the
action of the court in overruling their objections to two hypothetical questions propounded to
plaintiff's witness, Ralph D. Baker, and in denying their motion to strike his answers to these
hypothetical questions.
The questions were as follows: (1) Doctor, assuming that a train is moving upon a
straight track; that the rails are dry; that the fall or downgrade is 4.39 feet to the twenty-five
hundred feet, or a downgrade of .169 percent, and the train is composed of the following: one
engine, one tender, two baggage cars, one baggage dormitory car, two dining cars, one
observation car and five standard Pullman cars; that the engine had four driving wheels on
each side, or eight driving wheels all told; that the tender had four wheels on each side or
eight wheels all told; that the train was equipped with standard Westinghouse air brakes; that
the entire braking equipment was in good order for the entire train; that the entire train,
including the engine, tender and all cars as above, weighed 2,252,381 pounds; that the train
was moving at forty miles per hour; that the engineer of the train applied full service or
full braking power to the train, can you determine approximately what distance would be
required in which to stop the train?"
train was moving at forty miles per hour; that the engineer of the train applied full service or
full braking power to the train, can you determine approximately what distance would be
required in which to stop the train?
(2) Doctor, Assuming a train made up and traveling as indicated in the immediately
preceding hypothetical question, and the engineer applied full braking service, and the train
travels after such full braking service is applied, a distance of 2,255 feet, can you tell the
approximate speed of the train at the time of the application of the brakes?
The contention is that certain factors were omitted from the questions which were essential
to a determination of the speed of the train at the time the brakes were applied. The principal
fact stressed as missing, was the pounds per square inch of air pressure applied to the brakes
at the time. The witness testified that the could answer the question by assuming that fact
from his knowledge of dynamics, and explained that he would take experimental values
derived from experiments that had been performed on Westinghouse brakes and other braking
systems derived from hand books published on the subject. He explained also that these
experimental values were as to coefficient of friction, wind resistance and grade resistance.
He explained further that in making his deductions from the experiments he would take the
minimum of braking efficiency of the train, and that the statement in the question that the
entire braking equipment was in good order for the entire train, would cover that particular
point. The engineer had testified that the braking equipment on the train was adequate and in
good order.
1, 2. We think the witness was competent to answer the questions. He was an expert in the
field of mechanical engineering. On examination his qualifications were stated as follows: He
spent two years in Rex College, which is a two-year college, and then spent three years at the
University of Utah, and received the degree of Bachelor of Science in Mechanical
Engineering.
Bachelor of Science in Mechanical Engineering. After graduating he spent a year in the
University and then went to the University of Kansas as an instructor in mechanical
engineering. While instructing at that institution he took courses in mathematics and
advanced mechanical engineering, and received the Masters Degree in Mechanical
Engineering in 1931. After six years at the University of Kansas he went to California
Institute of Technology where he spent three years in advanced study in aerodynamics and
applied elasticity and hydraulics, and received the degree of Doctor of Philosophy in 1938. At
the time of giving his testimony in this case, he was a professor in the University of Utah and
had been teaching the particular subject of mechanical and aeronautical engineering since
1938. It will be seen that his qualifications as an expert in the field of mechanical arts were
not of a questionable character, but very high. The field from which the witness formulated
his opinion was above mere hypothetical conjecture. His technical knowledge in respect to
the subject was reasonably calculated to enable him to give a considered appraisal to the
values established by other recognized experts by actual experiments in answering the
questions propounded. The judgment of a skilled witness testifying as an expert may be
based, in part at least, upon the results of experiments made by himself or others. 3
Chamberlayne Modern Law of Evidence, sec. 2381a.
3. After all, the witness was not called upon to answer with the exactness of a
mathematical computation. The question was not so absolute. It called merely for an
approximation and was so recognized by the witness, who stated that if he was going to make
and accurate calculation it would have to be based upon an experiment where the conditions
were the same, but that he could make an approximation.
The data from which the witness concluded as to the air pressure on the brakes, affect the
weight of the testimony, and not its competency or admissibility.
4, 5. Counsel for defendants insist that the only evidence which would be admissible on
the point in question would be evidence as to an experiment under the same, or substantially
similar conditions to the case at bar. In other words, plaintiff would have to procure the same
train, or one like it, run it over the same track, or, if permission could not be obtained to do
this, which is quite likely, build a track of the same grade and make the experiment. It is
obvious that this could not be done, and the rules of evidence are not so rigid as to prevent
plaintiff from procuring what to us seems a near equivalent. The rules of evidence are not
intended to be subversive of the ends for which they are adopted. Evans v. Com., 230 Ky.
411, 19 S. W.(2d) 1091, 66 A. L. R. 360.
As stated in First Nat. Bank v. Robinson, 93 Kan. 464, 144 P. 1019, Ann. Cas. 1916d,
286: The modern notion of the admissibility of evidence is that it is more important to get
the truth than to quibble over impractical distinctions.
The case of Burg v. Chicago, R. I. & P. Ry. Co., 90 Iowa 106, 57 N. W. 680, 48 Am. St.
Rep. 419, cited by defendants, in which an extract from the Mechanical Dictionary was held
inadmissible, is not in point or analogous. The testimony of an expert as to experimental
values was not involved.
The next assignment is that the court erred in sustaining plaintiff's objection to defendant's
offer into evidence of proposed exhibits A-1 and B. The former is a copy of a certified copy
of a lease, dated January 1, 1936, between Los Angeles and Salt Lake Railroad Company,
lessor, and Union Pacific Railroad Company, lessee, by the terms of which the lessor leased
to the lessee its line of railroad, together with all rights, privileges, franchises, and rolling
stock and other property appertaining thereto, owned by lessor, and all miscellaneous physical
properties owned by lessor. It was certified under seal of the secretary of the interstate
commerce commission to be a true copy of said certified copy to petition for modification or
extension of order filed with the commission November 21, 1935, in Finance Docket No.
copy to petition for modification or extension of order filed with the commission November
21, 1935, in Finance Docket No. 9422, Union Pacific Railroad Company Unification, the
original of which is on file and of record in the office of the said commission. The latter offer
was a certified copy under the hand and seal of the secretary of the interstate commerce
commission of the report and order of the commission issued July 26, 1935, and order of the
commission entered November 25, 1935, in Finance Docket No. 9422, Union Pacific
Railroad Company Unification, on file and of record in the office of said commission, by the
terms of which the lease was approved.
6. It is claimed that issue is made under the pleadings whether the defendant company was
operating the train involved in the collision, and that the proposed exhibits were material to
prove that the Union Pacific Railroad Company was operating it under lease at the time.
Plaintiff contends that they were immaterial because the allegations of the answer were so
evasive as to raise no issue on that point, and objected to their admission on several other
grounds. We are of the opinion that it matters not whether the answer made such an issue.
The exhibits were, nevertheless, immaterial because no legislative authority appears
exempting the lessor from responsibility to the public for the torts of the lessee. Nor was there
any offer of proof in this regard. Such an exemption was essential, we think, to relieve
defendant from the negligence of the lessee or its servants, and in its absence we are impelled
to hold in line with considered authority that the Union Pacific Railroad Company was, in
this situation, the agent of the defendant.
In Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 463, 55 L. Ed. 521,
Mr. Justice Harlan, citing and quoting from Illinois cases, said:
In Chicago & G. T. Ry. Co. v. Hart, 209 Ill. 414, 70 N. E. 654, 66 L. R. A. 75, the
Supreme Court of Illinois, after referring to Elliot on Railroads, in which it is admitted that
the weight of authority was that the lessor company, unless expressly exempted by
statute, was liable for injuries caused by the negligence of the lessee company, its agents
and servants, said: 'We think this court is committed to the view held by the current of
authorities on the question, and, moreover, that, in sound reason and as the better public
policy, the doctrine should be maintained that the lessor company shall be required to
answer for the consequences of the negligence of the lessee company, in the operation of
the road, not only to the public, but also to servants of the lessee company who have been
injured by actionable negligence of the lessee company.
admitted that the weight of authority was that the lessor company, unless expressly exempted
by statute, was liable for injuries caused by the negligence of the lessee company, its agents
and servants, said: We think this court is committed to the view held by the current of
authorities on the question, and, moreover, that, in sound reason and as the better public
policy, the doctrine should be maintained that the lessor company shall be required to answer
for the consequences of the negligence of the lessee company, in the operation of the road,
not only to the public, but also to servants of the lessee company who have been injured by
actionable negligence of the lessee company. The charter of the lessor company empowered it
to construct this line of railroad and operate trains thereon. It became its duty to exercise
those chartered powers, otherwise they would become lost by nonuser. The statute authorized
it to discharge that duty through a lessee, and it adopted that means of performing the duty
which the state had created it to perform. The statute which authorized it to operate its road
by means of a lessee did not, however, purport to relieve it of the obligation to serve the
public by operating the road, nor of any of the consequences or liabilities which would attach
to it if it operated the road itself. 3 Starr & C. Anno. Stat. 1896, p. 3247 [Smith-Hurd Stats.
Ill. c. 114, sec. 43]. Statutory permission to lease its road does not relieve a railroad company
from the obligations cast upon it by its charter unless such statute expressly exempts the
lessor company therefrom. Balsley v. St. Louis, Alton & Terre Haute Railroad Co., 119 Ill.
68, 8 N.E. 859, 59 Am. Rep. 784. While the duty which rests upon the lessor companies to
operate their roads is an obligation which they owe to the public, the permission given by the
legislature, as the representative of the public, to perform that duty through lessees, has no
effect to absolve such companies from the duty of seeing that the lessee company provides
and maintains safe engines and cars, and that the employees of the lessee companies to whom
is intrusted the operation of their roads are competent, and that they perform the duties
devolving upon them with ordinary care and skill; for upon the character and condition of
safety of such engines and cars, and on the competency and care of such employees,
depend the lives and property of the general public.
intrusted the operation of their roads are competent, and that they perform the duties
devolving upon them with ordinary care and skill; for upon the character and condition of
safety of such engines and cars, and on the competency and care of such employees, depend
the lives and property of the general public. As a matter of public policy, such lessor
companies are to be charged with the duty of seeing that the operation of the road is
committed to competent and careful hands. The general assembly of this state, though willing
to permit railroad companies to operate their lines of road by lessees, refrained from relieving
the lessor companies from any of their obligations, duties, or liabilities. Therefore it is that
though a railroad company may, by lease or otherwise, intrust the execution of its chartered
powers and duties to a lessee company, this court has expressed the view (that) the lessee
company, while engaged in exercising such chartered privileges or chartered powers of the
railroad company, is to be regarded as the servant or agent of the lessor company.'
In West Chicago Street R. R. Co. v. Horne, 197 Ill. 250, 251, 64 N. E. 331, the state
supreme court said that: The law is well settled that when an injury results from the
negligence or unlawful operation of a railway, whether by the corporation to which the
franchise is granted or by another corporation which the proprietary company authorizes or
permits to use its tracks, both the lessor and the lessee are liable to respond in damages to the
party injured,'citing Pennsylvania Co. v. Ellett, 132 Ill. 654, 24 N. E. 559; Chicago & Erie
Railroad Co. v. Meech, 163 Ill. 305, 45 N. E. 290. In the Ellett case, the language of the court
was: The law has become settled in this state, by an unbroken line of decisions, that the grant
of a franchise, giving the right to build, own, and operate a railway carries with it the duty to
so use the property and manage and control the railroad as to do no unnecessary damage to
the person or property of others; and where injury results from the negligent or unlawful
operation of the railroad, whether by the corporation to which the franchise is granted, or
by another corporation, or by individuals whom the owner authorizes or permits to use its
tracks, the company owning the railway and franchise will be liable.' Many cases in
Illinois were cited by the state court in support of its view.
railroad, whether by the corporation to which the franchise is granted, or by another
corporation, or by individuals whom the owner authorizes or permits to use its tracks, the
company owning the railway and franchise will be liable.' Many cases in Illinois were cited
by the state court in support of its view.
It is thus made clear that if the plaintiff had any cause of action on account of the injury in
question, he could bring a joint action in an Illinois court against the lessor and lessee
companies. Whatever liability was incurred on account of the death of the plaintiff's intestate
could, at the plaintiff's election, be asserted against both companies in one joint action, or, at
his election, against either of them in a separate action.
To the same effect are Sorenson v. Chicago, etc., R. Co., 183 Iowa 1123, 168 N. W. 313;
Breslin v. Somerville Horse R. Co., 145 Mass. 64, 13 N. E. 65; Hammond v. Kansas, etc., R.
Co., 109 Okl. 72, 234 P. 731; McCabe's Adm'x. v. Maysville & B. S. R. Co., etc., 112 Ky.
861, 66 S. W. 1054; Georgia R., etc., Co. v. Haas, 127 Ga. 187, 56 S. E. 313, 119 Am. St.
Rep. 327, 9 Ann. Cas. 677; Driscoll v. Norwich & W. Railroad Co., 65 Conn. 230, 254, 32 A.
354; Hill v. Director-General of Railroads, 178 N. C. 607, 101 S. E. 376; Smalley v. Atlanta
& C. Air Line Ry. Co., 73 S. C. 572, 574, 53 S. E. 1000, 6 Ann. Cas. 868; Cogswell v. West
St. & N. E. Electric Ry. Co., 5 Wash. 46, 31 P. 411; Washington A. & G. Railroad Co. v.
Brown, 17 Wall. 445, 21 L. Ed. 675; Northern Pac. Ry. Co. v. Mentzer, 9 Cir., 214 F. 10;
Pierce on Railroads, 283.
In Sorenson v. Chicago, etc., R. Co., supra [183 Iowa 1123, 168 N. W. 318], the court,
declining to agree with a ruling of the North Carolina supreme court that an employee of a
lessee could recover of the lessor for injuries sustained while operating for the lessee, said:
But while this is so, we do agree with the decision in so far as it declares why leasing or
farming' out the franchise of a railroad will not exempt such lessor from responding for the
negligence of its lessee, unless a statute expressly exempts the lessor from responding.
statute expressly exempts the lessor from responding. That reasoning is that in the absence of
such exemption the lessor is estopped from setting up the lease as a defense and so release
itself from liability for the negligence of its lessee, since it would be against public policy to
allow a railroad corporation to put off the liability incident to its franchise while enjoying the
profits that may accrue by the medium of a lease.
In Driscoll v. Norwich & W. Railroad, supra [65 Conn. 230, 32 A. 357], the court said: A
grant to a corporation of a right to lay out, construct, and operate a railroad is the grant to the
corporation of the capacity to exercise a portion of the powers of sovereignty for the purpose
of making pecuniary profit to itself. This is its franchise. Such grants are never made except
at the request of the corporation. In return, the corporation is held to have promised to pay
just damages to any person injured by any want of care in using the right so granted. As the
grant is of a public right, in which every one of the public is a sharer, so the promise is to
each one of the public. A due regard for the public rights obviously requires that a corporation
which has asked for and received such a grant shall not be absolved from its promises except
by an act of the legislature to that effect, so distinct and unequivocal as not to be open to
mistake. Nothing should be left to inference.
In McCabe's Adm'x. v. Maysville & B. S. R. Co., supra [112 Ky. 861, 66 S. W. 1058] it
was said: By its acceptance of the franchises conferred by the state the corporation assumed
the corresponding burdens thereby imposed. These franchises it could not transfer to another
without distinct legislative authority. The grant of power to lease its property is one thing; the
grant of absolution from its responsibility is another, and is not to be inferred from a mere
power to lease the road, where the corporation still retains its existence and the enjoyment of
its franchises in the rents. For such grants are strictly construed, and, as against the public, are
never extended by construction.
public, are never extended by construction. In the case before us there is only a grant to the
lessor of power to contract for the operating of the road. The company enjoys all its
franchises in the fruits of the contract. There is nothing in the provision to show that the
legislature had in mind authorizing the company to devest itself of its franchises, or
permitting it, while enjoying them or their fruits, to be acquit of responsibility for their abuse,
without regard to the financial ability of the lessee or his amenability to suit.
Pierce, in his work on Railroads, at page 283, states the rule as follows: The company
cannot, in the absence of special statute authority and exemption, divest itself of
responsibility for the torts of persons operating its road by transferring its corporate powers,
or leasing the road to them. It cannot by its own act absolve itself from its public obligation
without the consent of the legislature.
7. We are not unmindful that there are authorities against the position we take. Some of
these are based on the theory that the legislative authority to lease implies an exemption from
liability on the part of the lessor for the torts of the lessee. 51 C. J. sec. 1138. This, in our
opinion, is not a logical deduction. But the railroad company does not rest this phase of its
case on any such ground. It places its reliance upon the approval of the lease by the interstate
commerce commission under federal law, which, it states, is paramount to the state law. On
this account it claims there is a valid lease. The question does not go to the validity of the
lease between the lessor and lessee, but to whether the railroad company, which has obtained
a public franchise involving the discharge of important public duties, in the careful operation
of its road, can avoid such responsibilities without the consent of the state, by leasing its road
to be operated by another. In consonance with a sound public policy it ought not to be so
privileged. It cannot enjoy the profits flowing from a lease and rid itself of the burden of
responsibility to the public whose franchise it enjoys.
and rid itself of the burden of responsibility to the public whose franchise it enjoys. We
conclude that the principle that a railroad lessor is not relieved from liability for the
negligence of the lessee without legislative sanction expressly exempting it, is sound and just.
If such a rule be deemed too onerous, the remedy is for the legislature, or the lessor can guard
itself against its effect by indemnity bond arrangements with the lessee.
8. There was no error in sustaining objections to said exhibits, or to the other offer of proof
to the effect that the train in question was being operated by the Union Pacific Railway
Company instead of by defendant, or in rejecting defendants' offered instruction D-41, on that
point.
9. Defendants assigned as error the ruling of the trial court in denying its challenge to
venireman Gerald H. Musser. Musser was thereafter excused from the jury by reason of the
exercise of their third peremptory challenge. It does not appear that they would have
employed another peremptory challenge, if they had been entitled to it, nor is there any
suggestion that an impartial jury was not obtained. So, it is difficult to see how defendant was
prejudiced by the denial of its challenge by the court. A consideration of all the prospective
juror's examination touching his qualifications convinces us that the court's ruling was not
open to criticism.
We come now to the instructions given and rejected. Twenty-four errors are assigned in
this regard. Some of them are untenable at first glance, and these will not be referred to.
10. Defendant's requested instruction D-11A, the rejection of which is complained of, was
properly refused. It contains an incorrect statement of the law in that it is assumed that the
ringing of the engine bell, or sounding the whistle, or both, justified any rate of speed at the
crossing, absolving the defendant, even though plaintiff's decedent was exercising reasonable
care at the crossing.
11, 12. We think the question of whether the speed of the train was negligence on the part
of the defendant was one for the jury under the circumstances existing at the crossing. This is
so even though the trainmen complied with section 10267 N.C.L., requiring the bell to rung,
or whistle of the locomotive to be sounded at least 80 rods from the crossing, and to continue
such ringing or sounding until the locomotive passed over it. (It does not appear that other
regulations in this regard are required in Las Vegas.) As a general rule a high or unusual rate
of speed at a crossing does not of itself constitute negligence on the part of a railroad
company. A higher rate of speed may be justified in the country at unfrequented crossings
than at much traveled crossings, which usually occur in cities. Greater care in the matter of
speed is required in the latter class of cases and is a duty required independent of, and in
addition to statutes or ordinances requiring a railroad company to perform certain
precautionary acts in approaching a crossing. 52 C. J. 209-212 and cases cited in note 30. In
other words, a railroad company is bound to exercise a degree of care commensurate with the
danger.
13, 14. As said in Pennsylvania R. Co. v. Miller, 3 Cir., 99 F. 529, 531: * * * We cannot
adopt the conclusion of counsel, that, in having performed its duty with regard to audible
signals, the company thereby becomes exempt from all liability, or is relieved from the
obligation of taking additional precautions to provide for the safety of the travelers upon the
highway. We hold that it is the duty of railroad companies, in crossing public highways at
grade, to use all reasonable care to avoid collisions, and provide for the safety of travelers
who enjoy thereon privileges in common with them (Favor v. [Boston & L.] Railroad Corp.,
114 Mass. 350 [19 Am. Rep. 364]); that the degree of care varies with the character of the
crossing,whether the view be free, or obstructed by trees, fences, buildings, or the natural
configuration of the land,with the use made of the highway by the traveling public, and
with the speed and frequency of passing trains.
natural configuration of the land,with the use made of the highway by the traveling public,
and with the speed and frequency of passing trains. Whether the care actually exercised is
reasonable, or whether, by the omission of such precautionary measures as were proper, or as
they had accustomed travelers on highways to expect, the railroad company has been guilty of
negligence, are questions of fact to be determined by the jury upon all the circumstances of
the case.
15. While a railroad company is not required to stop its train a public crossing (Cohen v.
Eureka & P.R.R. Co., 14 Nev. 376) except as at any other place in case of a known or
probable danger (Grinestaff v. New York Cent. R.R., 253 Ill. App. 589), it must regulate its
speed according to the danger. Reed v. Queen Anne's R. Co., 4 Pennewill, Del., 413, 57 A.
529.
16. In this view of the law the following were to be taken into consideration by the jury in
determining whether the speed of the train was negligence. The accident occurred within the
yard limits of the defendant and the city limits of a populous city. Charleston Boulevard was a
well-traveled highway. The evidence tended to show that it was traveled approximately by
one hundred and fifty to two hundred cars per day. At the time of the accident there was no
automatic signaling device, no wig-wag, no flagman, nor gate maintained at the crossing, and
the engineer was acquainted with that condition, as well as with the fact that under the special
rules of the railroad the maximum speed within yard limits for passenger trains was forty
miles per hour and as much slower as rules and conditions require. These were all to be
considered, as well as the fact that it was a grade crossing, with no obstructions to interfere
with an approaching autoist's view of the track for a considerable distance on either side of
the track. Consequently the refusal of the proposed instruction which took from the jury a
consideration of those elements in determining the liability of the defendant, was not error.
was not error. Nor was there any error in rejecting defendant's proposed instruction D-18,
which in part reads:
* * * If you believe from the evidence in this case that the bell and whistle were sounded
in the proper manner, and that the character of the crossing was such that an automobilist by
exercising reasonable care as he approached the track could have avoided the collision, then
you are instructed that the speed of the train is of no consequence in this case, and you cannot
find the defendants liable on account of speed alone.
It was rejected by the court on the ground that it was covered by another instruction. This
is so.
17. Complaint is made of the following instruction given by he court: It is the duty of the
person or persons operating the train, in approaching the crossing at Charleston Boulevard,
prior to the collision in question, to propel and cause the said train to be propelled at a
reasonable rate of speed and with due regard to the safety of such persons as might then have
been crossing the highway on its tracks.
It follows from what we have already said, that the instruction is correct. 52 C.J. 179.
Complaint is next made of the court's rejection of defendant's requested instruction D-1
and D-2. The former was a request for a directed verdict in favor of all defendants, and the
latter for a directed verdict in favor of the railroad company, and are discussed in connection
with the assignment of error No. 9, that the evidence was insufficient to justify the verdict,
and that the verdict is against law.
18-20. We have pointed out what circumstances the jury had a right to consider in
connection with the speed of the train in determining whether the collision was due to
defendant's negligence. These were amply sufficient to sustain the jury's findings in its special
verdict that the railroad company was guilty of negligence proximately causing the collision,
and its further finding that it was due to excessive speed. The expert witness, in answer to
questions heretofore set out, testified that at the time of the collision the train was
traveling at a rate of 75.6 miles per hour.
witness, in answer to questions heretofore set out, testified that at the time of the collision the
train was traveling at a rate of 75.6 miles per hour. While this is an approximation, it was
enough, standing alone, to sustain the jury's finding in the special verdict, that the train was
traveling at the rate of 61 miles per hour. But, the testimony of one Arthur Griffith, who was
driving a Studebaker truck close to the scene of the collision at the time, tended to show such
speed as was found by the jury. The jury rejected the testimony of defendants' witnesses that
the train was traveling about 40 miles per hour. As the negligence of the defendants was
clearly established, it remains to be determined whether it was solely the cause of the death of
plaintiff's decedent, or whether such decedent so far contributed to the accident by her own
negligence or want of ordinary care and prudence, that, but for such negligence or want of
caution, the accident would not have happened. Solen v. Virginia & T. Ry. Co., 13 Nev. 106.
Did she exercise ordinary care, or was it an act of inexcusable neglect on her part in
attempting to pass over the crossing? We have given the question of her contributory
negligence considerable thought, but are not prepared to say that it was not for the jury. True,
it was a grade crossing, and the view of the track on either side for a considerable distance
was open to an approaching autoist. And it was further true that she was familiar with the
crossing, having crossed it by auto almost every morning on her way to school, for five years.
She knew, of course, that there was no automatic signal, device of wig-wag or flagman
maintained at the crossing. On the other hand, she had the same right to the use of the
crossing as the railroad company. Their rights were mutual and reciprocal. 52 C.J. 179, 180;
Cohen v. Eureka & P. R. R. Co., 14 Nev. 376. The evidence discloses that she was a normal
child and we must therefore assume that she saw the passenger train approaching. If she did
not see it she was negligent, for she was bound to look and listen. To assume, in the absence
of all obstructions that she did not see the passenger train, would be to lean towards the
absurd.
of all obstructions that she did not see the passenger train, would be to lean towards the
absurd. The fireman testified that she was not looking at the train, but how could he tell? She
would not have to look intently to see a passenger train in the open at close quarters, made up
of an engine and tender, two baggage cars, one baggage dorm, one dormitory car and five
standard Pullman cars. Such a combination of huge moving objects would naturally appeal to
the eye by its mass and movement.
21-23. A person of normal faculties of sight and hearing is presumed to have heard and
seen that which was within the sight and range of vision. When the truck came near the
crossing it would have been in no zone of danger and could have passed over with a margin
of safety if the train had been traveling at a proper rate of speed. There was no reasonable
cause to apprehend the excessive speed at which it was moving. In fact there was assurance in
the thought that the defendants would not run a train at a high rate of speed over a public
crossing in the city limits. The train was traveling at an excessive rate of speed, as found by
the jury. It was covering a quarter of a mile in less than fifteen seconds. In slightly less than
fifteen seconds from the time the whistle sounded, 80 rods from the crossing, the train
crashed into the truck. If it had been traveling at any rate of speed less than that, plaintiff's
decedent would have been unharmed. Under these circumstances, with the burden of proof on
the railroad company to make out the defense of contributory negligence, we are unwilling to
say that it was established as a matter of law. The law will never hold it imprudent in any
one, to act upon the presumption that another, in his conduct, will act in accordance with the
rights and duties of both. Newson v. New York Central R. R. Co., 29 N. Y. 383, 390. The
court did not err in rejecting the request for a directed verdict, and the evidence is sufficient to
justify the verdict.
Complaint is made of instruction 24 given by the court, which reads: "If you find that the
engineer and fireman, or either, discovered the decedent, Willa Umbaugh, in a position of
peril near the said track where the train was about to cross, even though she was not
actually upon the track, then you are instructed that it was the duty of such engine men
or man to use all reasonable precaution and efforts to prevent a collision or otherwise
avoid the accident."
court, which reads: If you find that the engineer and fireman, or either, discovered the
decedent, Willa Umbaugh, in a position of peril near the said track where the train was about
to cross, even though she was not actually upon the track, then you are instructed that it was
the duty of such engine men or man to use all reasonable precaution and efforts to prevent a
collision or otherwise avoid the accident.
24, 25. The instruction is correct, and the objection that it was erroneously given because
there was no allegation in the amended complaint of negligence based on the last clear chance
doctrine, is not well taken. The weight of authority with which we agree, is to the effect that
such an allegation is unnecessary to authorize the admission of evidence and recovery under
that doctrine. 45 C. J. sec. 674, and cases cited in notes 82 and 83 on page 1102. It was
appropriately said in Crowley v. Burlington, etc., R. Co., 65 Iowa, 658, 664, 20 N. W. 467, 22
N. W. 918: It is a phase of the rights and obligations of the parties which arises upon the
proofs rather than by pleading. We know of no rule of pleading which requires the plaintiff in
actions of this character to confess negligence on his part, and avoid it by alleging that the
defendant might have averted the injury by using proper care after the discovery of plaintiff's
peril.
As stated in Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 P. 941, 944, L. R. A. 1916a,
943: It would be more logical to say that the defense of contributory negligence could not be
made or submitted to the jury without confession of the primary negligence of the appellant.
[Defendant.]
In jurisdictions like this where contributory negligence is a defendant's burden of pleading
and proof, it would be illogical to require an allegation of last clear chance as a prerequisite to
recovery on that theory.
In jurisdictions where contributory negligence is an affirmative defense to be alleged and
proved by defendant, an allegation of this character would be superfluous. Thompson on
Negligence, vol. 6, sec. 7466; Welch v. Fargo & M. St. Ry. Co., 24 N.D. 463, 140 N. W. 6S0;
Hanlon v. Mo. Pac. Ry. Co.,
v. Fargo & M. St. Ry. Co., 24 N.D. 463, 140 N. W. 680; Hanlon v. Mo. Pac. Ry. Co., 140
Mo. 381, 16 S. W. 233, 235; Powers v. Des Moines Ry. Co., Iowa, 115 N. W. 494.
In Welch v. Fargo & M. St. Ry. Co., 24 N. D. 463, 140 N. W. 680, 686, the court said: It
is also quite clear to us that in states such as North Dakota, where contributory negligence is
an affirmative defense to be alleged and proved by the defendant, the doctrine of discovered
peril or of the last clear chance can be urged under a general allegation of negligence in the
complaint, and that the trial court did not err in so ruling.
26. The instruction is also claimed to be erroneous in that it failed to call to the attention of
the jury that the doctrine could not be considered unless the deceased has been found to be
contributorily negligent. If the defendants wished the instruction to be qualified in that
respect, or a separate instruction given in that regard, they should have requested the same.
27. Complaint is made of the court's rejection of defendants' offered instructions D-22,
D-23 and D-24. These have to do with the duty the law placed upon plaintiff's decedent as the
truck approached the crossing, to look and listen for an approaching train. They were properly
refused for the reason that her duty in this regard was fully covered in other instructions. For
instance, the court instructed the jury as follows:
The tracks of a railroad company are in themselves a warning of danger. If you believe
from the evidence that the deceased, Willa Umbaugh, was of such age, experience and
intelligence to comprehend and appreciate the danger involved in crossing a railroad track in
an automobile, then you are instructed that it was the duty of Willa Umbaugh, as an occupant
of the automobile involved in the collision, to look and listen for approaching trains as the
automobile neared the tracks, and that it was her duty to do such looking and listening in such
manner as an ordinary prudent child of like age, experience and intelligence would have done
under like circumstances.
like circumstances. A failure on her part to look and listen in that manner would be
negligence, and if you believe from the evidence that there was such negligence on her part,
and that such negligence contributed proximately to the happening of the collision, then you
are instructed that the plaintiff cannot recover in this action.
And again the court instructed: If you find from a preponderance of the evidence that the
deceased, Willa Umbaugh, did not exercise the amount of care that an ordinary prudent child
of the same capacity to appreciate and avoid the danger would have used in the same or
similar situation, for her own safety, did not use her senses of sight and hearing as an
ordinarily prudent child of the same capacity to appreciate and avoid the danger under like or
similar circumstances would have done, and that thereby she contributed to cause her own
injuries, then your verdict will be for the defendants, regardless of any negligence on the part
of the defendants, and regardless of whether or not the said deceased was a passenger.
And further the court instructed: By contributory negligence, as used in the foregoing
instruction, is meant the failure to use the same amount of care and caution that an ordinary
prudent child of the same capacity to appreciate and avoid danger, would have used in the
same situation. Before it can bar a recovery it must have contributed directly or proximately
to the injuries sustained. However, it matters not how slightly or in what degree it contributes,
provided it does contribute directly and proximately to the injuries sustained. Therefore, if
from a preponderance of the evidence in this case you believe that the deceased, Willa
Umbaugh, failed to use the same amount of care and caution that an ordinary prudent child of
the same capacity to appreciate and avoid danger would have used in the same situation and
that such want of care or caution by said Will Umbaugh contributed directly or proximately in
the slightest degree or in any manner whatever to the cause of her death, then plaintiff
cannot recover herein and your verdict must be against her and in favor of the
defendants."
cause of her death, then plaintiff cannot recover herein and your verdict must be against her
and in favor of the defendants.
The question of contributory negligence was properly submitted to the jury under these
instructions.
There was no error in the rulings of the court in sustaining plaintiff's demurrers to the
second and third separate defenses contained in defendants' answer to the amended
complaint, or in giving instructions Nos. 26 and 27. These specifications of error involved the
question of the negligence of the husband of the plaintiff as a bar to recovery by her for the
death of Willa Umbaugh.
28, 29. We do not think that the negligence of the husband can, under the facts of this case,
be successfully invoked so as to defeat the wife's right of recovery. The principle applicable
here is discussed in Macdonald v. O'Reilly, 45 Or. 589, 78 P. 753, 754, and quoted by the
trial judge in this case.
But the contributory negligence which will bar a recovery must be that of the person from
whom the cause of action is derived, or the beneficiary, or some one standing in such a
relation to the beneficiary that the maxim, Qui facit per alium facit per se,' may be invoked.
16 Am. & Eng. Enc. (1st ed.) 447. A wife does not, from the mere marital relation, however,
occupy such a position in the care and custody of a minor child. Under our statutes, the right
and responsibility of the parents in that regard are equal, and the mother is as fully entitled to
the custody and care of the children as the father. * * * The doctrine to be found in some of
the books, therefore, that because the father is the legal custodian of the children, or because
of the identity of the parents the law will assume that the mother is the agent of the father, for
whose negligence he is responsible, can have no application. A mother is not the agent of the
father in the care of the children, any more than the father is the agent of the mother.
mother. They are both equal before the law. The common interest or common duty of the
parents toward the children will not of itself make one the agent of the other, or responsible
for that other's negligence. Such seems to be the result of the decided cases in states where the
doctrine of imputed negligence is not recognized.
In support of the latter statement the court cites and quotes liberally from courts of other
jurisdictions, among which is the leading case of Atlanta & C. AirLine Ry. Co. v. Gravitt, 93
Ga. 369, 20 S. E. 550, 556, 26 L. R. A. 553, 44 Am. St. Rep. 145. In that case the boy killed
by the defendant railroad company was eleven years of age and was accompanied by his uncle
in whose charge he had been placed by his father. The suit was brought under the statute by
the mother for her benefit. The negligence of the father contributed to the death of the child.
Upon the question of whether his negligence could be imputed to the mother, the court said:
Under the facts of the present case, the father was in no sense acting as the agent of, or in
any manner representing, his wife. Only upon the idea of identity of interest could the act of
one be regarded as that of the other. We have already shown that the rule which once
obtained, whereby, upon the theory of identity' or agency, the negligence of a father was
imputed to his infant child, has been utterly repudiated in most jurisdictions, and no longer
has any firm footing in the law of this country. The same reasons which have been urged
against the injustice and harshness of that rule apply equally well to so indefensible a doctrine
as that which would seek to charge a wife with the negligence of her husband simply because
of the marital relation existing between the two. Like the child, the wife has distinct,
individual, legal rights, which cannot be defeated simply by showing that another, to whom
she was related by ties of wedlock, but over whom she exercised at the time no control, was
guilty of negligence concurrent with that of the defendant.
concurrent with that of the defendant. Incidentally, the husband might derive some benefit
from a recovery by her; indeed, upon her death, might inherit her estate, including the money
so recovered. This, however, would likewise be true in a case where a child was allowed to
recover, despite the negligence of its father; and yet this is universally held not to be a
sufficient reason for unjustly depriving the child of its legal rights, as against a wrongdoer
entitled to no protection whatsoever, as to liability growing out of his own gross misconduct.
It would seem that the efforts on the part of the courts of an earlier day to formulate rules
which would extend the doctrine of imputable negligence so as to include persons other than
those who actually sustained towards each other the relation of master and servant or
principal and agent, or who were jointly engaged in the prosecution of a common enterprise,
have proved to be entirely unsuccessful legal ventures. Such rules have already met the fate
which must inevitably, sooner or later, have befallen them, for they stand upon no foundation
of logic, wisdom or justice.
30. In the foregoing opinion the court cited an extract from the case of Louisville, etc., Ry.
Co. v. Creek, 130 Ind. 139, 29 N. E. 481, 482, 14 L. R. A. 733: A husband and wife may
undoubtedly sustain such relations to each other in a given case that the negligence of one
will be imputed to the other. The mere existence of the marital relation, however, will not
have that effect. In our opinion, there would be no more reason or justice in a rule that would,
in cases of this character, inflict upon a wife the consequences of her husband's negligence,
solely and alone because of that relationship, than to hold her accountable at the bar of eternal
justice for his sins because she was his wife.
31. This admirable statement of the law was also noted by the court below in its opinion
that the negligence of plaintiff's husband was not imputable to her. There was no relation
between the husband and wife in this case to take it without the rule stated in the foregoing
cases.
foregoing cases. The marital relation was not enough, and aside from this, the facts do not
disclose that they stood in such relation of privity that the maxim, qui facit, per alium facit
per se, directly applies. See, also, Phillips, et al. v. Denver City Tramway Co., 53 Colo. 458,
128 P. 460, 461. Ann. Cas. 1914b, 29; Herrell v. St. Louis-S. F. R. Co., 324 Mo. 38, 23, S.
W.(2d) 102, 69 A. L. R. 470.
32, 33. Defendants contend that the right of action given the wife by section 8553 N. C. L.
is in the nature of a community right, and consequently the proceeds therefrom would be
community property. Hence they argue that being infected with the negligence of a member
of the community, the rule of imputable negligence should apply. We are of the opinion that
the right given the wife or husband by that section is not a community right. The section, so
far as it is pertinent here, reads: The father and mother jointly, or the father or the mother
without preference to either, may maintain an action for the death or injury of a minor child,
when such injury or death is caused by the wrongful act or neglect of another. * * *
The proceeds from the exercise of the right by the wife under this section, do not come
within the meaning of the word acquired used in sec. 3356 N. C. L., defining community
property as construed by this court in Fredrickson & Watson Construction Co. v. Boyd, 60
Nev. 117, 102 P.(2d) 627, 629. We there held that it was employed in the more restricted
sense of embracing wages, salaries, earnings or other property acquired through the toil or
talent of other productive faculty or either spouse.
We will not prolong this opinion by further discussion of errors assigned by defendants.
We have examined all of them, including those claimed as to the giving of instruction No. 43,
and the rejection of defendants' offered instruction D-26, and find them to be without merit.
The jury was well instructed on all phases of the case.
34, 35. Respondent assigns as cross error the action of the court on the motion for a new
trial, in reducing the damages assessed from $25,000 to $7,500. Defendants' objection to a
consideration of the cross error on the ground that it was waived, is well taken. The order
reducing the damages was one that respondent could have appealed from if she had declined
filing the remittitur and stood on the verdict as rendered. This she did not do, but consented to
the order by filing the remittitur. She could not then have appealed, for no appeal will lie
from a consent order or judgment. 3 C. J. 671; 4 C. J. S., Appeal and Error, sec. 213; Agnew
v. Baldwin, 136 Wis. 263, 116 N. W. 641.
The judgment and order denying the motion for a new trial should be affirmed.
It is so ordered.
April 7, 1942.
Per Curiam:
Rehearing denied.
____________
61 Nev. 245, 245 (1942) Public Service Comm'n v. Dist. Court
THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEVADA, C. B. SEXTON,
CHARLES V. WILLIAMS and ALFRED MERRITT SMITH, as Members of Said
Commission, Petitioners, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and HONORABLE
GEORGE E. MARSHALL, as Presiding Judge of Said Court, Respondents.
No. 3354
March 19, 1942. 123 P.(2d) 237.
1. Automobiles.
The statute prohibiting operation of common motor carriers without certificate of convenience and
necessity is valid. Stats. 1933, c. 165, sec. 7, as amended by Stats. 1935, c. 126, sec. 4.
2. Public Service Commissions.
The district court was without jurisdiction to enjoin public service commission from conducting a hearing
on complaint directed against persons allegedly operating common motor carriers without certificate of
public convenience and necessity, where commission did not fix rates or regulations, but merely ordered
hearing and fixed place and time therefor. Comp. Laws, secs. 6133, 6137; Stats. 1933, c. 165, sec. 7, as
amended, and sec. 15; Stats. 1937, c. 152, sec. 6(b) amending Stats. 1933, c. 165, sec. 6
3. Injunction.
In absence of fraud or gross abuse, equity cannot interfere with or restrain in advance the discretion of an
administrative body's exercise of legislative powers.
4. Prohibition.
Where lack of jurisdiction is apparent of face of the record, and questions involved relate to or affect
public interests or public affairs, no jurisdictional objection need be made in district court before bringing
prohibition against district court.
5. Prohibition.
A motion to set aside temporary restraining order preventing public service commission from proceeding
with hearing, to be followed by appeal in event of adverse ruling, or direct appeal from issuance of
temporary restraining order, would not afford speedy and adequate remedies so as to preclude commission
from relief by prohibition, and to withhold the writ would not be exercising proper discretion.
6. Public Service Commission.
Equity would not take jurisdiction to enjoin enforcement of public service commission's order requiring
production of records for hearing, on ground that such order constituted a "fishing expedition" and
attempted to require respondent to furnish evidence against himself, until after
resort to other adequate available remedies.
fishing expedition and attempted to require respondent to furnish evidence against himself, until after
resort to other adequate available remedies.
Original proceeding in prohibition by the Public Service Commission of the State of
Nevada and C. B. Sexton and others, as members of that Commission, against the Eighth
Judicial District Court of the State of Nevada, in and for the county of Clark, and the
presiding judge thereof, to prevent respondent court from entertaining injunction suit against
petitioners. Alternative writ made permanent.
Gray Mashburn, Attorney-General, and W. T. Mathews and Alan Bible, Deputy
Attorneys-General of Carson City, for Petitioners.
Harold M. Morse and Madison B. Graves, both of Las Vegas, for Respondents.
OPINION
On September 29, 1941, the public service commission made the following order: It
Appearing That there has been filed with the Public Service Commission of Nevada By R. C.
Barton and Shirley Brown, doing business as Ely-Las Vegas Bus Lines, a complaint that
Dave Wolzinger, doing business as Pony Express Stages, is operating motor vehicles in the
transportation of passengers between points on U.S. Highways 50 and 93, wholly in the State
of Nevada, without a certificate of public convenience and necessity and in violation of
Section 6137, Nevada Compiled Laws, 1929, and Section 7 of Chapter 165, Statutes 1933, as
amended. It is Ordered by the Commission upon its own motion that Dave Wolzinger shall
appear before the Commission at the Hearing Room of the Nevada Hotel at Ely, Nevada, at
9:00 A. M. October 29, 1941, and show cause, if any he may have, why the Commission
should not order him to cease and desist in acting as a common carrier of passengers in
intrastate commerce within Nevada in pursuance of Section 6137, Nevada Compiled
Laws, 1929, and Section 7 of Chapter 165, Statutes 1933, as amended, and why, pursuant
to Section 15 of Chapter 165, Statutes 1933, action should not be begun with a view in
enforcing the penalties prescribed in said section for conducting common carrier
operations without first having secured a certificate of public convenience and necessity
therefor.
Nevada, at 9:00 A. M. October 29, 1941, and show cause, if any he may have, why the
Commission should not order him to cease and desist in acting as a common carrier of
passengers in intrastate commerce within Nevada in pursuance of Section 6137, Nevada
Compiled Laws, 1929, and Section 7 of Chapter 165, Statutes 1933, as amended, and why,
pursuant to Section 15 of Chapter 165, Statutes 1933, action should not be begun with a view
in enforcing the penalties prescribed in said section for conducting common carrier operations
without first having secured a certificate of public convenience and necessity therefor. It Is
Further Ordered That Dave Wolzinger shall bring with him records of all ticket sales made by
any of his agents or drivers from July 1, 1940 to October 15, 1941. Said order was made
pursuant to section 6(b) of the motor vehicle carriers act. Chap. 152, Stats. of Nevada, 1937,
p. 339.
On October 25, 1941, in the Eighth judicial district court, Clark County, Wolzinger
commenced an action against the public service commission praying that it be enjoined from
holding any hearing on or under said order to show cause, or any similar order, and from
taking any further steps or proceedings thereunder or referred to therein, or any other similar
order. The complaint alleges that plaintiff is a citizen of the United States, a resident of the
State of California, and that since July 1940 he has been engaged in business as a common
carrier of passengers and their baggage in interstate commerce between Salt Lake City, Utah,
and Los Angeles, California, via Ely, Pioche, and Las Vegas, Nevada, and other Nevada
points, all under and by virtue of the authority granted him by the interstate commerce
commission of the United States. It is further alleged: that the commission is without
authority to enter or enforce its said order, but threatens to and will, unless restrained by this
court, proceed with the hearing referred to therein; that the commission has subpenaed certain
of plaintiff's employees and agents at Las Vegas, Ely and elsewhere and requires their
attendance at said hearing; that since commencing operations as a common carrier in
interstate commerce as aforesaid, plaintiff has built up a business of a value in excess of
$10,000; that "plaintiff's business has been, is and will be disrupted by the entry and
carrying out of said Order and by the holding of the hearing thereon and plaintiff, his
business and property rights, will suffer great and irreparable damage, for which he has
no plain, speedy or adequate remedy at law in this, that he, his agents, employees and
attorneys will be required to be and appear before said Commission and said defendants
as Commissioners, and to prepare records for the use of said Commission, all of which
does and will continue to disrupt, interrupt and interfere with his service as a common
carrier in interstate commerce and will cause him to be subjected to a multiplicity of
baseless suits and prosecutions and will cause his reputation to suffer, all of which will
ruin and destory the business he has built up."
at Las Vegas, Ely and elsewhere and requires their attendance at said hearing; that since
commencing operations as a common carrier in interstate commerce as aforesaid, plaintiff has
built up a business of a value in excess of $10,000; that plaintiff's business has been, is and
will be disrupted by the entry and carrying out of said Order and by the holding of the hearing
thereon and plaintiff, his business and property rights, will suffer great and irreparable
damage, for which he has no plain, speedy or adequate remedy at law in this, that he, his
agents, employees and attorneys will be required to be and appear before said Commission
and said defendants as Commissioners, and to prepare records for the use of said
Commission, all of which does and will continue to disrupt, interrupt and interfere with his
service as a common carrier in interstate commerce and will cause him to be subjected to a
multiplicity of baseless suits and prosecutions and will cause his reputation to suffer, all of
which will ruin and destory the business he has built up. A copy of the complaint is attached
as an exhibit to the petition herein.
In support of his application for a restraining order in said action, plaintiff filed an
affidavit setting forth that on September 3, 1941, the commission made an order similar to the
said order of September 29, 1941, and practically identical therewith, except that no such
provision as the last sentence of the order of September 29 was incorporated in that of
September 3. The affidavit stated further that the hearing which was to have been held under
the order of September 3 was set for September 16, at which time his employees, who had
been subpenaed, appeared at Ely after traveling hundreds of miles at plaintiff's expense, he
having in the meantime been compelled to make various changes in his staff of employees,
and to add employees. Affiant said further that because of said order of September 3 and said
subpenas, he was forced to and did expend large sums of money, his business was disrupted
for a period of several days and that by reason of the order of September 29 many of his
employees had been and would again be subpenaed, thus subjecting him to further
expense, and to further interruption and molestation in the conduct and operation of his
business.
period of several days and that by reason of the order of September 29 many of his employees
had been and would again be subpenaed, thus subjecting him to further expense, and to
further interruption and molestation in the conduct and operation of his business.
Upon the filing of said affidavit and an undertaking for preliminary injunction, the district
court, on October 25, 1941, issued a restraining order by the terms of which the commission
was restrained from holding any hearing under its order of September 29, or any hearing
under any similar order; and from taking any other or further steps or proceedings referred to
in the order of September 29. In said restraining order the court ordered the commission to
show cause on November 21, 1941, why it should not be enjoined as aforesaid pending the
hearing on said order of October 25 and the final determination of said district court action.
On said 21st day of November 1941 the petition in this proceeding was filed and an
alternative writ of prohibition issued, to which on December 17, 1941, respondents demurred
upon the ground that the petition does not state facts warranting or authorizing the issuance of
a writ of prohibition, and upon the further ground that the petition shows on its face that at
the time it was filed the district court had jurisdiction of the parties in said action and of the
subject matter thereof, and still has such jurisdiction, subject only to the alternative writ
herein. On said pleadings the matter was submitted for decision.
1. Section 7 of the motor vehicle carriers act, as amended, Stats. of 1935, chap. 126, pp.
263, 264, provides in part: It shall be unlawful for any common motor carrier of property
and/or of passengers to operate as a carrier of intrastate commerce within this state without
first having obtained from the public service commission a certificate of convenience and
necessity. This is a valid requirement. Eichholz v. Public Service Commission, 306 U.S.
268, 59 S. Ct. 532, 83 L. Ed. 641; Interstate Busses Corp. v. Holyoke St. Ry., 273 U. S. 45,
47 S. Ct. 29S, 71 L. Ed. 530; Tips v. Railroad Commission of Texas, Tex. Civ. App., 110 S.
W.{2d) 5S5; Haselton v. Interstate Stage Lines, S2 N. H. 327, 133 A.
Interstate Busses Corp. v. Holyoke St. Ry., 273 U. S. 45, 47 S. Ct. 298, 71 L. Ed. 530; Tips v.
Railroad Commission of Texas, Tex. Civ. App., 110 S. W.(2d) 585; Haselton v. Interstate
Stage Lines, 82 N. H. 327, 133 A. 451, 47 A. L. R. 218; Lowe v. Stoutamire, 123 Fla. 135,
166 So. 310, 311; Midwestern Motor Transit, Inc. v. Public Utilities Commission, 126 Ohio
St. 317, 185 N. E. 194.
2, 3. The district court was and is without jurisdiction to enjoin the commission from
conducting a hearing on the complaint of Barton and Brown. In the absence of fraud or gross
abuse, equity cannot interfere with, or in advance restrain, the discretion of an administrative
body's exercise of legislative powers. Vincennes Water Supply Co. v. Public Service
Commission, 7 Cir. 34 F.(2d) 5; McChord v. Louisville & Nashville R. Co., 183 U. S. 483,
22 S. Ct. 165, 46 L. Ed. 289; New Orleans Water Works v. New Orleans, 164 U. S. 471, 17
S. Ct. 161, 41 L. Ed. 518; Missouri Power & Light Co. v. Lewis County Rural Electric Coop.
Ass'n., 235 Mo. App. 1056, 149 S. W.(2d) 881; State v. Blair, 347 Mo. 220, 146 S. W.(2d)
865; State v. Ridge, 345 Mo. 1096, 138 S. W.(2d) 1012; State v. Abel, Wash., 116 P.(2d)
522; Junction Water Co. v. Riddle, 108 N. J. Eq. 523, 155 A. 887; Hayward v. State
Corporation Commission, 151 Kan. 1008, 101 P.(2d) 1041.
The order of September 29, 1941, was not an order of the commission fixing any rate or
rates, fares, charges, classifications, joint rate or rates, or an order fixing regulations, practices
or services, within the meaning of sec. 6133, N. C. L. 1929. It was simply an order that a
hearing be had, and fixing the place and time for it. This makes inapplicable the cases of
Public Service Comm. v. Dist. Ct., 59 Nev. 91, 85 P.(2d) 70; Nevada-California Transp. Co.
v. Tonopah & Goldfield R. Co., 60 Nev. 14, 97 P.(2d) 433; Nevada-California Transp. Co. v.
Public Service Commission, 60 Nev. 310, 103 P.(2d) 43, rehearing 60 Nev. 317, 108 P.(2d)
850.
4. Respondents contend that prohibition should be denied for the reason that the
jurisdiction of the district court was not first challenged in that tribunal.
court was not first challenged in that tribunal. This contention accords with the general rule.
State ex. rel. Ward v. Fifth Judicial District Court, 54 Nev. 156, 9 P.(2d) 681. But where, as
in the case at bar, the lack of jurisdiction is apparent on the face of the record, and the
questions involved relate to or affect public interests or public affairs, no jurisdictional
objection need be made in the district court. Los Angeles v. Eighth Judicial District Court, 58
Nev. 1, 67 P.(2d) 1019; Schofield v. Melton, 166 Okl. 64, 25 P.(2d) 279; Fueller v. Justice's
Court of Encinitas Tp., 134 Cal. App. 305, 25 P.(2d) 248; State v. Parks, 94 Fla. 91, 113 So.
702; State v. Gibbes, 171 S. C. 209, 172 S. E. 130; Annotation, 35 A. L. R. 1090, 1094; 5
Bancroft's Code Pr. and Rem., p. 5303, n. 11.
5. Respondents further contend that the writ should be denied for the reason that
petitioners had other plain, speedy and adequate remedies in the ordinary course of law,
namely, (1) a motion to set aside and vacate the temporary restraining order, followed by an
appeal to this court in the event of an adverse ruling; or, (2) a direct appeal from the issuance
of the temporary restraining order in the first instance. But neither of these remedies would be
speedy and adequate. The complaint made to the commission by Barton and Brown involves
not only the alleged violation by Mr. Wolzinger of amended section 7 of the motor vehicle
carriers act, Stats. of Nev. 1935, pp. 263, 264, but also the alleged commission by him of a
misdemeanor under the provisions of section 15 of the act. Stats. of Nev., 1933, chap. 165,
pp. 222, 223. The proceedings in the district court action and an appeal by defendants therein
in the event of an adverse decision would consume many months, during which plaintiff in
said action, if the charges against him are well founded, might continue to violate the
provisions of said amended section 7 and said section 15 of the motor vehicle carriers act. To
withhold the writ under such circumstances would not be exercising a proper discretion. State
v. Fisk, 15 N.D.
219. 107 N. W. 191; Hislop v. Rodgers, 54 Ariz. 101, 92 P.(2d) 527; State v. District Court in
and for Silver Bow County, 91 Mont. 240, 6 P.(2d) 873; Evans v. Superior Court, 14 Cal.(2d)
563, 96 P.(2d) 107.
6. Besides ordering a hearing and setting a place and time therefor, the order of September
29, 1941, as we have seen requires that Dave Wolzinger shall bring with him records of all
ticket sales made by any of his agents or drivers from July 1, 1940, to October 15, 1941.
Respondents contend that this part of the order is in effect a fishing expedition, and that it
is a blanket order for the production of all books or records relating to ticket sales, interstate
as well as intrastate. They also claim that the order is an attempt to require Wolzinger to
furnish evidence against himself as the basis for a criminal prosecution. We do not decide
whether respondent's objections to the order of production of records of ticket sales are well
grounded. If they are, equity will not take jurisdiction until resort be first had to other
adequate available remedies. Standard Oil Co. of Louisiana v. Louisiana Public Service
Commission, 154 La. 557, 97 So. 859; Carlisle v. Bennett, 268 N. Y. 212, 197 N. E. 220.
The writ is made permanent.
May 12, 1942.
Per Curiam:
Rehearing denied.
____________
61 Nev. 253, 253 (1942) Lewis Et Al. v. Williams
J. R. LEWIS and EDWIN J. MILLER, Appellants, v.
BESSIE WILLIAMS, Respondent.
No. 3362
March 20, 1942. 123 P.(2d) 730.
ON RESPONDENT'S MOTION TO STRIKE THE BILL OF EXCEPTIONS AND
APPELLANT'S MOTION TO SUBSTITUTE A CERTIFIED COPY OF THE
JUDGMENT ROLL.
Where record affirmatively disclosed that more than 20 days elapsed after rendition of final judgment
before filing and service of bill of exceptions, bill of exceptions would be stricken from the records.
The requirement that a bill of exceptions be filed within 20 days after rendition of final judgment is
mandatory and unless the time has been extended by stipulation or order of court, bill of exceptions will
be stricken upon proper motion if not filed in time.
Where appeal was perfected and bill of exceptions was settled more than 30 days before making of
motion to substitute a certified copy of judgment roll for bill of exceptions which was filed too late, and no
showing was made to excuse appellant for not filing judgment roll within time fixed by law and there was
no showing of excusable neglect for such failure, the motion would be denied. Supreme Court Rules, rule
2.
4. Exceptions, Bill of.
Where at time of attempted service of bill of exceptions on plaintiff's counsel the 20-day period for
serving and filing of bill of exceptions had expired, counsel's statement at time of attempted service that
before accepting service counsel desired to make investigation as to whether service was being made in
time did not constitute a stipulation for an extension of time for service so as to permit defendant to file
the bill of exceptions after the 20-day period.
For purpose of appeal, a judgment is final when orally announced by the court.
Action for declaratory judgment by Bessie Williams against J. R. Lewis and another. From
a judgment defendants appeal, and plaintiff moves to strike the bill of exceptions and
defendants move to permit them to substitute a copy of the judgment roll if the bill of
exceptions should be stricken.
of exceptions and defendants move to permit them to substitute a copy of the judgment roll if
the bill of exceptions should be stricken. Bill of exceptions stricken and motion to
substitute a certified copy of judgment roll denied.
J. R. Lewis, of Las Vegas, for Appellants.
Harold M. Morse and Madison B. Graves, both of Las Vegas, for Respondent.
OPINION
On October 8, 1941, plaintiff in the lower court, who is respondent here, filed in said court
a complaint, and prayed for a declaratory judgment. On October 30, 1941, defendants and
appellants, J. R. Lewis and Edwin J. Miller, filed their separate answer to said complaint. On
November 7, 1941, the plaintiff and respondent filed a demurrer to the said separate answer,
and on November 18, 1941, the said demurrer to said answer was sustained. At the time the
order was entered sustaining the said demurrer, counsel for the defendants and appellants
excepted to the said ruling and informed the court that said answering defendants and
appellants stood upon their said demurrer. Thereafter, on the 12th day of December 1941,
counsel for the answering defendants and appellants called to the attention of the lower court
the fact that the answering defendants and appellants stood upon their demurrer, and further
called to the attention of the court the fact that no judgment had been entered in the case. The
court thereupon ordered that a judgment be entered in favor of the plaintiff and respondent in
accordance with the prayer of the complaint, and directed counsel for the plaintiff and
respondent to prepare a written form of judgment. There appears in the record a judgment,
signed by the district judge and dated December 12, 1941.
appears in the record a judgment, signed by the district judge and dated December 12, 1941.
The judgment was filed in the office of the county clerk on the 20th day of December 1941.
The bill of exceptions was filed in the office of the county clerk on the 10th day of January
1942, and there is in the record an acknowledgment of service dated the 10th day of January
1942.
1, 2. Respondent has moved to strike the bill of exceptions, on the ground that the same
was not served and filed within twenty days from the date of the rendition of the judgment.
This motion must be allowed, as it appears affirmatively from the record that more than
twenty days elapsed after the rendition of the final judgment before the filing and service of
the said bill of exceptions. McGill v. Lewis, 61 Nev. 28, 111 P.(2d) 537, 538. Particular
attention is directed to a number of Nevada cases cited in said case of McGill v. Lewis, supra,
which establish the rule that the requirement that a bill of exceptions be filed within twenty
days after rendition of final judgment is mandatory, and that unless the time has been
extended by a stipulation or order of court, the bill of exceptions will be stricken upon proper
motion if not filed in time.
3. Prior to the hearing of the motion to strike the bill of exceptions, appellants duly noticed
a motion to permit appellants to substitute a copy of the judgment roll in the event the bill of
exceptions was stricken. This motion was duly made on March 6, 1942, at which time
respondent objected to the granting thereof. The tender of the copy of the judgment roll was
after the expiration of the time allowed for its filing. Supreme Court Rule II. The appeal was
perfected on the 13th day of January 1942, and the bill of exceptions was settled January 16,
1942, both dates being more than thirty days before the making of the said motion. No
showing was made, by affidavit or otherwise, which would tend to excuse appellants for not
filing the judgment roll within the time fixed by law, and there being no showing of
excusable neglect for such failure, the motion must be denied.
City of Fallon v. Churchill County Bank Mortgage Corporation, 57 Nev. 8, 50 P.(2d) 944.
We also direct attention to Id., 57 Nev. 1, 49 P.(2d) 358; Id., 57 Nev. 9, 54 P.(2d) 273, and
Id., 57 Nev. 14, 59 P.(2d) 18, where motions similar to that in the case at bar are dealt with.
4, 5. In opposition to the motion to strike the bill of exceptions, appellants presented the
affidavit of Florence Fodor, a clerk in the law office of J. R. Lewis, one of the appellants,
which said affidavit states that the said Florence Fodor presented to Harold M. Morse, one of
the attorneys for respondent, a copy of a bill of exceptions, on the 9th day of January 1942;
that said Morse informed the said Florence Fodor that before accepting service of a copy of
said bill of exceptions he desired to make some investigation as to whether or not the service
was being made in time; that thereafter the said Florence Fodor left the office of said Morse
and took with her the said copy of the bill of exceptions, and again visited the office of said
Morse on the 10th day of January 1942, at which time Madison B. Graves, of counsel for
respondent, accepted service of the said bill of exceptions; that the original bill of exceptions
was filed in the office of the county clerk on the 10th day of January 1942. Appellants assert
that the statement of said Harold M. Morse to the said Florence Fodor constitutes a
stipulation for an extension of time for service. There is no merit to this contention.
At the time of the attempted service on the 9th day of January 1942, the twenty-day period
for serving and filing the bill of exceptions had expired. The final judgment was rendered on
December 12, 1941, the date the trial court orally pronounced its judgment in open court. The
time for filing and serving the bill of exceptions expired January 2, 1942. A judgment is final
when announced by the court. Central Trust Co. v. Holmes Min. Co., 30 Nev. 437, 97 P. 390;
First National Bank in Reno v. Fallon, 55 Nev. 102, 26 P.(2d) 232; Ex parte Breckenridge, 34
Nev. 275, at page 280, 118 P. 687, Ann. Cas. 1914b, 871; Coleman v. Moore & McIntosh, 49
Nev.
139, at page 142, 241 P. 217; Hilton v. Hymers, 57 Nev. 391, at page 406, 65 P.(2d) 679, at
page 684.
It is ordered that the bill of exceptions be stricken and the motion to substitute a certified
copy of the judgment roll be denied.
ON RESPONDENT'S MOTION FOR AN ORDER AFFIRMING THE JUDGMENT OF
THE LOWER COURT.
April 29, 1942. 125 P.(2d) 305.
Where supreme court had ordered bill of exceptions stricken and denied motion to
substitute a certified copy of judgment roll, nothing remained to be considered, and
judgment of trial court was affirmed.
Judgment affirmed.
Order Affirming Judgment
Per Curiam:
Respondent has moved for an order affirming the judgment of the lower court.
We have heretofore ordered that the bill of exceptions filed herein be stricken, and denied
a motion to substitute a certified copy of the judgment roll. 61 Nev. 253, 123 P.(2d) 730.
1. Upon the striking of the bill of exceptions nothing remained for this court to consider,
and we have no alternative other than to affirm the judgment of the lower court.
It is so ordered.
____________
61 Nev. 258, 258 (1942) Lewis Et Al. v. Burns
J. R. LEWIS and EDWIN J. MILLER, Appellants, v. LAURA
BURNS, Also Known as BABE ROAN, Respondent.
No. 3363
March 20, 1942. 123 P.(2d) 732.
J. R. Lewis, of Las Vegas, for Appellants.
OPINION
This case is before us on motion to strike the bill of exceptions, and motion for leave to
substitute a certified copy of the judgment roll.
The facts are the same as those presented in similar motions in the case of Lewis, et al. v.
Williams, No. 3362, 61 Nev. 253, 123 P.(2d) 730, this day decided.
For the reasons given in case No. 3362, it is ordered that the bill of exceptions filed herein
be stricken, and that the motion for leave to file a certified copy of the judgment roll is
denied.
(Reporter's NoteAn identical order affirming the judgment of the lower court was
entered in this case as in the case of Lewis, et al. v. Williams, 61 Nev. 257, 125 P.(2d) 306,
on April 29, 1942.)
____________
61 Nev. 259, 259 (1942) Castleman v. Redford
H. A. CASTLEMAN, Appellants, v. HELEN REDFORD, Respondent.
No. 3361
April 9, 1942. 124 P.(2d) 293.
1. Assignments.
An assignee of account for collection only is a trustee of an express trust and real party in interest
entitled to sue on account in his own name. Comp. Laws, secs. 8543-8545.
2. Assignments.
The fact that assignee of account for collection is trustee of express trust and real party in interest entitled
to sue on account in his own name does not preclude debtor from interposing any defense which he may
have to suit by assignor. Comp. Laws, secs. 8543-8545.
3. Assignments.
Where valid assignment of account is proved, motives which prompted assignor to make transfer are
immaterial.
4. Pleading.
In action on account for goods sold to defendant by plaintiff's assignor, amendment of complaint to meet
immaterial variance between allegations and proof as to time and place of sale was allowable as matter of
course.
5. Assignments.
In action on account assigned to plaintiff, showing that assignor was individual or entity capable of
making assignment was unnecessary to prove valid transfer of title to plaintiff, as it was immaterial whether
assignor was a corporation, partnership, or individual doing business under fictitious name.
Action by Helen Redford against H. A. Castleman on an account for goods sold to
defendant by plaintiff's assignor. From a judgment for plaintiff and an order denying
defendant's motion for a new trial, defendant appeals. Affirmed.
A. S. Henderson and Alfred H. McAdoo, both of Las Vegas, for Appellant.
Frank McNamee, Jr., of Las Vegas, Amicus Curiae.
OPINION
The plaintiff, respondent here, commenced and action against the above-named H. A.
Castleman, doing business under the fictitious name of Seven-Up Bottling Company, of Las
Vegas, Nevada, for the sum of $500 on account of goods sold at San Diego, California, by the
Star Beverage Company, and delivered to defendant, which account had been assigned to
plaintiff.
Defendant demurred to the complaint, setting up, among other allegations, that plaintiff
was not the real party in interest. The demurrer was overruled and defendant answered
denying generally the allegations of the complaint. As to the allegation of assignment,
defendant, on information and belief, denied that Star Beverage Company assigned the claim
sued upon to plaintiff, and that she is the owner and holder thereof, or either. In this
connection defendant alleged that plaintiff is not the real party in interest, but is an assignee
for collection only, and that the alleged claim for whatever it may be worth, still belongs to
Star Beverage Company; alleging further in this regard, that Star Beverage Company, whether
an individual, one or more, doing business under a fictitious name, is a resident of San Diego,
California, and if it is a corporation, it is a foreign corporation to the State of Nevada, and that
the purported and alleged assignment made to plaintiff was so made for the purpose of
defeating and denying to defendant, a resident of Nevada, the right to require security for
costs when sued by a nonresident or foreign corporation, and further, was for the purpose of
preventing in said alleged action a counterclaim against said Star Beverage Company, under
and by which an affirmative judgment could be recovered against said Star Beverage
Company, but not recoverable against an assignee. Plaintiff, in her reply, admits she is an
assignee for collection, and that the Star Beverage Company, whether an individual, one or
more, doing business under a fictitious name, is a resident of San Diego, California, and is
not a citizen or resident of the State of Nevada, and if Star Beverage Company is a
corporation, it is a corporation foreign to the state.
whether an individual, one or more, doing business under a fictitious name, is a resident of
San Diego, California, and is not a citizen or resident of the State of Nevada, and if Star
Beverage Company is a corporation, it is a corporation foreign to the state.
The case was tried to the court without a jury. At the close of plaintiff's case defendant
moved for a nonsuit, which was denied, and plaintiff was permitted to amend her complaint,
by which amendment, Las Vegas, Nevada, was substituted for San Diego, California as
the place of sale, and the date thereof alleged as the 1st day of April 1940.
Judgment was rendered for plaintiff in the amount sued for. The appeal is from the
judgment and order denying the motion for a new trial.
1. The first and only point made by defendant worthy of special notice is the one presented
by the pleadings, whether plaintiff is precluded from suing in her own name by reason of the
fact that she is an assignee for collection only. Defendant asserts that as such she cannot
prosecute this action. Section 8543 N. C. L. provides: Every action shall be prosecuted in the
name of the real party in interest, except as otherwise provided in this act.
That and assignee of a chose in action is entitled to sue is clearly implied from section
8545 N. C. L. In the case of an assignment of a thing in action, the action by the assignee
shall be without prejudice to any set-off or other defense, existing at the time of, or before
notice of, the assignment; but this section shall not apply to a negotiable promissory note, or
bill of exchange, transferred in good faith, and upon good consideration, before due.
Section 8544 N. C. L. provides: An executor or administrator, or trustee of an express
trust, or a person expressly authorized by statute, may sue without joining with him the
person or persons for whose benefit the action is prosecuted. A trustee of an express trust,
within the meaning of this section, shall be construed to include a person with whom, or
in whose name, a contract is made for the benefit of another."
within the meaning of this section, shall be construed to include a person with whom, or in
whose name, a contract is made for the benefit of another.
The above provisions have been in our practice acts since territorial days, and in one of the
first cases decided by this supreme court, the principle which would authorize an assignee for
collection to sue in his own name, was recognized and applied. Carpenter v. Johnson, 1 Nev.
331, 332. It was there held that an assignee of an account may sue on it in his own name,
though the assignor have an interest in it. On this phase of the case the court said:
Whether Carpenter was the only person interested in the accounts assigned to him cannot
affect this case, for it is well settled that a note or account thus assigned may be sued upon by
the assignee in his own name. If the assignors * * * have any interest in the accounts assigned
to Carpenter, he stands in the position of a trustee for them, and the statute expressly provides
that An executor or administrator, trustee of an express trust or a person expressly authorized
by statute, may sue without joining with him the person or persons for whose benefit the
action is prosecuted.' * * *
To the same effect is the case of Brumback v. Oldham, 1 Idaho 709, holding under statutes
the same as ours, that an assignee of an account may bring an action upon it, in his own name,
though the assignments were made to facilitate the collection of several accounts, and quoting
from Carpenter v. Johnson, supra.
The rule on the precise question presented is stated in 2 R. C. L., 640, sec. 51, as follows:
It is sometimes provided by statute that every action must be prosecuted in the name of the
real party in interest, and under such statutes it is generally held that an assignment absolute
in terms, and vesting in the assignee the apparent legal title to a chose in action, is considered
as being unaffected by a collateral contemporaneous agreement respecting the proceeds, and
the assignee may sue in his own name as the real party in interest, even though the entire
consideration for the assignment is made to depend on the contingency of collection, or
the assignee is to account to the assignor for the proceeds when collected."
entire consideration for the assignment is made to depend on the contingency of collection, or
the assignee is to account to the assignor for the proceeds when collected.
The above statement of the rule is fairly deducible from the weight of authority. Manley v.
Park, 68 Kan. 400, 75 P. 557, 66 L. R. A. 967; Citizens' Bank v. Corkings, 9 S.D. 614, 70
N.W. 1059, 62 Am. St. Rep. 891; Leon v. Citizens' Bldg., etc., Ass'n, 14 Ariz. 294, 127 P.
721, Ann. Cas. 1914d, 1151, Leavenworth State Bank v. Wenatchee Valley Fruit Exchange,
118 Wash. 366, 204 P. 8; Falconio v. Larsen, 31 Or. 137, 48 P. 703, 37 L. R. A. 254; Hayday
v. Hammermill Paper Co., 176 Minn. 315, 223 N. W. 614, 63 A. L. R. 210; Sims v. Everett,
113 Ark. 198, 168 S. W. 559, L. R. A. 1918c, 7 Ann. Cas. 1916c, 629; Brown v. Harding,
170 N. C. 253, 86 S. E. 1010, Ann. Cas. 1917c, 548; Hammell v. Superior Court, 217 Cal. 5,
17 P.(2d) 101; 4 Am. Jur. 328, sec. 123; 6 C. J. S., Assignments, sec. 125, p. 1179 and note
88; 2 Bancroft on Code Pleading sec. 866; Clark on Code Pleading, 101, 102; Pomeroy Code
Remedies (3d. ed.), 161, sec. 132.
In the last citation this noted authority there states: Analogous to the subject discussed in
the preceding paragraph is the question whether an assignee, to whom a thing in action has
been transferred by an assignment which is absolute in its terms, so as to vest in him the
entire legal title, but which, by means of a contemporaneous and collateral agreement, is, in
fact, rendered conditional or partial, is the real party in interest. It is now settled by a great
preponderance of authority, although there is some conflict, that if the assignment, whether
written or verbal, of anything in action is absolute in its terms, so that by virtue thereof the
entire apparent legal title vests in the assignee, any contemporaneous collateral agreement by
virtue of which he is to receive a part only of the proceeds, and is to account to the assignor
or other persons for the residue, or even is to thus account for the whole proceeds, or by
virtue of which the absolute transfer is made conditional upon the fact of recovery, or by
which his title is in any other similar manner partial or conditional,' does not render him
any the less the real party in interest: he is entitled to sue in his own name, whatever
collateral arrangements have been made between him and the assignor respecting the
proceeds.
which the absolute transfer is made conditional upon the fact of recovery, or by which his title
is in any other similar manner partial or conditional,' does not render him any the less the real
party in interest: he is entitled to sue in his own name, whatever collateral arrangements have
been made between him and the assignor respecting the proceeds. The debtor is completely
protected by the assignment, and cannot be exposed to a second action brought by any of the
parties, either the assignor or other, to whom the assignee is bound to account. This is the
settled doctrine in most of the states.
Citing many authorities, among which are, Brumback v. Oldham, supra, which, in turn,
cites Carpenter v. Johnson as heretofore stated. Allen v. Brown, 44 N. Y. 228; Young v.
Hudson, 99 Mo. 102, 12 S. W. 632, which involved assignment of an account for collection,
as did Brumback v. Oldham, supra.
The rule is well stated in Citizens' Bank v. Corkings, supra [9 S. D. 614, 70 N. W. 1060,
62 Am. St. Rep. 891]: Respondent is, in contemplation of the statute, not only the real party
in interest, but, in a certain sense, the trustee of an express trust, and the only person in whose
name the action could be prosecuted under section 4870 or 4872 of the Compiled Laws. * * *
The debtor being fully protected, the rule is that a written or verbal assignment, absolute in
terms, and vesting in the assignee the apparent legal title to a chose in action, is unaffected by
a collateral contemporaneous agreement respecting the proceeds, even though the entire
consideration for the assignment is made to depend upon the contingency of collection, and
the assignee must sue in his own name as the real party in interest.
2. An assignee for collection of a claim on account stands somewhat in a dual position as a
party plaintiff, an indicated in the foregoing authority. The assignment absolute in its terms
clothes him with the legal interest and insofar as he is accountable to the assignor, he is a
trustee of an express trust within the terms of sec.
sec. 8544. Carpenter v. Johnson, supra. Brumback v. Oldham, supra; Toby v. Oregon Pac. R.
R. Co., 98 Cal. 490-497, 33 P. 550; Carson Pirie Scott & Co. v. Long, 222 Iowa 506, 268 N.
W. 518. But this, however, is of no concern to the debtor. He is protected against the demand
of the original creditor and is not precluded from interposing any defense he may have to a
suit by the assignor.
It is insisted by defendant that Carpenter v. Johnson, supra, has been overruled by Gruber
v. Baker, 20 Nev. 453, 23 P. 858, 9 L. R. A. 302. This idea is erroneous. No legal title passed
to the assignee in that case. It was there held that a right of action based on fraud was not
assignable, but is personal to the party defrauded. Prosky v. Clark, 32 Nev. 441, 109 P. 793,
35 L. R. A., N. S., 512. An assignment of an account for collection creates a trust, and there
was no trust in the case of Gruber v. Baker.
Defendant relied on State ex. rel. Freebourn v. Merchants' Credit Service, 104 Mont. 76,
66 P.(2d) 337, and Streetbeck v. Benson, 107 Mont. 110, 80 P.(2d) 861. They do not
represent the present law of Montana on this question, as both were expressly overruled in
Rae v. Cameron, Mont., 114 P.(2d) 1060-1067, 1068.
It is well settled, said the court in the latter case, that an assignment for collection,
without any consideration being paid by the assignee, vests the legal title in the assignee,
which is sufficient to enable him to recover, although the assignor retains an equitable interest
in the thing assigned.
The objections to the evidence were properly overruled, and the evidence establishes that
plaintiff was entitled to sue in her own name.
3. It is contended by defendant that the assignment was made to deprive him of the right
given him by law to demand and have security for costs, and to deprive Atlas Supply
Company, a corporation, or its successor, if and when before the court, of the right to assert a
counterclaim against Star Beverage Company in an amount in excess of the amount sued
for by plaintiff, and for an affirmative judgment against said Star Beverage Company,
based on breach of warranty, such affirmative judgment not being possible against the
assignee.
amount in excess of the amount sued for by plaintiff, and for an affirmative judgment against
said Star Beverage Company, based on breach of warranty, such affirmative judgment not
being possible against the assignee. It is enough to say as to this claim, that a valid
assignment having been proved it is quite immaterial what motives may have prompted the
assignor to make the transfer. 6 C. J. S., Assignments, sec. 132, note 58, p. 1184, sec. 67, p.
1119, sec. 125, p. 1177; Hayday v. Hammermill Paper Co., supra. In the above case the claim
was that the assignment was made for the purpose of preventing the removal of the action
into the federal court. As to this claim the court [176 Minn. 315, 223 N. W. 616, 63 A. L. R.
210] said:
The argument for defendant denies the efficacy of the assignment as a transfer of legal
title because alone of its obstruction of the right of removal which defendant would have had
otherwise. That result is stated to be a fraud upon the rights of defendant. But the effect so
complained of and that it was intended do not make fraud. The cause of action in the sellers
was freely assignable by sale or gift. Defendant had no right to select the transferee nor the
state of his residence. Therefore it cannot complain because the assignment was to a citizen of
its own state so that when sued thereon in another state there was no right of removal. That
the transfer was without consideration and its purpose to maneuver defendant out of the right
of removal is of no legal consequence. So long as there was an actual transfer its motives will
not be gone into.
4. There is no merit in the claim that it was error to permit the plaintiff to amend the
complaint to conform to the proof. The amendment merely went to the time and place of sale,
and meeting an immaterial variance was allowable as a matter of course. 49 C. J. 815.
5. Nor is there any merit in the claim that no valid transfer of title was proved because no
showing was made that the Star Beverage Company was an individual or entity capable of
making an assignment.
or entity capable of making an assignment. It is immaterial whether the assignor was a
corporation, partnership, or individual doing business under a fictitious name.
We find against all points made by the defendant.
It is so ordered.
June 2, 1942.
Per Curiam:
Rehearing denied.
____________
61 Nev. 267, 267 (1942) Dirks v. Dirks
BEN DIRKS, Appellant, v. SOPHIA R. DIRKS,
Respondent.
No. 3365
April 25, 1942. 125 P.(2d) 305.
1. Divorce.
Where wife was without any means to pay her attorney, and husband had supported wife and paid all
expenses of litigation in district court where husband sued for divorce and husband was earning $175 per
month and owed $1,362, husband was required to pay $150 for benefit of wife as attorney's fee in
preparation of defense to husband's appeal from judgment denying divorce.
Action for divorce by Ben Dirks against Sophia R. Dirks. From an adverse judgment and
an order denying his motion for new trial, plaintiff appeals, and defendant moves for an order
of the Supreme Court requiring plaintiff to pay into court a certain sum for defendant's
attorney in preparation for defense to the appeal and for other costs. Plaintiff ordered to pay
to clerk of court a certain sum and proceedings stayed until compliance with such order.
61 Nev. 267, 268 (1942) Dirks v. Dirks
clerk of court a certain sum and proceedings stayed until compliance with such order.
Harlan L. Heward, of Reno, for Appellant.
F. Raffetto, of Reno, for Respondent.
OPINION
Appellant was plaintiff in the court below seeking a divorce, which was denied. He has
appealed from the judgment and order denying his motion for a new trial.
Respondent has made a motion for an order of this court requiring appellant to pay into
court the sum of $500 for her attorney in the preparation of her defense to the appeal, and for
other costs. The motion is supported by her affidavit which shows that she is without any
means whatever to pay her attorney to conduct her defense, or pay any other expense which
may be incurred therein, and has no way of obtaining any assistance in this regard.
It shows that her health is impaired and that she is unable to work or earn money; that
some of the time she is dependent upon her daughter for food and other necessities of life;
and that her daughter is in no financial condition to assist her with moneys to prepare and
conduct her defense to said appeal.
Her affidavit further shows that appellant is steadily employed, receiving compensation in
the sum of $150 or more.
His affidavit does not deny the above averments. It is alleged therein that ever since he
married respondent on June 3, 1915, he has supported her and is now supporting her, and that
he has paid all the expenses of the litigation in the district court. He alleged that he is earning
$175 per month, and that he owns the sum of $1,362.
61 Nev. 267, 269 (1942) Dirks v. Dirks
$1,362. Under such circumstances we think that he should not be required to pay $500 to
respondent for her attorney's fee. No showing is made by her as to any other cost and no order
will be made in this regard.
It is ordered that appellant pay to the clerk of this court, for the benefit of respondent as an
attorney's fee, the sum of $150, and that proceedings herein be stayed until this order is
complied with.
____________
61 Nev. 269, 269 (1942) Ex Rel. Groves v. District Court
THE STATE OF NEVADA, Upon the Relation of WALLACE GROVES, Relator, v. THE
FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for
the County of Ormsby, and HONORABLE CLARK J. GUILD, the Judge Thereof,
Respondents.
No. 3353
May 12, 1942. 125 P.(2d) 723.
1. Divorce.
District courts have jurisdiction for good cause shown to modify provisions in divorce decrees respecting
custody of minor children, after entry of decrees, at any time during minority of children. Comp. Laws, sec.
9462.
2. Divorce.
An application for order of modification of divorce decree respecting custody of minor children may be
made by a motion in original action. Comp. Laws, sec. 9462.
3. Divorce.
An order modifying divorce decree with respect to custody of minor children can be made only after
notice of application for modification is given to adverse party. Comp. Laws, sec. 9462.
4. Divorce.
If attorney of record for adverse party in original divorce action is representing that party at time notice
of motion to modify divorce decree respecting custody of minor children is served upon attorney, trial
court acquires jurisdiction to hear the motion. Comp. Laws, sec. 9462.
5. Divorce.
A divorce decree is conclusive as to severance of marriage tie, and even with respect to custody of
children decree is final under conditions existing at time it is rendered, but trial court retains
jurisdiction to modify decree with respect to custody of minor children, and with
respect to support of such children when jurisdiction as to support has been reserved
in decree.
trial court retains jurisdiction to modify decree with respect to custody of minor children, and with respect
to support of such children when jurisdiction as to support has been reserved in decree. Comp. Laws, Sec.
9462.
6. Divorce.
An application for modification of provisions of divorce decree respecting custody of minor children is a
supplementary proceeding incident to original suit, and jurisdiction to order such modification is a
continuing one. Comp. Laws, sec. 9462.
7. Divorce.
The trial court after rendition of divorce decree containing provisions respecting custody of minor
children retains same jurisdiction over parties and subject matter that it had prior to making of decree, and
same rule applies with respect to support of such children where jurisdiction is reserved by the decree.
Comp. Laws, sec. 9462.
8. Divorce.
In cases of application for modification of divorce decrees respecting custody or support of minor
children, generally issuance of new summons or process or new personal service of notice is unnecessary
and service may be had on adverse party's attorney of record. Comp. Laws, sec. 9462.
9. Divorce.
Service upon husband's attorney of record of motion for order to modify divorce decree with respect to
custody and support of minor child gave district court jurisdiction to determine the motion in absence of
showing that attorney was not authorized to represent husband at time notice was served upon attorney or
that husband did not in fact receive notice. Comp. Laws, secs. 8916, subd. 1, 9462.
In proceeding to prohibit district court from determining motion for order to modify divorce decree with
respect to custody and support of minor child, an affidavit filed in supreme court to show that husband's
attorney of record was not representing husband at time notice of motion was served upon attorney could
not be considered. Comp. Laws, secs. 8916. subd. 1, 9462.
11. Divorce.
Where neither statutes nor rules of court specify how application for modification of provisions of
divorce decree relating to custody or support of minor children shall be made, nor how notice of hearing of
such application must be made, courts will not concern themselves so much with form of application or
manner of giving notice as with reasonableness of notice under particular circumstances. Comp. Laws,
secs. 8916, subd. 1, 9462.
12. Divorce.
The district court which acquired jurisdiction of wife's motion to modify provisions of divorce
decree relating to support and custody of minor child also had jurisdiction to allow
counsel fees for services by wife's attorney in preparing such motion.
motion to modify provisions of divorce decree relating to support and custody of minor child also had
jurisdiction to allow counsel fees for services by wife's attorney in preparing such motion. Comp. Laws,
sec. 9462.
13. Prohibition.
The supreme court was without power to allow attorney's fees for services performed for minor child in
preparing a defense to husband's petition to prohibit district court from hearing wife's motion for
modification of provisions of divorce decree relating to support and custody of the child. Comp. Laws, sec.
9462.
Original Proceeding in prohibition and motion for allowance of attorney's fee by the State
of Nevada on the relation of Wallace Groves against the First Judicial District Court of the
State of Nevada, in and for the county of Ormsby and Honorable Clark J. Guild, the judge
thereof, to restrain respondents from further proceedings with reference to modification of a
divorce decree, wherein respondents filed a demurrer. Petition dismissed and motion for
attorney's fees denied.
Springmeyer & Thompson, of Reno, for Relator.
Wm. J. Cashill, of Reno, for Respondents.
OPINION
On the 12th of June 1937 Monaei Lindley Groves, as plaintiff, was awarded a decree of
divorce from relator, Wallace Groves. The decree contained provisions relating to the custody
and support of a minor child, and provided that future differences regarding the child were to
be settled by arbitration. Plaintiff's maiden name, Monaei Lindley, was restored to her by the
decree. Plaintiff and the child have continued their domicile in Nevada. It does not appear
that defendant ever was a resident of this state.
On the 2d day of August 1940 plaintiff noticed a motion for an order of the trial court
modifying, changing, and amending certain portions of said decree dealing with the
custody, support, and well-being of said minor child.
motion for an order of the trial court modifying, changing, and amending certain portions of
said decree dealing with the custody, support, and well-being of said minor child. On the
same day she noticed another motion for an order of said court requiring defendant (relator
herein) to pay plaintiff's attorney for his services to be performed in preparing and presenting
said motion for modification. The notices of said motions were served upon George
Springmeyer, attorney of record for the defendant in said divorce action. No other notice of
either motion was served or given.
At the time set for the hearings Mr. Springmeyer, appearing specially on behalf of the
defendant, not otherwise, objected to the hearing of the motions and to the court's hearing
any evidence on behalf of the plaintiff in support thereof, upon the grounds, among others, (1)
that no service of process or notice had been made upon the defendant in person, or upon any
one authorized by him or with authority in law to accept service of process, and (2) that the
court was without any jurisdiction or authority to award any attorney's fees for services in
presenting such motions. Thereafter defendant's objections to the hearing of the motion to
modify the decree were overruled, and defendant ordered to pay plaintiff's counsel, within a
specified time, a preliminary attorney's fee for services in presenting said motion for
modification. Thereupon defendant applied to this court for a writ of prohibition, praying that
the trial court be restrained from any further proceedings in the premises. Messrs.
Springmeyer & Thompson are attorneys for petitioner in this proceeding.
At the same time that the petition for prohibition was filed, and in connection therewith,
Mr. Springmeyer also filed an affidavit for the purpose of showing: that the fee agreed upon
and paid him was for services to and including the entry of a decree of absolute divorce only;
that in the spring of 1940 affiant was notified by the New York attorney who had employed
him and been associated with him in the divorce action, that neither he nor any other
person had authority to represent Mr.
notified by the New York attorney who had employed him and been associated with him in
the divorce action, that neither he nor any other person had authority to represent Mr. Groves
in the event that Monaei Lindley should apply for a modification of the divorce decree, and
that neither he nor any other person had authority to appear for Mr.Groves in said matter or to
accept service of any notice, process, or other papers on his behalf; that thereafter certain
notices and other papers in connection with the modification of the divorce decree were
served upon affiant, who thereupon notified said New York attorney; that the latter again
informed affiant that he had no authority to enter a general appearance on behalf of Mr.
Groves, but directed affiant to appear specially and object to the jurisdiction of the court.
On January 9, 1942, respondents filed a demurrer to relator's petition and an answer
thereto. At the same time they moved for allowance of an attorney's fee for work and services
to be performed for the minor child in preparing for and presenting a defense to said petition.
Relator contends that the decree of June 12, 1937, was a final decree, not only as to
severance of the marital tie but also with respect to the provisions relating to the custody and
control of the minor child; that plaintiff's application for modification of the decree is in the
nature of a new proceeding, and notice of the hearing must therefore be served upon the
defendant, not upon his attorney; that an order modifying provisions respecting the custody or
control of minor children involves substantial rights, and notice of the hearing of an
application for such order cannot legally be served upon an attorney, the rule being that only
papers on technical formalities may be served upon an authorized attorney and then only after
the adverse party has been brought into court by writ, process, or other papers, or has filed
appearance; that, except as to technical formalities such as those concerning costs bills,
notices of motions for new trials, and notices of appeal which arise out of final judgment,
the authority of an attorney terminates with the entry of final judgment, regardless of
whether there is either reserved or inherent jurisdiction to modify.
formalities such as those concerning costs bills, notices of motions for new trials, and notices
of appeal which arise out of final judgment, the authority of an attorney terminates with the
entry of final judgment, regardless of whether there is either reserved or inherent jurisdiction
to modify.
In support of their position that service of notice on defendant's attorney of record in the
divorce action was sufficient to give the trial court jurisdiction to hear and determine the
motion to modify, respondents argue that: A. Whether service on George Springmeyer, as
attorney of record for defendant in the original divorce proceeding was proper upon a motion
to modify the decree was a question of fact for the lower court to decide and the court's
decision finding George Springmeyer to be the proper person to serve in the proceeding
should be upheld; B. Even if it is assumed that the propriety of service upon defendant's
attorney is not a question of fact for the lower court to decide, it is clear that service upon the
attorney of record in an original divorce proceeding is sufficient to give notice to defendant of
motions to modify the decree.
1. District courts have jurisdiction, for good cause shown, to modify provisions in divorce
decrees respecting the custody of minor children, after entry of such decrees, at any time
during the minority of such children. State ex rel. Jones v. Second Judicial District Court, 59
Nev. 460, 96 P.(2d) 1096, 98 P.(2d) 1096.
2. The application for such order of modification may be made by motion in the original
action. Moore v. Superior Court, 203 Cal. 238, 263 P. 1009; Cornelison v. Cornelison, 53
Idaho 266, 23 P.(2d) 252; Purdy v. Ernst, 93 Kan. 157, 143 P. 429; Wells v. Wells, 209 Mass.
282, 95 N. E. 845, 35 L. R. A. (N. S.) 561; Wald v. Wald, 168 Mo. App. 377, 151 S. W. 786;
Thornton v. Thornton, 221 Mo. App. 1199, 2 S. W.(2d) 821; Rogers v. Rogers, 51 Ohio St. 1,
36 N. E. 310; Karren v. Karren, 25 Utah 87, 69 P. 465, 60 L. R. A. 294, 95 Am.
St. Rep. 815; Leonard v. Willcox, 101 Vt. 195, 142 A. 762; 19 C. J. p. 352, n. 56, p. 359, n.
77; 27 C. J. S., Divorce, sec. 322; 17 Am. Jur. p. 519, n. 11.
3. Before such order of modification can be made, proper notice of the application must be
given to the adverse party. Abell v. Second Judicial District Court, 58 Nev. 89, 71 P.(2d) 111.
4. The main question in this case is whether service upon Mr. Springmeyer of plaintiff's
notice of motion for an order modifying the divorce decree gave the district court jurisdiction
to hear and determine that motion. It cannot be laid down as a categorical rule applicable to
all cases that service of notice of a motion to modify provisions in a divorce decree relating to
the custody or control of minor children, made upon the attorney of record in the original
divorce action, is never sufficient, nor that such service is always sufficient, to confer upon
the trial court jurisdiction to entertain such a motion. If the attorney of record for the adverse
party in the original divorce action is still representing that party at the time notice of motion
to modify is served upon him, the trial court acquires jurisdiction to hear the motion. Moore
v. Superior Court, supra; Bancroft's Code Pl., Pr. and Rem., 10-year Supp., vol. 4, p. 3453,
sec. 4728, n. 3. In a case in Illinois, one of the jurisdictions relied on by relator, service on the
attorney of record in the original divorce action was held sufficient when considered with
other facts and circumstances. McNab v. Dunsmure, 274 Ill. App. 560. In another Illinois
case, under different circumstances, such service was held insufficient. Cummer v. Cummer,
283 Ill. App. 220.
5. It is not correct to say that in a case of this kind the divorce decree is final in all
respects. It is conclusive as to the severance of the marriage tie and, even with respect to the
custody of children, the decree is final under conditions existing at the time it is rendered.
Abell v. Second Judicial District Court, supra. But after rendition of the decree, conditions
having changed, the trial court retains jurisdiction to modify the decree with respect to
the custody of minor children; also with respect to the support of such children when
jurisdiction as to such support has been reserved in the decree.
rendition of the decree, conditions having changed, the trial court retains jurisdiction to
modify the decree with respect to the custody of minor children; also with respect to the
support of such children when jurisdiction as to such support has been reserved in the decree.
State ex rel. Jones v. Second Judicial District Court, supra; Fleming v. Fleming, 58 Nev. 179,
72 P.(2d) 1110. In these respects the decree is not final. Moore v. Superior Court, supra;
Hersey v. Hersey, 271 Mass. 545, 171 N. E. 815, 70 A. L. R. 518; State ex rel. Shoemaker v.
Hall, Mo. Sup., 257 S. W. 1047; Keezer on Marriage and Divorce (2d ed.) p. 114, sec. 594, n.
68.
6. By the great weight of authority an application for modification of provisions of a
divorce decree respecting custody of minor children is a supplementary proceeding, incident
to the original suit; it is not an independent proceeding or the commencement of a new action.
The jurisdiction to order such modification is a continuing one. Franklin v. Bonner, 201 Iowa
516, 207 N. W. 778; Wells v. Wells, 209 Mass. 282, 95 N. E. 845, 35 L. R. A. (N.S.) 561;
Nunnink v. Nunnink, Mo. App., 257 S. E. 832; State v. Superior Court, 193 Wash. 74, 74
P.(2d) 888; Laumeier v. Laumeier, 308 Mo. 201, 271 S. W. 481; Stoner v. Weiss, 96 Okl.
285, 222 P. 547; Gifford v. Gifford, 50 Idaho 517, 297 P. 1100. See also Fleming v. Fleming,
Rogers v. Rogers, Thorton v. Thornton and Leonard v. Willcox, cited earlier in this opinion.
Relator contends that proceedings for modification of provisions of a divorce decree
respecting custody of minor children are in the nature of new proceedings, and cites Abell v.
Second Judicial District Court, supra [58 Nev. 89, 71 P.(2d) 113], wherein this court said:
As stated by an eminent authority: Proceedings for modification (as to custody) are in the
nature of new proceedings and require proper notice to the opposite party, and new evidence
not available in the divorce suit.' 2 Schouler, Marriage and Divorce (6th ed.), sec. 1899.
In the Abell case no notice at all was given the husband. What was decided in that case is that
the trial court is without power to modify provisions of a divorce decree relating to the
custody of minor children unless proper notice of the application for modification has been
given the adverse party, and new evidence is adduced upon the hearing. It seems clear that the
purpose of the excerpt from Schouler was to support these two propositions, both of which
are correct regardless of whether the application for modification be considered as a new
proceeding or as a continuation of the original divorce action. It is also to be observed that the
question of the sufficiency of service of notice on the attorney of record for the adverse party
in the original action was not involved in either of the two cases cited in support of the
excerpt from Schouler, nor in the Abell, Jones, or Fleming case.
7. Under sec. 9462 N. C. L., 1929, the trial court, after rendition and entry of a divorce
decree containing provisions respecting the custody of minor children, retains the same
jurisdiction over the parties and the subject matter to which the proviso in said section relates
that it had and exercised prior to the making and entry of the decree. Moore v. Superior
Court; State v. Superior Court, supra. The same rule applies with respect to the support of
such children where jurisdiction is reserved by the decree.
8. In cases of application for modification respecting custody or support of minor children,
the general rule is that issuance of new summons or process, or new personal service of
notice, is unnecessary. Wells v. Wells; State v. Superior Court; Stoner v. Weiss; supra.
Where modification is considered a continuation of the original cause, the general rule is
that service may be had on the adverse party's attorney of record. Moore v. Superior Court,
supra; State v. Superior Court, supra; Bancroft's Code Pr. and Rem., vol. 6, p. 6174, n. 16; 27
C. J. S., Divorce, sec. 317, p. 1193, n. 91.
Relator contends that, as a matter of law, Mr. Springmeyer's authority terminated with the
entry of the divorce decree in June 1937, and that the service upon him of the notice of
motion for modification was therefore of no effect. There appears to be some support for this
position; see Scott v. Scott, 174 Iowa 740, 156 N. W. 834. But in our opinion it is not the
correct rule, nor is it supported by the weight of authority. State ex rel. Shoemaker v. Hall,
supra; DeVall v. DeVall, 57 Or. 128, 109 P. 755, 110 P. 705; United States v. Curry, 6 How.
106, 12 L. Ed. 363; State v. Superior Court, supra; McSherry v. McSherry, 113 Md. 395, 77
A. 653, 140 Am. St. Rep. 428; 5 Am. Jur., p. 283, n. 18.
9, 10. In the light of the foregoing authorities, and in the absence of any showing in the
trial court that Mr. Springmeyer was not authorized to represent Mr. Groves at the time he
was served with notice, this court is of the opinion that the lower court acquired jurisdiction
to hear plaintiff's motion.
When service of notice of motion to modify was served on Mr. Springmeyer, his name still
appeared as attorney of record for the defendant in the divorce action. There is nothing in the
record to show that he had retired or withdrawn as such attorney, that anyone else had been
substituted, or that any notice of retirement, withdrawal or substitution had been given
plaintiff. The affidavit filed in this court for the purpose of showing that the attorney of
record in the divorce case was not representing defendant at the time the notice of motion was
served, cannot be considered. Annotation, 99 A. L. R. 984.
There was no showing in the trial court that defendant had not in fact received notice, that
the notice was not reasonable, that his whereabouts was unknown, that he was in the military
or other service of his country, or for any other reason unable to properly defend his interests
with respect to the motion for modification. Not only was there no showing along these lines,
but the objection to the hearing of the motion was not based on any such grounds.
the objection to the hearing of the motion was not based on any such grounds.
Relator's position seems to be that notice should have been given the defendant in this case
under the provisions of sec. 8579, or secs. 8582 and 8583, or sec. 8922, N. C. L. 1929. (Said
sections 8582 and 8583 were last amended, respectively, in 1933 and 1931: Stats. of Nevada
1933, chap. 134, p. 174; Stats. of Nevada 1931 chap. 95, p. 159.) The first three of these
sections relate to service of summons. Section 8922 provides: When a plaintiff or a
defendant who has appeared resides out of the state and has no attorney in the action or
proceeding, the service may be made on the clerk for him. But in all cases where a party has
an attorney in the action or proceeding, the service of papers, when required, shall be upon
the attorney instead of the party, except subpenas, or writs, and other process issued in the
suit, and of papers to bring him into contempt. The notice in the instant case was served in
the manner prescribed by subdivision 1 of sec. 8916 N. C. L. 1929. For the reasons already
stated herein, this notice was sufficient to confer upon the trial court jurisdiction to hear and
determine the motion to modify, in the absence of a showing in that court that the attorney
was not authorized to represent the defendant at the time the notice was served upon him.
11. Where, as in Nevada, neither the statutes nor rules of court specify whether the
application for modification of the provisions of a divorce decree relating to custody or
support of children shall be made by motion, petition, or otherwise, nor how notice of the
hearing of such application must be made, the prevailing rule is that the courts will not
concern themselves so much with the form of the application or the manner of giving notice,
as with the reasonableness of the notice under the circumstances existing in the particular
case. Cornelison v. Cornelison, supra; Wells v. Wells, supra; Kendall v. Kendall, 5 Kan. App.
688, 48 P. 940.
12. As the district court acquired jurisdiction to entertain the motion to modify, it also had
jurisdiction to allow counsel fees for services by plaintiff's attorney in preparing and
presenting said motion. Fleming v. Fleming, supra.
13. But the court is of the opinion that it is without power to allow attorney's fees for
services in the present proceeding. In the absence of statute, we are not disposed to extend the
rule in Lake v. Lake, 17 Nev. 230, 30 P. 878, to a prohibition proceeding.
Relator's petition is dismissed, and respondent's motion for attorney's fees in this
proceeding denied.
____________
61 Nev. 280, 280 (1942) Bowen v. I. H. Kent Co.
GRANT L. BOWEN, as Guardian Ad Litem of the Person and Estate of MARVIN LE ROY
BAKER, a Minor, Appellant, v. I. H. KENT COMPANY, a Corporation,
Respondent.
No. 3368
June 2, 1942. 126 P.(2d) 331.
Where trial judge signed certificate of settlement of proposed bill of exceptions before time for filing
objections thereto had expired, and thereafter certain papers were stricken from bill on objection of
respondent pursuant to stipulation and no action was taken relative to withdrawal of settlement or
certificate of settlement, premature settlement of bill was not such an irregularity as to destroy the bill.
Disallowance of full time for examining a proposed bill of exceptions is not such a jurisdiction defect as
destroys the bill, especially where the omission appears to be nonprejudicial.
3. Exceptions, Bill Of.
Where trial judge signed certificate of settlement of proposed bill of exception before time for filing
objections had expired, respondent could have moved trial court to withdraw its certificate, and on that
being done could have proposed additions and amendments to the bill.
If trial judge signs certificate of settlement of proposed bill of exceptions before time for filing objections
thereto has expired, and on respondent's motion withdraws the certificate so
respondent can propose additions and amendments, after such proposed additions
have been acted upon, trial judge would be required again to settle the bill and attach
a new certificate.
expired, and on respondent's motion withdraws the certificate so respondent can propose additions and
amendments, after such proposed additions have been acted upon, trial judge would be required again to
settle the bill and attach a new certificate.
Where trial judge signed certificate of settlement of proposed bill of exceptions before time for filing
objections had expired and no action was taken concerning withdrawal of settlement or certificate, the bill
was a legal bill of exceptions, no further settlement and signing was required, and supreme court was not
authorized to act under statute authorizing settlement of bill of exception as provided by supreme court
rules upon trial judge's refusal to settle and allow a bill. Comp. Laws, sec. 9385.85.
The provisions of statute providing a method for settling the bill of exceptions can only be invoked
should trial judge refuse, when legally required to do so, to settle a proposed bill or if no method is
provided by law for settlement of the proposed bill. Comp. Laws, sec. 9385.85.
Where appellant did not file transcript on appeal because he did not believe a legally settled bill of
exceptions existed in condition for filing and more than 30 days had elapsed since proposed bill was first
settled and allowed by trial judge, and certain documents were stricken by order of trial court pursuant to
stipulation, appeal was dismissed for failure to comply with rule requiring a transcript to be filed within the
30-day period. Rules of the Supreme Court, rule 11.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by Grant L. Bowen, as guardian ad litem of the person and estate of Marvin Le Roy
Baker, a minor, against I. H. Kent Company. From an adverse judgment, plaintiff appeals. On
plaintiff's motion to settle a bill of exceptions and defendant's motion to dismiss the appeal.
Motion to settle bill of exceptions denied. Motion to dismiss appeal granted.
Thatcher & Woodburn and John P. Thatcher, all of Reno, for Appellant.
A. L. Haight, of Fallon, for Respondent.
OPINION
On the 30th day of April 1940 the trial court sustained a demurrer to the second amended
complaint filed in said court and cause, granted a motion to strike said complaint, and ordered
the action dismissed. May 15, 1940, appellant perfected his appeal to this court, and his time
for filing a bill of exceptions was extended to the 10th day of June 1940. Appellant filed a
proposed bill of exceptions within the extended time. June 11, 1940, and before time for
filing objections to the said proposed bill of exceptions had expired, the trial judge signed a
certificate of settlement of the said proposed bill of exceptions. June 15, 1940, respondent
filed objections to the said proposed bill of exceptions. June 18, 1940, counsel for appellant
forwarded to counsel for respondent a stipulation agreeing that certain papers in the bill of
exceptions, which had been objected to by respondent, be stricken. October 15, 1940,
responsive to a motion made by respondent, the trial court entered an order directing that
certain papers contained in the said bill of exceptions be stricken, said order being in
accordance with the stipulation to that effect signed by counsel for appellant June 18, 1940.
Pursuant to the order made by said court, the clerk detached from the said bill of exceptions
the papers mentioned in the order, and attached a new index. No action was taken by the said
trial judge relative to a withdrawal of the settlement of the bill of exceptions or his certificate
of settlement.
Appellant later requested the trial judge to make a resettlement of the said bill of
exceptions, the theory of appellant being that because the bill was settled before the time for
filing objections had expired, no legal settlement of the bill had been made. This request was
refused. Appellant has asked this court to settle what he deems to be the proposed bill of
exceptions remaining unsettled in said action, under the authority of section 93S5.S5 N. C.
L.
remaining unsettled in said action, under the authority of section 9385.85 N. C. L. He
considers the provisions of this statute as providing the only solution remaining open; he does
not believe mandamus will lie to compel action on the part of the trial judge, because, as
appellant views the situation, he is confronted with a resettlement, and not the settlement of
the original bill.
1-4. The foregoing statement of facts discloses an unusual situation. The first question that
naturally arises is: What is the effect of the premature settlement of the bill of exceptions by
the trial judge? As we have heretofore stated, appellant considers the act as being void. We
do not agree, but conclude that such settlement was not such an irregularity in a
jurisdictional matter as will destroy the bill of exceptions. Pullman Co. v. Washington, 30
Ohio Cir. Ct. R. 17, at page 18; 4 C. J. S., Appeal and Error, sec. 848, p. 1333, notes 50 and
51. Under note 51, 4 C. J. S., Appeal and Error, sec. 848, p. 1333, it is stated: Nor is a
disallowance of the full time for examining a bill such a defect, especially where the omission
appears to be nonprejudicial. The defect spoken of in the quotation is a jurisdictional defect.
The act of the trial judge in prematurely signing the bill of exceptions is no manner
prejudiced appellant; it therefore follows that upon the signing, settlement, and filing of said
proposed bill there was created and placed in the record a legal bill of exceptions. However,
while the premature signing and settlement of the bill of exceptions did not destroy it as such,
there yet remained certain legal rights and privileges to respondent, namely, the right to
suggest modifications to the bill as proposed, and if anyone was prejudiced by the said
premature signing, it was respondent, and respondent is not here complaining of the action of
the trial judge. Certain procedures were left open to respondent. He could have moved the
court to withdraw its certificate and settlement, and in the event the court had consented so to
do, could have proposed certain additions and amendments, and after such proposed
additions and amendments had been acted on, the trial judge would then have been
required to again settle the bill and attach a new certificate.
proposed certain additions and amendments, and after such proposed additions and
amendments had been acted on, the trial judge would then have been required to again settle
the bill and attach a new certificate. Such procedure is approved in the case of M. System
Stores v. Davenport, Tex. Civ. App., 36 S. W. (2d) 243, at page 245. But, evidently unaware
of the fact that the trial judge had approved the bill originally proposed, respondent, on June
15, 1940, filed objections to the bill, as provided by law, and moved that certain documents
included in the proposed bill be stricken. Appellant evidenced a willingness that the said
documents be stricken, by forwarding to counsel for respondent a form of stipulation, signed
by counsel for appellant and dated June 18, 1940. No further action was taken in the matter
until October 15, 1940, at which time counsel for appellant telephoned the trial judge in
relation to the settlement of the bill of exceptions, and on the same date counsel for
respondent moved the court to strike the documents objected to by respondent and which
appellant had stipulated might be done. On the same date, October 15, 1940, the court entered
such an order and directed the clerk of the court to detach the papers ordered stricken. This
the clerk did, and also attached a new index. Appellant took no further action until November
4, 1940, at which time one of his attorneys telephoned the clerk of the lower court and
requested that the bill of exceptions be mailed to him. This was done, and then, for the first
time, counsel for appellant learned that the trial judge had settled the bill on June 11, 1940.
On November 24, 1940, one of the attorneys for appellant communicated with the trial judge,
at that time informing said trial judge that he considered the premature signing of the bill to
be error, and asked the court to again settle the said bill. This the trial judge declined to do.
5, 6. As heretofore stated, we consider the bill as signed by the trial judge on June 11,
1940, a legal bill of exceptions, and being such, no further settlement and signing is
required; and not being so required, there is no necessity or authority for this court to act
under section 93S5.S5 N. C. L. as requested.
of exceptions, and being such, no further settlement and signing is required; and not being so
required, there is no necessity or authority for this court to act under section 9385.85 N. C. L.
as requested. The provisions of that section can only be invoked should the trial judge refuse,
when legally required, to settle a bill, or if no method is provided by law for the settlement of
the same.
7. Appellant has not filed in this court the transcript on appeal, for the reason, as has been
stated, that he did not believe there existed a legally settled bill of exceptions in condition for
filing, and, of course, more than thirty days have elapsed since the bill was first settled and
allowed by the trial judge; also, more than thirty days have elapsed since the documents were
stricken on the order of the court and the stipulation of the parties; hence rule II of the rules of
the supreme court, which requires the transcript to be filed within the thirty-day period, not
having been complied with, appellant is in default in that respect.
At the time of the hearing of appellant's motion asking this court to settle the bill of
exceptions, respondent moved to dismiss the appeal, on the ground that the transcript had not
been filed within the time required by supreme court rule II. Appellant conceded that in the
event we held the bill of exceptions as signed on June 11, 1940, to be a legal bill, then, of
course, the motion of respondent was well taken.
Entertaining the views we have indicated, it is ordered that the motion of appellant be
denied and the motion of respondent to dismiss the appeal is granted.
____________
61 Nev. 286, 286 (1942) Chiatovich v. Young
MARTIN CHIATOVICH, MIKE PETERSON and T. M. DEKENS, Plaintiffs and
Appellants, v. THOMAS YOUNG, Defendant, LOYD WILSON and MARTIN G.
EVANSEN, Third Party Claimants as the Assignees of Defendant
Thomas Young, Respondents.
No. 3357
June 17, 1942. 127 P.(2d) 218.
In order for plaintiffs in attachment proceedings to be able to urge on appeal that third-party claim was
not served upon sheriff, plaintiffs should have set up such question as a defense in trial court, and, where
plaintiffs failed to do so, supreme court would indulge presumption that proceedings were regular. Comp.
Laws, sec. 8708.01.
Where plaintiffs appeared in attachment proceedings and participated therein and did not make any
objection at the time to proceedings or urge any alleged irregularities in trial court, plaintiffs waived
procedural irregularities, if any.
3. Assignments for Benefit of Creditors.
To make an assignment for benefit of creditors valid, it is not necessary that all creditors assent to
assignment if amount of debts exceed value of property assigned.
The assent of those creditors representing debts equal to value of property assigned under an assignment
for benefit of creditors is a valid consideration and gives legal effect to assignment, and if their debts are
of less amount than the property they constitute a good consideration pro tanto and give assignees a right to
retain property to amount of such debts.
Where nonassenting creditors challenged an assignment for benefit of creditors by attachment
proceedings, and there was no evidence or finding that debts of assenting creditors were equal to value of
property assigned, supreme court would presume, in support of judgment, that trustees under assignment
were entitled to possession of property, an implied finding that creditors having debts equal to value of
assigned property assented to assignment.
Where mine operator made an assignment of mining property for benefit of creditors, and trustees under
assignment informed men in charge of mill of execution of assignment and that trustees claimed possession
of values in solution and of ore at mill, and two men were placed at mill as watchmen,
there was a sufficient "delivery" of assigned property.
ore at mill, and two men were placed at mill as watchmen, there was a sufficient delivery of assigned
property.
7. Attachment.
Contention by nonassenting creditors that they had liens against assigned property for wages and
respecting an alleged agreement between assignor and such creditors relative to handling and marketing of
property could not be considered in creditors' attachment proceedings in which trustees for creditors filed
third-party claims.
A valid subsisting assignment for benefit of creditors, although not accepted by all creditors, will prevail
over a subsequent levy of an attachment in a suit by nonassenting creditors.
Appeal from Fifth Judicial District Court, Mineral County; Wm. D. Hatton, Judge.
Proceedings by Martin Chiatovich and others against Thomas Young, defendant, Loyd
Wilson and another, third-party claimants, as the assignee of defendant Thomas Young,
wherein a writ of attachment was issued. From an adverse judgment, plaintiffs appeal.
Affirmed.
N. E. Conklin, of Hawthorne, for Appellant.
Martin G. Evansen, of Hawthorne, for Respondents.
OPINION
On the 3d day of April 1941 one Thomas A. Young, describing himself as a mine operator,
made an assignment for the benefit of creditors. The assignment relates that the said Young
was indebted to divers persons in considerable sums of money, which he was unable to pay in
full, and that he desired to convey all of his property for the benefit of all of his creditors,
without any preference or priority other than that provided by law.
without any preference or priority other than that provided by law. By said instrument said
assignor designated Loyd Wilson and Martin G. Evansen as trustees. The said assignment
provided that after the payment of the debts which by law were entitled to preference, and the
payment of costs and charges of the administration of the trust, the remainder be distributed
among all the creditors who executed the said assignment as parties of the third part or
acceded to its terms. Creditors John McGlynn, John Hudon, LeRoy Brady, Henry Ross, and
Frank M. Chappell accepted the terms of the said assignment. On or about April 4, 1941,
Martin Chiatovich, Mike Peterson, and T. M. Dekens, creditors of the said Thomas A. Young
who had not accepted the terms of the said assignment, instituted an action in the district
court of the Fifth judicial district of the State of Nevada, in and for Mineral County, and
caused to be issued out of said court a writ of attachment. The sheriff of Mineral County
made his return on said writ, wherein he stated that he, the said sheriff, did, on the 6th day of
April 1941, attach personal property in the possession of Thomas Young, namely,
precipitates at the Kinkead Mill. On the 14th day of August 1941 there was filed in said
court and cause by Martin G. Evansen, one of the trustees named in said assignment for the
benefit of creditors, an instrument denominated Petition of Third Party Claimants, it being
alleged in said petition that the precipitates taken into possession by the said sheriff by virtue
of said attachment were claimed by said Martin G. Evansen and Loyd Wilson as trustees for
the creditors of the said Thomas A. Young, and they were entitled to the possession of the
same. Thereafter an order was made by the said court setting the said petition for hearing for
Thursday, August 28, 1941, at 10 a. m. The record fails to disclose any further proceedings
that may have been had, until the 3d day of August 1941, at 2:30 p. m., at which time the
petition of third-party claimants came on for hearing.
Evidence was introduced before the court, at the conclusion of which the matter was taken
under advisement. On the 23d day of October 1941 the said court rendered its decision
holding that the precipitates taken into possession by the sheriff under said attachment were
the property of Loyd Wilson and Martin G. Evansen, as trustees under and by virtue of the
assignment for the benefit of creditors, and that said trustees were entitled to possession of
the said precipitates, and directed the said sheriff to deliver the possession of said property to
the said assignees. From said order appellants prosecute this appeal.
Appellants question the jurisdiction of the trial court to hear the said petition of third-party
claimants, for the reason that no third-party claim was in evidence or filed of record, and
therefore there was nothing to initiate said third-party hearing. While there is no direct
statement to that effect, we assume that appellants have reference to the requirement in
section 8708.01) N. C. L. which provides: Whenever a verified third-party claim is served
upon the sheriff upon levy of the writ of attachment, the plaintiff, or the person in whose
favor the writ of attachment runs, shall be entitled to a hearing within ten days therefrom
before the court having jurisdiction of the action, in order to determine title to the property in
question, which hearing must be granted by the said court upon the filing of an application or
petition therefor.
1, 2. Whether or not the claim provided for in the statute was served upon the sheriff the
record does not disclose. In order for appellants to be in a position to urge that question, they
should have set it up as a defense in the lower court, and having failed to do so, and nothing
to the contrary appearing in the record, this court will indulge the presumption that the
proceedings were regular insofar as the requirements of the statute are concerned. Further,
appellants having appeared in the proceeding and participated therein and not having made
any objection at the time to said proceeding or urged any alleged irregularities in the trial
court, they have waived them, if in fact procedural irregularities exist.
not having made any objection at the time to said proceeding or urged any alleged
irregularities in the trial court, they have waived them, if in fact procedural irregularities exist.
Steffy et al. v. Keton Truck Line Co., 44 Wyo. 345, 11 P.(2d) 1082.
Appellants next urge that the assignment was invalid insofar as the attaching creditors
were concerned, and cites in support of this contention the case of Maitia v. Allied Land &
Live Stock Co., 49 Nev. 451, 248 P. 893. That case has no application to the question of the
validity of the assignment for the benefit of creditors, with which were are concerned. It does
no more than determine that a creditor has the right to proceed as the attaching creditors have
proceeded in this action, namely, refuse to be bound by the assignment and bring an
independent action. It in no way prescribes that in the bringing of such independent action
they may cause to be attached, and subjected to the satisfaction of a judgment they might
obtain, property which had previously passed to assenting creditors by virtue of an
assignment for their benefit.
3, 4. The case of Sadler v. Immel, 15 Nev. 265, has settled the question of the validity of
assignments such as we are concerned with here, adversely to the contention of appellants.
There, as here, an assignment for the benefit of creditors was made; there, as here, the
assignment was accepted by certain creditors, repudiated by others; there, as here, the
nonassenting creditors raised the question of the validity of the assignment, because of their
nonassent. This court, in that case, said: It is found by the court that plaintiff did not accept
under the assignment, and that he did not consent thereto. That finding shuts out the
presumption of assent frequently indulged in by courts. But admitting that the assent of
creditors was necessary (a question we do not decide), it was not necessary, in order to make
the assignment valid and operative, that all should assent, if the amount of the debts exceeded
the value of the property.
of the property. The assent of those representing debts equal to the value of the property
assigned, is a valid consideration, and gives full legal effect to an assignment; and if their
debts are of less amount than the property, they constitute a good consideration pro tanto, and
give the assignees a right to retain property to the amount of such debts.
5. We find in the case at bar the same situation as existed in the case of Sandler v. Immel,
supra, that there is no evidence or finding that the debts of the assenting creditors were equal
to the value of the property assigned. We also find in this case, as was stated there, that there
is no finding or evidence irreconcilable with the conclusion that the amount due the assenting
creditors was equal to the value of the property assigned. Plaintiffs made no effort to
introduce evidence or to request a finding to the effect that the value of the assigned property
was more than the amount of the debts due the assenting creditors. We must, therefore,
presume, in support of the judgment and order, and implied finding that the creditors having
debts equal to the value of the assigned property did assent. Sadler v. Immel, supra.
Appellants contend there was no delivery of the assigned property. On April 4, the day
following the execution of the assignment, the trustees made a trip to the Kinkead mill. The
values extracted from the ore recently treated at the mill were in solution and, manifestly,
while in such form incapable of manual delivery. The trustees informed the men then in
charge of the mill of the execution of the assignment for the benefit of creditors, that the
trustees claimed the possession of the values in solution and of forty or fifty tons of ore at the
mill, and instructed Mr. Chiatovich, who was in charge at the mill, to run through the said
forty or fifty tons of ore and clean up the precipitates.
6. Two men were placed at the mill as watchmen, and were on duty at the mill for three
nights. On the 6th of April the sheriff took possession of the precipitates which had been
collected during the period from April 4 to 6.
6th of April the sheriff took possession of the precipitates which had been collected during
the period from April 4 to 6. Upon the intervention of the sheriff with the levy of the writ of
attachment, the trustees and their agents followed the only course open to themwithdrew
the watchmen from the mill and asserted their right to possession and ownership through a
third-party claim. A consideration of the condition and situation of the property as it existed
at the mill leaves us in agreement with the finding of the trial court to the effect that there was
such a delivery of the property as the nature of the property would reasonably admit, which is
sufficient. 6 C. J. S., Assignments for Benefit of Creditors, sec. 10, p. 1230; Tognini v. Kyle,
17 Nev. 209, 30 P. 829, 45 Am. Rep. 442.
7, 8. In his briefs counsel for appellants indulges in considerable discussion relative to
alleged liens which appellants have because of wages due, and of an alleged agreement
relative to the handling and marketing of the precipitates, alleged to have been entered into
between the assignor, Young, and appellants. Such an argument has no force in the present
situation. Through the issues presented by the record, appellants are asserting their right to
subject the property to the payment of their debts by an attachment suit, and not through a
mechanics' lien foreclosure suit, and the possession of the precipitates has been surrendered
to the sheriff pursuant to the levy of the attachment. The precise question to be determine is:
Will a valid subsisting assignment for the benefit of creditors, not accepted by all of the
creditors, prevail over a subsequent levy of an attachment in a suit instituted by certain
creditors who have not acceded to or accepted the assignment for the benefit of creditors? We
conclude that the facts presented in this case are such that the question must be answered in
the affirmative.
The judgment and order appealed from are affirmed.
____________
61 Nev. 293, 293 (1942) Kelly v. Clark County
HENRY KELLEY, Et Al., Appellants, v. CLARK
COUNTY, Et Al., Respondents.
No. 3350
July 2, 1942. 127 P.(2d) 221.
1. Municipal Corporations.
The suppression of nuisances injurious to public health or morals is a governmental power as
distinguished from purely local matter.
The state cannot relinquish all authority in respect to suppression of nuisances injurious to public health
or morals.
A city can enact ordinances not inconsistent with state laws regulating gambling and prostitution within
city's territorial limits.
4. Nuisances.
The charter power of city of Las Vegas to regulate, prohibit, and prescribe location of and suppress all
houses of ill fame and other charter provisions as to nuisances, did not supplant the authority under the
state laws of board of county commissioners of county, in which city was located, to institute and maintain
abatement proceedings against persons allegedly maintaining nuisances consisting of bawdy houses within
the county. Comp. Laws, secs. 2043, 9051, 10193, 10195, and sec. 10244 as amended by Stats. 1941, c.
57; Stats. 1939, c. 155, sec. 10, subd. 10.
5. Nuisances.
The alleged keeping of bawdy houses within 400 yards of church was a nuisance, for the abatement of
which the county commissioners were authorized to institute proceedings, notwithstanding that statute
making it unlawful to keep bawdy house within such distance of church did not declare such keeping to be
a nuisance, since bawdy houses are nuisances in any event. Comp. Laws, secs. 2043, 10193.
6. Nuisances.
That statute relating to keeping of bawdy houses within 400 yards of church made such keeping a crime
did not deprive county commissioners of their authority to institute proceedings for abatement of nuisance
consisting of such keeping of bawdy houses. Comp. Laws, secs. 2043, 10193.
7. Nuisance.
The authority of county commissioners to institute proceedings for abatement of nuisance consisting of
keeping of bawdy houses within 400 yards of church was not limited to bawdy houses in unincorporated
towns or cities, but extended to incorporated towns or cities. Comp. Laws, secs. 1231, 2043, 10193.
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Presiding
Judge.
Action by Henry Kelley and others against Clark County, a duly constituted political
subdivision of the State of Nevada, and others, for a injunction restraining the defendants
from abating an alleged nuisance. From a judgment of dismissal, the plaintiffs appeal.
Affirmed.
Harold M. Morse and Madison B. Graves, both of Las Vegas, for Appellants.
Roland H. Wiley, District Attorney, and V. Gray Gubler and Wm. J. Hatton, Deputy
District Attorneys, all of Las Vegas, for Respondents.
OPINION
On April 10, 1941, the board of county commissioners of Clark County, one of the
defendants, made an order that the district attorney of the county notify all persons
responsible for maintaining a nuisance in block 16, Clark's Las Vegas townsite, to abate the
same in accordance with section 2043 Nevada Compiled Laws 1929. Pursuant thereto the
district attorney wrote to each of the plaintiffs on April 12, 1941, to abate a public nuisance in
said block 16, on or before the 17th day of April, and stating further upon their failure to do
so he would adopt such proceedings against them, and each of them, as might be necessary in
the premises. Whereupon plaintiffs filed a complaint for an injunction against defendants. A
preliminary injunction was granted. Defendants answered alleging that plaintiffs were
engaged in keeping and maintaining bawdy houses in block 16 of Clark's Las Vegas townsite
in the city of Las Vegas, Clark County, Nevada, and permitting numerous persons to reside
or resort therein for the purpose of plying their vocation.
numerous persons to reside or resort therein for the purpose of plying their vocation.
For a second and separate defense it is alleged that plaintiffs are now and were at the time
of filing the complaint, keeping houses of ill-fame and renting rooms therein to numerous
unknown persons for purposes of prostitution, and that said houses of ill-fame and rooms are
situated within 400 yards of an established church building erected for and used for
devotional services and religious worship in the city of Las Vegas, county of Clark, State of
Nevada. A reply was filed. The court dismissed the injunction. Hence this appeal.
We will pass over certain technical contentions and go to the crux of the case. The main
question for determination is whether the charter provision of the city of Las Vegas
empowering its board of commissioners, within said city and within one mile outside of the
city limits to regulate, prohibit, and prescribe the location of and suppress all houses of
ill-fame, * * * bawdy-houses, * * *. (Stats. 1939, c. 155, p. 216, sec. 10, subd. 10)
supersedes the power and duty of the board of county commissioners to abate any of such
houses as a nuisance within the limits of the county. Section 2043 N. C. L. reads:
Whenever, in any county of this state, the county commissioners of said county shall have
knowledge, either by personal observation, complaint in writing, or other satisfactory
evidence, that a nuisance exists within the limits of said county, as defined by section 3346 of
the Compiled Laws of Nevada (sec. 9051, post) it shall be the duty of said board of county
commissioners to take immediate action by entering and recording an order in the minutes of
said board, directing the district attorney to notify the person or persons responsible for such
nuisance to abate the same, and in case the said notice is not obeyed within five days from
and after such service, the said district attorney is hereby directed and empowered to bring
action in court of justice to enforce or abate the same, together with the recovery of
damages and costs.
enforce or abate the same, together with the recovery of damages and costs. Said action shall
be under the control of the board of county commissioners in like manner as other suits to
which the county is a party, and all necessary expenses incurred in conducting said action
shall be paid out of the general fund of said county as other claims are paid. Failure on the
part of either county commissioners or district attorney to enforce the provisions of this act
shall work forfeiture of office.
Section 9051 N. C. L. referred to in the foregoing statute provides: Anything which is
injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance,
and the subject of an action. Such action may be brought by any person whose property is
injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the
judgment the nuisance may be enjoined or abated, as well as damages recovered.
Section 10193 N. C. L. provides: It shall be unlawful for any owner, or agent of any
owner, or any other person to keep any house of ill-fame, or to let or rent to any person
whomsoever, for any length of time whatever, to be kept or used as a house of ill-fame, or
resort for the purposes of prostitution, any house, room or structure situated within four
hundred yards of any school house or school room used by any public or common school in
the State of Nevada, or within four hundred yards of any church edifice, building or structure
erected for and used for devotional services or religious worship in this state.
Section 10195 N. C. L. makes a violation of any of the provisions of the foregoing section
a misdemeanor punishable by fine or imprisonment or both.
Section 10244 N. C. L. as amended by Statutes of 1941, c. 57, at page 65, declares a public
nuisance to be a crime against the order and economy of the state, and defines one class
thereof to be every act unlawfully done or every omission to perform a duty, which act or
omission shall offend public decency.
defines one class thereof to be every act unlawfully done or every omission to perform a duty,
which act or omission shall offend public decency.
The district attorney contends that he may press the action for abatement on the ground of
public nuisance comprehended by any of the foregoing sections. Counsel for plaintiffs insist
that the foregoing provision of the city charter and other provisions therein as to nuisances,
occupy the entire field of general legislation on the subject within the prescribed city limits,
to the exclusion of the state. Our view does not correspond with this.
1. The suppression of nuisances injurious to public health of morals is among the most
important duties of government. Phalen v. Commonwealth of Virginia, 8 How. 163, 12 L. Ed.
1030; 39 Am. Jur. 292. It is a governmental power as distinguished from matters of purely
local concern. It is thus characterized in Stone v. Mississippi, 101 U.S. 814, 819, 25 L. Ed.
1079:
No legislature can bargain away the public health or the public morals. The people
themselves cannot do it, much less their servants. The supervision of both these subjects of
governmental power is continuing in its nature, and they are to be dealt with as the special
exigencies of the moment may require. Government is organized with a view to their
preservation, and cannot divest itself of the power to provide for them. For this purpose the
largest legislative discretion is allowed, and the discretion cannot be parted with any more
than the power itself.
See New Orleans Gas-Light Co. v. Louisiana Light, Etc., Co., 115 U.S. 650, 667, 6 S. Ct.
252, 29 L. Ed. 516, where the above concept is approved.
This court also approved it and held accordingly in Ex Parte Ah Pah, 34 Nev. 283, 119 P.
770, 772. The same contention was made there as here upon facts quite similar, that the
delegation by the legislature to the city of Reno of the right to regulate the locations of
houses of prostitution within its corporate limits, and ordinances adopted pursuant
thereto exhausted the power of the state to legislate on the subject.
houses of prostitution within its corporate limits, and ordinances adopted pursuant thereto
exhausted the power of the state to legislate on the subject. And that the state law under
which the petitioner was convicted in the justice court in Reno for keeping a house of ill-fame
within 800 yards of a school house in Reno, was unconstitutional and void. The court held to
the contrary, and citing a wealth of authority to sustain its conclusion, said:
After a careful review of the law and the authorities bearing upon this constitutional
objection interposed by petitioner, we believe, contrary to petitioner's contention in this
respect, that the doctrine is overwhelmingly maintained that the legislative departments of our
government can never divest the government itself of the inherent right at all times under the
police power vested in it under the Constitutions, both federal and state, of enacting any
legislation which it may deem wise and just for the betterment and preservation of the public
health, safety, and morals.
2. The state, for the reasons given, cannot relinquish all authority in such matters. If the
contention of plaintiffs that the state has abdicated all authority were allowed, it would, as
stated in State v. Linn, 49 Okl. 526, 153 P. 826, 830, Ann. Cas. 1918b, 139, destroy the
uniformity and efficiency of the police power of the state, leave these matters subject to the
sole management of the local authorities, and would permit a condition to exist in a city with
such charter entirely different from and at variance with the conditions in other parts of the
state; and if the officers of a city which has adopted a charter are not in sympathy with the
enforcement of such laws, or other laws of like character, were the enforcement of said laws
left entirely in their hands, it is easy to see that such laws, or indeed any law, might become a
dead letter, and their enforcement a farce, and wholesale violations thereof might occur with
the knowledge and consent of the city officials.
3. In the above case it was held that the laws against gambling and prostitution are general
and intended to operate throughout the entire state, and such statutes are public regulations
necessary for the maintenance of the public peace and good order of society, and are matters
in which every citizen of the state has an interest, and are not local and confined to the
municipality, and to be regulated by its charter provisions and ordinances to the exclusion of
the general laws of the state upon the subject. It was further held in that case that the city
might enact ordinances not inconsistent with the state laws regulating such matters (gambling
and prostitution) within its territorial limits. This is a well-settled rule. Ex Parte Ah Pah,
supra; Ex Parte Sloan, 47 Nev. 109, 217 P. 233; State v. Lee, 29 Minn. 445, 13 N. W. 913. In
fact, it is from this source of concurrent jurisdiction between the state and municipalities in
matters subject to the police power that the latter derive a delegated authority to deal with
minor criminal infractions which are also punishable under state laws. The state, however,
cannot surrender its sovereignty in these important duties of government.
In 1 McQuillin Municipal Corporations (2d ed.), p. 511, the rule is declared: Touching
duties which the people in the several localities owe to the state at large, it is manifest they
cannot be allowed a discretionary authority to perform them or not as they may choose, for as
tersely stated by Judge Cooley, such an authority would be wholly inconsistent with anything
like regular or uniform government in the state.'
4. It follows from what we have said that we must hold that the charter power of the city of
Las Vegas to regulate, prohibit, and prescribe the location of and suppress all houses of
ill-fame, bawdy houses, and other charter provisions as to nuisances, have not supplanted the
authority and duty of the board of county commissioners of Clark County under the state
laws, to institute and maintain abatement proceedings against plaintiffs for maintaining the
alleged nuisances within the county.
for maintaining the alleged nuisances within the county.
5. The argument and contentions of plaintiff's counsel have taken a wide range, but we
think few other points need be discussed. They assert that defendants' sole defense to the
injunction proceeding was that the county commissioners were authorized to proceed for the
abatement of the public nuisance alleged to exist in block 16 under said sec. 10193. In this
regard they contend, first, that the section does not declare the acts stated to constitute such a
nuisance. We are of the opinion that they are nevertheless such a nuisance. As stated in 46 C.
J. 653:
It is not necessary that the evil sought to be remedied be declared a nuisance by the
statute itself, so long as the object to be attained was one that could properly be reached by
the police power.
Fevold et al. v. Board of Sup'rs, 202 Iowa 1019, 210 N. W. 139. The statute deals with
houses of prostitution. Such an evil has always been deemed a public nuisance. 46 C. J. 700,
701. It has been considered a nuisance per se. Idem. In Farmer v. Behmer, 9 Cal. App. 773,
100 P. 901, 903, the court said: A house of prostitution is a nuisance per se, and is so
regarded wherever situated, citing Wood on Nuisances, sec. 29.
6. The location of a house of prostitution within a short distance of a church or school
would seem to aggravate rather than mitigate its deleterious effect on the public welfare.
Being a nuisance it falls within the reach of county authorities to abate it by prescribed civil
action. Secondly, it is insisted that because the acts stated in said section 10193 are made a
crime it is not subject to such an action. This is an erroneous view. The general rule is to the
contrary. 46 C. J. 762, 763. This court is committed to the general rule. See State ex rel.
Edwards v. Wilson, 50 Nev. 141, 253 P. 857, 858, wherein the court said:
Whether the maintenance of a public nuisance is or is not punishable in the law courts as
a crime is an immaterial incident so far as the preventive jurisdiction of equity is
concerned, for equity ignores its criminality, and visits upon the offender no punishment
as for a crime."
immaterial incident so far as the preventive jurisdiction of equity is concerned, for equity
ignores its criminality, and visits upon the offender no punishment as for a crime.
7. Lastly we say that there is no merit in the contention that sec. 1231 N. C. L. limits the
jurisdiction of boards of county commissioners relative to public nuisance to unincorporated
towns or cities in their respective counties. Section 2043 expressly gives the boards of county
commissioners authority in the premises. We said in State ex rel. Edwards v. Wilson, supra:
The statute makes it clear that the county is the real party in interest in an action brought
under its provisions to abate public nuisances existing within the limits of said county.
The judgment and order dissolving the injunction should be affirmed.
It is so ordered.
____________
61 Nev. 301, 301 (1942) Home Finance Co. v. Balcom
HOME FINANCE COMPANY, a Corporation, and A. W. BLACKMAN, and A. W.
BLACKMAN, as an Individual, Appellants, v. R. D. BALCOM, J. R. McDANIEL,
Jr., and S. L. HARDY, Respondents.
No. 3359
July 7, 1942. 127 P.(2d) 389.
1. Action.
Equitable as well as legal defense may be set up in a law action, and ordinarily in such cases complete
and adequate relief will be given, but special circumstances sometimes require that preventive remedy of
injunction be granted defendant in a law action in order that he may not suffer irreparable injury.
2. Justices of the Peace.
Justice's court had no jurisdiction to order a consolidation of numerous actions between the same parties
involving similar causes of action.
3. Injunction.
In determining whether injunctive relief should be granted to prevent a multiplicity of suits, the court will
consider the facts and circumstances of the particular case and not overlook the
"balance of convenience" rule.
facts and circumstances of the particular case and not overlook the balance of convenience rule.
4. Injunction.
Where members of former partnership sought to restrain the maintenance of numerous suits in justice
court and district court by assignee of partnership's interests as seller in separate conditional sales contracts
to recover upon partnership's guaranty of payment and to require all such causes to be consolidated in one
action in a district court wherein partners could maintain a counterclaim for damages which exceeded
justice court's jurisdiction, partners were entitled to injunction restraining pendente lite the maintenance of
such actions and were not precluded from such relief by the failure to seek injunction in the district court
action. Comp. Laws, secs. 8602, 8604; and sec. 8603, subd. 1, as amended by Stats. 1931, c. 148.
5. Injunction.
Injunction, restraining pendente lite the maintenance of numerous suits in justice court on similar causes
of action of a specified nature, should be restricted in scope so as to restrain only the maintenance of such
suits and the commencement of other suits based on causes of action of the same nature.
6. Injunction.
That portion of injunction pendente lite restraining defendants from removing their assets beyond the
jurisdiction of trial court was improper where not supported by pleadings.
7. Injunction.
In action to restrain the maintenance in justice court and district court of numerous suits against plaintiffs
on similar causes of action and require their consolidation in a single action in district court, the
establishment of plaintiffs' right at law in at least one of the cases sought to be restrained was not essential
to warrant injunction pendente lite.
8. Injunction.
In action to restrain maintenance of multiplicity of suits, it was sufficient to sustain an injunction
pendente lite that all the parties to suits sought to be restrained were substantially the same, where all the
causes of action a rose out of the same transaction and were connected with the same subject matter.
9. ActionInjunction.
Where it is sought to restrain actions at law, the prevailing practice is for the defendants in the law action
to ask for a preliminary injunction in a separate suit rather than apply for such relief in the action at law.
Appeal from Eighth Judicial District Court, Clark County, Harry M. Watson, Judge
Presiding.
Action by R. D. Balcom and others against Home Finance Company and others to restrain
defendants from maintaining against plaintiffs a multiplicity of suits in justice court and
district court on similar causes of action. From an order denying their motions to dissolve an
injunction pendente lite, defendants appeal. Order affirmed with directions to modify
injunction pendente lite in accordance with opinion.
A. S. Henderson and Alfred H. McAdoo, both of Las Vegas, for Appellants.
Harold M. Morse and Madison B. Graves, both of Las Vegas, and Julian Thruston, of
Pioche, for Respondents.
OPINION
This appeal and the certiorari proceeding decided this day (Home Finance Co. v. Eighth
Judicial District Court of Nevada, cause No. 3352, Nev., 127 P.(2d) 397) are companion
cases, and the following statement is intended to serve for both.
On July 11, 1941, Home Finance Company, a corporation, commenced civil action No.
12212 in the Eighth judicial district court, Clark County, against James Sadler, R. D. Balcom,
J. R. McDaniel, Jr., and S. L. Hardy, copartners doing business under the firm name and style
of Jimmie Sadler. Six causes of action are alleged in the complaint, each based upon the
assignment to plaintiff by defendants, for a valuable consideration, of all their interest as
sellers in a separate conditional sales contract. The amounts due from the purchasers of
merchandise under said contracts are alleged to be mostly or wholly unpaid. The complaint
further alleges that in each assignment the partnership guaranteed payment of the full
amount remaining unpaid on the assigned contract, and covenanted that if default should
be made in payment of any installment therein provided for, they would pay assignee, on
demand, the full amount then unpaid.
guaranteed payment of the full amount remaining unpaid on the assigned contract, and
covenanted that if default should be made in payment of any installment therein provided for,
they would pay assignee, on demand, the full amount then unpaid. Judgment is prayed against
defendants and each of them for the respective amounts due from the purchasers under said
contracts, together with interest and costs of suit.
On July 18, 1941, defendants joined in filing a general demurrer to said complaint. On
July 22, 1941, Harry H. Austin was substituted in place of Harold M. Morse as attorney for
defendant Sadler, and on the same day entered a separate appearance for him and filed a
general demurrer to said complaint in his behalf. On August 7, 1941, the demurrers of all
defendants were overruled, and they were given ten days to answer. At the same time leave
was granted defendant Sadler to file a cross complaint or counter claims or cross-relief. By
stipulation, August 11, 1941, the defendants represented by Mr. Morse were given until and
including September 1, 1941, to answer and further plead to the complaint.
On August 16, 1941, defendant Sadler filed his separate answer to the complaint, and his
cross complaint against defendants Balcom, McDaniel and Hardy. His answer alleges, in part,
that the partnership was dissolved on December 18, 1940, at which time he surrendered and
delivered to the three other partners all the books of account of the partnership, and that he no
longer has access to them. In his cross complaint against the other defendants, he alleges,
among other things, that all the indebtedness mentioned in the plaintiff's complaint was
contracted by the partnership, appeared upon the books of the firm, and was known to all the
defendants or could have been known by them by an inspection of the books. The cross
complaint further alleges that on December 18, 1940, the four partners entered into an
agreement in writing forever dissolving the partnership, and that by the terms of said
agreement defendants Balcom, McDaniel and Hardy agreed to pay all the indebtedness of
the partnership, excepting only such bills as might have been contracted or incurred in
the name of the firm by defendant Sadler without the knowledge of the other partners.
dissolving the partnership, and that by the terms of said agreement defendants Balcom,
McDaniel and Hardy agreed to pay all the indebtedness of the partnership, excepting only
such bills as might have been contracted or incurred in the name of the firm by defendant
Sadler without the knowledge of the other partners.
On August 30, 1941, Balcom, McDaniel and Hardy commenced a separate action, No.
12469, against Home Finance Company and A. W. Blackman in said district court. On
September 2, 1941, in action No. 12212, there was filed an order of the district judge dated
August 30, 1941, giving defendants in that case ten days from and after final judgment by the
trial court in action No. 12469 within which to answer to the merits in case No. 12212. A
motion to vacate and annul this order having been thereafter denied by the trial court, Home
Finance Company, on October 29, 1941, filed its petition for writ of certiorari in this court
(case No. 3352) praying that said order extending time to answer be reviewed and annulled.
In said district court action No. 12469 plaintiffs, on September 3, 1941, filed a verified
amended complaint. On the basis of this complaint and the filing of an undertaking the trial
court, on the ex parte application of plaintiffs, granted an injunction pendente lite restraining
the defendants, until further order of court, from procuring the entry of defaults in, or the
prosecution of, any of the legal actions referred to in plaintiffs' complaint, or instituting any
other similar legal action or actions. The injunction further restrained defendants from
removing any of their assets beyond the jurisdiction of the trial court while the injunction
remains in effect.
On September 12, 1941, defendants in said action No. 12469 separately filed general and
special demurrers to the amended complaint, and noticed motions for orders dissolving said
injunction. On October 21, 1941, the demurrers were sustained, and plaintiffs given ten days
to file a further amended complaint.
days to file a further amended complaint. On the same day, October 21, 1941, the motions to
dissolve the injunction were denied. Defendants, on November 21, 1941, appealed to this
court from the order denying said motions.
After said application for writ of certiorari was filed (cause No. 3352 in this court), and
after this appeal was perfected (cause No. 3359), a second amended complaint was filed in
district court action No. 12469. There is no copy of this complaint in the record certified to
this court in said certiorari proceeding, nor does a copy of it appear in the record on this
appeal. A full copy, however, is set forth both in respondent's answering brief in the certiorari
proceeding and in respondents' answering brief on this appeal. In the certiorari proceeding
petitioner, in its reply brief, says, petitioner certainly has no objection to this second
amended complaint being before this court if counsel for respondents think it will help them
or be in any way enlightening to this court. Likewise, in their reply brief on this appeal,
appellants say: We might very properly raise the point that such second amended complaint
should not be considered; but we carefully do not do so. On the contrary, we ask this court to
treat such second amended complaint as an admission by respondents against interest. By so
doing, not only will certain omissions of the amended complaint be filled in and certain
obscurities and ambiguities removed, but by such admission by respondents, certain
additional reasons are brought before this court why the injunction in this case was
improvidently issued and why it was highly prejudicial for the lower court to deny our motion
to dissolve.
Neither in the original complaint in district court action No. 12469 nor in the first
amended complaint therein was James Sadler joined as a plaintiff or made a defendant; in the
second amended complaint he is made a party defendant along with Home Finance Company
and Blackman.
Following is a summary of the pertinent allegation in said second amended complaint:
Plaintiffs were formerly associated with defendant Sadler in the partnership known as
Jimmie Sadler Electric Appliances, the business of which has been discontinued and all its
assets disposed of.
James Sadler is made a party defendant instead of being joined with the plaintiffs, because:
(1) He withdrew from said firm on December 18, 1940, and relinquished his interest to
plaintiffs; (2) he is a party defendant to the suits later mentioned and, from May 1, 1939, to
December 18, 1940, was the managing officer of said firm and the person who, in its behalf,
executed the assignments of contracts hereinafter mentioned; (3) he violated his duty and
obligation to plaintiffs as his partners as hereinafter set out, and entered into a conspiracy
with the defendant Blackman to cheat, wrong, and defraud plaintiffs as his partners.
Defendant Blackman has been and is the secretary of Home Finance Company, and as
plaintiffs are informed and believe, has at all times been the owner of not less than one third
of its capital stock.
Defendant corporation has filed thirty separate actions in the justice's court of Las Vegas
township, Clark County, each being entitled Home Finance Company, a corporation,
plaintiff, versus James Sadler, R. D. Balcom, J. R. McDaniel, Jr., and S. L. Hardy, copartners,
doing business under the firm name and style of Jimmie Sadler', defendants.
The complaints in said actions are based upon causes of action alleged to have grown out
of assignments, by defendants to plaintiff, of all their interest in certain conditional sales
contracts wherein the partnership was the seller. One hundred separate causes of action, upon
similar contracts are alleged in said thirty actions, whereby plaintiff seeks to recover in the
aggregate approximately $8,250 besides interest, thirty attorneys' fees aggregating $2,250,
and costs. Each of said causes of action follows the same form and wording, except for
appropriate variations as to dates and amounts, and each refers to an exhibit consisting
of a copy of a separate conditional sales contract.
of action follows the same form and wording, except for appropriate variations as to dates
and amounts, and each refers to an exhibit consisting of a copy of a separate conditional sales
contract. All of said contracts are in substantially the same form, varying principally in the
description of the property sold, the name of the purchaser (obligor), and the dates and
amounts to be paid.
All said assignments are in substantially the same form and contain the following
provision: Undersigned guarantees payment of the full amount remaining unpaid hereon and
convenants if default be made in payment of any installment herein to pay the full amount
then unpaid to Home Finance Company, upon demand. (Signed Jimmie Sadler).
Home Finance Company has also filed a suit in said district court (No. 12212 heretofore
mentioned in this opinion) against said Sadler, Balcom, McDaniel and Hardy. The six causes
of action set out in the complaint therein are all identical with those set out in said justice
court actions, with the exception of the dates, amounts, names of purchasers and contracts
attached as exhibits and the aggregate amount prayed for in said action No. 12212 is
approximately $2,600, besides costs.
There are also pending in said justice's court three other actions wherein Home Finance
Company is plaintiff and said Balcom, McDaniel, and Hardy defendants. Six causes of action
are alleged in said three actions, all based upon contracts arising out of said Sadler firm
business and alleged to have been assigned to Home Finance Company with recourse. The
language of said six causes of action is identical with that of the others above mentioned, with
the exception of names, dates, amounts, and copies of contracts attached. The aggregate
amount prayed for in said justice court actions is approximately $600, besides interest and
costs, including three attorneys' fees of $75 each. Plaintiffs have been informed by
defendant Blackman that Home Finance Company owns twenty-five or thirty additional
contracts upon which it claims that plaintiffs are liable as guarantors, all arising out of the
same partnership business; that said Blackman threatens and intends to file additional
suits against plaintiffs based upon said contracts, and said suits will be filed on behalf of
said Home Finance Company unless restrained by order of said district court.
been informed by defendant Blackman that Home Finance Company owns twenty-five or
thirty additional contracts upon which it claims that plaintiffs are liable as guarantors, all
arising out of the same partnership business; that said Blackman threatens and intends to file
additional suits against plaintiffs based upon said contracts, and said suits will be filed on
behalf of said Home Finance Company unless restrained by order of said district court. Said
twenty-five or thirty actions will be filed in the justice's court when the amounts alleged to be
due on the respective contracts are less than $300.
There is also an action now pending in said justice's court wherein said Blackman is
plaintiff and said Sadler, Balcom, McDaniel, and Hardy are defendants. In this action
Blackman seeks to recover for wages and warehouse rent due from said last-named
defendants, said claims arising out of the business of said firm.
Fundamentally the basis of the alleged liabilities of plaintiffs upon the numerous contracts
above mentioned is the same in each case, namely: (1) The assignment on behalf of the
partnership by James Sadler; (2) the alleged defaults of the purchasers of merchandise; (3) the
alleged liability of the members of the firm as guarantors under the terms of the assignments.
Plaintiffs believe they have several good and sufficient defenses to each and every cause of
action pending or mentioned above. Said defenses rest upon equitable as well as legal
grounds, and are based upon the following facts: (1) It is alleged in twenty-eight of said
causes of action that no payments whatever were made by the purchasers after the signing of
the contracts and the delivery of the merchandise, and that, with few exceptions, the payments
alleged to have been made were almost negligible; (2) of over sixty contracts alleged in the
pending suits to have been purchased by Home Finance Company prior to January 1, 1940,
all were in default before March 1, 1940, many had been in default for more than six months
at that time, and plaintiffs are informed that approximately the same situation exists as
to all contracts held by defendant corporation; {3) though all said contracts carried a
reservation of title to the electrical appliances sold which were of the reasonable value of
the amount due with the right to repossess the same in event of default, Home Finance
Company "does not appear to have repossessed any of said appliances or to have made
demand upon the purchasers for payment or to have attempted to collect the same from
said original obligors, all in violation of the agreement with and obligation of said Homes
Finance Company to the detriment of these plaintiffs," and the failure and neglect of said
company to pursue its remedy against the merchandise and the purchasers was part of
the scheme of defendant Blackman to cheat, wrong and defraud plaintiffs as hereinafter
set out.
for more than six months at that time, and plaintiffs are informed that approximately the same
situation exists as to all contracts held by defendant corporation; (3) though all said contracts
carried a reservation of title to the electrical appliances sold which were of the reasonable
value of the amount due with the right to repossess the same in event of default, Home
Finance Company does not appear to have repossessed any of said appliances or to have
made demand upon the purchasers for payment or to have attempted to collect the same from
said original obligors, all in violation of the agreement with and obligation of said Homes
Finance Company to the detriment of these plaintiffs, and the failure and neglect of said
company to pursue its remedy against the merchandise and the purchasers was part of the
scheme of defendant Blackman to cheat, wrong and defraud plaintiffs as hereinafter set out.
Defendant Blackman, who for several years prior to May 1939 has been a public
accountant, auditor and business consultant in Las Vegas, induced plaintiffs to form said
partnership and assisted in preparing the partnership agreement. He knew plaintiffs were
advancing all the capital and assured them that they were protected against any liability for
debts other than those to which they would personally assent. He represented to them that he
would install a proper bookkeeping system showing the financial condition of the firm at all
times and would make periodical reports to them reflecting the firm's assets and liabilities. In
reliance on the foregoing, and knowing that said Blackman was competent to properly
supervise the bookkeeping and audit the books, plaintiffs were instrumental in employing him
as the chief accountant and auditor of said firm. It was understood and agreed that he would
be the business manager of the firm and that plaintiffs would not be active or required to
devote any time to the management thereof.
Thereafter defendant Blackman promoted and organized defendant corporation, Home
Finance Company, contributed one third of its capital, became its secretary and sole
managing officer and, acting for said corporation, immediately began acquiring the said
conditional sales contracts taken by Sadler for the firm.
contributed one third of its capital, became its secretary and sole managing officer and, acting
for said corporation, immediately began acquiring the said conditional sales contracts taken
by Sadler for the firm. He failed and neglected to keep proper books and records in the
partnership, and wrongfully concealed from plaintiffs his connection with Home Finance
Company, the extent and amount of the outstanding conditional sales contracts, and the
nature of the alleged liabilities of plaintiffs. He falsely and fraudulently represented to
plaintiffs that said firm was at all times very profitable, the books and records well kept and
its affairs in good shape, with assets greatly exceeding its liabilities. Said misrepresentations
were made by him as part of a scheme to cheat, wrong and defraud plaintiffs through the
acquisition by Home Finance Company of large amounts of such conditional sales contracts
from the partnership by assignment from defendant Sadler without the knowledge and
consent of plaintiffs, and by thereafter failing to pursue the original obligors on said contracts
or to repossess the merchandise, and by extorting the payment of the obligations of guarantors
from plaintiffs with penalties of interest at ten percent and twelve percent per annum. Sadler
was a party to said scheme with said Blackman, and conspired and connived with him to
conceal the facts from, and to misrepresent the facts to, plaintiffs with respect to said dealings
and transactions. Defendant corporation is also chargeable with notice and knowledge of the
the information possessed by Blackman with respect to the affairs of the partnership and the
reliance of plaintiffs upon his misrepresentations, and is chargeable with responsibility for his
fraud, concealment and misrepresentations so made by him to plaintiffs with respect to the
amount and condition of the contracts so purchased and held by the corporation.
In the fall of 1940 plaintiffs began to learn of misrepresentations, fraud and concealment
on the part of said Blackman and Sadler. Blackman was discharged as auditor and
accountant about November 15, 1940, the partnership with Sadler was dissolved on or
about December 1S, 1940, and plaintiffs succeeded to all available firm assets and
proceeded to liquidate same and apply the proceeds upon firm liabilities.
auditor and accountant about November 15, 1940, the partnership with Sadler was dissolved
on or about December 18, 1940, and plaintiffs succeeded to all available firm assets and
proceeded to liquidate same and apply the proceeds upon firm liabilities. In addition thereto
plaintiffs have advanced $8,100 in payment of firm obligations, all of which was made
necessary by said wrongful acts of Blackman and Sadler.
Plaintiffs, through said false and fraudulent misrepresentations of Sadler and Blackman,
were induced to give an agreement to said Sadler indemnifying him from any liability to
creditors of the partnership. For the purpose of obtaining said indemnity agreement, said
defendants represented to plaintiffs that the partnership was in good financial condition and
had assets far in excess of its liabilities, although said defendants well knew said
representations to be false. Plaintiffs have now discovered the falsity of said representations
and repudiate said indemnifying agreement and ask that it be cancelled and annulled.
By reason of all the foregoing facts, Home Finance Company is estopped to claim or assert
any claim against plaintiffs for alleged liability as guarantors of said contracts, and plaintiffs
should be released and discharged on account thereof.
Plaintiffs have been released and discharged from any liability to defendant corporation
because of its failure to promptly notify them of the defaults under said contracts, and to
tender a return thereof, and to make demand for payments. Said corporation is guilty of laches
in the premises and cannot now assert liability against plaintiffs. By reason of the failure of
the company to promptly notify plaintiffs of the existence and ownership of said contracts
and the various defaults thereunder, to make demand upon plaintiffs for payment thereof, and
to tender a return of said contracts so that plaintiffs could proceed against the original
obligors or repossess the merchandise covered thereby, said corporation has elected to retain
said contracts and to release and discharge plaintiffs from liability thereon, and is now
estopped to rescind or revoke that election.
release and discharge plaintiffs from liability thereon, and is now estopped to rescind or
revoke that election. The merchandise covered by said contracts has depreciated in value, and
the present location thereof and the whereabouts of the purchasers are unknown to plaintiffs.
Plaintiffs are all licensed medical doctors practicing at Las Vegas, are subject to call at any
time of day or night, have many patients who depend on them for medical attention, and are
each in great demand. Defendant Blackman, acting for and on behalf of Home Finance
Company, knew that the filing of numerous suits against plaintiffs would harass and annoy
them and tend to injure their good names and reputations, and that it would be a practical
impossibility for plaintiffs to give the time and attention necessary to defend all of said more
than one hundred causes of action now pending in the justice's court. Defendants filed said
justice's court actions for the deliberate purpose of hampering, harassing and annoying
plaintiffs, with the knowledge that said suits or causes of action could not be consolidated for
trial, and that the trial and proper defense thereof, as separate actions, would require hundreds
of days time. They knew that the maintenance of said actions would cause plaintiffs, as
defendants therein, great and irreparable damage, and that plaintiffs' patients would be
annoyed and harassed, and the practice of plaintiffs immeasurably damaged and irretrievably
lost. Plaintiffs have a just set-off and counterclaim against defendants Blackman, Sadler and
Home Finance Company for damages, in excess of the jurisdiction of a justice's court,
resulting from the misconduct of said Blackman and Sadler, and they will be unable to assert
and prove the same if required to defend the said multitude of suits now pending in said
court. Defendants Blackman and Home Finance Company have delayed filing additional suits
upon other contracts for the purpose of further harassing and annoying plaintiffs.
Practically speaking, the same evidence will be used in establishing the defense to all the
causes of action in the pending suits and of any other causes of action based upon contracts of
said partnership, and the same evidence will be used to establish the counterclaims, set-offs
or cross demands of plaintiffs; and in justice and equity of all such causes of action should be
set forth in one pleading and tried in a court having jurisdiction to grant complete and
adequate legal and equitable relief to all the parties.
Defendants Blackman and Home Finance Company filed said actions in the justice's court
with the wrongful intent and purpose of annoying and harassing plaintiffs, in the hope of
preventing them from making proper defense thereto and for the purpose of procuring an
improper judgment or unjustly coercing plaintiffs into making a settlement. Justice and equity
will be subserved by requiring defendants, and each of them, to bring all their alleged causes
of action against plaintiffs individually or collectively, growing out of said partnership
business, into said district court, and to set them up by appropriate pleading in this action, to
the end that plaintiffs be permitted to meet the allegations thereof and plead their defense
thereto and set up any counterclaim, set-off or cross demand relevant or pertinent thereto.
Appellants point out that in the first amended complaint in district court action No. 12469
there is uncertainty as to who the defendants are in the justice court actions, unless it be
presumed that the only defendants therein were these plaintiffs, namely, Balcom, McDaniel
and Hardy; in the second amended complaint, however, it appears that in some of said justice
court actions and in said district court action No. 12212 Sadler, Balcom, McDaniel, and
Hardy are defendants, while in other of said justice court actions, Balcom, McDaniels, and
Hardy, but not Sadler, are defendants.
Two causes of action are alleged in said first amended complaint. In the first, plaintiffs
allege that by reason of defendants' wrongs plaintiffs sustained a cash loss of at least
$13,000.
of defendants' wrongs plaintiffs sustained a cash loss of at least $13,000. In the second, it is
alleged that plaintiffs, relying upon the misrepresentations and fraudulent conduct of
defendants, and as a result of their alleged conspiracy, were prevailed upon to invest and did
invest $13,000 in the partnership enterprise, none of which has been returned to plaintiffs,
that defendants have been unjustly enriched thereby, and that there is due and owing from
them to plaintiffs at least $13,000.
Besides asking that the defendants be enjoined, pendente lite, from prosecuting the justice
court actions and district court action No. 12212, the prayer of said first amended complaint
asks $13,000 actual and $25,000 exemplary damages; it further prays that the defendants be
enjoined from removing any of their assets beyond the jurisdiction of the district court so long
as the injunction remains in effect.
The prayer of said second amended complaint does not directly ask for any damages. It
prays that defendants be enjoined from prosecuting the various actions mentioned, or any
other similar action arising out of or connected with said partnership, and that upon the trial
the injunction pendente lite be made permanent. It further prays that defendants, and each of
them, be ordered to bring into the district court each and every claim they or any of them may
have against the plaintiffs or any of them, connected with or arising out of said partnership
firm or business or the winding up thereof by plaintiffs; further, that plaintiffs be permitted to
plead to such claims as may be made by defendants or any of them, and for a complete
adjudication thereon. It is further prayed that the former injunction be continued in full force
and effect until further order of said district court, that said James Sadler be brought into
court as a party defendant and required to plead to said second amended complaint, and for
such other and further relief as to the court may seem fair, just and equitable.
Appellants' main contention is that respondents, instead of commencing a separate suit
{district court action No.
instead of commencing a separate suit (district court action No. 12469), should have pleaded
their alleged cause of action therein as a defense and counterclaim in district court action No.
12212. Sec. 8602 N. C. L. 1929, provides, in part, that the answer of the defendant shall
contain: 1. * * *. 2. A statement, in ordinary and concise language, of any new matter
constituting a defense or counterclaim. Sec. 8603 N. C. L. 1929 (amended, Stats. of Nevada,
1931, chap. 148, p. 239) provides: The counterclaim mentioned in the last section shall be
one existing in favor of the defendant and against a plaintiff, between whom a several
judgment might be had in the action, and arising out of one of the following causes of action:
1. A cause of action arising out of the transaction set forth in the complaint as the foundation
of the plaintiff's claims, or connected with the subject of the action. * * * Sec. 8604 N. C. L.
1929 reads: If the defendant omit to set up a counterclaim in the cases mentioned in the first
subdivision of the next preceding section, neither he nor his assignee can afterward maintain
an action against the plaintiff therefor.
It is appellants' position that, had respondents pleaded their alleged cause of action as a
defense and counterclaim in No. 12212, they not only could have obtained an injunction
pendente lite restraining the prosecution of the justice court actions, but could also have
obtained any and all other relief, if any, to which they were or are entitled.
1. Under our practice, equitable as well as legal defenses may be set up in a law action,
and in the great majority of such cases complete and adequate relief can be given. However,
special circumstances sometimes required that the preventive remedy of injunction be granted
defendant in the law action in order that he may not suffer irreparable injury. 32 C. J. 99, 100,
n. 52. As stated by Pomeroy: There are, however, special circumstances in which a resort to
the injunctive jurisdiction may still be necessary, in order to prevent a failure of justice.
injunctive jurisdiction may still be necessary, in order to prevent a failure of justice. These
cases may, I think, be reduced to a few general classes: 1. Where it is essential to promote the
ends of justice that an entire controversy should be determined in one proceeding, so that the
rights and duties of all parties interested may be finally settled, it may be necessary to restrain
other suits, so as to prevent the pendency of two or more actions involving the same
subject-matter, or to prevent a partial litigation of the controversy, or to prevent a multiplicity
of suits depending upon the same facts or principles. In short, the jurisdiction must sometimes
be exercised to prevent a multiplicity of actions, or partial investigations which would work
injustice. * * * Pomeroy's Equity Jurisprudence, 5th Ed., vol. 4, sec. 1371.
2. Had Home Finance Company instituted action No, 12212 only, it is clear that
respondents would have been required to plead, by way of answer and counterclaim in that
action, all the matters they have alleged in their complaint in action No. 12469. But, as we
have seen, said corporation also brought a large number of suits in the justice's court, all the
alleged causes of action in which could have been joined with those in district court case No.
12212. Hartford Mining Co. v. Home Lumber & Coal Co., 61 Nev. 12, 114 P.(2d) 1091. The
justice's court has no power to order a consolidation of these numerous actions, and the
amount of respondents' alleged counterclaim is greatly in excess of that court's jurisdiction.
3. In determining whether, in cases of this kind, injunctive relief should be granted on the
ground of multiplicity of suits, the court will take into consideration the facts and
circumstances of the particular case. 28 Am. Jur. 247, n. 1. In exercising our discretion, we
have not overlooked the balance of convenience rule. High on Injunctions (4th ed.), sec. 13;
32 C. J. Injunctions, sec. 65.
4. It is the opinion of the court that the preliminary injunction was properly granted insofar
as it restrains pendente lite, the justice court actions and district court action 12212. Atchison,
T. & S. F. Ry. Co. v. Smith, 42 Cal. App. 555, 183 P. 824; Kaloutsis v. Maltos, 9 Cal. (2d)
493, 71 P.(2d) 68; Gulf, C. & S. F. Ry. Co. v. Pearlstone Mill & Elevator Co., Tex. Com.
App., 53 S. W.(2d) 1001; Standard Inv. Co. v. Dowdy, Tex. Civ. App., 122 S. W.(2d) 1107.
The Blackman case for personal services and warehouse rent is not to be included as one
of the justice court cases, further prosecution of which is restrained by the preliminary
injunction. We say this not merely because that action was not mentioned in the first amended
complaint upon which the injunction pendente lite was based, but because it is not the same
kind of case as, nor a case similar to, the other justice court cases and district court case
12212. The cause of action alleged does not arise out of the same transactions, or from the
same source, as those in the other suits.
5. That portion of the injunction pendente lite which restrains defendants in district court
action 12469 from further prosecuting the actions above mentioned, further restrains them
from instituting any other or near, similar or comparable legal action or actions. This latter
provision is too broad. The only threatened actions, according to the allegations of either the
first or second amended complaint, are of the same kind and nature as those already
commenced. The injunction pendente lite should, therefore, restrain only the commencement
of threatened suits based on alleged assignments to Home Finance Company, by the partners,
of their interests as sellers in conditional sales contracts such as those involved in the actions
already commenced.
6. There has not been pointed out, nor have we been able to find, in either the first or
second amended complaint, any allegation supporting that provision of the injunction
pendente lite which restrains Home Finance Company and Blackman from removing any of
their assets beyond the jurisdiction of the trial court.
Company and Blackman from removing any of their assets beyond the jurisdiction of the trial
court. That part of said injunction, therefore, has no place therein.
7. Appellants further urge that respondents were not entitled to the injunction pendente
lite, for the reason that they had not first established their right at law even in one case. We
are satisfied that this rule is not applicable in the instant case. Rankin v. Eppler, 106 Kan.
131, 186 P. 1008; 30 C. J. S., Equity, sec. 17; Joyce on Injunction, vol. 1, p. 809, n. 26.
8. It is also contended by appellants that respondents were not entitled to the injunction
pendente lite for the prevention of a multiplicity of suits, because the parties are not the same
in the various litigations. They are, however, substantially the same, and that is all that is
required where, as here, all the causes of action arise out of the same transactions and are
connected with the same subject matter.
Appellants say further that the trial court was without jurisdiction to grant the preliminary
injunction to prevent a multiplicity of actions, for the reason that all the parties have no
community of interest in the subject matter. A sufficient answer to this contention is to be
found in sec. 269a of the Fifth Edition of Pomeroy's Equity Jurisprudence. It may further be
observed that we are not dealing here with a bill of peace, nor with a suit by individuals
against the multitude, or a suit by the multitude against individuals.
9. Regarding the contention that respondents should have been required to apply for an
injunction in the first district court action rather than in a separate suit, we note: (1) No
authority has been cited in support of this contention; (2) in the many cases we have
examined, where equity has exercised its jurisdiction to restrain actions at law, the prevailing
practice has been for the defendants in the law action to ask for the preliminary injunction in
a separate suit; (3) in sec. 55 of High on Injunctions (4th ed.) the author says: In the exercise
of its jurisdiction to restrain proceedings at law a court of equity usually requires that a
bill should be filed, or an independent suit instituted for the purpose of obtaining relief by
injunction."
exercise of its jurisdiction to restrain proceedings at law a court of equity usually requires that
a bill should be filed, or an independent suit instituted for the purpose of obtaining relief by
injunction.
The district court is directed to modify the injunction pendente lite in accordance with the
views herein expressed. In all other respects the order appealed from is affirmed. The
respective parties will pay their own costs.
____________
61 Nev. 320, 320 (1942) Home Finance Co. v. Dist. Court
HOME FINANCE COMPANY, a Corporation, v. EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK,
Respondent.
No. 3352
July 7, 1942. 127 P.(2d) 397.
Original Proceeding in Certiorari.
A. S. Henderson and Alfred H. McAdoo, both of Las Vegas, for Petitioner.
Harold M. Morse and Madison B. Graves, both of Las Vegas, and Julian Thruston, of
Pioche, for Respondent.
OPINION
The question involved in this proceeding becomes moot because of the conclusions
reached in Home Finance Co. et al. v. Balcom et al., 61 Nev. 301, 127 P.(2d) 389, companion
case decided this day. The proceeding is therefore dismissed, the respective parties to pay
their own costs.
____________
61 Nev. 321, 321 (1941) Afriat v. Afriat
JENNIE AFRIAT, Appellant, v. JAMES J.
AFRIAT, Respondent.
No. 3346
October 2, 1941. 117 P.(2d) 83.
ON MOTION FOR ALLOWANCES.
1. Motions.
The practice of moving to strike out a motion is not favored.
The time to appeal from an order denying a motion for new trial does not begin to run until after the
giving of a written notice by prevailing party to unsuccessful party that order denying motion has been
made and entered in trial court's minutes. Rev. Laws 1912, sec. 5329, subd. 2, as amended by Laws 1913,
c. 91; Laws 1937, c. 32, sec. 10, subd. 2.
Where trial court's decision was rendered on November 26, 1940, and formal judgment and order
denying motion for new trial was made and entered in court's minutes on December 17, 1940, and no
written notice was given that order denying motion had been made and entered in minutes, and notice of
appeal was served on June 30, 1941, and filed in county clerk's office on July 2, 1941, the service and
filing of notice was timely. Rev. Laws 1912, sec. 5329, subd. 2, as amended by Laws 1913, c. 91; Laws
1937, c. 32, sec. 10, subd. 2.
Where appellant as defendant in trial court, prayed for separate maintenance, and trial court decreed an
absolute divorce to appellant, appellant was an aggrieved person within statute providing that any party
aggrieved may appeal, and hence appellant could appeal from judgment. Comp. Laws, sec. 8883
5. Divorce.
Where wife, in suit by husband, prayed for separate maintenance, and trial court granted wife an
allowance from husband for attorneys' fees and maintenance during pendency of suit which resulted in wife
receiving an absolute divorce, a reversal of judgment on wife's appeal would not require wife to refund
money received for such purposes, and hence wife's acceptance of the money was not a waiver of her
right to appeal.
6. Divorce.
That wife's counsel, in suit by husband wherein wife was awarded an absolute divorce, collaborated with
husband's counsel in preparing findings of fact, conclusions of law and a decree did not result in a waiver
by wife of right to notice of entry of order denying wife's motion for new trial where action of wife's
counsel did not clearly and unequivocally show an intention to waive such right.
action of wife's counsel did not clearly and unequivocally show an intention to waive such right.
7. Divorce.
A statement, if any, by wife's counsel, when wife's motion for new trial was denied, regarding wife's
intention to appeal from judgment in suit by husband wherein wife was awarded an absolute divorce was
not a waiver by wife of her right to notice of entry of order denying motion.
8. Divorce.
A wife's motion for allowances from husband to permit wife to prosecute appeal from judgment in suit by
husband wherein wife was awarded an absolute divorce would not be denied by supreme court on ground
that appeal, if taken, would be without merit and frivolous where record was not before supreme court.
9. Divorce.
Generally, grounds of bad faith, or lack of merit in an appeal in a divorce suit, urged against allowances
sought by a wife from husband to permit wife to prosecute an appeal, should be considered by reviewing
court only when manifest from record.
10. Divorce.
Allowances to wife from husband to permit wife to prosecute appeal from judgment in suit by husband
wherein wife was awarded an absolute divorce were to be governed by husband's ability to pay.
11. Divorce.
On wife's motion for allowances from husband to permit wife to prosecute an appeal from judgment in
suit by husband wherein wife was awarded an absolute divorce, evidence warranted conclusion that wife
was entitled to $50 per month as alimony during pendency of appeal.
12. Divorce.
In view of husband's financial condition, $150 was proper as allowance to wife from husband for
attorneys' fees in prosecuting wife's appeal from judgment in suit by husband wherein wife was awarded an
absolute divorce.
13. Divorce.
On wife's motion for allowances from husband to permit wife to prosecute an appeal from judgment in
suit by husband wherein wife was awarded an absolute divorce, sums representing filing fees and premium
for undertaking on appeal could not be allowed where it appeared from wording of notice of motion that
such sums had been paid.
14. Divorce.
On wife's motion for allowances from husband to permit wife to prosecute appeal from judgment in suit
by husband wherein wife was awarded an absolute divorce, wife would be allowed $220 as cost of
preparation of transcript and $26.70 for cost of preparation of judgment roll where such
amounts were set forth as being necessary in wife's affidavit, and there was no denial
in record respecting correctness of such sums.
for cost of preparation of judgment roll where such amounts were set forth as being necessary in wife's
affidavit, and there was no denial in record respecting correctness of such sums.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Suit by James J. Afriat against Jennie Afriat. From an unsatisfactory judgment, defendant
appeals. On appellant's motion for allowances to permit her to prosecute the appeal, and
respondent's motion to strike out appellant's motion. Judgment in accordance with opinion.
Bowen & Custer, of Reno, for Appellant.
Felice Cohn, of Reno, for Respondent.
OPINION
Appellant asks this Court to make certain allowances to permit her to prosecute an appeal
from a judgment rendered in the First Judicial District Court, in and for Ormsby County.
Respondent has moved to strike the motion and has also urged certain objections to its
consideration.
1. The practice of moving to strike a motion is not favored. 42 C. J. p. 517, Buehler v.
Buehler, 38 Nev. 500, at page 503, 151 P. 44; Orleans Hornsilver Mining Co. v. Le Champ
Mining Co., 52 Nev. 85, at page 89, 280 P. 887; Lamb v. Lamb, 55 Nev. 437, 38 P.(2d) 659.
We will therefore proceed to consider the objections urged against the allowance of the
motion for alimony during the pendency of the appeal, attorneys' fees and court costs.
2. The first objection urged is that more than six months have elapsed since the entry of
final judgment in the trial court and the denial of the motion for a new trial.
new trial. The trial court's decision was rendered November 26, 1940. Formal judgment and
decree and order denying the motion for a new trial was made and entered upon the minutes
of the court December 17, 1940. Notice of appeal was served June 30, 1941, and filed in the
office of the clerk of Ormsby County July 2, 1941. It is admitted that no written notice was
given that the order denying the motion for a new trial had been made and entered in the
minutes of the trial court. Appellant takes the position that the time to appeal from an order
denying a motion for a new trial does not begin to run until after the giving of such a notice.
This position of appellant is correct and is sustained by the opinion in the case of Smith v.
Southern Pacific Co., 50 Nev. 377, 262 P. 935, 936. It is true that subdivision 2 of section
5329, Nev. Rev. Laws, as amended by Chap. 91, Statutes 1913, in effect at the time of the
rendition of the opinion in Smith v. Southern Pacific Co., supra, was repealed in 1937, and in
the same year a new section was enacted, sec. 10, subd. 2, of chapter 32, Stats. 1937. But the
similarity of the two sections is such as to make the reasoning employed in Smith v. Southern
Pacific Co., supra, apply with equal force to the new statute. At the time of the rendition of
said opinion the pertinent part of the then existent statute read:
An appeal may be taken: * * *
2. From an order granting or refusing a new trial * * * within sixty days after the order is
made and entered in the minutes of the court.
Subdivision 2 of section 10 of the New Trials and Appeals Act, as enacted in 1937, reads:
An appeal may be taken: * * *
2. From an order granting or refusing a new trial * * * within sixty days after service, by
the prevailing party in the action or proceeding upon the unsuccessful party thereto, of a
written notice that the order has been made and entered in the minutes of the court.
We may say here, as was said in Smith v. Southern Pacific Co., supra: "The section in
question is so clear to our minds that we find it difficult to elucidate."
3. No notice having been given of the order refusing a new trial, the service and filing of
the notice of appeal was timely.
Pacific Co., supra: The section in question is so clear to our minds that we find it difficult to
elucidate.
3. No notice having been given of the order refusing a new trial, the service and filing of
the notice of appeal was timely.
4. The second objection to the granting of the motion is that judgment was entered in favor
of appellant and against respondent, therefore appellant was the prevailing party and had no
ground for appeal. Section 8883 N. C. L. provides, in part: Any party aggrieved may appeal
in the cases prescribed in this title. In the case of Kondas v. Washoe County Bank, 50 Nev.
181, 254 P. 1080, 1081, this court approved the following definition of an aggrieved person:
Every person aggrieved' includes every person whose rights were in any respect concluded
by the judgment. In this case appellant, defendant in the action in the lower court prayed for
separate maintenance. The trial court decreed her an absolute divorce. We think such a
situation brings appellant within the definition of an aggrieved person.
The third objection is that appellant has taken advantage of a part of the judgment, and is
therefor precluded from attacking it or prosecuting an appeal therefrom. During the course of
the trial, appellant here and defendant in the lower court made application for additional
allowances for attorneys' fees and for funds to sustain herself during the pendency of the
action. The court allowed $75 for additional attorneys' fees, and the sum of $50 for support
and maintenance of appellant and defendant for a period of ten days. Of this amount
respondent paid to the attorneys for the appellant the sum of $32, and it is the payment of this
sum upon which respondent relies in urging that the appellant is precluded from attacking the
judgment or prosecuting the appeal. In the case of Cunningham v. Cunningham, 60 Nev. 191,
at page 197, 102 P.(2d) 94, 105 P.(2d) 398, 400, this court quoted with approval the
following test taken from the case of State v. Central Pacific Railroad Co.,
Co., 21 Nev. 172, 26 P. 225, 1109, which should be applied in determining whether the
acceptance of the benefits of a judgment is a waiver of the right to appeal:
Where a reversal upon the plaintiff's appeal would require him to refund to the defendant
money or property which he has obtained under the judgment, there is reason for holding that
the acceptance of the benefits of the judgment is a waiver of the right to appeal. Having
elected to receive the fruits of the judgment, he is estopped from attempting to destroy the
very foundation of his right to receive them. But where a reversal would not work this result,
where his right to what he has received would still remain intact, it is difficult to conceive
why he should not be allowed to take what is now, and always will be, his, and still prosecute
his claim for more.
5. It seems apparent that a reversal of the judgment in this case would not require the
appellant to refund the money received for additional attorneys' fees and for maintenance
during the pendency of the action, and hence such acceptance is not a waiver of her right to
appeal.
6. The fourth point is that appellant's counsel, in collaboration with respondent's counsel,
prepared findings of fact, conclusions of law and a judgment and decree, and orally consented
to the filing thereof. Our understanding of respondent's position on this point is that by so
collaborating appellant waived the right to notice of the entry of the order denying the motion
for new trial. Certainly such action on the part of counsel for appellant does not show an
intention to clearly and unequivocally waive such a right, and hence they should not be held
to have waived the same. In Kondas v. Washoe County Bank, 50 Nev. 181, at page 188, 254
P. 1080, at page 1082, this court, in speaking of waiver, says:
It is not pointed out wherein such intention is clearly and unequivocally manifested, and
we fail to perceive any indication of such intention.
any indication of such intention. The procuring of the order in question was in no way
incident to the procuring of a new trial, and could in no way affect such a procedure. If the
plaintiff had taken steps for the purpose of procuring a new trial, a clear intention to waive the
written notice would have been signified.
There is no merit to this contention.
7. In objection five respondent urges that appellant's counsel were present in court when
the motion for new trial was denied, and immediately notified counsel for respondent that an
appeal would be taken. The affidavits of counsel for appellant deny that either of said counsel
were in court at the time the order denying the motion for new trial was made, and there is no
contradiction in the record of such affidavits. The affidavits of counsel for appellant deny that
any statement was made by them or either of them relative to an intention to appeal.
Respondent filed an affidavit stating that such is the fact. However, we deem the matter of no
importance. Such a statement, if made, could not be considered as a waiver by appellant of
her right to the notice of the entry of the order denying the motion for a new trial.
8, 9. The sixth and last objection made by respondent to the granting of the motion is that
the said appeal, if taken, would be without merit and frivolous, and would unnecessarily take
up the time of this court. In answer to said contention we quote with approval the following,
taken from the case of Cunningham v. Cunningham, 60 Nev. 191, at page 198, 102 P.(2d) 94,
105 P.(2d) 398 at page 401: Ordinarily grounds of bad faith, or lack of merit in an appeal
urged against allowances, should be considered only when perfectly manifest from the record.
The record is not before us and one of the purposes of the motion is to obtain such a record.
We are therefore not inclined to pursue in advance a futile investigation of motives or merits.
The wife, having perfected her appeal, is entitled to have the proceedings reviewed in this
court in the usual way.
10, 11. We now proceed to the question of allowances. Appellant's affidavit shows a
necessity for allowances, and these should be governed by the ability of the respondent to
pay. A copy of the written decision rendered by the trial court is before us, and the court
therein stated that he found the financial condition of the parties to be deplorable. After a
consideration of the evidence presented, which we must deem to have been full and complete,
the trial court found the plaintiff there and respondent here able to pay the sum of $50 per
month as alimony, and we conclude from such finding and the affidavits on file herein that
such a sum should be continued during the pendency of the appeal.
12-14. Owing to the financial condition of respondent, the sum of $150 will be allowed as
and for attorneys' fees. The sums of $25 for filing fee and $10 premium for undertaking on
appeal cannot be allowed. It appears from the wording of the notice of motion that these sums
have been paid. Cunningham v. Cunningham, 60 Nev. 191, at page 200, 102 P.(2d) 94, 105
P.(2d) 398. The sum of $220 is asked, as the cost of the preparation of the transcript of the
proceedings in the action tried in the First judicial district court, in and for the county of
Ormsby, State of Nevada, and the sum of $26.70 as and for the cost of the preparation of the
judgment roll in said action. These amounts are set forth as necessary in appellant's affidavit,
and we find no denial in the record as to the correctness of such sums.
It is ordered that respondent pay to the clerk of this court for the use of appellant in
prosecuting her appeal the following sums: $150 for attorneys' fees, $220 for the preparation
of the transcript, to be used as a bill of exceptions, and $26.70 for the preparation of the
judgment roll. It is further ordered that respondent pay to appellant the sum of $50 per month,
beginning with the 1st day of September 1941, and to continue during the pendency of this
appeal.
On Motion to Dismiss Appeal
December 4, 1941. 119 P.(2d) 883.
Where appeal had been taken from order denying motion for new trial as well as
from judgment, and it could not be ascertained from motion to dismiss appeal whether
motion went to appeal from judgment or appeal from order, or both, motion was too
general and would be denied.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action between Jennie Afriat and James J. Afriat. From an adverse judgment, the former
appeals. On motion to dismiss appeal. Motion denied.
See, also, 61 Nev. 321, 117 P.(2d) 83.
Bowen and Custer, of Reno, for Appellants.
Felice Cohn, of Reno, for Respondent.
OPINION
Respondent has presented a motion to dismiss the appeal.
The motion states that respondent will, through his undersigned counsel, move the court
to dismiss the appeal taken in the above-entitled action.
In this case an appeal has been taken from the order denying the motion for new trial, as
well as from the judgment and the whole thereof. It cannot be ascertained from the motion to
dismiss the appeal herein whether the motion goes to the appeal from the judgment or the
appeal from the order denying the motion for new trial, or both. It is, therefore, too general,
and is denied. Peri v. Jeffers, 53 Nev. 49, 292 P. 1, 293 P. 25, 298 P. 658; Coykendall et al. v.
Gray et al. 53 Nev. 113, 293 P. 436.
____________
61 Nev. 330, 330 (1942) State v. Pansey
THE STATE OF NEVADA, Respondent, v. PETER
PANSEY, Appellant.
No. 3349
ON MOTION TO STRIKE
January 30, 1942. 121 P.(2d) 441.
1. Criminal Law.
An appellant should not be penalized because clerk fails to attach bill of exceptions to record on appeal
as required by statute. Comp. Laws, sec. 11061, subd. 9.
2. Criminal Law.
Whether a transcript of the proceeding, containing all of the evidence, should be settled as a bill of
exceptions, is within trial judge's discretion.
3. Criminal Law.
A bill of exceptions is an important record, and the only mode by which it can be authenticated is the
signature of the judge, and, when so authenticated, it receives a high degree of credit, and hence it should
be complete in itself, with a formal beginning and ending, so that it may be known where it begins and
where it ends.
4. Criminal Law.
The judgment roll and bill of exceptions should not have been jumbled together by trial judge settling and
signing a volume of record on appeal which contained papers in addition to judgment roll as a bill of
exceptions, but the judge's signature and certificate of settlement gave such papers the effect of a bill of
exceptions, and supreme court could not strike anything from it. Comp. Laws, sec. 11081.
5. Criminal Law.
Even if failure to serve a correct copy of transcript on appeal on adverse party was equivalent to want of
service, such fact was no cause for striking out the bill of exceptions, the motion for which was made on
ground that bill was not settled and certified as required by law. Rules of Supreme Court, rule 13, par. 3.
Proceedings by the State of Nevada against Peter Pansey. From an adverse judgment,
defendant appeals. On motion for an order striking from the record on appeal volume two
thereof and parts of volume one. Motion denied.
Harold M. Morse and Madison B. Graves, both of Las Vegas, for Appellant.
Attorneys-General, and Roland H. Wiley, District Attorney, and V. Gray Gubler, Deputy
District Attorney, both of Las Vegas, for Respondent.
OPINION
This is a motion for an order striking from the record on appeal volume two thereof and
parts of volume one thereof. The motion is made on the ground that said matters are not
embraced in a bill of exceptions settled and certified as required by law. The parts of volume
one excepted from the motion to strike, constitute the record proper, or judgment roll, while
the papers sought to be stricken therefrom form no part of the record unless properly
contained in a duly settled and certified bill of exceptions. To volume two is attached the
following certificate:
I, Margaret Hinson, do hereby certify that I am now one of the duly appointed, qualified
and acting court reporters of the Eighth Judicial District Court of the State of Nevada, in and
for the County of Clark, and was such at all times herein mentioned, and that on the 26th day
of May, 1941, I was duly sworn by Hon. George E. Marshall, Judge of the above-entitled
court, to report all testimony and proceedings in the above-entitled action, and I further certify
that the foregoing 201 pages comprise a full, true and correct transcript of my shorthand notes
taken upon the trial of said action, of all the testimony offered and received, objections and
exceptions of counsel as to the reception of evidence, statements and rulings of the court
thereon, and all matters to which the same relate.
testimony offered and received, objections and exceptions of counsel as to the reception of
evidence, statements and rulings of the court thereon, and all matters to which the same
relate.
Dated this 9th day of August, 1941.
Margaret Hinson, Court Reporter.
The state contends that it does not constitute a bill of exceptions because it is not settled
and signed by the judge of the court as required by section 11081 N. C. L. But it was settled
and signed by the judge on September 4, 1941, as appears from his certificate annexed
thereto, and was filed in the action September 8, 1941, with volume one, to which is annexed
a similar certificate of the judge.
1, 2. It is also contended that it should be stricken because it is not attached to the record in
conformity with paragraph 9 of sec. 11061. While this is a duty imposed on the clerk, an
appellant ought not to be penalized because the clerk fails to so attach it. There can be no
objection to a transcript of the proceeding, containing all of the evidence, being settled as a
bill of exceptions. This is entirely within the discretion of the trial judge in any given case.
3. Does the fact that the judge also settled and signed volume one, which contains a
number of papers in addition to the judgment roll, as a bill of exceptions also save such
papers from the motion to strike? The judgment roll and bill of exceptions should not be
jumbled together in such a manner. It is a bad practice. As said in State of Nevada v. Huff, 11
Nev. 17: A bill of exceptions is a record, and a very important record. The only mode by
which it can be authenticated is the signature of the judge; and when so authenticated, it
receives a very high degree of credit. It ought not therefore to be composed of loose and
scattered papers, but should be complete in itself, with a formal beginning and ending, so that
it may be known where it begins and where it ends. * * * 4.
4. However, we must content ourselves with calling attention to the objectionable
character of such a practice. The judge's signature and certificate of settlement give such
papers the force and effect of a bill of exceptions, and we are not authorized to strike anything
from it. Ryan v. Landis, 58 Nev. 253, 74 P.(2d) 1179, 75 P.(2d) 734.
5. In respondent's answering brief on this motion is contained an affidavit of the district
attorney of Clark County in which it is averred that the purported copy of the transcript on
appeal served on respondent contained no copy of the order of settlement of the district judge,
and that respondent had no knowledge of the fact, if such is a fact, that said order was
incorporated in the original transcript on appeal, until the service upon it of appellant's
answering brief. In this regard it is contended that rule XIII, par. 3, requires that a copy of the
transcript be served upon the opposite party, and that the bill of exceptions should be striken
because failure to serve a substantially correct copy is equivalent to want of service. Even if
this is so, it is no cause to strike the bill of exceptions, the motion for which is put on the
ground that such bill was not settled and certified as required by law. The motion to strike
should be denied in its entirety.
It is so ordered.
On the Merits
August 3, 1942. 128 P.(2d) 464.
1. Receiving Stolen Goods.
Statute punishing as a felony receiving stolen goods of the value of more than $50
with knowledge that they were stolen was not repealed by statute punishing as a gross
misdemeanor receiving stolen goods without regard to value or knowledge. Comp.
Laws, secs. 10335, 10543, as amended by Stats. 1931, c. 117, secs. 1, 2.
2. Criminal Law.
The legislature has exclusive power, subject to constitutional limitations, to define
the offense of receiving stolen goods, and to make it a gross misdemeanor only,
regardless of the value of the property. Comp. Laws, sec. 10543, as amended by Stats.
1931, c. 117, sec. 1.
3. Criminal Law.
The Legislature may make the doing of certain acts criminal without regard to the intent
of the doer.
Criminal intent is an essential element of the crime of receiving stolen goods.
5. Criminal Law.
The statute punishing receiving stolen goods of a value of more than $50 with
knowledge that they were stolen as a felony and the statute punishing the receiving of
stolen goods without regard to value or knowledge as a gross misdemeanor when
construed together indicate a legislative intent to punish receiving stolen goods as a
felony if the value of the property is $50 or more and knowledge that the goods had been
stolen is alleged and proved, and as a gross misdemeanor where such knowledge is not
relied upon. Comp. Laws, secs. 10335, 10543, as amended by Stats. 1931, c. 117 sec. 1.
Recitation in statute punishing receiving stolen goods as a gross misdemeanor without
regard to intent or value of the property that it is a supplemental act indicates that that
statute was intended as an addition to former statute punishing as a felony receiving
stolen goods of the value of $50 or more with knowledge that they were stolen,
notwithstanding provision that all conflicting acts are repealed. Comp. Laws, secs.
10335, 10543, as amended by Stats. 1931, c. 117, secs. 1, 2.
7. Criminal Law.
Defendant who was given preliminary hearing and was prosecuted under statute
defining receiving stolen goods under certain circumstances as a felony was not entitled
to a preliminary examination on any charge within the provisions of statute punishing
receiving stolen goods under other circumstances as a gross misdemeanor, merely
because he was erroneously sentenced under the latter statute. Comp. Laws, secs. 10335,
10543, as amended by Stats. 1931, c. 117, secs. 1, 2.
8. Criminal Law.
Under the statute providing that an accused may be held to answer for a public offense
other than that charged in the complaint, a defendant was not entitled to another
preliminary hearing because the information on which he was tried did not follow the
complaint in the justice's court. Comp. Laws, sec. 10785.
9. Criminal Law.
Where the information upon which a defendant is tried states a separate offense from
that for which he was held to answer, or from that with which he was charged in earlier
informations, he is entitled to another preliminary examination.
10. Criminal Law.
In prosecution for receiving stolen goods where complaint before magistrate described
goods as 54 cases of liquor of approximate wholesale value of $1,000 and specified no
brand, and charge in information was substantially the same except that it specified 56
cases of liquor and the brands, and defendant was at all times advised with regard to the
identity of the property he was accused of unlawfully receiving, the variations in the
description did not affect his substantive rights so as to entitle him to a new preliminary
examination. Comp. Laws, sec. 10335.
Informations are not required to be verified.
In prosecution for receiving stolen goods of a value in excess of $50, where goods
alleged to have been unlawfully received consisted of over a dozen items and value of
property was greatly in excess of $50, allowance of amendment of description of
property in information by interlineation was within discretion of trial court. Comp.
Laws, sec. 10335.
13. Criminal Law.
In the absence of a showing of prejudice, conviction of receiving stolen goods would
not be reversed because of slight changes in information by interlineation made in open
court by leave of court. Comp. Laws, sec. 10335.
14. Criminal Law.
In prosecution for receiving stolen goods, where state's instruction regarding essential
elements of offense was read to jury but judge by mistake endorsed written instruction
refused and handed it to jury with other instructions which also covered essential
elements of offense, and record was otherwise free from error and evidence sustained a
verdict of guilty, judge's mistake did not result in a miscarriage of justice or prejudice
defendant. Comp. Laws, secs. 10996, 10998, 11004, 11028, 11266.
15. Criminal Law.
Where instruction given by trial court stated rule relating to intent and guilty knowledge
required for a conviction of receiving stolen goods equally well as rule was stated in
defendant's instruction, refusal of defendant's requested instruction was not error. Comp.
Laws, sec. 10335.
In prosecution for receiving stolen goods, defendant was not entitled to instruction
telling jury that at time of receiving the stolen property defendant must have known that
it had been stolen from the owner. Comp. Laws, sec. 10335.
17. Criminal Law.
In prosecution for receiving stolen goods, where instruction given by court followed
language of statute with reference to accused's intention to prevent the owner from
again possessing property, defendant was not entitled to instruction which told jury
that goods must have been received with fraudulent intent of depriving owner of the
immediate possession thereof.
to accused's intention to prevent the owner from again possessing property, defendant
was not entitled to instruction which told jury that goods must have been received with
fraudulent intent of depriving owner of the immediate possession thereof. Comp. Laws,
sec. 10335.
Where defendant was prosecuted under statute punishing receiving stolen goods as a
felony in certain circumstances, imposition of sentence punishing other cases of
receiving stolen goods as a gross misdemeanor was error, and defendant was required to
be resentenced. Comp. Laws, secs. 10335, 10543, as amended by Stats. 1931, c. 117,
secs. 1, 2.
Peter Pansey was convicted of receiving stolen goods, and he appeals. Affirmed and
remanded with directions.
Gray Mashburn, Attorney-General, W. T. Mathews, and Alan Bible, Deputy
Attorneys-General, and Roland H. Wiley, District Attorney, of Las Vegas, for Respondent.
OPINION
This is an appeal from a verdict of conviction, judgment, order denying a motion for a new
trial, and order denying a motion in arrest of judgment, in the eighth judicial district court,
Clark County. Appellant was prosecuted under the provisions of sec. 10335 N. C. L. 1929,
being sec. 383 of the crimes and punishments act which became effective January 1, 1912.
Said section is as follows: Every person who, for his own gain, or to prevent the owner from
again possessing his property, shall buy or receive stolen goods, or anything the stealing of
which is declared to be larceny, or property obtained by robbery, burglary, or
embezzlement, knowing the same so to have been obtained, shall upon conviction, be
imprisoned in the state prison for a term not exceeding five years, or by a fine not
exceeding one thousand dollars, or both; and every such person may be tried, convicted,
and punished, as well before as after the trial of the principal.
obtained by robbery, burglary, or embezzlement, knowing the same so to have been obtained,
shall upon conviction, be imprisoned in the state prison for a term not exceeding five years, or
by a fine not exceeding one thousand dollars, or both; and every such person may be tried,
convicted, and punished, as well before as after the trial of the principal. No person convicted
of the offense specified in this section shall be condemned to imprisonment in the state
prison, unless the value of the thing bought or received shall amount to fifty dollars, but the
same shall be punished as provided in cases of petit larceny.
In 1929 the legislature enacted An act relative to receivers of stolen goods, and matters
pertaining thereto. Sections 10543-10545 N. C. L. 1929. Section 1 of this act was amended
in 1931, Stats. of Nevada, 1931, chap. 117, p. 196, and, as so amended, reads: Section 1.
Any person who shall receive or buy any goods or chattels or choses in action, or other
valuable thing whatsoever, that shall have been stolen from any other person or taken from
him by robbery, otherwise unlawfully or fraudulently obtained, or converted in any manner
contrary to any of the provisions of the act to which this act is supplemental, whether such
stealing or robbery shall have been committed either in the State of Nevada or in some other
jurisdiction, and whether such goods, chattels, choses in action, or other valuable thing shall
be received or bought from the thief, robber, or person so obtaining, taking, or converting
them, or from any other person, or shall receive, harbor or conceal any thief or robber
knowing him to be so, shall be guilty of a gross misdemeanor; and if such person is shown to
have or to have had possession of such goods, chattels, choses in action, or other valuable
thing within six months from the date of such stealing, robbery or unlawful or fraudulent
obtaining such possession shall be deemed sufficient evidence to authorize conviction, unless
such person shows to the satisfaction of the jury either {1) that the goods or chattels or
choses in action or other valuable thing were, considering the relations of the parties
thereto and in circumstances thereof, a gift; or {2) that the amount paid for the goods,
chattels, choses in action, or other valuable thing represented their fair and reasonable
value; or {3) that the person buying such goods, chattels, choses in action, or other
valuable thing knew of his own knowledge or made inquiries sufficient to satisfy a
reasonable man that the seller was in a regular and established business for dealing in
goods, chattels, choses in action, or other valuable thing of the description of the goods
purchased; or {4) that the person receiving or buying such goods, chattels, choses in
action, or other valuable thing, has simultaneously with the receipt or sale reported the
transaction to the police authorities of the municipality in which he resides."
(1) that the goods or chattels or choses in action or other valuable thing were, considering the
relations of the parties thereto and in circumstances thereof, a gift; or (2) that the amount paid
for the goods, chattels, choses in action, or other valuable thing represented their fair and
reasonable value; or (3) that the person buying such goods, chattels, choses in action, or other
valuable thing knew of his own knowledge or made inquiries sufficient to satisfy a reasonable
man that the seller was in a regular and established business for dealing in goods, chattels,
choses in action, or other valuable thing of the description of the goods purchased; or (4) that
the person receiving or buying such goods, chattels, choses in action, or other valuable thing,
has simultaneously with the receipt or sale reported the transaction to the police authorities of
the municipality in which he resides.
The only two changes made in section 1 by the 1931 amendment were, first, the
amendment of the expression high misdemeanor so as to read gross misdemeanor, and
second, the omission of the comma after the words fraudulent obtaining.
Section 2 of the act of 1929 and section 2 of the amendatory act of 1931 are identical, and
reads as follows: All acts and parts of acts in conflict with the provisions of this act are
hereby repealed.
Appellant contends that said sec. 10335 was repealed in its entirety by the later act, and
that he was therefore informed against, tried, and convicted under a statute which has not
been in effect for more than ten years. In support of this position he argues that the later
statute revises the entire subject matter of said section, and is inconsistent therewith and flatly
repugnant thereto. He points out that violation of sec. 10335 is a felony, whereas violation of
the later statute is a gross misdemeanor. He claims that the character of proof required both
by the prosecution and defense is entirely different in the two statutes. He asserts that under
no fair or reasonable construction can the two statutes be harmonized or reconciled.
under no fair or reasonable construction can the two statutes be harmonized or reconciled.
1-4. This court is of the opinion that sec. 10335 was not repealed by the amended act of
1929. Had it been the intention of the legislature that said section was to be entirely
superseded, it would have been a simple matter to amend it, or to specify it in the repealing
clause of the supplemental act. If the court were to adopt appellant's view, this state would no
longer have a statute making it a felony for a person, for his own gain or to prevent the owner
from again possessing the stolen property, to receive stolen goods of the value of $50 or more
though knowing at the time of such receiving that the goods had been stolen. One result of
this would be that a person could not be sentenced to the state prison for receiving stolen
goods of the value, say of fifty thousand dollars, notwithstanding such person had the
criminal intent and knowledge mentioned in sec. 10335. True, the legislature has the
exclusive power, subject to constitutional limitations, to define the offense of receiving stolen
goods, and to make it a gross misdemeanor only, regardless of the value of the property. And
that body may also make the doing of certain acts criminal, without regard to the intent of the
doer. State v. Zichfeld, 23 Nev. 304, 46 P. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800; State v.
Clark, 32 Nev. 145, 104 P. 593, Ann. Cas. 1912c, 754; 22 C. J. S. Criminal Law, sec. 30;
Wharton's Criminal Law (12th Ed.), sec. 143. But criminal intent is one of the essential
elements of the crime of receiving or buying stolen goods. State v. Pray, 30 Nev. 206, 94 P.
218; Wharton's Criminal Law (12th ed.), sec. 1231; 53 C. J., Receiving Stolen Goods, sec.
2, p. 503. There are various circumstances under which the receiving or buying of such goods
may be wholly innocent and free of any criminal intent or guilty knowledge.
If we were to hold that sec. 10335 has been entirely superseded by the act of 1929 and that
the latter act is complete in itself and revises the entire subject matter of the earlier
statute, then the only statute Nevada would have relating to the kind of crime under
discussion would be the amended act of 1929, making the mere act of receiving or buying
stolen goods a gross misdemeanor, regardless of criminal intent, guilty knowledge, or
criminal negligence.
complete in itself and revises the entire subject matter of the earlier statute, then the only
statute Nevada would have relating to the kind of crime under discussion would be the
amended act of 1929, making the mere act of receiving or buying stolen goods a gross
misdemeanor, regardless of criminal intent, guilty knowledge, or criminal negligence.
Amended sec. 10543 N. C. L. 1929, considered by itself and without reference to sec. 10335,
does not require that the person receiving or buying the stolen goods must do so for his own
gain, or to prevent the owner from again possessing his property, nor that he must know at the
time of such buying or receiving that the property had been stolen or otherwise unlawfully or
fraudulently obtained or converted.
5. There is serious doubt whether the amended act of 1929, if it can be given effect under
any circumstances, can be given such effect otherwise than by construing it with sec. 10335.
It does not seem unreasonable to believe that the legislature, in view of conflicting opinions
as to the meaning of the word knowing as used in such statutes as sec. 10335, and realizing
that many guilty persons have escaped conviction by raising a reasonable doubt in the minds
of juries as to whether, at the time of the receiving or buying, they knew that the goods had
been stolen, intended to prevent the escape of many such persons by providing in said
amended act of 1929 that a person shown to have or to have had possession of stolen goods
within six months from the date of the stealing, though not knowing that the property had
been stolen, may be found guilty of a gross misdemeanor unless he can show to the
satisfaction of the jury one of the four things specified in the last part of section 1 of that act.
Such a legislative intent might well account for the fact that violation of the provisions of
section 1 of said act is made a gross misdemeanor. The thought here would be that where
knowledge that the goods had been stolen is alleged and proved, the crime would be a felony
if the value of the property is $50 or more; but where such knowledge is not alleged or
relied upon, the crime would be only a gross misdemeanor.
property is $50 or more; but where such knowledge is not alleged or relied upon, the crime
would be only a gross misdemeanor. Regarded in this light, there would be no inconsistency
or repugnance between the amended act of 1929 and sec. 10335. The provision of amended
sec. 10543, relating to possession of the stolen goods within six months from the date of the
stealing, and extending to the end of that section, is in no way inconsistent with sec. 10335.
The same is true of other provisions in the first part of said section which have not been
discussed herein.
6. In arriving at the conclusion that the later statute does not repeal sec. 10335, the court
has been influenced to some extent by the fact that the act of 1929, before as well as after its
amendment in 1931, expressly recites that it is a supplemental act. This indicates that it was
intended not as a repeal of but an addition to sec. 10335. Words and Phrases, Perm. Ed., vol.
40, pp. 774, 775.
The court is not to be understood as deciding what construction should be put upon the
amended act of 1929, or whether it is invalid by reason of the ambiguity or uncertainty of
some of its provisions, or the omission of essential elements. The foregoing discussion has
been for the sole purpose of setting forth some of the reasons why, in our opinion, the act
does not repeal section 10335. We have not been cited to, nor have we found, any statute
similar to amended section 10543, and so are not advised whether another such statute exists,
and if so, whether the courts of any other jurisdiction have construed it. It would seem that
the act is in great need of legislative clarification.
7. Appellant claims that he has never had a preliminary hearing on any charge within the
provisions of amended section 10543, under which he was sentenced. He was not entitled,
however, to a preliminary examination on any charge within the provisions of amended
section 10543. That he was erroneously sentenced pursuant to that section does not change
the fact that he was prosecuted and convicted under section 10335; he was given a
preliminary hearing on the charge made against him under the latter section.
was given a preliminary hearing on the charge made against him under the latter section.
8. Appellant argues further that he was entitled to another preliminary hearing because the
information on which he was tried did not follow the complaint in the justice's court. We
think it did; but even if it did not, that alone would not have entitled him to another
preliminary examination, because under the provisions of section 10785 N. C. L. 1929,
accused may be held to answer for a public offense other than that charged in the complaint.
Appellant contends also that he was not accorded a preliminary hearing on the charge for
which he was finally tried. This contention is based upon variations in the description of the
stolen property. In the complaint filed with the committing magistrate the goods were
described as 54 cases of liquor of the approximate wholesale value of $1,000, no brand or
brands being specified. In the first information filed in the district court the property was
described as certain cases of liquor, of a value in excess of $50. In the first amended
information filed in said court there were two counts the first involving 48 cases of whiskey
of the wholesale value of about $900, the second, 4 cases of whiskey of the wholesale value
of more than $50. Each count described the whiskey in detail, giving the different brands and
the number of cases of each. Defendant's (appellant's) special demurrer to this information
was sustained, whereupon a second amended information was filed consisting of but one
count and wherein the property involved was described as 52 cases of whiskey of the
wholesale value of about $1,000. The different brands and number of cases of each are given
in detail. Defendant moved to quash this information, one of the grounds being that he had
not been given a preliminary examination on the charges therein contained. The district
attorney thereupon, with leave of court, amended the second amended information by
interlineation, changing the number of cases of whiskey from 52 to 54, changing "S cases
Old Granddad, 4J5 gallons" to "S cases Old Granddad, 1J5 gallons," and inserting "2 cases
Windsor quarts."
changing the number of cases of whiskey from 52 to 54, changing 8 cases Old Granddad, 4/5
gallons to 8 cases Old Granddad, 1/5 gallons, and inserting 2 cases Windsor quarts.
Defendant objected to the amendment by interlineation, and excepted when his objection was
overruled. His motion to quash was denied. At all stages of the proceedings after the filing of
the first information, defendant repeatedly made demands for another preliminary
examination, his demands being refused in each instance.
9, 10. The charge in the information on which appellant was tried is substantially the same
as that in the original complaint and in the earlier informations. It has not been shown that
there was any substantial variation in the identity of the stolen goods as shown by the
testimony at the preliminary examination and that given upon the trial. It is clear that
appellant could not have been misled by any of the slight variances in the description of the
goods which he was charged with unlawfully receiving. If the information upon which
appellant was tried had stated a separate and distinct offense from that for which he was held
to answer, or from that with which he was charged in the earlier informations, he would have
been entitled to another preliminary examination. State v. Ruemmele, 64 N. D. 248, 251 N.
W. 879. But such is not the case here, nor is there anything in the record to show that
appellant was not at all times well advised with regard to the identity of the property he was
accused of unlawfully receiving. The slight variations in description were clearly not such as
to affect his substantive rights.
11-13. The amendment, by interlineation, of the second amended complaint could not have
prejudiced appellant. The description of the goods alleged to have been unlawfully received
consists of more than a dozen items, and the value of the property listed in the second
amended information before the interlineation was greatly in excess of $50. In Nevada,
informations are not required to be verified.
not required to be verified. The amendments here were made in open court, by leave of court,
and entered in the minutes. They were clearly within the discretion of the court to allow, and
we certainly will not reverse the conviction simply because such slight changes were made by
interlineation, where there is no showing of prejudice. State v. Kelly, 176 La. 405, 146 So. 6;
Sandlin v. State, 3 Okl. Cr. 578, 107 P. 946.
Instruction No. 16, requested by the state and setting forth the essential elements of the
crime with which appellant was charged, was read to the jury along with the other
instructions given them; but on the written instruction which, with the other given
instructions, was handed to the jury when they retired for deliberation, the trial judge
inadvertently wrote his name after the word refused instead of after the word given. Our
statutes provide, among other things, that in charging the jury, the court shall state to them
all such matters of law as it shall think necessary for their information in giving their verdict,
section 10996 N. C. L. 1929; that upon each charge presented by either party and given, or
refused, the court shall indorse its decision, and shall sign it, section 10998 id.; that upon
retiring for deliberation, the jury may take with them, among other things the written
instructions given, section 11004 id.; and that every written charge, given or refused, with the
indorsements showing the action of the court, shall form part of the record, and any error in
the decision of the court thereon may be taken advantage of on appeal, section 11028 id.
In Musser v. Los Angeles & S. L. R. Co., 53 Nev. 304, 299 P. 1020, 1025, an instruction
requested by defendant (appellant), and which correctly stated the law, was read to the jury
with the other given instructions, but the trial judge indorsed it Not given. The instruction
related to assumption of risk, and no other instruction was given relative thereto. It was held
that the trial court's mistake was prejudicial error, but not because of the mistake alone. As
this court said in that case, The real question is whether or not the defendant was injured
by the instruction being marked 'Not given.'" The case of Terre Haute & I. R. R. Co. v.
Hybarger, 67 Ill.
real question is whether or not the defendant was injured by the instruction being marked
Not given.' The case of Terre Haute & I. R. R. Co. v. Hybarger, 67 Ill. App. 480, was cited,
wherein a correct instruction upon an important branch of the caseduty to exercise care in
approaching a crossingwas read to the jury but marked refused by probably inadvertent
mistake of the court. This was held reversible error, the court stating that It is impossible to
say that the case of the defendant was not prejudiced by this action of the court.
In the later Illinois case, People v. Duzan, 272 Ill, 478, 112 N. E. 315, in which the
defendant was convicted of embezzlement, a correct instruction requested by plaintiff in error
on the question of his good character was read to the jury, but mistakenly marked refused
and handed in that condition to the jury. The supreme court of that state held, from a
consideration of the whole case, that this mistake did not constitute prejudicial error.
This court, in the Musser case, found some four other errors besides the erroneous marking
of the instruction. In the last paragraph of the opinion the court said, While it may be true
that some of the errors pointed out were without prejudice, in view of the entire record we
feel that the defendant was prejudiced * * *. (Italics are by the court in the present case.)
Section 11266 N. C. L. 1929, being section 619 of our criminal procedure act, reads: No
judgement shall be set aside, or new trial granted, in any case on the ground of misdirection
of the jury or the improper admission or rejection of evidence, or for error as to any matter or
pleading or procedure, unless in the opinion of the court to which application is made, after
an examination of the entire case, it shall appear that the error complained of has resulted in a
miscarriage of justice, or has actually prejudiced the defendant, in respect to a substantial
right.
14. It is the opinion of this court, after examining the whole record, otherwise free of
error, that this single mistake of the trial court in indorsing instruction No.
the whole record, otherwise free of error, that this single mistake of the trial court in indorsing
instruction No. 16 refused and handing it in that condition to the jury with the other given
instructions, did not constitute reversible error. The instruction was actually read to the jury
as required by section 10996 N. C. L. 1929. The subject matter of the instruction was given in
another instruction, No. 13, by the court of its own motion. The information, setting forth all
the essential elements of the crime with which defendant was charged, was read to the jury by
the clerk at the beginning of the trial. In instruction No. 14, given by the court of its own
motion, the charging part of the information, in its entirety, was again given to the jury. Thus
the jury was fully and clearly advised a number of times regarding the essential elements of
the offense before the instructions were handed to the jury, and it is to be presumed that
counsel also discussed these matters fully in their arguments. The trial judge's mistake in
indorsing the instruction refused was wholly inadvertent. The evidence was amply
sufficient to sustain the verdict; in his motion for a new trial defendant did not give, as one of
the grounds, that the verdict was contrary to the evidence. In view of the foregoing, the court
is of the opinion that the judge's mistake complained of did not result in a miscarriage of
justice, nor did it prejudice the defendant in respect to any substantial right.
15. The trial court's refusal to give defendant's requested instruction relating to intent and
guilty knowledge was not error, as the rule enunciated therein was fully and correctly stated
in instruction No. 16. 23 C. J. S., Criminal Law, section 1304, p. 889. The requested
instruction contained this sentence: The receiver must know that the goods were stolen, and
this knowledge must exist at the very instant of the receiving; otherwise the crime does not
exist. In said instruction No. 16 the court instructed the jury that before they could convict
the defendant they must find from the evidence beyond a reasonable doubt, third, that the
defendant when he received such property, if you find that he did receive it, knew that it
was stolen property."
that the defendant when he received such property, if you find that he did receive it, knew that
it was stolen property. Conceding that the language used in the requested instruction is good
law, the rule was stated at least equally as well in the given instruction No. 16.
16, 17. Another instruction requested by defendant but refused by the court reads, in part,
that to justify a conviction it must be shown beyond a reasonable doubt that at the time of
receiving the stolen property accused must have known that it had been stolen from the
owner and that the goods were received by accused with the fraudulent intent of depriving
the owner of the immediate possession thereof, or for his own gain. Under said section
10335 it is our understanding that if the accused, at the time of receiving or buying the goods,
knows that they had been stolen, it is not necessary to show further that he knows they were
stolen from the owner. With reference to the criminal intent, the jury was told in two other
instructions, one given by the court of its own motion and the other at the request of the state,
that to justify a conviction the jury must find beyond a reasonable doubt that accused's
intention was to receive the property for his own gain, or to prevent the owner from again
possessing it. This followed the language of the statute, and it was not error to refuse the
requested instruction using the expression immediate possession.
Other assignments of error have received careful consideration, but are not of sufficient
merit to call for any discussion.
18. It was error for the trial court to sentence appellant under the provisions of amended
section 10543. He should have been sentenced under section 10335. The statute gives this
court the power to modify the erroneous judgement; we think it better, however, that in this
case the correction be made by the trial court.
The verdict of the jury, the order denying the motion for a new trial, and the order denying
the motion in arrest of judgment, are affirmed; but the cause is remanded to the district
court, and that court is directed to pronounce judgment in accordance with the provisions
of section 10335 N. C. L.
remanded to the district court, and that court is directed to pronounce judgment in accordance
with the provisions of section 10335 N. C. L. 1929.
November 4, 1942. 130 P.(2d) 264.
The rule that courts cannot encroach on the exercise by the legislature of its power to
define and punish crime is subject to constitutional limitations.
2. Criminal Law.
The legislature cannot lawfully make it a crime to receive or buy stolen goods
without regard to guilty knowledge, criminal intent, or criminal negligence, unless the
statute includes special circumstances of such a nature as to make it unnecessary under
the law to allege or prove such knowledge, intent or negligence. Comp. Laws, sec.
10543.
Attorneys-General, and Roland H. Wiley, District Attorney, of Las Vegas, for Respondent.
OPINION
In our original opinion we said that criminal intent is one of the essential elements of the
crime of receiving or buying stolen goods. Petitioner contends that the legislature may
lawfully provide that certain acts will constitute the criminal offense of receiving or buying
stolen goods regardless of any criminal intent. He cites State v. Serritella, 89 N. J. L. 127, 97
A. 770. The statute involved in that case provided that any person who shall buy or purchase,
among other things, metal pipe or junk of metallic nature, from any minor under the age of
sixteen years, which may have been stolen, shall be guilty of a misdemeanor.
the age of sixteen years, which may have been stolen, shall be guilty of a misdemeanor. The
supreme court of New Jersey held in that case that the state was not bound to prove that the
defendant knew the goods were stolen. There is no such or any similar or comparable
provision in amended section 10543 N. C. L. 1929.
1, 2. The rule that courts cannot encroach on the exercise by the legislature of its power to
define and punish crime is subject to constitutional limitations. State v. Park, 42 Nev. 386,
178 P. 389; 16 C. J. S., Constitutional Law, sections 151, subsection f, 580. Counsel has cited
no authority, and we are satisfied that none can be found, holding that the legislature can
lawfully make it a crime to receive or buy stolen goods without regard to guilty knowledge,
criminal intent, criminal negligence, unless the statute includes special circumstances of such
a nature as to make it unnecessary, under the law, to allege or prove such knowledge, intent,
or negligence. The provision in the New Jersey statute above referred to relating to the buying
of certain kinds of stolen goods from minors under the age of sixteen years is one example of
such special circumstances.
Other points made in the petition for rehearing do not, in our opinion, require any
discussion.
The petition is denied.
____________
61 Nev. 350, 350 (1942) Garaventa Co. v. Dist. Court
THE STATE OF NEVADA, Ex Rel. GARAVENTA LAND & LIVESTOCK COMPANY, a
Corporation, Relator, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Washoe, and HONORABLE L. O.
HAWKINS, the Presiding Judge Thereof, Respondents.
No. 3377
August 4, 1942. 128 P.(2d) 266.
1. Certiorari.
Generally, the right to certiorari is confined to parties to prior proceedings, and the writ will not be
granted to a stranger to the record if the matter to be reviewed is a judgment or order of court made or
entered in a case litigated inter partes.
2. Certiorari.
Writ of certiorari is available to a party beneficially interested. Comp. Laws, secs. 9231, 9232.
3. Certiorari.
The word party, as used in statute making writ of certiorari available to a party beneficially interested,
means a party in form or in substance to the proceeding sought to be reviewed so as to be concluded by the
determination thereon. Comp. Laws, secs. 9231, 9232.
4. Parties.
In suit between individuals asserting conflicting claims to right of possession and ownership of certain
shares of capital stock of corporation, the corporation had no right to intervene. Comp. Laws, sec. 8563.
An appeal may not be taken from an order denying a motion to set aside a judgment or order, where
motion was made by a stranger to the record but seeking to make himself a party to the record for the
purpose of making the motion.
6. Motions.
Generally, a stranger to a suit cannot appear therein and make a motion.
7. Injunction.
Generally, only a party to suit can move to dissolve an injunction.
8. Certiorari.
Where corporation was unable to intervene or to make motion in district court in action between
individuals asserting conflicting claims to right of possession and ownership of certain shares of capital
stock of such corporation, the corporation was without a plain, speedy or adequate remedy and was
entitled to writ of certiorari to review order restraining it from performing certain
acts.
was entitled to writ of certiorari to review order restraining it from performing certain acts. Comp. Laws,
secs. 8563, 9231, 9232.
Original Proceeding in certiorari by the State of Nevada, upon the relation of Garaventa
Land & Livestock Company, against the Second Judicial District Court of the State of
Nevada in and for the County of Washoe and Honorable L. O. Hawkins, the Presiding Judge
thereof, to review a restraining order. Writ of certiorari granted.
Wm. M. Kearney and Robert Taylor Adams, both of Reno, for Relator.
John Davidson and H. R. Cooke, both of Reno, for Respondents.
OPINION
By the Court, Orr. J.:
Relator petitions for a writ of certiorari and alleges therein that the Second judicial district
court of the State of Nevada, in and for Washoe County, in action numbered 70117, entitled
Eleanor Gardella as Administratix of the Estate of John Garaventa, Deceased, Plaintiff, v.
Joseph A. Garaventa, Defendant, exceeded its jurisdiction in the issuing of a certain
restraining order wherein relator is restrained from performing certain acts, which relator
alleges to be an unlawful interference with the conduct of its business. We are asked to
determine whether petitioner is a person entitled to invoke the remedy of certiorari.
Relator is a corporation organized under the laws of the State of Nevada, and is not a party
to the action in the district court, no jurisdiction having been acquired over it for the reason
that it was not named as a party nor was it served, and it has not entered an appearance in that
suit as a party. State ex rel. Nevada Douglass Gold Mines v. District Court, 51 Nev. 206
Gold Mines v. District Court, 51 Nev. 206, 273 P. 659.
Suit No. 70117 in the district court is between individuals asserting conflicting claims to
the right of possession and ownership of certain shares of the capital stock of relator
corporation.
Upon the filing of the petition this court entered an order directed to respondents to show
cause why the writ should not issue as asked for. Respondents answered the said show-cause
order and have denied the right of the petitioner to the writ of certiorari, contending that the
corporation has a plain, speedy and adequate remedy. Section 9231 N. C. L.
1-3. It is the general rule that the right to certiorari is confined to parties to the prior
proceedings. 14 C. J. S., Certiorari, p. 196, section 47, note 64. And the writ will not be
granted to a stranger to the record if the matter to be reviewed is a judgment or order of the
court made or entered in a case litigated inter partes. Mack v. District Court, 50 Nev. 318,
258 P. 289. The statutes of this state make the writ available to a party beneficially interested.
Section 9232 N. C. L. In the case of Electrical Products Corporation v. District Court, 55
Nev. 8, 23 P.(2d) 501, 503, this court construed the word party as defined in the statute to
mean a party in form or in substance to the proceeding sought to be reviewed so as to be
concluded by the determination thereof. And the writ has been awarded to persons in
causes not litigated inter partes where it was apparent that they had rights which were
adversely affected by the proceedings. Electrical Products Corporation v. District Court,
supra. See, also, McCarthy v. Public Service Commission, 94 Utah 304, 77 P.(2d) 331. The
petition presented by relator establishes that it is a party beneficially interested as hereinabove
defined, and is entitled to the issuance of the writ if it has no appeal and in the judgment of
this court there is no plain, speedy and adequate remedy.
4. Respondents assert that relator has a remedy by intervention.
intervention. The right of intervention is provided for in section 8563 N. C. L., which makes
that right available only to one who has an interest in the matter in litigation, in the success or
failure of the parties, or an interest against both. Analyzing the position of relator in the light
of the provisions of said section 8563, we conclude that the corporation itself certainly can
have no interest in the success of either party to suit No. 70117, nor an interest against both,
nor have an interest in the matter in litigation. The ownership of the stock is a matter for the
respective claimants to litigate. It seems clear that the corporation would have no right to
intervene under the provisions of section 8563 N. C. L.
If intervention is not permitted, has the corporation any other remedy available in the
district court? A number of California cases have been cited in support of the contention that
it has. In California a remedy is provided whereby a stranger to the record may have himself
made a party, by moving to set aside the judgment or order, and in the event of an adverse
ruling, appeal. This California practice, it will be noted from an examination of the cases, is
one established by the courts without the aid of any statute. See: Title Insurance & Trust Co.
v. California Development Co., 159 Cal. 484, 114 P. 838, page 840, column 1. We have no
statute in this state authorizing limited intervention by mere motion. We cannot follow the
California rule unless we are willing to adopt such a practice in this state without the aid of
any statute. While we are much impressed with the desirability of a procedure of that kind,
making possible an opportunity for a lower court, before resort to this court is had, to first
determine whether or not it has acted in excess of jurisdiction and, if found to have so acted,
to correct the error, yet we feel that authorization for such procedure should come from the
legislature.
5, 6. This court has heretofore rejected the practice, prevailing in California, of allowing
an appeal from an order denying a motion to set aside a judgment or order, made by a
party making himself a party to the record for the purpose of making the motion.
prevailing in California, of allowing an appeal from an order denying a motion to set aside a
judgment or order, made by a party making himself a party to the record for the purpose of
making the motion. In the case of State ex rel. Pacific States Sec. Co. v. District Court, 48
Nev. 53, at page 60, 226 P. 1106, it was held that section 5327 Rev. Laws 1912 (now section
8883 N. C. L.), in giving the right of appeal to an aggrieved party means parties who are
named as such in the record and who, as such, are served with process or enter an appearance.
The petitioner in the case of State ex rel. Pacific States Sec. Co. v. District Court, supra, made
a special appearance by moving to quash the service of summons. Such appearance as was
made was held not to bring the movant within the definition of an aggrieved party. Further,
as a general rule a stranger to a suit cannot appear therein and make a motion. 42 C. J. 475,
476, note 90; Bennett v. Wilson, 122 Cal. 509, 55 P. 390, 68 Am. St. Rep. 61; United States
Bank v. Kendall, C. C., 179 F. 914; In re Aveline's Estate, 53 Cal. 259; 18 Cal. Jur. p. 650,
par. 5, note 13.
7. It is generally held that only a party to the suit can move to dissolve an injunction. 32 C.
J. p. 408, par. 699.
8. The corporation being unable to intervene or to move in the action in the district court,
then it is without a plain, speedy, or adequate remedy, and is therefore entitled to a writ of
certiorari.
Respondents have urged certain propositions relative to the rights of a corporation where
its stock is entirely, or nearly so, owned by an individual, when that individual is a party to a
suit. We think that this question should properly be reserved for determination until final
decision on the return to the writ.
It is ordered that the writ of certiorari issue as prayed.
____________
61 Nev. 355, 355 (1942) Nevada Indus. Comm'n v. Demosthenes
NEVADA INDUSTRIAL COMMISSION, Appellant, v. PETER DEMOSTHENES, as the
Father and Guardian of Elias Demosthenes, a Minor, Respondent.
No. 3360
August 26, 1942. 128 P.(2d) 746.
1. Workmen's Compensation.
That section of the industrial insurance act dealing with notice of injury is not applicable to the section
dealing with accident benefits for an injured employee. Comp. Laws, secs. 2704, 2716.
Since the industrial insurance act specifies no procedure for the presentation of claims for accident
benefits, any reasonable method, pursued within a reasonable time, is sufficient. Comp. Laws, sec. 2704.
Where minor employee was injured on March 27, and report of accident was mailed to and received by
the industrial commission on April 1, and on three separate occasions, once in April, once in May, and
once in June, employee's father went to commission's office for purpose of filing accident claim but was
prevented from doing so because of absence of chairman of commission or refusal of chairman to file
claim, efforts to file claim for accident benefits were reasonable, and timely, so as to entitle employee to
accident benefits. Comp. Laws, secs. 2704, 2716.
Where employer's report to industrial commission of employee's accident was not signed by the employee
or by a person in his behalf, employee was barred from allowance under the industrial insurance act for
compensation based on temporary total disability. Comp. Laws, sec. 2716.
An injured employee's claim for compensation under the industrial insurance act will not be barred
because notice of accident is sent to industrial commission by mail other than registered mail or is
delivered and left with the commission. Comp. Laws, sec. 2716.
Industrial commission's refusal to permit injured employee's father to file a claim for compensation under
the industrial insurance act afforded no excuse for failure to give notice to the commission of the accident
as required by statute, though such refusal did excuse the failure to file a claim for compensation. Comp.
Laws, sec. 2716.
The filing of action against industrial commission in district court for compensation under the industrial
insurance act did not constitute the statutory notice of accident as required by statute. Comp. Laws, sec.
2716.
Action by Peter Demosthenes, as the father and guardian of Elias Demosthenes, a minor,
against the Nevada Industrial Commission, to recover under the Nevada Industrial Insurance
Act for hospital expenses and medical services and for one month's compensation. From a
judgment in favor of the plaintiff, and from an order denying defendant a new trial, the
defendant appeals. Order denying new trial affirmed, and judgment modified and, as
modified, affirmed.
C. E. Horton, of Ely, for Appellant.
Gordon W. Rice, of Reno, for Respondent.
OPINION
On March 27, 1940, Elias Demosthenes, a minor and employee of Velvet Ice Cream
Company, a corporation, was hauling some boxes in a company truck to the corporation's
new location in the city of Reno. It was snowing heavily, and when he reached a street
intersection the driver of another car, proceeding south, lost control of his vehicle, which
collided with the ice cream company's truck, threw Demosthenes out and ran over him. He
was taken to a hospital where he remained for fourteen days. For about a month after leaving
the hospital he continued to visit the doctor who had attended him while in the hospital. He
was totally disabled for more than a month after the accident happened.
disabled for more than a month after the accident happened. All the hospital expenses,
including the services of two nurses, but not including the services of the doctor, were paid by
respondent, who is Elias's father and guardian, and secretary-treasurer of said corporation.
The doctor has not been paid for any of his services.
Some years before the accident the corporation elected to be governed by the provisions of
the Nevada industrial insurance act, and since that time has paid all premiums and made all
reports required by that act. The original act is chapter 111 of the 1913 Statutes of Nevada,
pp. 137-153. As amended to the year 1929, the act is to be found in vol. 2, N. C. L. 1929,
sections 2680-2731. Further amendments to and including the year 1941 appear in vol. 1 of
the 1931-1941 supplement to N. C. L. 1929, at pp. 310-325.
Within two or three days after the accident the corporation filled out and signed, on one of
the regular forms issued by appellant, an Employer's Report of Accident to Employee. This
report was mailed to appellant and received by it on April 1, 1940. The report was not sent by
registered mail.
On three separate occasions, once in April, another time in May, and the last time in June
1940, respondent went from Reno to the office of the commission in Carson City for the
purpose of filing an accident claim for his son Elias. On the first occasion the chairman of the
commission was absent, and the others in the office were unable to find certain files. On the
second visit the chairman was absent in another city on official business, and was not
expected back for two weeks. Respondent made his third visit to the office of the commission
in the first part of June. The chairman asked him what he wanted, to which respondent
replied: I came over to file a claim for the injury of my son when working for the Velvet Ice
Cream Company. Thereupon another man in the office told respondent that he had no claim,
adding: "The boy has been working there and you have not been reporting him."
adding: The boy has been working there and you have not been reporting him. Respondent
attempted to explain that his son had only commenced to work for the corporation early in
March, but the other man repeated that respondent had no claim and then said: You better
leave us alone and get out. This man then left through the back door, and respondent, after
waiting a couple of minutes, asked the chairman whether he could file his claim for the
injury. The chairman then also informed respondent that he had no claim and refused to allow
him to file any kind of a claim.
Elias Demosthenes had never worked for the corporation until it employed him early in
March 1940. His name, therefore, had never appeared previously in the monthly pay roll
reports made by the corporation to the commission. The occasion of his being employed by
the corporation in March 1940 was the moving of its equipment to a new location, requiring
the hiring of some five or six extra men, Elias being one of them. After he commenced
working for the corporation, his name was included in the monthly pay roll reports while he
continued in its employ.
The doctor's bill for professional services amounted to $150. He has at all times billed
respondent for his services and has never filed a claim with the commission. Appellant
admits that if he had filed such a claim it would have been rejected. The hospital bill,
exclusive of nursing, amounted to $147.40. The nurses' bills aggregated $120. The expenses
for X-rays amounted to $75.
Appellant refused to pay any of the foregoing, and respondent commenced action in the
Second judicial district court, Washoe County. That court, after trial on the issues joined,
awarded respondent (plaintiff) a judgment for the full amount of the said expenses and
services, also for $30 for one month's compensation, and for costs amounting to $54.40,
making a total of $558.80. Defendant's (appellant's) motion for a new trial was denied, and
this appeal is from said judgment and from the order denying a new trial.
trial was denied, and this appeal is from said judgment and from the order denying a new
trial.
In the original industrial insurance act there was no provision relating to accident
benefits; but in 1917, section 23 was amended so as to provide for such benefits. Stats. of
Nevada, 1917, chap. 233, pp. 439-441. This section was further amended in 1919, 1925, and
1941. The 1925 amendment, Stats. of Nevada, 1925, chap. 61, p. 97, which remained in
effect until March 7, 1941, may be found in vol. 2, N. C. L. 1929, section 2704. The first
paragraph reads: Every injured employee within the provisions of this act shall be entitled to
receive, and shall receive promptly, such medical, surgical and hospital or other treatment,
including nursing, medicines, medical, and surgical supplies, crutches, and apparatus,
including artificial members, as may reasonably be required at the time of the injury and
within six months thereafter, which may be further extended by the Nevada industrial
commission for and additional period of one year. The benefits conferred by this paragraph
upon the injured employee shall hereafter be termed Accident Benefits.' The section further
provides for the collection of pay roll premiums from employees in order to provide a fund to
take care of such accident benefits. In the same section it is provided that: The state
insurance fund provided for in this act shall not be liable for any accident benefits provided
by this section, but the fund provided for accident benefits shall be a separate and distinct
fund, and shall be so kept. There is also a provision in said section that upon the occurrence
of an injury to an employee, the employer, after first rendering all necessary first aid, shall
forthwith notify the commission of such accident, giving the name of the injured employee,
the nature of the accident and where and by whom the injured employee is being treated, and
the date of the accident.
In the same 1917 act which amended said section 23 there was added a new section
numbered 34 1/2. Stats.
of Nevada, 1917, chap. 233, p. 448, N. C. L. 1929, section 2716. This section reads as
follows: Notice of the injury for which compensation is payable under this act shall be given
to the commission as soon as practicable, but within thirty days after the happening of the
accident. In case of the death of the employee resulting from such injury, notice shall be given
to the commission as soon as practicable, but within sixty days after such death. The notice
shall be in writing and contain the name and address of the injured employee and state in
ordinary language the time, place, nature and cause of the injury and be signed by said injured
employee, or by a person in his behalf, or in case of death, by one or more of this dependents
or by a person on their behalf. No proceeding under this act for compensation for an injury
shall be maintained unless the injured employee, or some one in his behalf, files with the
commission a claim for compensation with respect to said injury within ninety days after the
happening of the accident, or, in case of death, within one year after such death. The notice
required by this section shall be served upon the commission, either by delivery to and
leaving with it a copy of such notice, or by mailing to it by registered mail a copy thereof in a
sealed, postpaid envelope addressed to the commission at its office, and such mailing shall
constitute complete service; the failure to give such notice or to file such claim for
compensation within the time limit specified in this section shall be a bar to any claim for
compensation under this act, but such failure may be excused by the commission on one or
more of the following grounds: (1) That notice for some sufficient reason could not have been
made. (2) That failure to give such notice will not result in an unwarrantable charge against
the state insurance fund. (3) That the employer had actual knowledge of the occurrence of the
accident resulting in such injury. (4) That failure to give notice was due to employee's or
beneficiary's mistake or ignorance of fact or of law, or of his physical or mental inability, or
to fraud, misrepresentation or deceit."
of his physical or mental inability, or to fraud, misrepresentation or deceit.
Appellant contends that no recovery should have been allowed in this case, for the reason
that no notice was given nor claim filed as required by section 34 1/2 of the industrial
insurance act, section 2716 N. C. L. 1929. It is respondent's contention that said section
applies only to claims for compensation as distinguished from accident benefits. With respect
to the $30 allowed by the trial court as compensation for one month's disability, respondent
claims that no notice under said section was necessary in view of the commission's conduct in
telling appellant that he had no claim and in refusing to allow him to file one. Respondent
further contends that appellant should not be heard to say that no claim for compensation was
filed after refusing to permit him to file such a claim. He also takes the position that the filing
of his action in the lower court satisfied the statute requiring notice and claim.
In considering whether section 2716 N. C. L. 1929 applies to claims for accident benefits,
we have examined the entire industrial insurance act. In addition to sections 2704 and 2716
N. C. L. 1929 the court has given particular attention to certain provisions of the act to which
attention has been directed by the respective parties. As tending to show that section 2716
applies to claims for accident benefits, appellant cites section 2681, section 2 of the act, the
last paragraph of section 2706, and section 2713 (b).
Section 2681 N. C. L. 1929: No compensation under this act shall be allowed for an
injury caused: (a) By the employee's willful intention to injure himself or to willfully injure
another; nor shall compensation be paid to an injured employee if injury is sustained while
intoxicated. This section has remained unchanged since the act was passed in 1913.
Last paragraph of section 2706 N. C. L. 1929: No compensation shall be payable for the
death or disability of an employee, if his death be caused by, or insofar as his disability
may be aggravated, caused or continued by, an unreasonable refusal or neglect to submit
or to follow any competent and reasonable surgical treatment or medical aid."
of an employee, if his death be caused by, or insofar as his disability may be aggravated,
caused or continued by, an unreasonable refusal or neglect to submit or to follow any
competent and reasonable surgical treatment or medical aid.
Section 2713 (b) N. C. L. 1929: If any employee shall persist in insanitary or injurious
practices which tend either to imperil or retard his recovery, or shall refuse to submit to such
medical or surgical treatment as is reasonably essential to promote his recovery, the
commission may, in its discretion, reduce or suspend the compensation of any such injured
employee. This subdivision was enacted before there were any accident benefit provisions in
the act.
Appellant contends that in reason the three foregoing statutory provisions should apply to
accident benefits as well as to other forms of compensation.
Section 2708 N. C. L. 1929, cited by respondent, reads: No compensation shall be paid
under this act for an injury which does not incapacitate the employee for a period of at least
seven days from earning full wages, but if the incapacity extends for a period of seven or
more days, such compensation shall then be computed from the date of the injury.
Respondent contends that it would be unreasonable to deprive an employee, otherwise within
the provisions of the act, of accident benefits simply because his incapacity does not extend
for a period of more than seven days, though the latter fact may be reasonable ground for
barring him from compensation.
The foregoing statutory provisions cited by the respective parties give rise to some doubt
and uncertainty regarding the construction to be placed upon the word compensation as
used in section 2716; but the language of section 2704 and that of section 2716 indicate that
the latter section is not applicable to the former.
It will be noted that section 2704 uses the expression accident benefits many times,
while the word compensation does not occur once therein. Section 2716, on the other
hand, uses the word "compensation" many times, but does not once employ the
expression "accident benefits."
on the other hand, uses the word compensation many times, but does not once employ the
expression accident benefits. By the express provisions of the first paragraph of section
2704 the benefits conferred by that paragraph shall hereafter be termed Accident Benefits.'
As we have seen, sections 2681 and 2731 (b), two of the provisions relied on by appellant
were enacted before the industrial insurance act contained any accident benefit provisions;
but the other provision (last paragraph of section 2706) has been amended four times since
section 2704 became law, yet in none of these amendments does the expression accident
benefits occur, but only the word compensation. This, according to appellant, shows that
the legislature intended compensation, as used in that provision, to include accident
benefits. Respondent, on the other hand, argues that it shows either a deliberate intent on the
part of the legislature that accident benefits were not to be included in compensation, or
that in amending said provision accident benefits were entirely overlooked.
More significant than any of the foregoing is the language in that part of section 2716
which states the grounds upon which the commission may excuse failure to give notice or to
file a claim. The second ground is that failure to give such notice will not result in an
unwarrantable charge against the state insurance fund. If the legislature, in adding section 34
1/2, section 2716 N. C. L. 1929, to the industrial insurance act had had accident benefits in
mind, it would naturally have used the words accident benefits fund, or words of similar
import, as well as state insurance fund, because, as we have seen, section 2704 expressly
provides that the fund provided for accident benefits shall be a separate and distinct fund. An
unwarrantable charge against the accident benefits fund would constitute as good a reason for
refusing to excuse failure to give notice or to file a claim as would an unwarrantable charge
against the state insurance fund.
Unless barred by the provisions of section 2716, Elias Demosthenes was clearly entitled to
accident benefits under the provisions of the industrial insurance act. We are not disposed to
deny him his right to such benefits because of a confused and unsatisfactory condition of the
statutes, particularly when said section 2716 itself tends to show, either that the legislature
deliberately intended that it should not apply to accident benefits, or that, in amending said
section, section 2704 was overlooked.
1-3. As section 2716 does not apply to claims for accident benefits, there is no procedure
specified in the industrial insurance act for presentation of such claims. Where such a
situation exists, any reasonable method, pursued within a reasonable time, is sufficient.
Respondent's efforts to file his claim were natural, reasonable, and timely.
4-7. The court is of the opinion that respondent should have been barred from the $30
allowance for one month's compensation based on his son's temporary total disability. The
employer's report to the commission did not constitute a notice signed by the injured
employee or by a person in his behalf. Section 2716 not only requires such a notice, but
further provides that failure to give such notice shall be a bar to any claim for compensation.
If a proper notice had been mailed within the time prescribed, the commission had admitted
that the notice was duly received, the court would not bar the claim merely because the notice
had not been sent by registered mail or delivered to and left with the commission. But in this
case it affirmatively appears that the statutory notice was not given the commission in any
manner, or at all. The commission's refusal, in June 1940, to permit respondent to file a claim
afforded no excuse for failure to give the notice, though in our opinion it did excuse the
failure to file a claim for compensation. We are also clearly of the opinion that the filing of
respondent's action in the district court did not constitute the statutory notice required by
section 2716.
district court did not constitute the statutory notice required by section 2716.
The order denying a new trial is affirmed. The judgment is reduced from $558.80 to
$528.80, and as so modified is affirmed. Costs on this appeal are awarded to respondent.
____________
61 Nev. 365, 365 (1942) Southern Pacific Co. v. Huyck
SOUTHERN PACIFIC COMPANY, a Corporation, Appellant, v. GLADYS E. HUYCK, as
Administratrix of the Estate of C. B. Huyck, Deceased, Respondent.
No. 3351
September 2, 1942. 128 P.(2d) 849.
Under the federal employers' liability act, there is no liability of employer in the absence of negligence.
Federal Employers' Liability Act, secs. 1-9, 45 U. S. C. A. secs. 51-59.
Proof based on circumstantial evidence may be resorted to, to furnish the substantial evidence necessary
to support a verdict or judgment obtained pursuant to the federal employers' liability act. Federal
Employers' Liability Act, secs. 1-9, 45 U. S. C. A. secs. 51-59.
In action for death of a conductor when he lost his balance while alighting from moving engine as it
reached a station platform, where there was no testimony or inferences from physical facts to support
defendant railroad's theory that death was caused because decedent's head struck an arch bar, or the ground,
testimony of fellow trainmen, together with the circumstances justified a finding that the platform was the
proximate cause of the conductor's death. Federal Employers' Liability Act, secs. 1-9, 45 U. S. C. A.
secs. 51-59.
4. Evidence.
Where the proof as to a material fact is circumstantial, it is only where the evidence tends equally to
sustain either of two inconsistent propositions that neither of them can be said to have been established by
legitimate proof.
It is the duty of a railroad to use due care to provide a reasonable safe place for the use of trainmen in its
employ.
In action for death of conductor, when he lost his balance while alighting from a moving engine as it
reached the station platform, evidence was sufficient to sustain a finding that railroad
was negligent in maintaining a "curb" platform rather than a "rail high" or "tie high"
platform at the time and place of the accident. Federal Employers' Liability Act, secs.,
1-9, 45 U. S. C. A. secs.
platform, evidence was sufficient to sustain a finding that railroad was negligent in maintaining a curb
platform rather than a rail high or tie high platform at the time and place of the accident. Federal
Employers' Liability Act, secs., 1-9, 45 U. S. C. A. secs. 51-59.
In action for death of a conductor, when he lost his balance while alighting from a moving engine as it
reached the station platform, evidence that after the accident the depth of the trench formed by platform
and rail was lessened and the rail was raised, justified an inference by the jury that the platform did not, at
the time of the accident, conform to the standard type of curb platforms, as bearing on the issue of
defendant's negligence in maintaining it. Federal Employers' Liability Act, secs. 1-9, 45 U. S. C. A. secs.
51-59.
Under the engineering necessity doctrine, carriers have much freedom of choice in providing facilities
and places for the use of their employees, and where they are established in accordance with reasonable
and scientific judgment on roadbeds and yards, they are not subject to review by a jury, but it is essential to
the application of the doctrine that the facility or place of use of the employees must be suitable for the
practical operation of the employer's business.
The doctrine of engineering necessity, that carriers have much freedom in providing facilities and
places for the use of their employees, and where they are established in accordance with reasonable and
scientific judgment, they are not subject to review by a jury, relates only to a condition of fact and not to a
rule of law, and neither statute nor common law forbids a trier of fact to try a question of negligence
involved between master and servant, merely because there may be involved a matter of engineering.
Before a matter may be considered an engineering problem, beyond the reach of court and jury, it must
appear that there existed a necessity therefor and that the things done could not reasonably have been done
otherwise.
Where there was evidence to support an inference by the jury that at the time a conductor was killed the
curb platform at which he was killed did not conform to the standard type of curb platforms, the doctrine of
engineering necessity had no application and the court was justified in leaving to the jury the question of
the railroad's negligence in maintaining such type of platform at that time and place of accident. Federal
Employers' Liability Act, secs. 1-9, 45 U. S. C. A. secs. 51-59.
In action for death of conductor when he lost his balance while alighting from a moving engine as it
reached a station platform, burden of proving that the conductor assumed the risk was on defendant.
Federal Employers' Liability Act, secs. 1-9, 45 U. S. C. A. secs. 51-59.
Where the evidence was sufficient to take the question to the jury of conductor's presumed knowledge of
danger of alighting on a station platform, jury's finding on such issue was conclusive on appeal.
A conductor who lost his life when he lost his balance while alighting from a moving engine as it reached
a station platform, did not assume the risk where the risk of alighting on the platform was not plainly
evident and there was nothing in the nature thereof to particularly attract the conductor's attention and warn
him of danger. Federal Employers' Liability Act, secs. 1-9, 45 U. S. C. A. secs. 51-59.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by Gladys E. Huyck, as administratrix of the estate of C. B. Huyck, deceased,
against the Southern Pacific Company under the Federal Employers' Liability Act to recover
damages for his death, alleged to have been caused by the negligence of defendant. Verdict
for plaintiff. Defendant appeals from the judgment and from the order denying its motion for
a new trial. Affirmed.
Brown & Belford, of Reno, for Appellant.
James A. Meyers, of Oakland, Calif., and Frank W. Ingram, of Reno (Clifton Hildebrand,
of Oakland, Calif., and Goodman & Brownstone, of San Francisco, Calif., of counsel), for
Respondent.
OPINION
By the court, Ducker, C.J.:
Plaintiff, as administratrix of the estate of her deceased husband, C. B. Huyck, instituted
this action pursuant to the federal employers' liability act, 45 U. S. C. A. sections 51-59, to
recover damages for his death alleged to have been caused by the negligence of
defendant.
pursuant to the federal employers' liability act, 45 U. S. C. A. sections 51-59, to recover
damages for his death alleged to have been caused by the negligence of defendant. The jury
returned a verdict in favor of plaintiff. Defendant has appealed from the judgment entered
therein and from the order denying its motion for a new trial.
The second amended complaint includes the following allegations: That at said time and
place (April 8, 1937, Hazen, Nevada,) the defendant carelessly and negligently maintained its
said track and road bed in that large timbers were laid parallel to the rails of said track and
approximately two feet outside of said rails, which said timbers and rails formed ditches on
both sides of said track and thereby created a trap whereby any one falling from said
locomotive would be caught and crushed between said locomotive and said timbers; that the
maintenance of said timbers in such position was contrary to the custom and practice of
railroads in the premises, and created an unsafe place wherein to work; that at said time and
place deceased fell from the gangway ladder into the ditch on the southerly side of said track
and, by reason of the carelessness and negligence of defendant in the premises the said
deceased was caught and crushed between said engine or tender thereof and the said timbers
and was rolled in said ditch and did thereby receive injuries causing his death.
The answer denied the allegations of negligence and plead assumption of risks. Huyck, at
the time of his death, was 55 years of age. He was six feet and one inch in height and weighed
215 pounds. He was an experienced trainman, having been continuously in the employ of the
defendant on the Salt Lake division as a freight brakeman and conductor from July 1910 to
the time of his death. He was promoted to the position of conductor in 1916. On April 8,
1937, he was conductor of a freight train operated by defendant in interstate commerce, and
designated as Extra 3748 West.
The train running westerly reached Hazen, Nevada, at about 4:40 a. m. of that day. In order to
conduct switching movements the locomotive, tender, and water car were cut off from the
front of the train on the main line. After finishing this work the locomotive and attached
tender and car were proceeding westerly on the defendant's track designated as the N & C
main line along the station platform at Hazen preparatory to picking up the train. This track,
the southerly track of three in front of the Hazen station, was the nearest track to the station
and located about twenty-five feet therefrom. As the locomotive approached the Hazen
station platform it was slowed down to allow a brakeman to get off and line up a switch. The
easterly end of the platform was approximately opposite to this switch. The platform was
constructed of hard-packed gravel and terminated in a wooden curbing paralleling the rails.
The distance from the outer edge of the curbing to the rails was approximately two feet. The
platform and curbing were approximately the height of the rails and the space between the
rails and curbing was approximately five inches deep. The bottom was about level with the
ties. This type of platform is known as the curb type. Something over one hundred feet
westerly from the easterly end of the platform was a crossing platform constructed of wood
extending on a level from the curb across the N & C track for the passage of trucks with
freight, baggage, or express. As the engine passed the switch, engineer Jackson, fireman
Steiner, brakeman Baker, and Huyck were in the cab, brakeman Kelly having swung off to
align the switch. The engine was running six to eight miles per hour according to Baker;
approximately three to four miles per hour according to Steiner; about five or six miles
according to Jackson. As the engine passed the switch Huyck was preparing to alight from the
engine at the station by going down the gangway ladder on the left or fireman's side of the
engine. On both sides of the engine were what are termed grab irons for hand holds.
He came out of the gangway onto the ladder backwards in the usual and customary manner,
holding to both grab irons. Before he reached the bottom tread of the ladder his left foot went
to the left of the ladder in the direction of the movement which caused him to lose his grip
with the right hand, and his body swung in so that his back was to the west in the direction in
which the engine was moving, and forward of the ladder. In this position he took two or three
quick steps striving to regain his balance, lost his hold with his left hand and fell. He fell at a
point approximately opposite the east end of the station building and was dragged to said
crossing platform. He was picked up in a semi-unconscious condition and died later in the
day. He was not seen from the time he fell until he was picked up.
1, 2. The only question presented for determination is whether the evidence is sufficient to
support the verdict. Under the federal employers' liability act, which governs this case, there
is no liability in the absence of negligence on the part of the carrier. Missouri Pac. R. R. Co.
v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351. To support the verdict there must be
substantial evidence produced to show that the negligence alleged in the second amended
complaint on the part of the carrier was the proximate cause of Huyck's death. Defendant
contends there is no such evidence to show either that the platform at Hazen was negligently
constructed and maintained or that it caused the conductor's death. There was no eye witness
as to the manner in which Huyck was caught by the engine or tender, or what happened after
that till the body was thrown clear at the crossing platform. Necessarily, therefore, proof of
these facts must have been based on circumstantial evidence. Such proof may be resorted to
to furnish the substantial evidence necessary to support a verdict or judgment obtained
pursuant to the federal act. Showalter v. Western Pac. R. Co., 16 Cal.(2d) 460, 106 P.(2d)
895, and federal cases cited therein.
Huyck was last seen by Steiner, the fireman, and Baker, the head brakeman, before the
accident when he lost his hold on the grab iron with his left hand and fell. Concerning his
descending the ladder and falling, Steiner testified:
Q. Then after brakeman Kelly had swung off at that point, what, if anything, did Mr.
Huyck do? A. He walked over on the left side of the gangway of the engine in back of my
cab. Of course I couldn't see when he got in back of my cab.
Q. Is it of metal so you can't see through it? A. I noticed the back of his legs coming
down the gangway.
Q. The gangway ladder? A. The gangway ladder, yes.
Q. You could see his legs from your position? A. I could see his legs coming down the
ladder.
Q. When you saw him coming down the ladder, and saw his legs, just before this accident
happened, what was the position of his left leg with reference to the ladder * * *? A. Well, he
wasn't on the bottom rung of the ladder. He never came down to the bottom rung of the
ladder. Of course, he hesitatedhe got down to the fourth rung of the ladder, that is, the
second from the bottom; he hesitated there. To demonstrate, he was facing this wayI will
say that would be the north sideand his left leg here, he put his left leg out on the outside of
the ladder. He was standing apparentlyI was looking down at him from the cab. Apparently
his right foot was in the center of the rung of the ladder.
Q. You are indicating now the second rung of that ladder, the second from the bottom? A.
Yes, his left foot came right out on the outside of the ladder in the direction of the movement.
Q. That would be west? A. That would be west, yes.
Q. Off the left-hand side of the ladder? A. Yes.
Q. Now, with reference to his right hand, did you notice where it was at that time? A. No,
I didn't because I was looking at him from an angle, and his shoulders and his hat was in
the road.
because I was looking at him from an angle, and his shoulders and his hat was in the road. I
couldn't see the position of his right hand at that particular time.
Q. Did you notice the position of his left hand? A. Yes.
Q. Where was it at that time? A. It was on thiswe might call it the front grab iron.
Q. In other words, the grab iron to the front of the ladder?the gangway ladder, or facing
the fireman's side, it would be the hand hold to the left of the ladder? A. That is right * * *.
Q. In other words, you were looking out from this window? A. Yes.
Q. And then what happened, Mr. Steiner? A. Well, aslet me seeas I said, his left foot
was on the outside of the ladder, and at apparently the same time he released his right hand
from this grab iron. Now, I imagine he did, because I could see his shoulders swing * * * in
towards the ladder.
* * * * * * *
Q. The ladder was about in line with the middle line of his body as he swung in towards
the engine? A. Yes.
Q. Now, when he swung in towards the engine, what, if anything, did Mr. Huyck do with
reference to his feet, or could you see what he was doing? A. I was looking down at him, and
I noticed he was dragging and I noticed his right foot, the right part of his body was on the
outside of the ladder. I didn't see his left side.
Q. You didn't see his left foot? A. No, I didn't see his left foot.
Q. Now with reference to plaintiff's Exhibit No. 2, * * * are you able to state about where
it was * * * Mr. Huyck was taking those backwards steps? A. He just took maybe one or two.
Q. Can you point out on that photograph about where it was? A. I don't know where east
of the depot is there.
Q. For your information, Mr. Steiner, the east end of the depot is indicated by this point.
* * * A. I would say at just the east end of the depot is where he had the accident, where he
hit the ground.
Q. At just about that space he was taking those backward quick steps. Is that right? A.
Yes.
* * * * * * *
Q. In other words, this is the most southerly rail, and this is the area to the south of the
rail. Now, with reference to that area south of the rail where would it be he was taking those
backward steps? A. Well, right over here somewhere. His right footorright foot would be
about in here somewhere.
Q. About in the vicinity of that timber? A. Somewhere around in there, I wouldn't say it
definite.
Q. His left foot would be to a point north of that position, is that correct? A. Well, I didn't
see his left foot hit the ground. * * *
Q. Well, let's put in this way. His right foot, where you could see it, about at the vicinity
of that timber, you didn't see his left foot beyond that point? A. I didn't see his left foot.
Baker's version of the manner in which Huyck descended the ladder and fell, corresponded
in the main with that given by Steiner. He testified in part:
A. Well, I was standing in the gangway looking down on top of him, and his foot, his left
foot, was outside of the ladder here, and his right hand was up there, and just his foot was
outside herehis right hand had lost hold.
* * * * * * *
Q. How was he? In other words, was his body completely straight at the ladder or was he
leaned over somewhat at the top towards the left-hand hold? A. There was a little tendency to
be a little towards the left hand side.
Q. After his right hand had come loose from the hand hold on the right hand side here of
the gangway, tell us then what happened. A. Well, this footas his feet both went on the
ground there he took three or four steps while he was holding onto this grab iron on the
cab side, trying to get his balance.
feet both went on the ground there he took three or four steps while he was holding onto this
grab iron on the cab side, trying to get his balance.
* * * * * * *
Q. And what direction was he facing when he was taking those three or four quick steps?
A. He was facing towards the rear of the engine.
Q. Towards the tender, is that right? A. Towards the tender, yes.
Q. His back would be in what direction then? A. To thetowards the head of the engine.
Q. His left hand was still on the left hand hold there; that is, on the hand hold shown on
the left-hand side of Plaintiff's Exhibit No. 5'? A. Yes.
Q. Now, with reference to this space in between the beam on the front of the tenderthat
is the tender beam, there isn't it; the front end of it? A. Yes, sir.
Q. Now, with reference to this space in between that and this left hand hold, where was
Mr. Huyck's body before his hand left that hand hold, left hand? A. I would say he was
backing up taking those steps trying to get his balance.
* * * * * * *
A. His body was just west ahead of the ladder.
Q. With reference to the rail, the left-hand rail here, where abouts was he? A. Well, I
couldn't tell you. He was just walking outside of wherever this would be on the ground. I
couldn't say how far out.
Q. Well, at the station there at Hazen, do you remember the construction of the station
platform there; that is, as to whether the platform comes completely out to the rail or whether
there is a ditch there? A. No, there is a ditch there.
Q. Now, that ditch extends out to the south of the rail how far? A. I should judge about to
the end of the ties.
Q. Well, anyway, it is shown there in the exhibit, is that correct? A. That looks like it,
yes.
Q. Now with reference to that ditch, about where was Mr. Huyck's body at the time you
saw his left hand still hanging to the left hand hold and saw him taking those quick steps? A.
I couldn't tell you exactly where he was, only he was taking those steps and I was just
watching him. I didn't pay any attention to where his feet was when he was taking those steps.
Q. Was his body outside of the ladder here or was it closer to the engine, in between the
hand-hold and the left-hand side of the ladder? A. It was just forward of the ladder here,
taking those steps. Now, whether it was closer in or not, I couldn't say. * * *
Q. Referring to Plaintiff's Exhibit No. 2 here, and ask you with reference to that exhibit,
about where was it that Huyck's body left the locomotive? A. I should judge right about in
there. Approximately right about here.
Q. You are indicating the left-hand part of the photograph; that is Plaintiff's Exhibit No.
2, in the lower left-hand corner? A. Yes.
Q. Where would be the end of the first tie, approximately, that is shown in that exhibit, is
that correct? A. Approximately right in there.
On cross examination he said:
Q. I see, nowand he had hold of that rear grab iron with his right hand and the forward
grab-iron with his left hand, is that correct? A. Yes.
Q. And as he was standing there, on what rung of the ladder were his feet, if you recall?
A. Well, I couldn't tell you exactly whether they wereall I could see was this one was
outside. Now, whether his right one was on this rung here of the ladder I couldn't tell you.
Q. The right foot outside? A. The left foot.
Q. The left foot. Pardon me. When we say outside,' we mean his left foot was forward,
or west of the forward or west end of the ladder? A. Yes.
Q. In Exhibit No. 5? A. Yes.
Q. What did you next observe, Mr. Baker? A. The next thing I observed was that his right
hand had let go of this grab iron on the tank, and when it did, well, both feet were on the
ground, and he still had hold with his left hand of the grab iron on the cab, and he was taking
these steps to try to catch his balance, for he was going backwards, off balance, and then
when his left hand lost hold I see him disappear, and when he let go I jumped back to Jackson
and told him to big hole it. (Meaning to apply the brakes.)
* * * * * * *
Q. Now, Mr. Baker, if a man was standing on the locomotive, with a locomotive
proceeding westerly in the direction it was proceeding, and a man were getting off the ladder
in the usual, normal manner, with which hand would he let go first. A. He would let go with
his right handhis left hand first.
Q. His left hand first. That was to swing out? A. Yes.
Mr. Steiner, the fireman, also testified as follows:
Q. Mr. Steiner, I want to ask you another question or two with reference to the point
where Mr. Huyck left the engine. Was there any marks, physical marks along there to indicate
how far he had been dragged? A. Well there was some dust. Yes, some dust in the gravel
outside the curbing.
Q. And about how long did that extend? A. About fifty-one feet, somewhere within there.
Q. Was there any marks on the bottom of that arch bar? That is this part that is shown
here in Plaintiff's Exhibit No. 4. Was there any marks on the bottom of the arch bar that you
observed after this accident happened? A. Well, it looked like there wasthere is grease on
the bottom of those strips and it did look like there was a little dust had been brushed off it,
like there was a little dust, the grease wasn't brushed off.
Q. Normally, Mr. Steiner, where would the bottom of this arch bar come with reference
to that area between the track and the curbing?
of this arch bar come with reference to that area between the track and the curbing? That is,
outside the railing? Would it be about half-way in between or just how? A. I don't know the
exact measurement on that, but I would say that it would be about just even with the curbing,
maybe just outside a little.
Q. With reference to the track, the outside of that arch bar would be out how far? A. Oh,
about sixteen or seventeen inches, I imagine.
Q. From the track? A. Yes.
Q. And with reference to the ladder, the gangway ladder, that arch bar, Mr. Steiner, would
the outside surface of it be outside the ladder or be inside the ladder? A. It would be inside
the ladder.
Q. On the inside where the position of the ladder went down.
3. This testimony and all the circumstances of the accident were ample to warrant the
conclusion that the curb platform at Hazen was the proximate cause of the death of plaintiff's
intestate. As previously stated, there was no eye witness to the manner of his death. The cause
rests as it may on circumstantial evidence. In this connection defendant suggest that the fatal
injuries of the conductor may have been caused by his head striking the ground or the arch
bar. The jury, having substantial ground on which to form a contrary conclusion, was entitled
to reject these theories. There is not a scintilla of evidence to sustain either suggestion. The
jury could have fixed the speed of the engine at three miles per hour and Huyck, as the
testimony shows, did not fall sheer from any height. His feet were on the ground and he was
off balance. Under such circumstances it is extremely unlikely that he could have struck the
ground with sufficient force to have caused the fatal injuries. As to the arch bar, his feet were
towards it and he was going backwards from it. Moreover, the momentum of the engine
would have thrown him from the arch bar instead of towards it, or to the bottom of the
ladder.
the ladder. There was no indication that his body struck the top or front part of the arch bar,
whereas there was evidence that it was in contact with the lower part of the arch bar and was
dragged along between the curbing and the rails to where it was found. The bottom of this
arch bar, which was on the head truck of the tender of the engine, extended half way across
the trench and was seven and one half inches from the bottom thereof. These circumstances
were all for the jury, and their conclusion as to the proximate cause was a reasonable one. It is
not opposed by any inconsistent inference equally reasonable.
The court in Showalter v. Western Pac. R. Co., 16 Cal.(2d) 460, 106 P.(2d) 895, 905,
quoted approvingly from the opinion of the court in Wabash Screen Door Co. v. Black, 6
Cir., 126 F. 721, as follows: Doubtless a jury ought not to be permitted to speculate, in the
sense of guess, between causes, when no reasonable explanation of the injury can be found in
the testimony. * * * But, in the absence of direct testimony, the simple suggestion of theories
by the defense does not reduce the jury to mere speculation, and disqualify it from
determining the cause of the injury complained of. The theories suggested may be forced and
fanciful, finding no reasonable foundation in the facts proved. They may be explanations
which do not explain; which the common sense of the jury, when applied to the testimony,
would instantly reject.
We are in accord with that statement. Moreover, had defendant's suggestions as to the
cause of death a more rational basis they would not necessarily invalidate the verdict. They
would have furnished merely argument to be presented to the jury. Weiand v. Southern P.
Co., 34 Cal. App.(2d) 500, 93 P.(2d) 1023.
4. When the proof as to a vital fact is circumstantial it is only where the evidence tends
equally to sustain either of two inconsistent propositions that neither of them can be said to
have been established by legitimate proof. Showalter v. Western Pac. R. Co., supra. See
Pennsylvania R. Co. v. Chamberlain, 2SS U. S. 333, and cases cited on page 339, 53 S. Ct.
391, 77 L. Ed. S19.
Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333, and cases cited on page 339, 53 S. Ct.
391, 77 L. Ed. 819. Such is not the case here. So much for the sufficiency of the evidence as
to the proximate cause.
5, 6. Now as to the question of negligence. The charge is specific and the issue, succinctly
stated, is whether the platform at Hazen was so negligently constructed and maintained as to
create a trap in which plaintiff's intestate was caught and crushed to death. It was the duty of
defendant to use due care to provide a reasonably safe place for the use of trainmen in its
employ. Seaboard Air Line R. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R.
A. 1915c, 1, Ann. Cas. 1915b, 475; Ames v. Western Pac. R. Co., 48 Nev. 78, 227 P. 1009.
We have heretofore described the physical condition created by the platform and rails which,
for convenience of reference, will be called the trench. Photographs of the same were
introduced in evidence, which show that the side of the curbing towards the rail was flat and
not curbed or sloping, as the name might imply. The record discloses that there were three
types of platforms in use by the defendant and other railroad systems, the curb type of
platform as at Hazen, where the space between the curb and the rail is not filled in, and the
rail high and tie high platform where there is no depression between the platform and ties or
rails. A great deal of testimony was introduced pro and con as to relative merits of these
platforms, their comparative safety and utility and relative use. An extended review would
serve no useful purpose and only prolong this opinion. It is enough to say that the jury could
well believe from this testimony that an accident like the one in the instant case would have
been less likely to happen at either of the other two types of platforms where there was no
ditch or trench as at the Hazen platform. They could reasonably believe that with the engine
travelling at the slow rate of speed testified to that if either of the other types had been
installed at Hazen, Huyck would have had an opportunity to roll to safety.
installed at Hazen, Huyck would have had an opportunity to roll to safety. On account of the
depth of the trench and the sheer wall of the curb, no such opportunity was afforded him. It
was within the province of the jury, therefore, to find that the curb platform at Hazen was
unsafe. In fact, the event proved conclusively that it was unsafe. And the fact that other types
that were safer to an employee were in use at other depots, shows that the curb type was
unnecessary even though such platforms might be more convenient for rail inspection, as
testified to by witnesses for defendant. Moreover, there was evidence tending to show that
depth of the trench had been lessened since the accident. We are of the opinion that the
evidence was sufficient to warrant a determination of the issue as to negligence in plaintiff's
favor.
7. On this question of negligence defendant contends that it was established without
contradiction that the curb type of platform was a standard type, not only on the lines of
defendant, but on the lines of practically every major railroad in the United States. In this
connection it must not be understood that we hold that the standard type of curb platform in
use by defendant and other railroads is unsafe. Our decision goes to the curb platform at
Hazen on April 8, 1937. As previously stated, there was evidence tending to show the depth
of the trench had been lessened since the accident. And one of defendant's witnesses, a civil
engineer in the employ of the Santa Fe Railroad, testified to a very material change since the
accident, in that at the time of the trial the rail was two and a half to three inches higher. At
the time of the accident the rail was level with the curb installation. From these circumstances
the jury was at liberty to infer that the platform at Hazen at the time of the accident was not
satisfactory to defendant, and did not conform to the standard type of curb platforms.
Defendant stresses the contention that plaintiff failed to prove that part of the charge
that the maintenance of the platform at Hazen was contrary to the custom and practice of
railroads in the premises.
to prove that part of the charge that the maintenance of the platform at Hazen was contrary to
the custom and practice of railroads in the premises. There was evidence introduced tending
to show this, but whether it is sufficient to support a finding we need not say as that part of
the charge was not necessary to its sufficiency, and the failure of proof thereon, if there was
such failure, is immaterial.
8-10. The defendant contends that the construction and maintenance of the curb platform
at Hazen was an engineering problem and being such was not a jury question. In support of
this contention cases are cited to the effect that carriers have much freedom of choice in
providing facilities and places for use of their employees and where established in accordance
with reasonable and scientific judgement on road beds and yards, are not subject to review by
a jury. Toledo, St. L. & W.R.R. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed 513. An
extended examination of the cases bearing on this question reveals that the rule contended
for, where applied or recognized, is deemed to rest upon the necessities of the situation. It is
believed to be essential to its application that the facility or place of use of an employee must
be suitable and necessary for the practical operation of the employer's business. Kreigh v.
Westinghouse, Church, Kerr & Co., 214 U. S. 249, 29 S. Ct. 619, 53 L. Ed. 984; Texas &
Pac. Ry. Co. v. Swearingen, 196 U. S. 51, 25 S. Ct. 164, 49 L. Ed. 382; Choctaw, Oklahoma,
etc., R. R. Co. v. McDade, 191 U. S. 64, 24 S. Ct. 24, 48 L. Ed. 96; Union Pac. R. Co. v.
O'Brien, 161 U. S. 451, 16 S. Ct. 618, 40 L. Ed. 766; Kreitzer v. Southern Pac. Co., 38 Cal.
App. 654, 177 P. 477; Haskins v. Southern Pac. Co., 3 Cal. App.(2d) 177, 39 P.(2d) 895;
Ford v. Dickinson, 280 Mo. 206, 217 S.W. 294; Houston & T.C.R. Co. v. Robins, Tex. Civ.
App., 23 S. W.(2d) 461; Taber v. Davis, 2 Cir., 280 F. 612; Werner v. Illinois Central R. Co.,
309 Ill. App. 292, 33 N.E.(2d) 121.
In Kreigh v. Westinghouse, Church, Kerr & Co., supra [214 U. S. 249, 29 S. Ct. 622, 53 L.
Ed. 984], the court said:
Where workmen are engaged in a business more or less dangerous, it is the duty of the
master to exercise reasonable care for the safety of all his employees, and not to expose them
to the danger of being hurt or injured by the use of a dangerous appliance or unsafe place to
work, where it is only a matter of using due skill and care to make the place and appliances
safe. There is no reason why an employee should be exposed to dangers unnecessary to the
proper operation of the business of his employer. Choctaw, Oklahoma, etc., R. R. Co. v.
McDade, 191 U.S. 64, 66, 24 S. Ct. 24, 48 L. Ed. 96, 99, and cases there cited.
In the case last referred to a brakeman in the employ of the company was killed while
engaged in the discharge of his duties on one of the company's trains, by being struck by an
iron spout of a water tank located near the track. It was found that there was no necessity for
bringing this appliance so near to the car as to endanger brakemen working thereon. On this
phase of the case the court said [191 U. S. 64, 24 S. Ct. 25, 48 L. Ed. 96]:
It is undoubtedly true that many duties required of employees in the transactions of the
business to be carried on by a railroad company are necessarily attended with danger, and can
only be prosecuted by means which are hazardous and dangerous to those who see fit to enter
into such employment. Where no necessity exists, as in the present case, for the use of
dangerous appliances, and where it is a matter requiring only due skill and care to make the
appliances safe, there is no reason why an employee should be subjected to dangers wholly
unnecessary to the proper operation of the business of the employer. Citing Kelleher, Adm'r
v. Milwaukee & Northern R. R. Co., 80 Wis. 584, 50 N. W. 942; Georgia Pac. Ry. Co. v.
Davis, 92 Ala. 300, 9 So. 252, 25 Am. St.
Rep. 47; 1 Sherman & Redfield on Negligence, 5th Ed., sec. 201 and cases cited.
It was decided in Texas & Pacific Ry. Co. v. Swearingen, supra [196 U.S. 51, 25 S. Ct.
168, 49 L. Ed. 382], that the switchman in the employ of the company had not assumed the
risk by striking against a scale box in close proximity to a switch track. But the court, in the
course of its opinion, said:
Prima facie, the location of scales where the tracks were only the standard distance apart,
and where a space of less than 2 feet was left for the movements of a switchman between the
side of a freight car and the scale box, encumbered, as he would be in the nighttime, with a
lantern employed for the purpose of signalling, did not incontestably establish the
performance of the defendant company of the duty imposed upon it to use due care to provide
a reasonably safe place for the use of the switchmen in its employ. And so far from the proof
making it certain that the necessity of the situation required the erection of the structure
between tracks Nos. 1 and 2 as existing there was proof that the railway company owned
unoccupied ground, intended for other tracks to the south of track No. 4, justifying the
inference that the distance between tracks Nos. 1 and 2 might have been increased, and the
employment of the scales thus rendered less hazardous to switchmen, or that the scales might
have been removed to a safer location.
It was therefore, properly a question for the determination of the jury whether or not the
scales were maintained in a reasonably safe place. * * *
In Werner v. Illinois Central R. Co., supra [309 Ill. App. 292, 33 N. E.(2d) 126], the
plaintiff, had been injured because of the proximity of a dwarf signal to the track, and was
permitted to recover for his injuries. The court said: No practical necessity existed for the
maintenance of the dwarf signal in the position it was in at the time of the accident. It is
undisputed that with very little cost the signal could have been moved or lowered without
destroying its practicability and more important, if the location of the signal had been
changed as suggested, the dangerous and unsafe condition would have been eliminated."
with very little cost the signal could have been moved or lowered without destroying its
practicability and more important, if the location of the signal had been changed as suggested,
the dangerous and unsafe condition would have been eliminated. Cited: Texas & Pac. R. Co.
v. Swearingen, supra, and Choctaw, Oklahoma, etc., R. R. Co. v. McDade, supra.
The doctrine of engineering necessity, so much relied on by defendant, was, as pointed out
in Houston & T.C. R. Co. v. Robins, supra, first announced in Tuttle v. Detroit, etc., Co., 122
U.S. 189, 7 S. Ct. 1166, 30 L. Ed. 1114, cited by defendant. Other cases in which it was
involved were discussed in the former opinion and it was shown that adherence to the
doctrine is put on the ground of necessity. As stated in the former case [23 S. W.(2d) 465],
There is neither statutory law, nor any doctrine of the common law, that forbids either a
court or jury to try out a question of negligence involved between master and servant merely
because there may be involved a matter of engineering, but the doctrine, it seems, relates
alone to a condition of fact, and not to a rule of law. Bates v. Chicago, etc., Co., 140 Wis.
235, 122 N. W. 745, 747, 133 Am. St. Rep. 1069.
11. If the law were otherwise, the court further observed, it would abrogate the
time-honored rule of the common law that requires the master to furnish the servant a
reasonably safe place wherein to do the work required of him. We agree with the former
court in its analysis of the recent case of Delaware, etc., Co. v. Koske, 279 U. S. 7, 49 S. Ct.
202, 204, 73 L. Ed. 578, also cited by defendant herein, where it said, After a careful reading
of this decision, we cannot believe that it was the intention of the court to change the general
understanding of the law on the subject, that is, that, before a matter may be considered an
engineering question beyond the reach of court and jury, it must appear that there existed a
necessity therefor, and that the thing done could not reasonably have been done otherwise.
This is indicated by the following statement in the course of the opinion in Delaware, etc.,
the course of the opinion in Delaware, etc., Co. v. Koske, supra: There is no evidence that
the open drain was not suitable or appropriate for the purpose for which it was maintained or
that there was in use by defendant or other carriers any means for the drainage of railroad
yards which involve less of danger to switchmen and others employed therein. We are of the
opinion that the rule of engineering necessity contended for can have no application to the
facts of this case.
12-14. It is insisted that plaintiff's intestate assumed the risk in alighting from the
locomotive. We do not think so. It was not one of those risks incident to the defendant's
business. It arose out of its negligence as found by the jury, and the question presented was
whether the risk was actually known to him or so patent as to be readily observed by him, that
he should be presumed to know of it. Chicago, M. & St. P. Ry. Co. v. Donovan, 8 Cir., 160 F.
826; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, supra; Texas & Pac. Ry. Co. v.
Swearingen, supra; Seaboard Air Line R. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed.
1062, L. R. A. 1915c, 1, Ann. Cas. 1915b, 475;; Ames v. Western Pac. R. Co., 48 Nev. 78,
227 P. 1009. In the case last cited this court, on ample authority, stated and applied the above
rule. The trial court properly instructed the jury on this phase of the case.
There was no evidence tending to show that Huyck was conscious of the danger, and the
circumstances were sufficient to take the question of his presumed knowledge to the jury. Its
finding in this respect is conclusive. True, there was testimony showing that in his capacity of
conductor he had passed by the platform on his train many times for a number of years, and
that he was seen on occasions during waits of his train, standing around the platform, but
there was nothing in the nature of the platform to particularly attract his attention and warn of
danger. The risk was not plainly evident. On the other hand it was somewhat obscure. It was
not open or glaring, but more of a latent danger which only an accident or a close inspection
could fully expose.
which only an accident or a close inspection could fully expose. The jury was entitled to view
it in this light, the burden being on defendant. The situation was not like that in Delaware,
etc., R. R. Co. v. Koske, supra, relied on by defendant, in which the injured party was held to
have assumed the risk. In that case it appeared that the plaintiff employed in the defendant's
roundhouse and coal-chute yard alighting from an engine in the nighttime in the course of his
employment, fell into an open ditch used to drain the yard. He was familiar with the ground in
this yard, having worked there for eleven years, one year of which was in the daytime. He
knew, of course, that the ditch was there and its proximity to the engine from which he
stepped, having been under his close observation during those years. He knew, or should have
known, that to step into it from a moving engine would likely cause injury. The set-up there
was quite dissimilar to the place of the accident in the instant case. The danger, if not known,
was plainly observable.
We deem it unnecessary to discuss other cases cited by defendant to this point.
The judgment and order denying defendant's motion for a new trial should be affirmed.
It is so ordered.
October 19, 1942.
Per Curiam:
Rehearing denied.
____________
61 Nev. 387, 387 (1942) Gerbig v. Gerbig
OSCAR GERBIG, Appellant, v. MARY GERBIG, Respondent.
No. 3364
September 18, 1942. 128 P.(2d) 938.
1. Malicious Prosecution.
In order to show the existence of probable cause for initiating criminal proceedings in reliances upon
the advice of counsel, it must appear, among other things, that the advice was sought in good faith, and
given after a full disclosure of the facts within the accuser's knowledge and information.
In an action for malicious prosecution, where answer admitted the commencement of the prosecution but
denied malice and want of probable cause, it was error to refuse to permit defendant, on direct
examination, to present his defense of advice of counsel.
In an action for malicious prosecution based on a charge of larceny, error in refusing to permit defendant
to testify that he had sought the advice of counsel was not cured by defendant's testimony that he was
acting in his own behalf, solely for the purpose of getting his goods back, since it did not follow that he
would have initiated the prosecution had counsel advised him not to do so.
In an action for malicious prosecution, evidence regarding advice of counsel may be admitted under
defendant's denial of plaintiff's allegation of prosecution without probably cause. Comp. Laws sec. 8602,
subd. 2.
In an action for malicious prosecution, advice of counsel is not new matter within the statute and need
not be specially pleaded. Comp. Laws sec. 8602, subd. 2.
6. Pleading.
New matter is matter in the nature of confession and avoidance and an answer in confession and
avoidance does not deny the allegations of the complaint, but seeks to avoid such allegations by setting up
new affirmative matter.
7. Pleading.
In an action for malicious prosecution, where defendant's answer admitted that he caused the criminal
prosecution to be initiated, but denied that in so doing he acted maliciously or without probable cause, such
answer was not a plea in confession and avoidance.
Appeal from Fifth Judicial District Court, Mineral County; George E. Marshall, Presiding
Judge.
Action by Mary Gerbig against Oscar Gerbig for malicious prosecution. Judgment for
plaintiff and defendant appeals therefrom and from an order denying his motion for a new
trial. Reversed, and remanded for a new trial.
Martin Evansen, of Hawthorne, and William M. Kearney and Robert Taylor Adams, both
of Reno, for Appellant.
William L. Hacker and M. B. Moore, both of Reno, for Respondent.
OPINION
In an action for malicious prosecution the Fifth judicial district court, Mineral County,
awarded respondent a judgment in the sum of $3,000 compensatory, and $6,000 exemplary
and punitive damages. This appeal is from that judgment, and from an order denying
appellant's motion for a new trial.
The parties were married in September 1937, and resided at Hawthorne. Appellant
obtained a divorce from respondent at Carson City about June 1, 1940. The trial court gave
respondent permission to occupy appellant's residence at Hawthorne until July 1, 1940, and
ordered Mr. Gerbig to pay her $50 per month for four months.
Respondent failed to vacate on or before July 1, whereupon appellant came to Carson City
for the purpose of having her cited for contempt. She vacated his residence on July 2, and in
the evening of that day had some household goods hauled away from there to a little cabin in
the rear of Mr. and Mrs. Jack Miller's residence at Hawthorne. One of the men who did the
hauling testified, in behalf of appellant, that there were about three truckloads, and that
respondent said she wanted to be sure that appellant was not around when the goods were
moved.
sure that appellant was not around when the goods were moved. Respondent denies that she
did not want appellant to know that she was taking the goods. Some of the goods were the
exclusive property of appellant.
Appellant paid the June $50 installment of alimony, but did not pay the July installment
when it became due. His reason for not doing so was, he says, that he thought respondent
might return his goods if he withheld the alimony payments. Respondent came to Carson City
and had appellant cited for contempt because of his failure to pay alimony. On his way from
Hawthorne to appear in the last mentioned contempt proceedings, appellant stopped at
Yerington where he deposited $150, the balance of the alimony, to respondent's credit and
then caused it to be attached.
After discovering that some of his property had been taken from his residence, appellant
swore to a criminal complaint against respondent on or about July 9, 1940, but no warrant of
arrest was issued on this complaint. However, about the same time, and at his instance, a
search warrant was issued. In executing this warrant the sheriff went to the Jack Miller
residence, where Mrs. Gerbig was staying. She went with him to the said cabin and indicated
certain boxes, saying, these are the boxes I have, go through them and see if you can find the
things you want. The sheriff then searched the cabin, and seized: 1 rocking chair; window
curtain and rod attached; several table cloths; several sheets; 2 bed spreads; 1 wool quilt; 1
wool blanket; 2 pillows and 2 pillow slips; several bath towels, face towels, dish towels; 1
ironing board; 1 pressure cooker; 1 waffle iron; bake pan and wooden chopping bowl. These
goods were delivered by the sheriff to the justice of the peace who, after the preliminary
hearing later referred to herein, delivered them to appellant.
Appellant, claiming that more of his goods were missing from his residence than were
seized by the sheriff and being convinced, as he says, that respondent had taken them, as she
had been in exclusive possession of the residence until July 2 and had had several
truckloads of goods hauled away from the residence on the evening of that day while
appellant was in Carson City, swore to a criminal complaint before the justice of the peace
of Hawthorne township on July 16, 1940, charging respondent with the crime of grand
larceny.
taken them, as she had been in exclusive possession of the residence until July 2 and had had
several truckloads of goods hauled away from the residence on the evening of that day while
appellant was in Carson City, swore to a criminal complaint before the justice of the peace of
Hawthorne township on July 16, 1940, charging respondent with the crime of grand larceny.
The reason given by him for instituting this prosecution was, So that I could get my stuff
back, belonging to me.
On July 18, 1940, respondent was arrested at Reno by the sheriff of Mineral County. She
was not imprisoned, and the next day furnished bail in the sum of $500. She appeared before
the magistrate at Hawthorne on July 26. The magistrate says he told the district attorney and
Mr. Gerbig that the evidence did not justify pressing a charge of grand larceny, but did justify
a charge of petty larceny, and that he was ready to have a trial on that charge if they wanted it.
Mr. Gerbig, according to the magistrate, then spoke up and said he had been advised that the
other missing goods had been stored somewhere in Reno, and requested a continuance for a
few days so he could go to Reno and make a search. A continuance having been granted,
appellant went to Reno and made inquires at several warehouses, but failed to locate any of
his property. The preliminary examination was held at Hawthorne on August 5, and on
August 6 respondent was discharged for lack of sufficient evidence to justify binding her over
to the district court.
Appellant (defendant), in his answer to the complaint, admitted that he commenced the
criminal prosecution, but denied that he did so with malice or without probable cause. On the
trial respondent (plaintiff) testified concerning the injurious effects upon her resulting from
said prosecution.
Of the alleged errors assigned by appellant, we have found it necessary to consider but
one, namely, that the trial court wrongfully refused to allow appellant to present his
defense of advice of counsel.
trial court wrongfully refused to allow appellant to present his defense of advice of counsel.
From the direct examination of appellant, testifying at the trial in his own behalf, we quote
the following:
Q. Now Mr. Gerbig at the time you filed the complaint did you have any malice against
the plaintiff in this action? A. Absolutely not.
Q. Did you go to anyone for advice as to the issuance of the criminal complaint, Mr.
Gerbig?
Counsel for plaintiff: We object to the question, it is immaterial and not within the issues
of this case.
Counsel for defense: It goes to the issue of probable cause.
The Court: The objection sustained.
Counsel: Now Mr. Gerbig will you again state what all your reasons were for filing this
complaint against Mrs. Gerbig? A. When we got in everything was gone, then the District
Attorney.
Counsel for plaintiff: I move now, if the Court please, that all the testimony of the
witness relating to the advice of the District Attorney and Judge Guild be stricken as not
responsive to the question, also as being irrelevant and immaterial and does not go to prove
any of the issues of the case.
The Court: The motion is granted, the testimony may be stricken.
In denying appellant's motion for a new trial, the lower court, referring to this matter of
advice of counsel, said: * * * it still fairly appears from the whole of the record that the
contention of error, based upon the proposition that the Court erred in sustaining the
objection with reference to advice of counsel, the court determines that the issue thus
presented is without merit, for the reason that advice of counsel is special defense and must
be pleaded, and, therefore, this objection avails nothing.
1, 2. In respondent's brief this action of the trial court is defended upon three grounds, the
first of which is that the question "Did you go to any one for advice as to the issuance of
the criminal complaint, Mr.
is that the question Did you go to any one for advice as to the issuance of the criminal
complaint, Mr. Gerbig? was not a proper question because in any jurisdiction it could only
be relied upon if advice was sought from a reputable attorney and after giving a full and fair
account of the facts within the knowledge of the parties seeking the advice. It is true that in
order to show the existence of probable cause for initiating criminal proceedings in reliance
upon the advice of counsel it must appear, among other things, that the advice was sought in
good faith, and given after a full disclosure of the facts within the accuser's knowledge and
information. Anderson v. Snell, 57 Nev. 78, 83, 58 P.(2d) 1041, 62 P.(2d) 703; Ricord v.
Central Pac. R. R. Co., 15 Nev. 167; 34 Am. Jur. 747, n. 9; Restatement of the Law, Torts,
vol. 3, sec. 666; Cooley on Torts (4th ed.), vol. 1, sec. 117; Burdick's Law of Torts, (4th ed.),
sec. 268; 38 C. J., Malicious Prosecution, secs. 75-83. But here the appellant was shut off
at the outset from offering any testimony whatsoever with respect to advice of counsel. It is
obvious that he could not offer testimony showing that he had acted in good faith and made a
full disclosure of all the facts to counsel when he was not even permitted to testify that he had
sought the advice of counsel.
3. Respondent further contends that had appellant shown that he had sought and received
the advice of reputable counsel, he would not have acted upon such advice because the
record, as respondent asserts, discloses that appellant was acting in his own behalf solely for
the purpose of getting his goods back. Appellant did testify, as we have seen, that he swore to
the grand larceny complaint so that he could get the goods that belonged to him; but it does
not necessarily follow from this that he would have initiated such a prosecution if he had been
advised by counsel not to do so.
4, 5. Finally respondent argues that advice of counsel is new matter within the meaning of
subdivision 2 of sec.
of sec. 8602 N. C. L. 1929, and must be pleaded as a special defense. This position is not
entirely without support in the authorities. See Eihlert v. Gommoll, 23 Ohio Cir. Ct. R. 586.
But the better rule, sustained by the great weight of authority, is that evidence regarding
advice of counsel may be admitted under defendant's denial of plaintiff's allegation of
prosecution without probable cause, that advice of counsel is not new matter, and that it need
not be specially pleaded. Richter v. Neilson, 11 Cal. App.(2d) 503, 54 P.(2d) 54; Stephens v.
Conley, 48 Mont. 352, 138 P. 189, Ann. Cas. 1915d, 958; Smith v. Davis, 3 Mont. 109;
Sparling v. Conway, 75 Mo. 510; Levy v. Brannan, 39 Cal. 485; Folger v. Washburn, 137
Mass. 60; Emler v. Fox, 172 Ky. 290, 189 S. W. 469; Griffin v. Chubb, 7 Tex. 603, 58 Am.
Dec. 85; 34 Am. Jur. 773, n. 20; 38 C. J. 472, n. 12; Bancroft's Code Pl., vol. 3, sec. 1786, n.
19; 16 Cal. Jur. 746, n. 3; Pomeroy's Code Rem. (5th ed.), p. 910, n. 59; Annotation 26 Am.
St. Rep. 127, at page 153.
6, 7. Dixon v. Pruett, 42 Nev. 345, 177 P. 11, relied on by respondent, in no way impugns
the rule that advice of counsel is not new matter; on the contrary, that case recognizes, as do
other decisions of this court, that new matter is matter in the nature of confession and
avoidance. Parks v. Western Union Tel. Co., 45 Nev. 411, 197 P. 580, 204 P. 884; Ferguson
v. Rutherford, 7 Nev. 385. An answer in confession and avoidance does not deny the
allegations of the complaint, but seeks to avoid such allegations by setting up new affirmative
matter. Parks v. Western Union Tel. Co., supra; Dixon v. Pruett, supra; 41 Am. Jur.,
Pleading, sec. 158; 49 C.J. 290, n. 50. In the instant case appellant, as defendant in the
lower court, admitted that he caused the criminal prosecution to be initiated, but denied that
in so doing he acted maliciously or without probable cause. As the answer denied these
material and essential allegations of the complaint, it was not a plea in confession and
avoidance.
The action of the trial court in refusing to permit appellant to offer any testimony relating
to advice of counsel constituted prejudicial error. The judgment and order appealed from are
reversed, and the cause remanded to the lower court for a new trial.
____________
61 Nev. 394, 394 (1942) State v. Economy
THE STATE OF NEVADA, Respondent, v. GEORGE
ECONOMY, Appellant.
No. 3374
October 20, 1942. 130 P.(2d) 264.
1. Statutes.
Repeals of statutes by implication are not favored, and will not be declared if there is any other
reasonable construction.
2. Statutes.
A statute covering whole subject matter of earlier act and evidently intended as substitute therefor effects
repeal thereof, though later statute contains no express words to that effect.
3. Poisons.
The uniform narcotic drug act impliedly repeals earlier act on same subject as constituting in effect a
revision thereof, providing complete system for regulating possession, use, sale, distribution, and
administration of narcotic drugs, dealing with both persons authorized by law and those unauthorized to
handle such drugs, as does earlier act, containing some language identical with that of earlier act as to prior
convictions, and imposing penalties repugnant to those imposed by earlier act. Laws 1923, c. 33, sec. 1, as
amended by Laws 1931, c. 43; sec. 3; sec. 5, as amended by Laws 1935, c. 73; sec. 6; Laws 1937, c. 23,
sec. 1, pars. 1-9, and secs. 2, 11, 13-15, 17, 20, 21, 23, 25.
4. Statutes.
A statute, embracing all provisions of earlier act on same subject, adding new provisions and imposing
different or additional penalties, repeals earlier act, without any repealing clause.
5. Poisons.
An information charging that defendant did willfully, unlawfully, and feloniously sell narcotic drugs, to
wit, marihuana, in quantity exceeding one ounce, to named person, was broad enough to sustain
conviction of peddling such drugs under uniform narcotic drug act, though such act does not name
marihuana as narcotic drug, as its definition of "cannabis," denominated as narcotic
drug therein, embraces marihuana.
name marihuana as narcotic drug, as its definition of cannabis, denominated as narcotic drug therein,
embraces marihuana. Laws 1937, c. 23, sec. 1.
6. Criminal Law.
In prosecution for peddling narcotic drug known as marihuana, trial court acted within its discretion in
refusing defendant's request to permit jury to view scene of alleged crime, in absence of showing that such
view would have materially aided jury in weighing state's witness's testimony as to defendant's sale of such
drug in street near his residence, as defendant contended. Laws 1923, c. 33; Laws 1937, c. 23.
7. Criminal Law.
The trial court properly exercised its discretion in refusing continuance to enable defendant's counsel to
obtain photographs of alleged scene of crime charged after state placed in evidence photographs proved to
show such scene accurately, especially where defendant's counsel had many months in which to take such
photographs before trial. Laws 1923, c. 33; Laws 1937, c. 23.
8. Criminal Law.
Where trial court gave statutory instruction on reasonable doubt, which contains words abiding
conviction refusal of defendant's requested instruction, defining abiding conviction in connection with
reasonable doubt, was not error. Comp. Laws, secs. 10963, 10964.
9. Criminal Law.
Refusal of defendant's offered instruction to jury that prosecution's failure to call witness to prove fact
material to its case raises inference unfavorable to state, where witness is available and evidence within
prosecution's reach, and that prosecuting attorney's failure to examine witness, who was cognizant of
material facts and presumably available at trial, permits inference of fact favorable to accused, was not
error.
10. Criminal Law.
Defendant's offered instruction that when, from evidence, an accused's conduct at time of alleged crime
may be reasonably referred to two motives, one criminal and the other innocent, jury should presume
innocent motive, was properly refused, in absence of evidence rendering it applicable.
11. Criminal Law.
In prosecution for peddling narcotic drug known as marihuana, error in instruction requiring jury to find
defendant guilty if they believed from evidence beyond reasonable doubt that defendant sold quantity of
marihuana, weight of which exceeded one ounce, to certain person, was favorable to defendant, as weight
of drug sold is immaterial under uniform narcotic drug act. Laws 1923, c. 33; Laws 1937, c. 23.
12. Criminal LawPoisons.
Imposition of sentence under 1923 narcotic act on conviction of peddling narcotic drug known as
marihuana was error, as sentence should have been imposed under uniform narcotic drug
act, which impliedly repealed 1923 act, but such error did not require reversal of
judgment on conviction.
sentence should have been imposed under uniform narcotic drug act, which impliedly repealed 1923 act,
but such error did not require reversal of judgment on conviction. Laws 1923, c. 33, sec. 5, as amended by
Laws 1935, c. 73; Laws 1937, c. 23, sec. 20.
Appeal from Forth Judicial District Court, Elko County; James Dysart, Judge.
George Economy was convicted of peddling a narcotic drug, and he appeals. Affirmed,
and cause remanded with directions.
George F. Wright, of Elko, for Appellant.
Attorneys-General, and C. B. Tapscott, District Attorney, of Elko, for Respondent.
OPINION
Defendant was convicted in the district court of peddling a narcotic drug known as
marihuana, in violation of section 5 of the narcotic act of 1923, as amended by the act of
1935, chap. 33, Session Laws 1923, pages 39, 40, 41; chap. 73, Session Laws 1935, pages
160, 161. Section 1 of the former act, as amended by the act of 1931, chap. 43, Session Laws
1931, pages 51, 52 reads:
Each and all of the following are hereby declared to be narcotic drugs: Cannabis indicia,
cocaine, opium, yen shee, morphine, codeine, heroin, marihuana, anhalonium (peyote or
mescal button), or any of the salts, derivatives or compounds of the foregoing substances, or
any preparation or compound containing any of the foregoing substances, or their salts,
derivatives, or compounds.
Section 3 provides: Where any person is convicted of a violation of the provisions of
section 2 of this act and upon trial or upon a plea of guilty a prior conviction shall be
proved against him, he shall be deemed guilty of a felony and be punished accordingly.
of a violation of the provisions of section 2 of this act and upon trial or upon a plea of guilty a
prior conviction shall be proved against him, he shall be deemed guilty of a felony and be
punished accordingly. The words prior conviction' shall be construed as meaning a previous
conviction at any time in any court in this or any other state for a violation of either the
provisions of this act or of any statute or ordinance dealing with or regulating the use, supply
or possession of any or all narcotic drugs.
Section 5, as amended, provides in part: A peddler of any of the narcotic drugs
enumerated in section 1 of this act is hereby defined as a person selling, furnishing, or giving
away, or growing, or having in his possession for the purpose of sale, furnishing, or gift of
any of said narcotic drugs in quantities not exceeding one ounce. * * * Any person who shall
be convicted of being a peddler as herein defined shall be punished by imprisonment in the
state prison for a period of not less than five years * * *.
Defendant contends that the above act has been repealed by chapter 23, Session Laws
1937, page 35, et seq., or by chapter 79, Session Laws 1941, pages 115, 116, 117. The 1937
act contains no specific repealing clause. In general terms section 25 of the act provides:
Repeal. All acts or parts of acts which are inconsistent with the provisions of this act are
hereby repealed.
1, 2. Is the 1923 act repealed by implication of the 1937 act? Repeals by implication are
not favored and will not be indulged if there is any other reasonable construction, yet where a
statute covers the whole subject matter of an earlier act and it is evident that it was intended
as a substitute for it, a repeal is effected though the repealing act contains no express words to
that effect. 59 C. J. 921; United States v. Tynen, 78 U.S. 88, 11 Wall. 88, 20 L. Ed. 153;
United States v. Claflin, 97 U. S. 546, 24 L. Ed. 1082; Henrietta Min., etc.,
etc., Co. v. Gardner, 173 U. S. 123, 19 S. Ct. 327, 43 L. Ed. 637; Pratt Institute v. City of
New York, 183 N. Y. 151, 75 N. E. 1119, 5 Ann. Cas. 198; Thorpe v. Schooling, 7 Nev. 15;
State v. Lee, 28 Nev. 380, 82 P. 229; Gill v. Goldfield Consol. Mines Co., 43 Nev. 1, 176 P.
784, 184 P. 309; Carson City v. Board of County Commissioners, 47 Nev. 415, 224 P. 615. In
Thorpe v. Schooling, supra, the court said:
True, repeals by implication are not favored; and if it be not perfectly manifest, either by
irreconcilable repugnancy, or by some other means equally indicating the legislative intention
to abrogate a former law, both must be maintained. The intention, if perfectly clear, however,
must control, however it may be expressed or manifested. It is upon this principle, evidently,
that it is held that a statute revising the whole subject matter of a former law repeals it. * * *
A subsequent statute,' said [the court in quoting from] Dewey, J. [in Bartlet v. King, 12
Mass. 537, 7 Am. Dec. 99], revising the whole subject matter of a former one, and evidently
intended as a substitute for it, although it contains no express words to that effect, must, on
the principles of law, as well as in reason and common sense, operate to repeal the former.'
3. We will not unduly lengthen this opinion by setting out the two acts in full. While the
later act does not purport to be a revision of the earlier act, it is in effect a revision. It is a
complete system for regulating the possession, use, sale, distribution, or administration of
narcotic drugs. This is reflected in the title, which is as follows: Chap. 23An Act defining
and relating to narcotic drugs, prohibiting the use, sale, distribution, or administration thereof,
except under the lawful direction of duly licensed practicing physicians, dentists,
veterinarians, manufacturers, apothecaries and others, prohibiting the unlawful possession,
use, sale, distribution or administration thereof, and to make uniform the law with reference
thereto, prescribing penalties for the violation hereof, and other matters properly relating
thereto, and repealing all acts and parts of acts in conflict herewith."
the violation hereof, and other matters properly relating thereto, and repealing all acts and
parts of acts in conflict herewith.
The body of the act covers the whole subject of the 1923 act as amended, and contains new
provisions. It is provided in the 1937 act that it may be cited as the Uniform Narcotic Drug
Act.
Respondent contends that the purpose of the earlier act is solely to prohibit the sale,
supply, use and possession of narcotic drugs by persons wholly unauthorized to handle the
same in any manner, while that of the later acts pertains only to persons who are in some
manner authorized by law to do so.
A comparison of the respective acts does not bear out this contention. We think both acts
deal with both classes of persons. Concededly by this prosecution and as will be seen by
reference to section 5 of the 1923 act, it deals with unauthorized persons, and section 6 of the
act relates to persons authorized to deal in drugs, such as jobbers, wholesalers, manufacturers,
physicians, veterinarians, and dentists. Violation of this act is made a misdemeanor.
Unauthorized persons are dealt with in paragraph 1 of section 1 of the uniform narcotic drug
act, and in sections 2, 11, 13, 14, 17, 20, and 21. Paragraph 1 provides: Person' includes any
corporation, association, copartnership, or one or more individuals.
As distinguished from these are defined in paragraphs 2 to 9, inclusive, those who
afterwards in the act under some circumstances are authorized to deal in narcotic drugs.
Section 2 of the act includes all of the aforesaid. It provides: It shall be unlawful for any
person to manufacture, possess, have under his control, sell, prescribe, administer, dispense,
or compound any narcotic drug, except as authorized in this act.
Respondent particularly stresses section 15 of the uniform narcotic drug act as indicating a
purpose of the act to be applicable only to persons authorized to deal in narcotic drugs. The
section reads: On the conviction of any person of the violation of any provisions of this
act, a copy of the judgment and sentence, and of the opinion of the court or magistrate, if
any opinion be filed, shall be sent by the clerk of the court, or by the magistrate, to the
board or officer, if any, by whom the convicted defendant has been licensed or registered
to practice his profession or to carry on his business.
conviction of any person of the violation of any provisions of this act, a copy of the judgment
and sentence, and of the opinion of the court or magistrate, if any opinion be filed, shall be
sent by the clerk of the court, or by the magistrate, to the board or officer, if any, by whom the
convicted defendant has been licensed or registered to practice his profession or to carry on
his business. On the conviction of any such person the court may, in its discretion, suspend or
revoke the license or registration of the convicted defendant to practice his profession or to
carry on his business. On the application of any person whose license or registration has been
suspended or revoked, and upon proper showing and for good cause, said board or officer
may reinstate such license or registration.
The italics are ours and we think the words, if any so italicized, save the section from the
construction respondent claims. Section 20 of the uniform narcotic drug act provides in the
following language a common punishment for all violators of the act, viz: Any person
violating any provision of this act shall be deemed guilty of a felony, and upon conviction
thereof shall be punished, for the first offense, by imprisonment in the state prison of the
State of Nevada for not less than two year nor more than ten years; and for any subsequent
offense, a prior conviction having been had at any time in any court in this or any other state
or federal court, for a violation of either the provisions of this act or of any statute or
ordinance dealing with or regulating the use, supply or possession of any or all narcotic drugs,
shall, upon conviction, be punished by imprisonment in the state prison of the State of
Nevada for not less than ten years.
Comparing this section with section 3 of the 1923 act it will be observed that part of the
language in both as to a prior conviction, is identical. This in itself is some indication of an
intent to substitute. It will be further observed that the penalties of the two acts are such that
they present clear repugnances. The first act makes the punishment for mere possession of
any narcotic drug a gross misdemeanor.
makes the punishment for mere possession of any narcotic drug a gross misdemeanor. The
later act makes it a felony and punishable for the first offense by imprisonment in the state
prison for not less than two years nor more than ten years. The act provides that one who shall
be convicted of selling any narcotic drug in quantities not exceeding one ounce shall be
punished by imprisonment in the state prison for a period of not less than five years. In other
words he could be imprisoned from five years to life. If he was convicted for selling in
quantities greater than one ounce he could be imprisoned from ten years to life. In the later act
in either of these instances he could be imprisoned only for not less than two years nor more
than ten. For mere possession therefore, the first act permits in the matter of punishment what
the later act prohibits, and for selling the later act permits what the earlier act prohibits. The
earlier act makes no provision whatever for additional punishment for a second offender,
except in a case of mere possession, for which a penalty of not less than one year or more
than ten in the state prison, or by a fine of not less than five hundred dollars or more than one
thousand dollars, or both, whereas the later act provides for an additional penalty for a prior
conviction for possession or selling and in all cases a violation of the act or any statute or
ordinance dealing with or regulating the use, supply or possession of any or all narcotic
drugs of not less than ten years. It will be seen therefore that the later act prohibits what the
earlier act permits in cases of conviction of possession by a prior offender, namely, a five
hundred dollar fine. On the other hand, the later act supplies what the earlier act
omitsadditional punishment for all second offenders dealing in narcotic drugs. The later act
also prohibits what section 6 of the earlier act permits; that is, punishment as for a
misdemeanor for violation of any of its provisions. Pursuant to its purpose of uniformity the
uniform narcotic drug act regards all first offenders against its provisions of equal turpitude
and all second offenders as of equal and deeper turpitude.
equal turpitude and all second offenders as of equal and deeper turpitude.
4. In United States v. Tynen, supra, the court, in construing the earlier and later act of
Congress where similar repugnances in penalties were involved, held: When there are two
acts of Congress on the same subject, and the latter act embraces all the provisions of the
first, and also new provisions, and imposes different or additional penalties, the latter act
operates, without any repealing clause, as a repeal of the first.
The instant case seems to fall within the principle above enunciated.
There is nothing in the uniform narcotic drug act to indicate that it was intended to be
cumulative or auxiliary legislation to the 1923 act. Its general purpose as expressed in section
23, is, to make uniform the law of those states which enact it. This general purpose would
be frustrated by a construction which would leave conflicting legislation unrepealed. The
defendant could have been prosecuted under its provisions for the offense of selling a narcotic
drug and on conviction his punishment fixed at two to ten years. When we consider this with
the general purpose of the act as expressed in section 23 and its comprehensive scope as to
narcotic drug offenders, it seems unreasonable to believe that it was intended to give a district
attorney power to prosecute for the same offense under the 1923 act when a conviction would
draw a term of punishment for not less than five years, and which might extend to life.
Punishment which can be extended to imprisonment for life is reserved by the uniform
narcotic drug act for second offenders only.
It is argued by respondent that as the uniform narcotic drug act abolished the distinction in
severity of punishment between a peddler and a wholesaler prescribed in the 1923 act, it
would, on that account, be unreasonable to believe that a repeal was intended; that the
legislature ought not to be suspected as wishing to imposed as light a punishment on one
who sold three hundred pounds of the drugs as on one who sold one ounce.
imposed as light a punishment on one who sold three hundred pounds of the drugs as on one
who sold one ounce. The argument does not impress us. It loses sight of the idea that the
legislature was striving for uniformity in the criminal law in regard to narcotic drug matters.
Moreover, if the legislature felt that it was equitable to prescribe the same punishment for one
who sold one ounce as for one who sold two ounces or one hundred ounces, this would be a
matter of policy which is exclusively a legislative province. As a further indication that the
legislature did not intend to repeal the 1923 act it is pointed out by respondent that in 1935 it
was amended (chapter 73, Stats. of Nevada 1935, p. 160) two years subsequent to the passage
of the original uniform act in 1933, chapter 51, Stats. of Nev. 1933, p. 46. It is also pointed
out that this court in Ex Parte Medeiros, 57 Nev. 301, 64 P.(2d) 346, 347, decided in 1937,
used this language:
The information, which is set out in the sheriff's return to the writ, charges the petitioner
with a felony, in that at a certain time, and place he did wilfully, unlawfully and feloniously
have in his possession narcotic drugs. * * *' He is not charged as a second offender and thus
brought within that provision of the act of 1923.
As to the first point, the uniform law of 1933 was declared unconstitutional in Ex Parte
Medeiros, supra, on account of a defective title and, as stated in that case, the legislature of
1935, deeming the title defective, sought to validate it by amendment. Chap. 179, Statutes of
Nevada 1935, p. 384.
It is fair to assume that it may have entertained some doubt of its action and that its
amendment of the 1923 act in 1935 is therefore of little or no significance. As to the second
point, the 1923 act was not being scrutinized in Ex Parte Medeiros, or compared with the
1933 act. Its validity was not involved. The court's recognition of it was merely incidental and
could not render it immune from the effect of legislation not then enacted.
render it immune from the effect of legislation not then enacted.
5. We conclude that said act of 1923, as amended, has been repealed by the uniform
narcotic drug act of 1937. Respondent contends that the amended information is broad
enough to sustain a conviction under the latter act. This contention, we think, is well founded.
The amended information charges: That the said defendant George Economy, on the 25th
day of June, 1941, or thereabouts, and before the filing of this information, at Elko, the
County of Elko, State of Nevada, did then and there wilfully, unlawfully and feloniously sell
narcotic drugs, to-wit, marihuana, in a quantity in excess of one ounce, to William R.
Anderson. The uniform narcotic drug act does not name marihuana as a narcotic drug, but
in section one it denominates cannabis as a narcotic drug and defines it as including the
following substances under whatever names they may be designated: (a) the dried flowering
or fruiting tops of the pistillate plant Cannabis sativa L., from which the resin has not been
extracted, (b) the resin extracted from such tops, and (c) every compound, manufacture, salt,
derivative, mixture, or preparation of such resin, or of such tops from which the resin has not
been extracted. Under all authorities this definition embraces marihuana, which is a product
of cannabis. Consequently defendant's demurrer interposed to the amended information on
the ground that it did not state a public offense, was properly overruled.
There was substantial evidence introduced by the state to prove that at the time and place
alleged in the amended information defendant sold a quantity of the drug interdicted by the
uniform narcotic drug act, to the person named herein.
6. Refusal of the court to grant defendant's request that the jury be permitted to view the
scene of the alleged crime is assigned as error. The contention that the court abused its
discretion in this respect is predicated upon the claim that such a view would have enabled
the jury to better weigh the testimony of two of the state's witnesses as to the sale of the
drug by defendant in the street near his residence, to the advantage of defendant.
predicated upon the claim that such a view would have enabled the jury to better weigh the
testimony of two of the state's witnesses as to the sale of the drug by defendant in the street
near his residence, to the advantage of defendant. A consideration of the testimony convinces
us that a view by the jury would not have materially aided it in that respect. At any rate the
court acted well within its discretion in refusing the request.
7. The contention that the court erred in refusing to grant a continuance at defendant's
request so that one Mrs. Silas Jones could be produced as a witness in his behalf, is equally
without merit. The court also properly exercised its discretion in refusing a continuance so as
to enable defendant's counsel to obtain photographs of the alleged scene of the crime.
Photographs of the scene had already been placed in evidence by the state and proved to
accurately show the scene. Moreover, said counsel had had many months prior to the trial to
have photographs of the place taken.
8. The action of the court in refusing defendant's instruction No. 4 defining abiding
conviction in connection with reasonable doubt, was not error. It was refused on the ground
that it was covered in an instruction given by the court. The court gave the statutory
instruction on reasonable doubt which contains the words abiding conviction, sec. 10963 N.
C. L. To have elaborated on this by a definition of abiding conviction would have been in
effect contrary to the admonition in sec. 10964 N. C. L. that no other definition of
reasonable doubt shall be given by the court to juries in criminal actions in this state.
Besides, any person of ordinary education and intelligence should know what is meant by
abiding conviction.
9-12. Refusal of the court to give defendant's offered instruction No. 5, which reads:
Gentlemen of the jury, the court instructs you that the failure of the prosecution to call a
witness to prove a fact material to his case raises an inference unfavorable to the state,
where the witness is available and the evidence within the reach of the prosecution.
raises an inference unfavorable to the state, where the witness is available and the evidence
within the reach of the prosecution. And in this connection you are further instructed that the
failure of the prosecuting attorney to examine a witness, cognizant of the material facts, and
presumably available at the trial, permits an inference of fact favorable to the accused, is
assigned as error.
The decisions of this court have resolved this point against defendant's contention. See
State v. Milosovich, 42 Nev. 263, 175 P. 139; State v. Smithson, 54 Nev. 417, 19 P.(2d) 631,
22 P.(2d) 129. There was no evidence to make applicable the following instruction offered by
defendant and refused by the court: When from the evidence an accused's conduct, at the
time of the alleged crime may be reasonably referred to two motives, one criminal and the
other innocent, then the jury should presume the innocent and not the criminal motive.
Consequently it was properly refused. A different situation as to the evidence was present in
State v. Carey, 34 Nev. 309, 122 P. 868, cited by defendant. The fact that the court instructed
the jury that if you believe from the evidence, beyond a reasonable doubt, that the defendant
did, on or about the 25th day of June, 1941, at Elko, State of Nevada, sell to one William
Anderson a quantity of marihuana, the weight of which is in excess of one ounce, then you
shall find the defendant guilty as charged, gives him no cause for complaint. On the whole
the jury was fairly instructed and neither in giving or refusing of any instruction was there
prejudicial error. The fixing of the weight in excess of one ounce was an error favorable to
defendant, as under the uniform narcotic drug act the weight of the drug sold is immaterial.
However, the court committed error in sentencing defendant under said section 5 of the 1923
act. His sentence should have been imposed under section 20 of the uniform narcotic drug
act. But the error does not require a reversal. State v. Holdaway, 56 Nev.
278, 48 P.(2d) 420; State v. Pansey, 61 Nev. 330, 128 P.(2d) 464.
It is ordered that the order of the court overruling the demurrer of defendant to the
amended information be and the same is hereby affirmed; it is further ordered that the
judgement of the court be, and the same is hereby affirmed to the extent that defendant be
confined in the state prison of Nevada; but the cause is remanded to the district court with
directions that it pronounce and entered judgment against the defendant in accordance with
the provisions of section 20 of the uniform narcotic drug act of 1937.
____________
THE STATE OF NEVADA on the Relation of FRANK L. GARAVENTA, Relator, v.
GARAVENTA LAND & LIVESTOCK COMPANY, a Corporation, JOSEPH A.
GARAVENTA, as Director, President, and Treasurer, and WILLIAM E.
GARAVENTA, as Director of Said Corporation, Respondents.
No. 3347
ON THE MERITS
November 30, 1942. 131 P.(2d) 513.
1. Mandamus.
The mere assertion of ownership of stock in corporation and assertion that relator was secretary and a
director of respondent corporation would not entitle relator to a writ of mandamus requiring corporation to
permit relator to examine its books, nor would mere denial of ownership of stock or that relator was an
officer as alleged be sufficient to deny relator a writ.
In consideration of an appeal, if substantial evidence exists to sustain a finding, supreme court will not
disturb the finding, even though substantial evidence may exist in record against such a finding.
3. Mandamus.
Mandamus will not lie where facts are in substantial dispute, so that before a writ will issue the legal
rights of relator to performance of the act sought to be required must be clear, complete, and not open to
reasonable dispute.
4. Mamdamus.
The title or right to an office in a corporation will not be determined in a mandamus proceeding.
5. Mandamus.
The office of mandamus is essentially that of enforcing performance of acts which the law requires to
be done because of legal relationships that have been established, and if the right is not clear and specific
and can be disputed in good faith and upon reasonable grounds, a party is relegated to his ordinary legal
remedy to determine the rights and relationship.
6. Courts
Where reference was made by supreme court, in mandamus proceeding, to district court for purpose of
taking testimony and making findings of fact, and it appeared that the order of reference was broader than it
should have been, fact that respondents consented to the order of reference could not enlarge proper
function of the writ of mandamus, and supreme court would disregard referee's response to that portion of
order of reference which was beyond proper limitations of such inquiry.
7. Mandamus.
A writ of mandamus requiring corporation to permit relator who claimed to be a stockholder and
secretary and director thereof to examine corporation's books and records was denied, where it appeared
that there was substantial dispute as to whether relator was a stockholder and secretary and director on
dates demands for inspection were made.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Proceeding by the State of Nevada, on the relation of Frank L. Garaventa, against the
Garaventa Land & Livestock Company and others, for a writ of mandamus compelling
respondents to permit relator to inspect all the books, records, and documents for respondent
corporation. The Supreme Court referred the cause to Department No. 1 of the Second
Judicial District Court of the State of Nevada, in and for County of Washoe, to take testimony
and make findings. Writ denied.
H. R. Cooke and John Davidson, both of Reno, for Relator.
Springmeyer & Thompson, of Reno, for Respondents.
OPINION
Relator filed a complaint in this cause alleging that he was a stockholder and a director and
the secretary of the respondent corporation; that Joseph Garaventa was a director, the
president and treasurer of said corporation, and was also resident agent in charge of its
principal office; that the bylaws provide that the secretary of the corporation should at all
times have charge and custody of its seal, books, records, papers, and documents; that
respondent Joseph A. Garaventa had possession of the seal and all the books, records, and
documents of said corporation; that prior to the filing of the complaint relator demanded of
said respondents delivery of said seal, books, records, and documents, and further demanded
that respondents permit relator to inspect all of said books, documents, and records, which
demands have not been complied with. The prayer of the complaint asks that a writ of
mandamus be issued, directed to Joseph A. Garaventa, commanding him to comply with the
request made for the delivery and inspection of said books and documents. An alternative
writ issued, and in due time respondents filed their return to the alternative writ, and an
answer to the complaint.
Respondents deny that relator is a stockholder in or a director or the secretary of the
corporation, and deny that when demands for delivery and inspection were made relator was
or at any time since has been a stockholder in or a director or the secretary of the respondent
corporation, and deny that the bylaws provide that the secretary of the corporation should
at all times have charge and custody of its seal, books, records, papers, or documents.
the secretary of the corporation should at all times have charge and custody of its seal, books,
records, papers, or documents.
Issues having been joined, it became apparent to this court that the taking of testimony was
necessary in order to enable it to determine whether the writ should issue as prayed.
1. The mere assertion of ownership of stock and the mere assertion that relator was the
secretary and a director of respondent corporation would not entitle the claimant to the writ;
and the mere denial of ownership of stock or that relator was an officer as alleged is not
sufficient to deny relator a writ; because if a mere denial were sufficient, such a writ could
not be had in any case, and if a mere assertion of ownership of stock and of occupancy of an
office were sufficient, the writ would be issued in every case. State v. Van Tassell Real Estate
& Live Stock Co., 53 Wyo. 89, 79 P.(2d) 476. So, recognizing such a situation as existing
here, counsel stipulated that this court enter its order referring the cause to department No. 1
of the Second judicial district court of the State of Nevada, in and for the county of Washoe,
to take testimony and make findings. This court, on the 9th day of December 1941 made such
an order, and the following questions of fact were referred to the referee for trial:
First: Was relator Frank L. Garaventa, on August 2, 1941, on August 8, 1941, and on
August 22, 1941, a director of said Garaventa Land & Livestock Company?
Second: Was relator Frank L. Garaventa, on August 2, 1941, on August 8, 1941, and on
August 22, 1941, secretary of said Garaventa Land & Livestock Company?
Third: Was relator Frank L. Garaventa, on August 2, 1941, on August 8, 1941, and on
August 22, 1941, a stockholder of said corporation?
Fourth: In case said district court made findings for relator, what damages had been
thereby sustained, specifying the particular items of damages? In response to the order, the
referee took testimony and made his report to this court, wherein he answered the first
three questions in the affirmative and found that relator was entitled to the sum of
$1,000 as attorney's fees.
In response to the order, the referee took testimony and made his report to this court,
wherein he answered the first three questions in the affirmative and found that relator was
entitled to the sum of $1,000 as attorney's fees.
2, 3. Subsequent to the filing of the referee's report, respondents filed certain objections to
the report, the main contention being that the findings of the referee go beyond the scope
permissible in a mandamus proceeding. At the outset it should be stated that if such be true,
then the fault lies in the breadth of the order directing the matter to be submitted to the
referee, because the report and findings of the referee are certainly well within the directions
made, and if the court could properly consider the report of the referee and the findings on the
same basis as it could properly consider the report of a referee in ordinary proceedings, or as
it would consider findings of a trial court on appeal, then we would have no difficulty in
sustaining the findings of the referee. In the consideration of an appeal, if substantial evidence
exists to sustain a finding we will not, as a general rule, disturb it, the decision of the trier of
the facts being final thereon, even though substantial evidence may exist in the record against
such a finding. But in a mandamus proceeding the procedure is quite different, as it must be
apparent that conflicting evidence for and against a given proposition can, and often does,
create a reasonable dispute; and it is the rule that mandamus will not lie where the facts are in
substantial dispute, that before a writ will issue the legal right of relator to the performance
of the act sought to be required must be clear, complete and not open to reasonable dispute.
38 C. J. p. 582, secs. 56 and 57; State ex rel. Fleeson v. Jumbo Extension Mining Co., 30
Nev. 192, 94 P. 74, 133 Am. St. Rep. 715, 16 Ann. Cas. 896; 34 Am. Jur. p. 847, par. 55.
4. It is also the rule that the title or right to an office will not be determined in a mandamus
proceeding.
38 C. J. p. 589, secs. 63, 64, and 66; Denver v. Hobart 10 Nev. 28.
5. The office of mandamus is essentially that of enforcing performance of acts which the law
requires to be done because of legal relationships that have been established, and if the right
is not clear and specific and can be disputed in good faith and upon reasonable ground, then a
party must be relegated to his ordinary legal remedy to determine the rights and relationships.
Such being the proper office of the writ of mandamus, then it is apparent that the order
submitting the cause to the referee for trial of facts was broader than it should have been.
6. Upon the formulation of the issues, the first and principal question presented for the
determination of this court was whether or not it appeared from the evidence that a substantial
dispute existed, and the order to the referee should have been limited to a direction to take the
evidence and submit the same to this court for its determination on that point. The order to
the referee was made with the consent of respondents, but we do not believe that such consent
could enlarge the proper function of the writ of mandamus. Taking the view that this court
should confine itself to a consideration of the evidence with the sole view of determining
whether or not the legal right of relator to the performance of the act sought to be required is
clear and complete and not open to reasonable dispute, we will disregard the response of the
referee to that portion of the order of reference which is beyond the proper limitations of this
inquiry.
Confining our inquiry to a consideration of the evidence presented with a view of
ascertaining whether or not there is a substantial dispute, we conclude such a conflict exists,
both as to questions of fact and legal questions. A recitation of the evidence would, of course,
be of no assistance as a matter of precedent in other cases, hence we refrain from quoting it.
Relator asserts that the question of whether or not there can be relief given by mandamus
in this action has been foreclosed by the holding of this court in the case of State ex rel.
there can be relief given by mandamus in this action has been foreclosed by the holding of
this court in the case of State ex rel. Garaventa v. Garaventa Land & Livestock Co., 61 Nev.
110, 118 P.(2d) 703, wherein the statement is made that relator had chosen the proper
remedy. The court there was referring to the enforcement of a right already established, and
not a right which is in substantial dispute, as reference to the citations given in support of the
statement will demonstrate, namely: 18 C. J. S., Corporations, sec. 191, p. 611, note 54; 13
Am. Jur. 491, n. 13. The further statement in said case, to-wit: Whether relator was or is a
stockholder is a question to be tried and determined in the main proceeding, to which relator
directs attention, means, only, that in the main proceeding it will be determined whether or
not relator has shown such a right as will justify the issuing of a writ of mandamus.
Relator asserts that the test of the disposition of the referee's report is not whether there is
a substantial dispute, but whether there is substantial evidence in support of said report, and
that said report should be considered in the same manner as a special verdict. From what we
have said as to the proper office and function of a writ of mandamus it follows that this
contention cannot be sustained.
Relator further asserts that the office of secretary is not in substantial dispute, for the
reason that respondents do not deny in their answer that relator was the de jure secretary prior
to July 1, 1941; that the denial made by the respondents in this respect creates a negative
pregnant and constitutes an admission that for some period less than for years relator was
the duly elected secretary. The demands made upon respondents for inspection of the books
and records were on August 2, 1941, and on August 8, 1941, and this action was commenced
on August 22, 1941. The issue presented is whether or not relator was stockholder and the
secretary and a director of the corporation on those dates. These are the material facts to be
determined, and the allegations of the complaint as to those dates are directly and
specifically denied by the answer.
and the allegations of the complaint as to those dates are directly and specifically denied by
the answer.
7. A reading of the evidence taken by the referee at once convinces us that substantial
disputes, both as to the facts and as to the applicable law, exist. And if this were not
sufficient, a reading and consideration of the exhaustive analyses and arguments made by
counsel in attempting to sustain certain proposition asserted and denied leaves us completely
convinced that our conclusion is correct.
The writ is denied.
ON COSTS
January 7, 1943. 132 P.(2d) 619.
1. Costs.
Under supreme court rule, a bill for cost of transcribing three copies of a transcript
of testimony was erroneous, and the cost of only one copy of the transcript at the rate of
ten cents per hundred words was recoverable. Rules of the Supreme Court, rule 6, sec.
1.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Proceeding by the State of Nevada on the relation of Frank L. Garaventa against the
Garaventa Land & Livestock Company, a corporation, and others. From a ruling of the Clerk
of the Supreme Court overruling objections to a cost bill, relator appeals. Cost bill amended.
John Davidson and H. R. Cooke, both of Reno, for Relator.
Springmeyer & Thompson, of Reno, for Respondent.
OPINION
By the Court, Orr, C.J.:
On the 5th day of December 1942 respondents filed with the clerk of this court a cost bill,
one of the items of said cost bill being: "To J. A. Callahan, court reporter, one half of the
cost of transcribing three copies of the transcript of the testimony, $73.S0."
of said cost bill being: To J. A. Callahan, court reporter, one half of the cost of transcribing
three copies of the transcript of the testimony, $73.80. On the 8th day of December 1942
relator filed objections to certain items of costs contained in the said cost bill, among which
was the said item of $73.80, mentioned supra. On the 15th day of December 1942 the clerk of
this court made her ruling upon said objections to said cost bill, and as to the said objection to
the said item of $73.80, overruled the same. Relator has taken an appeal from said ruling.
Relator bases his claim of error in the allowance of said item of $73.80 upon the ground
that rule VI, section 1, of the rules of the supreme court, authorizes the recovery of costs for
one copy only of the transcript, whereas respondents have asked for payment for three copies.
Under the interpretation which this court placed upon said rule in the case of Curti v.
Franceschi, 60 Nev. 422, 428, 112 P.(2d) 819, the contention of relator must be sustained, as
it was there held that the cost of but one copy, at the rate of ten cents per one hundred words,
could be recovered.
The said cost bill is ordered to be amended so that the said item of cost shall read $36.90,
in lieu of $73.80.
____________
61 Nev. 416, 416 (1942) Caine v. Robbins
MAE E. CAINE, as County Clerk of the County of Elko, State of Nevada, Appellant, v.
JOHN E. ROBBINS, Individually and as a Resident, Citizen, Taxpayer, and Elector
of the State of Nevada and of the County of Elko in Said State and on Behalf of all
Persons Similarly Situated, Respondent.
No. 3381
November 30, 1942. 131 P.(2d) 516.
1. Statutes.
An initiative measure providing for centralized fish and game control, which contained no enacting clause
as required by state constitution and statutes, would, if enacted, be invalid by reason thereof. Comp. Laws,
sec. 2579; Const. art. 19, sec. 3.
2. Statutes.
Generally, a provision in a state constitution requiring an enacting clause in a statute is mandatory, and
omission thereof renders statute void.
3. Statutes.
The omission of an enacting clause renders a proposed initiative measure void.
4. Injunction.
The submission of a proposed statute to voters by initiative petition may be enjoined, where statute, if
adopted, would clearly contravene provisions of either federal or state constitution.
5. Injunction.
The submission of proposed initiative measure providing for centralized fish and game control to voters
was properly enjoined, where measure, if adopted, would be invalid by reason of omission of an enacting
clause therein as required by state constitution and statute. Comp. Laws, sec. 2579; Const. art. 19, sec.
3.
6. Statutes.
Under constitutional provision authorizing 10 percent of qualified electors to propose any measure by
initiative petition, it would not be presumed that it was intended that electors were empowered to set in
motion the legal machinery for enactment by the people of a measure wholly void under the constitution,
with its consequent injury to the taxpayers. Const. art. 19, sec. 3.
7. Injunction.
Where electors who signed initiative petition were without power to invoke a vote upon it by the people
because proposed measure was invalid by reason of omission of an enacting clause
therein, and a proper party sought to enjoin submission of the measure to people, a
case was presented for intervention of equity to prevent irreparable injury, as against
contention that proceeding presented a "moot question."
measure was invalid by reason of omission of an enacting clause therein, and a proper party sought to
enjoin submission of the measure to people, a case was presented for intervention of equity to prevent
irreparable injury, as against contention that proceeding presented a moot question. Comp. Laws, sec.
2579; Const. art. 19, sec. 3.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Suit by John E. Robbins, individually and as a resident, citizen, taxpayer, and elector of
the State of Nevada and of the County of Elko in said State, and on behalf of all persons
similarly situated, against Mae E. Caine, as County Clerk of the County of Elko, State of
Nevada, to enjoin the defendant from proceeding with any of the statutory steps looking
toward the submission to the electors of Elko County at the next general election to be held
on November 3, 1942, a certain initiative petition measure. From a judgment granting the
injunction, the defendant appeals. Affirmed.
C.B. Tapscott, District Attorney, of Elko, Gray Mashburn, Attorney-General, and W. T.
Mathews and Alan Bible, Deputy Attorneys-General, for Appellant.
Milton B. Badt and John E. Robbins, both of Elko, for Respondent.
OPINION
This suit was instituted by respondent on September 17, 1942, to enjoin the county clerk of
Elko County, Nevada, from proceeding with any of the statutory steps looking toward the
submission to the electors of said Elko County at the next general election to be held on
November 3, 1942, a certain initiative petition measure entitled: "An Act relating to and
providing for the protection, propagation, restoration, domestication, introduction,
purchase, and disposition of wild animals, wild birds and fish; creating certain offices,
providing the method of selecting the officers therefor, defining the powers and duties of
certain officers and other persons; defining certain terms; providing for the licensing of
and regulating of hunting, trapping, game farming and game fishing; providing for a
license for fur dealers; authorizing the establishment, control and regulation of private
fish hatcheries, state recreation grounds, sanctuaries and refuges, and the closing,
opening and shortening of hunting and fishing seasons; regulating the transportation and
possession of wild animals, wild birds and game fish; providing for the acquisition of
property for certain purposes; providing for instruction in the game laws of this state in
the public schools of this state; establishing certain funds and regulating expenditures
therefrom, providing penalties for violation thereof and other matters properly relating
thereto."
entitled: An Act relating to and providing for the protection, propagation, restoration,
domestication, introduction, purchase, and disposition of wild animals, wild birds and fish;
creating certain offices, providing the method of selecting the officers therefor, defining the
powers and duties of certain officers and other persons; defining certain terms; providing for
the licensing of and regulating of hunting, trapping, game farming and game fishing;
providing for a license for fur dealers; authorizing the establishment, control and regulation of
private fish hatcheries, state recreation grounds, sanctuaries and refuges, and the closing,
opening and shortening of hunting and fishing seasons; regulating the transportation and
possession of wild animals, wild birds and game fish; providing for the acquisition of
property for certain purposes; providing for instruction in the game laws of this state in the
public schools of this state; establishing certain funds and regulating expenditures therefrom,
providing penalties for violation thereof and other matters properly relating thereto.
The case is here on appeal by said clerk from a judgment and decision perpetually
enjoining her from proceeding in any manner toward submitting the proposed measure to the
electorate of said Elko County at the next general election or any subsequent election to be
voted upon as to its adoption or rejection. The parties stipulated in the court below that the
decision filed was the final judgment.
It appears from the allegations of the complaint that the initiative petition was filed with
the secretary of state and by him presented to the legislature at its 1941 session but was not
enacted by the legislature or passed upon by either the assembly or senate, and was returned
by the legislature to the secretary of state, who caused the same to be certified to each county
clerk of the state, including defendant, appellant here. In this connection it is alleged that said
county clerks would be required to post three copies thereof in each of such counties, and
cause the same to be published three times in each of such counties under penalty of fine
and imprisonment, if any of such county clerks should fail to do so; and by reason thereof
each county clerk would be required to provide printed ballots and to print therein the
question as to whether the purported initiative petition should be voted for or against,
with a brief statement of the purport of such question in plain ordinary language which
might be readily understood by the ordinary lay person.
to post three copies thereof in each of such counties, and cause the same to be published three
times in each of such counties under penalty of fine and imprisonment, if any of such county
clerks should fail to do so; and by reason thereof each county clerk would be required to
provide printed ballots and to print therein the question as to whether the purported initiative
petition should be voted for or against, with a brief statement of the purport of such question
in plain ordinary language which might be readily understood by the ordinary lay person. On
information and belief it is alleged that the cost of such posting, printing, and publication
within the county of Elko would be in excess of $2,000.
It is alleged, inter alia, that the said initiative petition is null and void and of no effect and
is inoperative for any purpose whatsoever in that it contains no enacting clause as required by
section 3 of article XIX of the state constitution, and as required by section 2579 N. C. L.
1929. It is further alleged that plaintiff, respondent here, and all person similarly situated will
suffer great and irreparable damage and injury unless said clerk is enjoined from proceeding
with said steps and that plaintiff has no plain or speedy or adequate remedy at law, and no
remedy save to invoke the equitable power of the court.
Appellant demurred to the complaint on the grounds (1) that it did not state facts sufficient
to constitute a cause of action, and (2) that the court had no jurisdiction of the subject of the
action. An answer was also filed. The court, in its judgment and decision, overruled the
demurrer on both grounds. On the trial of the case it was stipulated that the original initiative
petition on question No. 2 to be voted on at the general election on November 3, 1942,
wherein it is requested that a proposed law thereto attached and providing for centralized fish
and game control in the State of Nevada, be adopted, shows on its face and in the contents
thereof, that no enacting clause of any form or wording precedes, or anywhere appears in
said petition, and that the first paragraph thereof reads as follows: "We, the undersigned
qualified electors of the State of Nevada, by virtue of and in accordance with Section 3 of
Article 19 of the Constitution of the State of Nevada hereby propose by initiative petition
the following measure, law or act; and we petition that it be by you transmitted to the
Legislature at its next regular session, and if it be not enacted by said Legislature and
approved by the Governor, that you submit it to the qualified electors for approval or
rejection at the next ensuing general election."
or anywhere appears in said petition, and that the first paragraph thereof reads as follows:
We, the undersigned qualified electors of the State of Nevada, by virtue of and in accordance
with Section 3 of Article 19 of the Constitution of the State of Nevada hereby propose by
initiative petition the following measure, law or act; and we petition that it be by you
transmitted to the Legislature at its next regular session, and if it be not enacted by said
Legislature and approved by the Governor, that you submit it to the qualified electors for
approval or rejection at the next ensuing general election.
On the hearing of the appeal in this court it was stipulated by attorneys for the parties that
when the court had reached its conclusion, an order could be made in advance of a written
opinion. Accordingly, on September 28, 1942, the court made and entered the following
order: It is ordered that the judgment of the court appealed from be and the same is hereby
affirmed. Our reasons for the order follow.
1. The initiative measure proposed by the petition would, if enacted by the vote of the
electors, be clearly unconstitutional for lack of enacting clause required by the state
constitution in initiative proceedings. The negative of this proposition was very reluctantly
and consequently feebly expoused by counsel for appellant, their principal objection to the
judgment being levelled at the jurisdiction of the court. Section 3 of article XIX of the state
constitution provides: The enacting clause of all bills proposed by the initiative shall be:
The people of the State of Nevada do enact as follows.'
Pursuant to this constitutional mandate the legislature of 1921 enacted it in the same
language. Section 2579 N. C. L.
2. It is quite generally held that a provision in a state constitution requiring an enacting
clause in a statute is mandatory and that the omission thereof renders the statute void.
Commonwealth v. Illinois Central R.
Co., 160 Ky. 745, 170 S. W. 171, L. R. A. 1915b, 1060, Ann. Cas. 1916a, 515; see the cases
cited in support of this view in note on pages 520, 521, of latter citation 59 C. J. sec. 149, p.
597, and additional cases in note 55. The reasons for this generally accepted rule are
pointedly stated by Judge Cooley. He says: It is a necessary attribute of sovereignty that the
expressed will of the sovereign is law; and while we may question and cross-question the
words employed, to make certain of the real meaning, and may hesitate and doubt concerning
it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should
have surrounded the expression, but do not. But when the legislative power of a state is to be
exercised by a department composed of two branches, or, as in most of the American states,
of three branches, and these branches have their several duties marked out and prescribed by
the law to which they owe their origin, and which provides for the exercise of their powers in
certain modes and under certain forms, there are other questions to arise than those of the
mere intent of the lawmakers, and sometimes forms become of the last importance. For in
such cases not only is it important that the will of the lawmakers be clearly expressed, but it is
also essential that it be expressed in due form of law; since nothing becomes law simply and
solely because men who possess the legislative power will that it shall be, unless they express
their determination to that effect, in the mode pointed out by the instrument which invests
them with the power, and under all the forms which that instrument has rendered essential.
Cooley's Constitutional Limitations (6th ed.), 155.
A declaration of the enacting authority in laws is a usage and custom of great antiquity and
is required in some form or other in the constitutions of most of the states, and the
compulsory observance of it is founded in sound reason. Sjoberg v. Security Savings & Loan
Association, 73 Minn. 203, 75 N. W. 1116, 72 Am. St. Rep. 616.
3, 4. But the question is not res integra in this jurisdiction. In State of Nevada v. Rogers,
10 Nev. 250, 21 Am. Rep. 738, it was held that the enacting clause of every law, The People
of the State of Nevada, represented in Senate and Assembly, do enact as follows: is
mandatory, and that the omission of the words Senate and from the act of the legislature
before it, rendered the act unconstitutional. The court gave some very sound reasons for its
ruling, all of which meet with our approval. The court did not deem it necessary to hold that
the enacting clause required by the constitution must follow it literally, as there had not been
a substantial compliance with the provisions of the constitution. This principle of
constitutional law so applicable to acts of the legislature under our constitution applies with
equal force to proposed initiative measures. In affirming the judgment we were of the opinion
that the initiative petition before us was plainly and palpably unconstitutional and void.
Notwithstanding, the appellant clerk insists that the lower court was without jurisdiction to
enjoin her official action. Her counsel concedes that there are two lines of authority on the
question, but maintain that the better reasoned cases support their view. There is indeed a
conflict of authority, but it is said by modern text-writers that the majority view favors
jurisdiction. Under the title, Initiative, Referendum and Recall, in 28 Am. Jur. on pages 172
and 173, it is said: It seems, however, to be the majority view that the submission to the
voters of an amendment to a state constitution may be enjoined when the proposed
amendment, if adopted, would clearly and palpably violate a provision of the paramount
Federal Constitution; and the submission of a statute to the voters may be enjoined where the
statute, if adopted, would clearly contravene provisions of either the Federal or state
Constitution.
5. The same statement is reiterated in 94 A. L. R. 812. However, be the weight of authority
as it may, we were impelled to endorse the latter view taken in the following cases: Crawford
v. Gilchrist, 64 Fla.
following cases: Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914b, 916; Gray v.
Winthrop, 115 Fla. 721, 156 So. 270, 94 A. L. R. 804; State v. Hall, 35 N. D. 34, 159 N. W.
281; Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915c, 200; Livermore v. Waite,
102 Cal. 113, 36 P. 424, 25 L. R. A. 312; Mathews v. Turner, 210 Iowa 424, 426, 236 N. W.
412.
In Crawford v. Gilchrist, supra, the suit was brought by the governor of the State of
Florida in his official capacity, and also as a resident, taxpayer, citizen, and elector, against
the secretary of state to stay him from publishing in several newspaper of the state certain
proposed amendments to the state constitution as a prerequisite to the submission of the same
to the voters for approval or rejection at the general election. The right to an injunction was
upheld. In the course of the opinion the court said [64 Fla. 41, 59 So. 966, Ann. Cas. 1914b,
916]: Therefore the public welfare demands that the questions here raised as to the validity
of the proposal of such amendments should be determined as speedily as the law will permit
so as to avoid unnecessary expense, confusion, and litigation in governmental matters that
vitally affect all the people of the state. It is the duty of the courts to facilitate and not to
retard the determination of litigated causes.
It was further said: The act of the Secretary of State in publishing at public expense and
in certifying to the county commissioners proposed amendments of the Constitution is in its
nature ministerial, involving the exercise of no discretion, and, it the acts id illegal, it may be
enjoined in appropriate proceedings by proper parties; there being no other adequate remedy
afforded by law. * * * This is not an interference by the courts with the legislative department
of the government.
That it is such an interference is the ground upon which some courts hold that they are
without jurisdiction to enjoin acts looking to the submission to the electorate of proposed
constitutional amendments or measures proposed by initiative petition.
measures proposed by initiative petition. This contention is very satisfactorily answered in
State v. Hall, supra, in which proceedings by the secretary of state in the submission to vote
of a proposed constitutional amendment, were enjoined.
This contention, the court said, is premised upon the erroneous basic assumption that
the enacting of a constitutional amendment is an exercise of a legislative power confided as
legislative subject-matter upon the legislative department of government, as is ordinary
legislation. While in a sense such may be a political or legislative matter for determination as
a political question (Red River V. Brick Co. v. Grand Forks, 27 N. D. 8-27, 145 N. W. 725),
yet in its submission for adoption or rejection neither legislative province nor power is
involved. Whether the people by initiative petition or by legislative proposals amend the
fundamental law they are in either instance, said the court, quoting from Livermore v. Waite,
102 Cal. 113, 118, 36 P. 424, 25 L. R. A. 312, merely acting under a limited power
conferred * * * by the people, and which might with equal propriety have been conferred
upon either house, or upon the Governor, or upon a special commission, or any other body or
tribunal. The extent of this power is limited to the object for which it is given, and is
measured by the terms (of the Constitution) in which it has been conferred, and cannot be
extended by the Legislature to any other object, or enlarged beyond these terms.' [35 N. D.
34, 159 N. W. 282.]
In the case of Livermore v. Waite, the secretary of State of California was enjoined from
certifying a proposed constitutional amendment to the clerks of the counties, and from taking
other steps to submit it to the people, which would cause the unnecessary expenditure of
public money, because the legislature had not strictly complied with the constitution. The
injunction was upheld by the supreme court.
In the case of Gray v. Winthrop, 115 Fla. 721, 156 So.
270, 272, 94 A. L. R. 804, the court had enjoined the secretary of state from publishing and
furnishing copies for use in submitting to the voters for adoption or rejection a proposed
amendment to the state constitution. The judgment was reversed by the supreme court on the
ground that the amendment did not appear to be wholly void on its face. But the court
recognized the power of courts to enjoin the submission of such to the voters in a proper case,
in the following language: If a proposed amendment to the state Constitution by its terms
specifically and necessarily violates a command or limitation of the Federal Constitution, a
ministerial duty of an administrative officer, that is a part of the prescribed legal procedure
for submitting such proposed amendment to the electorate of the state for adoption or
rejection, may be enjoined at the suit of proper parties in order to avoid the expense of
submission, when the amendment, if adopted, would palpably violate the paramount law and
would inevitably be futile and nugatory and incapable of being made operative under any
conditions or circumstances.
The initiative for direct legislation by the people rests on no different principles than those
involved in the submission of a proposed constitutional amendment to the people. This was
practically recognized by this court in the case of State v. Reno City Council, 36 Nev. 334,
136 P. 110, 111, 50 L. R. A. (N.S.) 195. In that case the court had before it the question of
whether a writ of mandate should issue to compel the city council of the city of Reno to
submit a certain proposed ordinance to a vote of the electors of the city. The court held that
the proposed ordinance was void and that the mandamus would not lie to compel its
submission to a vote of the electors. As to the contention that a writ of mandate would not
issue in such a case, the court said: The proposition that a writ of mandate will not issue to
compel respondents to submit to the electors of the city a proposed ordinance that would be
void even if approved by a majority of the electors is too clear for discussion or the
citation of authorities."
if approved by a majority of the electors is too clear for discussion or the citation of
authorities.
If the legal remedy of mandamus will not lie to compel action in such a case, why is not
the equitable remedy of injunction available to prevent action when a void measure involving
irreparable injury is proposed to be submitted to a vote of the electors? No good reason for a
distinction is discernible. State v. Reno City Council is cited in State v. Hall, supra, 159 N.
W. at page 283, in support of the reasoning of the court that enjoining a ministerial officer
from taking steps to submit to a vote of the people a proposed constitutional amendment that
is illegal, is not an interference by the courts with the legislative department of the state.
6. Section 3 of article XIX of the state constitution provides that not more than ten
percent (10%) of the qualified electors shall be required to propose any measure by initiative
petition. It should not be presumed that it was intended that these electors were empowered
to set in motion the legal machinery for the enactment by the people of a measure wholly void
under the constitution, with its consequent injury to the taxpayers. Holding that they are
without such power is giving effect to the constitution.
The same position is taken in Livermore v. Waite, supra, in regard to a proposed
constitutional amendment, when the court said: The legislature was not authorized by the
framers of the constitution, nor do the terms of that instrument permit it, to propose any
amendment that will not, upon its adoption by the people, become an effective part of the
constitution. [102 Cal. 113, 36 P. 427, 25 L. R. A. 312.]
7. The contention that a proceeding of this character presents a moot question is without
merit. If the electors who signed the initiative petition were without power to invoke a vote
upon it by the people because it was wholly void, as we believed they were, and a proper
party has sought relief, as here, a case was presented for the intervention of equity to
prevent irreparable injury.
for the intervention of equity to prevent irreparable injury. State v. Hall, supra; Ellingham v.
Dye, supra. To deny the jurisdiction of courts in a case of this character, where a plain,
palpable violation of the constitution is threatened, would be to concede that irreparable
injury, obvious and undisputed, was beyond the restraint of the remedial arm of equity.
Accordingly we affirmed the judgment.
____________
61 Nev. 427, 427 (1942) Fuller v. Fuller
VERA S. FULLER, Appellant, v. HOWARD FULLER, Respondent.
No. 3383
November 30, 1942. 131 P.(2d) 727.
1. Divorce.
Facts alleged in wife's affidavit supporting motion for allowance of money for support pendente lite, for
preparation of record on appeal and for attorney's fee in divorce action were deemed established where
husband filed no counter affidavit.
2. Divorce.
Where trial court granting divorce to wife awarded her $25 per month for support and required husband
to pay $15 per month on mortgage, but wife established that she did not have sufficient funds to support
herself, on wife's motion for allowance of additional sum pendente lite for support, husband was directed to
continue payment ordered by trial court and to pay $50 per month in addition.
3. Divorce.
Wife appealing from divorce decree was awarded $50 as reasonable sum for preparation of record on
appeal.
4. Divorce.
$300 claimed for attorney's fee by wife appealing from divorce decree was too much and husband was
ordered to pay sum of $150 as fee for wife's attorney.
Action for divorce by Howard Fuller against Vera S. Fuller. A decree of divorce was
granted defendant.
From parts of the decree and from an order denying motion for new trial, the defendant
appeals. On appellant's motion for order requiring respondent to make payments pendente lite
for support, for preparation of record on appeal and for attorney's fee. Order in accordance
with opinion.
Robert Taylor Adams, of Reno, for Appellant.
Donnell Richards, of Virginia City, for Respondent.
OPINION
Appellant was defendant in the court below in an action in which respondent sought a
divorce from her. He failed to obtain a divorce, and a decree of divorce was granted appellant
on the ground of extreme cruelty. She has taken an appeal from parts of the decree and from
the order denying her motion for a new trial.
She makes this motion for an order requiring respondent to pay to her the sum of $150 per
month pendente lite for her support; the sum of $50 for the preparation of the record on
appeal, and the sum of $300 as an attorneys fee for her attorney.
Appellant's motion is supported by her affidavit in which it is averred that the court, in
granting her divorce, did not award her any of respondent's property or any of the community
property or any sums for her support except only the sum of $25 per month therefor,
commencing with the month of June 1942, and except that respondent was ordered to
continue paying the sum of approximately $15 per month on a mortgage of approximately
$489 on the small house in which she resides.
She avers that she has been informed by her attorney and believes that she has good and
substantial grounds for the modification of said decree on appeal and for the reversal of
the order denying her motion for a new trial.
and believes that she has good and substantial grounds for the modification of said decree on
appeal and for the reversal of the order denying her motion for a new trial.
It appears from her affidavit that she has no means or property with the exception of
approximately $200 and a small home in Stockton, California, upon which there is a
mortgage of over $400. It likewise appears from her affidavit that she is not now and never
has been employed; is not trained for employment; that she is and for some time has been in
extremely poor health and under the care of a physician; that since the granting of said decree
she has had to undergo a major operation; has not recovered therefrom and is unable to do
any work whatsoever; that she is, and for some time has been, afflicted with several ailments,
and that she is indebted and will be further indebted for doctor's bills and medicine in
substantial amounts.
She alleged that by reason of the foregoing facts she has not sufficient funds to support
herself, or provide for the ordinary necessities of life, or with which to prosecute an appeal.
She further alleged that the sums claimed are necessary and reasonable for such purposes and
that unless they are awarded to her she will be unable to prosecute her appeal. It also appears
from her affidavit that respondent is capable of supporting her and paying the said sums; that
he employed by the Western Pacific Railroad Company at a salary of $360 per month and that
his yearly earnings are approximately $3,600.
1. The facts alleged in appellants affidavit must be deemed established. Respondent filed
no counter affidavit. He was contented to introduce in evidence at the hearing a transcript of
remarks made by the district judge at the time of rendering the decree. Appellant has made
out a case in which an order for allowances is necessary, and respondent's ability to pay is
established.
2. We think the amount claimed for support during the pendency of the appeal should be
reduced.
the pendency of the appeal should be reduced. As seen, the lower court awarded her $25 per
month for her support and maintenance, commencing with the month of June 1942, and
ordered respondent to continue paying the sum of $15 on the mortgage on the house in which
she lives. If the payment of these sums is continued during the pendency of the appeal, $50
per month additional would make up a reasonable amount for her support and maintenance
during that time.
3, 4. The sum of $50 for preparation of the record on appeal is a reasonable sum. The
claim of $300 for an attorney fee is too much.
It is ordered that respondent pay to appellant as a fee for her attorney the sum of $150, and
the sum of $50 for the preparation of the record on appeal. It is further ordered that the
payments ordered by the lower court for her support and maintenance and on said mortgage
be continued during the pendency of the appeal, and in addition respondent pay to appellant
for her support and maintenance during that time, the sum of $50 per month.
____________
61 Nev. 431, 431 (1942) Petition of Simrak
In the Matter of the Petition of ALBERT S. SIMRAK, a Stockholder of the DOUBLE O
MINING COMPANY, a Nevada Corporation, for Election of Directors.
DOUBLE O MINING COMPANY, Appellant, v. ALBERT S. SIMRAK, Respondent.
No. 3375
December 30, 1942. 132 P.(2d) 605.
1. Corporations.
A transfer of stock in corporation between individuals, in order to receive recognition by the corporation,
must be registered on the corporation's books. Comp. Laws, sec. 1634.
2. Corporations.
A transfer of stock in corporation, though not registered on corporation's books, is binding on the parties,
and equitable title, at least, passes. Comp. Laws, sec. 1617.
3. Corporations.
As between individuals, a registration on corporate books of a transfer of stock in corporation must be
made in order that the transferee may be entitled to exercise voting power. Comp. Laws, sec. 1617.
4. Mines and Minerals.
One who purchased shares of stock in mining corporation at sheriff's sale, and who held a certificate of
sale issued by the sheriff, was entitled to maintain a proceeding against corporation for appointment of
directors for corporation, on ground that corporation neglected to elect directors within six months after
time designated for its annual meeting, though no entry of transfer of stock had been made on books of
corporation. Comp. Laws, secs. 1617, 1634, 8843 8853.
5. Corporations.
The primary purpose of the enactment of statute providing that no transfer of stock shall be valid against
a corporation until the transfer shall have been registered on the books of the corporation was to provide
protection for the officers of the corporation in determining the ownership of or right to vote shares of
stock. Comp. Laws, sec. 1617.
6. Corporations.
Insofar as ownership of stock in corporation is concerned, registration record is conclusive as to officers
of the corporation, but not to the courts. Comp. Laws, sec. 1617.
Certificate of sale issued by sheriff to purchasers of stock in mining corporation at sheriff's sale, was
self-executing, and transfer to the buyer of the legal title to the shares was passed by the
certificate, with right to have a transfer on the books of the corporation made by
proper corporation officer.
transfer to the buyer of the legal title to the shares was passed by the certificate, with right to have a transfer
on the books of the corporation made by proper corporation officer. Comp. Laws, secs. 1617, 8843, 8853.
8. MandamusMines and Minerals.
The proper officer of a corporation is a public officer charged with the duty of transferring on books of
mining corporation stock which has been sold at sheriff's sale, and for which a certificate of sale has been
issued by sheriff, and he may be compelled to do so by mandamus. Comp. Laws, secs. 1617, 8843, 8853.
Stockholder maintaining a proceeding on behalf of himself and others similarly situated, to have court
appoint a board of directors for mining corporation, on ground that corporation failed to elect directors
within six months after time designated for its annual meeting, was not required to allege and show that he
and others similarly situated had a strong majority of the total voting power, were for any reason unable to
secure an annual meeting of the stockholders, or secure a call of a special meeting by request to board of
directors or other officer designated by the bylaws to call such meeting. Comp. Laws, sec. 1634.
That owners of stock in mining corporation at time of meeting of directors did not object to directors'
failure to have a new election of directors would not preclude successors in interest of original owners from
having a board of directors appointed and from seeking aid of legal methods provided for that purpose, and
did not estop them from resorting to courts for help, and after expiration of six months a new right
accrued which was not waived by the original owners. Comp. Laws, sec. 1634.
Proceeding in the matter of the petition of Albert S. Simrak, a stockholder of the Double O
Mining Company, a Nevada corporation, on behalf of himself and others similarly situated,
for appointment of directors, wherein the Double O Mining Company answered the petition
denying stockholders' right to any relief. From an adverse judgment and order, the Double O
Mining Company appeals. Judgment and order affirmed.
H. R. Cooke, of Reno, for Appellant.
Painter, Withers & Edwards, of Reno, and Harold E. Haven, of San Francisco, Calif., for
Respondent.
OPINION
Albert S. Simrak, a stockholder in the Double O Mining company, a Nevada corporation,
on behalf of himself and others similarly situated, filed a petition in the Second judicial
district court, in and for the county of Washoe, under the provisions of section 1634, Nevada
Compiled Laws, praying said court to appoint a board of directors for the said Double O
Mining Company, alleging that the said Double O Mining Company had failed and neglected
to elect directors within six months after the time designated for its annual meeting. The
Double O Mining Company answered said petition, denying the right of said stockholders to
any relief under said section.
Several questions are presented. The important one is: Were the petitioning stockholders,
at the time of filing the petition, stockholders holding stock entitling them to exercise at least
a majority of the voting power, as provided in said section 1634 N. C. L.? This question
presents for determination whether or not the claim of ownership by Simrak to 456,572
shares, alleged to have been purchased by him at sheriff's sale, is valid.
Simrak instituted an action against one O. O. Emmons, a stockholder of record in said
Double O Mining Company, and caused to be attached 456,572 shares of the capital stock of
said company standing on the records of said Double O Mining Company in the name of
Emmons. Later judgment was rendered in Simrak's favor, and execution issued. The said
shares of stock were sold at sheriff's sale, purchased by Simrak, and the sheriff issued a
certificate of sale and delivered the same to the said purchaser.
In order for the petition to be sufficient, legal title to the 456,572 shares in question must
be held by Simrak.
At the time the writ of attachment against said shares was levied, a return was made by the
said Double O Mining Company, wherein it was stated, on information and belief, that the
said shares of stock standing in the name of Emmons on the records of the company had been
sold by said Emmons prior to the levy of the attachment.
1-3. Appellant insists that before the legal title to the stock purchased by respondent at the
execution sale could pass so that said 456,572 shares could be counted in determining
whether stockholders holding stock entitling them to exercise at least a majority of the
voting power had petitioned the court, there must be an entry of the transfer upon the books
of the corporation. It is conceded no such entry appears. Appellant rests its case, insofar as
this question is concerned, squarely upon the provision made in the last two lines of section
1617 N. C. L., which read: No transfer of stock shall be valid against the corporation until it
shall have been registered upon the books of the corporation. A transfer of stock between
individuals, in order to receive recognition by the corporation, must be registered upon its
book; however, if not so registered, the transfer is binding upon the parties, and the equitable
title, at least, passes. Further, as between individuals, a registration upon the corporate books
must be made in order that the transferee may be entitled to exercise voting power. In re
Argus Printing Co., 1 N. D. 434, 48 N. W. 347, 12 L. R. A. 781, 26 Am. St. Rep. 639, 647;
Merchants National Bank v. Wehrmann, 202 U. S. 295, 26 S. Ct. 613, 50 L. Ed. 1036, 1040;
6 Fletcher, Corp., 6339, sec. 3796 and n. 19.
4-6. We do not believe such to be the case in the event of a judicial sale. Primarily, the
enactment of section 1617 N. C. L. was to provide protection to the officers of a corporation
in determining the ownership of or right to vote shares of stock. It readily appears that under
certain circumstances corporation officials would be confronted with conflicting claims of
ownership and the right to vote shares of stock, and thus long delays or periods of
uncertainty result.
that under certain circumstances corporation officials would be confronted with conflicting
claims of ownership and the right to vote shares of stock, and thus long delays or periods of
uncertainty result. So the law has wisely provided, since a nonjudicial body such as the
officers of a corporation are not equipped with the power to make a judicial determination of
conflicting claims, that they have a right to rely upon the records in finding who has the right
to vote stock. But in providing that safeguard and rule of procedure for the officers of a
corporation, it does not necessarily follow that the legislature intended to thereby abridge,
restrict or interfere with the proper functioning of courts which are equipped with the
necessary power, machinery, and instrumentalities to make determinations as to ownership
from proper evidence presented. This is as it should be, because if courts were not permitted
to proceed in the usual manner and go behind stock registration to determine the ownership,
the officers of a corporation would be in a position, through willful neglect of duty or other
ulterior motives, to deny real owners the right to vote their stock. That is why it may be said
that insofar as ownership is concerned, as to the officers of a corporation the registration
record is conclusive, but such is not the case with the courts. Lawrence v. Parlier Estate Co.,
15 Cal. (2d) 220, 227, 100 P. (2d) 765; Italo Petroleum Corporation v. Producers Oil
Corporation, 20 Del. Ch. 283, 174 A. 276, 278; Hall v. Woods, 325 Ill. 114, 156 N. E. 258,
259; Danbom v. Danbom, 132 Neb. 858, 273 N. W. 502; 18 C. J. S., Corporations, p. 1002,
sec. 416.
These cases supra deal, in the most part, with mandamus proceedings, wherein action was
taken against officers of corporations to compel a recognition of the true ownership. They are
authority for the proposition that courts will not hesitate to disregard registration on corporate
books in order to reach the real situation.
In the case of Lippitt v. American Wood Paper Co., 14 R. I. 301, 302, certain stock was
levied upon and sold at execution sale, and a sheriff's deed was given to the purchaser.
14 R. I. 301, 302, certain stock was levied upon and sold at execution sale, and a sheriff's
deed was given to the purchaser. The purchaser made a demand in writing on the treasurer of
the corporation, stating that certain shares of stock in the corporation had been sold at
execution sale, and to transfer the said stock upon the books of the corporation, which request
was refused, and the suit was brought to enforce compliance. In discussing the matter, the
court said:
The case has been argued as if a transfer on the corporation books were necessary to
perfect the complainant's title. We think this is a misapprehension. The statute expressly
provides that, when shares of stock are sold on execution, the deed given by the officer
making the sale shall vest in the purchaser all the right, title, and interest of the defendant in
such shares.' * * * If, therefore, the sale was duly made and Morton C. Fisher was the legal
owner of the shares sold, the complainant has succeeded to his title, and any transfer on the
corporation books in superfluous.
Section 8843 N. C. L. provides that shares * * * in any corporation * * * may be attached
in execution, in like manner as upon writs of attachment.
And section 8853 N. C. L. provides: The officer making the sale shall execute and deliver
to the purchaser a certificate of sale and payment. Such certificate shall convey to the
purchaser all right, title, and interest which the debtor had in and to such property on the day
the execution was levied.
The effect of a sale under the Nevada statute is much the same as that under the Rhode
Island statute, as a comparison of the wording of the Nevada and Rhode Island statutes
discloses.
7-8. Further, the practice in some cases in the federal courts, where equity has intervened
to supervise elections of certain corporations and where a master has been appointed to take
charge of such elections, has been to expressly provide in the order appointing the master
that he, the said master, be not bound by the recitations of the records of the corporation
as to ownership, but that evidence as to the exiting facts be taken upon which to base a
finding.
master that he, the said master, be not bound by the recitations of the records of the
corporation as to ownership, but that evidence as to the exiting facts be taken upon which to
base a finding. 19 C. J. S., Corporations, sec. 720, p. 41, note 46. The cases cited under said
note demonstrate the authority which courts of equity will exercise, and refuse to be bound by
the entries on the books of the corporation if such entries are found to be at variance with the
true facts. Court decrees and sales thereunder are given the effect of a complete transfer of
title, and certificates of sale presented to a corporation entitles its officers to make appropriate
entries on the books; but such entries are merely evidence of the change in ownership which
the judgment and sale have theretofore accomplished. The certificate of sale received by
Simrak is self-executing; the transfer to him of the legal title to said shares was passed by it,
with the right to have a transfer on the books of the corporation made by the proper
corporation officer. In fact, the proper officer of the corporation is, pro hac vice, a public
officer charged with this duty, and he may be compelled to do so by mandamus. 18 C. J. S.,
Corporations, p. 1002, sec. 416; Memphis Appeal Publishing Co. v. Pike, 56 Tenn. 697, 9
Heisk. 697; Hair v. Burnell, C. C., 106 F. 280.
The uncertainties which may appear relative to the effect to be given that provision of
section 1617 N. C. L., quoted supra, are more readily cleared away if we keep in mind the
manifest difference its controlling effect has upon corporate officers and that had upon courts.
In the first instance it is the officers of the corporation who determine where the voting power
lies, and in so doing are bound by the express provisions of the statute. In the second instance
the court is asked to make such a finding, and in so doing is bound only by the far-reaching
and searching inquiry incident to equity practice. Such was the function of the district court in
this case; its machinery being set in motion by the filing of the petition and the answer of
the defendant corporation, its inquiry was not confined to a mere inspection of the
corporate books; it had a right to give effect to the solemn decree of a court of record and
the process issued thereon, in determining the ownership of the stock in question and as
to where the right to vote it rested.
filing of the petition and the answer of the defendant corporation, its inquiry was not confined
to a mere inspection of the corporate books; it had a right to give effect to the solemn decree
of a court of record and the process issued thereon, in determining the ownership of the stock
in question and as to where the right to vote it rested. In the proceedings had on the petition
asking for the appointment of directors, no question as to the validity of the sale under
execution was raised, other than the introduction into evidence of the return made by the
corporation, to the effect that it had information and belief that the stock standing in the name
of Emmons on its books had been transferred prior to the levy of the attachment. Such an
assertion could not be considered by the trial court as sufficient to nullify the attachment
proceedings. Appellants suggests that to give effect to the holding that the entry upon the
corporation books was not conclusive upon the courts would result, in a great measure, in
destroying the desirability of incorporating under the Nevada law, because such a holding
might result in harsh and unjust results and overthrow long and well-settled construction. We
are unable to perceive wherein such a result would follow, because the holding in no way
detracts from the settled law that insofar as the corporation is concerned the recitations upon
the books of the corporation are conclusive, as is intended by the statute, and the decision
goes no further than to follow the established law that the recitations in the register of the
corporation are not and should not be conclusive upon the courts. We think shareholders of
corporations incorporated under the laws of Nevada may well feel secure in the knowledge
that claims of ownership of stock and the right to exercise the voting power thereof,
submitted to a court for determination, will not receive its sanction unless the careful scrunity
and consideration of the court discloses such claims to be legal and just.
9. Appellant argues that inasmuch as section 1634 N. C. L. provides that a district court
has jurisdiction in equity to appoint directors in the event of a failure to hold an annual
meeting, then the procedure to be followed should be according to equitable rules; that
since there is no allegation or showing that the petitioners, having a strong majority of
the total voting powers, were, for any reason, unable to secure an annual meeting of the
stockholders or secure a call of a special meeting by request to the board of directors or
other officer designated by the bylaws to call such meeting, the petitioners are in no
position to invoke the aid of a court of equity; that without such an allegation the
complaint fails to state a cause of action; further, stockholders holding a majority of the
voting power could control a corporation and force action by mandamus in the event the
officers refused to act.
in equity to appoint directors in the event of a failure to hold an annual meeting, then the
procedure to be followed should be according to equitable rules; that since there is no
allegation or showing that the petitioners, having a strong majority of the total voting powers,
were, for any reason, unable to secure an annual meeting of the stockholders or secure a call
of a special meeting by request to the board of directors or other officer designated by the
bylaws to call such meeting, the petitioners are in no position to invoke the aid of a court of
equity; that without such an allegation the complaint fails to state a cause of action; further,
stockholders holding a majority of the voting power could control a corporation and force
action by mandamus in the event the officers refused to act. This contention cannot be
sustained, for the reason that the statute contains no such requirement, and to so construe it
would necessitate reading into the statute such a provision.
10. Appellant further contends there is no showing that the predecessors in ownership of
the stock whose holders are asking the court to name directors (which said predecessors were
owners of said stock at the time the annual meeting should have been held) did not acquiesce
in the failure to hold the annual meeting, and therefore the present owners are estopped from
resorting to the courts for help. If it were a fact that the owners of the stock at the time the
meeting should have been held did not object, that fact would not preclude their successors in
interest for all time from having a board of directors appointed and from seeking the aid of
legal methods provided for that purpose. After the expiration of six months a new right
accrued, which could not be waived in advance by parties now strangers to the corporation.
Whether or not Simrak purchased the 456,572 shares of stock in question here with
knowledge that the certificates therefor might be in the hands of unknown parties cannot
affect these proceedings, because it is not contended that unknown parties have the right to
vote the shares of stock standing on the records in the name of O. O. Emmons.
contended that unknown parties have the right to vote the shares of stock standing on the
records in the name of O. O. Emmons.
Judgment and order affirmed.
____________
61 Nev. 440, 440 (1942) Penrose v. Whitacre
HERBERT PENROSE Et Al. for Their Own Use and Benefit and for the Use and Benefit of
All Others Similarly Situated, Respondents, v. WALTER WHITACRE, as Tresurerr
and Ex Officio Tax Receiver in and for the County of Lyon, State of Nevada, and
Walker River Irrigation District, Appellants.
No. 3367
December 30, 1942. 132 P.(2d) 609.
1. Statutes.
In construing statute, court will endeavor to ascertain the true intent of the legislature, resolving any
doubt in favor of what is reasonable as against what is unreasonable.
2. Waters and Water Courses.
Where irrigation district advanced money from its operation and maintenance general fund as part of an
agreement whereby federal bureau of reclamation constructed canal for improvement district of the
irrigation district, under the irrigation district act, the money for completing the canal and repaying the
money advanced by the irrigation district could not lawfully be raised without the holding of a special
election. Comp. Laws, secs. 8017, 8018, 8025, 8028, 8038, 8045, 8066, 8074, and sec. 8072, as amended
by Stats. 1933, c. 186, sec. 9.
The repayment of money advanced by irrigation district under agreement with federal bureau of
reclamation for construction of canal for benefit of improvement district of the irrigation district and money
proposed to be expended in completing the construction of the drainage canal would not constitute
operating and maintenance expenses within rule that special elections are not necessary in improvement
district for purpose of raising money or incurring indebtedness for operating and maintenance expenses.
Comp Laws, secs. 8017, 8018, 8025, 8028, 8038, 8045, 8066, 8074, and sec. 8072, as amended by Stats.
1933, c. 186, sec. 9.
Opportunity of improvement district to have drainage canal constructed by civilian conservation corps
through federal reclamation bureau did not either by itself or taken in connection with
waterlogged condition of land in improvement district, create a legal "emergency"
justifying assessment of all land in the improvement district without first holding a
special election.
reclamation bureau did not either by itself or taken in connection with waterlogged condition of land in
improvement district, create a legal emergency justifying assessment of all land in the improvement
district without first holding a special election. Comp. Laws, sec. 8066.
Where owners of land in improvement district sought to prevent enforcement of assessment which board
of directors was without any authority to levy, injunction was the proper remedy since statute providing
for correction of special assessment and statute providing for payment of assessment under protest and
authorizing suit to recover money so paid did not provide adequate remedies. Comp. Laws, secs. 8022,
8037.
6. Waters and water Courses.
Owners of land in improvement district who urged board of directors to do something to relieve
waterlogged condition of their land and provide drains but who did not ask that any money be raised or
indebtedness incurred without authorization by special election were not estopped from questioning
validity of special assessments made by board, which knew all the facts, without the holding of a special
election. Comp. Laws, sec. 8066.
Generally, the doctrine of estoppel has no application where a special assessment is void.
Where it was more than two years after work commenced before electors of improvement district were
given opportunity to approve or reject, at special election, question of issuance of certificates of
indebtedness, and it was not until the summer of 1939 that special assessment complained of was levied,
the fact that landowners made no objection or took any action in opposition to assessment until November
1939, did not estop landowners from questioning legality of special assessment since they were not
required to protest or to take any action until the attempted enforcement of the illegal levy. Comp. Laws,
sec. 8066.
Appeal from First Judicial District Court, Lyon County; L. O. Hawkins, Presiding Judge.
Action by Herbert Penrose and others, for their own use and benefit and for the use and
benefit of all others similarly situated, against Walter Whitacre, as treasurer and ex officio tax
collector in and for the county of Lyon, State of Nevada, and the Walker River Irrigation
District to enjoin collection of assessment. From an adverse judgment and from an order
denying defendant's motion for a new trial, the defendants appeal.
an adverse judgment and from an order denying defendant's motion for a new trial, the
defendants appeal. Affirmed.
W. M. Kearney and Robert Taylor Adams, both of Reno, for Appellant Walker River
Irrigation District.
Franklin H. Koehler, of Yerington, for Appellant Walter Whitacre.
John R. Ross, of Carson City, for Respondents.
OPINION
In 1935, and for a number of years prior thereto, a large part of the lands in improvement
district No. 2 of the Walker river irrigation district became more and more waterlogged until
the growth of crops and pasture was seriously interfered with, and it was difficult or
impossible for land owners in said improvement district to borrow money from the federal
land bank.
There are four improvement districts in the Walker river irrigation district, and the board
of directors of the latter acts as the board of directors of each of the improvement districts.
For the sake of brevity, improvement district No. 2 will frequently be referred to herein as the
improvement district, and the Walker river irrigation district as the irrigation district.
In 1935 a majority of the land owners and water users in the improvement district appealed
to the board of directors of the irrigation district, asking that something be done in the way of
drainage to relieve the waterlogged condition of the lands. The board sent a representative,
Mr. Roy M. Whittaker, to confer with the engineer of the United States bureau of
reclamation, Mr. L. J.
Mr. L. J. Foster. The latter told Mr. Whittaker that if the interested parties would furnish him
with plans and specifications for a drainage canal, he would consider having the project
constructed by the civilian conservation corps.
A majority of the land owners and water users in the improvement district then organized
the Wabuska drainage association, which employed and paid a surveyor whose map showing
the course of construction and amount of excavation to be done was submitted to Mr. Foster.
He approved the project, and entered into an agreement with the irrigation district that if the
latter would furnish and maintain the necessary excavator, the bureau of reclamation would
have the work done by the C. C. C. It further appears that the bureau also agreed to and did
furnish purchase orders for gasoline and oil, pay the salary of the dragline operator and the
oiler, and furnish cement, culverts, and all other materials necessary for the construction of
the drain.
The work was begun in December 1935 and continued until the bureau's funds were
exhausted in March 1938. About nine miles of canal were constructed, in two segments, one
in the southern, the other in the northern portion of the improvement district. The amount
expended by the bureau in this work was approximately $30,000, while the irrigation district
advanced only $3,681.30 in carrying out its part of the agreement. This $3,681.30 was taken
from an irrigation district operation and maintenance general fund made up of moneys raised
by assessments, and which is used for replacing washed-out dams and for other operation and
maintenance purposes. When the work benefits the whole irrigation district, every user
therein is assessed; when it benefits only certain users, the assessments are made upon their
acreages only. The canal, as planned, was to be about eleven and one half miles in length.
When the C. C. C. stopped work in March 1938 there were still two and one half miles
between the southern and northern segments which would have to be excavated before the
canal could be completed.
and northern segments which would have to be excavated before the canal could be
completed. Some repair work has been done since March 1938, but no further construction
work. The trial court found that the lands lying above, which have been drained by
construction of the southern segment of the canal, have been materially benefited by such
drainage; that the lands lying between the two segments of the canal have been injured by the
dumping of such drained water upon them; and that the lands through or below which the
northern segment of the canal was dug have not been materially affected by said construction.
Improvement district No. 2 was organized originally in 1924. In 1937, long after work on
the canal had begun, upon petition of a majority of the electors owning a majority of the lands
in said improvement district, the board of directors of the irrigation district reformed it,
changed its boundaries, and initiated proceedings looking to an adequate drainage system to
be financed by the issuance of certificates of indebtedness of the newly organized
improvement district. The change of boundaries was based upon the idea of embracing in the
improvement district the lands and area which the board of directors assumed had been
benefited by the partial construction of the canal, also those lands which the board assumed
would be benefited from future completion of the project.
On August 5, 1937, the engineer's report covering the proposed works and
improvements was approved, and the board proceeded to apply to the State irrigation district
bond commission for its approval of the project, cost of which was to be provided for by the
issuance of certificates of indebtedness in the aggregate amount of $15,000. On December 22,
1937, the commission approved the reorganization of the improvement district and the
proposed method of financing the drainage project. At the same time the commission ordered
that a special election be called. On January 5, 1938, the board of directors of the irrigation
district adopted a resolution authorizing the issuance of certificates of indebtedness of
the improvement district in the principal amount of $10,000, subject to the approval of
the qualified electors.
the board of directors of the irrigation district adopted a resolution authorizing the issuance of
certificates of indebtedness of the improvement district in the principal amount of $10,000,
subject to the approval of the qualified electors. A special election was ordered for February
5, 1938. At the election forty-six votes were cast for, and twenty-eight against, the proposed
issuance of certificates of indebtedness. The proposition voted on failed, therefore, to receive
the approval of two-thirds of the electors, as required by the statute, and so was defeated.
The foregoing proceedings and elections were had and held pursuant to the provisions of
sec. 8066 N. C. L. 1929, being sec. 49 1/2 of the Nevada irrigation district act of 1919 (Stats.
of Nevada, 1919, chap. 64, p.84).
The special election having failed of its purpose, proceedings under said section 8066 were
abandoned; but after construction work ceased in March 1938 a large number of the land
owners and water users in the improvement district again appealed to the board of directors of
the irrigation district, asking the board to take such other measures, if any, as would enable
the improvement district to finance the completion of the drainage canal, provide for the
payment of certain indebtedness already incurred, and cover future expense incident to the
operation and maintenance of the project. In April 1938 said owners and users signed an
agreement with the irrigation district (never signed by the latter), containing the following
provisions:
(a) District will use its excavator equipment at no cost for rental to the Owners in the
prosecution of this work, and the Owners agree to pay for all equipment repairs, cable or
necessary expenditures made by the district in the prosecution of this work.
(b) District will make the necessary advances or negotiate a loan in behalf of the Owners
in a sum not to exceed the amount of costs of improvements contemplated under this
agreement, owners agreeing to repay said sum, together with interest accrued thereon, and
hereby expressly authorize District to assess all the land within Local Improvement
District No.
said sum, together with interest accrued thereon, and hereby expressly authorize District to
assess all the land within Local Improvement District No. 2 in an aggregate amount sufficient
to repay said advances or loan and accrued interest, upon the basis of owners' acres in the
Local Improvement District No. 2.
(c) The owners agree to an assessment of Ten Cents (10) per acre per year on all lands
within said Local Improvement District No. 2 until full amount of advances made by Walker
River Irrigation District are fully paid.
(d) Owners hereby expressly agree to hold District free and harmless from all liability or
loss by reason of the acts or any of the acts of the District in connection herewith.
On August 5, 1938, pursuant to said agreement, the board of directors of the irrigation
district, acting as the board of directors of the improvement district, adopted a resolution
purporting to empower the latter to incur an indebtedness in the aggregate sum of $8,000, to
borrow that amount of money, to issue warrants to the lender and to levy assessments on the
lands in said improvement district sufficient to redeem such warrants. Upon application by
said board to the state board of irrigation district bond commissioners, the latter approved the
foregoing resolution on August 31, 1938, and authorized the improvement district to borrow
said amount of money, issue and deliver warrants therefor, and levy assessments against the
lands in the improvement district sufficient to raise the money necessary to redeem and pay
such warrants at their maturity. On September 7, 1938 the board of directors of the
improvement district adopted a resolution authorizing said district to issue such warrants.
On July 5, 1939, pursuant to the foregoing proceedings, the board of directors of the
irrigation district, purporting to act under the provisions of sec. 8038 N. C. L. 1929, being
sec. 27 of the Nevada irrigation district act, fixed and levied a special assessment of 18 cents
for and on each acre of land in said improvement district.
cents for and on each acre of land in said improvement district. This assessment was included
in the 1939 assessment roll of the irrigation district, which was thereafter delivered to the
auditor of Lyon County. That official incorporated it in the county assessment roll for 1939,
which was then delivered to the clerk, treasurer and ex officio tax collector of said county. In
the first week of November 1939 the tax collector mailed, to plaintiffs and other owners and
users in said improvement district, tax statements showing taxes due to Lyon County and
assessments due to the irrigation district, the latter including the 18-cent special assessment
which had been levied against all the lands in the improvement district. The special
assessment complained of in this case was the second in a series of such assessments levied
and to be levied in the years 1938, 1939, 1940, and 1941, to raise said sum of $8,000.
Plaintiffs, claiming that said special assessment was wholly illegal and void, brought this
action in the First judicial district court, Lyon County, praying that the collection of said
assessment be perpetually enjoined. The trial court, by its judgment, granted the relief prayed
for, except that as to four of the plaintiffs the action was dismissed for the reason that they
had paid the 18-cent assessment. This appeal is from said judgement and from an order
denying defendants motion for a new trial.
The money to be raised by the special assessment was to be used (1) to complete the
construction of the drainage canal, (2) to repay the irrigation district the $3,681.30 it had
advanced under its agreement with the reclamation bureau, and (3) for expense in operating
and maintaining the project. Appellants contend that the proposed assessment is authorized
by the provisions of the Nevada irrigation district act, and directs particular attention to secs.
10, 10a, 14, 17, 32, 49 1/2, and 54; being, respectively, secs. 8017, 8018, 8025, 8028, 8045,
8066, and 8072.
Section 10 (sec. 8017 N. C. L.) contains the following provisions: "The board of directors
shall have power to manage and conduct the business and affairs of the district, to make
and execute all necessary contracts.
provisions: The board of directors shall have power to manage and conduct the business and
affairs of the district, to make and execute all necessary contracts. * * * Said board shall also
have the right to acquire, either by purchase, condemnation, or other legal means, all lands,
rights and other property necessary for the construction, use and supply, operation,
maintenance, repair and improvement of the works of the district, including canals and works
constructed and being constructed by private owners, lands for reservoirs for the storage of
water, and all other works and appurtenances, either within or without the State of Nevada,
and shall also have the right to acquire or contract for the delivery of electric power and
electric-power or transmission lines; provided, that the board shall not have the power to
acquire or contract for the construction or acquisition of electric-power or transmission lines
at a cost exceeding the sum of fifteen thousand dollars without first calling a special election
thereon as provided in this act. * * * The board may appropriate water in accordance with the
law, and also construct the necessary dams, reservoirs, and works for the collection, storage,
conservation and distribution of water for said district and for the drainage of the lands
thereof, and do any and every lawful act necessary to be done in order to accomplish the
things and purposes herein described.
Section 10a (sec. 8018 N. C. L.) reads: The works of an irrigation district shall be held to
include any drain or watercourse, any side, lateral, spur or branch ditch or drain, whether
opened, covered or tiled, or any natural watercourse into which drains or ditches of the
district may enter for the purpose of outlet, whether such watercourse is situated in or outside
of the district. And to secure complete drainage of the lands within any irrigation district the
board of directors is hereby vested with full power to widen, straighten or deepen any
watercourse or remove any obstruction or rubbish therefrom, whether such watercourse is
situated in, outside of or below the district; and when it is necessary, straighten such
natural watercourse by cutting a new channel upon other lands; the value of such lands to
be occupied by such new channel, and damages, if any, made by such work may be
ascertained or paid in the manner that is now or may hereafter be provided by any law
providing for the exercise of the right of eminent domain in this state.
of or below the district; and when it is necessary, straighten such natural watercourse by
cutting a new channel upon other lands; the value of such lands to be occupied by such new
channel, and damages, if any, made by such work may be ascertained or paid in the manner
that is now or may hereafter be provided by any law providing for the exercise of the right of
eminent domain in this state. The expenses of the work provided for in this section shall be
paid from moneys arising from assessments upon lands within the district or in any lawful
manner acquired.
Section 14 (sec. 8025 N. C. L.): The board of directors, or other officers of the district,
shall have no power to incur any debt or liability whatever, either by issuing bonds or
otherwise, in excess of the express provisions of this act, and any debt or liability incurred in
excess of such express provisions shall be and remain absolutely void; provided, that for the
purpose of organization, or for any of the purposes of this act, the board of directors may, at
any time with the approval of the state board of irrigation district bond commissioners, incur
an indebtedness not exceeding in the aggregate the sum of thirty thousand dollars, nor in any
event to exceed $1 per acre, and may cause warrants of the district to issue therefor, bearing
interest at six per cent per annum, and the directors shall have the right and power to levy an
assessment of not to exceed one dollar ($1) per acre on all lands in said district for the
payment of such expenses. Thereafter the directors shall have the right and power to levy an
assessment, annually, in the absence of assessments therefor under any of the other provisions
of this act of not to exceed twenty (20) cents per acre on all lands in said district for the
payment of the ordinary and current expenses of the district, including the salaries of officers
and other incidental expenses. Such assessment shall be collected as in this act provided for
the collection of other assessments.
Section 17 (sec. 8028 N. C. L.), relating to assessments based on the apportionment of
costs of certain works in proportion to the benefits which will accrue to each tract or
subdivision, provides in part: Whenever thereafter an assessment is made, either in lieu of
bonds, or an annual assessment for raising the interest on bonds, or any portion of the
principal, or the expenses of maintaining the property of the district, or any special
assessment voted by the electors, it shall be spread upon the lands in the same proportion as
the assessments of benefits, and the whole amount of the assessments of benefits shall equal
the amount of bonds or other obligation authorized at the election last above mentioned;
provided, always, that the benefits arising from the undertakings for which special
assessments are made may be distributed equally over the lands, or especially apportioned,
and that assessments or tolls and charges may be made or imposed as hereinafter provided,
when coming within the designation of operation and maintenance charges, by way of a
minimum stated charge per acre whether water is used or not, and a charge for water used in
excess of the amount delivered for the minimum charge, or such other reasonable method of
fixing or collecting the operation and maintenance charge as the board of directors may adopt.
Where drainage works are to be constructed, benefits may be apportioned to higher lands
which are or may be irrigated from a common source or combined sources and by the same
system or combined systems of works not then actually requiring drainage by reason of the
fact that their irrigation contributes, or will, if irrigated, contribute water which must be
carried off or away from the lower lands.
Section 32 (sec. 8045 N. C. L.) reads in part: The cost and expense of purchasing and
acquiring property, and of constructing works to carry out the formulated plan or plans,
whether for irrigation or drainage or both, or for the improvement or supplementing of
existing works, except as otherwise provided herein, shall be paid out of the construction
fund.
paid out of the construction fund. For the purpose of defraying the organization and current
expense of the district, and of the care, operation, maintenance, management, repair, and
necessary current improvement or replacement of existing works and property, including
salaries and wages of officers and employees and other proper incidental expenditures, the
board may fix rates of tolls or charges, and provide for the collection thereof by the district
treasurer as operation and maintenance, or some like designation, or may levy assessments
therefor, or for a portion thereof, collecting the balance as tolls or charges as aforesaid. In this
relation provision may be made by the board for the fixing, levying and collection of a
minimum, flat, or stated operation and maintenance assessment, toll, or charge per acre,
whether water is used or not, and a further operation and maintenance toll or charge for water
used in excess of the amount delivered for the minimum charge; or the board may adopt other
reasonable methods of fixing and collecting the operation and maintenance charges.
Assessments, tolls, and charges may be collected in advance, and the assessment aforesaid,
and such tolls and charges, may be based upon an estimate of the operation and maintenance
revenue required for the current or ensuing year; to be adjusted as near as may be from year to
year.
Section 49 1/2 (sec. 8066 N. C. L.) contains the following provisions: The board of
directors may also provide for the construction of canals, ditches, laterals, dams, drains or
other structures or improvements or the acquirement, replacement, consolidation or extension
of the same, or the leasing, acquisition or construction of electrical transmission lines and
accessory equipment, the benefits of which affect all or are limited to a portion of the district
only, in the following manner: Upon the recommendation in writing by the district engineer,
or upon a petition signed by a majority of the electors of the district owning land to be
affected, or by electors representing at least one-half of the total acreage to be affected by
such a proposed local improvement, defining the boundaries thereof, and requesting the
board of directors to undertake the carrying out of the same, the board of directors, if it
approves the same, may form and designate such area as an improvement district for the
purpose desired, and shall establish and define the boundaries thereof; and the board of
directors further shall have power to prepare plans and estimates of the cost of such
proposed improvement and to determine the manner in which the cost of such
improvement shall be provided for, and for this purpose may propose the issuance of
bonds, notes, or certificates of indebtedness payable by an assessment or otherwise on
the property in the improvement district, bearing not more than six per cent {6%) per
annum interest, interest payable semiannually, and in such amounts and maturing at such
time or times, not exceeding twenty {20) years, as the board of directors may prescribe;
such securities, whether bonds, notes or certificates of indebtedness, when issued, to be
executed by the officers of the district in the manner prescribed in this act for the
execution of bonds; and the board of directors of the district after the plan has been
approved by the irrigation district bond commission as herein provided and the bond issue
or other indebtedness has been authorized at the special election as provided, shall
proceed to apportion the benefits therefor in the manner prescribed in this act.
of the total acreage to be affected by such a proposed local improvement, defining the
boundaries thereof, and requesting the board of directors to undertake the carrying out of the
same, the board of directors, if it approves the same, may form and designate such area as an
improvement district for the purpose desired, and shall establish and define the boundaries
thereof; and the board of directors further shall have power to prepare plans and estimates of
the cost of such proposed improvement and to determine the manner in which the cost of
such improvement shall be provided for, and for this purpose may propose the issuance of
bonds, notes, or certificates of indebtedness payable by an assessment or otherwise on the
property in the improvement district, bearing not more than six per cent (6%) per annum
interest, interest payable semiannually, and in such amounts and maturing at such time or
times, not exceeding twenty (20) years, as the board of directors may prescribe; such
securities, whether bonds, notes or certificates of indebtedness, when issued, to be executed
by the officers of the district in the manner prescribed in this act for the execution of bonds;
and the board of directors of the district after the plan has been approved by the irrigation
district bond commission as herein provided and the bond issue or other indebtedness has
been authorized at the special election as provided, shall proceed to apportion the benefits
therefor in the manner prescribed in this act. The board shall call a special election in the
manner prescribed in this act for the calling of special elections and shall fix one or more
polling places within the improvement district which is affected by such local improvement,
at which special election there shall be submitted to the electors of the improvement district
to be affected by such proposed improvement, and upon which lands benefits are to be
apportioned, the question substantially in the following form: Shall the improvement of local
improvement district No. .........(briefly describing it) be authorized and the indebtedness
therefor, estimated in the sum of............dollars, be incurred and paid in the manner
following {briefly stating the method of payment, whether by bonds, notes, or certificates
of indebtedness and the time or times of payment, together with the rate of interest)?
describing it) be authorized and the indebtedness therefor, estimated in the sum
of............dollars, be incurred and paid in the manner following (briefly stating the method of
payment, whether by bonds, notes, or certificates of indebtedness and the time or times of
payment, together with the rate of interest)? The election shall in all other respects, including
the qualification to vote, be conducted in the manner prescribed in this act for the holding of
elections within the district in so far as the same may be applicable. If two-thirds of the
qualified electors voting at such special election vote in favor of such proposed local
improvement and the incurring of the indebtedness therefor, the board of directors shall be
authorized to carry out such proposed improvement, providing the proceedings are confirmed
by the court as hereinafter prescribed. No special election shall be called for the purpose
hereinbefore provided until after the proposed local improvement, together with the estimated
cost thereof accompanied by a report of the district engineer, together with the proposed
method of financing the same, shall have been submitted by the board of directors of the
district to the irrigation district bond commission and by such commission approved.
This section goes on to provide for confirmation proceedings in the district court if the
election carries by a two-thirds vote. It further provides for the issuance of bonds in the name
of the improvement district, such bonds to be a lien upon the land included therein. It then
proceeds as follows: For the payment of interest and the redemption of said bonds, notes or
certificates of indebtedness, the board of directors shall levy annual assessments for the
amount of interest and the redemption of said bonds, notes or certificates of indebtedness
upon the lands affected by said local improvement according to the apportionment of
benefits, and the same shall be delivered to the secretary of the district and by him entered in
the assessment book or books thereof, and such assessment or assessments and the
collection thereof shall thereafter take the same course as assessments of the district as
in this act provided.
thereof, and such assessment or assessments and the collection thereof shall thereafter take
the same course as assessments of the district as in this act provided. * * * All the provisions
of this act where applicable shall apply to such improvement districts.
Section 54 (sec. 8072 N. C. L.), as amended, Stats. of Nevada 1933, chap. 186, at pp. 279,
280 (N. C. L. Supp. 1931-1941, vol. 2, pp. 1149, 1150), provides in part as follows: In
addition to the powers with which irrigation districts are or may be vested under the laws of
the state, irrigation districts shall have the following powers: To cooperate and contract with
the United States under the federal reclamation act of June 17, 1902, and all acts amendatory
thereof or supplementary thereto, or any other act of Congress heretofore or hereafter enacted
authorizing or permitting such cooperation, and to cooperate and contract with the State of
Nevada under any laws heretofore or hereafter enacted authorizing or permitting such
cooperation, for purposes of construction of works, whether for irrigation or drainage, or
both, or for the acquisition, purchase, extension, operation, or maintenance of constructed
works, or for a water supply, electric power and transmission lines, or for the assumption as
principal or guarantor of indebtedness to the United States on account of district lands or for
the collection of moneys due the United States as fiscal agents or otherwise, * * *.
Respondents contend that the only lawful way for the improvement district to raise money
for the purpose of completing the construction of the canal and repaying the $3,681.30
advanced by the irrigation district is by special election as provided for in sec. 49 1/2 (sec.
8066 N. C. L. 1929); that two-thirds of the qualified electors voting at such election must vote
in favor of raising money for said purposes before all the lands in the improvement district
can be lawfully assessed therefor. Appellants claim that within the limits prescribed by sec.
sec. 14 (sec. 8025 N. C. L. 1929), money for said purposes may lawfully be raised without a
special election. This contention is based upon the sections (except 49 1/2) heretofore quoted
or quoted from and upon the last sentence of said sec. 49 1/2 which provides, as we have
seen, that All the provisions of this act where applicable shall apply to such improvements
districts. The court is not called upon to go through all of the eighty sections of the irrigation
district act and point out all of the provisions which are, and those which are not, applicable
to improvement districts. What we are concerned with now is whether the provisions relied
upon by appellants authorize the raising of money for the purposes mentioned, by the method
initiated after two thirds of the electors of the improvement district had failed to vote in favor
of the question submitted at the special election.
After the special election, the attempt to raise money under the provisions of sec. 49 1/2
was abandoned; but this would not prevent the improvement district's pursuing another
method for raising the money if authorized by the provisions of the irrigation district act. We
think, however, that the lower court was right in holding that the money for completing the
canal and repaying the $3,681.30 to the irrigation district could not be raised by the method
under consideration on this appeal.
1, 2. The fact that sec. 14 of the irrigation district act (sec. 8025 N. C. L. 1929) and other
provisions of said act relied on by appellants are worded in such manner as to make them
applicable to irrigation districts, as a whole, is not of itself sufficient to justify a holding that
such provisions do not also apply to improvement districts, because, though so worded, one
or more of them could be applicable to improvement districts by virtue of the last sentence in
said sec. 49 1/2. The courts in each instance will endeavor to ascertain the true intent of the
legislature, resolving any doubt in favor of what is reasonable, as against what is
unreasonable.
In sec. 49 1/2 the legislature has prescribed with certainty and in detail the method of raising
money for the purposes under consideration in this case. In doing so, that body has provided
that before such local improvements as constructing canals and drains can be lawfully made
at the expense of all the lands in an improvement district, there must first be a special election
at which two thirds of the qualified electors vote in favor of such proposed local improvement
and the incurring of indebtedness therefor. In view of this legislation, expressly and specially
applicable to improvement districts, it would seem unreasonable to attribute to the legislature
an intent that money for such purposes can lawfully be raised, or indebtedness incurred,
without the holding of such special election. Nor is it reasonable to think that the legislature
would specially provide for an election in sec. 49 1/2 if the board of directors could lawfully
raise such money or incur such indebtedness by virtue of other provisions of the act.
Appellants contend that, under the provisions hereinbefore quoted from amended sec. 54
of the irrigation district act, the board of directors of the district had the power to enter into
the contract with the reclamation bureau. A little further on in the act, however, we find that
sec. 56 (sec. 8074 N. C. L. 1929) opens with the following words: Any proposal to enter into
a contract with the United States for the repayment of construction moneys, the cost of a
water supply, the operation and maintenance of existing works, or the acquisition of property,
and to issue bonds if any be proposed, shall be voted upon at an election wherein proceedings
shall be had in so far as applicable in the manner provided in the case of the ordinary issuance
of district bonds. When sec. 54 is read in connection with secs. 56 and 49 1/2, it does not
change the court's opinion that to raise money for the two purposes heretofore mentioned
requires a special election before a special assessment to cover same may legally be levied on
all the lands of the improvement district.
3. We do not hold that special elections are necessary in improvement districts for the
purpose of raising money or incurring indebtedness for all purposes, such as, for example,
operating and maintenance expenses; but repayment of the $3,681.30 advanced by the
irrigation district, and the money proposed to be expended in completing the construction of
the drainage canal do not, nor does either of them, properly come under that head. Nampa &
Meridian Irrigation District v. Bond, 268 U. S. 50, 45 S. Ct. 383, 69 L. Ed. 843.
4. Nor does the court hold that a special election is necessary in case of emergency.
Appellants maintain that an emergency existed at the time the agreement with the reclamation
bureau was entered into. The emergency, according to them, arose not only out of the
admittedly waterlogged condition of a large part of the lands in the improvement district, but
also by reason of the alleged fact that the opportunity to have the canal constructed by the
civilian conservation corps, mostly at government expense, had to be taken advantage of
without delay, otherwise it would have been lost. It is clear that the waterlogging alone did
not create an emergency, as this condition had existed for years, and though gradually
increasing, nothing sudden or unexpected had taken place. With reference to federal help, Mr.
Whittaker, called by the defendants, testified as follows:
Q. Now, at the time this work was done, was there any question raised about whether the
money would be available at a later date, or was it necessary to accept the proposal at that
time, that is, the CCC and Reclamation money? A. We had to accept the job then or lose the
help for at least that winter.
Q. Was there anything said about the money being available later? Were they to use it for
any other purpose if it were not used then? A. Our experience with the government was we
had to take it when available or chances were we wouldn't get it all, so we took it then.
The trial judge, in his written decisions, said there was no evidence to support the claim
that the assistance of the reclamation service in constructing the canal would have been lost
had construction been delayed until the holding of a special election under the provisions of
sec. 49 1/2. If the evidence had shown that the improvement district was unable to finance the
project, this fact, taken together with the others above mentioned, would have presented a
stronger showing of emergency. McKinney v. Helms, 102 Ind. App. 348, 2 N. E. (2d) 800.
The special election showed that two thirds of the qualified electors did not approve the idea
of assessing all the lands of the improvement district for the purposes mentioned; but the
record fails to show that the improvement district was unable to finance the drainage canal.
So, while the proffered help of the reclamation bureau created an a opportunity very
advantageous to many of the land owners in the improvement district, it did not, either by
itself or taken in connection with the waterlogged condition of the lands, constitute a legal
emergency, justifying assessment of all the lands in the improvement district without first
holding a special election.
5. Appellants contend that respondents have no standing in a court of equity, for the reason
that they have one or more full, adequate, and complete remedies at law. Appellants say that
respondents could and should have taken these matters up first with the board of correction
under sec. 26 of the irrigation district act (sec. 8037 N. C. L. 1929). This section reads: The
board shall meet at its regular monthly meeting in August of each year to correct assessments
and may at such meeting correct assessments so as to conform with the benefits apportioned
as herein provided for to pay obligations incurred or make up deficiencies arising from any
source, and also to apportion and distribute benefits and assessments by reason of additional
land in the district becoming subject thereto, and the secretary shall publish notice of such
meeting for two weeks in a newspaper published in the county in which the district was
organized.
shall publish notice of such meeting for two weeks in a newspaper published in the county in
which the district was organized. In the meantime the assessment book or books shall remain
in the office of the secretary for the inspection of all parties interested. The board of directors,
which is hereby constituted a board of correction for the purpose, shall meet and continue
from day to day as long as may be necessary, not to exceed five days, exclusive of holidays,
and may make such changes in said assessment book or books as may be necessary to have it
conform to the facts. Within ten days after the close of said season the secretary of the board
shall have the corrected assessment book or books completed.
Plaintiffs were not seeking to have the special assessment corrected, but to prevent the
enforcement of an illegal and void assessment which the board of directors was without any
authority to levy.
Appellants maintain that respondents could have paid the assessment under protest, then
sued the district to recover the money so paid. They call attention to sec. 11 of the irrigation
district act (sec. 8022 N. C. L. 1929), authorizing and empowering boards of directors of
irrigation districts to institute, maintain, and defend, in the name of the district, any and all
actions and proceedings, suits at law, and in equity. The remedy suggested would not, in our
opinion, be adequate in this case, wherein we are dealing with a void, not merely an irregular
assessment. Under the express terms of the irrigation district act, a valid assessment would
constitute a lien upon the land included in the improvement district. In the instant case the
attempted enforcement of the illegal assessment would throw a cloud upon respondent's titles.
In such a case, injunction is a proper remedy, and Wells, Fargo & Co. v. Dayton, 11 Nev.
161, is not an authority to the contrary. In that case the property involved was furniture,
fixtures, and money secured by mortgage.
We have finally to consider appellants' contention that respondents are estopped from
questioning the special assessment. It is asserted by appellants that before any work was done,
plaintiffs and others, through committees and at meetings, had urged the board of directors to
do something to relieve the waterlogged condition of their land and provide drainage. They
point out that the local drainage association authorized and employed Mr. Parker to make the
initial survey before any work was commenced. They argue further that the signatures on the
petition of August 3, 1937, to extend the boundaries of the improvement district, and the
signatures on the agreement of April 1938 show that the board relied on the urgings and
promises of the water users to pay the expenses of such drainage over and above the amounts
donated by the reclamation service. Appellants also claim that plaintiffs were benefited by the
construction of the nine miles of canal and that they accepted said benefits prior to the levy of
the special assessment in July 1939. They say that drain ditches sufficient to drain the lands,
particularly those of plaintiffs, were completed and actually used by them for draining their
lands. They also state that the $3,681.30, taken from the operation and maintenance
emergency fund, was advanced on the oral and written promises of many of the parties who
received the benefits, to repay said money to the irrigation district. It is further pointed out
that plaintiffs made no objections to the proposed assessment until November 1939, and that
they took no action in opposition to it until that time. For the foregoing reasons appellants
contend that the doctrine of equitable estoppel should be applied as the board, in expending
said money, acted to its own disadvantage on the faith of the promises made by the water
users.
Those who, including some of the plaintiffs, urged upon the board of directors before any
work was done that some action be taken to relieve the waterlogged lands, did not ask that
any money be raised or indebtedness incurred without authorization by a special election.
lands, did not ask that any money be raised or indebtedness incurred without authorization by
a special election. The agreement to provide for the preliminary survey, signed by many of
the property holders in the Wabuska drainage district, including some of the plaintiffs, was
simply a mutual agreement to obligate ourselves share and share alike on a per acre basis for
the cost of providing a survey to determine a course of a drain canal which the bureau of
reclamation is to construct for the above mentioned district. That survey was made by Mr.
Parker, and paid for by those who signed the agreement. The petition of August 3, 1937,
signed, among others by some of the plaintiffs, expressly requested that a special election be
called. As we have seen, it was called but failed to carry. The agreement of April 1938
signed, among others, by twelve of the plaintiffs, and agreeing to a 10-cent, not an 18-cent
assessment, was signed after all the construction work had been done. After it was signed no
further construction work was performed, nor was any further money advanced by the
irrigation district, except small amounts for repairs. In entering into the agreement with the
reclamation bureau, and levying the assessment of 1939 without calling a special election, the
board of directors was proceeding in a manner which it considered authorized by the statutes;
it was not relying upon any misrepresentations made by plaintiffs, nor was it misled to the
detriment of the district by any conduct on their part. All the real facts were at all times
known to the board.
Referring to the acceptance by plaintiffs, without protest or objection, of benefits resulting
from the construction of nine miles of the canal, appellants do not specify the particular
plaintiffs alleged to have been so benefited. The testimony conclusively shows that not all the
plaintiffs have been benefited. So, even if the court were disposed to hold that some plaintiffs
are estopped by reason of acceptance of benefits, we are not informed in the briefs which
plaintiffs they are.
6, 7. But there are other reasons why plaintiffs should not be held to be estopped under the
rule of estoppel by acceptance of benefits. In the first place, as we have already stated, the
board of directors knew all the facts at all times. 31 C. J. S., Estoppel, sec. 109, p. 349, n. 14.
It was not only equally well, but better informed than plaintiffs. 19 Am. Jur. 742, n. 6.
Secondly, we find nothing in the record to bring this case within any of the exceptions to the
general rule that the doctrine of estoppel has no application where a special assessment is
void. Payette-Oregon Slope Irr. Dist. v. Coughanour, 162 Or. 458, 91 P.(2d) 526; 25 R. C. L.
177, n. 18, 178, n.8, 179, 180, n. 18, 181, nn. 6, 7, 8; 31 C. J. S., Estoppel, sec. 63, p. 251, n.
17.
8. Regarding appellant's complaint that no objection was made, nor any action taken in
opposition to the assessment until November 1939, it may be observed that it was more than
two years after the agreement was entered into with the reclamation bureau and the work
commenced before the electors of the improvement district were given an opportunity to
approve or reject the question submitted at the special election; and it was not until the
summer of 1939 that the assessment complained of was levied. Under these circumstances,
particularly in view of the fact that the board exceeded its powers in levying the assessment
without calling a special election, plaintiffs were not required to protest or take any action
until the attempted enforcement of the illegal levy.
No prejudicial error appearing, the judgment and order appealed from are affirmed.
____________
61 Nev. 463, 463 (1943) In Re Young
In the Matter of Application of JAMES YOUNG for Admission to Practice Law Before the
Courts of the State of Nevada.
No. 3384
January 20, 1943. 132 P.(2d) 1052.
Where petition of attorney from foreign state for admission to state bar disclosed that attorney was
acquainted with old supreme court rule relating to admission on motion, but was erroneously advised by
secretary of state bar before effective date of amendment to supreme court rule that amendment precluded
admission on motion and required attorney to take bar examination, and that, after receiving such
erroneous advice, attorney failed to verify correctness of secretary's opinion until after amendment had
become effective and did not disclose that any member of board of governors or board of bar examiners
shared secretary's opinion or knew of secretary's action, secretary's action was beyond scope of his
authority and petition disclosed no grounds for relief. Rules of Supreme Court, rule I; Comp. Laws, sec.
540 et seq.
Original Proceedings in the matter of the application of James Young for admission to
practice law before the courts of the State. On demurrer of the State Bar of Nevada.
Demurrer sustained.
James Young, Petitioner, of Las Vegas, in pro. per.
Harlan L. Heward, of Reno, for the State Bar of Nevada.
OPINION
Prior to the summer of 1942, attorneys from other states, under certain conditions and
upon compliance with certain requirements, could be and frequently were granted licenses to
practice law in all the courts of this state, on motion, without taking the regular bar
examination. By amendment of supreme court rule I, adopted June 3, published June 19, and
effective July 19, 1942, every applicant for a license to practice as an attorney and
counsellor in Nevada must take the regular bar examination held once each year,
commencing on the second Monday of September.
61 Nev. 463, 464 (1943) In Re Young
19, 1942, every applicant for a license to practice as an attorney and counsellor in Nevada
must take the regular bar examination held once each year, commencing on the second
Monday of September.
In this proceeding petitioner prays the court for an order admitting him to the practice of
law in all the courts of this state. The state bar of Nevada has demurred to the petition upon
the ground that it does not state facts sufficient to warrant the granting of any relief. A
summary of the pertinent allegations of the petition will be found in the following nine
paragraphs:
(1) Petitioner, after acquainting himself with the provisions of the rule as it read prior to
said amendment, wrote a letter on March 5, 1942, at Las Vegas, the city of his residence,
addressed to the secretary of the state bar, at Reno, requesting him to send petitioner
application for admission to practice law in the State of Nevada on motion from a reciprocal
state not requiring and examination. On March 18 the secretary acknowledged receipt of
said letter and requested petitioner to give him, by return mail, certain desired information
about his residence, upon receipt of which the secretary would comply with the request made
in said letter of March 5. In the secretary's letter he enclosed a copy of supreme court rule I,
and directed petitioners attention to subdivision 7 thereof governing qualifications to be
admitted on motion. On March 19, and before petitioner had received the secretary's letter of
March 18, petitioner wrote a second letter addressed to the state bar of Nevada, at Reno, in
which he said he had just learned that the secretary had been ill, and that petitioner would
appreciate it if the office of the state board would cause to be sent him the application form
mentioned in his first letter to the secretary. After receiving the secretary's letter of March 18
petitioner, on March 20, wrote him, giving the desired information regarding his residence in
Nevada. In this letter he further stated that he would endeavor to qualify from the State of
Washington, "which is entirely reciprocal."
61 Nev. 463, 465 (1943) In Re Young
further stated that he would endeavor to qualify from the State of Washington, which is
entirely reciprocal. On April 15 petitioner rather belatedly acknowledged receipt of a letter
from the secretary enclosing a preliminary form of application for admission to practice. In
this letter petitioner stated that he had directed letters to the State of Washington for the
necessary certificates and letter which were to accompany his application, and that same
should be forthcoming within two weeks thereafter.
(2) On June 8 petitioner again wrote the secretary, stating that his six months' residence in
Nevada had been completed on March 31, and that he now had on hand the requisite evidence
of his prior status from the State of Washington and was ready to file his application. In this
letter he inquired with respect to his status under the recent amendment of supreme court rule
I, and added that it had occurred to him that some provision in the amendment or practice
might have left admission on motion available to any who had commenced residence and
work looking toward such admission, and who, perhaps, like I, had completed residence and
the accumulation of the required evidence, prior to or just at a time coincident with the
change. On June 10 the secretary replied to said letter as follows: Kindly be advised that the
amendment to Rule I of the Rules of the Supreme Court governing admissions of attorneys
from other jurisdictions has been amended and will go into effect thirty days after publication.
Publication of the rule will be made in the State Bar Journal and should come out within the
next ten days. Therefore you will be required, when the time comes, to take the regular Bar
examination.
(3) On July 29, two days within the time limited by the rule, petitioner mailed his
application to take the bar examination. Receipt of same, in the absence of the secretary, was
acknowledged on July 31 by his secretary who, in her letter of acknowledgment, advised
petitioner that she had taken the matter up with the president of the state bar, who told
her that petitioner's application was not in the correct form, and instructed her to send
him four copies of application, together with questionnaire, all of which she was enclosing
with the request that petitioner complete and return them at once.
61 Nev. 463, 466 (1943) In Re Young
petitioner that she had taken the matter up with the president of the state bar, who told her
that petitioner's application was not in the correct form, and instructed her to send him four
copies of application, together with questionnaire, all of which she was enclosing with the
request that petitioner complete and return them at once. This he did, about ten days
thereafter.
(4) On August 22 the secretary of the board of bar examiners wrote petitioner, requesting
certain additional information in connection with his application. Petitioner replied by letter
of August 25, giving such information. On August 24 the secretary of the board of bar
examiners wrote the following letter to petitioner: At the meeting of the State Board of Bar
Examiners on August 22nd your Application was considered, but we are unable to pass upon
your examination by reason of the fact that we did not receive your character questionnaire
until August 17th. It is exceedingly unlikely that you will be allowed to take the Bar
Examination this year as we have not the time within which to obtain a complete report on
you. The examinations will be given September 14, 1942, and if, within a reasonable time
prior thereto, your character reports are completed you will be allowed to take the
examination, otherwise not. I will advise you immediately if the Board desires to allow you to
take the examination this year.
(5) On September 5 the secretary of the board of bar examiners wrote petitioner the
following letter: On August 22nd I wrote you requesting information as to your whereabouts
since December, 1940, in order to complete the investigation of your affidavit and
questionnaire. Will you please send me the information immediately. Although your
application cannot be considered by reason of the fact that we have not completed a character
report, I will allow you to take the examination beginning September 14th, 1942, in Reno if
you will sign the enclosed personal request under the conditions stated therein. On
September 7 petitioner replied to said letter as follows: "On receipt of your letter of August
22, 1942, I immediately wrote you a full page letter giving complete information
requested.
61 Nev. 463, 467 (1943) In Re Young
to said letter as follows: On receipt of your letter of August 22, 1942, I immediately wrote
you a full page letter giving complete information requested. I directed it to you at the address
indicated, P. O. Box 2046, Reno, Nevada; its date was August 25, 1942. Frankly, I am past
the stage of being perplexed. I have done everything the rules seemed to require and with just
as much expedition as time and circumstances would permit. I was definitely of the opinion
that under the rules as they existed I was entitled to have had my application for admission on
motion considered but was willing to pass that one at the time; then after spending almost a
full year being advised that I could not even take the examination and now I can take it with
strings attachedits just too much. I should appreciate a definite statement from some one in
authority on the question of whether or not at the time Shindler advised me I could not be
admitted on motion, that advice was correct or incorrect. If it was correct, please just send me
back my $65.00 and the credentials which I forwarded and I will go on from there.
(6) On September 24, the secretary of the board of bar examiners wrote petitioner: On
September 10th I submitted the question of the filing of your application to the Board of
Governors of the State Bar of Nevada, advising them that the Board of Bar Examiners could
not consider your application because of the date of its filing, but that the Board of Bar
Examiners would abide by the decision of the Governors, if directed to consider the
application filed as of any particular date within the time allowed by the rules of the Supreme
Court. I was advised today by letter from the President of the State Bar of Nevada that the
Board of Governors met and concluded that as no application had as yet been filed to be
admitted on motion, and as the authority of the Board of Governors is limited under the State
Bar Act [Comp. Laws, sec. 540 et seq.], that the Board of Governors had nothing before it,
and if such an application should be filed for admission on motion, the Board resolved that it
had no jurisdiction to direct the Board of Bar Examiners to consider it.
61 Nev. 463, 468 (1943) In Re Young
it had no jurisdiction to direct the Board of Bar Examiners to consider it. I regret this
inadvertent upset involving your application, but I want you to know that the Board of Bar
Examiners has been without fault in the matter, and we are bound by the rules which guide us
in these questions.
(7) Had it not been for the advice given him by the secretary of the state bar, petitioner
would have filed his application to be admitted on motion immediately after procuring his
documentary evidence. When petitioner filed his application to take the bar examination, it
was accompanied with documentary evidence certifying to his qualifications and practice
from the State of Washington where he last practiced; said documentary evidence is still on
file with the state bar.
(8) From the time the secretary advised petitioner that he would have to take the regular
bar examination, until the amended rule requiring all applicants to take such an examination
became effective, the state bar actually received, considered, and recommended admission
on a number of applicants in precisely the same status as petitioner, and did not require such
applicants to take the regular bar examination. Not only the president but also the vice
president of the state bar, who was likewise a member of the board of governors, informed
petitioner, after July 19, that they did not feel the state bar or its board of governors had any
jurisdiction to act on an application by petitioner to be admitted on motion, made after that
date.
(9) Upon receipt of the secretary's said letter of August 24, petitioner contacted the state
bar and learned for the first time that he had been misinformed by the secretary in the latter's
said letter of June 10. In view of the misinformation given petitioner in said letter of June 10
the state bar, in good conscience, should have advised petitioner promptly that applications
for admission on motion could be filed up to the time when the rule requiring all applicants to
take the bar examination would become effective.
61 Nev. 463, 469 (1943) In Re Young
bar examination would become effective. In withholding such information, the state bar did
not act in good faith, and petitioner has thereby been unjustly and unfairly dealt with and
discriminated against, all to his serious detriment, financially and otherwise (setting forth
particulars). By reason of the advice given petitioner in said letter of September 24 and the
statements made to him by said officers of the state bar, petitioner is aggrieved by the action
of that body, and is without adequate remedy and recourse.
The state bar does not question the jurisdiction of this court to entertain the petition. The
only question to be determined is whether, by reason of the secretary's letter of June 10,
petitioner's reliance thereon, and the failure of the state bar to advise petitioner within a
reasonable time before July 19 that he could at any time before that date file his application
for admission on motion, he is entitled to be admitted to practice without taking the regular
bar examination.
In advising petitioner, by said letter of June 10, that he would be required to take the
regular bar examination, the secretary was in error. Petitioner could have lawfully filed his
application for admission on motion at any time from March 30 to July 18. But the secretary's
mistake was not made within the scope of his authority. He is not required to be a member of
the board of governors and the petition does not allege that he is a member of that body. It
was not his duty, nor was he authorized, to advise petitioner that he would be required to take
the bar examination. It appears that petitioner himself was at least in doubt as to the
secretary's authority, for on September 7, as we have seen, in a letter to the secretary of the
board of bar examiners, he said he would appreciate a definite statement from some one in
authority on the question of whether or not, at the time he was advised that he could not be
admitted on motion, that advice was correct or incorrect.
61 Nev. 463, 470 (1943) In Re Young
The secretary's letter of June 10 does not say that he had taken up the matter of petitioner's
inquiry with the board of governors. Neither the board of governors, the board of bar
examiners, nor any member of either of those boards advised petitioner, before July 19, that
he would be required to take the bar examination. The advice given him by the president and
vice president of the state bar was given after that date.
There was a period of more than three and one-half months during which petitioner could
have filed his application to be admitted on motion. Instead of doing so, he accepted without
question the opinion of the secretary of the state bar. He did not check up on this opinion till
after the amendment to supreme court rule I had gone into effect. He did not so much as make
an effort to secure a copy of the amended rule which, as he was advised by said letter of June
10, would not be in effect for some forty days thereafter. Petitioner, though not as yet
admitted to practice in this state, has been an attorney for years. He was fully acquainted with
the provisions of supreme court rule I since a time many months prior to the amendment
requiring all applicants to take the regular bar examination. He should have known that he
was not entitled to rely implicitly upon the opinion of the secretary of the state bar as to
whether he could at any time between March 29 and July 19 file his application to be
admitted on motion. He should have filed his application before the new amendment became
effective, as was done in Brydonjack v. State Bar of California, 208 Cal. 439, 281 P. 1018, 66
A. L. R. 1507. If the secretary had refused to file the application, or if, after filing same, the
board had declined to consider it, then petitioner would have been in a position to come direct
to this court for relief.
Petitioner alleges that even if at the time he was advised that he would have to take the
regular bar examination such was the opinion or rule of the board of governors, that board,
when such opinion or rule was changed so as to permit the filing of applications for
admission on motion prior to the effective date of the newly amended rule of court,
should in good conscience have informed him that at any time before July 19 he could file
his application to be admitted on motion.
61 Nev. 463, 471 (1943) In Re Young
changed so as to permit the filing of applications for admission on motion prior to the
effective date of the newly amended rule of court, should in good conscience have informed
him that at any time before July 19 he could file his application to be admitted on motion. But
there is no allegation in the petition that it ever was the opinion of the board of governors or
the board of bar examiners, or of any member or members of either of said boards, that
petitioner could not lawfully file such application at any time before said date. And it does
not appear that either of said boards, or any member or members thereof, knew at any time
before July 19 that the secretary of the state bar had advised petitioner that he would have to
take the bar examination. Under some circumstances a principal is presumed to have
knowledge of declarations made by his agent. But here it does not appear, nor will it be
presumed, that the secretary, in giving said opinion is his letter of June 10, was acting within
the scope of either an actual or apparent authority conferred upon him.
Demurrer sustained.
____________
61 Nev. 472, 472 (1943) Newitt v. Dawe
SUE A. HAZELL NEWITT, Appellant, v. CLARENCE E. DAWE, as Executor of the Last
Will and Testament of William J. Dawe, Deceased Respondent.
No. 3372
February 11, 1943. 113 P.(2d) 918.
1. Joint Tenancy.
Personal property, within statute providing that join tenancy in personal property may be created by
written transfer, agreement, or instrument, includes choses in action. Laws 1939, c. 21.
2. Property.
Choses in action are personal property.
3. Joint Tenancy.
Under statute, joint tenancy did not exist in note and mortgage unless such instrument so provided. Laws
1939, c. 21.
4. Joint TenancyTenancy in Common.
Under note whereby makers promised to pay to the order of one or the other of two payees, secured by
mortgage reciting that it was made between makers of note as parties of the first part and payees thereof as
parties of the second part, no joint tenancy in note and mortgage was created, and hence on death of one
payee and mortgagee his executor and the surviving payee and mortgagee had title to note and mortgage as
tenants in common. Laws 1939, c. 21.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Suit by Sue A. Hazell Newitt against Clarence E. Dawe, as executor of the last will and
testament of William J. Dawe. From a judgment for defendant, plaintiff appeals. Affirmed.
Milton B. Badt, of Elko, for Appellant.
H. U. Castle, of Elko, for Respondent.
OPINION
By the Court, Orr, C. J.:
This appeal presents for determination the question of whether or not the common-law
rule, to the effect that where one of the joint payees of a bill or note dies, title to the
instrument passes to the surviving payees to the exclusion of the representatives of the
deceased, is modified by chapter 21, session laws of 1939, page 15, viz: "An Act to define
the manner in which joint tenancy may be created," approved February 23, 1939.
61 Nev. 472, 473 (1943) Newitt v. Dawe
that where one of the joint payees of a bill or note dies, title to the instrument passes to the
surviving payees to the exclusion of the representatives of the deceased, is modified by
chapter 21, session laws of 1939, page 15, viz: An Act to define the manner in which joint
tenancy may be created, approved February 23, 1939.
The following facts appear:
One Harris and wife had executed their promissory note for $12,500 to the order of
William J. Dawe or Sue A. Hazell Newitt, and as security for this note, Harris and his wife
executed their mortgage to William J. Dawe and Sue A. Hazell Newitt. William J. Dawe
died, and Clarence E. Dawe was appointed executor of his estate. The executor came into
possession of the note and mortgage. Mrs. Newitt made demand for the possession of the note
and mortgage. This was refused, and she commenced suit against the executor, claiming that
by reason of Dawe's death she, as surviving joint obligee, became the owner of the paper. Her
complaint alleged ownership. The deceased's executor admitted all of the allegation of the
complaint except the allegation of ownership, and alleged that estate's ownership of a
one-half interest in the note and mortgage.
1. Prior to the 1939 act the statutory modification of the common-law rule as to the
creation of joint tenancy related to real property only. Sec. 1513, vol. 1, Nevada Compiled
Laws 1929. The act of 1939 makes specific reference to personal property in the following
words: Joint tenancy in personal property may be created by a written transfer, agreement, or
instrument. It is the contention of appellant that the statute quoted supra has no reference to
instruments running in favor of joint obligees, and that the rule in this state is as laid down in
the case of Ehrlich v. Mulligan, 104 N. J. L. 375, 140 A. 463, 57 A. L. R. 596, decided in the
year 1928, and reasserted ten years later in the case of Hill v. Breeden, 53 Wyo. 125, 79
P.(2d) 482. With this contention we cannot agree. We see no reason why the use of the words
personal property in the 1939 statute should be restricted so as to exclude choses in
action.
61 Nev. 472, 474 (1943) Newitt v. Dawe
should be restricted so as to exclude choses in action. The common-law rule has been
abrogated by statutory enactments in many states, and this modification of joint tenancies
with the right of survivorship applies to joint tenancies in personal property, as well as real
property, some states having provisions similar to Nevada: that the relation must be created
by the grant, devise or other instrument. 33 C. J. pp. 902, 903, paragraphs 3 and 4. Under note
27, p. 903, 33 C. J., there are cited two Arkansas cases, Trammel v. Harrell, 4 Ark. 602, and
Sessions v. Peay, 19 Ark. 267, which hold the rule that where two or more payees or obligees
have a joint interest in a note or bond and one dies, the right of action survives to the other, is
not changed by statutes by which all survivorships of real and personal estate are abolished.
These cases support appellant's position, but are not in accord with the weight of authority. In
the case of Trammell v. Harrell, supra, Chief Justice Ringo of said court dissented, and we
believe the reasoning contained in the dissenting opinion is more in accord with the intent and
purposes of statutes modifying the common-law rule. We quote with approval the following
statement taken from said dissenting opinion, as it appears on page 609 of 4 Ark. The
Arkansas statute reads: All survivorships in real and personal estate, are forever abolished.
Chief Justice Ringo said: The language used certainly comprehends every case of
survivorship, and, by necessary implication, as I conceive, repeals all laws establishing any
such right, as well in respect to personal property and choses in action, as to real estate,
without any reservation whatever. And I know of no rule or principle which warrants any
restriction of, or exception to, its general operation; for, I think it has been sufficiently shown,
that the injustice, the hardship, and the inconvenience of the old law, was not confined to real
estate, but also extended to personal property and even choses in action; because, in respect to
the latter, it could scarcely be considered just, that a surviving obligor, simply from the
accidental circumstance of the death of his co-obligor, should be bound to answer the
whole demand, and be deprived of all right to call upon the legal representative of his
deceased co-obligor for a ratable contribution, or that the legal representative of a
deceased co-obligee should be obliged to wait until the joint demand was collected by the
survivor, and then be compelled to sue him, in a court of equity, and there recover of him
the share or portion of the deceased co-obligee, before he could obtain the possession
and enjoyment thereof."
61 Nev. 472, 475 (1943) Newitt v. Dawe
that a surviving obligor, simply from the accidental circumstance of the death of his
co-obligor, should be bound to answer the whole demand, and be deprived of all right to call
upon the legal representative of his deceased co-obligor for a ratable contribution, or that the
legal representative of a deceased co-obligee should be obliged to wait until the joint demand
was collected by the survivor, and then be compelled to sue him, in a court of equity, and
there recover of him the share or portion of the deceased co-obligee, before he could obtain
the possession and enjoyment thereof.
2. Choses in action are personal property (42 Am. Jur. p. 207, par. 26; 50 C. J. p. 763, par.
38), and are included within the term personal property as used in the 1939 statute, quoted
supra. It has been held that notes and mortgages are considered as personal property under
statutes abolishing joint tenancy. Hay v. Bennett, 153 Ill. 271, 38 N. E. 645, at page 649,
column 1. And in the case of State v. District Court, 74 Mont. 355, 240 P. 667, at page 669,
column 2, the court makes the statement that a chose in action is personal property under all
the authorities, citing a number of cases. See also: Gockstetter v. Williams, D. C., 9 F.(2d)
928; City of Atlanta v. Chattanooga Foundry & Pipe Co., C. C., 101 F. 900, at page 907; 50
C. J. p. 763, par. 38, note 30; In re Blumenthal's Estate, 236 N. Y. 448, 141 N. E. 911, 30 A.
L. R. 901. In 19 Cal. Jur. at page 798, par. 3, it is stated that a promissory note is personal
property.
3. Hence the chose in action represented by the note and mortgage in this case, being
personal property and coming within the provisions of chapter 21 of the Laws of 1939, in
order for a joint tenancy to exist therein the instruments must so provide.
In further substantiation of the construction we have placed on the words personal
property as used in our statute, we quote the following from Schouler on Personal Property
(5th ed.), p. 226, note 3: The modern rule of equity is certainly to defeat a joint tenancy
wherever it is possible; and in this country the incident of survivorship is destroyed by
statute almost entirely, except in this cases of legacies or devises and where persons are
appointed co-executors, or co-trustees, or co-guardians, or when one expressly creates
the incident."
61 Nev. 472, 476 (1943) Newitt v. Dawe
rule of equity is certainly to defeat a joint tenancy wherever it is possible; and in this country
the incident of survivorship is destroyed by statute almost entirely, except in this cases of
legacies or devises and where persons are appointed co-executors, or co-trustees, or
co-guardians, or when one expressly creates the incident.
The note executed by Harris and wife, insofar as it is material here, reads: For value
received, we, jointly and severally promise to pay to the order of W. J. Dawe or Sue A. Hazell
Newitt, in Elko, Nevada, or wherever payment shall be demanded in the State of Nevada, or
elsewhere, at the option of the holder hereof, the sum of Twelve Thousand Five Hundred and
no/100 Dollars ($12,500.00).
The pertinent part of the mortgage to secure said note reads: This Mortgage made the 1st
day of January, A. D. 1940, between R. L. Harris and Effie Harris, his wife, both of the City
and County of Elko, State of Nevada, the parties of the first part, mortgagors, and W. J. Dawe
of the City and County of Elko, State of Nevada, and Sue A. Hazell Newitt, of Kansas City,
State of Kansas, the parties of the second part, mortgagees, * * *.
4. From a consideration of the quoted portions of said instruments we find no basis for a
holding that a joint ownership is intended, and, failing that, the holders of the note are tenants
in common.
Certain proceedings were had in this court in this case on a previous occasion. In State ex
rel. Newitt v. District Court, 61 Nev. 164, 121 P.(2d) 442, a writ of mandate was sought to
require the lower court to hear a demurrer to the answer, and in the event the demurrer was
overruled, to compel the respondent court to grant time for the filing of a reply. We said there
that a judgment having been entered, the only manner in which the appellant could have his
rights determined would be to appeal from said judgment or move to set the same aside.
Appellant chose to appeal, and those questions are here for consideration.
61 Nev. 472, 477 (1943) Newitt v. Dawe
are here for consideration. However, appellant recognizes, and has asked this court to also
recognize, that the all-important question involved in the case is whether or not the
common-law rule as to the right of joint obligees exists in this state, and to make a
determination thereof. This we have done. From a reading of the record of the proceedings
had in the lower court it is apparent that around said question is built the entire structure of
appellant's case. An application of the common-law rule is asked. Our holding that said rule is
modified by statute leaves the contention without merit.
While it may be true that appellant was denied the opportunity of having her demurrer to
the answer heard, and also denied the right to reply to affirmative matter in the answer, by
reason of an alleged premature entry of judgment on the pleadings in favor of defendant in the
lower court, yet a granting of the privilege to appellant to exercise such rights at this time
would be of no availthis court will not grant permission to, and appellant does not ask the
privilege of performing a useless act.
The existence or nonexistence of a joint ownership must be ascertained from the
instruments in question. If it does not affirmatively appear there, then such an intention could
not be supplied by pleading it in a reply to the answer, as suggested by appellant. If the
presumption of joint ownership in a promissory note should attach, it is overcome, so as to
destroy any right to survivorship, when it appears in proof that the deceased was the owner of
a half interest in the note and a mortgage given as security for it. 7 Cal. Jur. p. 341, note 6.
Respondent in his answer plead ownership of a one-half interest in the note and mortgage
by the deceased William J. Dawe in his lifetime. We understand appellant does not question
the correctness of this allegation.
Appellant has asked that the main question be determined by this court so that future
appeals would not be necessary, and that the litigation be brought to an end.
61 Nev. 472, 478 (1943) Newitt v. Dawe
necessary, and that the litigation be brought to an end. We think such a position is the correct
one, and therefore sustain the judgment.
It is so ordered.
____________
61 Nev. 478, 478 (1943) Micheletti v. Fugitt
O. MICHELETTI, Appellant, v. JOHN C. FUGITT, Substituted for First National Bank of
Nevada, a Banking Corporation, Respondent.
No. 3373
February 11, 1943. 134 P.(2d) 99.
1. Corporations.
In action to recover amount deposited in escrow pending consummation of sale of a gambling club,
judgment for defendant was not erroneous on ground that trial court found that contract for sale of the club
was between plaintiff and defendant and not between plaintiff and a corporation, where evidence showed
that corporation was merely a name for defendant's business and that defendant's bookkeeper in signing
earnest receipt for the corporation was merely acting for defendant.
In action to recover money deposited in escrow pending the consummation of sale of a gambling club
which was incorporated, contention that trial court erred in finding that because defendant owned nearly all
the stock of corporation corporate entity might be disregarded was not sustainable, where trial court merely
found that contracts for sale of the business and the stock were between plaintiff and defendant, which
finding it was entitled to make independently of the corporation.
3. Corporations.
Purchaser of a gambling club which was incorporated and which corporation was merely the name under
which vendor was doing business, which fact was known to purchaser, and who was not deceived thereby,
was not entitled to avoid the contract on ground that transaction was with the corporation and not with the
vendor, since, under the circumstances, the court would not strain after technicalities to defeat the intention
of the parties, but would look to the substance of the transaction.
4. Frauds, Statute of.
Agreement for sale of a gambling club which was incorporated and for transfer of the stock thereof were
not within the statute of frauds where the buyer was put into possession of the property under the
agreement, and operated it exclusively as his own, receiving the receipts therefrom.
of the property under the agreement, and operated it exclusively as his own, receiving the receipts
therefrom. Comp. Laws sec. 1534.
5. Corporations.
Where written agreement for transfer of shares of corporate stock was not signed by transferee, but
transferee assented to writing at time writing was dictated and deposited money in escrow pursuant to the
writing and operated under the writing for some time before repudiating the agreement contained in the
writing, the writing was admissible as evidence of the agreement.
6. Contracts.
Where a complete contract is made orally, the fact that it is expected that a written contract will
afterwards be signed, embodying the terms of the oral contract, does not prevent the oral contract from
taking effect.
7. Corporations.
In action to recover deposit made in escrow pending consummation of the sale between plaintiff and
defendant of a gambling club which was incorporated and which corporation was merely the name under
which the defendant individually did business, corporation was not a proper party.
8. Internal Revenue.
A contract for the sale of a gambling club and the transfer of stock in connection therewith was not
rendered unenforceable though no revenue stamps were affixed to the stock at the time of their deposit with
a bank for delivery to the purchaser, where bank was instructed by the vendor to deduct from the balance to
be paid him on the transaction the amount of revenue stamps necessary to cover the transfer of the stock
certificates to the purchaser.
9. Internal Revenue.
Failure to affix revenue stamp to stock certificates transferred would not affect the validity of the
certificates or the validity of the transfer.
10. Landlord and Tenant.
A contract for the sale of a gambling club which was incorporated and the transfer of stock in connection
therewith and for assignment of lease to the premises on which the club was conducted was not rendered
unenforceable because lessor refused to consent to an assignment of the lease with vendor eliminated as a
guarantor of the rent, where lease was finally assigned without such consent, and it appeared that purchaser
assented thereto.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Action by O. Micheletti against the First National Bank of Nevada for money had and
received, wherein defendant disclaimed any interest in the money except as to an escrow
fee, and John C.
Bank of Nevada for money had and received, wherein defendant disclaimed any interest in
the money except as to an escrow fee, and John C. Fugitt was substituted as defendant.
Judgment for defendant, and plaintiff appeals from the judgment and from an order denying
plaintiff's motion for new trial. Affirmed.
H. R. Cooke, of Reno, for Appellant.
Thatcher & Woodburn, and William J. Forman, all of Reno, for Respondent.
OPINION
By the Court, Ducker, J.:
Appellant, who was plaintiff below, and will be so called, commenced this action to
recover from the First National Bank of Nevada, a banking corporation, the sum of $23,000
alleged to have been received by the bank to and for his use. The bank disclaimed any interest
in the money except as to an escrow fee of $275, and on its motion, John C. Fugitt was
substituted as defendant. The $23,000 was deposited with the clerk of the court.
Fugitt filed an answer admitting that the $23,000 was received by the bank and denying
that it was received to and for the use of plaintiff. The answer set up a separate and
affirmative defense to the complaint and prayed that the $23,000, less an escrow fee to the
bank and any indebtedness that may have existed against defendant's business on the 18th day
of September 1941 be paid to the defendant.
Plaintiff filed a reply denying the principal allegations of the affirmative defense and
setting up his version of the case as against those allegations. The reply also asked that The
Barn, Inc., a corporation, be made a party to the action.
Judgment was entered in favor of the defendant. The case is here on appeal from the
judgment and order denying plaintiff's motion for a new trial.
case is here on appeal from the judgment and order denying plaintiff's motion for a new trial.
In December of 1940 one Walter Oswald and defendant John C. Fugitt acquired a lease on
the premises located at 207 North Center Street, Reno, Nevada. The lease was for ten years
and carried a rental value of $460 per month, of which four months rental was paid in
advance. It provided that the lessees might assign the entire lease to any corporation which
might thereafter be formed by the lessees and might sublet concessions on the demised
property, but in no event could any assignment or subletting relieve lessees from their full
compliance with the terms and provisions of the lease agreement.
Soon after the lease was obtained, Oswald and defendant organized a corporation known
as The Barn, Inc. The incorporators were Oswald, the defendant, and the latter's attorney,
George S. Green. In consideration of the transfer of the said lease to the corporation as
payment for 501 shares of the stock, Oswald and defendant were to have 250 shares of the
stock issued to each, and Green one share of stock. The lease was never actually assigned to
the corporation until September 24, 1941. The corporation was used by Oswald and
defendant for carrying on a business at said 207 North Center Street, known as The Barn
Club. The business consisted of running a saloon and the operation of gambling games and
slot machines.
In June 1941 defendant acquired all of Oswald's interest in the business of The Barn
Club. Oswald assigned his interest in said lease to the former. At a meeting of the board of
directors of The Barn Inc., it appearing that none of the stock theretofore authorized to be
issued to Oswald had ever actually been issued, the directors then consisting of defendant,
George S. Green, and W. J. Albert, authorized the issuance of all the stock to defendant. So,
in July 1941, defendant was the sole owner of the lease, all of the stock of the corporation and
all of the equipment and business of the Barn Club at 207 North Center Street.
the Barn Club at 207 North Center Street. In the latter part of July or first part of August
1941, defendant entered into an agreement with O. Micheletti, the plaintiff, whereby plaintiff
operated and took 75% of the proceeds of the gambling and 25% of the proceeds of the slot
machines at The Barn Club. The slot machines, however, were operated by defendant, as was
the bar. Shortly after plaintiff commenced operating the gambling games under this
agreement he and defendant commenced to negotiate for the purchase by plaintiff of The
Barn business, the lease, equipment, and personal property located on the premises. Pursuant
to these negotiations, plaintiff, on September 18, 1941, paid to defendant's bookkeeper, J. E.
Armstrong, $1,000 and received back a receipt, which was introduced in evidence, and reads:
September 18, 1941
Received from O. Micheletti One Thousand Dollars, as deposit on purchase of Barn assets as
agreed on and listed (Purchase price of $24,000.00) Bal. $23,000.00 being due and payable
9/23/41.
The Barn
$1000.00 J. E. Armstrong
According to the testimony of defendant and his attorney George S. Green, they met with
plaintiff in the attorney's office on September 24, 1941, and the attorney dictated an
agreement which was agreeable at the time to plaintiff and defendant, which was later
reduced to writing and signed by defendant, but was never signed by plaintiff. The agreement
provided plaintiff was to pay $13,000 to defendant upon the deposit in escrow of 7,000 shares
of The Barn, Inc., stock and to pay the balance of $10,000 which was also to be held in
escrow by the First National Bank of Nevada for 15 days to secure any indebtedness against
The Barn, Inc., and that if no indebtedness appeared within the 15-day period, after the
escrow had been established, the bank should be instructed to deliver the $10,000 to
defendant.
This transaction was denied by plaintiff. However, on September 24, 1941 (and according
to Green immediately after he dictated that agreement), Green and plaintiff went to said First
National Bank and plaintiff deposited with the Trust Department of the bank the sum of
$23,000 and took a receipt for it from the assistant cashier and escrow officer, which reads:
Main Branch No. (
____
)
Escrow No. 305. 9-24-19
_____
No. 1085
Received from O. Micheletti $23,000.00Twenty Three (thousand) & 00/100 Dollars.
Together with On a/c Escrow in connection with above numbered escrow.
First National Bank in Reno
Trust Department
R. O. Kwapil
Assistant Cashier-Escrow Officer.
On the 18th of September 1941, after paying the $1,000, plaintiff took possession of The
Barn Club and was so in possession at the time of the commencement of this action on
October 14, 1941. When he went into possession he took defendant's money out of the slot
machines and cash register, and returned it to defendant, replaced the same with his money,
took over the stock of liquor and incidental, glassware, etc., behind the bar and in the liquor
room, called up the radio operator and asked that the ad be changed to Micheletti as sole
owner, and has during that time received all the receipts from the slot machines, bar and
gambling games. On October 1, 1941, defendant deposited with the bank 7,002 shares of the
capital stock of The Barn, Inc., duly endorsed, an assignment of Oswald's interest in the lease
to himself, an assignment from himself to the corporation of the lease, a bill of sale to The
Barn, Inc., of all personal property involved in the alleged deal, the agreement prepared on
September 24, 1941, the stock record book of The Barn, Inc., and the seal of The Barn, Inc.,
with instructions to the bank that these documents were to be delivered to plaintiff and
that the money on deposit was to be paid, $13,000 to defendant, and the balance held
until the expiration of the 15-day period and then the balance to defendant.
The Barn, Inc., with instructions to the bank that these documents were to be delivered to
plaintiff and that the money on deposit was to be paid, $13,000 to defendant, and the balance
held until the expiration of the 15-day period and then the balance to defendant. Shortly after
October 6, 1941, plaintiff demanded that the $23,000 be returned to him. This demand was
refused.
Two agreements are alleged in the affirmative defense, the first of which is that on the
18th day of September 1941 plaintiff agreed to buy from defendant and defendant agreed to
sell to plaintiff and deliver or cause to be delivered possession thereof to him on that date, the
property and assets of the business known as The Barn Club located at 207 North Center
Street, Reno, Nevada, excluding cash on hand and clear of debts, for the sum of $25,000,
payable as follows: $2,000 cash on said date and $23,000 on or before the 24th day of that
month. In connection with this agreement it is alleged that pursuant thereto defendant did on
the 18th day of September 1941 deliver such possession to plaintiff who, ever since up to the
commencement of this action has held said possession and operated said business. Further, in
connection with said agreement, defendant alleged that on the 18th day of September 1941
plaintiff paid to him $1,000 in cash, and the further sum of $1,000 by a credit for certain
equipment to be reconveyed by plaintiff.
The second agreement alleged in the affirmative defense is that prior to said 24th day of
September plaintiff requested that in lieu of the transfer of title to said property assets and
business to him individually, that defendant transfer the same to The Barn, Inc., the
corporation herein mentioned, and that defendant transfer the outstanding stock of said
corporation consisting of 7,002 shares as follows, to wit: 7,000 shares to plaintiff and 2 shares
to plaintiff's nominees, to wit: 1 share to James Harvey and the remaining share to Louis
Swift, and that they did at that time agree that plaintiff would deposit with the Trust
Department of the First National Bank of Nevada at Reno, Nevada, the balance of the
purchase price of the property, to wit: The sum of $23,000 for the use and benefit of
defendant; $13,000 of which was to be paid to deendant upon his deposit in escrow with
said bank of the outstanding stock of said "The Barn, Inc." as aforesaid, and the balance
of said amount, to wit: the sum of $10,000 to be held by said bank for a period of 15 days
as security for any indebtedness that might appear against said business, which
indebtedness defendant agreed to pay from said $23,000 due or owing as of September
1S, 1941.
National Bank of Nevada at Reno, Nevada, the balance of the purchase price of the property,
to wit: The sum of $23,000 for the use and benefit of defendant; $13,000 of which was to be
paid to deendant upon his deposit in escrow with said bank of the outstanding stock of said
The Barn, Inc. as aforesaid, and the balance of said amount, to wit: the sum of $10,000 to
be held by said bank for a period of 15 days as security for any indebtedness that might
appear against said business, which indebtedness defendant agreed to pay from said $23,000
due or owing as of September 18, 1941.
Further allegations show compliance with said second agreement by both plaintiff and
defendant and that subsequent to said deposit of said $23,000 as aforesaid, plaintiff requested
said bank not to deliver the same to defendant but to return the same to plaintiff.
The court found in favor of these agreements and these allegations. A painstaking review
of the evidence convinces us that there is substantial evidence in the record to support such
findings. The evidence is quite voluminous and to set out even substantially our review of it
would prolong this opinion to a great length and serve no useful purpose. In our consideration
of the evidence we have given due regard to the opportunity to the trial court to judge of the
credibility of the witnesses. We will therefore refer to no more of the evidence than is
necessary to explain our rulings on the questions of law raised by the assignment of errors.
While the answer alleges two agreements, and for convenience we will speak of them as
such, the evidence on which the trial court based its judgment, discloses one entire
transaction with merely a change effected by the second agreement in the manner of
performance.
1. The first assignment of error, that the court erred in finding that the contract made on
September 18, 1941, was between defendant and plaintiff, and not between plaintiff and The
Barn, Inc., is disposed of by our conclusion as to the sufficiency of the evidence. Plaintiff
stresses the receipt for the $1,000 signed The Barn by J. E. Armstrong" as conclusive
evidence that the contract was between plaintiff and The Barn, Inc.
J. E. Armstrong as conclusive evidence that the contract was between plaintiff and The
Barn, Inc. There is no merit in this contention. The evidence shows that The Barn was merely
a name for defendant's business and place of business, and that Armstrong was defendant's
bookkeeper. Moreover, Armstrong testified that the transaction in which the $1,000 was paid
was between plaintiff and defendant.
The further contention that his testimony and other testimony showing that the contract
was between the parties was inadmissible to vary the terms of the receipt is likewise devoid
of merit for the simple reason alone that there was no variance.
2, 3. The next assignment of error is that the trial court erred in finding that because of the
alleged fact that respondent owned all or nearly all of the stock of The Barn, Inc., the
corporate entity might be disregarded. The findings referred to by plaintiff under this heading
are findings III, VII, VIII, IX, and X. We have examined them. They do not bear out the
contention that the court disregarded the corporate entity in its findings. The trial court simply
ground that the first contract and the subsequent contract concerning the stock of the
corporation, was between the plaintiff and defendant. It so found, and was entitled to find
independently of the corporation. The evidence concerning the corporation was such that
under authorities cited by defendant the court was not bound to make any finding that the
corporation owned all its stock and all the business that plaintiff was bargaining forthe
lease and all the personal property. They dealt as individuals. Under such circumstances the
court will not strain after technicalities to defeat the intention of the parties, but will look to
the substance of the matter. United States Gypsum Co. v. Mackey Wall Plaster Co., 60 Mont.
132, 199 P. 249; Sargeant v. Palace Cafe Co., 175 Cal. 737, 167 P. 146.
Employing in part the language of the court in the former case, the business of the
corporation was in fact the business of defendant, and vice versa.
fact the business of defendant, and vice versa. The corporation, although maintaining the
form of legal existence, was, in effect, merely the name under which defendant was doing
business. This fact was known to plaintiff, for it appears from the evidence that he wished to
continue the business by use of the corporation so as to save the inconvenience and expense
of taking out new licenses. He was not deceived in any way, but understood and approved the
use of the corporation in the business. The Nevada cases cited by plaintiff have no application
to a situation of this kind.
4. The third assignment of error is that the court erred in holding that the agreements were
not within the statute of frauds. The statute relied on, sec. 1543 N. C. L. had no application
for the reason that the evidence on which the court based its findings shows that they were
fully executed on the one side at least, and the buyer put into the possession of the property.
Such agreements are not within the statute as appears from its express terms and conceded by
all authorities. 2 Page on the Law of Contracts, sec. 1356, and cases cited in note one thereto;
27 C. J. 233; Huntley v. Huntley, 114 U. S. 394, 5 S. Ct. 884, 29 L. Ed. 130.
In said section 1356 the author says: By the terms of this section of the statute, acceptance
and actual receipt of part or all of the personalty sold is sufficient to make the contract
enforceable, without a written memorandum or a payment of part of the purchase price or
earnest. Accordingly the statute does not apply where there has been either full performance,
or receipt and acceptance of part of the personalty sold.
But plaintiff contends a purchaser of corporate shares, taking possession of the assets of
the corporation, is not receipt and acceptance by the purchaser. He cites Ford v. Howgate,
106 Me. 517, 76 A. 939, 29 L. R. A., N. S.734, and De Nunzio v. De Nunzio, 90 Conn. 342,
97 A. 323, in support of this position. The latter is easily distinguishable from the facts of the
instant case, and the former is against plaintiff's contention. In Ford v. Howgate, the court
held that an oral contract to sell corporate stock was taken outside the statute of frauds
by the buyer entering management of the corporate business as an owner. The same
principle was applied to similar facts and Ford v. Howgate approved in Pugh v.
v. Howgate, the court held that an oral contract to sell corporate stock was taken outside the
statute of frauds by the buyer entering management of the corporate business as an owner.
The same principle was applied to similar facts and Ford v. Howgate approved in Pugh v.
Gressett, 136 Miss. 661, 101 So. 691, 38 A. L. R. 678. Other cases are presented in
defendant's brief which illustrate the principle governing in a situation of this kind. We cite
them without comment. Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St. 44, 110 N.
E. 518; Mahoney v. Kennedy, 172 Wis. 568, 179 N. W. 754.
In the course of its opinion in Ford v. Howgate, supra [106 Me. 517, 76 A. 941, 29 L. R.
A. (N.S.) 734], the court said: * * * We think the decisions will be found substantially
harmonious in support of the rule that when it appears from evidence, in addition to that
which establishes the contract itself, that something was done with respect to the
subject-matter of the contract, either concurrent with or subsequent to it, which unequivocally
indicates that there was a delivery by the vendor, with an intention of vesting the right of
possession of the subject-matter of the sale in the vendee as owner, and an acceptance and
receipt of the same by the latter, with an intent thereby to become the owner thereof, then the
contract is so far executed that the statute of frauds does not apply to it.
In the instant case everything was done that evidences intention to transfer ownership of
the business. As previously stated, the evidence accepted by the court shows that when
plaintiff paid the $1,000 he entered full possession of the Barn Club its equipment and
facilities, and operated it all exclusively as his own, receiving the receipts therefrom, and was
so doing when this suit was instituted.
5, 6. Error is claimed in admitting in evidence the written agreement of September 24
changing the manner of performance to a transfer of defendant's shares of stock in the
corporation, but there was none. The claim is based on the fact that the writing was not
signed by plaintiff.
signed by plaintiff. However, the evidence on which the court found for defendant discloses
that plaintiff assented to it at the time it was dictated, deposited the $23,000 in escrow
pursuant to its terms and operated under it for some time before repudiating the contract.
Under such circumstances the writing was admissible as evidence of the agreement
concerning the transfer of stock. Babbitt v. Central Life Ins. Co., 93 Kan. 564, 144 P. 837;
Sanders et al. v. Pottlitzer Bros. F. Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am.
St. Rep. 757; Cohn v. Plumer, 88 Wis. 622, 60 N. W. 1000. Held in the latter case: Where a
complete contract was made orally, the fact that it was expected that a written contract would
afterwards be signed, embodying the terms of the oral contract, does not prevent the oral
contract from taking effect.
The law did not require the agreement to be in writing and the evidence discloses a
concluded agreement before it was reduced to writing.
7. There was no error committed by the court in not ordering The Barn, Inc., to be made a
party. The contract was between plaintiff and defendant. The corporation was therefore not a
proper party.
It is next claimed that the trial court erred in holding that the stock certificates were in a
deliverable state, even though no revenue stamps were affixed thereto at the time of their
deposit with the bank.
8. We see nothing meritorious in this claim. At the time the certificates of stock were
deposited with the bank for delivery to plaintiff, the bank was instructed in writing by
defendant to deduct from the balance to be paid him on the deal, the amount of revenue
stamps necessary to cover the transfer of the stock certificates to plaintiff. This was a
substantial compliance with the revenue statute requiring the affixing of revenue stamps on
the transfer of stock, and would meet any merit there might be in the objection that the
certificates of stock were not in a deliverable state by reason of provisions of the uniform
sales act of this state.
9. On the other hand, if no revenue stamps had been affixed to the certificates there is
nothing in the revenue law that would affect their validity, or the validity of the transfer.
Congress has elected to rely on other means for enforcing the stamp provision. Cole v. Ralph,
252 U. S. 286, 40 S. Ct. 321, 64 L. Ed. 567.
We have examined the other errors assigned and find them to be devoid of merit. The
contentions of error throughout are largely of a technical nature. The escrow itself and even
the testimony of plaintiff refute the assertion of the complain that the $23,000 was received
by the bank to and for his use.
10. The evidence in the main discloses that a contract was entered into between the parties
for the sale and purchase of The Barn property, including an assignment of the lease to the
buyer, for the sum of $24,000. On cross-examination, in putting in his case, plaintiff was
compelled to admit that the $23,000 was placed there for safe keeping pending the
leasethe Barn Club leaseand Mr. Fugitt and I agreed upon that he would drop off the
lease. The only sharp issue made in the evidence in this regard seems to be in respect to the
assignment of the lease. It is plaintiff's contention that the whole deal depended upon whether
the lease could be assigned with defendant eliminated therefrom as a guarantor of the
monthly rent payments. Efforts to obtain the consent of the lessors to such elimination failed,
and the lease was finally assigned without it. The evidence is sufficient to sustain the lower
court in finding that plaintiff was willing that the assignment should be made with defendant
remaining responsible for the rent payments.
It is so ordered.
____________
61 Nev. 491, 491 (1943) Senate Joint Resolution No. 7
SENATE JOINT RESOLUTION No. 7
INTRODUCED BY SENATOR HAIGHT
February 25, 1943
Memorializing Edward A. Ducker on his Seventy-Third Birthday and Upon His Completion
of a Quarter of a Century as a Member of the Supreme Court of the State of Nevada.
Whereas, Edward A. Ducker, now one of the Justices of the Supreme Court of the State of
Nevada will on the twenty-sixth day of February 1943 observe his seventy-third birthday; and
Whereas, Judge Ducker has served the people of the State of Nevada for more than a
quarter of a century as a member of the Supreme Court, during which period of time he was
four times Chief Justice; and
Whereas, Believing that the record of this outstanding jurist is unparalleled in the Nation,
we do now take this means of inscribing these words upon the pages of legislative history to
the end that future generations of Nevadans may learn that greatness is but a happy blending
of rugged honesty, industry and human understanding; and
Whereas, The early years of Judge Ducker's life were spent with saddle and reata riding the
great cattle ranges of Nevada, a youth among those stalwart men who had even then
established the great herds of livestock upon which the prosperity of our State so much
depends, all of which instilled in him the rugged virtues of the pioneers' code of law; and
Whereas, During his lonely vigils in the silence of mountain and desert he became imbued
with the ambition to study and to be admitted to the practice of law, which ambition he
pursued with unswerving directness until the ambition became an accomplished fact; and
Whereas, He was admitted to the practice of law in the year 1902, was elected district
attorney of Humboldt County in 1905, which office he hold [held] until 1910, being then
elected to the office of District Judge of Humboldt County for a period of eight years,
thereafter being elevated to the Supreme Court of the State; and
Whereas, He was admitted to the practice of law in the year 1902, was elected district
attorney of Humboldt County in 1905, which office he hold [held] until 1910, being then
elected to the office of District Judge of Humboldt County for a period of eight years,
thereafter being elevated to the Supreme Court of the State; and
Whereas, On the 26th day of February 1943 Judge Ducker will have reached the age of
seventy-three years, thirty-nine of which have been spent in public office serving the State he
loves; and
Whereas, Since the year 1940 he has been eligible to retirement under the provisions of the
Judges' Pension Act on two-thirds of his present salary, all of which he has refused to take
advantage of, preferring to served rather than to be served; and
Whereas, The people of the State of Nevada are sincerely proud of the record of Judge
Ducker, who as a man, a lawyer, and a judge stands as a monument to the freedom of
opportunity open to all under democratic government; and
Whereas, The achievements of Judge Ducker are the more outstanding when one
appreciates that his alma mater was the buckaroo camp and cattle trail, his desk a creaking
saddle, and his campus the limitless stretch of sage and pine; now, therefore, be it
Resolved by the Forth-first Session of the Legislature of the State of Nevada, That a
resolution memorializing Judge Ducker be made a part of the official records of this session;
that the Secretary of State of the State of Nevada deliver a certified copy hereof to be made a
part of the minutes and records of the Supreme Court of the State of Nevada; that certified
copies hereof be delivered to the Lieutenant Governor, as President of the Senate, and to the
Speaker of the Assembly, who shall thereupon appoint a committee from the Senate and
Assembly to wait upon Judge Ducker and to deliver to him a true copy hereof under the
seal of the Secretary of State.
Assembly to wait upon Judge Ducker and to deliver to him a true copy hereof under the seal
of the Secretary of State.
Vail Pittman, Denver Dickerson,
President of the Senate. Speaker of the Assembly.
Florence Buckingham, E. C. Mulcahy,
Secretary of the Senate. Chief Clerk of the Assembly.
[Seal]
Attest: Malcolm McEachin, Secretary of State.

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